Legal Education in India - Need for Streamlining

By Sanjay H. Sethiya

Dr. Radhakrishnan lamented that “our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an area of profound scholarship and enlightened research” .

History of Modern Legal Education

Though India is one of the pioneers in the legal system, dating back to the BC era, with enlightened souls like King Vikramaditya and the like imparting unquestioned justice to his subjects and Aasthan Pundits educated explicitly in the field of legal justice, said topic, being vast in itself and almost flawless, cannot and need not be covered and hence has been left unattended to, with the aim of dealing with present day crisis in the Legal Education system, as expressed hereunder.

The pattern of legal education which is in vogue in India was transplanted by the English, after the establishment of their rule in India. Formal legal education in India came into existence in 1855 when the first professorship of law was established at the Government Ephistone College. As majority of the population was rural and illiterate, the need was felt to bridge the gap between the existing law and the uneducated masses crying for justice, by rendering importance to formal legal education. In the year 1857, legal education was introduced as a subject for teaching in three universities in the presidency towns of Calcutta, Madras and Bombay. Thus, a beginning of the formal legal education was made in the sub-continent.

For almost a century from 1857 to 1957, a stereotyped system of teaching compulsory subjects under a straight lecture method and the two year course continued. The need for upgrading legal education has been felt for long. Numerous committees were set up periodically to consider and propose reforms in legal education. The University Education Commission was set up in 1948-49 and in the year 1949, the Bombay Legal Education Committee was set up to promote legal education. The All India Bar Committee made certain recommendations in 1951. In 1954, XIVth Report of the Law Commission (Setalvad Commission) of India discussed the status of legal education and recognized the need for reform in the system of legal education. It depicted a very dismal picture of legal education. It was only from 1958, that many universities switched over to three year law degree courses. In fact, in 1958, when the Law Commission voiced its concern there were hardly 43 institutions preparing 20,519 students for law examination. After enactment of Advocates Act, 1961, it was noticed that there was a mushroom growth of sub-standard law schools, with hardly any regard to the quality of legal education. Admission to these law schools was easy.

The Advocates’ Act, enacted in 1961, became the Patriarch of the Legal Education system presently in existence. The Bar Council of India Rules, inducted under The Advocates’ Act 1961, lays down the curriculum for imparting Legal Education throughout India and said Bar Council of India Rules have been governing the procedural aspects of Legal Education, including, but not restricted to the subjects to be taught, mode of examination to be conducted, the various Degrees to be conferred on successful students and the like. It was only by 1967, that it became onerous task for the three year law colleges to include procedural subjects into the curriculum of their law school. The monologue lecture scheme adopted in law schools, where practical training is either totally neglected or marginally implemented at the level of Moot Courts, Court visits and legal research will not make good lawyers in today’s scheme of legal education.

Rules on Legal Education have been amended from time to time which were incorporated in the pre-existing regulations. There were demands for a consolidated latest version of the Rules under Part IV on standards of Legal Education and Recognition of Degrees in Law for admission as Advocates from Universities and Colleges teaching Law in the Country. In response to popular demand, the Bar Council of India published the Rules in its final shape as applicable from 30-11-1998.

The minimum qualification for being an advocate is an LLB Degree, generally a three year course, which can be obtained after graduation in other disciplines. A debate as to its efficacy in the recent past led to a proposal of five years integrated course after intermediate (10+2) examination. The three year course itself came to be restructured into a semester system and several papers came to be included and excluded as per the Bar Council Guidelines. Hence, the Council today allows both the 3 year course and 5 year course to continue.

Agencies Regulating Legal Education
The Constitution of India basically laid down the duty of imparting education on the States by putting the matter pertaining to education in List II of the Seventh Schedule. But it now forms part of List III, giving concurrent legislative powers to the Union and the States. Legal profession along with the medical and other professions also falls under List III (Entry 26). However, the Union is empowered to co-ordinate and determine standards in institutions for higher education or research and scientific and technical institutions besides having exclusive power, inter alia, pertaining to educational institutions of national importance, professional, vocational or technical training and promotion of special studies or research.

Empowered by the Constitution to legislate in respect of legal profession, Parliament enacted the Advocates Act, 1961, which brought uniformity in the system of legal practitioners in the form of Advocates and provided for setting up of the Bar Council of India and State Bar Councils in the States. Under clause (h) of sub-section (1) of Section 7 of the Advocates Act, 1961 the Bar Council of India has power to fix a minimum academic standard as a pre-condition for commencement of studies in law . Under clause (i) of sub-section (1) of Section 7, the Bar Council of India is also empowered "to recognize Universities whose degree in law shall be taken as a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities”. The Act, thus, confers on the Bar Council of India the power to prescribe standards of Legal Education and recognition of Law Degrees for enrolment of persons as Advocates.

