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Repairing the Cracks in Legal Education
by Justice A.M. Ahmadi*
Cite as : (1993) 1 SCC (Jour) 3
A Tribute
I feel greatly honoured to be invited to deliver the first M.C. Bhandari Memorial Lecture arranged by his relatives, friends and admirers who are present in large numbers in this august gathering, which includes, among others, distinguished judges, lawyers and prominent citizens. I am sure someone more suitable than myself, perhaps a close associate, could have been chosen for this honour. I did not have the pleasure of knowing him personally but I must say I have been greatly impressed by what I have read and heard about him. I, therefore, stand before you with a sense of diffidence and deliver in all humility this inaugural Lecture intended to commemorate the memory of that great human being Shri Mahavir Chand Bhandari. I owe it to the kindness of his son Mr Justice Dalveer Bhandari for giving me this opportunity to pay my humble tribute to the great humanist.
From what I have read and heard about him I can say without fear of contradiction that he was a remarkable man, a blend of two currents, he inherited his mental and physical being, firmness of character and courage of conviction, being at the same time kind, tender and warm at heart, as a Rajasthani, and great serenity of temper, genial and mild temperament and excellent manners of a Lucknowi, where he studied. The most marked characteristic of his nature was his sublime moral courage. He was a fine gentleman whose presence anywhere filled the air with his fragrance.
As a lawyer he was always pushing forward seeking to open gates so that he might be able to walk into the open, breathe fresh air and be prepared to take paths hitherto not trodden in jurisprudence by others. He was never content with what was provided in decided cases, he always tried to reach out for something new, higher and better and sought light from the provisions of the Constitution. He manifested a rapid and penetrating perception of legal problems which he tried to resolve not from the light of the past but by expounding new doctrines consistent with the constitutional philosophy of equality and social justice. He attained prominence as a lawyer by dint of hard work, by carrying to the study and practise of law the habit of deep thought and intensive research, a habit which constitutes the mightiest weapon for success in the profession. That is how he won the acclaim of all concerned.
He did not lag behind in his obligations to society. He was a secular minded person and was a staunch believer in secular democratic principles. From his write-up which he dictated and but could not publish, a copy of which I had the pleasure to read, I can say that he believed that spirituality can only be used as a path to better life. He always believed that every human being must work to alleviate his brethren. He devoted a good deal of his energy and time to the cause of education and taught law for many years. To commemorate his memory the subject chosen for today's lecture is 'Repairing the Cracks in Legal Education' a cause for which he devoted a good number of working hours of his life. I now come to the subject.
REPAIRING THE CRACKS IN LEGAL EDUCATION
'Law' is a special calling, demanding high quality of study and research and a commitment to the cause of justice. That is why Roscoe Pound described a member of a profession as one pursuing 'a learned art' as a calling. The study of law must, therefore, be of that quality and standard as would justify Roscoe Pound's description of a professional. But in recent years both lawyers and judges have become increasingly concerned about the quality of legal education imparted by our law colleges all over the country and have rightly lamented the fall in the standard of legal education. This discontent has become more articulate in recent times as it has had a direct impact on the prestige of the legal profession. The decline in the prestige and image of the legal profession should be a matter of concern to all those connected with the legal system. It is, therefore, high time that we identify the areas of default and initiate corrective action to repair the damage before it is too late. One is reminded of the typical response of U.S. Chief Justice Warren E. Burger when his senior judge gently chided him to wait for a few years before saying what was wrong "No, I'm afraid that if I wait too long I'll get used to it" and followed it up by remarking "My mother taught us that the time to fix the cracks in the plaster is when you first move into a house. Later on you don't pay attention to them." I think we have waited long enough to repair the cracks in the legal education system of this country and it is high time that we rise from our arm-chairs and start the repair work in right earnest.
