LEGAL EDUCATION AND LEGAL PROFESSION: A GROWINGDISTINCTIONBy Pallavi Shahi1, Co- authored by : Prapti Sharma2’Euality, citizens is not the whole of society on a level, a society of tall blades of grassand smalloaks,or a number of entangled jealousies.
It is, legally speaking, everyaptitude having the same opportunity for a career, politically all consciences havingthe same right. Equality has an organ, gratuitous and compulsory education. We mustbegin with the Right alphabet’-Victor HugoABSTRACTWhere the early onsets of Legal education in India began as early as the VedicEra the more recent year of 1858 saw significant developments in the legal arena withthe introduction of legal subjects in the three presidency towns of Madras, Calcuttaand Mumbai. The Indian Legal scenario since then has drastically changed within theBritish reign and after. The Advent of Modern concepts of Globalization and freeeconomy has provided for countries to eye each other in the race to be the richest.Where Specialization, Electronic media, foreign investments, merges and accusations,consumerism, insurances etc, have become the ordinary course of work.
Newchallenges are up to trade and commerce. All this has brought not only newchallenges and changes to the out- look and lifestyle of the people but also new levelsof pressure to perform for the graduating lawyers. The Generalized legal systemmakes them well equipped with the traditional subjects, such as Contract, Tort,Constitutional Law, Jurisprudence, Civil Procedure, Company Law, PublicInternational Law, Family Law, Criminal Law , Labour Laws, Administrative Law,Transfer of Property, Easements, etc.. In addition, to a number of new subjects like,Intellectual Property Laws, Consumer Protection Law, Insurance LawsEnvironmental Laws, Investment Laws, , Cyber Law, Human Rights, PublicLawyering ,etc The Law field is hence filled of Challenges and Opportunities.
With acontinuous rise in meritous students opting for Law, the already large pool of lawattorneys is growing distinctively in India, The question here is Whether the IndianEducation system today provides adequate means and opportunities to meet thesechallenges, if so, how Practically apt is the legal knowledge imparted in the presentsystem. An effort has been made in this particular Paper to identify the challenges inthe present education system in India and also look into the means of arresting thefalling standards so as to make it socially relevant, most importantly practically aptand their link to reasons responsible to grow the distinction between Legal Professionand Legal education in India.1. HISTORICAL SIGNIFICANCE1 Third Year Law undergraduate perusing BA LLB (H) programme at Amity Law School, Lucknow.2 A third year law undergraduate persuing BA LLB (H) programme at Amity Law School, Lucknow.Since the early onset of legal education in 1858 various developments in this spherehas embarked an indestructible process of imparting legal education to Increase publicunderstanding of the law and the capability to use it.
Starting as early as the Vedic era,the doctrine of ‘Dharma’ persisted with the king and its council of noble laureates toimpart justice.3 However, as sovereign and secular the law may seem, the king leadedgovernance was prone to dictatorship and aristocratic flaws leading grave unbalancebetween Law and its implementation. Where law leaves ample space formanipulations and interpretations the legal fraternity enjoys its part in balancing andextracting precisely what it requires. Indian Law developed largely under Religiousand Western British influence. Before the development of complex mechanism ofsolving simple wrongful acts, history provides clear understanding of the ancientjurists and their methodology.1.1 ANCIENT ERAThe Vedas were the original sources of law, the Smiritis and the Upanishadsannounced the message of the Vedas.
The Smritikars were great jurists also with highsense of righteousness,4 Smritikars, commentators and Nibandhakars essayists werethe legal guardians of law. King made laws were also interpreted, thus, thecommentators were virtually law-makers. Sadachara, custom, Nyaya or Yukti werethe base of legal process in Ancient India.