However, for promoting legal education and for laying down standards of Legal Education, the Universities and State Bar Councils must be effectively consulted. The University Grants Commission has in the course of time evinced interest in improving legal education and has taken various steps towards that end, through adequate funding, creation of senior posts and other means. As suggested by Hon’ble Justice A.M. Ahmadi in the Chief Justices’ Conference held in 1993, “There should be proper evaluation of papers in the examination. The students should be trained to draft pleadings at the college level. The standard of English should be improved.”

Under Rule 9 (1) to (4) of Section – A, Part-IV of The Bar Council of India Rules (under The Advocates’ Act 1961) deals with the subjects to be covered to complete the respective courses. Hence, it is incumbent to reproduce the relevant section to highlight the short-comings.

Section – A, Rule 9 (1)
The courses of instruction for the Part I for law degree course shall include the following 6 compulsory subjects:-
1. General English (Graduate Standard) - 2 Papers (Part I and Part II)
2. Political Science (Part I , Part II and Part III) - 3 Papers
3. Economics - 1 Paper
4. Sociology - 1 Paper
5. History - 1 Paper
6. History of Courts, Legislature and Legal Profession in India. - 1 Paper

Despite the fact that our National Language is Hindi, the common practice of language in Indian Judiciary is English. Hence, the English subject listed in Rule 9(1) may well standstill. English as a subject may help the students to increase their analytical skills as well as their vocabulary too. Likewise as students of law, it is quite important to be familiar with History of Courts, the evolution of Courts from the ancient period, later development in the medieval period and the status in vogue. Therefore even the History of Courts including Legislature and Legal Profession in India, subject listed in Rule 9(1) may as well standstill.

Whereas, the other subjects such as Political Science - 3 papers, Economics, Sociology and History have their immense significance in imparting BA; whereas they may not play an imperative task in Legal Education. Therefore, it could be recommended that these BA subjects might be deleted to give importance to Legal subjects mentioned in Rule 9 (2), by dividing them into 2 parts, which is elaborately discussed in the subsequent clauses.

Section – A, Rule 9 (2)
(2) The course of instruction for Part II of the study in law shall include the following 21 compulsory subjects:-
1. Jurisprudence
2. Contract-I(General Principle of Contract-Section 1-75 and Specific Relief)
3. Contract-II (Indian Contract Act, Indian Partnership Act, Sale of Goods Act and other Specific contracts)
4. Tort and Consumer Protection Laws
5. Family Law-I
6. Family Law-II
7. Law of Crimes
8. Criminal Procedure Code, Juvenile Justice and Probation of Offenders Act
9. Constitutional Law
10. Property Law including Transfer of Property Act and Easement Act
11. Law of Evidence
12. Civil Procedure Code and Limitation Act
13. Legal Language/Legal Writing including General English
14. Administrative Law
15. Company Law
16. Human Rights and International Law
17. Arbitration, Conciliation and Alternate Dispute Resolution Systems
18. Environmental Law including laws for the protection of the wild life and other living creatures including animal welfare
19. Labour Law
20. Interpretation of Statutes
21. Land Laws including ceiling and any other local laws

As we perceive from the above list of 21 compulsory subjects, a few subjects such as Contracts, Family Law are divided into two parts with an object to cover all the sections of the statute. Similarly, the following subjects are required to be divided into two parts with an object of covering up all the sections;

1. Law of Crimes
2. Criminal Procedure Code, Juvenile Justice and Probation of Offenders Act
3. Constitutional Law
4. Law of Evidence
5. Civil Procedure Code and Limitation Act
6. Company Law
7. Labour Law

The above cited subjects are measured to be of greater significance both in academic as well as pragmatic point of view; accordingly, dividing of these subjects may lead to overcome the illusion present in the Legal Education. This could also pave the way for deletion of the subjects in Rule 9(1) and depute the divided subjects of Rule 9 (2) into Rule 9 (1) for a systematic and thorough undertaking of the more imperative subjects of law.

