Twitter
Facebook
Flickr
RSS
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.
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.
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.
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.
[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
Posts
