FREEDOM OF SPEECH AND ARUNDHATI ROY EPISODE: FROM THE PERSPECTIVE OF LAW ‘AS POSITED’ AND LAW AS ‘IT OUGHT TO BE’ - Guest Post by MURALI KRISHNAN, X Semester, NUALS

   Advocates and admirers of democracy measure the success and sanctity of an individual democratic institution by using the scale of ‘freedom of speech and expression’. The sacredness accorded to this freedom is arguably one of the most important yardsticks for the assessment of success in the implementation of democracy. Patanjali Sastri, J. rightly obserbed in Romesh Thapper v. State of Madras[1] that ‘freedom of speech and of the Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of popular governments, is possible.’ In such a setup, where the freedom under discussion is most malleable and ductile, thanks largely to the Constitution and the Judiciary, misinterpretation and misapplication of the same is inevitable and self constraint and wise selectiveness on grounds of equity, ethics and Constitutionalism on the part of media and Executive is the need of the hour.      

   It is in this context that the recent episode involving Ms. Arundhati Roy and City Magistrate of Delhi need to be examined from the viewpoint of the constitutional guarantee under Article 19(1) (a), the reasonable restrictions possible under Article 19(2), the various offences under the  Indian Penal code, 1860 and the jurisprudence underlying all these.

Pursuant to the orders of the City Magistrate of Delhi, the police have registered a case against Ms. Arundhati Roy on charges of sedition[2], promoting enmity between two communities[3], assertion against national integration[4] , intentional insult with intent to provoke breach of the peace[5] and statements conducing to public chief[6]. Quoting Ms. Roy: “Pity the nation that has to silence its writers for speaking their minds  …………"Kashmir has never been an integral part of India. It is an historical fact. Even the Indian Government has accepted this.” The context and the surrounding circumstances in which these words were used also need to be taken into account in order to assess the gravity of the statement in question and its legal implications. Ms. Roy had made the statement after her visit to Kashmir during a brief period of lull following heightened tension in the valley asserting separatism and calls against Indian Union. After her statement, hue and cry was raised by many sections, particularly right wing Hindu organizations for pressing charges of sedition against Ms. Roy.

   The Government after contemplation for a few days came with a press statement – issued on behalf of Home Ministry by P Chidambaram – that criminal prosecution of Ms. Roy would only aid the separatist elements as it would only be another tool in their kitty to sling mud at Indian democracy and Union. However, a plain reading of the Constitutional and statutory provisions providing for and restricting the right in question makes it obvious that the possibility of State being brought under contempt by certain factions cannot be an excuse under the law for the state not to prosecute a person who has exceeded the circumscribed limits of the right under question. Anyone in, any part of India, can through the local police or courts, get anyone hauled up for their views if they find this offensive. If you, for instance, in Chennai or Kakinada, say something which is reported, someone else in Gorakhpur or Agartala who take offence can walk to a local Magistrate and get you summoned there. This can be legally done and the offences are wide ranging too. Anything likely to offend against notions of national sovereignty, public order, religious or community feeling, anything ‘likely to incite’ on these or some other grounds is fair game.[7] It is the way our law is structured.[8]