Apart from these 21 compulsory subjects mentioned in this Rule 9 (2) it is also recommended to include specific subjects such as Cyber Law, Intellectual Property Rights and so on. The Bar Council of India, while framing the subjects for 5 year LLB in the year 1998, Cyber Crime was rarely in vogue whereas, today Cyber Crimes are a new class of crimes in India and it is rapidly expanding due to extensive use of internet. India is among few countries in the world that have a separate law for cyber crimes. Indian Parliament has passed the legislation known as Information Technology Act 2000. Therefore, inclusion of Cyber Law (Information Technology Act, 2000) as subject in the list of Rule 9(2) is essential to Legal Education.

Similarly it is well evident from the various Landmark decisions of our Supreme Court, as well as various other High Courts of State, the significance of Intellectual Property Law is enhancing day by day in the filed of Law. More so, the recent start of Diploma Courses by various law schools in the country substantiates the significance of Intellectual Property Law. No doubt Intellectual Property Law is listed as a subject in Rule 9(3) as an optional subject, but the significance of the same urges to be included as one among the compulsory subjects under Rule 9(2).

Section – A, Rule 9 (3)
(3) Not less than 3 more subjects which may be chosen from the list hereunder:-
1. International Economic Law
2. Bankruptcy Laws
3. Taxation Laws
4. Comparative Law/Legal History
5. Insurance Law
6. Conflict of Laws
7. Banking law including Negotiable Instruments Act
8. Investment and Security Law
9. Trusts, Equity and Fiduciary Relationships
10. Criminology and Penology
11. Air and space Law
12. Law and Medicine
13. Women & Law and Law Relating to Child/Law, Poverty & Development
14. Intellectual Property Law
15. Maritime Law

The list of subjects referred above comprises of 15 subjects with an option not less than 3 more subjects to be included in the Syllabi of 5 year LLB Degree Course. This scheme of option in selecting the subjects may help to traverse the extra subjects which the Universities may experience to be imperative. Inspite of these 15 subjects it is recommended that some of the following subjects may also be given its significance in Rule 9 (3);

1. The Motor Vehicles Act
2. The Registration Act
3. The Indian Stamp Act
4. The Land Acquisition Act
5. The Prevention of Corruption Act
The option in selecting the subjects, not less than 3 more subjects could be increased to 5 which may help to traverse the subjects mentioned herein above. It is also recommended that the following subjects may be deleted;

1. International Economic Law
2. Insurance Law
3. Conflict of Laws
4. Air and space Law
5. Law and Medicine
6. Maritime Law

Section – A, Rule 9 (4)

(4) Six Months of Practical Training be imparted and Practical Training will include the following Compulsory Papers:

1. Moot Court, Pre-Trail Preparations and Participation in Trial proceedings.
2. Drafting, Pleading and Conveyancing.
3. Professional Ethics, Accountancy for Lawyers and Bar Bench Relations.
4. Public Interest Lawyering, Legal Aid and Para Legal Services.

Most of the law teachers join the law schools after completing their LLB, LLM, or Ph.D. and are rarely exposed to the practical aspect of law and the Courts. Such teachers impart theoretical knowledge, divorced from the practical aspects and the result is that a fresh Lawyer appears quite lost in the court room. Proper means must therefore be devised so that the law teacher is required to go to law courts to gain the work experience, as this would not only enable him to have the work experience but will enable him to equip meaningfully the students who wish to join the profession. The following Practical Training Scheme shall be adopted by the Universities.

Paper - I: Moot Court, Pre-Trial Preparations and Participation in Trial Proceedings
Along with the topical subjects in Law the 5 year LLB Degree course takes in the moot court, pre-trail preparations and participation in trial proceedings, drafting, pleading and conveyancing, professional ethics, accountancy for lawyers and bar bench relations, public interest lawyering, legal aid and para legal services, etc. It is a means of improving in students the basic skills such as the skills of critical thinking, presentation skills, participation skills, and the skills to work as a team, the leadership quality, in addition to the boost in students’ knowledge of law. However, the present scheme for practical training ought to be built up with special attention.

Paper - I of practical training is divided into 3 major components, They are (a) Moot Court, (b) Observance of Trial in two cases, one Civil and one Criminal and (c) Interviewing techniques and Pre-trial preparations; each carry 30 marks total aggregating to 90 marks and 10 marks for the viva voce.

(A) Moot Court (30 Marks)
“Every student will do at least three moot courts in a year with 10 marks for each. The moot court work will be on assigned problem and it will be evaluated for 5 marks for written submissions and 5 marks for oral advocacy.”

