Legal Education: Impact Of Globalization On Legal Education In India
“Education- is the manifestation of perfection already in man”- Swami Vivekananda.
The Law Commission of India defines legal education as a science which imparts to students knowledge of certain principles and provisions of law to enable them to enter the legal profession. Legal Education is the process which equips the future lawyer, judge, administrator, counsellor and legal scientists to know how legislative, executive, judicial organs of the government, are designed and how they operates. Legal Education is a technique, arena and platform for rational, orderly and non-violent settlement of disputes and handling of conflicts.
The object of law is twofold, viz., primarily, it seeks to protect and guarantee the interests and promote the welfare of the people and secondly, it seeks to administer justice according to the rule of law or procedure established by law. The celebrated legal statement - “People's good is the highest law” of the Roman lawyer Cicero best reflects the first objective.
“Future lawyers should be more aware that law is not a system of abstract logic, but the web of arrangements, rooted in history but also in hopes, for promoting to a maximum the full use of a nation's resources and talents”. - Justice Felix Frankfurter (In an address to the College of the City of New York, September, 30, 1942).
We broadly understand globalisation as an ongoing process which entails the free movement of capital, labour, goods and services across national borders. However, these parameters of economic globalisation cannot be viewed in isolation from other aspects such as the free exchange of ideas and practices. From this perspective, the legal systems in various countries have a lot to learn from each other – both in terms of institutional design and the evolution of substantive laws.
With increasing trade and investment across borders, there is an imperative need for all of us to understand the functioning of international institutions. At the same time, our national legal system must offer a balanced response to the rapidly changing socio-economic realities. We must also bear in mind that in this age of the internet and frequent international travel, judges, lawyers, academicians and even law students from different countries have a lot of opportunities to interact, collaborate and learn from each other’s experiences. Access to foreign legal materials has become much easier on account of the development of information and communication technology. Until a few years ago, subscriptions to foreign law reports and law reviews were quite expensive and hence beyond the reach of most judges, practitioners and educational institutions. However, the growth of the internet and globalisation has radically changed the picture. The decisions of most Constitutional Courts are uploaded on freely accessible websites.
Furthermore, electronic databases operated by prominent publishing houses have ensured that judges, practitioners and law students all over the world can readily browse through materials from several jurisdictions. Such easy access to international and comparative materials has also been the key factor behind the emergence of internationally competitive commercial law firms and Legal Process Outsourcing (LPO) operations in India.
The present law has to deal with problems of diverse magnitudes and a student of law and an Advocate has to be trained in Professional skills to meet the challenges of globalization and universalisation of law. With the advent of multinationals in India as anywhere else, the task of lawyers would be highly technical and an imperative need would arise to have competent lawyers who would be trained in the right culture of Legal Education. This makes a sound case for introducing reforms in Legal Education. Legal education should also prepare lawyers to meet the new challenges of working in a globalized knowledge economy in which the nature and organization of law and legal practice are undergoing a paradigm shift. 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.
Education or awareness of laws, characterize the lawyers as 'Social engineers'. "….man is inwardly a soul and a conscious power of the Divine and that the evolution of this real man within is the right object of education and indeed of all human life." -Sri Aurobindo.
Dichotomy between past and present Visions and Goals of legal education
For almost a century from 1857 to 1957 a stereotyped system of teaching compulsory subjects under a straight lecture method and the two year course continued. The need for upgrading legal education has been felt for long. Numerous committees were set up periodically to consider and propose reforms in legal education. The University Education Commission, was set up in 1948-49 and in the year 1949 the Bombay Legal Education Committee was set up to promote legal education. The All India Bar Committee made certain recommendations in 1951. In 1954, XIVth Report the Law Commission (Setalvad Commission) of India discussed the status of legal education and recognized the need for reform in the system of legal education. It depicted a very dismal picture of legal education. It was only from 1958 that many universities switched over to three year law degree courses. 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.
Legal education as a discipline was not a popular choice of the students in India prior to the introduction of five year law course and most of the students who performed well in their Intermediate Education aspired to study medicine, engineering, computers, business management and accounting. 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. In this the era of information capitalism, economic liberalization, legal profession in India has to cater to the needs of a new brand of legal consumer/client namely the foreign companies or collaborations. Goal of the law schools should be to:
· Promote an inter-disciplinary approach of law with other social sciences. A person who studies law must have some proficiency in country's history, political theory, economics and philosophy, to enable him/her in becoming agents that participate in institutional changes.
· Encourage proficiency in languages: Command over spoken and written language, effective oral skills, diction and extensive reading.
· Inculcate the need to observe the highest standards of professional ethics and a spirit of public service.
· Create lawyers who are comfortable and skilled in dealing with the differing legal systems and cultures that make up our global community while remaining strong in one’s own national legal system.
