"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, September 27, 2016

The Worth of an Indian LL.M.: Possible Solutions (Part II & Concluding Part)

The previous post in this blog dealt with the problems that beset the LL.M. programme in India. This post proposes certain solutions in addressing the problems identified therein. It may be noted that the solutions suggested are tentative and a lot of further research and experimentation is required to test the applicability of these solutions in various contexts.

Solutions


Changing Goals of the LL.M. Programme: There has been a marked change in the way in which institutions view the LL.M. programme in India. Gone are the days when LL.M. was viewed as an entry point for law teaching. Even in 2001, the Curriculum Development Committee of the UGC felt that a thorough knowledge of a particular field of law was the purpose of the LL.M. programme, irrespective of whether the students opt to study it for “teaching, practice of law, administration of justice or management of legal counseling in a firm”. The NKC WG (Working Group of the National Knowledge Commission) recommended that there was a need to introduce internship programmes at the LL.M. level. The UGC Guidelines give scope for practical training at a postgraduate level. The said Guidelines insists that the courses offered in the LL.M. programme shall have “practical training and research” and that the students should be evaluated for grades based on their performance in these aspects. At p. 8, the UGC Guidelines mandates in respect of the courses to be undertaken in the LL.M. programme the following: 
Each of these courses will have a practical training and research component for students to perform on which evaluation for grades is determined.” (emphasis mine)
Considering these aspects, it would not be wrong to conclude that the shift in the goal of the LL.M. programme has taken place even at the policy level. Consequently, Universities/ Institutions cannot simply stand by the orthodox position that the goal of LL.M. programme is only to equip students to teach law. Even for the traditional notion of LL.M., internship and other means of practical training will only help postgraduate students become better law teachers. Further, with the changing landscape of Indian legal profession and the opening up of the Indian legal sector to foreign players in the near future, continuing with the orthodox view of LL.M. would be to do disservice to the students and the legal sector. Therefore, it is of utmost importance that Universities/ Institutions expand their vision of the LL.M. programme and not constrict its ambit to merely being a factory for law teachers.

Change in Dogmatic Approach of Law Faculty: A related aspect is that there should be a drastic change in the teaching methodology to the postgraduate students. Universities/ institutions imparting legal education and regulators/ quasi-regulators of legal education such as the Bar Council of India and the University Grants Commission stress on practical approach to legal education both at the undergraduate and the post-graduate level. While Universities/ Institutions these days insist on compulsory internship, there is hardly any focus on practical approaches to law at the Masters level. While it is true that at the LL.M. level, a theoretical approach should be the foundation, theory unsupported by practice becomes irrelevant [see, Jayanth K. Krishnan, Professor Kingsfield Goes to Delhi: American Academics, the Ford Foundation, and the Development of Legal Education in India, 46 American Journal of Legal History 447-499, 474-475 (2004)(noting how American law professors presented practical dimensions to “even the most doctrinally-based courses”)]. Besides, in order to afford a critical approach to law, learning law from a practical standpoint becomes indispensable. For this purpose, it becomes important for the faculty members to have in-depth knowledge of law-in-practice in the course which they propose to teach. The means of acquiring such in-depth knowledge is the challenge to the legal education sector in India.