The King was advised by a Sabha whichhad both advisory and executive functions. The parishad was an expert committeecomprised of ministers of officials, generally Brahmans, who advised the Kingauthoritatively on law.5 of which, Gautama, Bondhayana, Apastambh, Harita andVaishta were perticularly respected for their Dharmasutras,6 which were consideredmost ancient expositions on law. Life in India during this period was simple and theform of judicial procedure and legal training was less complicated than that ofwestern countries with simplified procedures to judicial enforcement.7The basic concept of education in ancient India was to provide correct directionin various spheres of life, on matters of law and order the Principle of ‘Dharma’Persisted throughout.8 With direct links of Practical approach the ancient juristsbelieved in fair delivery of justice, spread of the principle of Dharma, the cleardistinction between right and wrong doing and strongly criticized negligence in thepart of obtaining that knowledge. Every King therefore was carefully nurtured byhighly knowledgeable Brahmans during the Brahmastra ashram9 which required everyroyal child to undergo rigorous processs of obtaining education by sureendering thecomforts of a royal life until they are deemed fit to rule.
This process thus followed to3 Dr. Justice A.S.
Anand, H.L. Sarin Memorial Lecture: Legal Education in India — Past, Present andFuture, (1998) 3 SCC (Jom) 1.4 Sharma S.K, LEGAL PROFESSION IN INDIA, SOCIOLOGY OF LAW AND LEGALPROFESSION: A STUDY OF RELATIONS BETWEEN LAWYERS AND THEIR CLIENTS, 43(ed.
, Rawat Publications, Jaipur, 1984)..5 Derret J Duncan.M., “Essays in Classical and Modern Hindu Law.6 Dharmasutras are theoretically a part of Vedic literature, which entails that they are considered to berevealed texts transmitted to humans by ancient sages (Rhushi). See Gavin D.
Flood, THEBLACKWELL COMPANION TO HINDUISM, 104 (Blackwell, 2003)7 Abbe J.A.Dubois, HINDU MANNERS, CUSTOMS AND CEREMONIES, 662 (Reprint, BookFaith, New Delhi, 1999)8 See KATHA UPANISHAD (iii, 6) available at http://www.atributetohinduism.com/ Education inAncient India.
htm (last visited 24 — 07 — 07).9 The Enchanted Manu Smirit – See pg. 776 para 3various large kingdoms of Mauryas, Guptas, cholas, Pallavas etc, This discipline wasalso very prevalent among the Mughal Empire rulers.
1.2 LEGAL DEVELOPMENTS IN COLONIAL INDIAMuch after the ancient monarchy in India, the year of 1600, witnessed British traderseying the prosperous and rich country. They executed their purpose of trade by acompany named East India Company in the city of Surat. Courts in the early timeswere presided by Merchants who had rudimentary knowledge of law, later the courtswitnessed drastic development in legally trained personals substituting the formeremployers. People with legal training started to substitute the Merchants.
The FirstBritish court was established in Bombay in 1672 by Gerald Angier. The thenappointed Attorney General was George Wilcox who having acquainted with legalbusiness particularly dealt with administration of estates of deceased persons andgranting of probate, he was responsible for the legislative provision for parties to berepresented by attorneys and fixed the counsel fee a little more than Re. one.10In furtherance to legal developments first concrete step in the direction of organisinglegal profession was taken through Regulating Act 1773 empowering advocates andattorneys-at-law to the Supreme court. Established in Fort William in Bengal througha charter issued in 1774 the Supreme court of India permitted the indulgence of thislegal development. Later in the year 1938 The Government of India act establishedyet another significant development In this felid, the Advocates Act of 1961 thusprovided a landmark establishment of the Bar council of India and authorized it to bethe apex managerial body for the legal arena in India.
2. METHODOLOGYThe present Legal system in India under the guidelines of BCI comprises of two yearLLM programme as well as a five year graduation plus LLB integrated programmewhich as laid should not be less 3+2 ie. 5 years of study. The Council also providesfor a institution to custom subjects as per their convenience, along with the presentguidelines the BCI also requests for annual reports from institutions across thecountry to mention list of new subjects to be added with the list of traditional subjects.Unlike American law schools Indian law education system works on the frameworkof Principle and provision based, which works well with law students aimed forjudiciary or civil examinations however, the purpose of Law schools does not confineto the scope of future prospects in legal profession but the sense of law and a gist ofhow to tackle it ultimately.The five year integrated courses offered by law institutions in India aim at traditionalsubjects for the first two years with Pre-law subjects like client counselling, advocacyskills, legal drafting, legal English, legal Hindi etc, to provide the law student withbasic knowledge of legal studies and to nurture it with the essential skills required tostudy law. However, the present legal system in America and UK work on theprinciple factors of:-a.
