Digital Archives of the Parliament Library & Why Law Univs Must Focus on Researching This

Recently, the Parliament of India has made public its archives in digitised format in the form of a separate page called Parliament Digital Library. We have just skimmed the surface of the archives. The most important thing is that it brings together in one place the legislative history of most of Indian statues, including the ones made by the British. For instance, it contains the discussions of the Council of the Governor General of India on laws such as the Indian Contract Act, 1872 (9 April 1872), and other laws enacted during the period. We will try to have detailed posts on certain laws. But this is an important resource and is a must read for all interested in Indian law, especially law academicians and researchers. 

I think it is now the solemn duty of law universities to research on this and write a lot of articles on these subjects. These will provide a better perspective on the purpose of drafting a particular provision in a particular manner. These will gave considerable insight on how statutes were enacted in India during that period.  

For instance, on liquidated damages, James Stephen said in the Council: 

"The only other matter of importance on which we have differed with the Commissioners is the question of liquidated damages. The law of England on the question whether, when a man promises in a certain event to pay a specified sum, he is bound or not to pay it in full, is rather intricate; and, in order to avoid that intricacy, the Commissioner proposed to enact that, in all cases, Such penalties should be treated as liquidated damages. We agreed that the intricacy should be removed, but, for the reasons assigned in our report, thought that it should be removed by the converse operation of turning all liquidated damages into penalties. This we proposed to qualify by an exception, which, 8.S it stands in the Bill, is not very neat, and which I propose to amend· It applies to the case of bail-bonds, recognizances, and the like, and to persons who, under the orders of Government, give bonds for the due performance of public duties."

At another place, a member of the Council noted: "As to the provisions of section 74 of the Bill, on the subject of liquidated damages, HIS HONOUR would say that he believed the Committee had done great service in putting it into a shape which, although in some respects opposed to the English law, appeared to be fair and equitable." 

Thus, the section as it originally stood was based on fairness and equity! But the way in which it was construed during the early period of the Act till 1899, as this post goes to show, was totally contrary to the intent of the drafters and the Council. It is also interesting to note that the Indian Law Commissioners, sitting in England (?), wanted to make all penalties as liquidated damages, until contrary is shown. 

Some of the information contained in the archives, such as those discussed above relating to contract law, are already in public domain in the form of secondary sources. But it is excellent to access the primary sources. Hence the excitement in this post.  

Machi, open the webpage! 

Happy researching!

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. Programme: As 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 Programmes: In 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).

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.

The Potency of a Reverse Swinging Yorker

"What’s the use of law research? Even if there is good research, that doesn’t get translated into law reform. So what’s the point?"

This flurry of questions was what I had to face last night from a friend of mine for which I had no answers. Without knowing that the stumps I was trying to protect were broken into minutely thin shards sized ultra vires rei familiaris oculum and noticing the tomblike silence on the other end of the line, the friend had to say: “I know you don’t agree with me but this is my experience”. I had to swallow my pride and meekly concede: “I am not clear on where I stand so I’ll not enter into a debate.” The friend’s opinion about the futility of legal research in India has been irking me since then. 

I thought my tame surrender to the yorker was endemic probably due to my inability to get into a verbal duel without warning. So I tried to put another friend of mine in the same spot. We were chatting (on google) about what guys of our age speak often- future law life (yeah we are lawyers at the fag end of our youth). My friend wanted to become an academic. Gleefully, I sharpened my knifes and typed: “What’s the point in being an acad? Academicians have hardly contributed to law reform in India.” For a few minutes, I didn’t see the usual chatbox message “XYZ is typing”. Trying to regain his senses after being hit on the helmet by a Harold Larwood bouncer, my friend replied: “I didn’t expect this provocation”. I knew he was standing on the precipice, on the verge of falling into oblivion. He did. This was how: “Even prominent academicians like ABC, DEF, are of the same opinion”!

I was stunned at the capitulation of my friend who breathes, eats and sleeps legal research. I still fail to give in because of my optimism about how legal research can lead to law reform. Am I right, or do you think I am suffering from cognitive dissonance? 

See, Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, New York Times (19.03.2007) who bowled a similar reverse swinging toe-crusher and the responses (and reactions) to Liptak by Althouse, Berkeley Jurisprude,& Indiana Law Blog

Uniform Citation Standards in India

[This post was first posted in a blog in Legally India also known as Practical Academic. Formatting of the table has been slightly modified.]

 

In the past few years there has been an increase in the number of journals/ law reviews/ law periodicals (“Law Journals”, for short) in India, especially from the National Law Schools. This is an encouraging development and would go a long way in establishing high academic standards in India. To a typical law student, practitioner or a scholar, these Law Journals afford a great opportunity to contribute to the development of law in general and Indian Law in particular.

