LEGAL EDUCATION IN INDIA

N.L. Mitra, National Law School of India University, India

 

 

 

 

Dilemma in Legal Education

 

Unlike other forms of professional education such as  medicine and engineering, legal education is both professional as well as liberal. It aims at the acquisition of  professional skills,  if taken as a professional education.  But it can aim at value-oriented, socio-cultural education if it is considered as a liberal education.  Much of the dilemma concerning legal education in India is based on the confusion centering around such a kind of professional and liberal education.  Law as a subject, if it can now be called  a subject, is as interesting to study  as are History, Political Science, or Economics.  The recipient of education shall certainly become transformed and knowledgeable after studying law as a subject, as he^[1] is bound to be after studying Political Science or History or Sociology.  The main problem for a teacher of any subject in liberal education arises, when a student asks the teacher:

 

“What should I do with this education”! 

 

There is no clear answer to such a question.  If one studies history, one becomes a historian as one becomes a mathematician after the study of mathematics.  The problem is that after studying law, you are told that you are not a lawyer, as after reading political science you are not automatically a politician.  It means that there is no clear-cut area of functioning which can be reserved as a constituency for those who study Law or Political Science.^[2]  

 

“What do I do then”? 

 

“You can do anything after studying Law or Political Science; you can become a politician, a manager or a bureaucrat  -  you can even start your own business or cultivate your own land.”

 

In such a case, what is the value of this knowledge in the pursuit of life and living?  It follows from the fact that a person wants to study law, that he  wants to become a lawyer.  This sounds similar to someone telling us that “I want to be a manager, so I took  up management studies’.  A liberal education is capable of being assimilated with life and living if the recipient of that education can start teaching it as a subject.  That is why a person who has learnt political science may say that he has two options: either to become a teacher, or to become a politician.  A person who has taken  legal education as a liberal discipline, would also have been happy, if he could say that he would either teach law or be a lawyer.  Unfortunately, he cannot say either.  Therefore, the very basic foundation of law as a liberal education is weak.

 

The question also depends upon several other issues, including the existence of a constituency.  In a civil law society, a person is mandatorily required to study law to become a public official.  Therefore, if a person studies law as a liberal discipline,  he can respond by saying “I am studying law to become a good bureaucrat”.  Such identification of constituencies is demanded by people who are not satisfied with only  the intellectual inputs obtained  after studying the subject as a legal discipline.  After all, only a handful  of people can enjoy the ecstasy of learning a subject  purely  for the sake of such ecstasy!  Education is therefore expected to be reflected in the process of life and living.

 

It was quite natural to expect that India would follow the legal education system as it  obtained in England.  English legal education is a faithful implementation of the above two types of legal education.  In England, Universities and colleges were responsible for liberal legal education at the undergraduate as well as post-graduate level.  The graduates of Universities could teach law or could perform any other services including running a business, but could not practice.  In order to practice law, one had to join the Inns of Court or an Institute. Only after successful completion of  practical courses under definite apprenticeship as prescribed by the rules, could a person become a Bar-at-Law, or an Attorney-at-Law, or a Solicitor and thereafter be eligible to start legal practice.  People who undergo  training for pleading and representation call themselves Bar-at-Law, and the people who practice by providing legal advice, preparing documents and extending all other legal services including notarial services, are called solicitors.  Generally speaking, they do not go to Universities to teach law.  University graduates either become teachers, researchers,  public officials, or even  business managers.  The purposes and the discipline of legal education having different streams and sub-streams are clear. 

 

Legal Services during the British Rule

 

India has, to a great extent, transplanted the British legal system.   But it did not transplant the system of British legal education.  India had different types of lawyers at different levels.  Mukhtars were trial court lawyers in the criminal courts,  undergoing on-the-job training through apprenticeship under a senior Mukhtar or a pleader.    The pleaders were trial lawyers in both criminal and civil court.  Initially, they too had entered the profession through  apprenticeship under a senior for a number of years, and then had been certified by the court to act as pleaders.  After legal education was introduced in the Calcutta,^[3] Bombay^[4] and Madras^[5] universities, a pleader (vakil) used to be a graduate in law who had studied a law course for two to three years.  Barristers, Attorneys and Solicitors who had earlier passed out from England were also practising.  There were solicitor firms in Calcutta, Bombay and Madras, but most often, practice started on the basis of individual enterprise.  In the High Courts, there were two types of lawyers representing their  client’s interest, viz., Barristers and Indian advocates who had graduated from Indian universities.  With the introduction of the Advocates Act, 1961, the profession was uniformalised into one category of lawyers called “Advocates”.^[6]  The other practitioners were gradually integrated into this single class of legal professionals, except in Bombay, where solicitor firms started working both as solicitors and advocates. The Law Society in Bombay continued to allow persons to practice as solicitors after they had passed the Solicitors’ Examination conducted by it  and approved by the High Court of Bombay.^[7]    These solicitors were also allowed to be registered as advocates.  But for this one exception, the Advocates Act,1961 envisaged a uniform system of legal education.  This was to consist of one degree of law which was to be awarded after three years of study to persons who were already graduates, albeit in any discipline whether in science, arts or in commerce. Therefore, to obtain a law degree, a person had to do two things: (i) pass  a two year or three year degree in any discipline, or detain an engineering degree after studying  for four years or a degree in medicine after studying for five years, and (ii) study law for three years in order to get a certificate of LL.B. from any University.  The law graduate could then join the profession by registering his or her name in the rolls of any State Bar Council.^[8] 

