Higher Legal Education in India: A Need for Change

HIGHER LEGAL EDUCATION IN INDIA: A NEED FOR CHANGE*

Prof. J. S. Patil**

Introduction

            It is a matter of joy for me to participate in this important Seminar on higher legal education in India. There is a lot of concentration on legal education at LL.B. level and many seminars were held and many regulatory bodies are actively involved in laying down policy framework for legal education at under-graduate level. but at the post-graduate and doctoral level the needed attention is not given. only body that makes a few guidelines is the UGC. This Seminar may provide a platform for catching the attention that is due for higher legal education in our country. This Seminar is organised to discuss various issues concerning higher legal education in the country such as whether higher legal education promotes better research aptitude and what  the impediments in the progress of quality research in the field of law are. It would also discuss about the vistas available for higher legal education in terms of career advancement, toning up skills on upcoming areas of knowledge, use of technology as an aid in higher legal education. The basic issue that would be discussed would be why and what are the objectives of higher legal education.

            India is emerging as a prominent knowledge power in the world. Eminent people of this great country such as Prof. APJ Abdul Kalam have a dream of making India knowledge super power by 2020. According to him, presently our university education system is contributing 3 million graduates and post graduates every year. 7 Million students after their secondary school education in 10th and 12th stop further education and seek employment every year. Thus nearly 10 million youth are injected into the society every year seeking employment.[1] However, there is a large gap in the availability of employable skill. For example, as per the NASSCOM and Mc. Kinsey Report 2005, it is estimated that the IT, ITES and BPO sector alone will need 9 million direct jobs and 6 million indirect jobs in construction, retail and transportation by 2010, whereas we do not have such a capacity in the country to generate this number which will be acceptable to the three sectors of economy. India needs large number of talented youth with higher education for the task of knowledge acquisition, knowledge imparting, knowledge creation and knowledge sharing.[2] Legal Education is not an exception. We need well trained legal academic to generate quality law graduates for the country.

            Legal Education is essentially a multi-disciplined, multi-purpose education which can develop the human resources and idealism needed to strengthen the legal system .A lawyer, a product of such education would be able to contribute to national development and social change in a much more constructive manner.[3] The creation of new breed of lawyer depends itself on the creation of a new teacher. All curricular revision ought to be guided by one basic criterion viz. whether current doctrine and practice in particular areas of law serve to promote basic democratic values. The promotion of these values matters more than any thing else; the heart of the matter is not re-christening of courses but the changing of aim and emphasis. Among other things, the new law teachers must make plain to student not only that there are different ways of setting disputes but many ways of getting results. Law is conceived to be a process of dispute settlement, the law teacher must emphasis to students that such settlements ought properly to be assessed in terms of whether or not they accord with the democratic objectives of authoritative community policy. In attempting to guide students towards the realization of basic democratic values, law teachers must themselves demonstrate scholarly commitment to self-enlightenment, for it is only through analysis, clarification and exposure of their own values and prejudices that they might diminish their own danger to students.[4] Law teacher are required to be good and that depends on the quality of higher legal education in the country. Vision of legal education is to ensure justice oriented legal education to contribute to the realization of values enshrined in the Constitution of India. Legal education must inculcate the need to observe the highest standards of professional ethics and a spirit of public service. Legal Education shall be broad based, multi disciplinary, multi functional and contextual.[5] Legal Education shall meet the growing demands of the legal service market. Globalization shall be borne in mind and lawyers skilled in dealing with different legal systems and cultures created. Emphasis shall be on theoretical as well as practical skills to match the requirements of expanding world of legal practice. Legal skills including negotiation, research, counselling, advocacy, research publications, analysis of judicial decisions shall be imparted.[6]