Corrective methodology, that deals with every student todevelop a sense of creativity in implementing laws b. Case – principle biased study, c10 See Legal Eduction in British India Para 2. available athttp://strippedlaw.blogspot.
in/2010/11/history-of-legal-education-in-india.html.:- enforcement of practical knowledge amongst others, these methods not only oughtto bring out the students distinctive way of decisiveness but also generates a selfconfidence which in the present Indian system lacks variability. The balance betweenendless law studies and negativity that drowns potential creative capabilities in a lawstudent during the five year or 2 year tenure results into drastic court time wastage. Asput down by Chief Justice Burger in his address to the American College of TrialLawyers in Columbia:”In some jurisdictions, up to half of the lawyers who appear in court are so poorlytrained in that they are not properly performing their job and that their manners, theirprofessional performance and their professional ethics offend a great many people.
They are engaging in on the job training at the expense of their clients’ interest andthe public.”Justice Burger’s comment holds equally good for the legal profession in India as it isgeneral knowledge that a large part of the two lakh graduating law students every yearmerge into the ten lakh already existing ones causing a large misbalance into theabsorbtion of students into various streams. This phenomenon is known as the’Jobless Economy’ very prevalent Japan.
Due to prolonged neglect in educationnumerous substandard institutions and ‘ teaching shops’, with abnormally largenumber of students, grew up around the country, Maximum population results tobelow average knowledge of the degrees studying, further causing no absorption intocompetitive environments which leads them to joining the Bar. This portion ofpopulation are absentee population that ultimately results into the cause of worries.This therefore brings to the importance of arresting the challenges addressed below.2.1 PRESENT APROACHThe present approach of Legal education in India is that of a structure of Five yearintegrated system and that of a three year LLB degree. With the latest developmentsin the present scenario law schools have embodied the structure of theoreticalapproach in academics, which with the following modern challenges of Cyber law,Copyright, Intellectual Property Right, Merges and Acquisitions etc have developedthe legal scenario by adding various other subjects of importance with the traditionalSubjects. Therefore with Business, Insurance and Companies law in rise with theglobal context, the Indian Legal system prevalent in Law schools as explained byesteemed Allahabad High Court Judge 11can be divided into the following heads:-2.1.
1 Course CurriculumThe Minimum criteria for a graduation plus Law degree integrated course in India is12TH passed certificate from a recognised school, or any other degree equivalent to12th certificate12.According to Bar council of India rule a recognised university can be permitted toframe the course of flow of subjects in a law school for the five year tenure accordingto preferences. Here, the law schools in addition to the traditional subjects ofContract, Tort, Constitutional Law, Jurisprudence, Civil Procedure, Company Law,11See Legal education http://www.ijtr.nic.
in/webjournal/6.htm12 See Rules on Standards of Legal Education and Recognition of Degrees (‘BCI Education Rules,2008’) available at http://www.barcouncilofindia.org/about/legal-education/education-rules-2008/.Public International Law, Family Law, Criminal Law , Labour Laws, AdministrativeLaw, Transfer of Property, Easements, etc also add new subjects as IntellectualProperty Laws, Consumer Protection Law, Insurance Laws Environmental Laws,Investment Laws, , Cyber Law, Human Rights, Public Lawyering ,etc, These subjectsin majority are offered to students without pre- law subjects providing no clue to thestudent so as to methodology concerned in studying law.
This grave misbalance leadsto theoretical indulgence on a students perspective leading to lack of creativity in itsimplementation.The structure of flow of subjects in a five year program should be that of introductionof pre –law subjects such as Client counseling, Case briefs, advocacy skills,interpretation of statues, amongst others to develop a sense of curiosity and to firm itseducation system on the methodology of developing skills of being able to ‘study’laws in contrary to the present system that is to gain the knowledge of ‘various’ laws.13This largely influences the growing distinction between legal profession and that oflegal education.142.1.2 Language BarrierIn 2005 the Bar council of India established its First All India Common law entranceexamination leading to the extraction of cream crowd to form the alumina of 14 elitelaw schools in India. This examination however did have a great impact on thecompetitive environment amongst students and also among law schools to provethemselves better. It is yet not to be ignored that a very large population of studentshave hindi background till Secondary education, that compels them not to take theexam.
