Lecture method
Stereotyped system
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.
Monotonous
The monologue lecture method 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.
The 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 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.
The teaching methods have to be participatory and interactive rather than lectures. The teaching of skills has to necessarily employ a range of clinical methods, which are now available in legal pedagogy. In fact, a revolutionary change in legal education is required not only in terms of curriculum planning but also in training methods.
The conventional lecture method is the main method for delivering legal education in India although there is some marginal use of other methods such as group exercises, role play, etc. Teachers are delivering the material primarily in lecture mode.
“New legal education” has arisen as a movement to become more responsive to the practical needs of learners. It encourages faculty to use other instructional methods in addition to lecture.
Work is needed to develop new pedagogical approaches to legal education in India. International experience involves the use of a number of imaginative teaching methods based on alternative learning frameworks such as experiential learning and self-learning.
Some of the pedagogical methods that could be effectively used for legal education include the following:
• critical thinking;
• discussion groups/brainstorming;
• debates;
• demonstration;
• diagnostic analysis
• field visits;
• field trips;
• guidelines;
• “learning by doing”;
• laboratory work;
• moot courts;
• problem solving;
• Question &Answer;
• research/project analysis;
• small group work;
• Stimulations.
• Use of case studies;
• use of hypothetical;
Since teaching is an intensely personal activity the quality of legal education would largely depend on the availability of law teachers of the right stamp. Here a fine blending between the active method i.e. the case-method, also known as the Langdell method, and the passive method i.e. the lecture method, would help. If the students are first familiarised with the subject by the lecturer and thereafter their active participation is sought with reference to a particular case, it will enable the teacher to appreciate the receptivity and capacity of the student to understand and absorb the jurisprudential principles of the topic under discussion. That will help the teacher to identify students needing greater attention.
The Curriculum Development Centre of the University Grants Commission suggested a new curriculum offering twelve core (compulsory) courses plus a course in practical training in law with seven optional subjects.6 I do not consider it necessary to detail the subjects but it is sufficient to say that the recommendation notices the need for integration referred to earlier. In modern times the need for continuing legal education can never be over-emphasised in this fast-changing world where new disciplines in the legal field are surfacing with astonishing speed. Every conscientious professional, law teacher and judge must keep himself abreast of the developments taking shape in the field of law to enhance his knowledge with a view to understanding the complexities of emerging doctrines. Professionals and law teachers have the benefit of exposure through Seminars and Conferences.
Then steps must be taken to remove the defects in the examination system itself and curb the malpractices at the examination centers and in the evaluation of answer books. There must also be transparency about the quality of the assessment.
It is necessary to appreciate that hitherto the examinations have dictated the content and mode of teaching rather than the teaching method dictating the pattern of examinations. This has been the root cause of the low status accorded to a law degree because, as pointed out by the Law Commission, students are able to clear the examinations by cramming from short summaries published by enterprising publishers who are least concerned about the maintenance of the standard of legal education. There is then an immediate need to take remedial measures.
By the enactment of the Advocates Act, 1961, the Bar Council of India is charged with the duty to promote legal education, to lay down the standards of legal education and to recognize university law degree courses as qualifying for enrolment as an Advocate. Subject to certain very limited exceptions, a university law degree is essential for entry into the profession. Since all law teaching is undertaken by universities, and colleges affiliated to universities, and since a recognised university law degree is in itself sufficient qualification for entry into the profession, a heavy duty lies on those who manage the affairs of the Bar Council of India (which also supervises the working of the State Bar Councils) to take appropriate steps to enhance the prestige of the legal profession by ensuring high quality legal education. Despite the efforts made by the Bar Council of India, the professional legal education continues to suffer from a variety of drawbacks some enumerated hereinabove. However, the initiative of the Bar Council of India in sponsoring the National Law School of India University (Bangalore) is indeed praiseworthy.
Several suggestions have been made by Judges, lawyers and law teachers, responsible bodies and institutions for improving the quality of legal education in India. These include reintroduction of the apprenticeship system, reintroduction of the post-degree Bar examination as a pre-requisite for enrolment as an advocate, a training centre for continuing education, a training institute for Judges, etc. Since teaching is an intensely personal activity the quality of legal education would largely depend on the availability of law teachers of the right stamp. The focus must next shift on the method of education. Here a fine blending between the active method i.e. the case-method, also known as the Langdell method, and the passive method i.e. the lecture method, would help. If the students are first familiarised with the subject by the lecturer and thereafter their active participation is sought with reference to a particular case, it will enable the teacher to appreciate the receptivity and capacity of the student to understand and absorb the jurisprudential principles of the topic under discussion. That will help the teacher to identify students needing greater attention.
Every conscientious professional, law teacher and judge must keep himself abreast of the developments taking shape in the field of law to enhance his knowledge with a view to understanding the complexities of emerging doctrines. While professionals and law teachers have the benefit of exposure through Seminars and Conferences, the same cannot be said of judges, particularly those belonging to the subordinate services, and hence I lay greater emphasis on their training.
With these broad objectives in mind, I would suggest that the Central Government, the concerned State Government, the Bar Council of India and the concerned State Bar Council and all concerned with the legal education programme in the country, should seriously apply their minds to the establishment of more institutions for the present in every State, on the pattern of the National Law School, Bangalore, which would admit bright students after the 10+2 level to a five year course in law. The last year would be devoted to giving intensive and extensive training in the skills and techniques of the chosen discipline, i.e. a professional career or a judicial career. Insofar as the service stream is concerned, admissions should be strictly according to merit and limited to the number of estimated judicial posts to be available for manning the courts in the State at the base-level. In the last year of training in this stream, the students may be provided a stipend, easy access to law courts and mini-pupilage with a senior member of the local Bar, preferably the trial Bar.
Special attention should be paid to acquaint him with the trial procedure, the art of controlling court proceedings, admissibility of evidence and writing of orders and judgments.
Those choosing profession as a career may be trained in the art of communicating with clients, drawing up pleadings and other documents, examination of witnesses, discovery and inspection of documents, research of case law, etc. What I have said is only illustrative and not exhaustive. The last two years of education/training should be a joint-venture between the teaching staff, senior lawyers and judges who may interact with the students to train them as good professionals/judicial officers. Those who successfully clear the course may be conferred a law degree with Honours. The recruitment rules may have to be suitably modified for appointment of the successful students as base-level judicial officers. This will ensure availability of trained personnel to the judiciary. The institute can also undertake refresher courses to fill the necessity for continued education.
I have in all humility made a few suggestions solely actuated by a desire to lift the standard of legal education and improve the image of the legal profession and the judiciary in public esteem. Introspection demands a frank admission of drawbacks without which the process for improvement cannot begin.
The provisions of sec. 7(1) (h) of the Advocates Act, 1961 enable the Bar Council of India to lay down the standards of legal education required for students who seek enrolment to the Bar. It is therefore necessary to refer to some aspects of the standards, particularly those relating to legal skills. In chapter IV we have dealt with ‘minimum standards’ to be laid down by the Bar Council of India. Now, we shall refer to what is meant by ‘standards of legal education’.
5.1 Several efforts have been made from time to time, to improve standards of legal education. The 14th Report of the Law Commission headed by Sri M.C. Setalvad is one of the best and elaborate reports on Legal education. It is something which every person must read. The UGC Curriculum Reports 1988-90 and 2001 must also be read. They were prepared by eminent professors, including Prof. Upendra Baxi. One must also read the recent Ahmadi Committee Report which contains extracts of letters of the Chairman, Bar Council of India and Chairman, University Grants Commission, and views of Chief Justices of various High Courts in the matter of Legal education. Various suggestions were given regarding the courses of study, attendance, entrance examination, final examination, the lecture method, case method, problem method, constitution of Committees and membership, and need for apprenticeship and Bar examination. In this Chapter, we are referring briefly to some of these
aspects and we propose to lay emphasis on Legal Skills and Values as adumbrated in the Mac Crate Report of USA.
Standards of Legal Education & Legal Skills:
5.2 In the Bar Council of India rules, Part IV (as amended upto 30.11.1998) dealing with the subject of ‘Standards of Legal Education and Recognition of Degrees in Law for admission as advocates’, Section A refers to 5-year law course after 10+2 or 11+1, Section B relates to 3-year law course after graduation, and Section C refers to Rules regarding inspection of law colleges by State Bar Councils.
The Ahmadi Committee Report dealt elaborately with the methods of teaching. It referred to the “case method” introduced by Prof. Langdell of Harvard Universtiy and to the “problem method” pioneered by Prof. Carl Llewellyn and Judge Jerome Frank and the Notre Dame Law School. The Report referred to Rule 21 of the Rules and to Sch. I dealing with the 5-year course which contains the following directive:
“10. Every university shall endeavour to supplement the lecture method with the case method, tutorials and other modern techniques of imparting legal education.”
The Report recommended as follows:
“This Rule must be amended in a mandatory form and we should include problem method, moot courts, mock trials and other aspects in this Rule and make them compulsory.”
In tune with the above recommendations, we find in the 5-year course syllabus that Rule 2(c) says as follows:
“2(c): That the course of study in law has been by regular attendance for the requisite number of lectures, tutorials, moot courts and practical training given by a college….”
5.5 Rule 3(2) refers to contact and correspondence programme, tutorials, home assignments, library, clinical work etc. – in all 30 hours per week but class room lectures should not be less than 20 hours.
The National Law School, Bangalore is said to have prepared a new curriculum in 2001 based on the Mac Crate and Harvard curriculum, with modifications suited for Indian conditions.
(see http://www.abanet.org/legaled/publications/onlinepubs/maccrate.html).
5.10 Under chapter V(A) thereof, the legal skills referred are (1) legal research, (2) factual investigation, (3) communication, (4) counselling, (5) negotiation, (6) skills required to employ or to advise a client about the options of litigation and alternative dispute resolution mechanisms, (7) the skill to identify the administrative skills necessary to organize legal work effectively and (8) finally, the skill of analyzing involved in recognizing and resolving ethical dilemmas.
5.18 Teaching must focus on building up the student, skills of analysis, language, drafting and argument. Teachers must bear in mind that while most of the students may choose a professional career as a lawyer, some others may choose a judicial career or career as a legal consultant or law officer in government or an academic career.
5.19 Alternative Dispute Resolution systems [ADR] – mediation, arbitration etc. must be and remain as a compulsory subject.
We, therefore, recommend substitution of the existing clause (h) of subsection (1) of section 7 which merely refers to “promotion of legal
education and laying standards in consultation with the Universities and State Bar Councils” as follows:
(a) for clause (h), the following clauses shall be substituted, namely:-
“(h) to promote legal education and lay down standards of such education in accordance with the recommendations of the Bar Council Legal Education Committee arrived at in the manner specified in section 10AA including, in the matter of-
(i) the prescription of standards relating to curriculum, admission of students, appointment and qualification of teachers;
(ii) the appointment of adjunct teachers from the Bar and from among the retired judges;
(iii) the prescription of conditions of service of the law teachers;
(iv) the prescription of student-teacher ratio;
(v) the laying down of guidelines for adopting different teaching methods;
(vi) specifying the conditions as to the location of law colleges, infrastructure, library and management;
(vii) promoting excellence in legal education for the purposes of the accreditation scheme if any, introduced by the University Grants Commission;
(viii) promoting alternative dispute resolution as a subject of academic study in the law schools for students;
(ix) promoting continuing education on alternative dispute resolution for legal practitioners;
Examination System, Problem Method and
Training Centres for Law Teachers
Examination System
9.1 We shall now refer briefly to the examination systems. The Ahmadi Committee Report, 1994, has referred to this aspect and considered it as something quite important to improve the quality of the students who may ultimately come to the Bar.
9.2 There has been a belief for several years in the past that if one takes up the study of law, one need not attend classes regularly and that if one reads some small books published by some publishers who have an eye only on profit making, - one can easily pass the law examination. Such easy methods have remained very attractive and continue to stay even today for students who just want a bare pass. There are some students who have never read the text of a bare Act, much less any leading commentary. They only depend on some of these small books containing a few theoretical questions which the students think are sufficient. When they go to the Bar, they for the first time open the books containing the Acts or the commentaries and are unable to cope up with the problem of the litigant and the needs of the profession. Of course, what we have said does not apply to the more serious students who have been regular and who are interested deeply in the subjects and in making a mark in the profession but such students are today a small percentage. Nor are we referring here to the students from the new law Universities or to some colleges which are still rated as the best.
9.3 Whatever be the percentage of students who adopt short cuts to pass the law examination, there is, in the view of the Commission, great need to revamp the examination system with the dual object of eliminating malpractices like copying (which do take place in some centres) and the perennial problem of absenteeism in law schools. Mere bookish knowledge must give way to practical aspects of law. This has to start in the college itself.
4. Examination System
We recommend revising the prevailing examination systems and suggest the
development of evaluation methods that test critical reasoning by encouraging essential
analytical, writing and communication skills. The end-semester examination should be
problem-oriented, combining theoretical and problem oriented approaches rather than
merely test memory. Project papers, project and subject viva, along with an end-semester
examination to be considered as pedagogic methods imperative for improving quality.
New Examination System will eliminate absenteeism and malpractices:
9.13 The Ahmadi Committee Report suggested a system where the theory part of the examination – where it is not difficult to get pass marks – is restricted to 25% or 20% marks while 75% or 80% marks should be allocated for legal problems. There must be a separate minimum for the theoretical part and the problems part. The importance of the legal problems part is that the candidate will have to apply his mind independently in the examination hall. He cannot resort to copying nor will he be able to seek any help from the supervisor for unless one is thorough, one cannot follow even if some obliging supervisor in the examination hall is prepared to help him. We may make it clear that we are not here referring to the good and reputed colleges where there are no malpractices.
We are only referring to those colleges where malpractices do persist or are encouraged by some management. Apart from prevention of malpractices, the problem-method will make the student to think and come forward with a practical solution. This is not possible unless the student is thorough with the subject. The problem method will be able to eliminate malpractices.