Current Scenario of Higher Legal Education in India

            The quality and style of Indian legal education that was prevailing in the first fifty years was unsatisfactory. So obviously it did not attract first-class minds as students or as teachers. Facilities, including the all-important library, are poor and not properly maintained. The Indian law teacher had to cope with a low salary and a heavy teaching load; fifteen to eighteen hours a week are normal for full-time lecturers. Where as, if a good hard working student works for 5-7years in a High Court or other court he earns a good handsome amount at the end of the month. There is no established tradition of legal scholarship as an integral part of a teacher's life and duties. On the other hand these teach could not participate in different projects as an advisor to guide them legally. Indeed, with the heavy teaching load and inadequate library facilities, such a tradition could hardly be supported. Many law colleges have only a couple of full-time teachers; the rest are part-time (which tends to mean no-time except for the classroom hours).[7] Matters are considerably better on the LL.M. level. There the student body is much smaller. The failure rate remains high, but a larger percentage of the students are interested, and some work reasonably hard. The instruction is also better. The few first rated Indian law teachers tend to put forth their best efforts with LL.M. classes.[8] Situation in the last ten years has worsened. Higher legal education in terms of LL.M., M.Phil and Ph.D. degrees have lost whatever little credibility that was there in the earlier period. none of the higher legal education institutions and degrees of our country  have the international reputation and standing.

            Scene of legal education at undergraduate level has changed to a very considerable extent with emergence ofNational Law Universities and some State Law Universities. But the situation in higher legal education has not changed much even in these law universities.

Law Universities in India Imparting Higher Legal Education

In addition to these Law Universities as many as 100 Conventional Universities are offering higher legal education in our country.

            In all these legal education institutions, LL.M. degree course is for a period of two years. it is more a theoretical study with some emphasis on research. There is hardly any clinical portion or professional content in it. M. Phil in law is generally of one year duration and Ph.D. is for a duration which extends from two years to a maximum of six years.

Tasks Ahead: LL. M. Programmes

            The scenario of higher legal education in the country needs drastic changes. There is a need to bring in revolutionary changes in higher legal education in the country so as to match the global standards. In many reputed Universities in US, UK and European countries, LL.M. if a one year course with lot of emphasis on self learning, presentation of seminars, work papers and projects. It is high time that such system is introduced in our country. Current examination-centric system should be changed into a learn-centric activity by promoting continuous evaluation system and internships in reputed law firms and other legal professional institutions. . LL.M. programme is to be revised to include courses on legal and clinical education so that they will become effective law teachers after their post-graduation. They are required to work as teaching assistants in LL.B. class rooms under the supervision of the subject teacher as an integral part of their course. They are also required to work as clinical assistants in ILTCS to the Center Heads in supervising the clinical activities of the Centers in ILTCS. This is how LL.M. programme is reformed to be more vigorous and effective as against the present LL.M. program, which is a mere extension of traditional LL. B. programme focusing on the detailed study in one or two subjects.

The Law Universities may offer one year LL.M. trimester programme in various branches of specializations. The courses shall be offered by the Law Universities only after making thorough spade work developing unitized curriculum, teaching methods, recruitment of expert faculty and good library and other infrastructure facilities required to operate law courses at the post graduate level. The areas of specialization for LL.M may include: Jurisprudence, Constitutional Law, International Law, Business and Trade Law, Intellectual Property Rights, Environmental Laws, Personal Laws, Criminal Laws, Labour Laws, Tax Laws and Secretarial Practice, Clinical and Legal Education, Human Rights, etc.