 

Prevailing Conditions of Legal Education

 

In theory, this was a good system.  The fact however remained that in a country having more than 6,00,000 lawyers with  more than 40000 law graduates passing out every year, there was no concept of a sound legal education, viewed from a professional or liberal perspective.^[9]  There were more than 500 law schools, most of whom had no full time law teachers or any worthwhile law library. Most of these institutions were run part-time, either in the morning or in the evening.  Most such law schools used to enroll hundreds of students in a class without having any facilities.  Students would not attend classes, many of whom used to know the name of the subject only on the day of the examination, and the degree became almost a saleable item.^[10]

 

Legal education became almost a no man’s land in view of the fact that the 1961 Act authorised the Bar Council of India to regulate the standard of legal education while the universities and  colleges  were treating legal education as a money-making avenue.  Colleges were started at the behest of politicians, judges and lawyers.  The situation became so bad and out of control that no experiment for standardisation was possible.  In such a situation, in 1986, the Bar Council of India in its wisdom thought that a model law school of international standard could be sponsored by it  so that there could be an on-hand experiment of standardisation of legal education.  As a result,  the National Law School of India University, sponsored by the Bar Council of India was established in 1986 by an Act of State Legislature.  The University started experimenting with a five-year integrated law course. 

 

At present there are, therefore, two types of courses.  The three year law course which was  prescribed by the Bar Council of India in 1967, continues to be the dominant law course in the whole of northern and eastern India.  In most law colleges and universities admission is open to any graduate.  Recently, the Bar Council of India prescribed that in any recognised law course, there have to be a specified number of  compulsory law papers, optional law papers and clinical courses to be taken from a list of subjects included and 4 clinical courses. The Universities have also been instructed to run  courses by following  a semester system.   The second type of law course is called the integrated five-year law course which is meant for those joining the law course after the 10+2 stage.  In this course, the undergraduate part of liberal education is included in the initial two years which covers the study of English, Political Science, Economics, Sociology and History.^[11]  This  five-year integrated law course is now predominant in the South.  With an initial hesitation, Western  and Eastern  Indian states are also now  adopting  this five year course.^[12]    The five year law course is also administered in two different ways.  Except in the national institutions^[13], in all other universities where five year law courses are taught, English language and social sciences are taught in the first two years. The core legal subjects are taken up only from the third year.  In the initial two years, therefore,  law students do not study any legal subjects.  On successful  completion of  the initial two years, a Bachelor of Arts (in Law) is conferred on the students in most such universities.  Therefore, though it is called a five year course, it virtually remains as a 2+3 years course.  An integrated approach was first experimented in the National Law School of India University.  Here, law subjects and social science subjects are simultaneously taken in an appropriate mix from the very first year.  Students get exposed to complicated legal subjects like Constitutional Law, Contract Law, Criminal Law, and Theory of Law during the first two years of the course itself.^[14]  Other national institutions have also adopted a similar course design.

 

 According to the instructions of the Bar Council of India, under the Bar Council of India rules framed by  following section 7(h) and (i): (a) a law school has to be a separate college, (b) there has to be a Principal and at least four full time teachers, (c) classes must be held daily for four hours, (d) a class cannot have more than 80 students, (e) students are required to attend at least 75% of the classes held in each subject during the year, (f) there must be a good library and adequate annual grant for the library^[15].  The data available shows that except in the national institutions, the average number of  teachers per institution of 468 law colleges across the whole country is 2.38, which is far below the prescription of the Bar Council of India.  The situation of South Indian law schools is far better than those of the North Indian institutions.  The Government  runs law schools in Kerala and Tamil Nadu, almost to the exclusion of private enterprises.  However, in Tamil Nadu, there are at present,  private law schools coming up with an exclusive law university as the affiliating University.  Karnataka, Maharashtra and Andhra Pradesh have law schools run by the Government as well as private institutions.  Most universities have a university department of law in many of which undergraduate education in law is available.  North Indian universities have affiliated law colleges almost entirely run by part-timers, who are otherwise legal practitioners.  Most of  these colleges function either in the morning or in the evening.   According to the figures upto 1995, the number of colleges in each state is as follows: Andhra Pradesh - 33, Eastern States - 24, Bihar - 25, Delhi - 3, Gujarat - 30, Himachal Pradesh - 1, Jammu & Kashmir - 2,  Karnataka - 41, Kerala - 6, Madhya Pradesh - 63, Maharashtra - 40, Punjab & Haryana - 6, Rajasthan - 22, Tamil Nadu and Pondicherry - 7, Orissa - 19, Uttar Pradesh - 40, West Bengal - 8 and Sikkim - 1.^[16]  Thus, a total of 91 universities including 3 national institutions are engaged in legal education.  Every year more than 40,000 law graduates come out of these universities.  When the Bar Council of India introduced the apprenticeship rule in 1997, the enrolment sharply fell to 20% of the total number of graduates passing out within India.  The teacher-student ratio is considered  at the level of full-time teacher to the student; this ratio is abnormally low.  The maximum number of full-time teachers in any university engaged in law teaching is in the Delhi University.  But the Delhi University has not yet accepted the design of the five year law course. 