Student Quality: In order to address the problem of failure of students to match the rigours of the LL.M. programme, the following measures are suggested:
  • One way of dealing with this problem is to have an entrance exam with high standards and keep a relatively high cut-off so that only students who are able to cross the threshold are taken. This is already in existence, However, there are a few problems with this approach: For instance, fixing a high cut-off may not work in the current format of Common Law Admission Test (CLAT) as the choice of the institution depends predominantly on ranking of the applicant in the exam. Another problem is that this may eliminate candidates who are otherwise proficient but are not able to do the entrance well for reasons extraneous to their knowledge or ability. 
  • Another method to ensure better quality of students is to make the students shortlisted for admission attend rigorous pre-admission orientation. Courses in these pre-admission orientations should be similar to crash courses but should be based on subjects such as constitutional law of India, jurisprudence, basic legal research methodology, international law, etc. This will provide a stronger foundation to enable them meet the standards of the LL.M. programme.
Improving Quality of Legal Research at the LL.M. Level: Another contributor to the dismal state of the LL.M. programme in India is the lack of incisive legal research at the LL.M. level. The previous Part of this series identified the lack of training in legal research at the undergraduate level as a chief contributor to this state of affairs. Institution offering LL.M. courses could improve the quality of research skills by making submission of research work a part of evaluation in each course. In fact, The UGC Guidelines contemplate a research component in each course offered in the LL.M. programme that would be one of the bases for evaluating the students’ grades. Another way of improving the quality of legal research is to make publication in journals/ law review compulsory in the LL.M. programme. At present, this is done at the research degree level [Rule 9.4, University Grants Commission (Minimum Standards and Procedure for Award of M.PHIL./PH.D Degrees) Regulations, 2016 reads: “M.Phil scholars shall present at least one (1) research paper in a conference/seminar and Ph.D. scholars must publish at least one (1) research paper in refereed journal and make two paper presentations in conferences/seminars before the submission of the dissertation/thesis for adjudication, and produce evidence for the same in the form of presentation certificates and/or reprints.”].

But, if legal research in India is to be improved, this drastic measure has to be introduced even in the LL.M. programme. At least one publication by each student should be made mandatory. This will make students undertake serious legal research.

Another hindrance to learning legal research skills in the LL.M. programme is that the unimaginative syllabus of the course on legal research methodology. The legal research methodology courses are offered based on text books/ reading materials that either borrow heavily concepts of research methodology from social/ physical sciences or do not reflect the latest practices in legal research. It is time that legal research methodology courses taught in India reflect the current trends in legal research. This includes introducing the students to advanced research avenues like empirical legal studies, statistics-based legal research, and so on. Further, it is important to bring out course content at a national level on legal research methodology that would equip students to undertake legal research, understand concepts of legal research and learn the latest developments in the field of legal research.

Making Internships/ Training a part of the LL.M. ProgrammeAs stated previously, UGC Guidelines contemplates practical training in law as a method of evaluating performance of students. Institutions/ Universities could offer or support various types of internship/ training programmes such as internships in Non-Governmental Organisations, law firms, offices of advocates, corporations or even in educational institutions in the form of teaching internships. These could be made a compulsory part of the LL.M. programme so that students are well-equipped to have a practical perspective of law and, possibly, apply their research skills in the legal domain in which they undergo internship or training. This will go a long way in equipping them to apply their legal research skills in the legal domain in which they would work after passing out from the LL.M. programme. 

Often, academicians think that a practical training of law is irrelevant to post gradute courses on law such as LL.M., M.Phil, etc. This is an unfortunate trend. If academicians are unaware of how law works in practice, how would they perform their primary duty of undertaking legal research for proposing legal reforms?

Comprehensive Ranking of Institutions offering LLM ProgrammesIn order to jumpstart the reforms in the LLM programme, it would do good to introduce a comprehensive methodology based ranking of the institutions offering LLM programme. This would benefit the students at least in two ways: one, a proper methodology-based ranking would foster healthy competition between institutions in making the LLM programme more attractive to the students. This would results in one institution trying to better the other in order to attain better rankings. The second benefit is that it would aid the students in choosing an institution which offers the best value for their time and money. At present, there are no such comprehensive rankings for institutions offering LL.M.

Conclusion:

Of all, two crucial challenges face postgraduate legal education in India at the Masters level. The first challenge is the dearth of student quality. This series of posts argued that one of the ways of addressing this problem was by selecting only the most serious students through a rigorous entrance examination. Pre-admission orientation programmes with rigorous training of students who are to attend the LL.M. programme was another way discussed to counter this problem. It is suggested that these orientation programmes would be a better bridge to reduce the gap between institutional expectations and student quality.