            Every branch of study shall contain a few core subject courses and the remaining specialized courses of study and a project work leading to submission of a dissertation. Core subjects that are common to all specializations may include 1. Law and Social Transformation in India; 2. Legislative and Judicial Process; 3. Social Science and Legal Research Methods and 4. Legal Education and Law Teaching. The fourth paper is a clinical legal education paper for LL.M. students. Students studying in LL.M. courses are required to work as teaching assistants in LL.B., Diploma and Certificate course classes as a part of course requirement. LL.M. programme shall be based on unitised syllabi and shall be based on credit based grade system. Programme shall be so organized that all the LL.M. students get sufficiently exposed to the teaching skills in general and teaching skills in legal education in particular and more specifically in their area of specialisation. The aim of the Law University is to produce LL.M. graduates well equipped in teaching and research skills so that they are useful teachers and researchers and draftsmen of laws and legal documents in the institutions where they will be working. In the final semester of the course the students are required to prepare a dissertation on a topic chosen in consultation with the guide. Every branch of specialisation has to focus on providing advanced level knowledge in the area of specialization concerned. A brief sketch of each specialization is given with the details to be worked at appropriate stage of launching of these programmes.

Jurisprudence: LL.M. in Jurisprudence is aimed at providing a deep knowledge in the philosophy of law so as to provide the insight into the very basic tenets and precepts of law. The students are required to make a deep and penetrating study into the nature and value of jurisprudence, various theories and schools of thought that have attempted to define what is law with a critical outlook, sources of law that are traditional and sources of law that are modern, development of law through institutions other than legal institutions, impact of globalization on the legal institutions and concepts as well as law making process, fundamental legal concepts as developed by various jurists including Prof. Hohfeld and critique on these concepts, other legal concepts and critique on each one of these concepts, comparative jurisprudence, law and social change, etc. There should be components specifically dealing with the Indian aspects of jurisprudence such as raja dharma, nyaya shasthra, neeti shastra, Karma, kayaka, etc. The main thrust has to be to develop the mental frame that is required to analyse the jurisprudential material in the most systematic manner.

Constitutional Law: LL.M. in Constitutional Law branch is aimed at providing advanced knowledge in the constitutional philosophy of the most important constitutions of the world, especially, British, American, Australian, Canadian, Swish, African, Russian and Indian. With the philosophical background of the important Constitutions of the world, the students are expected to make critical analysis of various aspects of Constitution such as the structure and features of Constitution, fundamental rights, directive principles of stats policy, federalism, center-state relations, structure of parliamentary and presidential form of government, Judiciary, amending the constitution, etc., with a comparative approach. A special reference has to be made to the Indian Constitution in the course of entire study so as to appreciate the merits and pitfalls in our Constitution.

International Law: Students studying LL.M. in International Law are supposed to study in depth basic principles on which international law is founded, emerging trends in international law in view of globalization, impact of globalization on the traditional concepts of state sovereignty and domestic jurisdiction principles and the UNO, branches of international law like air and space law, transnational economic and trade law, WTO and GATT agreements,  Cyber Law, international relations, international terrorism, environment and sustainable development, etc. students are expected to study all concepts, doctrines and standards of international law in a critical manner so as to assess and determine the efficacy of those things in contemporary international scenario.

Business and Trade Law: LL.M. in Business and Trade Law is aimed at training the students in the legal concepts and institutions business and trade. Students have to make a focused study of the modern business and trade laws in the light of traditional concepts and institutions to assess and evaluate these things. The impact of globalization, liberalization and privatization on the laws relating to trade and business should be critically analysed. Specialized study of legal aspects of E-trade and E-commerce and business has to be taken up in this course.

Intellectual Property Rights: students studying LL.M. in Intellectual Property Rights are expected to be equally conversant with traditional aspects such as copyrights, trademarks, industrial secrets, designs and patents and modern developments in these areas. They should study the new ones like geographical indications, protection of plant varieties, integrated circuit designs, traditional knowledge patents, domain names, etc., and study all these types of properties in the light of moral and ethical questions some of these have raised and possible legal solutions to the challenges thrown open by these new developments.

Environmental law: students are required to address the problems of environmental pollution and consequent interference in the sustainable development across the globe and the legal measures taken at national, regional and international level through national legislations, regional and international treaties have to be critically analysed against the backdrop of the challenges new developments in the era of globalization as to the environment safety are seriously interfering with the human rights requirements of poor countries. A law that balances the requirements of environment safety with human sustenance in the underdeveloped world has to be very carefully analysed by the students in this course.

