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Prof Madhav Menon asks to split law courses, law unis to step up & more in DSNLU foundation day speech

Prof NR Madhava Menon supported the plan to segregate law courses in India into academic courses and professional courses, and suggested the ways in which to achieve this division and other improvements in the current design of Indian legal education.

The founding vice chancellor of NLSIU Bangalore and NUJS Kolkata, Menon, was addressing DSNLU Vishakhapatnam on its ninth foundation day on 23 September 2016.In his lecture titled “Legal Education for Resurgent Andhra Pradesh” Menon made the following suggestions.

Law universities should also be think tanks

We need to re-design our legal education programmes if we have to promote the constitutional goals. I would like to argue that the Bar Council of India which was entrusted to manage legal education standards under the Advocates Act in post-Independent India failed to draw its inspiration from the Constitution and went about its task with the same colonial mind-set of producing court-centric litigators for an adversarial adjudicatory system as the only object of legal education! Otherwise, how do you justify perpetuation of by and large the same curriculum and standards of education with hardly any difference which the Constitution was expected to make in the legal community of the Republic.

We need legally informed people with appropriate skills and mind-sets to manage the executive and legislative wings of the Government both at the Centre and in the States. We need to prepare the citizens for responsible citizenship aware of their rights and duties to be able to organize democracy under rule of law. In other words, Law can function as an instrument of social engineering and tool for national reconstruction only if the institutions of Government and the personnel involved in the administration appreciate the philosophy of the Constitution and the potentialities and limitations of legal instruments to implement that philosophy. This is a task which involves education, research, training and extension activities which Law Universities are better suited to undertake along with other institutions of higher learning. This may necessitate Law Universities undertaking continuing legal education and distance education in law in a big way according to the needs and demands for legal services. This would require Law Universities developing research methodologies for cutting edge research on problems of society including its economic and political systems with a view to propose policy options for decision makers as well as for law reform.

Split law courses into ‘academic’ and ‘professional’

It is gratifying to note that the Bar Council of India has taken up the directive of the [Madras high]court seriously and the matter is being considered at its Legal Education Committee for a final call on splitting of legal education into professional and academic streams.

Some people think that out of 1400 law teaching institutions operating at present in India, not more than 500 to 600 of them qualify to be recognized for preparing students for professional purposes. Others may improve their faculty strength, infrastructure and admission process if they want to be part of the professional league. Meanwhile, instead of closing down those institutions may continue to be teaching law for academic purposes. The Council may possibly invent a bridge course of an year or two for the graduates of the academic stream to become eligible for enrolment for legal practice.

Transition into the profession through Legal Incubation Clinics

For meritorious, career-minded and hard-working students, it should be possible to complete the class-room based subjects of study in the initial four years of the 5-year LLB programme, leaving the entire fifth year for practical training on field-based apprenticeship carefully planned and supervised by the Legal Incubation Centre of the college thereby effecting a smooth transition of the student from being just a law graduate to a lawyer equipped to take on professional responsibilities related to the chosen area of legal practice at the end of five years.

Continuing Legal Education programs

Bar Councils should set up continuing legal education centres by themselves or in association with Law Universities and few leading law colleges and train the trainers to manage them on modern lines

Given the indifferent state of legal education prevailing today, it is the responsibility of the Bar Council to ensure that they have the minimum professional competence before they exercise the right to practice. There is no provision for compliance of this minimum requirement; nor are there CLE centres to provide the training needed for the purpose. An “Introduction to Legal Practice” course for new entrants ought to be offered for a duration of 3 to 4 months which includes an internship in a law office for three months, to give the competence and confidence for responsible legal practice.

Full speech

LEGAL EDUCATION FOR RESURGENT ANDHRA PRADESH

Prof.(Dr.) NR MADHAVA MENON

After the division of former State of Andhra Pradesh into Telengana and Andhra and the loss of Hyderabad to Telengana, the new Andhra State under the leadership of the visionary Chief Minister Mr. Chandrababu Naidu, is seeking to build world-class infrastructure with state-of-the-art facilities promising a high quality of life to the people. Naturally, this is an occasion for everybody involved in the reconstruction of the new State to search new ways of thinking on all aspects of governance including delivery of public services. In this context, the Sanjivayya National Law University, the only law university in the State, has to reflect on what the demand for legal services and access to justice are going to be in future and construct a plan for legal education accordingly. I thought of making few submissions in this regard for you to ponder over on this Foundation Day Lecture of the Law University. Before I do so, let me thank my good friend and colleague Prof. V KesavaRao, the Vice-Chancellor in-Charge of the University for being kind to invite me to be present on this important occasion.