In pragmatic aspect moot court requires higher significance, thus, the problem assigned for moot court may be increased up to 10 problems in a year with 10 marks for each. For instance these moot court problems may be upon the topics involving Constitutional Law, Civil Procedure Code, Contract Act, Evidence Act, and so on. This proposition may head an in depth study of the subject. These components divided in the Paper-I should be split into one single practical paper. It is pertinent to note that the moot problems ought to be in consonance with the law subject being taught in that particular Semester/Year as applicable. It is suggested herein that an External examiner may be permitted to conduct the practical examination, where the moot court examination may be conducted in presence of such external examiner will craft a transparency while dispensing marks.

(B) Observance of Trial in two cases, one Civil and one Criminal (30 marks)
“Students will attend two trials in the course of the last two or three years of LL.B. studies. They will maintain a record and enter the various steps observed during their attendance on different days in the court assignment. This scheme will carry 30 marks.”
The Observation of Trial in civil as well as criminal cases is constrained to one each. Whereas, if pragmatically observed there could be at least 5 civil cases and 5 criminal cases to be observed in a year with 10 marks for each. These observations of cases may be upon the topics involving Civil Procedure Code, Constitutional Law, Contract Act, Evidence Act, Transfer of Property Act and so on in civil cases and Criminal Procedure Code, Complaints, Criminal Miscellaneous petition, Bail Application, Memorandum of Appeal and Revision, and so on in criminal cases. This proposition may head an in depth study of the subject. It is pertinent to note that the moot problems ought to be in consonance with the law subject being taught in that particular Semester/Year as applicable. These components divided in the Paper-I should be split into one single practical paper and the practical training may possibly commenced by the third year of 5 year LLB degree course.

(C) Interviewing techniques and Pre-trial preparations (30 marks)
“Each student will observe two interviewing sessions of clients at the Lawyers’ Office/Legal Aid Office and record the proceedings in a diary which will carry 15 marks. Each student will further observe the preparation of documents and court papers by the Advocate and the procedure for the filing of the suit/petition. This will be recorded in the diary which will carry15 marks.”

Though the draftsman of the syllabi for the 5 year LLB degree course under discussion herein had the noble intention of imparting every possible knowledge of practical training in the 5 year course upon the student and this very intention led to the inculcation of interviewing techniques to be observed, said aspect is found to be impractical in the light of degree of confidentiality attached to Lawyer-Client interviews, which makes it highly impossible for a student to ‘record’ such an interview. In view of this ambiguity, it could be suggested that amputating this component from the list may pave way for other elemental practical papers.

Paper – II: Drafting, Pleading and Conveyancing
Paper II of the practical training is also divided into 3 major components, They are (a) Drafting, (b) Pleading and (c) Conveyancing, where drafting is a part of pleading, therefore both drafting and conveyancing carry 45 marks each total aggregating to 90 marks for 15 exercises (3 marks for each exercise) on various topics dealt in Part - B and Part - C herein below and the remaining 10 marks will be given in a viva voce examination which will test the understanding of legal practice in relation to Drafting, Pleading and Conveyancing.

(A) Drafting and (B) Pleadings
“1. Civil: (i) Plaint (ii) Written Statement (iii) Interlocutory Application (iv) Original Petition (v) Affidavit (vi) Execution Petition and (vii) Memorandum of Appeal and Revision (viii) Petition under Article 226 and 32 of the Constitution of India.
2. Criminal: (i) Complaints (ii) Criminal Miscellaneous petition, (iii) Bail Application and (iv) Memorandum of Appeal and Revision.”

(C) Conveyancing
“(i) Sale Deed (ii) Mortgage Deeds (iii) Lease Deed, (iv) Gift Deed (v) Promissory Note (vi) Power of Attorney (vii) Will.”
These civil and criminal pleading together comprise 14 exercises. At this juncture, 15 exercises are to be carried out with 3 marks for each exercise. It is similar in the conveyancing division with 7 exercises, where 15 exercises are to be carried out with 3 marks for each exercise. This method of performing the exercises and allotting gratuitous marks could be stretched out with the assistance of eminent draftsmen by including and excluding reliable topics linking the subjects in the practical year and also which are perceived to be beneficial in practical aspect.

It is also expounded that instead of delegating the powers relating to allocations of subjects under Rule 11 of Section – A, Part-IV of the Bar Council of India Rules (under the Advocates’ Act 1961) of the 5yr LLB Degree Course, the Bar Council of India while publishing the list of subjects may frame the syllabi as well with an object of universal system of Legal Education in India.