9.14 In our view, so far as this part of the paper containing the problems is concerned, the students can even be allowed to have the bare Acts to enable them to read the sections clearly and think of an answer. Of course, this may not apply to some subjects like the Law of Torts where several legal principles are based on case law and not statutes.
9.15 The second advantage of the problem method is that students will have to necessarily attend all classes and cannot hope to remain absent, if they have to face such a system of examination.
The third advantage is that students have to apply their mind independently.
Thus the problem method has several advantages – (i) it precludes malpractices; (ii) it makes the students think and study the statutes closely and (iii) absenteeism in classes will get automatically controlled.
The introduction of ‘problem method’ requires generation of a huge data Bank of problems in various subjects.
The Lecture method and Case method:
9.4 Methods of teaching have been changing from time to time. The time old method of lectures was supplemented by the ‘case method’ introduced by Prof. Langdell in Harvard in 1911 and these have been supplemented by the ‘problem method’later.
Problem method:
9.5 The ‘problem method’ of teaching is today considered more important than the other two methods.
9.6 The problem method was introduced by Prof. Jerome Frank in his article “Why not a Clinical Lawyer School’ 81. U. Pa L. Rev. 907 (1933) which he expanded in his thesis in “Both Ends Against the Middle’ (1951) 100 U. Pa L. Rev. 20, where he grumbled that Legal education should not remain ‘hypnotized by Langdell’s ghost’. He also said that the law curriculum should include ‘social sciences and humanities’. Law is linked with economics, politics, cultural anthropology, and ethical ideals.
Mr. Stephen Nathanson in his ‘Developing Legal Problem Solving Skills’ (1994) Vol. 44 Journal of Legal Education (p. 215) says that teachers should synthesize “general problem-solving skills and context-specific knowledge”.
In 1992, the American Bar Association’s Mac Crate Report identified problem-solving as the most fundamental of all legal skills
9.11 The American Association of Law Schools (AALS) in their 1942 Report stated as follows:
“The merit of the problem method is that it more effectively forces the law student to reflect on the application of pertinent materials to new situations and accustoms him to thinking of case and statute law as something to be used, rather than as something to be assimilated for its own sake.”
A later AALS Report lists five virtues of the problem method: (1) it approximates the lawyer’s approach to the law, (2) it affords training in planning and advising, (3) it broadens the range of matters open to the students consideration, (4) it increases the effectiveness of instruction where case-law is inadequate (primarily where legislation is involved), and (5) it provides the stimulus to student interest. Prof. Myron Moskovitz in the above article (at Page 249) has referred to a large volume a literature on ‘problem method’.
New Examination System will eliminate absenteeism and malpractices:
9.13 The Ahmadi Committee Report suggested a system where the theory part of the examination – where it is not difficult to get pass marks – is restricted to 25% or 20% marks while 75% or 80% marks should be allocated for legal problems. There must be a separate minimum for the theoretical part and the problems part. The importance of the legal problems part is that the candidate will have to apply his mind independently in the examination hall. He cannot resort to copying nor will he be able to seek any help from the supervisor for unless one is thorough, one cannot follow even if some obliging supervisor in the examination hall is prepared to help him. We may make it clear that we are not here referring to the good and reputed colleges where there are no malpractices.
We are only referring to those colleges where malpractices do persist or are encouraged by some management. Apart from prevention of malpractices, the problem-method will make the student to think and come forward with a practical solution. This is not possible unless the student is thorough with the subject. The problem method will be able to eliminate malpractices.
9.14 In our view, so far as this part of the paper containing the problems is concerned, the students can even be allowed to have the bare Acts to enable them to read the sections clearly and think of an answer. Of course, this may not apply to some subjects like the Law of Torts where several legal principles are based on case law and not statutes.
9.15 The second advantage of the problem method is that students will have to necessarily attend all classes and cannot hope to remain absent, if they have to face such a system of examination.
The third advantage is that students have to apply their mind independently.
Thus the problem method has several advantages – (i) it precludes malpractices; (ii) it makes the students think and study the statutes closely and (iii) absenteeism in classes will get automatically controlled.
The introduction of ‘problem method’ requires generation of a huge data Bank of problems in various subjects.
In the matter of prescribing topics for the law course, the Commission considers that clinical legal education may be made mandatory subject.
the Delhi university has for many years now been running a successful legal clinical education programme where students are able to provide minimal legal assistance in the form of drawing of the petitions/applications and offering legal advice, to undertrial prisoners and inmates of custodial institutions. This could be made mandatory in all law colleges.
Training centres for Law teachers
9.16 Yet another important aspect is about the need to revamp the teaching system by establishing a number of special institutions to enable law teachers to update their knowledge. While we agree that there are several good teachers in law schools who are highly qualified and very competent, there is always need to keep abreast of latest needs of the practitioners, and of the latest Judgments of our Courts.
9.21 We also recommend that the ‘problem method’ be introduced in the examination system to an extent of above 75% in each paper, apart from
25% for theory. The students should obtain a separate minimum number of marks for the theory and a separate minimum in the problem part of the examination. This will enable the student to apply their mind seriously to every subject. This will also eliminate malpractices. Attendance to classes is also bound to improve.
Legal Education is a subject which requires in-depth study and research by members of both the Legal Education Committees so that our law schools and Universities can benefit by the said information and steps can be taken to improve the quality of teaching and produce students who can catch up with international standards.
10.7 It is true that in recent times a few specialized institutions have been started in various States – in Hyderabad, Jodhpur, Bhopal, Calcutta etc. These statutory law universities or deemed universities have been started on the model of the National Law School, Bangalore. In fact, the need to establish such institutions was one of the recommendations of the Justice Ahmadi Committee in 1994. These institutions, in each State, today project an image of excellence in legal education. (Unfortunately, most of these students are taking up jobs in big companies and only a few among them are coming to the Bar. May be, corporates also need some well trained personnel or else, otherwise the companies may go outside India for expert legal advice. But, most of these law graduates must be persuaded to come to the bar). We cannot, however, rest content with a few star colleges. We must be concerned with all the rest of the hundreds of law colleges located in cities and districts headquarters all over the country. A few bright-star colleges with limited number of student-intake based on all-India selection is not the end and may not result in an overall change in the level of legal education.
Legal Education has to be taken seriously and kept on a high pedestal.
The Supreme Court considered the question in V. Sudheer vs. Bar Council of India 1999 (3) SCC 176 whether, having regard to the legislative history which revealed that the Training was part of the mandate in the Act, the same could not be reintroduced by way of a Rule by the Bar Council of India.
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The court held that once the relevant statutory provisions in sec. 24(1)(d) or in the proviso thereto were deleted and also when the subject of Training which was one of the items enumerated in clause (b) of subsection (2) of sec. 28, (sec. 28 being the section relating to rule making), was deleted in 1973, the Bar Council of India could not have made any rule regarding Training and such a condition had to be introduced only by an Act by the Legislature. It was also held that it was for the State Bar Councils to introduce Training and that the Bar Council of India could not by itself introduce the Training.
12.6 It must be noted that the Supreme Court in V. Sudheer’s case merely considered whether the new Rules were ultra vires of the provisions of the Act. It did not say anywhere that Training was not necessary.
12.6 It must be noted that the Supreme Court in V. Sudheer’s case merely considered whether the new Rules were ultra vires of the provisions of the Act. It did not say anywhere that Training was not necessary. On the other hand, it expressly endorsed the need for reintroducing training and accepted the recommendations of the Ahmadi Committee. It said: (pp. 210-211)
“Before parting with these matters, it is necessary to note that in the light of the experience of various courts in which advocates are practising since the time the Advocates Act has come into force, the Law Commission of India and other expert bodies that were entrusted with the task of suggesting improvements in the standards of legal education and legal practitioners felt it necessary to provide for compulsory training to young advocates entering the portals of the courtrooms.
12.7 After saying so, the Supreme Court further observed (p. 211) as follows:
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“It is true that these suggestions of the High-Powered Committee clearly highlighted the crying need for improving the standards of legal education and the requirements for new entrants to the legal profession of being equipped with adequate professional skill and expertise. There cannot be any dispute on this aspect.
12. Rule 21 of the Bar Council Rules directing that every university shall endeavour to supplement the lecture method with case method, tutorials and other modern techniques of imparting legal education must be amended in a mandatory form and it should include problem method, moot courts, mock trials and other aspects and make them compulsory.
13.(i) Participation in moot courts, mock trials, and debates must be made compulsory and marks awarded, (ii) practical training in drafting pleadings, contracts can be developed in the last year of the study, and (iii) students’ visits at various levels to the courts must be made compulsory so as to provide a greater exposure.
There is a great difference between learning about the skills in the college curriculum and witnessing the actual presentation of skills in court. Once a person joins the office of a senior and studies an individual case, either at the trial stage or at the appellate stage, watches the preparation and research of the senior in his chamber, or assists him in the preparation or research or the actual process of witness examination, discovery, inspection procedures in a civil case or the actual arguments in interlocutory matters, (e.g. injunction or receiver applications) or the arguments at the final stage of the trial or appeal or watches the preparation in a criminal case from the stage of anticipatory bail to the ultimate stage of arguments after the trial – then only can he realize the difference between reading about skills and the actual performance of skills . There are so many legal skills in the profession which can be learnt only in the chambers of a lawyer or in a court and these are learnt day by day. All these cannot be learnt in the college even though; the studying in college may give the student some idea of the skills.
Summary of Recommendations
This summary of recommendation is gathered from the various Chapters I to XIII and arranged subject-wise for the purpose of convenience.
1) In as much as the Bar Council of India cannot be required to consult all Universities, as now stated in section 7 (1) (h), the provisions of section 7(1)(h) have to be amended by prescribing that the Bar Council of India must consult a body which effectively represents all the Universities and that such a body should be constituted by the University Grants Commission. This requires amendment of the Advocates Act, 1961 and the University Grants Commission Act, 1956.
(para 2.22)
2) The consultation procedure between the Bar Council of India and the Universities must be simple and effective.
(para 2.21)
3) Section 7(1) (h) has to be amended by providing for ‘consultation’ as proposed in sections 10AA to be inserted in the Advocates Act, 1961 with the Legal Education Committee of the University Grants Commission.
(para 3.13(1).
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4) Clause (b) of subsection (2) of sec. 10 has to be amended to provide for membership of Legal Education Committee of the Bar Council of India, representing different classes of person. The Committee shall comprise of 5 members from the Bar Council of India, one retired Judge of the Supreme Court of India, one retired Chief Justice/Judge of a High Court both to be nominated by the Chief Justice of India and three academicians in law to be nominated by the University Grants Commission and these three should be members of the proposed UGC Committee on Legal Education and all three of them must be in office and one of them must be Director/Vice-Chancellor of a statutory Law University. The retired Judge of the Supreme Court shall be the Chairman of the Committee. (para 3.12(2))
5) The Attorney General for India can, at his option, participate in the meetings of the Legal Education Committee of the Bar Council of India and the Chairman of that Committee shall be entitled to request the Attorney General to participate in the proceedings of the Committee and when he so participates, he is entitled to vote.
(para 3.13 (3))
6) The Bar Council Legal Education Committee shall decide all matters in its meeting by majority of votes of the members present and voting, and in the event of equality of votes, the Chairman shall have an exercise a casting vote.
(para 3.13 (4))
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7) The Bar Council Legal Education Committee shall meet at least once in three months.
(para 3.13 (5))
8) In sub-section (4) of section 10A, for the words ‘every committee thereof except the disciplinary committees’, the words ‘every committee thereof except the Bar Council Legal Education Committee and the disciplinary committees’, should be substituted.
(para 3.13 (6))
9) The U.G.C. Committee on Legal Education to be constituted by the U.G.C. The Committee to consist of ten members, of whom (a) six shall be academicians of the level of Professors, Deans or Principals or of equal rank, (b) two shall be law teachers of similar ranks who have retired and (c) two shall be Directors/Vice-Chancellors of statutory Law Universities.
Section 5A to be inserted in the UGC Act, 1956 for constitution of UGC Legal Education Committee.
(paragraphs 4.14 and 4.21)
10) The procedure for consultation referred to in sec. 7(1)(h) shall be as follows: After the Legal Education Committee of the Bar Council of India consults the State Bar Councils, it shall consult the Legal Education Committee of the UGC which shall forward its views back to the Legal Education Committee of the Bar Council of India and the latter Committee shall then take a final decision. Section 10 AA to be inserted in the
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Advocates Act, 1961 for providing consultation procedure to be followed by the Bar Council Legal Education Committee.
(paragraphs 4.3 and 4.20)
11) The UGC can also initiate proposals by sending the same for consideration of the Legal Education Committee of the Bar Council of India, in which case the same procedure will be followed by the Legal Education Committee of the Bar Council of India, which it follows in the matter of proposals initiated by it.
(para 4.4)
12) The Bar Council of India should implement the decisions of the Legal Education Committee of the Bar Council of India.
(para 4.15)
13) The Bar Council Legal Education Committee should take into consideration various factors mentioned in para 4.17 before passing any resolution in respect of standards of legal education.
(para 4.17)
14) Section 7(1)(h) be amended to provide that standards of legal education shall be laid down by the Bar Council of India in accordance with the recommendations made by the Legal Education Committee of the Bar Council of India after consultation with the State Bar Councils and the Legal Education Committee of the UGC, as mentioned in the proposed section 10AA and the word, ‘standards’ shall mean various matters referring to curricula etc. as detailed in para 5.24.
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(para 5.24)
15) ADR training must be introduced for law student and lawyers as follows:
(1) for students, ADR system to be made compulsory subject in LL.B. course; and
(2) for lawyers, short-term training, certificate, diploma courses on ADR to be introduced on a massive scale all over the country, for purpose of section 89 of Civil Procedure Code.
(para 6.5, 6.6)
16) The High Court and the Bar Council of India, the State Bar Councils, the Indian Law Institute and the ICADR and similar organizations should start ADR training programmes for lawyers and judicial officers. The training should be a short one for one week, or it may be one-month certificate course or a six-month or a one-year diploma course.