University for Legal Studies : A New Concept in Higher Education :

A Law University is different from conventional universities in several respects. It is closer to the IITs and IIMs in organization and management. Law University focuses on legal studies not only for the practice of law but also for looking at law in social relations, law-in-development, law-in-governance and law in the promotion of the Constitutional Vision of an egalitarian social order securing the dignity of the individual and the unity of the Nation. In this regard, Rule of Law is the greatest contribution of civilization to human kind for peace, progress and sustainable development. However, in constructing the laws and legal institutions, as well as in administering them, societies have not been successful enough with the result, justice and fairness in all transactions of nation-building still elude mankind in different degrees everywhere. India is a country with a huge population full of diversities and inequalities struggling to create a just and progressive society through rule of law and democratic processes. The agenda is set in the Preamble to the Constitution in the following words :

Preamble

WE, THE PEOPLE of India, having solemnly resolved to constitute India into aSOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and tosecure to all its citizens :JUSTICE, social, economic and political;LIBERTY of thought, expression, belief, faith and worship;EQUALITY of status and of opportunity; and to promote among them all;FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949,do, HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTON

Given the above constitutional vision, how would the legal and judicial system secure Justice, social economic and political to all its citizens assuring the dignity of the individual and the unity and integrity of the Nation? What laws are required and how legal services need to be organized? Simply stated, the agenda for legal education in the country is manifest in the Preamble to the Constitution and in the history of Freedom Movement. It is a task aimed at organizing national re-construction through legal instruments and social engineering through democratic processes.

Unfortunately for the country, having adopted a liberal, democratic Constitution, the laws and institutions of colonial days were not changed immediately to suit the constitutional architecture, but allowed to continue till they are amended or repealed in course of time. Naturally there was delay and distortion in implementing the Constitutional Dream because of the pre-existing dysfunctional laws and institutions. An example will suffice to illustrate the point. For two and a half decades after Independence the Parliament and the Judiciary were at loggerheads in implementing the Zamindari Abolition Act under which crucial land reform and social justice proposals of the Republic were involved. Again, a Uniform Civil Code remains a distant dream projecting and perpetrating the inequalities and inequities of personal laws. The Police could not yet be modernized or the Police Act revised in tune with the Constitution despite repeated court interventions and directions. Our constitutional history is replete with instances where every aspect of governance had to be judicially challenged for being revised to suit constitutional standards of morality and good governance. Still the work is in progress and no one knows how long it will take to make all laws and legal processes in tune with the constitutional philosophy and standards.

My object in highlighting the dysfunctionality between the laws and the Constitution is to invite your attention on how we need to re-design our legal education programmes if we have to promote the constitutional goals. I would like to argue that the Bar Council of India which was entrusted to manage legal education standards under the Advocates Act in post-Independent India failed to draw its inspiration from the Constitution and went about its task with the same colonial mind-set of producing court-centric litigators for an adversarial adjudicatory system as the only object of legal education! Otherwise, how do you justify perpetuation of by and large the same curriculum and standards of education with hardly any difference which the Constitution was expected to make in the legal community of the Republic.

The situation drifted for almost four decades since the adoption of the Constitution when in 1987, a five-year integrated LLB curriculum was introduced under the first ever law university in the country called the National Law School of India University, Bangalore. What did it do to relate legal education to the Constitutional goal?