The second important challenge is to address problem that permeates not only the post graduate legal education but also legal education in general- the disconnect between law as taught in law colleges and law-in-practice. The chief contributor to this state of affairs is the way in which legal academia is structured. Either the faculty members are not adequately equipped to deal with the practical aspects of a particular law course or even if they are, they are not able to devise teaching methods which will enable them teach both theoretical and practical approaches to law. This is especially true in LL.M. where specialised courses are studied. Often Universities/ Institutions hold the view that for an LL.M. course, there is no need to teach law from a practical stand point. This is a misconception even for those institutions which hold the orthodox view that the LL.M. course is to train law teachers. Even in that case, the prospective law teachers would not be adequately trained in a practical approach to law thereby furthering the disconnect between taught law and law-in-practice.

At present, there seems to be no fool proof method to address the second challenge. Universities/ Institutions either recruit full time law faculty members who are academicians through and through or practitioners as part-time faculty members. Once the former begin their career as academicians, they are hardly trained on the practical aspects of law. The latter give least importance to the theoretical aspects of law while the former do stress mostly on theoretical aspects of law. The possible way to address this problem is to invite committed practitioners/ industry experts to take up law academics (research and teaching) full time with attractive salaries. At present, except in certain rare cases in National Law Schools, University/ Institutional regulations do not systematically address this aspect. As a consequence, several industry experts have either shifted to foreign universities or have gone to elite private law schools which provide attractive salaries and also offer adequate facilities for research or otherwise.

Real reforms in the LL.M. programme in India would be possible only if these two fundamental problems are addressed.

(Many thanks to Ms. Smitha Poovani, Ms. Madhavi Nalluri, Mr. MLS Kaarmukilan, Mr. J. Ravichandran, Ms. Jasmine Joseph and Dr. Ananya Chakraborty for their inputs on the subject).

Monday, September 26, 2016

The Worth of an Indian LL.M.: A Critique of the LL.M. Programme in India


This blog post discusses a paper titled "LL.M. in India: A Critical Review" presented by the author in a recent conference on Legal Education in in India in a Globalised World. This post discusses some of the major problems with the course in India as identified in the paper. The next post would suggest possible means to address these problems.

Introduction

The Working Group on Legal Education constituted under the aegis of the National Knowledge Commission declared in 2007 that LL.M. in India was on a “steady decline”. LL.M. was a two-year course then and was beset with several problems. Many institutions ran the course without even a proper specialisation or a syllabus for the courses. LL.M. was seen by these institutions as a mere training ground for future law teachers. The teaching pedagogy was either unimaginative or, at times, absent. Even in the national law schools, which are considered to be institutions of excellence, LL.M. was neglected. Hardly would serious students opt for an Indian LL.M. They would rather do their “masters” abroad for various reasons; some of which included a shorter duration, rigorous standards and excellent faculty guidance (see, for instance, here, here, here and here.

In the recent past, there has been a shift in the way in which the LL.M. programme is being offered. This shift is mainly due to the introduction of the one-year LL.M. programmes and recognition therefor by the University Grants Commission. Despite the reduction of the course duration, many of the problems continue to exist. As a consequence, the recommendation of the Working Group on Legal Education of the National Knowledge Commission that the steady decline in the quality of the LL.M. programme could be reversed by better designing appropriate courses, study materials, internship programmes, systems of evaluation for the LLM programme remains relevant. Shortening the duration of the course cannot be seen as a panacea to the issues relating to LL.M. [Sudhir Krishnaswamy & Dharmendra Chatur, Recasting the LLM: Course Design and Pedagogy, 9 Socio-Legal Review 101-120, 102 (2013)(hereinafter "Recasting the LLM"]

Problems with the LL.M. Programme in India

LL.M. Programme & its Goal: One of the fundamental problems of the LL.M. programme is its goal. While LL.M. in India has been predominantly viewed as a training ground for law teachers, there is another school of thought which considers the programme to be able to attract students with multifarious goals (See, Recasting the LLM). It is this lack of a proper goal coupled with the demand from LL.M. students for better job opportunities similar to their undergraduate juniors which is largely responsible for the current state of affairs. While many of the students are not interested in pursuing a LL.M. course whose sole aim is to equip students to become law teachers, they are faced with the abject lack of institutional support for pursuing careers outside academia. 