(para 6.11)
17) Section 7 (1) (h) to be amended to enable the Bar Council of India to promote ADR as a subject of academic study in the law school to students and also to promote continuing education on ADR to legal practitioner.
(para 6.11)
18) Bar Council of India can lay down minimum standards necessary for courses for students who will come into legal profession but not in respect of other law courses which do not lead to a professional career. UGC can
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prescribe higher standards. (para 4.10 to 4.12)
19) UGC and BCI to introduce a system of Accreditation of law colleges. Section 7 (1) (h) should be amended to enable Bar Council of India to promote excellence in legal education for the purpose of accreditation system.
(para 5.22)
20) It is proposed to recommend amendment of clause (h) in sec. 7(1) enabling the Bar Council of India to lay down procedure and conditions for appointment of Adjunct teachers who are to be appointed from among members of the Bar and the retired Judges. This has to be done in consultation with the State Bar Councils and the Legal Education Committee of the Bar Council of India and the Legal Education Committee of the UGC.
(para 7.12)
21) It is proposed that a separate provision be inserted in the Advocates Act for providing that no law college or a law department of a university shall impart instructions in course of study in law which lead to enrolment as an advocate unless a permission has been granted by the Bar Council of India in this regard. It is also proposed that no law college or law department of university or any other institution shall continue to impart instruction in such course, if the permission granted by the Bar Council of India has been withdrawn. Further that any fees collected towards admission in violation of this provision shall be refunded. It is also
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proposed that violation of this provision shall amount to an offence punishable under proposed new section 45A.
It is proposed that existing section 7A be renumbered as 7D and after section 7, above mentioned provision be inserted.
(paras 8.3.1 & 8.3.2)
22) A separate clause in sub-section (1) of section 7 be added to enable the Bar Council of India to grant permission for imparting instruction to a law department of a university or a law college and to withdraw such permission.
(para 8.13)
23) It is recommended that separate provisions be incorporated in the Advocates Act, 1961 for providing that in case of any conflict in the inspection reports of the Bar Council of India and of the UGC/Universities or where there is a big gap between the claims of the management and the Inspection Committee, a Task Force should make inspection on the same lines as in the Regulations of the AICTE in which a Judicial Officer would be a member. For this purpose, it is proposed that new sections 7B and 7C be added in the Advocates Act. Consequently, inspection Rules framed by the Bar Council of India should be amended.
(para 8.12)
24) The existing section 7 (1) (i) should deal only with recognition of universities. For the purpose of inspection of law colleges and universities, separate provisions should be inserted in the form of section 7B and 7C.
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Consequently, sections 6 (1) (gg), 7 (1) (i), 49 (1) are also required to be amended.
(para 8.13)
25) It is recommended that the ‘problem method’ be introduced in the examination system to an extent of about 75% in each paper, apart from 25% for theory. The students should obtain a separate minimum number of marks for the theory and a separate minimum in the problem part of the examination. This will enable the students to apply their mind seriously to every subject. This will also eliminate malpractices like copying or seeking help of invigilators. Attendance to classes is also bound to improve.
(para 9.21)
26) It is also recommended that the clinical legal education may be made a compulsory in legal education.
(para 9.15)
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27) The Central Government should start at least four colleges in the country for providing professional training to law teachers in consultation with the Bar Council of India and the University Grants Commission.
(para 9.18)
28 Section 7 (1) may be amended by adding clauses (ie) and (if) as follows:
“(ie) to take such measures to establish institutions for continuing legal education for law teachers;
(if) to take measures for raising the standards of teaching in law in consultation with the Central Government, the State Governments and the University Grants Commission.”
(para 9.20)
29) It is recommend that in sec. 7 (1), clause (ig) be added as follows:
“(ig) to create awareness of the latest trends in legal education by establishing legal education libraries at the offices of the Bar Council of India and all State Bar Councils and universities and in law colleges.”
(para 10.9)
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30) Section 7(1) (i) to be amended for providing disaffiliation or derecognition of a College or a University in case a College or University does not implement the lawful directions of the Bar Council of India or State Bar Councils.
(para 11.1)
31) In Section 49 (1) following clause should be added, namely:
“(aj) the procedure regarding recognition and de-recognition of such universities as referred to in clause (i) of sub-section(1) of section 7 and the procedure regarding the issuing of direction to a university to disaffiliate a Law college;”
(para 11.3)
32) Training for one-year (Apprenticeship) in the Chambers of a lawyer with at least ten years standing and Bar Examination to be introduced for a law graduate before he enters the legal profession, by amendment of the Act. Power to do so to be vested only in Bar Council of India. Sections 7, 24 and 49 to be amended.
(para 12.23)
33) Officers in private or public service, dismissed or removed from service or convicted on the ground of charges involving moral turpitude, to be debarred totally from entering into the profession. Section 24A (1) should be amended.
(paras 13.2 & 13.6)
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We recommend accordingly. Dated: 20.12.2002.
At the time of enactment of the Advocates Act, 1961, it was envisaged that legal education would only produce lawyers for the courts and accordingly the BCI had been entrusted with the limited role of ‘promoting legal education and laying down minimum standards of legal education’ required for students who ‘are entitled to practice’. In the
last fifty years, and particularly after liberalization in 1991, the entire concept of legal
education has changed considerably. Today, legal education has to meet not only the
requirements of the Bar but also the new needs of trade, commerce and industry, in the
context of growing internationalization of the profession. The need for improvement in
2
overall quality to match global standards has become even more salient when viewed
from such a perspective. In light of the changed scenario in the last fifty years and the
existing gaps and deficiencies in overall quality, 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. The BCI would
however continue to exercise its powers to recommend minimum standards required for
practice in the courts. Further, the BCI would continue to enjoy its powers of discipline
so far as the members of the Bar are concerned. A more detailed analysis of the rationale, structure and functions of the new regulatory mechanism, as excerpted from the working group report.
The National Knowledge Commission, while deliberating on issues related to knowledge
concepts, recognizes legal education as an important constituent of professional education. The vision of legal education is to provide justice-oriented education essential
to the realization of values enshrined in the Constitution of India. In keeping with this
vision, legal education must aim at preparing legal professionals who will play decisive
leadership roles, not only as advocates practicing in courts, but also as academics,
legislators, judges, policy makers, public officials, civil society activists as well as
legal counsel in the private sector, maintaining the highest standards of professional
ethics and a spirit of public service. Legal education should also prepare professionals
equipped to meet the new challenges and dimensions of internationalization, where the
nature and organization of law and legal practice are undergoing a paradigm shift.
Further, there is need for original and path breaking legal research to create new legal
knowledge and ideas that will help meet these challenges in a manner responsive to the
needs of the country and the ideals and goals of our Constitution. Legal professionals should be equipped with skills with deeper understanding of professional ethics, modernizing clinic courses, mainstreaming legal aid programs and developing innovative pedagogic methods. Legal education must also be socially engaged and sensitize students to issues of social justice.
Examination System
We recommend revising the prevailing examination systems and suggest the
development of evaluation methods that test critical reasoning by encouraging essential
analytical, writing and communication skills. The end-semester examination should be
problem-oriented, combining theoretical and problem oriented approaches rather than
merely test memory. Project papers, project and subject viva, along with an end-semester
examination to be considered as pedagogic methods imperative for improving quality.
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 lawteaching.
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. There is also an enormous need for non-practising law graduates in
trade and commerce. It is also necessary to allow engineers, chartered
Accountants, scientists and doctors to qualify in law for non-practising purposes.
Indeed, it is gratifying that some Indian Institute of Technology (“IIT”)
institutions have recently started several courses in law. The Open University
system must also be allowed to cater to legal education. The Bar Council of India
may, of course, still deal with the minimum standards of legal education for the
purposes of entry into the Bar but there is a need to have a new regulatory
mechanism that will cater to the aforementioned present and future needs of the
country.
India and the various resolutions in other conferences have repeatedly pointed out
that the BCI has granted permission to a large number of law schools that are
maintaining very poor standards and have very poor infrastructure.
1.6 Most of the seven hundred odd law schools do not compare well with the
standards and curriculum required in the present age
1.6.1 While the NLSUs and some other law schools teach a very large
Today, we have about 11 NLSUs where students are selected in an all India
competition. These colleges have been producing our best legal talent
comparable to the most renowned colleges in U.S and U.K. However, this alone is
not sufficient for our purposes and we have to raise the standards of the remaining
700 odd law schools. The Law Commission has indeed observed in its 184th
Report (2002) (see para 10.7) as follows:
“We cannot, however, rest content with a few star colleges. We must be
concerned with all the rest of the hundreds of law colleges located in cities
and district headquarters all over the country. It is these students who
come to the Bar in great numbers at the grass root level… A few bright
star colleges with limited number of student intake in an All India
selection is not the end and may not result in an over all change in the
level of legal education”.
Needs of the Bar and Subordinate Judiciary are not met by the graduates
from the existing 700 and odd law schools:
1.7.1 Recently, the Supreme Court of India has observed in All India Judges
Association Vs. Union of India (2002) 3 SCALE 291 = (2002) 4 SCC 247,
(2002) 2 SCR 712 = AIR 2002 SC 1752 that recruitment rules in the States should
be amended to permit raw graduates from the law schools to enter the subordinate
judiciary.
To meet various new challenges
Legal education must be socially engaged. This means that legal education
programs must compulsorily expose students to the problems of poverty, social
exclusion, social change and environmental degradation through clinical legal
education, legal aid programs and through seminars and debates that sensitize and
expose students to issues of social justice. Working with the poor through one or
other program must become a mandatory part of the curriculum. Faculty must
include individuals with inter-disciplinary training and direct experience on social
issues. This situation that has been created can be broken only by
establishing an independent regulatory mechanism with an international vision,
which can see beyond the requirements of ‘entry into the Bar’
A new regulatory mechanism is needed with powers to deal with all aspects
of legal education:
Chief Justice A.M.Ahmadi pointed out in one of his lecture, “I think we have waited long enough
to repair the cracks of the Legal Education system of this country and it is high time that we rise
from our arm chairs and start the repair work in right earnest.” The reforms in Legal Education and
Legal Profession have been long over due.
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.
The Indian law teacher's conception of law is typically a static one, and he approaches legal
education through a lecture method, emphasizing systematic presentation and verbal analysis of the
existing structure of rule and doctrine. Little attention is paid either to the policies that underlie the
rules or to the processes of growth and development through which the legal system adapts old
rules or announces new ones.
Lecture method
Stereotyped system
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.
Monotonous
The monologue lecture method 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.
The 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 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.
The teaching methods have to be participatory and interactive rather than lectures. The teaching of skills has to necessarily employ a range of clinical methods, which are now available in legal pedagogy. In fact, a revolutionary change in legal education is required not only in terms of curriculum planning but also in training methods.
The conventional lecture method is the main method for delivering legal education in India although there is some marginal use of other methods such as group exercises, role play, etc. Teachers are delivering the material primarily in lecture mode.
“New legal education” has arisen as a movement to become more responsive to the practical needs of learners. It encourages faculty to use other instructional methods in addition to lecture.
Work is needed to develop new pedagogical approaches to legal education in India. International experience involves the use of a number of imaginative teaching methods based on alternative learning frameworks such as experiential learning and self-learning.
Some of the pedagogical methods that could be effectively used for legal education include the following:
• critical thinking;
• discussion groups/brainstorming;
• debates;
• demonstration;
• diagnostic analysis
• field visits;
• field trips;
• guidelines;
• “learning by doing”;
• laboratory work;
• moot courts;
• problem solving;
• Question &Answer;
• research/project analysis;
• small group work;
• Stimulations.
• Use of case studies;
• use of hypothetical;
Since teaching is an intensely personal activity the quality of legal education would largely depend on the availability of law teachers of the right stamp. Here a fine blending between the active method i.e. the case-method, also known as the Langdell method, and the passive method i.e. the lecture method, would help. If the students are first familiarised with the subject by the lecturer and thereafter their active participation is sought with reference to a particular case, it will enable the teacher to appreciate the receptivity and capacity of the student to understand and absorb the jurisprudential principles of the topic under discussion. That will help the teacher to identify students needing greater attention.
The Curriculum Development Centre of the University Grants Commission suggested a new curriculum offering twelve core (compulsory) courses plus a course in practical training in law with seven optional subjects.6 I do not consider it necessary to detail the subjects but it is sufficient to say that the recommendation notices the need for integration referred to earlier. In modern times the need for continuing legal education can never be over-emphasised in this fast-changing world where new disciplines in the legal field are surfacing with astonishing speed. Every conscientious professional, law teacher and judge must keep himself abreast of the developments taking shape in the field of law to enhance his knowledge with a view to understanding the complexities of emerging doctrines. Professionals and law teachers have the benefit of exposure through Seminars and Conferences.
Then steps must be taken to remove the defects in the examination system itself and curb the malpractices at the examination centers and in the evaluation of answer books. There must also be transparency about the quality of the assessment.
It is necessary to appreciate that hitherto the examinations have dictated the content and mode of teaching rather than the teaching method dictating the pattern of examinations. This has been the root cause of the low status accorded to a law degree because, as pointed out by the Law Commission, students are able to clear the examinations by cramming from short summaries published by enterprising publishers who are least concerned about the maintenance of the standard of legal education. There is then an immediate need to take remedial measures.
By the enactment of the Advocates Act, 1961, the Bar Council of India is charged with the duty to promote legal education, to lay down the standards of legal education and to recognize university law degree courses as qualifying for enrolment as an Advocate. Subject to certain very limited exceptions, a university law degree is essential for entry into the profession. Since all law teaching is undertaken by universities, and colleges affiliated to universities, and since a recognised university law degree is in itself sufficient qualification for entry into the profession, a heavy duty lies on those who manage the affairs of the Bar Council of India (which also supervises the working of the State Bar Councils) to take appropriate steps to enhance the prestige of the legal profession by ensuring high quality legal education. Despite the efforts made by the Bar Council of India, the professional legal education continues to suffer from a variety of drawbacks some enumerated hereinabove. However, the initiative of the Bar Council of India in sponsoring the National Law School of India University (Bangalore) is indeed praiseworthy.