The author does not have a shade of doubt that except for the offence of sedition under S. 124 A, and intentional insult under Section 504, Ms. Roy’s seems, prima facie, to be liable under the other provisions which have been invoked against her [that is, promoting enmity between two communities (S. 153 A), assertion against national integration (S.153 B), and statements conducing to public chief (S. 505)]. The issue under discussion here is not whether utterances of Ms. Roy seem, prima facie, fall under the head of the offence sedition as defined under S. 124 A[9] of the Indian Penal Code, 1860. As understood in English Law, sedition embraces all those practices whether by word, or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government[10]. In Niharendra v. Emperor[11], the Federal court held that mere criticism or even ridicule of the government was no offence unless it was calculated to undermine respect for the Government in such a way as to make people cease to obey it and obey the law, so that only anarchy can follow. But the Privy Council overruled this decision and held that the offence of sedition was not confined to only incitement to violence or disorder. In Kedar Nath v. State of Bihar [12], the court upheld the view taken by the Federal Court in Niharendra’s case that the gist of the offence of sedition is that the words written or spoken have a tendency or intention of creating public disorder and held that Section 124 A of IPC is constitutionally valid. From the above discussions, it is obvious that there is a lack of clarity when it comes to deciding whether a mere criticism of the Government, which has a tendency to create public disorder, would fall within the purview of Section 124 A. This would, in the opinion of the author, have to be decided in the light of facts and circumstances of the case. In the case on hand, the Government would have done well if it had asserted that there is no offence of sedition, prima facie, discernible in the case. But what is noteworthy is that the Union Home Ministry had sought legal opinion on the issue which suggested that a case could be made out under sedition. However, after taking political opinion, the Ministry decided not to file any case against Ms. Arundhati Roy. Subsequently, a statement was made that the prosecution is not undertaken for the reason that such a move would give unnecessary publicity to them and the handle to the separatists in the Valley. This, however, does not stand in the eyes of law and would amount to dereliction of duty by the Executive. Moreover, the ambiguity existing with respect to sedition and intentional insult does not exist in case of other concerned offences and hence, the State cannot offer any excuse under law for not initiating prosecution for the same against Ms. Roy.               

That is, the law as it stands today vigorously asserts action by the State against Arundhati Roy and Rule of Law forbids passiveness on its part on flimsy grounds like what the Government has resorted to in the instant case. Anybody who is disenchanted with this has every right to call for changing the law. Quoting The New Indian Express once again: “It is interesting that Roy has, in her defence, simply appended a set of speeches by earlier prime ministers on the subject of Kashmiri Peoples’ wishes and feelings, asking what she has said that is so different. But even if this were not so, she and other holders of such opinions have the right to express it. This is, we add, the real Indian Heritage, the freedom to think and to explore. Our law blocks this? Then, we are clear: change the law.” Thus, so long as the law remains as it is, the State is obliged to take Ms. Roy to Court.            

The argument above finds support not only in law but also in one of the cardinal principles of democracy – rule of law. It is law which rules the system and not vice versa. The object and sacrosanct duty of the system, which itself is a creation of the law, is to be a tool in the implementation of the law which has created it. A natural corollary is that from the President of the Union to a layman, all are equal before the eyes of law. However, the law also empowers the system to amend the law within the constraints of the basic document.

The second issue in this chain of events pertains to the directive of the City Magistrate to the Delhi police to register FIR, and the legality of the same under the provisions of Code of Criminal Procedure, 1973. Section 190 of the Code of Criminal Procedure, 1973 provides for cognizance of offence by Magistrate. Accordingly, a Magistrate may take cognizance of any offence - 

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed..

However, Sections 195 to 199 are exceptions to the general rule contained in Section 190 regarding taking cognizance of an offence.  Among them, Section 196 is of special concern. According to the said Section no court shall take cognizance of  -

(a) any offence punishable under Chapter VI or under Section 153 – A, Section 153 – B, Section 295 – A or Section 505 of Indian Penal Code or,

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in Section 108 –A of IPC,

except with the previous sanction of the Central Government or the State Government.      

The object of this restrictive provision is to prevent unauthorized persons from intruding in matters of State by instituting prosecutions and to secure that such prosecutions, for reasons of policy, shall be instituted under the authority of the Government. [13] In the instant case, the City Magistrate of Delhi has issued directive to the police to register a case on a complaint by a private person (Sushil Pandit). Even though the court has only directed the police to register a case, it has done so after making a preliminary inquiry as to whether an offence is, prima facie, manifest or not. This, I submit is against law as Court seems to have looked into the complaint of the private person without the sanction of the state which is required under law. Section 156 (3) does empower the Magistrate to order the police to investigate. However, this is subject to Section 196 because only then the purpose of the said exception under S. 196 would be served. That is, if what has transpired is allowed and Section 156 (3) is read over Section 196 and isolated from it, it would amount to defeating the purpose and object of Section 196 even though the action of the court may not, prima facie, amount to ‘taking cognizance’.   