The discussion must begin with the awareness of those historical developments which have conferred a virtual monopoly over legal education on the university related law colleges spread all over the country. In the first place it must be realised that the general pattern of education in post-independence era had been fluid since there were periodical attempts at restructuring the educational pattern in schools and colleges. On account of this virtually continuing exercise, a state of uncertainty prevailed. Immediately before we attained independence and for a few years thereafter, a student after completing two years in college, (Intermediate class), could, without acquiring a degree, opt for a two year law course for acquiring a law degree. For joining the profession i.e. the Bar, he was required to clear an examination conducted by the State Bar Council. This process required 15 years of school and college life to acquire a law degree. A few years after independence i.e. in the fifties, there came a change whereby a degree became a must for entering a two year law course. This process required 17 years of school-college life. However, after the introduction of the 10+2+3 pattern of general education in the country, a degree became a must to qualify for the law course after 15 years of school-college life. A student would then need 2 more years to secure the law degree to join the profession. It was, however, thought desirable that the study of law should be an independent discipline from the 10+2 level so that greater emphasis could be laid on the study of various branches of law to better equip a student to take to the profession of law. With this object in view a five-year course in law from the 10+2 level was proposed and introduced by the Bar Council of India sometime back. Unfortunately because of want of proper planning and resource mobilisation, this integrated five-year programme which was intended to solve some of the drawbacks of the prevailing legal education system, could not take-off, forcing the Bar Council to abandon the scheme. Consequently, the status of the legal education today continues to suffer not only from the drawbacks and defects highlighted by the Law Commission of India in its 14th Report (1958) but has since further deteriorated over a period of time.
The Law Commission in its report on "Reform of Judicial Administration", while assessing the standards of legal education obtaining in the country, portrayed a dismal picture and lamented:1
"The portals of our law teaching institutions manned by part-time teachers open even wider and are accessible to any graduate of mediocre ability and indifferent merits.
It is not surprising that in this chaotic state of affairs in a number of these institutions there is hardly a pretence at teaching.... This character is followed by law examinations held by the Universities, many of which are mere tests of memory and poor ones at that, which the students manage to pass by cramming short summaries published by enterprising publishers.... The result, a plethora of LL.B., half-baked lawyers, who do not know even the elements of law and who are let loose upon society as drones and parasites in different parts of the country."
In the mid-fifties when these remarks were made by an expert body after taking stock of the prevailing conditions, there were only 43 institutions preparing 20,159 students for law examinations but today there are about 412 Law Colleges, University Departments and one Law University with an aggregate student enrolment of over 2,50,000. Mr Justice R.D. Tulpule while writing on the state of Legal Education in India, almost a decade back, said:2
"Any system of professional education and in particular that concerned with legal education must cater and provide for those entering the legal field with the objective of pursuing a legal career. The system should be such as will discourage persons who do not have an objective of legal career and drift to courses of law, more because they have not been successful at their other attempted careers and fields. It should not be the last haven or resort for rejects from other competing and attractive fields of career. Once that objective is borne in mind, the system must be so fashioned to secure that objective. Every system of legal education which is designed to achieve ultimate objective of preparing persons for a legal career, must not only aim at preparing for good legal practitioners who will function in a court of law, but must also impart legal skills and equipment to men who want to specialise in the various job opportunities and requirements which have already opened up and are opening up, and must also be designed so as to prepare academicians, researchers, scholars and critics in the legal field."
The situation has further worsened with mushroom growth of ill-equipped law colleges housed in dingy rooms with skeleton libraries and lacking in adequate and trained staff. Some of them function as short duration evening classes. These can more appropriately be described as fee collection centres rather than law colleges. Some of these colleges do not insist on regular attendance by students, presumably because either the accommodation is insufficient or the staff strength is inadequate.
Mr Justice Tulpule is not off the mark when he observes that the creamy layer of the students prefer to choose other disciplines like medicine, engineering, electronics, etc., and drift to law as a last resort when they do not secure admission in the disciplines of their choice. The presence of a large number of such 'drifters' can hardly generate an atmosphere conducive to a centre of learning. Their casual approach would only dampen the enthusiasm of other students as well as the teachers, causing environmental degradation. Added to that is the fact that at certain examination centres there is no supervision for fear of violence and the examination results are extremely liberal. As one Principal of a law college put it: "It is difficult to fail". What then is the scenario?: Ill-equipped Law Colleges; a large body of students being 'drifters' to the law course on their failing to secure admission to the disciplines of their choice; training personnel lacking in competence and knowledge; access to knowledge being limited on account of want of proper libraries; absence of proper filtering with extra-liberal examination results, etc., etc. etc. What a dismal picture!