One of the chief problems with Law Journals in general is that they are associated with excessive formalism, which may not always bode well for the legal industry. Notions that writings in Law Journals should be in a particular way is ingrained in us lawyers. Examples of such formalistic notions are the desire to write lengthy papers, explanatory foot notes, excessive foot notes, long introductions etc. In contrast, Law blogs offer a less formalistic template for law critique but do not have the reach of a good Law Journal and are often reactive (as opposed to being analytical).

An example of excessive formalism in Indian Law Journals is the varied citation standards required by them. It is assumed that a particular citation standard has been adopted because it is the most efficient- takes least amount of time but satisfies the purpose of aiding research. Obviously, there must be one or a few of such standards which are more efficient than the others.

Below is an illustrative list of the citation standards required by the Indian Law Journals. A few universities like NLS, NUJS have devised independent citation standards. The list also mentions such standards. The list is in no particular order.

                  

S. no	Law Review/ Journal/ Working Papers	Citation Standard
1.	NUJS Law Review	NUJS Law Review Citation and Style Standard.
2.	Journal of Indian Law & Society	Bluebook (19th ed)
3.	NUJS Working Paper Series	Working paper series citation standards#*
4.	Journal of Telecommunication and Broadcasting Law	OSCOLA
5.	NLSI Review	Bluebook (18th ed)
6.	Indian Journal of Law & Technology	Bluebook (18th ed)*
7.	The Indian Journal of International Economic Law	Bluebook (18th ed)
8.		NLS Guide to Uniform Legal Citation
9.	SCC & sister publications	Citations used in “Standard Law Reports”
10.	Nirma University Law Journal	Bluebook (18th ed)
11.	ALSD Student Journal	Bluebook (19th ed)
12.	RMNLU Law Review	OSCOLA (4th ed)
13.	GNLU Law Review	Chicago Manual of Style
14.	India Law Journal	(No footnotes)
15.	NALSAR Law Journal	(does not specify)
16.	Developing World Review on Trade & Competition	Chicago Manual of Style
17.	NLIU Law Review	Bluebook (19th ed)
18.	Socio-Legal review	Bluebook (19th ed)
19.	Indian Journal of Constitutional Law	Bluebook (18th ed)
20.	Indian Yearbook of International Law and Policy	Bluebook (18th ed)
21.	Indian Journal of IP Law	Bluebook (18th ed)
22.	Ambedkar Law University Journal	(Own  standards)#
23.	Indian Journal of International Law	(Own  standards)#
24.	NLUD Student Law Journal	Bluebook (19th ed)
25.	CNLU Law Journal	Bluebook (18th ed)

* other Uniform Citation standards are also allowed

# Prescribes independent citation standard

A perusal of the table would show different universities following different citation formats. At times, different citation standards are prescribed for different publications of the same university. For instance, NLS has a Uniform Legal Citation standard. It seems that even the publications of NLS such as the NLSI Review, Indian Journal of Law & Technology, the Indian Journal of International Economic Law use the bluebook and not NLS' own Uniform Legal Citation standard (at least their websites do not state so). Four different Journals of NUJS (NUJS Working Papers is not a Journal in a strict sense of the term) follow four different standards.

Imagine the plight of a student or a scholar attempting to write an article for publication in an Indian Journal. Which citation format does she use while writing it? Assume that a student writes her paper employing Bluebook (18^th ed) style. Once she completes it she realizes that a law review, say GNLU Law Review, has called for papers for its forthcoming issue. She is interested in sending her article for publication but has to modify all the citations so as to be in compliance with the Chicago Manual of Style. It’s a waste of precious time.

It is high time that the editorial boards of the Journals sit together and see if they could adopt a citation style uniformly. One option would be to use Bluebook considering that it is probably the most widely used style in Indian Journals. Almost a year back, when this blawgger made the same suggestion to a few Law Journals, one of the Law Journals following the bluebook replied: “[A]s no other uniform citation style finds as much acceptance at the international level as the Harvard Bluebook Style [name of the Journal excluded] feels justified in continuing to use the Harvard Bluebook Style.” While conceding that the Harvard Bluebook was cumbersome, the Law Journal justified the use of the said style for the style’s acceptance at the international level.

Another option is to adopt a standard that would address research-related problems prevalent in India.  NLS’ Style Guide titled “NLS Guide to Uniform Legal Citation” claims it has been drafted keeping the Indian research conditions in mind. The Editor’s note states: “The Guide is a response to calls from students and legal researchers in India for a simpler system of legal citation, which would also provide adequately for the unique demands of citation of Indian sources, while adhering to international standards of citation. The Guide aims to make citation simpler and clearer, without sacrificing the purpose of citation - to enable the reader to locate the cited source with ease.”