Personal Laws: India being a multi-religious country wedded to secularism, students studying this course have to develop the perspectives that are necessary to study personal laws of Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists. Laws relating property inheritance and succession, adoption, marriage, divorce, maintenance,, etc., should be comparatively studied with a view to appreciate the underlying common principles of law upon which new regime of uniform principles of law governing the personal laws can be constructed. This course should be studied with more critical, analytical and research orientation to make these laws relevant to the contemporary times. Rationalization of personal laws and identification of reasonable bases for the sustenance of these has to be the prime consideration of the students while undergoing this programme.

Criminal Laws: This is an area which is growing in alarming propositions. Students are expected to study the basic principles of criminal law, different branches and types of criminal laws that have emerged over a period of time, increase in the crime rate and the efficacy or otherwise of criminal laws, emergence of new regimes of crimes and the challenges thrown by them to the criminal law are to be critically analysed by the students. Special emphasis has to be given to the organized crimes, terrorism, state sponsored terrorism, etc., and comparison of punishment on Benthamite philosophy has to be very carefully prosecuted to provide firm foundation to the criminal laws against the background of criminal jurisprudence.

Labour Laws: LL.M. in Labour Laws is aimed at providing in depth knowledge to the students in the traditional legal institutions in the field like resolution of industrial conflicts, trade unions, factories legislations, rules governing employees, bonus, wages and their payment, etc. in addition the students have to be study the relevance of many of these laws and changes effected in these laws due to the emerging trends in global economic system. Security to the workmen in the wake of privatization of the industry and underlying dangers to the labour class has to be critically analysed to find proper alternatives in legal systems. Legal solutions to the contract employment, hire and fire concept, restriction on free flow of unskilled labour, restrictions of health tests as impediments, etc., must be studies in a systematic manner. A new concept of labour force or work force as a treasure of the society to be protected is to be analysed with the aid of some traditional concepts such as work is worship and revalidate the traditional concepts in the wake of the dangers of their complete destruction bringing in irresolvable difficulties to the mankind as a whole.

Tax Laws and Secretarial Practice: LL.M. Programme in tax laws is aimed at equipping the students studying this course with all the knowledge necessary to take up the profession of tax practice at advanced level in corporate sector. The students will be trained in all kinds of tax laws including income tax, wealth tax, central and state sales tax, value added tax, estate duty, stamp duty, customs and excise duties, etc. The students are expected to study these laws with a critical outlook to of their effect on the society, reasons for evasion of tax, ways and means of dealing with such evasion, rationality of certain taxes, rationalization of tax structure, avoidance of multiple taxing, etc.

Clinical Legal Education: this is one area that is fast emerging as a specialization at Masters level in many countries. The main aim of this course is to develop specialists in clinical legal education. The students are trained in the skills of handling students at undergraduate level and providing them the necessary inputs in developing skills of conducting legal clinics, client counseling, providing legal aid services, legal literacy activities, skills of obtaining documents from different agencies on behalf of clientele, portfolio management, etc. the scheme of the study in this course has to be carefully worked after consulting the experts in the field.

Human Rights: LL.M. in Human Rights and Humanitarian Laws is aimed at providing systematic knowledge in the national, regional and international law relating to it. The human rights institutions have to be critically and their functioning has to be critically analysed so as to find out the efficacy and relevance of these institutions in the modern world. Challenges faced by human rights institutions in the wake of developments such as state sponsored human right violations, violation human rights of foreigners, refugees, personnel enjoying immunity, etc., have to be critically looked into. Impact of globalization and exponential scale development of intellectual property rights regime upon the human rights have to be carefully studied by the students. Strategies to protect the basic human rights against the onslaughts on them must be systematically prosecuted by the students in their studies.