Several suggestions have been made by Judges, lawyers and law teachers, responsible bodies and institutions for improving the quality of legal education in India. These include reintroduction of the apprenticeship system, reintroduction of the post-degree Bar examination as a pre-requisite for enrolment as an advocate, a training centre for continuing education, a training institute for Judges, etc. Since teaching is an intensely personal activity the quality of legal education would largely depend on the availability of law teachers of the right stamp. The focus must next shift on the method of education. Here a fine blending between the active method i.e. the case-method, also known as the Langdell method, and the passive method i.e. the lecture method, would help. If the students are first familiarised with the subject by the lecturer and thereafter their active participation is sought with reference to a particular case, it will enable the teacher to appreciate the receptivity and capacity of the student to understand and absorb the jurisprudential principles of the topic under discussion. That will help the teacher to identify students needing greater attention.
Every conscientious professional, law teacher and judge must keep himself abreast of the developments taking shape in the field of law to enhance his knowledge with a view to understanding the complexities of emerging doctrines. While professionals and law teachers have the benefit of exposure through Seminars and Conferences, the same cannot be said of judges, particularly those belonging to the subordinate services, and hence I lay greater emphasis on their training.
With these broad objectives in mind, I would suggest that the Central Government, the concerned State Government, the Bar Council of India and the concerned State Bar Council and all concerned with the legal education programme in the country, should seriously apply their minds to the establishment of more institutions for the present in every State, on the pattern of the National Law School, Bangalore, which would admit bright students after the 10+2 level to a five year course in law. The last year would be devoted to giving intensive and extensive training in the skills and techniques of the chosen discipline, i.e. a professional career or a judicial career. Insofar as the service stream is concerned, admissions should be strictly according to merit and limited to the number of estimated judicial posts to be available for manning the courts in the State at the base-level. In the last year of training in this stream, the students may be provided a stipend, easy access to law courts and mini-pupilage with a senior member of the local Bar, preferably the trial Bar.
Special attention should be paid to acquaint him with the trial procedure, the art of controlling court proceedings, admissibility of evidence and writing of orders and judgments.
Those choosing profession as a career may be trained in the art of communicating with clients, drawing up pleadings and other documents, examination of witnesses, discovery and inspection of documents, research of case law, etc. What I have said is only illustrative and not exhaustive. The last two years of education/training should be a joint-venture between the teaching staff, senior lawyers and judges who may interact with the students to train them as good professionals/judicial officers. Those who successfully clear the course may be conferred a law degree with Honours. The recruitment rules may have to be suitably modified for appointment of the successful students as base-level judicial officers. This will ensure availability of trained personnel to the judiciary. The institute can also undertake refresher courses to fill the necessity for continued education.
I have in all humility made a few suggestions solely actuated by a desire to lift the standard of legal education and improve the image of the legal profession and the judiciary in public esteem. Introspection demands a frank admission of drawbacks without which the process for improvement cannot begin.
The provisions of sec. 7(1) (h) of the Advocates Act, 1961 enable the Bar Council of India to lay down the standards of legal education required for students who seek enrolment to the Bar. It is therefore necessary to refer to some aspects of the standards, particularly those relating to legal skills. In chapter IV we have dealt with ‘minimum standards’ to be laid down by the Bar Council of India. Now, we shall refer to what is meant by ‘standards of legal education’.
5.1 Several efforts have been made from time to time, to improve standards of legal education. The 14th Report of the Law Commission headed by Sri M.C. Setalvad is one of the best and elaborate reports on Legal education. It is something which every person must read. The UGC Curriculum Reports 1988-90 and 2001 must also be read. They were prepared by eminent professors, including Prof. Upendra Baxi. One must also read the recent Ahmadi Committee Report which contains extracts of letters of the Chairman, Bar Council of India and Chairman, University Grants Commission, and views of Chief Justices of various High Courts in the matter of Legal education. Various suggestions were given regarding the courses of study, attendance, entrance examination, final examination, the lecture method, case method, problem method, constitution of Committees and membership, and need for apprenticeship and Bar examination. In this Chapter, we are referring briefly to some of these
aspects and we propose to lay emphasis on Legal Skills and Values as adumbrated in the Mac Crate Report of USA.
Standards of Legal Education & Legal Skills:
5.2 In the Bar Council of India rules, Part IV (as amended upto 30.11.1998) dealing with the subject of ‘Standards of Legal Education and Recognition of Degrees in Law for admission as advocates’, Section A refers to 5-year law course after 10+2 or 11+1, Section B relates to 3-year law course after graduation, and Section C refers to Rules regarding inspection of law colleges by State Bar Councils.
The Ahmadi Committee Report dealt elaborately with the methods of teaching. It referred to the “case method” introduced by Prof. Langdell of Harvard Universtiy and to the “problem method” pioneered by Prof. Carl Llewellyn and Judge Jerome Frank and the Notre Dame Law School. The Report referred to Rule 21 of the Rules and to Sch. I dealing with the 5-year course which contains the following directive:
“10. Every university shall endeavour to supplement the lecture method with the case method, tutorials and other modern techniques of imparting legal education.”
The Report recommended as follows:
“This Rule must be amended in a mandatory form and we should include problem method, moot courts, mock trials and other aspects in this Rule and make them compulsory.”
In tune with the above recommendations, we find in the 5-year course syllabus that Rule 2(c) says as follows:
“2(c): That the course of study in law has been by regular attendance for the requisite number of lectures, tutorials, moot courts and practical training given by a college….”
5.5 Rule 3(2) refers to contact and correspondence programme, tutorials, home assignments, library, clinical work etc. – in all 30 hours per week but class room lectures should not be less than 20 hours.
The National Law School, Bangalore is said to have prepared a new curriculum in 2001 based on the Mac Crate and Harvard curriculum, with modifications suited for Indian conditions.
(see http://www.abanet.org/legaled/publications/onlinepubs/maccrate.html).
5.10 Under chapter V(A) thereof, the legal skills referred are (1) legal research, (2) factual investigation, (3) communication, (4) counselling, (5) negotiation, (6) skills required to employ or to advise a client about the options of litigation and alternative dispute resolution mechanisms, (7) the skill to identify the administrative skills necessary to organize legal work effectively and (8) finally, the skill of analyzing involved in recognizing and resolving ethical dilemmas.
5.18 Teaching must focus on building up the student, skills of analysis, language, drafting and argument. Teachers must bear in mind that while most of the students may choose a professional career as a lawyer, some others may choose a judicial career or career as a legal consultant or law officer in government or an academic career.
5.19 Alternative Dispute Resolution systems [ADR] – mediation, arbitration etc. must be and remain as a compulsory subject.
We, therefore, recommend substitution of the existing clause (h) of subsection (1) of section 7 which merely refers to “promotion of legal
education and laying standards in consultation with the Universities and State Bar Councils” as follows:
(a) for clause (h), the following clauses shall be substituted, namely:-
“(h) to promote legal education and lay down standards of such education in accordance with the recommendations of the Bar Council Legal Education Committee arrived at in the manner specified in section 10AA including, in the matter of-
(i) the prescription of standards relating to curriculum, admission of students, appointment and qualification of teachers;
(ii) the appointment of adjunct teachers from the Bar and from among the retired judges;
(iii) the prescription of conditions of service of the law teachers;
(iv) the prescription of student-teacher ratio;
(v) the laying down of guidelines for adopting different teaching methods;
(vi) specifying the conditions as to the location of law colleges, infrastructure, library and management;
(vii) promoting excellence in legal education for the purposes of the accreditation scheme if any, introduced by the University Grants Commission;
(viii) promoting alternative dispute resolution as a subject of academic study in the law schools for students;
(ix) promoting continuing education on alternative dispute resolution for legal practitioners;
Examination System, Problem Method and
Training Centres for Law Teachers
Examination System
9.1 We shall now refer briefly to the examination systems. The Ahmadi Committee Report, 1994, has referred to this aspect and considered it as something quite important to improve the quality of the students who may ultimately come to the Bar.
9.2 There has been a belief for several years in the past that if one takes up the study of law, one need not attend classes regularly and that if one reads some small books published by some publishers who have an eye only on profit making, - one can easily pass the law examination. Such easy methods have remained very attractive and continue to stay even today for students who just want a bare pass. There are some students who have never read the text of a bare Act, much less any leading commentary. They only depend on some of these small books containing a few theoretical questions which the students think are sufficient. When they go to the Bar, they for the first time open the books containing the Acts or the commentaries and are unable to cope up with the problem of the litigant and the needs of the profession. Of course, what we have said does not apply to the more serious students who have been regular and who are interested deeply in the subjects and in making a mark in the profession but such students are today a small percentage. Nor are we referring here to the students from the new law Universities or to some colleges which are still rated as the best.
9.3 Whatever be the percentage of students who adopt short cuts to pass the law examination, there is, in the view of the Commission, great need to revamp the examination system with the dual object of eliminating malpractices like copying (which do take place in some centres) and the perennial problem of absenteeism in law schools. Mere bookish knowledge must give way to practical aspects of law. This has to start in the college itself.
4. Examination System
We recommend revising the prevailing examination systems and suggest the
development of evaluation methods that test critical reasoning by encouraging essential
analytical, writing and communication skills. The end-semester examination should be
problem-oriented, combining theoretical and problem oriented approaches rather than
merely test memory. Project papers, project and subject viva, along with an end-semester
examination to be considered as pedagogic methods imperative for improving quality.
New Examination System will eliminate absenteeism and malpractices:
9.13 The Ahmadi Committee Report suggested a system where the theory part of the examination – where it is not difficult to get pass marks – is restricted to 25% or 20% marks while 75% or 80% marks should be allocated for legal problems. There must be a separate minimum for the theoretical part and the problems part. The importance of the legal problems part is that the candidate will have to apply his mind independently in the examination hall. He cannot resort to copying nor will he be able to seek any help from the supervisor for unless one is thorough, one cannot follow even if some obliging supervisor in the examination hall is prepared to help him. We may make it clear that we are not here referring to the good and reputed colleges where there are no malpractices.
We are only referring to those colleges where malpractices do persist or are encouraged by some management. Apart from prevention of malpractices, the problem-method will make the student to think and come forward with a practical solution. This is not possible unless the student is thorough with the subject. The problem method will be able to eliminate malpractices.
9.14 In our view, so far as this part of the paper containing the problems is concerned, the students can even be allowed to have the bare Acts to enable them to read the sections clearly and think of an answer. Of course, this may not apply to some subjects like the Law of Torts where several legal principles are based on case law and not statutes.
9.15 The second advantage of the problem method is that students will have to necessarily attend all classes and cannot hope to remain absent, if they have to face such a system of examination.
The third advantage is that students have to apply their mind independently.
Thus the problem method has several advantages – (i) it precludes malpractices; (ii) it makes the students think and study the statutes closely and (iii) absenteeism in classes will get automatically controlled.
The introduction of ‘problem method’ requires generation of a huge data Bank of problems in various subjects.
The Lecture method and Case method:
9.4 Methods of teaching have been changing from time to time. The time old method of lectures was supplemented by the ‘case method’ introduced by Prof. Langdell in Harvard in 1911 and these have been supplemented by the ‘problem method’later.
Problem method:
9.5 The ‘problem method’ of teaching is today considered more important than the other two methods.
9.6 The problem method was introduced by Prof. Jerome Frank in his article “Why not a Clinical Lawyer School’ 81. U. Pa L. Rev. 907 (1933) which he expanded in his thesis in “Both Ends Against the Middle’ (1951) 100 U. Pa L. Rev. 20, where he grumbled that Legal education should not remain ‘hypnotized by Langdell’s ghost’. He also said that the law curriculum should include ‘social sciences and humanities’. Law is linked with economics, politics, cultural anthropology, and ethical ideals.
Mr. Stephen Nathanson in his ‘Developing Legal Problem Solving Skills’ (1994) Vol. 44 Journal of Legal Education (p. 215) says that teachers should synthesize “general problem-solving skills and context-specific knowledge”.
In 1992, the American Bar Association’s Mac Crate Report identified problem-solving as the most fundamental of all legal skills
9.11 The American Association of Law Schools (AALS) in their 1942 Report stated as follows:
“The merit of the problem method is that it more effectively forces the law student to reflect on the application of pertinent materials to new situations and accustoms him to thinking of case and statute law as something to be used, rather than as something to be assimilated for its own sake.”
A later AALS Report lists five virtues of the problem method: (1) it approximates the lawyer’s approach to the law, (2) it affords training in planning and advising, (3) it broadens the range of matters open to the students consideration, (4) it increases the effectiveness of instruction where case-law is inadequate (primarily where legislation is involved), and (5) it provides the stimulus to student interest. Prof. Myron Moskovitz in the above article (at Page 249) has referred to a large volume a literature on ‘problem method’.
New Examination System will eliminate absenteeism and malpractices:
9.13 The Ahmadi Committee Report suggested a system where the theory part of the examination – where it is not difficult to get pass marks – is restricted to 25% or 20% marks while 75% or 80% marks should be allocated for legal problems. There must be a separate minimum for the theoretical part and the problems part. The importance of the legal problems part is that the candidate will have to apply his mind independently in the examination hall. He cannot resort to copying nor will he be able to seek any help from the supervisor for unless one is thorough, one cannot follow even if some obliging supervisor in the examination hall is prepared to help him. We may make it clear that we are not here referring to the good and reputed colleges where there are no malpractices.
We are only referring to those colleges where malpractices do persist or are encouraged by some management. Apart from prevention of malpractices, the problem-method will make the student to think and come forward with a practical solution. This is not possible unless the student is thorough with the subject. The problem method will be able to eliminate malpractices.