 

Legal Education as the responsibility of the Bar Council of India

 

In the absence of any prior policy or goals set for various authorities engaged in the system for delivering legal education, there is complete chaos.  On the professional side, one of the important functions of the Bar Council of India is to promote and standardize professional legal education^[17].  All persons are required to enroll as advocates with the respective State Bar Councils, and these State Bar Councils maintain the roll of advocates.^[18]  The Advocates Act prescribes certain pre-requisites for being enrolled on the rolls of advocates.  These qualifications are: (a) the applicant must be  a citizen of India, (b) he must have completed the age of twenty-one years; (c) he must have obtained a degree in Law and (e) he must fulfill such other conditions as may be specified in the rules made by the State Bar Council, (f) he must have paid in respect of enrolment, stamp duty if any, and enrolment fee payable to the State Bar Council  In 1976, an Amendment Act stipulated that the degree in law is to be obtained after undergoing a three-year course of study in Law from any university in India which is recognised by the Bar Council of India.  However, a two-year course of study in Law was allowed to continue for the purposes of registration upto 1969.  Any law degree obtained from a university outside India may also be considered for enrolment, provided the Bar Council of India recognises such university for the purpose of enrolment.  A person who is called to the Bar as a Barrister on or before 1976 or has passed the articled clerk’s examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as attorney of that High Court, or has obtained any foreign qualification in Law as recognised by the Bar Council of India for the purpose of admission as an advocate, may also be enrolled in the rolls of advocates maintained by the State Bar Council.^[19]   Therefore, the Bar Council of India has the following powers in so far as professional legal education is concerned: (1) to recognise universities which can impart legal education for the purpose of enrolment, (2) to lay down standards for such professional legal education and (3) to recognise foreign universities whose degrees are considered for enrolment.  Under the powers given to the Bar Council of India under Section 7(1)(h), and 24(1)(c)(iii), and Section 49(1)(af) and (d), the Bar Council of India has made rules in relation to the standards of legal education and recognition of degrees in law for admission as advocates.  The rules made by Bar Council have mandatory effect with regard to eligibility for enrolment as advocates, and there is no question of interference with the autonomy of the Universities.  Universities can run law courses purely for academic purposes, but if they propose to run a professional law course, they have to implement the law course  prescribed by the Bar Council of India.^[20] 

 

The Advocates Act has not defined the terms ‘legal profession’ or ‘legal professional’.  It has only defined the term legal practitioner^[21] as “an advocate (or vakil) of any High Court, a pleader, mukhtar or revenue agent”.   According to Section 29 of the Act, there shall be only one class of persons entitled to practice the profession of law, namely, advocates.  In the absence of any definition of profession of law, and in view of the manner in which Section 29 has used the word ‘practice the profession of law’, one is  likely to conclude that only advocates are entitled to practice the profession of law.  But Section 33 prescribes an exception suggesting that the Advocates Act or any other law for the time being in force, may create exception to the rule that the practice of the profession of law is confined only to advocates.^[22]  There is wide confusion about the phrase ‘practice the profession of law’.  Section 30, while describing the contours of the  right of advocates to practice, states that  advocates have the right to practice (a) in all courts including the Supreme Court (b) before any tribunal or person legally authorised to take evidence and (c) before any authority or person before whom such advocate is, by or under law for the time being in force, entitled to practice.  This section is not notified yet and as such is not in force. Simultaneously, Section 33 of the Act has created an exception suggesting that any other law may allow such right to practice to any other person.^[23]

 

The Bar Council of India is thus faced with two challenges: (i) a very narrow objective of standardizing legal education to suit the culture  of  practising the profession of law in the context of Anglo-American confrontational or adversarial jurisprudence, and (ii) the highly political nature of its organisation which is dependent on the votes of thousands of advocates on the rolls, many of whom are not   concerned with legal education and would prefer a system of legal education which is easy to pass through.

 

The Advocates Act does not provide a statutory legal education committee, though it provides some other statutory committees like Disciplinary Committees^[24] and Legal Aid Committees.^[25]  The Legal Education Committee is established by the rule under section 7(1)(h).  Representation of academics in this committee is marginal.  The number of judges in this committee is also negligible.  The Committee largely consists ofthe members of the Bar, many of whom are not by nature concerned with looking at the  law as a distinct science of knowledge.  Since substantive understanding is poor, the average level of discussion of designing the law course is also poor.  One cannot however expect such a professional body which is only interested in litigational discourse, to appreciate an aggregative process of learning which seeks to successfully apply legal knowledge.  Naturally, whatever standard the Committee prescribes for a graduate level law course can always be questioned on the ground of its  fundamental epistemological basis.