In order to achieve these goals, legal education needs to be broad based, multi-disciplinary, multi-functional and contextual. The phenomenon of globalization provides an important context in relation to which the vision and goals of legal education have to be concretized. The new developmental agenda needs knowledge of international practices and transcends the established view that the purpose of legal education is only to generate practising lawyers.
Effect of globalization: Development needed in India
Globalization has changed the dynamics of the entire polity and society. Currently the whole world is acknowledging the importance of knowledge economy. Since the development of knowledge economy, the establishment of educational institutions of global excellence along with changed new curriculum of global standard ought to become the priority of the developing countries like India. Globalization of the legal profession has introduced a sea change in the entire fabric of law teaching and legal profession in India. So, some of the needs of the hour are-
There is a need to develop an independent Rating System based on a set of agreed criteria to assess the standard of all institutions teaching law as a mechanism to ensure consistent academic quality throughout the country. Recognition could be either granted or withdrawn on the basis of such ratings. The rating results should be reviewed annually, regularly updated, monitored and made available in the public domain.
Curriculum development inter alia involves revisiting the distinction between core/compulsory and optional courses, considering the need to expand the domain of optional courses, rethinking the syllabus of individual courses, and developing innovative pedagogic methods. The law curriculum for the future must provide an integrated knowledge of bio-diversity, bio-technology, information and technology, environmental sciences, ocean and marine sciences, public health and other related subjects. Then alone, the unmet legal needs of different sections of society and the impact of globalisation can be addressed to and the students will be equipped to contribute to the society when they leave the portals of their alma mater. In order to do so, the institutions must be given a free hand in choosing the subject so that the students are able to conduct research work in their respective fields. This interweaving of law with the related issues of the contemporary world will add immense value to the law degree.
The prevailing examination systems may be revised and evaluation methods be developed that test critical reasoning by encouraging essential analytical, writing and communication skills. The examination should be problem-oriented, combining theoretical and problem oriented approaches rather than merely test memory. Project papers, project and subject viva, along with examination to be considered as pedagogic methods imperative for improving quality.
Knowledge of a foreign language is important to be a lawyer in the global economy. Law students should be provided with the opportunity to learn a foreign language of their choice. Law students hence need to develop their ability to distinguish the relevant form the irrelevant, screen evidence, and apply the law to the situation under scrutiny. They need to maintain their complete integrity of character and need mental and physical stamina in order to cope with the long hours, travelling and stress.
To attract and retain talented faculty, better incentives, including improving remuneration and service conditions may be introduced. To foster quality and create better incentives, there is also need to remove fetters on faculty that pertain to opportunities in legal practice (such as consultancy assignments and legal practice in courts). As a further incentive, it is necessary to create better opportunities for active involvement of academia in the shaping of national legal education policy. Other incentives for faculty include fully paid sabbaticals; instituting awards to honour reputed teachers and researchers at national and institutional levels; flexibility to appoint law teachers without having an LL.M degree if the individual has proven academic or professional credentials; faculty exchange programmes with leading universities abroad and upgrading existing infrastructure.
Develop a critical outlook: Law teachers should switch over to what is called as 'comparative method of teaching'. The law students should be mobilised to evaluate the existing or prospective draconian laws, participate in discussions on the latest developments and required amendments. Encourage Clinical training: 'Justice' must become central to the law curriculum and community-based learning must give the desired value orientation in the making of a lawyer. This concept of justice education in the field of legal education means that the law school curriculum should entail certain programs like Lok Adalats, Legal Aid & Legal Literacy, Para-legal training, Mock trials and Moot court competitions.
Creating a tradition of research in law schools and universities is imperative if India has to transform itself from being only a consumer of available legal knowledge to being a leading producer in the world of new legal knowledge and ideas. The following measures are required to develop such a serious culture of research: emphasizing analytical writing skills and research methodology as integral aspects of the LL.B programme; creating excellent infrastructure (including research friendly library facilities, availability of computers and internet; digitization of case law; access to latest journals and legal databases available worldwide); rationalizing the teaching load to leave faculty members sufficient time for research; granting sabbatical leave to faculty to undertake research; creating incentives if research results in peer reviewed publications, either through additional increments (beyond the UGC scheme) or in any other appropriate manner; institutionalizing periodic faculty seminars; establishing quality peer-reviewed journals; prescribing research output as one of the criteria for promotion; creating a database of citations to identify the most cited and influential writings as well as considering such data for promotion purposes; establishing prerequisites such as a mandatory dissertation in the LL.M programme, a pre-registration presentation and a course in methodology for M.Phil and PhD programmes respectively.