Is it then surprising that the product of such institutions is hardly possessed of either the skill or knowledge to practise in courts of law? He is hardly trained to understand the substantive and the processual laws, so vital to the practise of law in courts. So also he is not familiarised with the skills and techniques needed to practice law. If he is not equipped and trained for the practise of law in Law Colleges, it is obvious that he must learn while at the Bar. But at whose expense? Besides, the protracted hearings in law courts has robbed a new-entrant of even that vital in-house training he used to get in the past. Suits in the trial courts as well as on the original side of the High Courts having such jurisdiction do not proceed from day to day and hence new entrants to the profession do not have the advantage of watching a few trials and learning therefrom. Even in criminal courts, barring perhaps Session Courts in some States, the trials no longer proceed from day to day, thereby depriving the new-entrants of the opportunity of observing witness action in such cases. The slow pace of litigation has thus denied valuable in-house training to new-entrants to the profession. The climate in appellate courts is no better. He also does not receive proper training in the chambers of his seniors, barring a few seniors who may evince interest in training his or her juniors. He is thus left to himself, he naturally gropes in the dark and picks up a few things here and a few things there and continues to struggle for survival. What he picks up on the way may not be and mostly is not consistent with ethical norms. You can easily visualise the quality of the end product. A combination of these factors is largely responsible for the deteriorating image of the legal profession in public esteem.
I find no pleasure in saying these hard truths but I think there comes a time for introspection. Unless we face the bitter truth and come to grips with it, we cannot hope to improve the legal education system. We have failed to attend to the cracks which have since widened and if we fail to take urgent remedial measures, posterity may not pardon us. Such a situation cannot be allowed to continue as it is fraught with serious consequences; it will not only cause irreparable harm to the legal system but will in the long run shake the very foundations of democracy and the rule of law on which our constitutional government rests. What then should be our action plan? But before that let us see if we can benefit from the experience of others similarly situated.
Professor Kahn Freund, a distinguished law teacher, speaking of English ethos of legal education stated:3
"It was and is the essence of a 'learned' profession that apprenticeship while indispensable is not sufficient. Mere training is not enough, education is necessary in the untranslatable sense of the words I must be forgiven for using them again 'formation' or 'Bildung' which denote the forming of the personality as well as the inculcation of knowledge. It is this dual aspect of our work as law teachers which is to me its most significant feature."
In Chapter 3 entitled 'The General Approach to Education and Training for Legal Professionals', the Ormrod Committee (1971) emphasised the need to combine the traditional legal education with instructions in skills and techniques which are essential to enable a person to follow a learned profession. Pointing out that hitherto the legal profession, and others, had largely relied upon the apprenticeship method, ignoring the new situations which had developed over a period of time, it proceeds to add that the problem now is to devise ways and means to put the new facilities to use for educating the professional man by supplementing them with training in professional skill and techniques. In other words the Committee emphasised the need for a synthesis between the academic and professional wings, as is to be found in the medical profession. Noticing that the law faculties had become isolated from the practising profession, it called for "the integration of academic and professional teaching resources into a coherent whole". It, therefore, suggested three stages of legal education, namely, (i) the academic stage, (ii) the professional stage, comprising both institutional training and in-training, and (iii) continuing education or training. This would enable the individual not only to equip himself with the basic knowledge of the law but also acquaint himself with the skills and techniques so essential to the practice of law. The idea of continuing education or training would enable him to adapt himself to the everchanging scenario in the field of law, so vital for career-advancement. The Ormrod Committee concluded thus:4
"Legal education should not attempt to equip the lawyer at qualification with a comprehensive knowledge of every subject he may encounter in practice; instead, it should concentrate on providing him with the best possible general introduction so as to enable him, with the help of experience and continuing education after qualification, to become a fully equipped member of the profession."
In the United States of America also concern was voiced regarding the deteriorating standard of legal education. The International Legal Centre, New York, in the report of its Committee on Legal Education (1975) distinguished between a law-trained person and a lawyer, the former being one who has undergone a substantial course in legal education but is not entitled to practice law and the latter being one who is eligible to practice in a court of law. It was considered important to state the distinction because many law-trained persons performed several functions outside court, e.g. Legal advisors to Banks, Companies, Public Sector Undertakings, Government Departments, etc., and never became lawyers.