 

Legal Education and the University Grants Commission’s Responsibility

 

The University Grants Commission (UGC), which is the apex body to regulate and standardize university education, is  equally responsible for legal education.  The UGC has a panel on legal education which is composed of twelve academicians from various parts of the country, and is presided over by a retired Chief Justice of the Supreme Court of India.  This education panel has not done anything significant to standardize the substantive legal education on a continuing basis.  The UGC did however appoint a Curriculum Development Centre (CDC) for advising it on a standardized curriculum for undergraduate and post-graduate courses. This Committee, commonly known as The Baxi Committee,  raised one of the most basic issues underlying legal education: “In what ways can legal education and  knowledge contribute to conditions in which emergence of a just society and state may be assisted?  In other words, does legal science and education have any role to play in the task of nation building towards a “just” society?  The liberal vis-a-vis the professional legal education is really a dichotomy”.^[26]  The Baxi Committee has correctly asserted that “legal education has a very crucial role to play in development of law as a hermeneutical  profession, since it is an educational process which equips the future lawyer, judge, administrator, counsellor, and legal scientist to fashion and refashion ways of peaceful and ordered attainment of ideals of human governance on the one hand and democratic right on the other.  HRD in law is perceived by the CDC not just in terms of production of efficient professionals.  While this is important, it is so only if the underlined model of professionalism is linked with struggles for social justice, the maintenance of the rule of law and of democratic development. ...”^[27] 

 

It is interesting to take note, at this stage, of the objectives of legal education as envisaged by the Baxi Committee.  The objectives appear very wholesome:  “We are unanimous that legal science is a human science, relatively autonomous of other human, social sciences.  It furnishes beyond techniques, skills and competences, the basic philosophies, ideologies, critiques, and instrumentalities, all addressed to the creation and maintenance of a just society.  It is in this concern with justice in society and with attaining a just society which differentiates legal sciences from other social and human sciences”.  This determines the very fundamental basis of legal education, and at this level,  the classification of professional  versus non-professional legal education becomes meaningless.  The Baxi Committee had to confront three challenges to meet its lofty ideals.  These were (a) modernization of syllabi to make them socially relevant, (b) multi-disciplinary enrichment of law curricula and (c) corresponding pedagogic modifications.   Let us also examine the views of the Bar Council and its leaders on  legal education.  According to Mr. Ram Jethmalani, the formidable requirements of a lawyer are “(1) ability to comprehend truth from falsehood (2) knowledge that facts are ultimately established by testimony of witnesses; rarely by documents or circumstances alone; (3) ability to grapple with witnesses (4) ability to reason and draw appropriate inferences, (5) ability to play game rules in the court, (6) command over language, (7) knowledge of rules of procedure and evidence, (8) knowledge to deal with  clients and opponents with honesty, firmness and tact, and (9) quality to cultivate critical faculty to the problem of law reform”.^[28]

 

This, as is clear is a narrow view and is confined to the demands of  litigative lawyering.  Such a highly skilled professional education, without an in-depth knowledge and appreciation of fundamentals of law, is quite likely to create a completely exploitative legal profession. Law and legal institutions are, however, concerned with good governance.  Good governance necessarily requires Rule of Law which seeks justice and ensures a just society.  Therefore, even though one can perceive a highly skill-oriented professional legal educational system,  society may not be interested in such a kind of legal professional education at all.  This proposition fundamentally questions the ability of the Bar Council of India to lay down standards for legal education.  Truly speaking, the Bar Council of India can only prescribe that part of legal education which  concerns legal techniques or skills.  The UGC on the other hand, is also not competent to standardise legal education because of its inability to comprehend the structure of technology, and  the skills of legal education which are required  for the profession.  But that part of standard setting which is concerned with fundamentals like basic philosophies, ideologies, critiques and  instrumentalities, and addresses itself to the creation and maintenance of a just society, is properly within the domain of  the UGC.  Thus, the functioning of these two apex standard setting bodies should be complementary.  In the recent report of the Law Commission of India, it  has been  suggested that a statutory legal education committee of the Bar Council of India should be established which has equal representatives drawn from eminent people in the Bar, Bench and the Academia,^[29] in order to prepare a proper legal curriculum.  The members of the committee are to be nominated on the basis of their speciality and expertise, and not on the basis of any political ideology or inclination.  

 

 

 

 

Five Year Courses versus Three Years Courses

 