9.14 In our view, so far as this part of the paper containing the problems is concerned, the students can even be allowed to have the bare Acts to enable them to read the sections clearly and think of an answer. Of course, this may not apply to some subjects like the Law of Torts where several legal principles are based on case law and not statutes.
9.15 The second advantage of the problem method is that students will have to necessarily attend all classes and cannot hope to remain absent, if they have to face such a system of examination.
The third advantage is that students have to apply their mind independently.
Thus the problem method has several advantages – (i) it precludes malpractices; (ii) it makes the students think and study the statutes closely and (iii) absenteeism in classes will get automatically controlled.
The introduction of ‘problem method’ requires generation of a huge data Bank of problems in various subjects.
In the matter of prescribing topics for the law course, the Commission considers that clinical legal education may be made mandatory subject.
the Delhi university has for many years now been running a successful legal clinical education programme where students are able to provide minimal legal assistance in the form of drawing of the petitions/applications and offering legal advice, to undertrial prisoners and inmates of custodial institutions. This could be made mandatory in all law colleges.
Training centres for Law teachers
9.16 Yet another important aspect is about the need to revamp the teaching system by establishing a number of special institutions to enable law teachers to update their knowledge. While we agree that there are several good teachers in law schools who are highly qualified and very competent, there is always need to keep abreast of latest needs of the practitioners, and of the latest Judgments of our Courts.
9.21 We also recommend that the ‘problem method’ be introduced in the examination system to an extent of above 75% in each paper, apart from
25% for theory. The students should obtain a separate minimum number of marks for the theory and a separate minimum in the problem part of the examination. This will enable the student to apply their mind seriously to every subject. This will also eliminate malpractices. Attendance to classes is also bound to improve.
Legal Education is a subject which requires in-depth study and research by members of both the Legal Education Committees so that our law schools and Universities can benefit by the said information and steps can be taken to improve the quality of teaching and produce students who can catch up with international standards.
10.7 It is true that in recent times a few specialized institutions have been started in various States – in Hyderabad, Jodhpur, Bhopal, Calcutta etc. These statutory law universities or deemed universities have been started on the model of the National Law School, Bangalore. In fact, the need to establish such institutions was one of the recommendations of the Justice Ahmadi Committee in 1994. These institutions, in each State, today project an image of excellence in legal education. (Unfortunately, most of these students are taking up jobs in big companies and only a few among them are coming to the Bar. May be, corporates also need some well trained personnel or else, otherwise the companies may go outside India for expert legal advice. But, most of these law graduates must be persuaded to come to the bar). We cannot, however, rest content with a few star colleges. We must be concerned with all the rest of the hundreds of law colleges located in cities and districts headquarters all over the country. A few bright-star colleges with limited number of student-intake based on all-India selection is not the end and may not result in an overall change in the level of legal education.
Legal Education has to be taken seriously and kept on a high pedestal.
The Supreme Court considered the question in V. Sudheer vs. Bar Council of India 1999 (3) SCC 176 whether, having regard to the legislative history which revealed that the Training was part of the mandate in the Act, the same could not be reintroduced by way of a Rule by the Bar Council of India.
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The court held that once the relevant statutory provisions in sec. 24(1)(d) or in the proviso thereto were deleted and also when the subject of Training which was one of the items enumerated in clause (b) of subsection (2) of sec. 28, (sec. 28 being the section relating to rule making), was deleted in 1973, the Bar Council of India could not have made any rule regarding Training and such a condition had to be introduced only by an Act by the Legislature. It was also held that it was for the State Bar Councils to introduce Training and that the Bar Council of India could not by itself introduce the Training.
12.6 It must be noted that the Supreme Court in V. Sudheer’s case merely considered whether the new Rules were ultra vires of the provisions of the Act. It did not say anywhere that Training was not necessary.
12.6 It must be noted that the Supreme Court in V. Sudheer’s case merely considered whether the new Rules were ultra vires of the provisions of the Act. It did not say anywhere that Training was not necessary. On the other hand, it expressly endorsed the need for reintroducing training and accepted the recommendations of the Ahmadi Committee. It said: (pp. 210-211)
“Before parting with these matters, it is necessary to note that in the light of the experience of various courts in which advocates are practising since the time the Advocates Act has come into force, the Law Commission of India and other expert bodies that were entrusted with the task of suggesting improvements in the standards of legal education and legal practitioners felt it necessary to provide for compulsory training to young advocates entering the portals of the courtrooms.
12.7 After saying so, the Supreme Court further observed (p. 211) as follows:
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“It is true that these suggestions of the High-Powered Committee clearly highlighted the crying need for improving the standards of legal education and the requirements for new entrants to the legal profession of being equipped with adequate professional skill and expertise. There cannot be any dispute on this aspect.
12. Rule 21 of the Bar Council Rules directing that every university shall endeavour to supplement the lecture method with case method, tutorials and other modern techniques of imparting legal education must be amended in a mandatory form and it should include problem method, moot courts, mock trials and other aspects and make them compulsory.
13.(i) Participation in moot courts, mock trials, and debates must be made compulsory and marks awarded, (ii) practical training in drafting pleadings, contracts can be developed in the last year of the study, and (iii) students’ visits at various levels to the courts must be made compulsory so as to provide a greater exposure.
There is a great difference between learning about the skills in the college curriculum and witnessing the actual presentation of skills in court. Once a person joins the office of a senior and studies an individual case, either at the trial stage or at the appellate stage, watches the preparation and research of the senior in his chamber, or assists him in the preparation or research or the actual process of witness examination, discovery, inspection procedures in a civil case or the actual arguments in interlocutory matters, (e.g. injunction or receiver applications) or the arguments at the final stage of the trial or appeal or watches the preparation in a criminal case from the stage of anticipatory bail to the ultimate stage of arguments after the trial – then only can he realize the difference between reading about skills and the actual performance of skills . There are so many legal skills in the profession which can be learnt only in the chambers of a lawyer or in a court and these are learnt day by day. All these cannot be learnt in the college even though; the studying in college may give the student some idea of the skills.
Summary of Recommendations
This summary of recommendation is gathered from the various Chapters I to XIII and arranged subject-wise for the purpose of convenience.
1) In as much as the Bar Council of India cannot be required to consult all Universities, as now stated in section 7 (1) (h), the provisions of section 7(1)(h) have to be amended by prescribing that the Bar Council of India must consult a body which effectively represents all the Universities and that such a body should be constituted by the University Grants Commission. This requires amendment of the Advocates Act, 1961 and the University Grants Commission Act, 1956.
(para 2.22)
2) The consultation procedure between the Bar Council of India and the Universities must be simple and effective.
(para 2.21)
3) Section 7(1) (h) has to be amended by providing for ‘consultation’ as proposed in sections 10AA to be inserted in the Advocates Act, 1961 with the Legal Education Committee of the University Grants Commission.
(para 3.13(1).
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4) Clause (b) of subsection (2) of sec. 10 has to be amended to provide for membership of Legal Education Committee of the Bar Council of India, representing different classes of person. The Committee shall comprise of 5 members from the Bar Council of India, one retired Judge of the Supreme Court of India, one retired Chief Justice/Judge of a High Court both to be nominated by the Chief Justice of India and three academicians in law to be nominated by the University Grants Commission and these three should be members of the proposed UGC Committee on Legal Education and all three of them must be in office and one of them must be Director/Vice-Chancellor of a statutory Law University. The retired Judge of the Supreme Court shall be the Chairman of the Committee. (para 3.12(2))
5) The Attorney General for India can, at his option, participate in the meetings of the Legal Education Committee of the Bar Council of India and the Chairman of that Committee shall be entitled to request the Attorney General to participate in the proceedings of the Committee and when he so participates, he is entitled to vote.
(para 3.13 (3))
6) The Bar Council Legal Education Committee shall decide all matters in its meeting by majority of votes of the members present and voting, and in the event of equality of votes, the Chairman shall have an exercise a casting vote.
(para 3.13 (4))
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7) The Bar Council Legal Education Committee shall meet at least once in three months.
(para 3.13 (5))
8) In sub-section (4) of section 10A, for the words ‘every committee thereof except the disciplinary committees’, the words ‘every committee thereof except the Bar Council Legal Education Committee and the disciplinary committees’, should be substituted.
(para 3.13 (6))
9) The U.G.C. Committee on Legal Education to be constituted by the U.G.C. The Committee to consist of ten members, of whom (a) six shall be academicians of the level of Professors, Deans or Principals or of equal rank, (b) two shall be law teachers of similar ranks who have retired and (c) two shall be Directors/Vice-Chancellors of statutory Law Universities.
Section 5A to be inserted in the UGC Act, 1956 for constitution of UGC Legal Education Committee.
(paragraphs 4.14 and 4.21)
10) The procedure for consultation referred to in sec. 7(1)(h) shall be as follows: After the Legal Education Committee of the Bar Council of India consults the State Bar Councils, it shall consult the Legal Education Committee of the UGC which shall forward its views back to the Legal Education Committee of the Bar Council of India and the latter Committee shall then take a final decision. Section 10 AA to be inserted in the
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Advocates Act, 1961 for providing consultation procedure to be followed by the Bar Council Legal Education Committee.
(paragraphs 4.3 and 4.20)
11) The UGC can also initiate proposals by sending the same for consideration of the Legal Education Committee of the Bar Council of India, in which case the same procedure will be followed by the Legal Education Committee of the Bar Council of India, which it follows in the matter of proposals initiated by it.
(para 4.4)
12) The Bar Council of India should implement the decisions of the Legal Education Committee of the Bar Council of India.
(para 4.15)
13) The Bar Council Legal Education Committee should take into consideration various factors mentioned in para 4.17 before passing any resolution in respect of standards of legal education.
(para 4.17)
14) Section 7(1)(h) be amended to provide that standards of legal education shall be laid down by the Bar Council of India in accordance with the recommendations made by the Legal Education Committee of the Bar Council of India after consultation with the State Bar Councils and the Legal Education Committee of the UGC, as mentioned in the proposed section 10AA and the word, ‘standards’ shall mean various matters referring to curricula etc. as detailed in para 5.24.
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(para 5.24)
15) ADR training must be introduced for law student and lawyers as follows:
(1) for students, ADR system to be made compulsory subject in LL.B. course; and
(2) for lawyers, short-term training, certificate, diploma courses on ADR to be introduced on a massive scale all over the country, for purpose of section 89 of Civil Procedure Code.
(para 6.5, 6.6)
16) The High Court and the Bar Council of India, the State Bar Councils, the Indian Law Institute and the ICADR and similar organizations should start ADR training programmes for lawyers and judicial officers. The training should be a short one for one week, or it may be one-month certificate course or a six-month or a one-year diploma course.
(para 6.11)
17) Section 7 (1) (h) to be amended to enable the Bar Council of India to promote ADR as a subject of academic study in the law school to students and also to promote continuing education on ADR to legal practitioner.
(para 6.11)
18) Bar Council of India can lay down minimum standards necessary for courses for students who will come into legal profession but not in respect of other law courses which do not lead to a professional career. UGC can
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prescribe higher standards. (para 4.10 to 4.12)
19) UGC and BCI to introduce a system of Accreditation of law colleges. Section 7 (1) (h) should be amended to enable Bar Council of India to promote excellence in legal education for the purpose of accreditation system.
(para 5.22)
20) It is proposed to recommend amendment of clause (h) in sec. 7(1) enabling the Bar Council of India to lay down procedure and conditions for appointment of Adjunct teachers who are to be appointed from among members of the Bar and the retired Judges. This has to be done in consultation with the State Bar Councils and the Legal Education Committee of the Bar Council of India and the Legal Education Committee of the UGC.
(para 7.12)
21) It is proposed that a separate provision be inserted in the Advocates Act for providing that no law college or a law department of a university shall impart instructions in course of study in law which lead to enrolment as an advocate unless a permission has been granted by the Bar Council of India in this regard. It is also proposed that no law college or law department of university or any other institution shall continue to impart instruction in such course, if the permission granted by the Bar Council of India has been withdrawn. Further that any fees collected towards admission in violation of this provision shall be refunded. It is also
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proposed that violation of this provision shall amount to an offence punishable under proposed new section 45A.
It is proposed that existing section 7A be renumbered as 7D and after section 7, above mentioned provision be inserted.
(paras 8.3.1 & 8.3.2)
22) A separate clause in sub-section (1) of section 7 be added to enable the Bar Council of India to grant permission for imparting instruction to a law department of a university or a law college and to withdraw such permission.
(para 8.13)
23) It is recommended that separate provisions be incorporated in the Advocates Act, 1961 for providing that in case of any conflict in the inspection reports of the Bar Council of India and of the UGC/Universities or where there is a big gap between the claims of the management and the Inspection Committee, a Task Force should make inspection on the same lines as in the Regulations of the AICTE in which a Judicial Officer would be a member. For this purpose, it is proposed that new sections 7B and 7C be added in the Advocates Act. Consequently, inspection Rules framed by the Bar Council of India should be amended.
(para 8.12)
24) The existing section 7 (1) (i) should deal only with recognition of universities. For the purpose of inspection of law colleges and universities, separate provisions should be inserted in the form of section 7B and 7C.
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Consequently, sections 6 (1) (gg), 7 (1) (i), 49 (1) are also required to be amended.
(para 8.13)
25) It is recommended that the ‘problem method’ be introduced in the examination system to an extent of about 75% in each paper, apart from 25% for theory. The students should obtain a separate minimum number of marks for the theory and a separate minimum in the problem part of the examination. This will enable the students to apply their mind seriously to every subject. This will also eliminate malpractices like copying or seeking help of invigilators. Attendance to classes is also bound to improve.
(para 9.21)
26) It is also recommended that the clinical legal education may be made a compulsory in legal education.
(para 9.15)
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27) The Central Government should start at least four colleges in the country for providing professional training to law teachers in consultation with the Bar Council of India and the University Grants Commission.
(para 9.18)
28 Section 7 (1) may be amended by adding clauses (ie) and (if) as follows:
“(ie) to take such measures to establish institutions for continuing legal education for law teachers;
(if) to take measures for raising the standards of teaching in law in consultation with the Central Government, the State Governments and the University Grants Commission.”