A substantial number of students who pursue LL.M. in India either do so for want of further knowledge in law that would aid them in law practice or for getting jobs in the corporate sector. Typically, students attempt to get into one of the national law schools for the LL.M. programme targeting the potential for “corporate” jobs there. Except for a very few national law schools , there seems to be hardly any institutional support for such career pursuits. Even the student-based initiatives to compensate for the lack of institutional support have not been very successful. 

Unoriginal Research Methodology Courses: Legal research, unlike several other fields, is not an exclusive domain of postgraduate courses. It is taught, and is required to be taught, even at the undergraduate level, since legal research is one of the indispensable requirements of the legal profession. Hence, at a post-graduate level, research methodology courses should be something more than what the students ought to be equipped with at an undergraduate level. 

Unfortunately, legal research methodology courses taught at LL.M. courses are nothing new from what is taught at the undergraduate law courses. Students seriously lack skills in advanced legal research methods. For instance, only a few universities teach courses like empirical legal studies to their students. Even the faculty members are not equipped to handle such innovative legal research methods. Further, even the traditional methodologies of legal research such as doctrinal legal research, case survey methods, etc. are not taught using real papers/ works that take up a particular legal research methodology. Students woefully lack skills in presenting data. 

Lack of Substantive Research Output: One of the main problems that haunt LL.M. in India is the lack of quality research output which is the soul of the LL.M. programme. It is questionable if LL.M. programmes in India have actually had the effect of encouraging legal research. A chief contributor to this state of affairs is the lack of training in legal research in the undergraduate level. Students who have not had training in legal research at the undergraduate level for five years or three years (in case of the three-year course) cannot be expected to develop legal research skills overnight at the LL.M. level, which is rigorous, especially due to its limited duration. 

Although submission of dissertation has been a compulsory part of the post-graduate programme, one would be justified in doubting the quality of the dissertations that are submitted. Neither the supervisors nor the post-graduate council (of whatever name) does a thorough quality check on the research output. Students often do a rehash of some work previously done. Thus, at the end of the LL.M. programme, students miserably fail to learn research skills or acquire the experience of doing a serious research exercise in the form of dissertation. This is perhaps one of the serious failures of the LL.M. programme. 

Student Quality: One constant complaint of teachers of LL.M. programmes is that the students do not meet the high standards that the course demands. As stated previously, majority students of the pursuing LL.M. in India are from institutions with less rigorous academic standards as compared to the national law schools and other institutions offering such competitive curriculum. The problem with this is that the students are not able to cope up adequately with the higher standards set in the LL.M. programme. As a consequence, faculty members are forced to either bring down the level of the courses or the students being unable to match those standards either quit the course mid-way or do little justice to the course. Ultimately, the LL.M. programme fails to meet its goal. 

Doctrinaire Approach by Faculty Members: Another complaint about legal education in India is that it is not at all reflective of law in practice. This state of affairs is probably due to the lack of law teachers who are well versed with the theory as well as the practice of law. Law teachers who are strong on theory are not able to teach the complexities of law-in-action while law practitioners who teach part-time are neither able to devote substantial time to law teaching nor do make the students learn theory underlying law practice. The research output from students who law training in law-in-motion is often unrealistic. Lack of a practical approach ill-equips the LL.M. students to conduct legal research. This is perhaps one of the fundamental reasons for the relative failure of the Indian legal academia in contributing substantially to legal reform. 

One Year LL.M. Programme: The One-Year LL.M. programme has been heralded by many as a possible turn in revolution in post-graduate legal education in India just like how the National Law School revolution dramatically improved undergraduate legal education. But has it achieved the goal? Given the existence of other problems which remain unresolved, except to benefit the students by making them available to the market one year in advance, the course has not seemed to have brought substantial qualitative improvements in the LL.M. programme. Given the lack of quality in students to undergo the rigours of the LL.M. programme, the two-year course gave sufficient time for the students to improve. However, the one-year course seems too short for the students to have any qualitative improvement.