Firstly, it conceived legal education in terms of justice delivery and access to justice needs of the people. Law is only a means to an end, that is justice. As medical education is ultimately concerned with health rather than diseases, legal education ought to be primarily concerned with ‘Justice’ rather than disputes. And when you talk of Justice, the Preamble to the Constitution reminds us of three types of justice ie. social, economic and political. And the curriculum for law education must reflect these three dimensions not only in terms of dispute resolution but also in terms of policy development and institutional arrangements. This perspective led to what is called social context education under the Five Year LLB programme. The idea is to let the students learn legal issues and justice needs in the context of societal relations and practices in which they arise. The curriculum that emerged out of this perspective had several social science subjects linked to appropriate law subjects making the study of law integrated, inter-disciplinary and contextual. Of course, there were several challenges initially in terms of study materials, teaching methods and performance assessment which were overcome with dedication, experimentation and innovation.

Secondly, the new curriculum brought into the mainstream, the teaching/learning of skills of advocacy, advocacy not only in courts but in every platform involved with governance and justice delivery. Clinical education activities in the law school as well as in communities provided ample opportunities for students while studying law to have experiential learning of law in action. Throughprogrammes under the legal services clinic, through internship during vacations and through a series of simulation exercises at the law school, students learnt skills of advocacy for maximizing social justice and the essentials of professional ethics to promote wider public good. The strength of the Five-Year LLB programme over its three year counterpart is essentially the skills training which the students get under the former. Legal research and legal writing skills also are considerably improved when under the Five Year LLB programme, students are made to do projects in every subject and write reports for academic credits. There is no substitute for learning by doing in professional legal education and the function of the law university is to provide as many opportunities as possible for the student to learn through clinical education activities.

However, a University for Legal Studies, cannot be content with graduating few professionally competent and socially sensitive lawyers and judges for administering the justice delivery system. Justice delivery in a country of India’s size and complexity is not the exclusive function of courts and tribunals. Nor the Constitutional Dream can be accomplished through dispute settlement processes alone. We need legally informed people with appropriate skills and mind-sets to manage the executive and legislative wings of the Government both at the Centre and in the States. We need to prepare the citizens for responsible citizenship aware of their rights and duties to be able to organize democracy under rule of law. In other words, Law can function as an instrument of social engineering and tool for national reconstruction only if the institutions of Government and the personnel involved in the administration appreciate the philosophy of the Constitution and the potentialities and limitations of legal instruments to implement that philosophy. This is a task which involves education, research, training and extension activities which Law Universities are better suited to undertake along with other institutions of higher learning. This may necessitate Law Universities undertaking continuing legal education and distance education in law in a big way according to the needs and demands for legal services. This would require Law Universities developing research methodologies for cutting edge research on problems of society including its economic and political systems with a view to propose policy options for decision makers as well as for law reform.

In short, Law Universities in States (and there are twenty of them as on today) are not just to replicate the Bangalore model of 1980s blindly, but to think of State-specific, country-specific and region-specific programmes of education, research and extension, independent of the BCI curriculum. This is not to say, the BCI curriculum is to be ignored. It is to emphasize that Law Universities, unlike law colleges, have a larger function to perform in which they are not to be guided by BCI or any other regulatory body, but the country’s Constitution and possibly UN Millenium Development Goals.

Separate Professional Legal Education from Academic Programmes in Law :

An observation made by a Division Bench of the Madras high court in SR Deepak vs. TamilnaduAmbedkar Law University &Ors. decided on 02.02.2016 (WA No.1632 of 2015 and MP No.1 of 2015) provides a strategy for professionalizing legal education : “….. Unfortunately, steady degradation in the legal profession is a consequence of the improper admission and inefficient legal education. The legal profession has become a course of last resort. Legal education is both a technical and professional education which requires strict scrutiny before admission to the course and also maintenance of high standard ….. (At the same time) legal education is a sine qua non for development in a society. There should be therefore two courses, one for professionals and the other for academics (and public in general) intending to pursue the degree for acquiring legal knowledge. The Bar Council of India must consider the issue as to whether the law degree course has to be split into two streams, ie., one for professionals who intend to take up the profession, wherein a strict educational standard is to be maintained and one for others who intend to prosecute law degree in pursuit of knowledge in law. We hope and trust, in all earnestness, that the Bar Council of India shall examine the issue with the help of the experts in the field and take a conscious and considerate final call in this regard.”