(para 9.20)
29) It is recommend that in sec. 7 (1), clause (ig) be added as follows:
“(ig) to create awareness of the latest trends in legal education by establishing legal education libraries at the offices of the Bar Council of India and all State Bar Councils and universities and in law colleges.”
(para 10.9)
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30) Section 7(1) (i) to be amended for providing disaffiliation or derecognition of a College or a University in case a College or University does not implement the lawful directions of the Bar Council of India or State Bar Councils.
(para 11.1)
31) In Section 49 (1) following clause should be added, namely:
“(aj) the procedure regarding recognition and de-recognition of such universities as referred to in clause (i) of sub-section(1) of section 7 and the procedure regarding the issuing of direction to a university to disaffiliate a Law college;”
(para 11.3)
32) Training for one-year (Apprenticeship) in the Chambers of a lawyer with at least ten years standing and Bar Examination to be introduced for a law graduate before he enters the legal profession, by amendment of the Act. Power to do so to be vested only in Bar Council of India. Sections 7, 24 and 49 to be amended.
(para 12.23)
33) Officers in private or public service, dismissed or removed from service or convicted on the ground of charges involving moral turpitude, to be debarred totally from entering into the profession. Section 24A (1) should be amended.
(paras 13.2 & 13.6)
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We recommend accordingly. Dated: 20.12.2002.
At the time of enactment of the Advocates Act, 1961, it was envisaged that legal education would only produce lawyers for the courts and accordingly the BCI had been entrusted with the limited role of ‘promoting legal education and laying down minimum standards of legal education’ required for students who ‘are entitled to practice’. In the
last fifty years, and particularly after liberalization in 1991, the entire concept of legal
education has changed considerably. Today, legal education has to meet not only the
requirements of the Bar but also the new needs of trade, commerce and industry, in the
context of growing internationalization of the profession. The need for improvement in
2
overall quality to match global standards has become even more salient when viewed
from such a perspective. In light of the changed scenario in the last fifty years and the
existing gaps and deficiencies in overall quality, 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. The BCI would
however continue to exercise its powers to recommend minimum standards required for
practice in the courts. Further, the BCI would continue to enjoy its powers of discipline
so far as the members of the Bar are concerned. A more detailed analysis of the rationale, structure and functions of the new regulatory mechanism, as excerpted from the working group report.
The National Knowledge Commission, while deliberating on issues related to knowledge
concepts, recognizes legal education as an important constituent of professional education. The vision of legal education is to provide justice-oriented education essential
to the realization of values enshrined in the Constitution of India. In keeping with this
vision, legal education must aim at preparing legal professionals who will play decisive
leadership roles, not only as advocates practicing in courts, but also as academics,
legislators, judges, policy makers, public officials, civil society activists as well as
legal counsel in the private sector, maintaining the highest standards of professional
ethics and a spirit of public service. Legal education should also prepare professionals
equipped to meet the new challenges and dimensions of internationalization, where the
nature and organization of law and legal practice are undergoing a paradigm shift.
Further, there is need for original and path breaking legal research to create new legal
knowledge and ideas that will help meet these challenges in a manner responsive to the
needs of the country and the ideals and goals of our Constitution. Legal professionals should be equipped with skills with deeper understanding of professional ethics, modernizing clinic courses, mainstreaming legal aid programs and developing innovative pedagogic methods. Legal education must also be socially engaged and sensitize students to issues of social justice.
Examination System
We recommend revising the prevailing examination systems and suggest the
development of evaluation methods that test critical reasoning by encouraging essential
analytical, writing and communication skills. The end-semester examination should be
problem-oriented, combining theoretical and problem oriented approaches rather than
merely test memory. Project papers, project and subject viva, along with an end-semester
examination to be considered as pedagogic methods imperative for improving quality.
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 lawteaching.
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. There is also an enormous need for non-practising law graduates in
trade and commerce. It is also necessary to allow engineers, chartered
Accountants, scientists and doctors to qualify in law for non-practising purposes.
Indeed, it is gratifying that some Indian Institute of Technology (“IIT”)
institutions have recently started several courses in law. The Open University
system must also be allowed to cater to legal education. The Bar Council of India
may, of course, still deal with the minimum standards of legal education for the
purposes of entry into the Bar but there is a need to have a new regulatory
mechanism that will cater to the aforementioned present and future needs of the
country.
India and the various resolutions in other conferences have repeatedly pointed out
that the BCI has granted permission to a large number of law schools that are
maintaining very poor standards and have very poor infrastructure.
1.6 Most of the seven hundred odd law schools do not compare well with the
standards and curriculum required in the present age
1.6.1 While the NLSUs and some other law schools teach a very large
Today, we have about 11 NLSUs where students are selected in an all India
competition. These colleges have been producing our best legal talent
comparable to the most renowned colleges in U.S and U.K. However, this alone is
not sufficient for our purposes and we have to raise the standards of the remaining
700 odd law schools. The Law Commission has indeed observed in its 184th
Report (2002) (see para 10.7) as follows:
“We cannot, however, rest content with a few star colleges. We must be
concerned with all the rest of the hundreds of law colleges located in cities
and district headquarters all over the country. It is these students who
come to the Bar in great numbers at the grass root level… A few bright
star colleges with limited number of student intake in an All India
selection is not the end and may not result in an over all change in the
level of legal education”.
Needs of the Bar and Subordinate Judiciary are not met by the graduates
from the existing 700 and odd law schools:
1.7.1 Recently, the Supreme Court of India has observed in All India Judges
Association Vs. Union of India (2002) 3 SCALE 291 = (2002) 4 SCC 247,
(2002) 2 SCR 712 = AIR 2002 SC 1752 that recruitment rules in the States should
be amended to permit raw graduates from the law schools to enter the subordinate
judiciary.
To meet various new challenges
Legal education must be socially engaged. This means that legal education
programs must compulsorily expose students to the problems of poverty, social
exclusion, social change and environmental degradation through clinical legal
education, legal aid programs and through seminars and debates that sensitize and
expose students to issues of social justice. Working with the poor through one or
other program must become a mandatory part of the curriculum. Faculty must
include individuals with inter-disciplinary training and direct experience on social
issues. This situation that has been created can be broken only by
establishing an independent regulatory mechanism with an international vision,
which can see beyond the requirements of ‘entry into the Bar’
A new regulatory mechanism is needed with powers to deal with all aspects
of legal education:
Chief Justice A.M.Ahmadi pointed out in one of his lecture, “I think we have waited long enough
to repair the cracks of the Legal Education system of this country and it is high time that we rise
from our arm chairs and start the repair work in right earnest.” The reforms in Legal Education and
Legal Profession have been long over due.
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.
The Indian law teacher's conception of law is typically a static one, and he approaches legal
education through a lecture method, emphasizing systematic presentation and verbal analysis of the
existing structure of rule and doctrine. Little attention is paid either to the policies that underlie the
rules or to the processes of growth and development through which the legal system adapts old
rules or announces new ones.
Lecture method
Stereotyped system
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.
Monotonous
The monologue lecture method 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.
The 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 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.
The teaching methods have to be participatory and interactive rather than lectures. The teaching of skills has to necessarily employ a range of clinical methods, which are now available in legal pedagogy. In fact, a revolutionary change in legal education is required not only in terms of curriculum planning but also in training methods.
The conventional lecture method is the main method for delivering legal education in India although there is some marginal use of other methods such as group exercises, role play, etc. Teachers are delivering the material primarily in lecture mode.
“New legal education” has arisen as a movement to become more responsive to the practical needs of learners. It encourages faculty to use other instructional methods in addition to lecture.
Work is needed to develop new pedagogical approaches to legal education in India. International experience involves the use of a number of imaginative teaching methods based on alternative learning frameworks such as experiential learning and self-learning.
Some of the pedagogical methods that could be effectively used for legal education include the following:
• critical thinking;
• discussion groups/brainstorming;
• debates;
• demonstration;
• diagnostic analysis
• field visits;
• field trips;
• guidelines;
• “learning by doing”;
• laboratory work;
• moot courts;
• problem solving;
• Question &Answer;
• research/project analysis;
• small group work;
• Stimulations.
• Use of case studies;
• use of hypothetical;
Since teaching is an intensely personal activity the quality of legal education would largely depend on the availability of law teachers of the right stamp. Here a fine blending between the active method i.e. the case-method, also known as the Langdell method, and the passive method i.e. the lecture method, would help. If the students are first familiarised with the subject by the lecturer and thereafter their active participation is sought with reference to a particular case, it will enable the teacher to appreciate the receptivity and capacity of the student to understand and absorb the jurisprudential principles of the topic under discussion. That will help the teacher to identify students needing greater attention.
The Curriculum Development Centre of the University Grants Commission suggested a new curriculum offering twelve core (compulsory) courses plus a course in practical training in law with seven optional subjects.6 I do not consider it necessary to detail the subjects but it is sufficient to say that the recommendation notices the need for integration referred to earlier. In modern times the need for continuing legal education can never be over-emphasised in this fast-changing world where new disciplines in the legal field are surfacing with astonishing speed. Every conscientious professional, law teacher and judge must keep himself abreast of the developments taking shape in the field of law to enhance his knowledge with a view to understanding the complexities of emerging doctrines. Professionals and law teachers have the benefit of exposure through Seminars and Conferences.
Then steps must be taken to remove the defects in the examination system itself and curb the malpractices at the examination centers and in the evaluation of answer books. There must also be transparency about the quality of the assessment.
It is necessary to appreciate that hitherto the examinations have dictated the content and mode of teaching rather than the teaching method dictating the pattern of examinations. This has been the root cause of the low status accorded to a law degree because, as pointed out by the Law Commission, students are able to clear the examinations by cramming from short summaries published by enterprising publishers who are least concerned about the maintenance of the standard of legal education. There is then an immediate need to take remedial measures.
By the enactment of the Advocates Act, 1961, the Bar Council of India is charged with the duty to promote legal education, to lay down the standards of legal education and to recognize university law degree courses as qualifying for enrolment as an Advocate. Subject to certain very limited exceptions, a university law degree is essential for entry into the profession. Since all law teaching is undertaken by universities, and colleges affiliated to universities, and since a recognised university law degree is in itself sufficient qualification for entry into the profession, a heavy duty lies on those who manage the affairs of the Bar Council of India (which also supervises the working of the State Bar Councils) to take appropriate steps to enhance the prestige of the legal profession by ensuring high quality legal education. Despite the efforts made by the Bar Council of India, the professional legal education continues to suffer from a variety of drawbacks some enumerated hereinabove. However, the initiative of the Bar Council of India in sponsoring the National Law School of India University (Bangalore) is indeed praiseworthy.
Several suggestions have been made by Judges, lawyers and law teachers, responsible bodies and institutions for improving the quality of legal education in India. These include reintroduction of the apprenticeship system, reintroduction of the post-degree Bar examination as a pre-requisite for enrolment as an advocate, a training centre for continuing education, a training institute for Judges, etc. Since teaching is an intensely personal activity the quality of legal education would largely depend on the availability of law teachers of the right stamp. The focus must next shift on the method of education. Here a fine blending between the active method i.e. the case-method, also known as the Langdell method, and the passive method i.e. the lecture method, would help. If the students are first familiarised with the subject by the lecturer and thereafter their active participation is sought with reference to a particular case, it will enable the teacher to appreciate the receptivity and capacity of the student to understand and absorb the jurisprudential principles of the topic under discussion. That will help the teacher to identify students needing greater attention.
Every conscientious professional, law teacher and judge must keep himself abreast of the developments taking shape in the field of law to enhance his knowledge with a view to understanding the complexities of emerging doctrines. While professionals and law teachers have the benefit of exposure through Seminars and Conferences, the same cannot be said of judges, particularly those belonging to the subordinate services, and hence I lay greater emphasis on their training.
With these broad objectives in mind, I would suggest that the Central Government, the concerned State Government, the Bar Council of India and the concerned State Bar Council and all concerned with the legal education programme in the country, should seriously apply their minds to the establishment of more institutions for the present in every State, on the pattern of the National Law School, Bangalore, which would admit bright students after the 10+2 level to a five year course in law. The last year would be devoted to giving intensive and extensive training in the skills and techniques of the chosen discipline, i.e. a professional career or a judicial career. Insofar as the service stream is concerned, admissions should be strictly according to merit and limited to the number of estimated judicial posts to be available for manning the courts in the State at the base-level. In the last year of training in this stream, the students may be provided a stipend, easy access to law courts and mini-pupilage with a senior member of the local Bar, preferably the trial Bar.
Special attention should be paid to acquaint him with the trial procedure, the art of controlling court proceedings, admissibility of evidence and writing of orders and judgments.
Those choosing profession as a career may be trained in the art of communicating with clients, drawing up pleadings and other documents, examination of witnesses, discovery and inspection of documents, research of case law, etc. What I have said is only illustrative and not exhaustive. The last two years of education/training should be a joint-venture between the teaching staff, senior lawyers and judges who may interact with the students to train them as good professionals/judicial officers. Those who successfully clear the course may be conferred a law degree with Honours. The recruitment rules may have to be suitably modified for appointment of the successful students as base-level judicial officers. This will ensure availability of trained personnel to the judiciary. The institute can also undertake refresher courses to fill the necessity for continued education.
I have in all humility made a few suggestions solely actuated by a desire to lift the standard of legal education and improve the image of the legal profession and the judiciary in public esteem. Introspection demands a frank admission of drawbacks without which the process for improvement cannot begin.
The provisions of sec. 7(1) (h) of the Advocates Act, 1961 enable the Bar Council of India to lay down the standards of legal education required for students who seek enrolment to the Bar. It is therefore necessary to refer to some aspects of the standards, particularly those relating to legal skills. In chapter IV we have dealt with ‘minimum standards’ to be laid down by the Bar Council of India. Now, we shall refer to what is meant by ‘standards of legal education’.