      In the above paragraphs only outlines of LL.M. programmes is given. The detailed curriculum along with the teaching methods to be adopted and the system of conducting the course will have to be worked out in detail by each center of excellence at the appropriate point of time with the assistance of expert faculty members from different universities from India and abroad.

M.Phil, Ph.D. and LL.D. Programmes

            Research programmes leading to degrees of M.Phil, Ph.D. and LL.D. in Law will have to be instituted in Law Universities in various branches of specializations available for LL.M. Programme. Students can be admitted to the M.Phil. programme on the basis of an entrance test covering the area of specialization at LL.M. level. Students can be admitted to the Ph.D. programme on the basis of a Seminar conducted by the concerned on the problem that is chosen by the candidate for carrying out his research activities. An admitted candidate is required to present at least three seminars during the course of his tenure as research student before he submits his thesis. The purpose of these seminars is to provide necessary inputs of guidance to the student concerned to develop his research programme on sound footing. In addition to the seminars, the research student is required to undertake teaching in the concerned subject at LL.B., LL.M., Diploma and Certificate courses in the area of his research for required number of hours. The purpose of these lectures is to share his deep knowledge in the concerned subject with the students and enrich them. A candidate admitted on fulltime basis should complete the programme in 3 years extendable by another year and part-timer should complete his Ph.D. in 5 years extendable by another year. A post-doctoral research programme of LL.D. can be made available to the researchers who undertake research projects funded by various funding agencies at the national and international level. All these research programmes are aimed at providing the state with the required research inputs to transform Karnataka into a legally conscious society.

Conclusion

            India needs a very vibrant and socially relevant legal education and professional institutions. This would be possible only when innovative steps are taken in higher legal education and research to make it globally relevant and prominent. Prof. APJ Abdul Kalam says, "What drives innovation in India? India has a unique blend of ingredients. We have a shortage of capital, so we have to be very innovative to stretch our limited capital. By and large, the general perception is that the government agencies are not able to deliver citizen services effectively, at any level, be it national, state, or regional. But fortunately, we have had democracy, so that individual citizens have been free to evolve local solutions for local problems. Until now our local innovations have not been able to spread outside India excepting in certain sectors such as pharmaceutical, Banking, IT Enabled Services, Software and Automobiles and recently the nano car. Now is the time, for all of us to work together to make Indian innovation to become globalized and have a world wide impact."[9]  Improvement in the quality of higher legal education and legal research will go a long way in transforming India into a global knowledge power in the coming years.

* Presidential Address delivered at the Two Days National Seminar on Issues and Concerns of Higher Legal Education in Indiaorganised by KILPAR, Bangalore and SDM Law College, Mangalore on February 28 and March 1, 2010 at Mangalore

** Vice Chancellor, KSLU, Hubli

[1]http://www.abdulkalam.com/kalam/jsp/display_content.jsp?menuid=26&menuname=ToYouth&linkid=66

&linkname=ToYouth&content=440&columnno=0&starts=0&menu_image=

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[2] Ibid

[3] S.P.Sathe, Access to legal education and the legal profession in India in R.Dhavan, N.Kibble and W.Twinner (ed.) Access to Legal Education and Legal Profession 165 (1989)

[4] R. Segal, S.R. Bhosale Legal Education in India: Restructuring and Reshaping Indian Bar Review 1999 Dec. 26: 37-46

[5] As stated in the Report of National Knowledge Commission, http://www.vpmthane.org/law1/Princ-Articles/National_Knowledge_Commission_an_Legal_Education.pdf

[6] Ibid

[7] 78 Harv. L. Rev. 1180, Harvard Law Review, April, 1965 Comment , LAW AND LEGAL EDUCATION IN INDIA: SOME OBSERVATIONS by Arthur Taylor von Mehren

[8] Dyutimoy Mukherjee, LAW SCHOOLS AND LEGAL EDUCATION IN INDIA, http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=dyutimoy_mukherjee

[9] http://www.abdulkalam.com logged on 27-2-2010