Thus, the writing is crystal clear. Implement (duty of the Executive) the law as it is (law as posited or Positive law); leave the recognition of “ought to be jurisprudence” to the Judiciary by interpretation and implied incorporation; change the law (duty of Legislature) if it is found to be wanting from either of the perspectives (further recognition of “ought to be” jurisprudence).              

Above all, let there be no judicial over activism.

---

[1] AIR 1950 SC 124.

[2] S. 124 A of Indian Penal code, 1860.

[3] S. 153 A of Indian Penal Code, 1860.

[4] S. 153 B of Indian Penal code, 1860.

[5] S. 504 of Indian Penal Code, 1860.

[6] S. 505 of Indian Penal Code, 1860.

[7] Democracy is about Dissent, The New Indian Express, Wednesday, December 1, 2010, p. 8; Article 19(2) of the Constitution lays down that “nothing in sub-section (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”;                 

[8] Ibid.

[9] Section 124 A of the Indian Penal Code, 1860 which lays down the offence of sedition derives its sanctity from the afore mentioned Article; Section 124 A of Indian Penal Code, 1860 reads as follows: “Whoever, by words, either written or spoken, or by signs, or by visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with fine.

Explanation 1. – The expression “disaffection” includes disloyalty and all feelings of enmity

Explanation 2. – Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3. – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”.                

[10] R. v. Salliven, (1868) 11 Cases 55.

[11] AIR 1942 FC 22.

[12] AIR 1952 SC 955.

[13] See 41^st Report, p. 112, para 15.102.

CLAT 2011

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Summer School on Constitutional Law

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History of Legal Education in India: Guest Post by Adv. Devadas T.M., LL.M. III Semester, NUALS

STRIPPED LAW thanks Mr Devadas T.M. for sending his guest post. Devadas T.M. is a 2nd year student of LL.M. at NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, Cochin. The following is the text of Mr.Devadas's post.

History of legal education in a democratic society cannot be over emphasised. Knowledge of law increases one understands of public affairs. Concept of ‘Dharma’ in Vedic period also includes dispensation of justice by King who acquired specific legal knowledge. There was a time in the human evolution when law was a part of ethics and religion, of morals and values, of philosophy and consciousness. Ancient civilization particularly that of India, conceived a legal order based on the compendious Sanskrit expression “Dharma”. The role of ethics and philosophy in explaining social problems and giving directions for social action is not adequately appreciated today. However, in making and interpreting law, no society can afford to ignore Ethics. One can say that law is an applied ethics. No civilised society can be structured without developing its moral fibre and consciousness either through law, religion, education or other instruments of social control. The gurushishya parampara has existed ever since Vedic era making education an integral part of human development. It is education which ultimately results in shaping or transforming the whole society in to human civilization. Spiritually, it is believed that the life on the earth is regulated by the laws of the Lord or the Divinity. It is 'rule of law', that draws the essential difference between human society and animal world. It is the legal education that plays a pompous role in promoting social justice. Education or awareness of laws, characterize the lawyers as 'Social engineers'.

A study of history reveals that in modern times shows that it is intellectuals alone who can give leadership to the nations. We can find that it was the lawyers who gave leadership to most nations. For example, during the great American Revolution of 1776, most of the American leaders were lawyers e.g. Thomas Jefferson, John Adams, James Madison etc. In the great French Revolution of 1789, about two-thirds of the members of the French National Assembly were lawyers, e.g. Robespierre, Danton etc. In the American Civil War of 1861-65, the American President who led the nation to victory over slavery was a lawyer-Abraham Lincoln. In the Russian Revolution of 1917, the leader of Russia was Lenin who was a lawyer. In our own independence Struggle, most of the leaders during that period were lawyers e.g. Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Sardar Patel, CR Dass, Dr. Rajendra Prasad, Rajaji etc. The lawyers who gave leadership to the nations and not doctors or engineers or teachers or other professionals because of the reason those lawyers are intimately connected to the Society. Doctors deals with medical problems, engineers deals with technical problems, teachers deals with academic matters etc, but it is lawyers who deals with the entire society.