The five-year integrated LL.B course evolved by the Bar Council of India after matured deliberations and consultations, is now sought to be declared as the only law course which meets the eligibility requirements for enrolment.  The course has demonstrated its superiority in legal education wherever it was honestly implemented.  The Committee on Subordinate Legislation of the 10^th Lok Sabha, the Committee of Judges on Legal Education appointed by the Chief Justice of India in 1993, and the All India Law Ministers Conference in 1994 have unanimously recommended the adoption of the five year LL.B programme as the course for professional legal education.^[30]  One of the basic differences of law as a discipline in comparison to other social sciences is that legal studies are multi-disciplinary in character.  In many law subjects, a scientific background is not only necessary, but is essential.   Similarly, in many  legal subjects, knowledge of finance and accounts has become essential.  Law is concerned with governance and therefore,  legal education must be developed upon a sound basis of multi-disciplinary education.  It is for this reason that  most  common law countries still follow a pattern of two to three years legal education after the  first degree, or graduation in any discipline, such as, social science, languages, management and finance, medicine, engineering,  physical science and biological sciences.  After passing out as law graduates they are required to take the Bar test.^[31]   In India, there is no such restriction on law graduates passing out of the universities.  As such, it is for  the Universities to control the quality of legal education that is imparted to the law graduates.  Unfortunately, almost all the Indian law schools, whether having three year or five year law courses, suffer from acute academic anaemia.  Qualified full time teachers are not available, libraries are virtually non-existent, there is staggering enrolment, absentee students, mass copying at examinations, absence of adequate physical and financial resources - all these pile up as problems of legal institutions.  In such a situation, whether the duration of the course is for  five years or three years, does not make any difference.  The debate is really a sham.^[32]  There are some advantages of five year law courses, such as, (a) students caught at a younger age have higher commitment, (b) with more professional regimentation through skill-based education, better technical competence can be infused at a younger age and (c) higher motivational levels can be achieved by imparting  direction at a younger age.  Three year law courses, on the other hand, have the advantage of (a) multi-disciplinary intake, (b) higher level of discretionary judgement especially in choosing the right career and (c) wider level of application of law in various fields.  One of the serious drawbacks of the five year law course  that has occurred on account of the rigid standardisation of legal education by the Bar Council of India is that,  where a scientific base is absolutely essential for legal education, basic science education at the base level is not available at the undergraduate level.    For example, if a country has only five year law courses, it will be difficult, if not impossible, to develop any course on drafting of patent specifications or any course on scientific application of evidential processes, including the study of forensic science, by  lawyers.  A well designed five year law course, where the faculty has complete autonomy  to design the entire course, can however  blend the advantages of three years course by dovetailing them  into five year courses.  The present five year law courses which are being pursued in universities other than the national institutions,  do  not really have meaning because they are only a 2+3 year course.  The net result is that a period of one year is saved by such a five year law course.  In a three year law course  there is the requirement of 3+3 years to become a law graduate after higher secondary school, but in the case of a five year law course, one requires 2+3 years to become a law graduate after higher secondary school.  There is a net gain of one year in five year law courses. The only other advantage is that everyone joining a five year law course has a professional commitment taken at an early stage of life, just after higher secondary school.  The danger on the other hand is that if the course is not properly conducted,  there may be a higher degree of frustration.  Secondly, a law course which requires a fairly advanced knowledge in science and technology,  cannot be designed because of the inability of the required  input of basic science.   

 

The Justice P.B.Mukherjee Committee on Legal Education Reform constituted by the University of Burdwan, West Bengal submitted its report in 1973.  The Committee recommended  a series of comprehensive reforms in  legal education.  It suggested the introduction of law as a subject at the undergraduate level, as in the case of  Political Science, History, Physics or Chemistry.  As a subject, law will be taken both at the level of pass courses and honours courses, like any other science or arts subject in the university.  At the graduate level,  a student is usually required to take three subjects which may comprise three to six papers in each subject.  Law can be considered as a subject which can be taken with two other science,  arts,  commerce or management subjects.  The degree conferred may be B.A., B.Sc or B.Com as the case may be.  Students who have taken this course at the undergraduate level for three years may then register in the LL.B  programme for three years.  This three years programme shall be a whole-time graduate course after completion of which a person may join the  academy, the legal profession or the judiciary.^[33]

 

Impact of Globalization on the Legal Profession and on Professional Education

 

The Law Commission has seriously taken note of the process of globalization on legal services.^[34] The General Agreement in Trade in Services (GATS) stipulates that trade in services (including legal services) must be available (a) from the territory of one member into the territory of other member; (b) in the territory of one member to the service consumer of any other member; (c) by a service supplier of one member through commercial presence in the territory of any other member; and (d) by a service supplier of one member, through presence of natural persons of a member in the territory of any other member.^[35]  This type of global movement of service professionals, either on a short-term permit for providing services, or on a long term permit for the presence of service providers, requires competitive capacity-building in the concerned service sector.  The agreement also promises (a)  most favoured nation treatment to all service suppliers of any other member states, (b) non-discrimination and (c) equal access.^[36]  Each member state has undertaken the responsibility of (a) publishing promptly all relevant measures of general application which affect the operation of the agreement; (b) informing the Council for Trade in Services promptly, at least annually, of the introduction of any new laws or any changes of the existing laws, regulations and administrative guidelines and (c) establishment of one or more enquiry points for supplying information and providing opportunities for submission of representations.^[37]  The increasing participation of developing countries in world trade shall be facilitated through negotiated specific commitments, relating to (a) strengthening the domestic services capacity, its efficiency and competitiveness; (b) improvement of  access to distribution and information networks and (c) liberalisation of market access.^[38]  Trade in legal services is essentially concerned with a member country’s culture including language, procedure, and knowledge about the country’s legal principles.  That is the reason why a country can certainly prescribe (a) qualification requirements and procedure for enrolment as service provider; (b) technical standards to be achieved to increase the competence and ability of the service providers and (c) licensing requirements, provided that such requirements are based on objective and transparent criteria, are not more burdensome than necessary and do not impose  restrictions on the supply of these services.^[39]  Any bilateral recognition of qualifications based upon reciprocity shall now be disclosed to all the member countries, so that it shall afford adequate opportunity for other members to demonstrate that education, experience, licenses and certification may be met in other members’ territory as well.

