|
H.L. Sarin Memorial Lecture : LEGAL EDUCATION IN INDIA - PAST, PRESENT AND FUTURE
by Dr Justice A.S. Anand*
Cite as : (1998) 3 SCC (Jour) 1
I consider it a privilege to have been invited by the Sarin Memorial Legal Aid Foundation to deliver the H.L. Sarin Memorial Lecture in the City of Roses.
At the time when I joined the profession and started my practice at Chandigarh in what was then known as the Punjab High Court, more than three decades ago, Late Shri Harbans Lal Sarin was already at the zenith of his professional career. He was an outstanding lawyer with endearing qualities of head and heart. He possessed sound common sense and was a remarkably fair advocate. He argued his cases fearlessly and forcefully, while maintaining complete detachment from his clients and with full consciousness of his duties towards the court to which he was always respectful. Shri Sarin was known to render help to deserving juniors at the Bar to train them for the future. He was a courteous gentleman and a most pleasing companion outside the court. As a lawyer he was respected by litigants, brother lawyers and judges alike. He manifested a rapid and penetrating perception of legal problems which he tried to resolve not only from the light of the past but by expounding new doctrines consistent with the constitutional philosophy of equality and social justice. That is how he won the acclaim of all concerned. He had a passion for teaching law and was the editor of a legal journal besides being an author. I had the privilege of knowing him personally. As a young junior I had found him helpful whenever I approached him for advice or guidance. I have been the beneficiary of his affection and therefore, it is with all humility that I stand before you to dedicate this lecture to his memory.
To commemorate his memory the subject chosen for today's lecture is "LEGAL EDUCATION IN INDIA - PAST, PRESENT AND FUTURE." I now come to the subject.
The Past
The concept of legal education in India goes back to the Vedic age when it was essentially based on the concept of Dharma. There is, however, no record of any formal legal education being provided at that time. Training was self-acquired in matters connected with Dharma. The Kings either used to dispense justice themselves or appoint Judges and Assessors to administer justice, not necessarily trained in law but who were known for their righteousness and justness and had the reputation of being fair and impartial.
The pattern of legal education which is in vogue in India today was transplanted by the Britishers after the establishment of English Rule in the country. It was in the year 1857, that a step was taken in the direction of imparting formal legal education in the country. Three universities, set up in the cities of Calcutta, Madras and Bombay, formally introduced legal education as a subject for teaching. This was in a way the beginning of the era of legal education in India. At the initial stages, students were free to undertake instructions in other disciplines such as history, geography, science etc. along with law studies. Legal education was introduced in its very rudimentary form with hardly any standards and qualifications prescribed for admission to the law classes. A beginning had, however, been made.
Before India attained independence in 1947, there were only a few schools in the country which taught law. With the independence of the country, legal education acquired importance, as rule of law became a fundamental doctrine for the governance of the country. Since we adopted a democratic form of Government it became necessary that judicial system of the country should be brought in tune with social, economic and political needs of the society. With the changing complex of law and social needs, there was felt a greater need for change and reform in the structure and pattern of legal education. The ethos of legal education was required to undergo a change to fit in with the constitutional philosophy of ushering in the socio-economic transformation of the society. Gradually legal education was introduced as a course of study in a number of States.
The Present
Taking note of an urgent need to bring about reforms in the university education generally, Parliament, in exercise of its legislative power under Entry 66 of List I enacted the University Grants Commission Act, 1956. The University Grants Commission Act, 1956 is an Act to make provisions for the coordination and determination of standards in universities. The UGC is also the authority dealing with the grant of affiliation to the law colleges. The UGC Act provides that it shall be the general duty of the Commission to take, in consultation with the universities or other bodies concerned, all such steps as it may think fit for the promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research in the universities. Section 12(d) provides that the UGC may recommend to any university necessary measures for improvement of university education and advise the university regarding the action to be taken for the purpose of implementing its recommendations.
The UGC Act did bring about some improvement in the matter of regulation of standards of teaching in the universities generally but much was still left to be done. The decline in standards of legal education and with that the decline in the prestige and image of the legal profession became a cause of concern. Dr Radhakrishnan lamented that "our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an area of profound scholarship and enlightened research...."
The Law Commission presided over by Shri M.C. Setalvad in its report (14th Report) on "Reform of Judicial Administration", in 1958 while assessing the standards of legal education obtaining in the country said:
"In the period of about ten years which has elapsed since the publication of the Radhakrishnan Commission, the position in regard to legal education in this country has, it appears, definitely deteriorated."
The Law Commission portrayed a rather dismal picture and lamented:
"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, 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."