In modern India legal education came in to existence in 1885. Numerous committees were foamed to consider and propose reforms in legal education. Constitution of India basically laid down the duty of imparting legal education. Advocates’ Act, 1961 which brought uniformity in legal system. In the changed scenario the additional roles envisaged are that of policy planner, business advisor, negotiator of any interested groups etc. In the Era of Globalisation legal system in India include catering the needs of new brand consumers or clients namely foreign companies, collaborators etc. Strengthening our legal education system is need to face the new challenges. Imparting of legal education has always been considered as one to the noblest profession. Legal education which is part of general education cannot be viewed in isolation. Today, legal education derives its impetus from the economic, social and economic and political set up of the society.

Significance of Legal Education

'Law is the cement of society and an essential medium of change'. The significance of legal education in a democratic society cannot be over-emphasized. Knowledge of law increases one understands of public affairs. Its study promotes accuracy of the expression, facility in arguments and skill in interpreting the written words, as well as some understanding of social values. It is pivotal duty of everyone to know the law. Ignorance of law is not innocence but a sin which cannot be excused. Thus, legal education is imperative not only to produce good lawyers but also to create cultured law abiding citizens, who are inculcated with concepts of human values and human rights.  We must have a legal education which can fulfil the need of the society and country as well. We are no longer laissez-faire but a welfare State and in welfare society law plays a very important role in every affair of human being. Law serves as an important instrument to achieve socio-economic development[i]. Today law is not viewed merely as an instrument of social control but also an instrument of social change. The aim of legal education should be not only to produce good lawyers but also create cultured, law abiding citizens who are inculcated with concepts of human values and human rights who can serve humanity in various capacities such as, administrators, law teachers, jurists, judges, and industrial entrepreneurs etc. As far as creation of good advocates and solicitors is concerned, the legal education should aim at equipping them with legal techniques and professional skills. An Advocate must be tolerant, must listen patiently other man’s point of view and not hazard opinions without some basis. He should be rational, secular keeper, willing to work hard, competent to communicate having good expression, must have critical understanding of human institutions and values. Legal profession is objectively in the position of producing Statesmen. This is due to two reasons

(1) Lawyers belong to an independent profession. They are not subordinate to the government or to anyone else.

(2) They are directly in contact with society in its entirety as they have to deal with all kinds of problems of people from all sections of society, unlike say, doctors who are confined to technical problems. Hence lawyers are the people who are most conversant with the problems of society as a whole.

 A well administered and socially relevant legal education is a sine qua non for a proper dispensation of justice. Giving legal education a human face would create cultured law abiding citizens who are able to serve as professionals and not merely as business men.

The quality and standard of legal education acquired at the law school is reflected through the standard of Bar and Bench and consequently affects the legal system. The primary focus of law schools should be to identify the various skills that define a lawyer and then train and equip its students with requirements of the field of law.

History of Legal Education

Legal historians record instances of legal practitioners indigenously known as ‘Pleaders’ or ‘Niyogis’ representing parties in litigation at least from the time of Manu Smriti.  There are difference of opinion on the exact role these ‘lawyer’ played in ancient times and whether they aware at all organized as a profession. Legal system in India is the natural outcome of its deep roots in ancient Indian traditions. It has existed in India from the dawn of Aryan civilization. But there are different viewpoints in the matter of legal education in ancient India. Dr.Kane quotes Sukraniti IV 5, pp.114-117 to say that a person appointed to represent a party should get as his wage 1/16, 1/20, 1/40, 1/80, 1/60 part of the amount in dispute. K.P.Jayaswal observes that professional lawyers existed in India at least from the Manu Smriti. According to Dr.Kane, a person well versed in Dharma Shastra and procedure of law could be appointed as the representative. The King should punish any representative who took wages without having these qualifications. According to P.V.Kane there could be some people who represented others in the Kings Court, but the opinions of such legal experts were not binding on the King.