5.1 Several efforts have been made from time to time, to improve standards of legal education. The 14th Report of the Law Commission headed by Sri M.C. Setalvad is one of the best and elaborate reports on Legal education. It is something which every person must read. The UGC Curriculum Reports 1988-90 and 2001 must also be read. They were prepared by eminent professors, including Prof. Upendra Baxi. One must also read the recent Ahmadi Committee Report which contains extracts of letters of the Chairman, Bar Council of India and Chairman, University Grants Commission, and views of Chief Justices of various High Courts in the matter of Legal education. Various suggestions were given regarding the courses of study, attendance, entrance examination, final examination, the lecture method, case method, problem method, constitution of Committees and membership, and need for apprenticeship and Bar examination. In this Chapter, we are referring briefly to some of these
aspects and we propose to lay emphasis on Legal Skills and Values as adumbrated in the Mac Crate Report of USA.
Standards of Legal Education & Legal Skills:
5.2 In the Bar Council of India rules, Part IV (as amended upto 30.11.1998) dealing with the subject of ‘Standards of Legal Education and Recognition of Degrees in Law for admission as advocates’, Section A refers to 5-year law course after 10+2 or 11+1, Section B relates to 3-year law course after graduation, and Section C refers to Rules regarding inspection of law colleges by State Bar Councils.
The Ahmadi Committee Report dealt elaborately with the methods of teaching. It referred to the “case method” introduced by Prof. Langdell of Harvard Universtiy and to the “problem method” pioneered by Prof. Carl Llewellyn and Judge Jerome Frank and the Notre Dame Law School. The Report referred to Rule 21 of the Rules and to Sch. I dealing with the 5-year course which contains the following directive:
“10. Every university shall endeavour to supplement the lecture method with the case method, tutorials and other modern techniques of imparting legal education.”
The Report recommended as follows:
“This Rule must be amended in a mandatory form and we should include problem method, moot courts, mock trials and other aspects in this Rule and make them compulsory.”
In tune with the above recommendations, we find in the 5-year course syllabus that Rule 2(c) says as follows:
“2(c): That the course of study in law has been by regular attendance for the requisite number of lectures, tutorials, moot courts and practical training given by a college….”
5.5 Rule 3(2) refers to contact and correspondence programme, tutorials, home assignments, library, clinical work etc. – in all 30 hours per week but class room lectures should not be less than 20 hours.
The National Law School, Bangalore is said to have prepared a new curriculum in 2001 based on the Mac Crate and Harvard curriculum, with modifications suited for Indian conditions.
(see http://www.abanet.org/legaled/publications/onlinepubs/maccrate.html).
5.10 Under chapter V(A) thereof, the legal skills referred are (1) legal research, (2) factual investigation, (3) communication, (4) counselling, (5) negotiation, (6) skills required to employ or to advise a client about the options of litigation and alternative dispute resolution mechanisms, (7) the skill to identify the administrative skills necessary to organize legal work effectively and (8) finally, the skill of analyzing involved in recognizing and resolving ethical dilemmas.
5.18 Teaching must focus on building up the student, skills of analysis, language, drafting and argument. Teachers must bear in mind that while most of the students may choose a professional career as a lawyer, some others may choose a judicial career or career as a legal consultant or law officer in government or an academic career.
5.19 Alternative Dispute Resolution systems [ADR] – mediation, arbitration etc. must be and remain as a compulsory subject.
We, therefore, recommend substitution of the existing clause (h) of subsection (1) of section 7 which merely refers to “promotion of legal
education and laying standards in consultation with the Universities and State Bar Councils” as follows:
(a) for clause (h), the following clauses shall be substituted, namely:-
“(h) to promote legal education and lay down standards of such education in accordance with the recommendations of the Bar Council Legal Education Committee arrived at in the manner specified in section 10AA including, in the matter of-
(i) the prescription of standards relating to curriculum, admission of students, appointment and qualification of teachers;
(ii) the appointment of adjunct teachers from the Bar and from among the retired judges;
(iii) the prescription of conditions of service of the law teachers;
(iv) the prescription of student-teacher ratio;
(v) the laying down of guidelines for adopting different teaching methods;
(vi) specifying the conditions as to the location of law colleges, infrastructure, library and management;
(vii) promoting excellence in legal education for the purposes of the accreditation scheme if any, introduced by the University Grants Commission;
(viii) promoting alternative dispute resolution as a subject of academic study in the law schools for students;
(ix) promoting continuing education on alternative dispute resolution for legal practitioners;
Examination System, Problem Method and
Training Centres for Law Teachers
Examination System
9.1 We shall now refer briefly to the examination systems. The Ahmadi Committee Report, 1994, has referred to this aspect and considered it as something quite important to improve the quality of the students who may ultimately come to the Bar.
9.2 There has been a belief for several years in the past that if one takes up the study of law, one need not attend classes regularly and that if one reads some small books published by some publishers who have an eye only on profit making, - one can easily pass the law examination. Such easy methods have remained very attractive and continue to stay even today for students who just want a bare pass. There are some students who have never read the text of a bare Act, much less any leading commentary. They only depend on some of these small books containing a few theoretical questions which the students think are sufficient. When they go to the Bar, they for the first time open the books containing the Acts or the commentaries and are unable to cope up with the problem of the litigant and the needs of the profession. Of course, what we have said does not apply to the more serious students who have been regular and who are interested deeply in the subjects and in making a mark in the profession but such students are today a small percentage. Nor are we referring here to the students from the new law Universities or to some colleges which are still rated as the best.
9.3 Whatever be the percentage of students who adopt short cuts to pass the law examination, there is, in the view of the Commission, great need to revamp the examination system with the dual object of eliminating malpractices like copying (which do take place in some centres) and the perennial problem of absenteeism in law schools. Mere bookish knowledge must give way to practical aspects of law. This has to start in the college itself.
4. Examination System
We recommend revising the prevailing examination systems and suggest the
development of evaluation methods that test critical reasoning by encouraging essential
analytical, writing and communication skills. The end-semester examination should be
problem-oriented, combining theoretical and problem oriented approaches rather than
merely test memory. Project papers, project and subject viva, along with an end-semester
examination to be considered as pedagogic methods imperative for improving quality.
New Examination System will eliminate absenteeism and malpractices:
9.13 The Ahmadi Committee Report suggested a system where the theory part of the examination – where it is not difficult to get pass marks – is restricted to 25% or 20% marks while 75% or 80% marks should be allocated for legal problems. There must be a separate minimum for the theoretical part and the problems part. The importance of the legal problems part is that the candidate will have to apply his mind independently in the examination hall. He cannot resort to copying nor will he be able to seek any help from the supervisor for unless one is thorough, one cannot follow even if some obliging supervisor in the examination hall is prepared to help him. We may make it clear that we are not here referring to the good and reputed colleges where there are no malpractices.
We are only referring to those colleges where malpractices do persist or are encouraged by some management. Apart from prevention of malpractices, the problem-method will make the student to think and come forward with a practical solution. This is not possible unless the student is thorough with the subject. The problem method will be able to eliminate malpractices.
9.14 In our view, so far as this part of the paper containing the problems is concerned, the students can even be allowed to have the bare Acts to enable them to read the sections clearly and think of an answer. Of course, this may not apply to some subjects like the Law of Torts where several legal principles are based on case law and not statutes.
9.15 The second advantage of the problem method is that students will have to necessarily attend all classes and cannot hope to remain absent, if they have to face such a system of examination.
The third advantage is that students have to apply their mind independently.
Thus the problem method has several advantages – (i) it precludes malpractices; (ii) it makes the students think and study the statutes closely and (iii) absenteeism in classes will get automatically controlled.
The introduction of ‘problem method’ requires generation of a huge data Bank of problems in various subjects.
The Lecture method and Case method:
9.4 Methods of teaching have been changing from time to time. The time old method of lectures was supplemented by the ‘case method’ introduced by Prof. Langdell in Harvard in 1911 and these have been supplemented by the ‘problem method’later.
Problem method:
9.5 The ‘problem method’ of teaching is today considered more important than the other two methods.
9.6 The problem method was introduced by Prof. Jerome Frank in his article “Why not a Clinical Lawyer School’ 81. U. Pa L. Rev. 907 (1933) which he expanded in his thesis in “Both Ends Against the Middle’ (1951) 100 U. Pa L. Rev. 20, where he grumbled that Legal education should not remain ‘hypnotized by Langdell’s ghost’. He also said that the law curriculum should include ‘social sciences and humanities’. Law is linked with economics, politics, cultural anthropology, and ethical ideals.
Mr. Stephen Nathanson in his ‘Developing Legal Problem Solving Skills’ (1994) Vol. 44 Journal of Legal Education (p. 215) says that teachers should synthesize “general problem-solving skills and context-specific knowledge”.
In 1992, the American Bar Association’s Mac Crate Report identified problem-solving as the most fundamental of all legal skills
9.11 The American Association of Law Schools (AALS) in their 1942 Report stated as follows:
“The merit of the problem method is that it more effectively forces the law student to reflect on the application of pertinent materials to new situations and accustoms him to thinking of case and statute law as something to be used, rather than as something to be assimilated for its own sake.”
A later AALS Report lists five virtues of the problem method: (1) it approximates the lawyer’s approach to the law, (2) it affords training in planning and advising, (3) it broadens the range of matters open to the students consideration, (4) it increases the effectiveness of instruction where case-law is inadequate (primarily where legislation is involved), and (5) it provides the stimulus to student interest. Prof. Myron Moskovitz in the above article (at Page 249) has referred to a large volume a literature on ‘problem method’.
New Examination System will eliminate absenteeism and malpractices:
9.13 The Ahmadi Committee Report suggested a system where the theory part of the examination – where it is not difficult to get pass marks – is restricted to 25% or 20% marks while 75% or 80% marks should be allocated for legal problems. There must be a separate minimum for the theoretical part and the problems part. The importance of the legal problems part is that the candidate will have to apply his mind independently in the examination hall. He cannot resort to copying nor will he be able to seek any help from the supervisor for unless one is thorough, one cannot follow even if some obliging supervisor in the examination hall is prepared to help him. We may make it clear that we are not here referring to the good and reputed colleges where there are no malpractices.
We are only referring to those colleges where malpractices do persist or are encouraged by some management. Apart from prevention of malpractices, the problem-method will make the student to think and come forward with a practical solution. This is not possible unless the student is thorough with the subject. The problem method will be able to eliminate malpractices.
9.14 In our view, so far as this part of the paper containing the problems is concerned, the students can even be allowed to have the bare Acts to enable them to read the sections clearly and think of an answer. Of course, this may not apply to some subjects like the Law of Torts where several legal principles are based on case law and not statutes.
9.15 The second advantage of the problem method is that students will have to necessarily attend all classes and cannot hope to remain absent, if they have to face such a system of examination.
The third advantage is that students have to apply their mind independently.
Thus the problem method has several advantages – (i) it precludes malpractices; (ii) it makes the students think and study the statutes closely and (iii) absenteeism in classes will get automatically controlled.
The introduction of ‘problem method’ requires generation of a huge data Bank of problems in various subjects.
In the matter of prescribing topics for the law course, the Commission considers that clinical legal education may be made mandatory subject.
the Delhi university has for many years now been running a successful legal clinical education programme where students are able to provide minimal legal assistance in the form of drawing of the petitions/applications and offering legal advice, to undertrial prisoners and inmates of custodial institutions. This could be made mandatory in all law colleges.
Training centres for Law teachers
9.16 Yet another important aspect is about the need to revamp the teaching system by establishing a number of special institutions to enable law teachers to update their knowledge. While we agree that there are several good teachers in law schools who are highly qualified and very competent, there is always need to keep abreast of latest needs of the practitioners, and of the latest Judgments of our Courts.
9.21 We also recommend that the ‘problem method’ be introduced in the examination system to an extent of above 75% in each paper, apart from
25% for theory. The students should obtain a separate minimum number of marks for the theory and a separate minimum in the problem part of the examination. This will enable the student to apply their mind seriously to every subject. This will also eliminate malpractices. Attendance to classes is also bound to improve.
Legal Education is a subject which requires in-depth study and research by members of both the Legal Education Committees so that our law schools and Universities can benefit by the said information and steps can be taken to improve the quality of teaching and produce students who can catch up with international standards.
10.7 It is true that in recent times a few specialized institutions have been started in various States – in Hyderabad, Jodhpur, Bhopal, Calcutta etc. These statutory law universities or deemed universities have been started on the model of the National Law School, Bangalore. In fact, the need to establish such institutions was one of the recommendations of the Justice Ahmadi Committee in 1994. These institutions, in each State, today project an image of excellence in legal education. (Unfortunately, most of these students are taking up jobs in big companies and only a few among them are coming to the Bar. May be, corporates also need some well trained personnel or else, otherwise the companies may go outside India for expert legal advice. But, most of these law graduates must be persuaded to come to the bar). We cannot, however, rest content with a few star colleges. We must be concerned with all the rest of the hundreds of law colleges located in cities and districts headquarters all over the country. A few bright-star colleges with limited number of student-intake based on all-India selection is not the end and may not result in an overall change in the level of legal education.
Legal Education has to be taken seriously and kept on a high pedestal.
The Supreme Court considered the question in V. Sudheer vs. Bar Council of India 1999 (3) SCC 176 whether, having regard to the legislative history which revealed that the Training was part of the mandate in the Act, the same could not be reintroduced by way of a Rule by the Bar Council of India.
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The court held that once the relevant statutory provisions in sec. 24(1)(d) or in the proviso thereto were deleted and also when the subject of Training which was one of the items enumerated in clause (b) of subsection (2) of sec. 28, (sec. 28 being the section relating to rule making), was deleted in 1973, the Bar Council of India could not have made any rule regarding Training and such a condition had to be introduced only by an Act by the Legislature. It was also held that it was for the State Bar Councils to introduce Training and that the Bar Council of India could not by itself introduce the Training.