Perhaps, the Law Journals could accept the Bluebook Style and come to a consensus on a citation standard that is the simplest but satisfies the purpose for which citations exist- to aid research.

The Clarion Call for Reforms in Legal Education

Part I

It was heartening to read Mr. Veerappa Moily, Union Minister for Law and Justice, some days back in Indian Express on yesterday’s need for reforms in legal education. He, in this piece, place the issue in perspective and underscore that gone are the days where legal education was catering to the single segment, bar and marginally to academia. The institutional and curricular designs of legal education remain majorly of those bygone days that he thinks to save any institution from obsoleteness, timely and regular reforms are integral.

The conceptualisation about the function of legal education, per him, should be akin to the contribution science has made to the advancement of the society. He visualizes development of ‘global lawyers’ to cater to the needs of trade, commerce, industry as well as bench and the bar. He also sees the relevance of legal education as the axis of governance, rule of law and democracy. This is an echo of the outlook of the National Knowledge Commission (NKC) (Page, 79).

NKC’s roadmap for reforms ranges from regulatory environment to curriculum development. To be more specific they are;

1. New Regulatory Mechanism: Handing over the regulatory baton from the Bar Council of India (BCI) to a new regulatory mechanism is the primary need. A twenty five member Standing Committee for legal education comprising of representatives of BCI, judges, academics, trade, commerce and industry, economists, social workers and students is to deal with the entire gamut of legal education.

2. Independent Rating System: Rating could be used to benchmark quality and as an indicator for awarding and continuing of accreditation

3. Curriculum Development: Autonomy to develop curriculum is the way forward. Multidisciplinary approach interwoven with contemporary and cutting edge issues is expected to be the highlight of the curriculum

4. Examination System: A continuing system of examination with project and viva and reorienting the approach of evaluation which will test the analytical, writing and communicative skills.

5. Attracting and Retaining Talented Faculty: Incentivisation and imaginative career development schemes to attract and retain talented minds. Removing fetters for practice of law for teachers is a recommendation so that the perceived divide between classroom teaching and practice of law is mended.

6. Development of Research Tradition: Serious efforts to be undertaken to develop a culture of research. Methodologies such as having an academic component on research skills, rationalising teaching load of teachers to free their time for research, enhancing library facilities, and incentivising research are suggested.

7. Centre for Advanced Legal Studies and Research (CALSAR): Four regional institutions with a network between to carry out research on contemporary issues and to provide advise for the Government. To be established.

8. Financing Legal Education: Fees is considered as the major source of revenue. Autonomy in fixing of fees with certain guidelines is the prescription. Public private partnership, the way forward.

9. Dimensions of Internationalisation: Imbibing the spirit of developments in international arena of legal education and legal profession and understanding the domestic law in a comparative perspective. This is to be achieved through partnership and collaborative ventures.

10. Technological Assistance in Legal Education: Use of technological advancement in the development of legal education. Digitalisation and networking to share the resources is the suggested mode.

The Minister has not made any particular suggestions of his own but is seemingly endorsing the reports submitted by the agencies appointed by the Government to look into the higher education sector, namely the Yashpal Committee and National Knowledge Commission. It also needs to be borne in mind that change in the legal education primarily is in the court of Ministry of Human Resources. Mr. Kapil Sibal has already started acting on these reports and have a catena of legislation on table, in the pipeline, and in the closet.

What intrigued me as a part of the legal education fraternity is the identification of law schools as the islands of excellence, which is far from reality. True, it started as a refreshing change in the deteriorating environment of legal education and carried an aura of distinction and superiority but this claim today is far from reality. The law schools are ailing from similar maladies of the rest. The law schools maintain the rank mostly on the past glory and recruitments. For recruiters it is nothing but relative best available in the market. I am not oblivious of the individual merit of the students and certain teachers in the law schools but they are “the islands” in law schools today. The same is true with any traditional institutions imparting legal education, sparks are there as well. The differentiating factor then is the exposure a student of law school gets in terms of infrastructure, resources and opportunities. These opportunities are in the form of moot invitations, internships, exchange deals, visiting faculties from foreign universities, library resources, relatively more regular classes, courses catered to the needs of the market and continuing examination system. Ostensibly this is a picture perfect system. The ensuing question is how come law schools do all these whereas other institutions of legal education cannot. Autonomy is the answer in the forefront.

To be continued...

The Super Seven: Some Responses to the National Commission for Higher Education and Research Bill, 2010

There has already been a spate of responses to the proposed NCHER Bill (See, the earlier post for details). This is an attempt to analyse the Bill from the standpoint of promise and the potential of delivering the promise within the structure provided by the Bill.

The Promises

The Bill holds out certain promises in unmistakable terms. The Bill seeks to promote higher education and research, including university technical and professional education other than agricultural and medical education. It intends to provide for the determination, co-ordination and maintenance of standards for higher education and research in the earlier mentioned fields.