The Report of the Law Commission and concern expressed by academic lawyers and the Bar made Parliament take stock of the situation and as a result the Advocates Act, 1961 came to be enacted by Parliament by virtue of its powers under Entries 77 and 78 of List I of the Constitution of India. Under the Advocates Act, 1961, one of the functions of the Bar Council of India is to "promote legal education and to lay down standards of such education in consultation with the universities in India imparting such education and the Bar Councils of the States". Section 49(d) of the Act, enables Rules to be framed by the Bar Council of India in regard to the standards of legal education to be observed by the universities in India and the inspection of universities for the purpose. The Bar Council of India enacted its Rules in 1965 to deal with the standards of legal education and recognition of degrees in law for admission as advocates. Rule 21 of the Bar Council of India Rules, 1965 provides that the Bar Council of India may issue directions from time to time for maintenance of standards of legal education and the university/college is required to follow the same. Schedule I to the Rules enumerates as many as 21 directions which the Bar Council of India is authorised to give to the universities/colleges.
Rule 8 of Chapter III of the Bar Council Rules dealing with the Legal Education Committee, enables the Committee (a) to make its recommendations to the Council for laying down the standards of legal education for the universities, (b) to visit and inspect universities and report to the Council, and (c), to recommend to the Council for recognition of any degree in law of any university under Section 24(1)(c)(iii) of the Act. The Committee is also authorised to recommend the discontinuance of any recognition already granted by the Council.
Rule 17 of the Bar Council Rules states that no college shall impart legal education unless its affiliation to any university has been approved by the Bar Council of India. Rule 18 deals with inspection by a Committee to be appointed for this purpose.
In 1958 when the Law Commission voiced its concern there were hardly 43 institutions preparing 20,159 students for law examination. After the enactment of Advocates Act, 1961 it was noticed that there was a mushroom growth of sub-standard law schools, with hardly any regard to the quality of legal education. Admission to these law schools was easy. Minimum marks prescribed for eligibility for admission to the law course were as low as 33% or 40% and the result was that thousands of students became eligible and all of them, including the last eligible candidate, got admission. A student who could not get admission in any other course would join law course. The quality of the teaching staff in those law schools also left much to be desired. Most of the law schools and colleges had only part-time law teachers, with an exception of a few whole-time teachers. There was, thus, hardly any commitment of the teaching staff to the cause of legal education. The sudden spurt in the number of law schools with almost free admission to law schools and the lack of infrastructural facilities and non-availability of high quality teaching staff took its toll on the quality of law graduates churned out by these law schools which in turn affected the quality of the standards of the Bar. Since, many of these law schools could not house the total number of students enrolled for want of adequate classrooms and non-maintenance of teacher-student ratio, the administration of many of such law schools encouraged absenteeism. In many law schools there were more "absentees" than "present". Neither the school nor the students took law study seriously. Students could live hundreds of miles away from colleges and not only get full attendance but degrees too. Legal education as a matter of fact became only a profit-making industry. It was perhaps because of this situation that the Supreme Court in Unni Krishnan, J.P. v. State of A.P.1 expressed its concern and firmly laid down that "education cannot be allowed to be converted into commerce".
Voice of one or two teachers of law had come to be heard in late sixties attempting to draw attention of the policy-makers on education in general and concerning law in particular, to think about the deterioration of legal education and for taking remedial steps. In mid-seventies, several others from the teaching community and the Bar joined them but the sound was still not loud enough for somebody to get up from the deep slumber of "Kumbakarna". By early eighties some leaders from the Bar and from legal education became desperate to experiment an alternative model. These leaders expressed serious concern about the unsatisfactory standards of legal education and urged the concern to take remedial steps urgently. They were conscious of the fact that law is not self-applying; men must apply it. To achieve reality and a meaning for law, there is therefore need for the services of a group of persons skilled in the knowledge and education of law. In order to have good lawyers it is necessary to have a sound legal education system. It cannot be otherwise."
As on date there are 101 universities in the country which are imparting legal education, out of which 91 universities are recognised and the recognition of 10 universities is under consideration. Out of these 101 universities, 24 universities have started five years' degree course in addition to the three years' degree course. There are about 500 law colleges/schools in the country. Some of these law schools are housed in small dingy buildings without any library worth the name and a teaching staff hardly qualified to teach law. To the existing number of lawyers who are about 10 lakhs, we are, it is stated adding roughly 2 lakhs every year. We have the second largest number of lawyers in the world next only to USA. It is, therefore, not surprising that both Judges and responsible members in the Bar became increasingly aware of, and concerned about, the falling standards in the quality of legal education and lamented about the lack of attention being paid to this stream in professional courses. This discontent, has become more articulate in recent times.