 

The above stipulations in GATS increase  the responsibility of those who are in charge of standardisation and regulation of the system of legal education in India.  The University Grants Commission, which is the apex body to regulate and standardise higher education at both the undergraduate and graduate levels, would not have been concerned with the challenges under the GATS negotiation had that education been not required for enabling a professional service provider.  But since the Advocates Act 1961 requires a qualification of law graduate to be the qualification prescribed for enrolment as an Advocate, both the UGC and the Bar Council of India now have a wider responsibility to see that the enhancement of  capacity is achieved in another five years time through a new educational system.  This should ensure that  there is a competitive standard set in order to achieve a level  playing field, especially when foreign lawyers and law firms would also strive for increasing their plan time in this country.  It must be clearly understood that India is a very attractive market for all international players, be it in investment, trade in goods,  in  protecting  intellectual property or in extending services to clients.  Restrictions for entry can only be based on (a) qualification restrictions, (b)  restrictions  imposed by way of experience and technical knowledge and (c) licencing requirements. But all these are required to be reasonable restrictions, having complete transparency and providing opportunities to all stakeholders to acquire them.

 

That throws three challenges to all authorities connected with the legal profession and legal education.  Firstly, the present legislative design for the legal profession is woefully inadequate:  it restricts, and discriminates.  It is incapable of being standardised in core areas of professional legal education.  Legal professional education especially in the financial sector and in corporate governance,  is so poor that  Parliament itself has allowed the accounting profession to discharge responsibilities which should  otherwise have been that of  legal professionals.  By definition, legal professionals have only a small domain of “presenting before a court or an authority”.  The widest area of legal consultancy- advice, documentation, notarial services etc- are all outside the domain of  legal professionals.  In fact, members of the Bar Council and of the legal profession have never lodged their protest in any form against such methods of shrinking the area of operation meant for the legal profession through statutory processes.  The Indian Advocates Act does not speak of the management of the legal profession, and has not a  word about the organisation and management of law firms.  It presumes that all professional activities are carried out at the level of individuals.  Such a proposition is not only incorrect,  but is also creating a  breeding ground for inefficiency and incapacity.  Since the Act has not talked about any organisational structure of the legal profession, there is no concept of limited liability, no concept of ‘lawyers collective’ beyond a partnership of 20.  Worse still,  joining hands with other professionals has been made taboo.  All these are symptoms of incompetence, incapability and inefficiency in serving the clients’ total need.  Clients are always kept at a disadvantage of monopolistic service including the hazard of running between many service providers.  This Advocates Act is a demonstration of the way in which legislative systems can inject incompetence in a profession.

 

Legal education, which is the legitimate method of guarding the profession’s interest in a nation, is completely  mismanaged.  Universities conducting  courses do not take responsibility for their graduating products.  The faculty does not design the course because it is imposed upon them.  The University Grants Commission goes on debating the mythical question of law whether is  an academic course or a  professional course,  without making an effort to improve quality.  The Bar Councils, both at the Centre and the State being political identities, are incapable of standardising anything.  The present law does not even empower the Bar Council to develop the ability of the profession.  In this situation, the only existing debate of  whether a law course should be of three years’ duration or of five years’ duration, is a fruitless exercise!  It is quite amazing to note that august bodies like the Legal Education Commission constituted by the Chief Justice of India, the Law Ministers Conference and the Parliamentary Committee,  came to the conclusion that the  five year law course is the  panacea only because it succeeded in the National Law School!  They could have decided that the only way is to study law as it is done in the National Law School.  If the Indian Institutes of Management can make management professionals having inputs from multi-disciplinary fields in a period of two years, there is no reason why it cannot be done in an institution like the  National Law School for developing a legal professional, competent and capable, in three years’ time, taking  inputs from multi-disciplinary fields.  The problem is not therefore of three year or five year courses; it  is of developing a qualitative shift in the course outline, preparing study materials and designing  an appropriate pedagogy.

 

Post-GATS Challenges to Legal Education

 

In the above situation therefore, legal education and its standardisation face  the following challenges: (i) standardising the proper qualificational inputs for the profession, (ii) compulsory professional training inputs before joining the profession and (iii) certification procedure for joining the profession.  In the US, the input qualification is  the  obtaining of a degree of J.D. from an American University or  an LL.M degree from an  American university if a law degree is taken from any other State.  With this input, a person can work in a Law firm as a legal assistant, but cannot represent clients.  The person can prepare detailed recommendatory notes, research on  legal issues, prepare the case and submit the file before his senior.  Such a person can, after obtaining such a degree,  appear in the Bar test conducted by State Bar Councils.  After clearing such a test he may get a licence to practice law whereby he can represent his clients.  As already stated, under the British system, a  person can take the professional Bar-at-Law course with any Inns of Court or an institute, after obtaining a graduate level degree, not necessarily in law from any university.  The training includes induction of professional skills through various practical methods.  There is of course a demand that only law graduates from Universities should be allowed to join the Inns of Court  or institutes for undertaking training and taking the Bar examination. 