The second and concluding part would discuss possible solutions to address these problems.

Tuesday, September 6, 2016

Sasan Power v North American Coal: Part I

Many initial news reports about Sasan Power Ltd. v. North American Coal Corporation India Private Limited said that Supreme Court allowed Indian parties to contract out Indian law or that Indian parties could agree to a foreign seat. Later reports make a little more sense in reporting what the judgement actually meant. Had there not been much publicity about the Madhya Pradesh judgement which preceded the Supreme Court decision, we do not think that the Supreme Court's decision would have surprised (disappointed?) many. There are two judgements in the case- the lead judgement by Chemaleswar, J. and the concurring judgement by AM Sapre, J.  

A crucial question was involved in the case: whether two Indian parties could contract out Indian law? Note that Section 28 of the Arbitration and Conciliation Act, 1996 provides that "Where the place of arbitration is situate in India, a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India..." Note also that Section 28 is in the context of arbitration law. Before this, the facts.

An Indian Company ("Sasan Power Ltd." or "Sasan") and an American company ("North American Coal Corp." or "NACC" or "American Coal") entered into an Agreement in January 2009 for mine development. Let's call this agreement "Agreement I" (as the Supreme Court did). Article XII of the Agreement provided that the Governing Law would be the laws of the United Kingdom" (whatever it meant!- England & Wales, North Ireland or Scotland?) and that dispute resolution would be by ICC Arbitration in London as seat. American Coal established a full owned Indian subsidiary which, for the sake of convenience can be referred to as "American Indian".

Now, Sasan, American Coal and American Indian entered into an Agreement ("Agreement II") whereby North American purported to assign all its rights and obligations with the consent of Sasan to American Indian. Agreement II also provided that American Coal was not relieved of its obligations and liabilities although Sason agreed to the transfer and assignment of the rights of American Coal to American Indian.

Disputes arose. American Coal wrote to Sasan terminating Agreement I and sought to refer the dispute to arbitration. Sasan, interestingly, approached the relevant District Court seeking several reliefs against American Indian (not American Coal, it may be noted). Sasan sought the relief of declaration holding Article XII of the Agreement as null, void, inoperative and unenforceable. Again, interestingly, there was absolutely no relief claimed in respect of Agreement II. 

Eventually, the suit was dismissed. On appeal, the Madhya Pradesh High Court held that where parties decided to resolve their disputes by arbitration in a seat outside India, Part I of the Act would not apply. On this basis, the MP HC held that if the agreement satisfied the requirements of Part II, Part II would apply, in which case the parties have to be referred to arbitration as per Section 45. The Court therefore dismissed the appeal. 

While summarising the MP HC decision, the Supreme Court made an interesting observation (See, para 11 of the SC judgement). The SC acknowledged that one of the grounds of appeal to the SC was that the HC erroneously rejected the contention that two Indian parties could not agree to have their arbitration seated outside India. But the SC stated: "We do not find from the impugned judgement anything to indicate that such a submission was made before the High Court." In other words, the Supreme Court clarified that although the MP HC held valid and enforceable an agreement whereby two Indian parties could agree to a foreign arbitral seat, such a submission was seemingly never made by the parties before the HC (at least from the decision of the HC)! It appears that the counsel of American Coal clarified before the Supreme Court that he was not making that submission. 

Wow! What was happening? Did the Madhya Pradesh High Court draw a rabbit out of the hat?!

In any case, the Supreme Court in Sasan did not decide on whether two Indian parties could agree to a foreign seat, in opposition to the Supreme Court's judgement in TDM Infrastructure. As the Supreme Court clarified in para 12 of its judgement in Sasan, the court confined itself to deciding whether two Indian companies could contract out Indian substantive law.

More on the interesting case in the next post. 

Thursday, June 30, 2016

Prejuding a Dispute in a Section 11 Related Proceeding? A Case Comment

It was expected that the Supreme Court would pass several judgements on the first day of the Court after the vacations (29.06.2016). The Supreme Court did pass several decisions and twenty three of them have been uploaded onto the Court’s website. One such decision is M/s. Emm Enn Associates v. Commander, Works Engineer (Civil Appeal 7184/2008)(AM Sapre & A. Bhushan, JJ.), which is the subject of this post. 