It is gratifying to note that the Bar Council of India has taken up the directive of the court seriously and the matter is being considered at its Legal Education Committee for a final call on splitting of legal education into professional and academic streams. It is interesting to recall that the Bar Council of India on the advice of its Legal Education Committee on the eve of introducing the 5-year Integrated LLB course in 1982 did decide to distinguish professional legal education from what it called liberal/academic legal education. In The Preamble to the Legal Education Rules published in 1982, BCI did declare that its responsibility for legal education is limited to the professional stream and it is open to the universities and colleges in the country to impart instruction in law courses for non-professional purposes. It was left to the Madras high court to remind the Bar Council the consequences of neglecting to implement its own decision taken 35 years ago to use its powers for maintenance of standards in the education of only those who seek to enter legal practice.

The Bar Council of India has been tightening its role of inspecting and accrediting law teaching institutions in recent years and forcing colleges to close down if they do not have qualified teachers in adequate numbers and the minimum level of infrastructure support. At the same time, the Council let many more colleges to come up and that too in places where there is an over supply of law teaching institutions. There is no incentive from the Council to produce mediators and conciliators who are on increasing demand at all levels of the justice system. It is in this context the Madras high court suggestion to split law courses into professional and academic need to be considered with all seriousness for immediate action. The inspection/recognition process of the Bar Council has to be geared to accomplish this task within the next few months. Some people think that out of 1400 law teaching institutions operating at present in India, not more than 500 to 600 of them qualify to be recognized for preparing students for professional purposes. Others may improve their faculty strength, infrastructure and admission process if they want to be part of the professional league. Meanwhile, instead of closing down those institutions may continue to be teaching law for academic purposes. The Council may possibly invent a bridge course of an year or two for the graduates of the academic stream to become eligible for enrolment for legal practice.

The goal is to compel law colleges not just to produce LLB degree holders but endeavor to produce legal practitioners with a major focus on skills, attitudes and ethics necessary for legal practice.

Lawyer Incubation Clinic in Professional Colleges :

There can be an alternative method to give students appropriate skills training and professional attitudes if law schools are inclined to become professional colleges and prepared to support the programme with adequate resources. Let professional colleges have Lawyer Incubation Centres (LIC) under the supervision of a senior clinical professor who is to ascertain the career choices of students and guide them through appropriate courses, projects and internships to acquire the necessary knowledge, skills, ethics and attitudes while pursuing studies at the law school. The LIC will liaison with different professional bodies, law offices, NGOs, public offices, corporates and communities to help students get internships to nurture the skills and attitudes necessary for legal practice in that sphere chosen by the students. The law school on its part will have a flexible optional curriculum to enable the students to choose the subjects relevant to his/her career option. The knowledge learnt in the class on these subjects together with the skills acquired during internships in related law firms and offices will equip the student for legal practice on that area as he/she graduates on completion of the course of study. For meritorious, career-minded and hard-working students, it should be possible to complete the class-room based subjects of study in the initial four years of the 5-year LLB programme, leaving the entire fifth year for practical training on field-based apprenticeship carefully planned and supervised by the Legal Incubation Centre of the college thereby effecting a smooth transition of the student from being just a law graduate to a lawyer equipped to take on professional responsibilities related to the chosen area of legal practice at the end of five years.

It is important for the success of this programme to let professional colleges of law the autonomy they deserve to experiment and modify the four compulsory Practical Training courses in the BCI curriculum supported by a suitably modified optional curriculum. Bar Council of India should restrain from imposing uniformity on all professional institutions. The country is full of diversities, the legal services needs of the people are different in different regions and the legal profession is increasingly becoming diversified in terms of demand for legal services. In the circumstances, diversity is a virtue and must be cultivated rather than inhibited in the name of uniformity.

Continuing Legal Education to become Mandatory for Maintenance of Standards :

Whatever law schools may do to train lawyers for legal practice, there are limits on what they can do even in the best of circumstances in making true professionals. Therefore, the world over professional bodies have come forward to organize continuing legal education to help practitioners to update knowledge, adopt best practices and specialize in selected areas of legal practice. The days of the general practitioner who takes care of all types of legal problems are over except perhaps in villages and rural areas. Therefore, it is for the Bar Council of India to let lawyers specialize and accredit them accordingly after proper training. For this, Bar Councils should set up continuing legal education centres by themselves or in association with Law Universities and few leading law colleges and train the trainers to manage them on modern lines. Unless continuing education programmes givelawyers the value addition required for specialized work in their respective areas of practice, it will not get acceptability and credibility. Therefore this is not a task which every law school or law teacher can undertake. The trainers must have both theoretical and practical experience in Law as well as special training in designing and conducting advanced courses on continuing education.