Supporting autonomy of higher educational institutions for innovation and free pursuit of knowledge; facilitating access, inclusion and opportunities to all; helping comprehensive growth of higher education and research through reforms; creation of an advisory mechanism of eminent peers in academia; are the other objectives of the Bill

The Justification for the Bill

The Bill is preceded by two documents that are the outcome of extensive deliberation, namely; the Report of the National Knowledge Commission, (page 42 to 57) which suggested an independent regulatory framework (Independent Regulatory Authority for Higher Education) and Yashpal Committee Report, which recommended a national commission of same name. Both have its own logic and justification for changing from the existing regulatory pattern of higher education.

The Bill seems to draw its legitimacy more from the Yashpal Report. I would argue that Bill in its present form cannot be compared to what Yashpal thought as the “why and how” of the commission which the report has suggested. Two underlying themes of the Yashpal report are Diversity and Autonomy, which precisely is what the Bill fails to deliver, though ostensibly promised.

Diversity

The responses about the Bill in the public domain have pointed out the centralising tendency writ large in the Bill. The regulatory aspects of authorisation, accreditation and affiliation are with the Commission, which makes it no different from the existing UGC structure. The disturbing fact is that this extends to standardisation of curriculum as well. Section 24 (2) (b) and Section 54 (f) speaks about the power of the Commission to make regulation and to ‘develop from time to time, of a national curriculum framework with specific reference to new or emerging or inter-disciplinary fields of knowledge and to provide a vision and guide universities in recognizing and revising course curricula”.

This, I would argue, foster regimentation and standardisation than provide for diversity and autonomy. Read it along with the fact that it is the commission that is to authorise the commencement of a course.

An observation made by Yashpal report would be relevant here “if the syllabi were to be designed with a view to inducting the student into a community of participant citizens, a new kind of institutional culture and ethos can be created in our general and professional colleges. For this to happen, all syllabi should require the teachers and students to apply what they have learnt in their courses, on studying a local situation, issue or problem. There should be sufficient room for the use of local data and resources to make the knowledge covered in the syllabus come alive as experience.”

Another front of attack on the Bill is about the disservice it is doing to the already asymmetrical relationship of centre and state in the matter of education. The Bill does not offer any opportunity of state’s presence in its functions except that the co-opted members of the collegium are representatives of the states. On the other hand the Bill wipes away the existing Higher Education Councils of the State.

Autonomy

The most important discontent with the existing system is related to the governance structure which is subverted from within. The culprit, as suggested by Knowledge Commission and Yashpal Committee, is intrusions by the Government, to put it differently, the political process.

The Bill fails to cork this problem as well. The appointment of the Commission, seven in strength, is done by the President on the recommendation of a selection committee comprising of the PM, the Leader of the Opposition, the Speaker of the Lok Sabha, Minister in charge of Higher Education in GoI, Minister in charge of Medical Education in GoI (one is left to wonder why this Minister, when medical education is anyway not within the purview of the Commission and why not Minister for Law and Justice, when legal education is within the scope of the Act). The Selection Committee is to make recommendation from a panel of names submitted by the collegium (see, Section 5). The issue with collegium as mentioned earlier is that the co-opted members are chosen by core fellows of collegium from a panel of five persons (persons of comparable eminence and integrity in academia in higher education) recommended by the Government of each State or Union Territory (see, Section 17). One should choose to be oblivious of the potential undercurrents of such appointments to believe that eligible persons and only eligible persons will find their place in collegium.

The Chicken and Egg Problem: The Commission is to notify a person as a co-opted member of the collegium once the core members elect them and it is the collegium that has to submit a panel of names to be appointed as members of the Commission. I am sure this is just a logistical glitch and will be solved.

The appointment of Vice Chancellors and Head of the Institutions: The next level of the interference from political bosses usually is in the appointment of Vice Chancellors and Head of the Institutions. The Bill addresses this problem by the creation of a national registry and mandating that at least for Institutions of National Importance, the appointment has to be done from a National Registry of names (see, Section 26(4)). The question then is as to the preparation of the national registry. The duty is with the collegium and they shall update it with selected names from those sent to them by the Commission, which essentially is forwarding of names sent to it by the Central Government, State Governments, Universities and higher educational institutions. This measure will not ensure that political influence is kept away. On the other hand it is a concoction for interference.

The Super Seven

It would be quiet intimidating for any member of the Commission to read Chapter IV of the Bill as it lists out the functions expected to be performed by them. The bulleting exhausts English alphabets and goes for combination.

To top it, the Commission is expected to perform as funder, regulator (in all its aspects) and exercise tribunal like powers. The seven need to cater to the needs of the entire nation that elevates them to the realm of super powered heroes.