Legal Education in Ancient India:

In ancient India law was understood as a branch of Dharma. It is difficult to draw a distinction between secular law and religious ordinances in Ancient India[ii]. The Vedas were the original sources of law, and the Smritis announced the message of Vedas and Smritikars were great jurists. Smritikars, commentators and Nibandhakars [essayists] were the legal guardians of law. King made laws were also interpreted, thus, the commentators were virtually law-makers. Sadachara, custom, Nyaya or Yukti were the base of legal process in Ancient India. The King was advised by a Sabha which had both advisory and executive functions. The parishad was an expert committee comprised of ministers of officials, generally Brahmans, who advised the King authoritatively on law.[iii]

 The concept of dharma, in the Vedic period, can be seen as the concept of the legal education in India. Although there is no record of formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the King through his appointees who in turn were persons of known integrity and reputation of being fair and impartial. The guiding force for the King or his appointee was the upholding of the Dharma.

Legal Education in British India

Britishers came to this country for the purpose of trade, which they started through a company popularly known as East India Company formed in 1600 in England. In the beginning the courts were presided by merchants who were having very rudimentary knowledge of law, but later on legally trained persons were put for the job.

First British court was established in Bombay in 1672 by Governor Gerald Angier. The first Attorney General appointed by Governor was George Wilcox who was acquainted with legal business and particularly in the administration of estates of deceased persons and granting of probate. He made provision for parties to be represented by attorneys and fixed the counsel fee a little more than Re.one. First concrete step in the direction of organising legal profession was taken through Regulating Act of 1773 which empowered to enrol advocates and Attorneys-at-law to the Supreme Court.  The Supreme Court was established in Fort William in Bengal through a charter issued in 1774. At that time Indian Lawyers had no right to appearance in the Courts. The position was same when the Supreme Courts with the same jurisdiction and power were established at Bombay and Madras later. The Bengal Regulation VII of 1793 which created for the first time a regular legal profession for the company’s courts, which allowed the appointment of Vakils or native pleaders in the courts of civil judicature in the provinces of Bengal, Bihar and Orissa. In 1861 three High Courts were established at Calcutta, Madras and Bombay. At this time three bodies of practitioners viz, advocates, Attorneys and Vakils were in existence.  Advocates were the barristers of England or Ireland but the Vakils were Indian Practioners. According to Clause 19 of Letters Patent 1865 of the High Court of Calcutta empowered the court to approve, admit and enrol such and so many Advocates, Attorneys and Vakils as the High Court shall deem fit. As already state Supreme Court not allowed but High Courts were allowed them which increased the prestige of Indian Lawyers. Legal Practioners Act, 1879, provided for enrolment to only those practioners who had taken LL.B degree from Indian Universities. Under Section 41, the High Court could dismiss any advocate or suspend him from practice by giving an opportunity to defend him. Bar Councils Act, 1926 unified two grades of legal practioners, the Vakils and Pleaders, by merging them in the class of advocates. It also provided for making rules for giving facilities of legal education and training.

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 in Bombay and Madras and Hindu College at Calcutta.  At that time the primary aim of legal education was to equip law students so that they could help the lower courts and the High Courts in the administration of justice by enrolling themselves as Vakils or becoming judicial officers, and thus serve the interests of the Administration.[iv]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.  Initially a law school had to be a self – financing institution, and if possible a money making concern so that it could feed the teaching of other disciplines in the University. There is no tradition of legal research and academic legal training. 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. The language of the British statutes being English, so any Indian who learnt English could study law and was considered qualified to practice the profession. At that time law classes were attached with arts colleges. However, if one aspired to something higher, he could go to England and join the Inns court, provided one could afford it.

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 such as

·        Calcutta University Commission [1917-1919],

·        University Education Commission, was set up in 1948-49,

·        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 [14th] Report 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 and made certain recommendations.