It is for law schools and universities to decide the level of fees but as a norm, fees should meet at least 20 per cent of the total expenditure in universities. This should be subject to two conditions: first, needy students should be provided with a fee waiver plus scholarships to meet their costs; second, universities should not be penalized by the UGC for the resources raised from higher fees through matching deductions from their grants-in aid. The central and state ministries may also be urged to endow chairs on specialized branches of law. State financing can be complemented with endowments from the private sector, including synergistic arrangements such as appropriate public private partnerships. Incentives such as tax holidays for donations above a high minimum threshold by the corporate sector may be considered. Institutions should be given the autonomy to evolve their own innovative methods of financing to maximize infrastructure and resource utilization.
Building world class law schools today will require creatively responding to the growing international dimensions of legal education and of the legal profession, where it is becoming increasingly necessary to incorporate international and comparative perspectives, along with necessary understanding of domestic law. Suggested initiatives to promote such international perspectives include building collaborations and partnerships with noted foreign universities for award of joint/dual degrees; finding ways of evolving transnational curricula to be taught jointly by a global faculty through video conferencing and internet modes; as well as creating international faculty, international courses and international exchange opportunities among students.
For maximum dissemination of legal knowledge, all information available in the Indian Law Institute (“ILI”), Supreme Court Library, Indian Society for International Law (“ISIL”) as well as those of all law schools, universities and public institutions in the country, be networked and digitized. Such networking is in addition to the need for adequate infrastructure such as computers, law journals, legal databases and excellent libraries in the institutions teaching law.
Constitutional recognition to legal education and its progress in India
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 determines 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.
Changed Scenario of legal profession due to globalisation
About fifty years ago the concept was that the law schools are meant to produce graduates who would mostly come to the bar, while a few may go into law teaching. The Advocates Act, 1961 was enacted to achieve the said object, namely, to prescribe minimum standards for entry into professional practice ‘in the courts’, as stated above. But during this period and more particularly after liberalization in the year 1991, the entire concept of legal education has changed.
Today, legal education has to meet not only the requirements of the bar and the new needs of trade, commerce and industry but also the requirements of globalization. New subjects with international dimensions have come into legal education. With multibillion-dollar investments in the growing economies, the business activities have grown manifold. This in turn has created more opportunities for lawyers in general.
In the changed scenario, the additional roles envisaged are that of policy planner, business advisor, negotiator among interest groups, expert in articulation and communication of ideas, mediator, lobbyist, law reformer, etc. These roles demand specialised knowledge and skills not ordinarily available in the existing profession. The five-year integrated programme of legal education is a modest response to these challenges as perceived in the 1980s well before the end of Cold War and advent of market-oriented globalisation. The lawyer of tomorrow must be comfortable to interact with other professions on an equal footing and be able to consume scientific and technical knowledge. In other words, along with social science subjects, the law curriculum for the future must provide integrated knowledge of a whole range of physical and natural science subjects on which legal policies are now being formulated.
The image of a lawyer in society as well as the self-image of the profession is not what it ought to have been given the diverse roles as stipulated above. It is here that the legal education has to take its lesson on value addition. Justice must become central to the law curriculum and community-based learning must give the desired value orientation in the making of a lawyer. To give a recent example, one can say that the young law students who went to the earthquake affected districts of Gujarat seeking to carry legal services to the victims came back with impressions and experiences which would no doubt influence their professional life and shape their approach to justice. The idea being canvassed here is that professional education will have to be imbued with a spirit of social service and there is no better way of inculcating it except to expose them while studying law to real life experiences crying out for justice. The politics of legal education and the economics of legal practice should be subjected to academic scrutiny if the profession has to be saved from the practitioners themselves!
Non-fulfilment of the goal
It has been noticed that in the last fifteen years, ever since the NLSUs have been established, meritorious students both from NLSUs and some other law schools are joining law firms and corporate houses in greater numbers than those who opt for the bar and the subordinate judiciary. One of the objects of establishing the NLSUs was to improve the quality of the bar and the subordinate judiciary. While it cannot be disputed that such brilliant students are necessary for leading law firms and corporate houses to meet the challenges of globalization, we should not forget that unless these students are attracted to the bar, subordinate judiciary and academia, the quality of legal services cannot be improved.
Domestic needs and needs of Globalization: Need for a new ‘Regulator’ with a global vision
The Law Commission in its 184th Report, (2002) has pointed out that there are revolutionary changes which have come into legal education by reason of developments in information, communication, transport technologies, intellectual property, corporate law, cyber law, human rights, ADR, international business, comparative taxation laws, space laws, environmental laws etc. and that “The very nature of law, legal institutions and law practice are in the midst of a paradigm shift”.
Globalization does not merely mean addition or inclusion of new subjects in the curriculum as stated above. While that is, no doubt, an important matter, the broader issue is to prepare the legal profession to handle the challenges of globalization. Prof. David E Van Zandt of North West University School of Law states in his article ‘Globalization strategies for Legal Education’ says:
“In terms of legal services, the changes have developed a standard set of practices that lawyers use in dealing with the needs of significant business clients whose operations have international scope. Whether a lawyer is working for multinational clients in Hongkong, Frankfurt, London, Buenos Aires, or New York, the set of practices is largely the same. This enables a skilled lawyer to move effortlessly around the world…….”