Conference of the Chief Justices of the High Courts of the country in their deliberations held in 1993 took notice of this malady and resolved:
"The Hon'ble the Chief Justice of India be requested to constitute a Committee consisting of Hon'ble Mr Justice A.M. Ahmadi as its Chairman, and two other members to be nominated by Hon. the Chief Justice of India to suggest appropriate steps to be taken in the matter so that the law graduates acquire sufficient experience before they become entitled to practice in the courts."
Pursuant to the aforesaid resolution of the Chief Justices' Conference a Committee was constituted under the Chairmanship of Mr Justice A.M. Ahmadi. The Committee with a view to formulate its proposals and recommendation invited views from the Chief Justices and leaders of the Bar. Many Chief Justices responded. In the course of its report, the Committee noticed that:
"Broadly, it was accepted that the general standard of the law colleges in the country and of the students was deteriorating day by day. It was also suggested that the standard of the new entrants into the Bar leaves much to be desired....
At the level of the law colleges, it was suggested that the syllabus of the law colleges was very unsatisfactory, the teaching standards were equally bad and that there was lack of discipline in the law colleges. Therefore it was suggested that there should be an entrance examination and only students with high percentage of marks should be selected for admission to a law college. Permission to start new law colleges should not be given without proper evaluation of teaching faculty and other facilities. There should be a proper evaluation of the answer scripts in the examination. The students should be trained to draft pleadings at the college level. The standard of English should also be improved. It was also suggested that for the purpose of grant of recognition to law colleges a committee should be formed consisting of a member nominated by the Bar Council of India (and not by its Chairman only), a member to be nominated by Hon. the Chief Justice of India, who shall be a Judge of the Supreme Court or High Court and a member to be nominated by the Bar Council of India, who shall be a renowned person in the field of legal education."
The Chairman of the Bar Council of India also addressed a letter on September 5, 1994, to the Chairman of the Committee welcoming the participation of the Judiciary in matters relating to legal education and entry of law graduates into the legal profession. The Chairman of the Bar Council lamented about the vice of absenteeism amongst the students of law colleges. He said:
"To salvage the legal education, the Committee constituted needs to find out the solution to eradicate absenteeism of law students from classes and I hope a definite solution of this menace be found by your good self, which will definitely enhance the standard of legal education."
The UGC also extended its full cooperation to the Committee and the Chairman of UGC in his letter addressed to the Committee on 26-9-1994, inter alia said:
"The UGC would be happy to associate with the legal education Committee of the Bar Council of India. As regards, the move towards a five-year-course in law, after the +2 stage through an all-India examination, we also feel that this would be a step in the right direction in terms of improving the entry-point standards. The suggestion to grant a BA (Law) degree after three years to students who do not wish to practise law but may rather go in for employment is also welcome. Thereby, only those who are really keen to take up the practice in law would proceed with the last two years of education. The holding of an examination by the Bar Council of India after the five years of study with the minimum percentage of 50 to 60% being prescribed before one could obtain a licence would also help improving the quality among the legal profession."
The Justice Ahmadi Committee expressed its views and made some useful recommendations. The Committee inter alia opined:
"General: Since all law teaching is undertaken by the 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 to take appropriate steps to enhance the prestige of the legal profession by ensuring high quality legal education."
Need for improvement of standards of legal education, thus received support from the UGC, the Bar Council of India and the Judiciary. Efforts to improve the standards were put in motion.
It was realised and accepted that to improve the standards of legal education, there is need to have law teachers, well trained, well paid and dedicated to the cause. Law being the mirror of the total life of society, those who are engaged in its teaching have a more serious duty and additional responsibility to discharge. A law teacher has to be aware that he is entrusted with the delicate duty of producing future law-makers.
The task of a teacher is not only to fill in the students with contents of his narration but to bring out the hidden talent in the students. The integrated students and teachers have unlimited potential for collaboration in exploring any aspect of a subject. There is, thus, need for continuing education of the law teachers and to infuse in them the desire to do research work. Most of the law teachers join the law schools after completing their LL.B., LL.M. or Ph.D. and are rarely exposed to the practical aspect of law and the courts. Such teachers impart theoretical knowledge, divorced from the practical aspects and the result is that a fresh lawyer appears quite lost in the court room. Proper means must therefore be devised so that the law teacher is required to go to law courts to gain the work experience, as this would not only enable him to have the work experience but will enable him to equip meaningfully the students who wish to join the profession. Both the Bar and the Bench are the direct beneficiaries of his labour, care and talent. Law is the science of examining social phenomenon in all its diverse aspects. Most of the law teachers today accept that reality and endeavour to safeguard the dignity of legal discipline. The members of the teaching fraternity will be harming their own cause in case they allow the standards of the discipline to fall. In the United States of America also concern has been voiced regarding the deteriorating standard of legal education. Chief Justice Burger while addressing the American College of Trial Lawyers, District of Columbia, lamented on the state of the profession as under:
"... 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."