The Supreme Court granted Special Leave to Appeal against a decision by the High Court under Section 11 of the Arbitration and Conciliation Act, 1996 refusing to refer a dispute to arbitration. The reason for refusal by the High Court was that there was no live claim. Payment on the final bill was made in April 2001 and the Appellant chose to invoke arbitration in February 2005.

An interesting argument was put forth by the Appellant that the Audit Clause contained in the Contract meant that limitation period would begin to run only from the expiry of the two year period specified in the Contract. If this was so, the two year period would have expired in April 2003 and the arbitration would have been invoked within three years from April 2003. 

Readers may note that Audit Clause is a standard term in Government Contracts, which allows the Government to (a) audit and examine the relevant documents and papers of the Contractor for any over-payment or other erroneous payment by the Government entity to the Contractor, and (b) if such over-payment or erroneous payment is discovered, demand/ adjust the said amount from the Contractor. The power to do so exists for a limited period, usually three to four years. The interpretation of audit clauses has rarely come up before the courts. Unfortunately, the Supreme Court did not give a ruling on the impact of the audit clause on limitation, although it was raised by the Appellant (see, Para 24-25). 

[The Court got its reference to case law wrong. Having extracted Para 13(!) of the SBP & Co., the Court stated that it had cited para 14 of the judgement in “Indian Oil Corporation Ltd.” The extracted para was para 13 and it was not from Indian Oil Corpn. but was from v. SBP v. Patel Engineering.] 

The Court decided the issue on based on different reasons. The Court found that the Appellant had signed the No-Claims Certificate (as is a practice in Government Contracts) only as regards the undisputed portion of the final Bill and the payment was made for the undisputed portion alone. As regards the disputed portion of the final bill, the Court held that whether there was a live claim or not cannot be decided, on facts, in the proceedings under Section 11 but only by the arbitrator. 

Having gone ahead with this view, the court unfortunately chose to comment on the merits of the case: “The claim raised by petitioner in the facts of the case could not have been said to be a dead claim.”. Surprisingly, the Court did not give any substantive reason for it but merely stated that such a conclusion was drawn “[e]specially in view of the additional documents which have been placed” before it. The reason why it is so was not fully substantiated by the Court. 

Ultimately, the Court remitted the case to the High Court to pass consequential orders for appointment of the arbitrator for deciding the disputes between the parties. 

Three questions:
  1. If the Court stated that it was not right on the part of the High Court to decide the question as to whether there was a dead claim or not, why did it choose to give a finding on the same issue? The arbitrator ought to consider the view of the Supreme Court on this point as only a prima-facie view and has to decide the issue de novo and in full, especially given that the Supreme Court did not offer a full justification as to why it reached the conclusion that the claim was not dead one. The only justification offered, that the No-Claims Certificate was only as regards undisputed amounts is not relevant in determining whether the debt was long time-barred in the facts. No other specific and compelling reason was given by the Court.
  2. Why did the Court not decide on the contention regarding the impact of the Audit Clause on limitation when it could have either taken up the issue head on or could have stated that it was for the arbitrator to decide? 
  3. The dispute related to an Agreement that was entered into in 1998. The dispute arose by 2001. The Special Leave to Appeal was probably granted in 2008. The adjudication of the dispute is yet to begin. Despite this, was the Court correct in remitting the matter back to the High Court for appointment of arbitrators? [There was two ways of seeing this. On the one hand, it could be argued that the Court simply wasted another month in the long march of the parties towards justice by remitting the matter. See, this article (pardon the self-promotion) at p.28 & 34) On the other hand, it could be argued that the Supreme Court could not have appointed the arbitrator since it probably did not have a list of arbitrators from whom it could appoint a suitable arbitrator depending on the location of the parties and the High Court was better suited to appoint a suitable arbitrator.]