1.      Only graduates should be eligible for legal studies.

2.      The theory and principles of law should be taught in the law schools and the procedural law and the law of practical character should be taught by the Bar Council.

3.      The university course should be for two years and the Bar Council training should be for one year.

4.      The principal method of teaching being lecture to be supplemented by tutorials, seminars, moot courts, and case methods.

5.      Admission to law schools should be restricted on merit and seriousness.

6.      All India Bar Council should be empowered to ascertain whether law colleges maintain the requisite minimum standards and should be empowered to refuse recognition for law colleges.

The recommendations accepted by All India Law Conference [1959] and also the All India Law Teachers Association. After the year 1961 the Bar Council of India was empowered to lay down standards of Indian Legal education. In 1967 this body established a uniform three years LL .B Course with annual examinations and prescribed compulsory and optional subjects to be taught at LL.B level. Most of these subjects were traditional topics and there is no guidance relating to curriculum planning.

            It depicted a very gloomy picture of legal education. It was only from 1958 that many universities switched over to three year law degree courses. 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.

Historical Background of Legal Education in Independent India

With the Independence the situation has completely changed. In 1950 we gave ourselves democratic foam of government. The rule of law became the foundational doctrine.  It is also clear that a polity based on rule of law would require a legal profession sufficiently skilled and possessing knowledge of laws and their principles in order to maintain and preserve the legal system.

The Advocates’ Act, enacted in 1961, became the focal point 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 these 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 in 1967 that it became the burdensome task of 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, which were incorporated into the pre-existing regulations, have been amended from time to time. 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 November 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 a five year integrated course after an intermediate (10+2) examination (from 1st class to 12th class - total period of 12 years of study). The three year course itself came to be restructured into a semestered 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. The Advocates’ Act, enacted in 1961, became the focal point 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 these 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 in 1967 that it became the onerous task of 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.

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-sec (1) of Sec.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 a studies in law . Under clause (i) of sub-sec (1) of Sec. 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 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 at end, through adequate funding, creating of senior posts and other means.

Commissions, Committees and Statutes.

The objectives of commissions, committees and reports etc was to give their recommendations on reforming legal education in India. The main questions before all the committees, commissions and seminars etc. Were,

1.      What should be the pattern of the legal education be impacted by law colleges and law faculties of the universities to fulfil their mission.

2.      Should it be exclusively academic and theoretical or shoud it is exclusively practical and procedural?

3.      Should it be meant for any research purposes of law?

First Indian University Commission, 1902

Recommendations of Chagla Committee, 1910

Bills on Legal Education 1936-49

Bombay Legal Education Committee, 1949

All India Bar Committee, 1951-52

Rajasthan Legal Education Committee, 1955

Law Commission of India, 1958

Advocates Act, 1961

Gajendra Gadkar Committee, 1964

All India Seminars on Legal Education, 1972

Establishment of Bar Council of India Trust, 1974

Legal Education Seminar, Bombay, 1977

First National Convention on Legal Education, 1977

National Conference on legal Education, Hyderabad, 1981

All India Law Teachers Conference, 1981

Report of Bar Council of India, 1982

All India Council for Technical Education Act, 1987

Report of the Curriculum Development Centre in Law, 1990

Bar Council of India Training Rules, 1995

Report of Professional Legal Education Reform Committee, 1996  

The Journey of Legal Education, from the crossroads to modernization

Prior to the introduction of five year law course, most of the students who performed well in their Intermediate Education aspired to study medicine, engineering, computers, business management and accounting. Law as a profession and legal education as a discipline was not a popular choice of the students. Unlike India, the situation prevalent in England, America and in many other developed countries is convincingly different. The admissions to law schools in these parts of the world are highly competitive. The end result is that the 'creams' among students opt for law by choice and not as the last resort and thus richly contribute their Shares to the society as lawyers, judges, paralegals and academics.
Though, five year law schools are doing their bit to bring about a change; but more effectively the perspective of prospective law students can be changed by a healthy pre-legal education at the school level.