Did Chief Justice Burger have the conditions in India also present to his mind?
The International Legal Centre, New York, in the report of its committee on "Legal Education" 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 and the latter being one who is eligible to practise in a court of law. It was considered important to state the distinction because many law-trained persons who performed several functions outside court, e.g. legal advisors to banks, companies, public sector undertakings, government departments etc. and never became lawyers. It is a distinction worth considering in the Indian context also.
Several suggestions have been made by the Judiciary, teachers of law and leaders of the Bar in the country to improve the quality of legal education. Despite the efforts made by the Bar Council of India, professional legal education, however, continues to suffer from a variety of drawbacks, some enumerated hereinabove.
Law is not purely a professional skill confined to courts and litigants but it is a social science. Laws reflect social ethos. There has never been a dearth of ideas about the objectives of legal education nor the scheme for redeeming it so as to make it more meaningful and socially relevant. The quality of legal education has a direct impact on the prestige of the legal profession. We must, therefore, identify the areas of default and initiate corrective action to repair the damage.
The Future - What to do
Legal education must be given its status of a professional course of study and like any other professional course its standards must be regulated. The content of legal education must be given its due importance. Legal education should be uniform in the country and should be a five-year course after 10+2. The standard of legal education should be laid down and the minimum norms that law schools must satisfy must be prescribed. Notice to all the law schools should be given by the Bar Council of India/university thereafter to ensure that within the time allowed they must satisfy the norms and if they fail to do so, the university concerned should withdraw the recognition or affiliation from such school or college and that would once for all put an end to those law schools which do not deserve to exist. Unless such a drastic surgery is undertaken without loss of time, the patient, that is legal education, will be fatally wounded and consequently the country's justice delivery system will stand bereaved.
A high-level committee should be set up by the Bar Council in consultation with the UGC and the Judiciary to review the affiliations already granted to the law schools/colleges. An entrance examination be introduced at the stage of admission to the law college in the university and to the affiliated law colleges. A minimum of 50% marks obtained at the entrance examination to be conducted by a "Special All-India Committee" set up by the Legal Education Committee of the Bar Council of India in consultation with the university, by the student should be necessary for entry into the law colleges. Professional Ethics must be made a compulsory subject with at least a minimum of 60% marks as qualifying marks. The Legal Education Committee of the Bar Council of India, in consultation with the representatives of the Judiciary, the Bar, the Universities and the UGC should lay down proper norms for conduct of bar examinations. Norms should be fixed not only for maintaining the quality of questions that are set, but also for the marks to be awarded for the evaluation of the question papers. In order to give better meaning to the study of law, instructions should not only be provided in courses of substantive and procedural laws but the students of law must also be exposed to problems, social, economic and political of the modern times. For that purpose socio-economic content of laws should be incorporated in LL.B. curriculum to foster awareness amongst the law students, which is an essential element in the development of law. These are only some of the suggestions - food for thought - to repair the cracks in legal education - to arrest the rot.
The initiative of the Bar Council of India in sponsoring the National Law School of India University is indeed praiseworthy. National Law School of India at Bangalore is the laboratory of an experiment, novel in several ways in higher education. It is an institution not dependent on any State or Central funding for its maintenance; an institution which is academically completely free to design its course, test the product and maintain a strict quality control. It is an institution using multi-disciplinary knowledge to understand the intricacy of law in operation and emphasizing research skill, and applicational ability. If market condition has any significance National Law School students have, broadly speaking, an assured professional career. If national focus is any relevance, the decision of the Law Ministers of the country about replicating such an institution in each of their States is an indicator of success and if the opinion of the international teaching community and professionals is required they are the people eloquently speaking in favour of the National Law School experiment in legal education. It is perhaps the best experiment in the country in the field of legal education after the experiment in technology education in IITs and management education in IIMs. It is desirable that we reap the benefit of this successful experiment. I must, however, hasten to add that the profession is not the true beneficiary of the products of the National Law School. Students who pass out from there find lucrative positions waiting for them in the corporate world. It is a matter of anxiety and concern that the profession is losing talent. The senior members of the Bar must apply their mind to this problem and suggest means for attracting the students to the profession.
All those connected with the maintenance of standards of legal education must, therefore, be prepared to take hard decisions to save the situation. A concerted action on the part of Bar, the Bench and the law teachers is called for to improve the deteriorating standards of legal education. Act now - it is already late. If you fail to check the deterioration now, posterity will not forgive you.
Ladies and gentlemen, I now take your leave. Thank you for your patience.
| 