The Kerala Bar Council has taken the initiative and established the firstMK Nambyar Academy for Continuing Legal Education at Kochi with financial support from the MKN Trust and technical support from the IBA-CLE Centre of the National Law School of India University, Bangalore. It is regularly holding residential training workshops across the country for advocates and law teachers in different areas of legal practice. It is encouraging to find increasing demand from the advocates themselves for participation in these programmes. All other actors of the justice system excepting advocates and prosecutors have established training academies in the respective States realizing its potential for better services. Lawyering is private enterprise and is left out of government support for continuing education. The Bar Council, being the statutory body having control over the profession cannot afford to let indifferent standards prevail in the profession. As such, continuing legal education institutes must get started even in a modest scale under every State Bar Council.

One of the CLE programme for advocates required on priority basis is one which enables the newly enrolled law graduates to get prepared for legal practice. Given the indifferent state of legal education prevailing today, it is the responsibility of the Bar Council to ensure that they have the minimum professional competence before they exercise the right to practice. There is no provision for compliance of this minimum requirement; nor are there CLE centres to provide the training needed for the purpose. An “Introduction to Legal Practice” course for new entrants ought to be offered for a duration of 3 to 4 months which includes an internship in a law office for three months, to give the competence and confidence for responsible legal practice.

Transforming Legal Education to Justice Education :

The goals of legal education for the future should be drawn from the Constitutional Vision of a New India rooted firmly in democracy, human rights, rule of law and justice (social, economic and political) to all its citizens. For this few changes in the existing scheme of legal education are necessary. These changes, inter alia, include the following :

(i) Law and Legal Education should focus more on PEOPLE while dealing with RULES and Markets :

Law education, unlike technical or business education, is not just a private good. There is an important public good dimension in the agenda of legal education which concerns society in general and the weaker sections in particular. The legal education agenda cannot be left to be settled by the market forces of supply and demand. Social justice demands of the Constitution compels legal educators to focus as much on People as on Rules and institutions. If the justice needs of the rural poor, tribals, women, children and the disabled are not adequately addressed by the law curriculum, it will lose its social relevance and value orientation. As such, there is need for re-visiting objects of legal education and fundamental re-orientation of the LLB curriculum and its methods of delivery

(ii) Lawyering is a bundle of skills which need to be strengthened through Experiential Learning Programmes :

Despite all the advances made in legal pedagogy, average law schools in India continue their instruction through lectures and examine student learning through descriptive questions. This leaves the students with no opportunity to acquire analytical skills and creative thinking abilities. At the same time, new skill sets to prepare law graduates in emerging areas of specialized legal practice are being added to the curriculum of law schools elsewhere in the developed world. The skills deficit in legal education is a matter of serious concern particularly when the Bar Council is doing nothing to prepare the law graduates to acquire skills before being licensed to practice law. This puts the younger members of the bar to some disadvantage as compared to their counter parts from other jurisdictions.

(iii) Neglect of Research and Innovation Keeps Legal Education Status quoist :

Legal research for too long remained doctrinaire and precedent-bound based on library materials. Empiricism and social science research methods are still alien to law students and even to scholars in law. Again, the Five Year Integrated LLB scheme provided opportunities to students to employ empirical research methods and become critical consumers of social science research products. Research even in post-graduate legal studies has not yet embraced social research methods. The result is that law schools are not able to contribute to law and judicial reforms nor to policy development. This again is a matter of concern when looked at in a global perspective.

(iv) Science and Technology waiting to be integrated with Future Legal Education :

Technology is growing in all directions and regulatory systems are increasingly becoming part of administration of justice. Current situation demands new ways of thinking capable of absorbing technology-induced transactions and governance systems. Future legal practice will be greatly influenced by developments in science and technology and legal practitioners will have to have specialized knowledge of these sectors. The challenge before global legal education is how quickly and adequately the personnel of the legal and judicial system will be provided with the knowledge and skills to address the problems of science and technology waiting to happen.