 

In India, the University Grants Commission has to standardise the quality of the legal education which includes the substantive portion of the academic curricula.  The Curriculum Development Centre has gone into the details of that exercise, but unfortunately the UGC does not enforce its writs on the universities.  As such, the curriculum designed by the CDC in its reports remains a paper tiger.  The CDC suggested two types of LL.B curricula based upon the substantive legal education. In the first curriculum meant for LL.B, 31 course outlines have  been prepared with detailed objective criteria, course outline content,  and select bibliography.  The other course is for those who want to take honours.  For them, 25 additional courses were framed. The Committee suggested diversification of legal education which would include three year law course after graduation, five year law course after 10+2, three year or five year LL.B.(Hons.) Course with additional inputs.  Twelve courses were considered as core courses in the three years programme with 15 other courses being optional.  Optional courses were of one semester duration while core courses were of two semesters programme.^[40]  Sadly, all the  good work done by the CDC has been totally rejected by all universities of the country.  It is time that the substantive part of legal education is properly standardised and notified so that any one can join such a programme and after obtaining a degree proceed for securing a licence for practice.  There are several reasons for such abject rejection of the CDC report: First, CDC itself tried to waterdown the academic standard and discipline by suggesting various part-time courses, full-time courses and distance education courses.  Whereas it is quite justified for a Report like this to keep a broad view of legal education, it must be remembered that as an input to professional education, a stricter discipline ought to have been there in the Report.  Secondly, the UGC ought to have taken up the matter in a more serious manner with the universities.

 

Therefore, Legal Education in so far as substantive course curriculum was concerned, remained completely within the supervision of the Bar Council of India.  A political organisation like the Bar Council of India cannot be relied on for issues like designing a substantive curriculum.  Naturally, the orthodox status-quo system continued by way of a mandate for the Bar Council of India. 

 

The present challenge in post-GATS situation, therefore, is to standardise the  base level qualification, enabling a person to apply for other demands of the profession like practical and field training and licensing procedure. A substantive legal curricula would certainly protect the interests of the profession, while ensuring  quality of service.  Any one undergoing such education, either at the undergraduate or post-graduate level, should be allowed to proceed to the other conditions of practical training and certification.  In USA, a person who has not taken a J.D. degree from any American university may also sit for Bar examinations, provided the person has completed a masters degree programme in any American university.  Such a provision is not included in the Advocates Act even in the proposed amendment.  As such, there is a reasonable argument that the prescribed qualification  is unreasonable for those who apply to become advocates in India from outside, The only way for such persons to get through is to pass a three year LL.B course or a five year LL.B course as the case may be.  A person who has obtained a law degree from a foreign university must be allowed to register himself after acquiring reasonable knowledge in the substantive law in India.  Therefore, an inclusion of the Masters degree for that particular purpose would have been reasonable, instead of asking them to repeat the same programme of legal education in India.  It may be pointed out here that the LL.M. programme in India is for two academic years, whereas in all universities of the Commonwealth as well as the USA, the programme is of one year’s duration. 

 

In so far as practical training is concerned, the Bar Council did not have any responsibility for the conduct of such training.  Therefore, it has conveniently passed that responsibility on to the Universities by suggesting that some courses on procedural law should be compulsorily studied, and that some  practical training courses should be imparted.  Like American universities, therefore, Indian Universities are also taking the entire responsibility for preparing students both in respect of substantive legal knowledge as well as the procedural and practical training.

 

The State Bar Councils are made responsible to enroll the legal professionals straight after their graduation.  There is no test conducted to standardise  professional inputs.  The Amendment Bill suggested by the Law Commission prescribes eight months training and a Bar examination.  Such academic and professional licensing restrictions are permitted under GATS.  Unfortunately, the profession has taken the challenges in a negative manner by calling strikes and agitations in some parts of the country.  It is quite understandable that the profession is unprepared, both academically as well as in terms of skills, to accept the challenge created by GATS.

 

Structure of a Professional Course

 

What do we expect from a legal professional?  Mr.Ram Jethmalani’s list only provides part of the answer - these are qualities that one desires from a litigating lawyer.  But the profession is much wider and more complex than just that!  A legal professional must have the following qualities: (a) He must know where the law is and how to find it.  This is the ability of intensive research; (b) He must be good in critically looking at facts.  This is the analytical ability; (c) He must have the ability to bring out facts from the human resources available to him. This is the ability of client counselling; (d) He must have the ability of excellent communication.  This is his advocacy skill.  (e) He must have the ability to prepare himself with detailed documentation.  This is his documentation and conveyancing skill.  (f) He must be a pleasing personality, able to deal successfully  with human  resources.  This is his negotiation skill. (g) He must have the ability to put forth his factual analysis and his own view point.  This is his court craftsmanship.  (h) He must have in-depth and clear knowledge about court procedure and court personnel.  This is his procedural skill and a skill for human relations.  Can one expect all these skills in an individual, especially when operations are globalized, and law and technology develop at such a  fast pace?

 

(A) Research Skill: A lawyer, whatever be his area of work,  must know where  the law is and how to find it out.   He also must have the capacity to undertake the rigour of  research.  He has to have a comprehensive knowledge of  substantive law and legal theories, in order to quickly appreciate the legal point of view.  Such a research skill is developed by self-learning and investigative process, which requires a comprehensive cognitive understanding of substantive laws.

 

(B) Analytical Skill: All cognitive understanding of law and legal principles must be capable of being used for managing the conflict of interest or determination of rights and obligations in a given situation.  This analytical ability comprises logical comprehension and application of legal issues in a given situation through the use of legal reasoning.  Such an analytical ability can be imparted by tools of advocacy training.