Chief Justice Burger while addressing the American College of Trial Lawyers, District of Columbia, lamented on the state of the profession as under:5
"... in some jurisdictions up to half of the lawyers who appear in Court are so poorly trained that they are not properly performing their job and that their manners and their professional performance and their professional ethics offend a great many people. They are engaging in on-the-job training at the expense of their clients' interests and the public. If you do not accept these premises, harsh as they are, you will not accept, a proposal I intend to make to you."
and concluded that "a radically new and carefully prepared pilot program should be tried out in several law schools for at least three years with the most direct and active participation of the best trial lawyers available". He then proceeds to suggest that for the first two and a half years the law schools should devote to the task they now do superlatively teaching students to think and reason, and teaching the substantive law and the mechanics of procedure and in the third year the law school and trial bar should collaborate.
The foregoing discussion demonstrates the difficulties experienced in devising an efficient and satisfactory system of education and training for the legal profession in this country and illustrates how others have approached problems of similar nature. What then emerges is a realisation that the fundamental problem is of integrating or combining the traditional education, namely, the basics of substantive and processual laws, with the skills and techniques which are essential to the practice of the learned profession. However, a fine balance must be struck to ensure against the approach becoming either 'too academic' or 'too professional'. It is equally essential that the study of law is treated as a serious business and every effort must be made by all concerned to raise its status by devising ways and means to discourage 'drifters' and others who are not too serious at the entrance stage itself. There can be little doubt that some amount of filtering is an absolute must at that stage. Then steps must be taken to remove the defects in the examination system itself and curb the malpractices at the examination centres and in the evaluation of answer books. It is necessary to appreciate that hitherto the examinations have dictated the content and mode of teaching rather than the teaching method dictating the pattern of examinations. This has been the root cause of the low status accorded to a law degree because, as pointed out by the Law Commission, students are able to clear the examinations by cramming from short summaries published by enterprising publishers who are least concerned about the maintenance of the standard of legal education. There is then an immediate need to take remedial measures.
After India attained independence, the ethos of legal education should have undergone a change to fit in with the constitutional philosophy of ushering in a socio-economic transformation of the society to achieve the objective of a welfare State and an egalitarian society. By the enactment of the Advocates Act, 1961, the Bar Council of India is charged with the duty to promote legal education, to lay down the standards of legal education and to recognize university law degree courses as qualifying for enrolment as an Advocate. Subject to certain very limited exceptions, a university law degree is essential for entry into the profession. Since all law teaching is undertaken by universities, and colleges affiliated to universities, and since a recognised university law degree is in itself sufficient qualification for entry into the profession, a heavy duty lies on those who manage the affairs of the Bar Council of India (which also supervises the working of the State Bar Councils) to take appropriate steps to enhance the prestige of the legal profession by ensuring high quality legal education. Despite the efforts made by the Bar Council of India, the professional legal education continues to suffer from a variety of drawbacks some enumerated hereinabove. However, the initiative of the Bar Council of India in sponsoring the National Law School of India University (Bangalore) is indeed praiseworthy.
Several suggestions have been made by Judges, lawyers and law teachers, responsible bodies and institutions for improving the quality of legal education in India. These include reintroduction of the apprenticeship system, reintroduction of the post-degree Bar examination as a pre-requisite for enrolment as an advocate, a training centre for continuing education, a training institute for Judges, etc. Since teaching is an intensely personal activity the quality of legal education would largely depend on the availability of law teachers of the right stamp. The focus must next shift on the method of education. Here a fine blending between the active method i.e. the case-method, also known as the Langdell method, and the passive method i.e. the lecture method, would help. If the students are first familiarised with the subject by the lecturer and thereafter their active participation is sought with reference to a particular case, it will enable the teacher to appreciate the receptivity and capacity of the student to understand and absorb the jurisprudential principles of the topic under discussion. That will help the teacher to identify students needing greater attention. The Curriculum Development Centre of the University Grants Commission suggested a new curriculum offering twelve core (compulsory) courses plus a course in practical training in law with seven optional subjects.6 I do not consider it necessary to detail the subjects but it is sufficient to say that the recommendation notices the need for integration referred to earlier. In modern times the need for continuing legal education can never be over-emphasised in this fast-changing world where new disciplines in the legal field are surfacing with astonishing speed. Every conscientious professional, law teacher and judge must keep himself abreast of the developments taking shape in the field of law to enhance his knowledge with a view to understanding the complexities of emerging doctrines. While professionals and law teachers have the benefit of exposure through Seminars and Conferences, the same cannot be said of judges, particularly those belonging to the subordinate services, and hence I lay greater emphasis on their training.