To be able to pursue these goals effectively, I suggest the following strategies in organizing instruction both in the Law School and in the community during the five year period the student is at the Law School.

(a) Every professional Law School interested in the alternative model of justice education should establish a Legal Practice Incubation Clinic (LPIC). The main function of LPIC is to organize experiential learning or learning through practice during the final year of law study transforming the students from being mere law graduates to justice providers with appropriate skills, attitudes and ethics.

(b) The taught subjects (compulsory and optional) in the law curriculum should be completed in the first four years at the Law School. The optional subjects should be grouped in appropriate cluster so that the students are helped to select the subjects relevant to the type of legal practice of their choice. (eg. Corporate legal practice, litigation practice, ADR practice, rural/tribal legal practice, etc.).

(c) Students who want to join corporate legal practice will be spending the final year of their study not in law school but in a law firm learning the skills and ethics according to the design developed by the law school in consultation with the firms concerned. On satisfactory completion of this year-long practical training, students will receive the LLB degree along with a certificate on Corporate Legal Practice.

Similarly, those who are interested in litigation practice will be accordingly placed for the whole year in the office of senior advocates on a planned curriculum of practical training and will be conferred a certificate in litigation practice along with LLB degree. Those who are interested in a career of mediation or arbitration will accordingly learn the skills, attitude and ethics required under the guidance of experts in the respective fields and will have a certificate of ADR practice along with LLB degree.

(d) An innovative contribution of this alternative model is producing justice providers competent to provide appropriate legal services to the rural and tribal communities.

The Legal Practice Incubation Clinic will encourage students inclined to become community lawyers in rural and tribal habitations to take subjects like land law, water law, forest law, co-operative law, natural resources law, consumer law, laws on micro-credit, agricultural law, IPR on traditional knowledge etc. which are related to the justice needs of the rural and tribal people. In the final year, students will be helped to work on their own in rural/tribal areas with support of local bodies, legal aid committees and NGOs as most of the problems of rural/tribal people can be remedied through administrative advocacy. These students can be provided with stipends mobilized by the law school LPIC from law firms as part of their corporate social responsibility. Once they are so helped for 2 or 3 years, they settle themselves as justice providers and community lawyers in the area giving both preventive and remedial legal services. They will be conferred a certificate on Rural Legal Practice along with LLB degree. With Gram Nyayalaya and LokAdalats in place, these people will provide access to justice to those who are still outside the formal justice system.

This new model of legal education has potential in generating specialization in the profession leading to improvement in the standard of services provided. Along with specialization, attitudinal changes required for professionalism and ethical conduct will also be acquired. Apart from enhancing access to justice, it will provide opportunities for law graduates to understand social realities and learn by themselves the larger role that lawyers play in social engineering and legal development.

As the new model recommended here does not change the structure of the BCI prescribed curriculum, the law school introducing it need not go to BCI for any fresh approval of the programme. All that is required is to develop appropriate protocols for assigning, supervising and evaluating student learning of skills, attitudes and ethics during the year-long internship in the field. The Legal Practice Incubation Clinic has to have a Clincial Professor in charge and an adequate budget to discharge its responsibilities.

Para-legals trained from the locality can help mediate between the law school LPIC and community groups to make the scheme overcome operational bottlenecks and serve the best interest of the students and the communities. If law graduates trained like this as rural legal practitioners can be motivated to take up practice in rural and tribal areas, a new cadre of socially sensitive justice providers committed to the cause of social justice will emerge. In course of time they will hopefully lead the transformation which the Constitution expects from the lawyers! Lawyers will become transformational leaders and nation builders in a real sense.

As one American professor puts it , “… We law professors must return to basics. There is too much at stake for us to continue blindly down the paths we have trod. We must begin exploring, articulating and debating what constitutes good legal education. Our answers to that question should then dictate all curriculum and pedagogical choices”. He further adds, “I worry that the individualistic and narrow law school curriculum and pedagogy do nothing to encourage students to see themselves as having any obligations beyond themselves or their clients. Law Schools should focus more on their institutional purpose and students must explore their individual purposes in becoming lawyers as well”.

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