The mode of examination at whole exists precisely in English.Unlike in the US where the LSAT (Law school Admission Test) is highly competitiveand deals with singular mode of tests that results into absorption of crème students,this process results into procedural structure concentrated around a single mode ofcommunication, India acts as a diverse nation bringing a large group of students intothe ambit of Equal opportunity, which is seemed to lack the attention. Relevantexamination modes will bring brilliant students to the elite legal universitiesproducing greater quality of legally trained professionals.2.1.3 Research methodologyLaw is, first and foremost, a discursive discipline: lawyers and judges live in thedomain of reasons and meanings driven by logic, 15 interpret statutes and cases,articulate rules to guide behavior, and then argue about their import in particularcases. Judges write opinions, in which they give reasons for their conclusions.Lawyers offer arguments to persuade judges.
Even lawyers who never argue cases incourt still deal continuously with rules, their meanings and entailments. Law has thusbeen a production of various fields together, History, Sociology, economics,psychology etc. various links of its identity provides dimensions in study andresearch. Teachers clubs or reaersch societies established on university levels can13 IP Massey, quest for’relevence’ on legal education, 2SCC (Jour) 17 (1971)14 Ibid15 Brian LeiterKarl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law,Philosophy and Human Values at the University of Chicago, Why Philosophy Has Been Central toLegal Education for More Than a Century available athttp://www.huffingtonpost.com/entry/why-philosophy-of-law-has_b_4606305.html?section=indiacatalyse the process of researching into the legal fraternity helping students on theother hand with, basics of drafting and formatting to the content of the researchpapers, lending great works of art out within reach.
As, laid down by J.Sorabjee in hisbook ‘the courtroom Genius’ penned it stating that one of the greatest Lawyers NaniPalkhivala always emphasized on the importance of research and the importance ofthe order of research. He emphasized thePhilosophy on the other hand plays an important role in developing the keyingredients in a law studentAdvocacy typically demands more attention to rhetoric than has philosophy, at leastsince the time of the Sophists in the 5th-century B.C.. But the pejorative connotationof “sophistry” that has come down to us from Plato’s successful defamation of theSophistic philosophers should not mislead us: there is an art to persuasion, and that artis only partly exhausted by the rules of formal and informal logic.
As the U.S.Supreme Court put it in Old Chief v.
U.S. (1997), “A syllogism is not a story, and anaked proposition in a courtroom may be no match for the robust evidence that wouldbe used to prove it.”The cumulating of statutory knowledge without the effect of creativity, indulgence InVarious emerging fields of law and inclination towards relentless hours of researchand practice leads to greatness for a law student, The inclination for better andmethodological training on the parts of teachers shall hold innumerable value for thegrowth of Professionalism in the education felid. Followed by the States liabilities toenforce and provide proper infrastructure and necessities required to catalyze theprocess.
CONCLUSIONGlobalization and the changing dimensions of the Indian economy, polity haveemerged with new challenges of governance and order. In 1950 after the adoption ofthe constitution, Rule of law prevailed which now is the single most importantchallenge this country Is facing. With the civil and criminal justice system understress, The role of law schools in imparting legal education and development isessential not only by the means of reduction in teaching hubs, and raising thestandards of education by the means of cultivating research based methodology, butalso by keeping an eye on the changing dynamics and to provide the brightest ofminds the sharpest of knowledge and refining of legal personals.Various suggestions emerging from the paper are inclusive of importance of researchand the emergence of fields like Philosophy prevalent in foreign legal educationsystems providing a array of comparative facets that leads us to the conclusion that inIndia Globalization has posed multiple challenges to the future of legal education, butit has provided an opportunity to challenge the status quo, which is an essentialcondition for seeking any reform.