This, in addition would ease the Bar Council of India to review the working of the schools and to make proposals for reorganizing the Syllabi. Bar Council of India may perhaps, encounter a few hardships to increase the standard of study materials, but, with the assistance of profound lecturers in the country the task may be well accomplished with ease. These lecturers may while away the ambiguity of deletion and addition of subjects to be done in the Rule 9 (1) to (4), Section – A of Part-IV.

Paper - III: Professional Ethics, Accountancy for Lawyers and Bar Bench Relations
Paper - III of the practical training is divided into 4 materials such as (a) Mr. Krishnamurthy Iyer’s book on "Advocacy", (b) The Contempt Law and Practise, (c) The Bar Council Code of Ethics and (d) 50 selected opinions of the Disciplinary Committees of Bar Councils and 10 major judgments of the Supreme Court on the subject. The Written examination on this paper will have 80 Marks and the viva voce will carry 20 marks. In lieu of the written examination, colleges may be encouraged wherever appropriate to give the students, Seminars and Projects where they are expected to research and write persuasive memoranda on topics identified in the above subjects.

In these 4 materials one can easily perceive the stress of endeavor required in the lead of each subject. The stress put up and the marks allotted are extremely absurd. It is well evident that each subject is to be supported by 10 Supreme Court judgments, which carries 2 marks for each judgment aggregating 20 marks for each subject. Whereas the hardship involved by a student in procuring out of research 10 Supreme Court judgments on each subject deserves at least 5 marks on each judgment. It is furthermore appealed that the 50 selected opinions of the Disciplinary Committees are fuzzy and demands a swift change in design. Therefore, it is suggested that these papers could be divided into 2 parts with100 marks of each part where Mr. Krishnamurthy Iyer’s book on "Advocacy", and The Contempt Law and Practise, may form a part and The Bar Council Code of Ethics and 50 selected opinions of the Disciplinary Committees may be the other.

Paper - IV: Public Interest Lawyering, Legal Aid and Para-Legal Services
Paper – IV of the practical training carrying 100 marks will have to be designed and evaluated according to local conditions by the colleges in consultation with the Universities and State Bar Councils. It can be taught partly through class room instructions including simulation exercises and partly through extension programmes like Lok Adalat, Legal aid Camp, Legal Literacy and Para Legal Training. The Course should also contain lessons on negotiations and counseling, use of computer in legal work, legal research in support of Public Interest Litigation, writing of case comments, editing of Law Journals and Law Office management. The marks may be appropriately divided to the different programmes that each University might evolve for introduction in the Colleges under its control. Hence, it may be standstill without any replacement.

The teachers associated with the clinical education should preferably have some practical experience in law. Association of retired judicial persons, as visiting faculty would be instrumental in selecting suitable clinical experience for the students and enhance amongst the students the commitment to learn. It is also suggested that for the purpose of grant of recognition to law colleges a committee should be formed consisting of a member nominated by the Bar Council of India (and not by its Chairman only), a member to be nominated by the Hon’ble Chief Justice of India, who shall be a Judge of the Supreme Court or High Court and a member to be nominated by the Bar council of India, who shall be renowned person in the field of Legal Education

Conclusion
Legal education is an investment which, if wisely made, will produce most beneficial results for the nation and accelerate the pace of development. Of late, the role of a lawyer in a common social system is more than a skilled legal mechanic; he acts as a harmonizer and a reconciler. The legal education granted at the law schools should be streamlined to the conventional and contemporary needs of the legal profession. It is further recommended to the Bar Council of India that at least once in every five years constitute a commission to review the working of the School and to make proposals for reorganizing the syllabi of Legal Education.

The quality of Legal education has a direct impact on the prestige of the Legal Profession. We must, therefore, identify the areas of default and initiate corrective action to repair the damage. Unless a drastic surgery is undertaken without loss of time, the patient, that is Legal Education, will be fatally wounded and consequently the country’s justice delivery system will stand bereaved. These are some of the suggestions – food for thought – to repair the cracks in legal education – to arrest the rot.

All those connected with the maintenance of standards of Legal Education must, therefore, be prepared to take hard decisions to save the situation. A concerted action on the part of Bar, the Bench and the law teachers is called for to improve the deteriorating standard of Legal education. Act now – already it is late. If you fail to check the deterioration now, posterity will not forgive you.

By Sanjay H. Sethiya, Student of 5th Year LL.B., in BMS College of Law, Bangalore.

Email him at kishansanjay@yahoo.co.in

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