In the light of the changed scenario in the last fifty years, the needs of globalization after 1991, and the gaps and deficiencies in the existing system as referred to above which have to be filled up. It is clear that the BCI has neither the power under the Advocates Act, 1961 nor the expertise to meet the new challenges both domestically and internationally. It is, therefore, necessary to constitute a new regulatory mechanism with a vision both of social and international goals, to deal with all aspects of legal education and to cater to the needs of the present and the future. Such a mechanism will have to be vested with powers to deal with all aspects of legal education.
# The directives of the new Regulatory Mechanism under the Independent Regulatory Authority for Higher Education (IRAHE), vested with powers to deal with all aspects of legal education and whose decisions are binding on the institutions teaching law and on the union and state governments should be established and it must aim at revamping legal education to meet the needs and challenges of all sections of society. This new regulator has to prevent dilution of the minimum standards by any of the players. For example, it has been reported recently that in some States, the Governments have passed orders reducing the minimum marks to be obtained at the common entrance examination for law to 35% or even below 35% in some cases, only with a view to enable all law schools in that State, most of which are substandard, to fill up all the remaining unfilled seats.
# There is, therefore, an urgent need to set up four centres for advanced legal studies and research (CALSAR). Some of the tasks to be assigned to these advanced legal centres would include cutting edge research on developing subjects and related areas, as well as serve as a think-tank for advising the government in national and international forum. Some of the specific functions and objectives of these centres would include the following: - Bringing out a peer reviewed journal of international quality, institutionalizing arrangements for having national and international scholars, establishing a network with other international law research institutions to exchange information and access resources worldwide, and the infrastructure should be of international standards.
In the era of globalization, the production of ideas has assumed a critical role – both for social justice and for economic and technological advancement. This is as true in the domain of law. The ongoing liberalization process raises complex issues relating to the nature of legal reforms necessary to ensure the development of all sections of the population. The need to understand other legal traditions and cultures also require attention. If India has to fulfil its promise of becoming a global power it is crucial that we invest in knowledge production and dissemination as well as make provision for adequate research to address the range of issues and questions involved.
The legal Education and the profession have to care for the “invisible man”. The Advocates have to become socially more relevant and technically very sound if he has to survive and serve the needs of the society in the 21st Century.
Recently, the Supreme Court of India has observed in All India Judges Association vs. Union of India that recruitment rules in the States should be amended to permit raw graduates from the law schools to enter the subordinate judiciary. Obviously, this requires a high degree of proficiency from the students who pass from the law schools. It should be our objective to improve the standards of all the law schools to the standards required in the present age. There is, in fact, an urgent need for a fresh probe into the quality of legal education in several law schools and if it is revealed that the standards are poor, it may be necessary to direct closure of such law schools.
The legal education granted at the law schools should be streamlined from the conventional to the contemporary needs of the legal profession. The quality of Legal education has a direct impact on the prestige of the Legal Profession. We must, therefore, identify the areas of default and initiate corrective action to repair the damage. Unless pragmatic steps are undertaken without loss of time, Legal Education will suffer and consequently the country's justice delivery system will stand diluted. A concerted action on the part of bar, the Bench and the law teachers is called for to improve the deteriorating standard of Legal education. We have to equip ourselves better so that we will not only keep pace with the current developments but also meet the demands of the future.
Justice A. M. Ahmadi had said, “…. We have waited long enough to repair the cracks in the legal education system of this country and it is high time that we rise from arm-chairs and start the repair work in right earnest”.
India being a common law country has an advantage of having a legal system which is similar to many other countries of the world. As a consequence, firms from other countries visit the top law schools to handpick talent. Legal education is an investment, which if wisely made will produce most beneficial results for the nation and accelerate the pace of development. Legal Education is essentially a multi-disciplined, multi-purpose education which can develop the human resources and idealism needed to strengthen the legal system ….A lawyer, a product of such education would be able to contribute to national development and social change in a much more constructive manner.
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NKC was established in 2005 to recommend and undertake reforms in order to make India Knowledge- based economy and society. This working group met in 2006 & 2007 and has submitted a report on 5th March 2007 to NKC. http://knowledgecommission.gov.in/downloads/documents/NKC_Education.pdf
A.Lakshminath, Comparative Law (Andhra Law House, Visakhapatnam, 2007)
In India, the apex organization endowed with the responsibility of promoting and
Coordinating university education and determination and maintenance of standards in institutions of higher education, is the ‘University Grants Commission (UGC)’. http://www.ugc.ac.in.
All India Judges Association vs. Union of India (2002) 4 SCC 247.
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