With these broad objectives in mind, I would suggest that the Central Government, the concerned State Government, the Bar Council of India and the concerned State Bar Council and all concerned with the legal education programme in the country, should seriously apply their minds to the establishment of at least one institution for the present in every State, if not more, on the pattern of the National Law School, Bangalore, which would admit bright students after the 10+2 level to a five year course in law. The first three years would be devoted to the traditional teaching of both substantive and processual laws by employing both the active (case law) and passive (lecture) methods. Those students who do not desire to practise law or who do not aspire for a judicial career, may terminate their studies with an ordinary law degree. Those who desire to enter the profession as law practitioners or aspire for judicial service may be bifurcated into two distinct streams. The training to these two streams may be in certain specialised subjects for one year with a shift in emphasis depending on the stream chosen. Till the completion of the fourth year, a student may be allowed to change his stream. The last year would be devoted to giving intensive and extensive training in the skills and techniques of the chosen discipline, i.e. a professional career or a judicial career. Insofar as the service stream is concerned, admissions should be strictly according to merit and limited to the number of estimated judicial posts to be available for manning the courts in the State at the base-level. In the last year of training in this stream, the students may be provided a stipend, easy access to law courts and mini-pupillage with a senior member of the local Bar, preferably the trial Bar. Special attention should be paid to acquaint him with the trial procedure, the art of controlling court proceedings, admissibility of evidence and writing of orders and judgments. Those choosing profession as a career may be trained in the art of communicating with clients, drawing up pleadings and other documents, examination of witnesses, discovery and inspection of documents, research of case law, etc. What I have said is only illustrative and not exhaustive. The last two years of education/training should be a joint-venture between the teaching staff, senior lawyers and judges who may interact with the students to train them as good professionals/judicial officers. Those who successfully clear the course may be conferred a law degree with Honours. The recruitment rules may have to be suitably modified for appointment of the successful students as base-level judicial officers. This will ensure availability of trained personnel to the judiciary. The institute can also undertake refresher courses to fill the necessity for continued education.
I may also mention that I had discussed this proposal with Dr N.R. Madhava Menon, Director of the National Law School, Bangalore, and he was prepared to introduce it at once as the first batch of the students were soon expected to enter the fifth year of the course. This is what he said:7
"The proposal cannot afford to get bogged down in bureaucratic red-tape if it is to be honestly implemented. As such, the University offers its services to the States and the High Courts at great expense to itself and expects them to give the proposal the same concern in the spirit in which it is made."
I have in all humility made a few suggestions solely actuated by a desire to lift the standard of legal education and improve the image of the legal profession and the judiciary in public esteem. I earnestly request you to appreciate the suggestions in this spirit. Introspection demands a frank admission of drawbacks without which the process for improvement cannot begin. I assure you that after the warm welcome and the kind words said about me, there can be no other thought except the well being of the system to which we all belong. I am deeply grateful to the organisers of this function and in particular to my friend Justice Dalveer Bhandari for giving me this opportunity to share a few thoughts and to all of you for your patience.
I will end with a couplet in memory of the late Shri M.C. Bhandari:
Only the actions of the just
Smell sweet and blossom in the dust.
Thank you Jai Hind.
- The Law Commission of India, Report on Reform of Judicial Administration (1958) Chapter on 'Legal Education'.
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- Bar Council of India Journal, Vol. VIII, Nos. 1-4 (1981), p. 96.
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- O. Kahn Freund: Reflections on Legal Education, Modern Law Review, Vol. 29(2), pp. 121-123.
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- Report of the Committee on Legal Education (Chairman Mr Justice Ormrod) Chapter 9, paragraph 185(3), p. 94.
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- Remarks to the American College of Trial Lawyers, Hollywood Beach, Florida, April 11, 1967 at p. 157 of his book Delivery of Justice.
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- University Grants Commission, Report of the Curriculam Development Centre in Law, (1990) Vol. I, pp. 26-27, paras 5.2 & 5.3.
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- Letter dated April 7, 1992 by Dr N.R. Madhava Menon to the author -- Paragraph 7 of the accompaniment.
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