New Challenges to the Legal Education in India:

Half a century ago, the main purpose of university legal education in India was not the teaching of law as a branch of learning and as a science but simply to impart to students a knowledge of the black letter law, that is, certain principles and provisions of law to enable them to enter the legal practice exclusively for local needs. Gradually this perception changed and the process of reform in law and legal education was initiated. The real break came in 1990s when the new challenges posed by scientific and technological revolution and greater interaction between nations, trade in goods and services, information technology and free capital flow across international boundaries made the world a global village. Consequently, the concept of “local practice” widened to that of “transnational practice” in the context of globalisation and opening up of most of the economies of the world.

Roscoe Pound directed to particular attention new aspect of the lawyers’ role in modern society. He said that the worldwide economic unification is challenging the self sufficiency n the systems of law. He pointed out that law transcended local and political limits and has become an economic necessity. He said “Even more the development of industry carried on with instrumentalities and under conditions increasingly dangerous to life and limb and under conditions creating ecological problems and the mechanizing of every activity of life likewise threatening injury to everyone, have been creating new legal problems calling for revision of the old doctrines and finding out a new means of promoting and maintaining a general security......thus the science of law must be increasingly comparative. Whether we are dreaming of a world law or thinking of further development of our own law, to suit to the worldwide problems of general security in the present and immediate future, the methods of jurist must have a base of comparison. Comparative law and international law have achieved such vital importance in current life that they have become an essential part of legal education. The lawyer of today has to play a role in influencing world policies and building up the future of mankind.”[v]

How should the legal profession and legal education respond to the new challenges? Never before in history has the need for sound thinking and planning on all issues been felt so intensely as today. Unless the topics of universal application are integrated into legal education in developing countries, our lawyers and those of other countries would not be able to compete in the transnational marketplace. In the present day, an innovative programme of integrated interdisciplinary legal learning and in the new areas such as Comparative Law, information technology, intellectual property, corporate governance, human rights, environment, and international trade law, investment, and commerce, transfer of technology, alternative dispute resolution and space is important. Comparative Legal education for professional excellence is needed in these and other areas on a global basis.

The world's problems require international co-operation and solutions, especially after the initiation of the liberalisation and globalisation process in today's world of increasing international trade and inter-dependence. The recent trend is that most of the agreements are construed internationally and the member countries are obliged to implement them at the domestic level. It is necessary for lawyers to understand the political, cultural and social influences on the legal systems of other countries and, by using that knowledge, to forge strong relationships between parties. Some observations of David Gerber are apposite in this context. For instance, Gerber calls for greater attention to theory in the broad sense of conceptual structure, because theories are the mechanisms for structuring information and knowledge effectively. The object of the entire exercise is to structure knowledge about foreign legal systems. Analogous to this viewpoint is the model suggested by Ugo Mattei. He argues for a classification of legal systems, which he refers to as taxonomy of legal systems for the purpose of learning from each other by rethinking the traditional boundaries drawn in the context of changing nature of global politics. This situation necessitates revisiting the classic categorisation of legal systems as civil, common and socialist.

For a new beginning, one has to think within the paradigm of change and bring to the forefront the need for developing new approaches to the ongoing challenges posed by globalization, which should be prioritized in the framework of legal education in a country such as India, in order to cope with the current and future pressures.

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[i] Maxwell Cohen, ‘Condition of Legal Education in Canada”, 28 Canadian Bar Review, (1950) p.249 referred in Legal Education in India: Some suggestions AIR 1999 Journal 168 at p.169

[ii] S.K.Sharma, “Legal Profession in India” Sociology of Law and legal Profession, Ed.(1984) p.43 and also see P.V.Kane, “History of Dahrmasatras,6 volumns, Poona, 1930-62

[iii] Derret J Duncan.M., “Essays in Classical and Modern Hindu Law.

[iv] Legal Education in India: Some Suggestions, Dr.K.P.Singh, AIR 1999 Journal 168 at p.169

[v] Legal Education: Modern Trends and Challenges” , by Dr.Shobha Saxena, AIR 1999 Journal at p.160