 

(C) Counselling Skill: A meaningful legal education is one where the recipient of the education can use his knowledge and wisdom in client counselling and interviewing.  Such a skill  is essential for the purpose of identifying various sub issues in the context of the problem faced. 

 

(D) Advocacy Skill: Advocacy skill is a demonstrative lawyering skill which can be imparted through a systematic learning of communication skills.  Often role playing exercises,  moot courts or extension services help in acquiring these advocacy skills.

 

(E) Documentation Skill: Legal discourses involve writing and conveyancing skills. A good draftsman who possesses the skill of drafting contracts, plaints and written statements or conveyancing, is extremely essential for any formal legal system.

 

(F) Negotiation Skill: Negotiation is a technique that repairs  disrupted relations and creates a ‘mean-wing’ situation.  Such a skill involves development of human resource management skills.  A good professional law course should emphasise on such type of negotiation skills.

 

(G) Craftsmanship Skill: Court craftsmanship includes the skill of using good court strategies and requires knowledge of professional ethics and court manners.  It relates to establishing an effective management situation and ensuring establishment of a professional relation.

 

(H) Procedural skill: All legal systems are formal and are based on detailed ground rules which is described in law as procedural laws.  A  comprehensive knowledge of procedural laws goes a long way in resolving technical  legal issues.

 

For the above professional skills, the nature of training is an essential consideration.  It is true that  clinical legal education which has come in a big way in US, and is relied upon heavily in the National Law School, can suitably take care of some of the professional needs.  The graduating students  can straightaway be assimilated in the profession.  In National Law School, there are compulsory courses  conducted on trail advocacy, appellate advocacy, conciliation, mediation and arbitration and special practical training in various branches through placement programmes.  The University  also has extension and out-reach service sections which serve clients and the students play a significant role in resolving their conflicts.  Along with this, several other techniques like street learning process, case studies and participation in various litigative and non-litigative works provides an excellent menu for qualitative clinical education.   But such a programme cannot be conducted in hundreds of law schools.  It is therefore impractical to stipulate such type of practical training courses for fifty thousand law students annually.  No legal education programme can succeed with such a heavy agenda across the entire country. It is therefore necessary for the Bar Council of India to have a training programme through apprenticeship to be followed by a Bar test.  If it is difficult to prescribe an apprenticeship for 15-20 thousand law graduates every year, one can certainly recommend strongly that the Bar Council of India should conduct an entry level test before giving licence to any one for practice.  These restrictions on the ground of qualification, training and licencing would be quite justified under the GATS regime.  Therefore, the University Grants Commission and the Bar Council of India must bear this dual responsibility of standardising the substantive legal education and the procedural skills needed for allowing any one to practice law in India.  The  US model, from that point of view, is a good one to follow. 

 

Planning a Substantive Legal Educational Curriculum

 

This is the most difficult part in legal education.  It has to be considered at two levels: (1) an input level knowledge of social and bio-physical sciences if the course has to be a five year integrated law course after higher secondary school,  in order to catch them young and motivate and condition them for the profession, (2) substantive legal education programme keeping in mind both general level and specialised level knowledge necessary for a growing profession.   While CDC has gone into the substantive legal education from the point of view of social engineering, the Bar Council of India in its programme development relied on mechanical inputs needed for a conventional lawyer.  A good system  must take care of  advantages of both.  In a five year law course, one is required to take up education in History, Political Science, Economics, Sociology, Logic, Philosophy, Psychology, Physics, Chemistry, Mathematics, and Biological Science.  Students may be allowed to take any three or four subjects in combination with substantive legal subjects, proportionate to the need for their career development for the initial 18 to 24 months.  The substantive, procedural and skill education require about 30 to 36 months including specialisation opted for by the students.  In the initial years of the National Law School, the faculty  debated on the issue and decided to prepare a mix of social science, substantive law, procedural law, and skill-based education in the proportion of 11:38:6:5 respectively.  The experience of the previous decade shows that the mix is quite encouraging and result-oriented.  The National  Law School also conducts periodical workshops to revise its course curriculum through deliberations of  important functionaries of law.  Such a method of curriculum designing and re-designing is an appropriate method of legal education and experiment.  There is a felt need now in the law school that basic science education is also to be incorporated in order to obtain a mileage in legal education especially when dealing with science and technology issues, forensic evidence and related evidential science, intellectual property protection and information technology.  A base in finance education is necessary for appreciating problems in the area of infrastructure contracts, project finance, transfer of technology and commercial arbitration.  What is required is

to allow  five or six of the national law schools to experiment while other law schools may carry on a result-oriented and structured programme. 

 

Future Professional Need

 

India needs a strong legal profession for both constructive and mitigative professional management.  It also requires competent lawyers to bear the responsibility of public administration.  The country’s future need in the post-GATT situation is enormous.  A good quantitative and qualitative legal education programme can give the country at least 8 to 10 thousand competitive lawyers to meet the challenges of the new economic order as well as new challenges in the areas of constitutional and criminal law in the next 4 to 5 years.   Only such a competitive legal profession can  protect the country’s need for financial restructuring.