12.6 It must be noted that the Supreme Court in V. Sudheer’s case merely considered whether the new Rules were ultra vires of the provisions of the Act. It did not say anywhere that Training was not necessary.
12.6 It must be noted that the Supreme Court in V. Sudheer’s case merely considered whether the new Rules were ultra vires of the provisions of the Act. It did not say anywhere that Training was not necessary. On the other hand, it expressly endorsed the need for reintroducing training and accepted the recommendations of the Ahmadi Committee. It said: (pp. 210-211)
“Before parting with these matters, it is necessary to note that in the light of the experience of various courts in which advocates are practising since the time the Advocates Act has come into force, the Law Commission of India and other expert bodies that were entrusted with the task of suggesting improvements in the standards of legal education and legal practitioners felt it necessary to provide for compulsory training to young advocates entering the portals of the courtrooms.
12.7 After saying so, the Supreme Court further observed (p. 211) as follows:
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“It is true that these suggestions of the High-Powered Committee clearly highlighted the crying need for improving the standards of legal education and the requirements for new entrants to the legal profession of being equipped with adequate professional skill and expertise. There cannot be any dispute on this aspect.
12. Rule 21 of the Bar Council Rules directing that every university shall endeavour to supplement the lecture method with case method, tutorials and other modern techniques of imparting legal education must be amended in a mandatory form and it should include problem method, moot courts, mock trials and other aspects and make them compulsory.
13.(i) Participation in moot courts, mock trials, and debates must be made compulsory and marks awarded, (ii) practical training in drafting pleadings, contracts can be developed in the last year of the study, and (iii) students’ visits at various levels to the courts must be made compulsory so as to provide a greater exposure.
There is a great difference between learning about the skills in the college curriculum and witnessing the actual presentation of skills in court. Once a person joins the office of a senior and studies an individual case, either at the trial stage or at the appellate stage, watches the preparation and research of the senior in his chamber, or assists him in the preparation or research or the actual process of witness examination, discovery, inspection procedures in a civil case or the actual arguments in interlocutory matters, (e.g. injunction or receiver applications) or the arguments at the final stage of the trial or appeal or watches the preparation in a criminal case from the stage of anticipatory bail to the ultimate stage of arguments after the trial – then only can he realize the difference between reading about skills and the actual performance of skills . There are so many legal skills in the profession which can be learnt only in the chambers of a lawyer or in a court and these are learnt day by day. All these cannot be learnt in the college even though; the studying in college may give the student some idea of the skills.
Summary of Recommendations
This summary of recommendation is gathered from the various Chapters I to XIII and arranged subject-wise for the purpose of convenience.
1) In as much as the Bar Council of India cannot be required to consult all Universities, as now stated in section 7 (1) (h), the provisions of section 7(1)(h) have to be amended by prescribing that the Bar Council of India must consult a body which effectively represents all the Universities and that such a body should be constituted by the University Grants Commission. This requires amendment of the Advocates Act, 1961 and the University Grants Commission Act, 1956.
(para 2.22)
2) The consultation procedure between the Bar Council of India and the Universities must be simple and effective.
(para 2.21)
3) Section 7(1) (h) has to be amended by providing for ‘consultation’ as proposed in sections 10AA to be inserted in the Advocates Act, 1961 with the Legal Education Committee of the University Grants Commission.
(para 3.13(1).
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4) Clause (b) of subsection (2) of sec. 10 has to be amended to provide for membership of Legal Education Committee of the Bar Council of India, representing different classes of person. The Committee shall comprise of 5 members from the Bar Council of India, one retired Judge of the Supreme Court of India, one retired Chief Justice/Judge of a High Court both to be nominated by the Chief Justice of India and three academicians in law to be nominated by the University Grants Commission and these three should be members of the proposed UGC Committee on Legal Education and all three of them must be in office and one of them must be Director/Vice-Chancellor of a statutory Law University. The retired Judge of the Supreme Court shall be the Chairman of the Committee. (para 3.12(2))
5) The Attorney General for India can, at his option, participate in the meetings of the Legal Education Committee of the Bar Council of India and the Chairman of that Committee shall be entitled to request the Attorney General to participate in the proceedings of the Committee and when he so participates, he is entitled to vote.
(para 3.13 (3))
6) The Bar Council Legal Education Committee shall decide all matters in its meeting by majority of votes of the members present and voting, and in the event of equality of votes, the Chairman shall have an exercise a casting vote.
(para 3.13 (4))
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7) The Bar Council Legal Education Committee shall meet at least once in three months.
(para 3.13 (5))
8) In sub-section (4) of section 10A, for the words ‘every committee thereof except the disciplinary committees’, the words ‘every committee thereof except the Bar Council Legal Education Committee and the disciplinary committees’, should be substituted.
(para 3.13 (6))
9) The U.G.C. Committee on Legal Education to be constituted by the U.G.C. The Committee to consist of ten members, of whom (a) six shall be academicians of the level of Professors, Deans or Principals or of equal rank, (b) two shall be law teachers of similar ranks who have retired and (c) two shall be Directors/Vice-Chancellors of statutory Law Universities.
Section 5A to be inserted in the UGC Act, 1956 for constitution of UGC Legal Education Committee.
(paragraphs 4.14 and 4.21)
10) The procedure for consultation referred to in sec. 7(1)(h) shall be as follows: After the Legal Education Committee of the Bar Council of India consults the State Bar Councils, it shall consult the Legal Education Committee of the UGC which shall forward its views back to the Legal Education Committee of the Bar Council of India and the latter Committee shall then take a final decision. Section 10 AA to be inserted in the
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Advocates Act, 1961 for providing consultation procedure to be followed by the Bar Council Legal Education Committee.
(paragraphs 4.3 and 4.20)
11) The UGC can also initiate proposals by sending the same for consideration of the Legal Education Committee of the Bar Council of India, in which case the same procedure will be followed by the Legal Education Committee of the Bar Council of India, which it follows in the matter of proposals initiated by it.
(para 4.4)
12) The Bar Council of India should implement the decisions of the Legal Education Committee of the Bar Council of India.
(para 4.15)
13) The Bar Council Legal Education Committee should take into consideration various factors mentioned in para 4.17 before passing any resolution in respect of standards of legal education.
(para 4.17)
14) Section 7(1)(h) be amended to provide that standards of legal education shall be laid down by the Bar Council of India in accordance with the recommendations made by the Legal Education Committee of the Bar Council of India after consultation with the State Bar Councils and the Legal Education Committee of the UGC, as mentioned in the proposed section 10AA and the word, ‘standards’ shall mean various matters referring to curricula etc. as detailed in para 5.24.
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(para 5.24)
15) ADR training must be introduced for law student and lawyers as follows:
(1) for students, ADR system to be made compulsory subject in LL.B. course; and
(2) for lawyers, short-term training, certificate, diploma courses on ADR to be introduced on a massive scale all over the country, for purpose of section 89 of Civil Procedure Code.
(para 6.5, 6.6)
16) The High Court and the Bar Council of India, the State Bar Councils, the Indian Law Institute and the ICADR and similar organizations should start ADR training programmes for lawyers and judicial officers. The training should be a short one for one week, or it may be one-month certificate course or a six-month or a one-year diploma course.
(para 6.11)
17) Section 7 (1) (h) to be amended to enable the Bar Council of India to promote ADR as a subject of academic study in the law school to students and also to promote continuing education on ADR to legal practitioner.
(para 6.11)
18) Bar Council of India can lay down minimum standards necessary for courses for students who will come into legal profession but not in respect of other law courses which do not lead to a professional career. UGC can
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prescribe higher standards. (para 4.10 to 4.12)
19) UGC and BCI to introduce a system of Accreditation of law colleges. Section 7 (1) (h) should be amended to enable Bar Council of India to promote excellence in legal education for the purpose of accreditation system.
(para 5.22)
20) It is proposed to recommend amendment of clause (h) in sec. 7(1) enabling the Bar Council of India to lay down procedure and conditions for appointment of Adjunct teachers who are to be appointed from among members of the Bar and the retired Judges. This has to be done in consultation with the State Bar Councils and the Legal Education Committee of the Bar Council of India and the Legal Education Committee of the UGC.
(para 7.12)
21) It is proposed that a separate provision be inserted in the Advocates Act for providing that no law college or a law department of a university shall impart instructions in course of study in law which lead to enrolment as an advocate unless a permission has been granted by the Bar Council of India in this regard. It is also proposed that no law college or law department of university or any other institution shall continue to impart instruction in such course, if the permission granted by the Bar Council of India has been withdrawn. Further that any fees collected towards admission in violation of this provision shall be refunded. It is also
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proposed that violation of this provision shall amount to an offence punishable under proposed new section 45A.
It is proposed that existing section 7A be renumbered as 7D and after section 7, above mentioned provision be inserted.
(paras 8.3.1 & 8.3.2)
22) A separate clause in sub-section (1) of section 7 be added to enable the Bar Council of India to grant permission for imparting instruction to a law department of a university or a law college and to withdraw such permission.
(para 8.13)
23) It is recommended that separate provisions be incorporated in the Advocates Act, 1961 for providing that in case of any conflict in the inspection reports of the Bar Council of India and of the UGC/Universities or where there is a big gap between the claims of the management and the Inspection Committee, a Task Force should make inspection on the same lines as in the Regulations of the AICTE in which a Judicial Officer would be a member. For this purpose, it is proposed that new sections 7B and 7C be added in the Advocates Act. Consequently, inspection Rules framed by the Bar Council of India should be amended.
(para 8.12)
24) The existing section 7 (1) (i) should deal only with recognition of universities. For the purpose of inspection of law colleges and universities, separate provisions should be inserted in the form of section 7B and 7C.
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Consequently, sections 6 (1) (gg), 7 (1) (i), 49 (1) are also required to be amended.
(para 8.13)
25) It is recommended that the ‘problem method’ be introduced in the examination system to an extent of about 75% in each paper, apart from 25% for theory. The students should obtain a separate minimum number of marks for the theory and a separate minimum in the problem part of the examination. This will enable the students to apply their mind seriously to every subject. This will also eliminate malpractices like copying or seeking help of invigilators. Attendance to classes is also bound to improve.
(para 9.21)
26) It is also recommended that the clinical legal education may be made a compulsory in legal education.
(para 9.15)
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27) The Central Government should start at least four colleges in the country for providing professional training to law teachers in consultation with the Bar Council of India and the University Grants Commission.
(para 9.18)
28 Section 7 (1) may be amended by adding clauses (ie) and (if) as follows:
“(ie) to take such measures to establish institutions for continuing legal education for law teachers;
(if) to take measures for raising the standards of teaching in law in consultation with the Central Government, the State Governments and the University Grants Commission.”
(para 9.20)
29) It is recommend that in sec. 7 (1), clause (ig) be added as follows:
“(ig) to create awareness of the latest trends in legal education by establishing legal education libraries at the offices of the Bar Council of India and all State Bar Councils and universities and in law colleges.”
(para 10.9)
134
30) Section 7(1) (i) to be amended for providing disaffiliation or derecognition of a College or a University in case a College or University does not implement the lawful directions of the Bar Council of India or State Bar Councils.
(para 11.1)
31) In Section 49 (1) following clause should be added, namely:
“(aj) the procedure regarding recognition and de-recognition of such universities as referred to in clause (i) of sub-section(1) of section 7 and the procedure regarding the issuing of direction to a university to disaffiliate a Law college;”
(para 11.3)
32) Training for one-year (Apprenticeship) in the Chambers of a lawyer with at least ten years standing and Bar Examination to be introduced for a law graduate before he enters the legal profession, by amendment of the Act. Power to do so to be vested only in Bar Council of India. Sections 7, 24 and 49 to be amended.
(para 12.23)
33) Officers in private or public service, dismissed or removed from service or convicted on the ground of charges involving moral turpitude, to be debarred totally from entering into the profession. Section 24A (1) should be amended.
(paras 13.2 & 13.6)
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We recommend accordingly. Dated: 20.12.2002.
At the time of enactment of the Advocates Act, 1961, it was envisaged that legal education would only produce lawyers for the courts and accordingly the BCI had been entrusted with the limited role of ‘promoting legal education and laying down minimum standards of legal education’ required for students who ‘are entitled to practice’. In the
last fifty years, and particularly after liberalization in 1991, the entire concept of legal
education has changed considerably. Today, legal education has to meet not only the
requirements of the Bar but also the new needs of trade, commerce and industry, in the
context of growing internationalization of the profession. The need for improvement in
2
overall quality to match global standards has become even more salient when viewed
from such a perspective. In light of the changed scenario in the last fifty years and the
existing gaps and deficiencies in overall quality, 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. The BCI would
however continue to exercise its powers to recommend minimum standards required for
practice in the courts. Further, the BCI would continue to enjoy its powers of discipline
so far as the members of the Bar are concerned. A more detailed analysis of the rationale, structure and functions of the new regulatory mechanism, as excerpted from the working group report.
The National Knowledge Commission, while deliberating on issues related to knowledge
concepts, recognizes legal education as an important constituent of professional education. The vision of legal education is to provide justice-oriented education essential
to the realization of values enshrined in the Constitution of India. In keeping with this
vision, legal education must aim at preparing legal professionals who will play decisive
leadership roles, not only as advocates practicing in courts, but also as academics,
legislators, judges, policy makers, public officials, civil society activists as well as
legal counsel in the private sector, maintaining the highest standards of professional
ethics and a spirit of public service. Legal education should also prepare professionals
equipped to meet the new challenges and dimensions of internationalization, where the
nature and organization of law and legal practice are undergoing a paradigm shift.
Further, there is need for original and path breaking legal research to create new legal
knowledge and ideas that will help meet these challenges in a manner responsive to the
needs of the country and the ideals and goals of our Constitution. Legal professionals should be equipped with skills with deeper understanding of professional ethics, modernizing clinic courses, mainstreaming legal aid programs and developing innovative pedagogic methods. Legal education must also be socially engaged and sensitize students to issues of social justice.
Examination System
We recommend revising the prevailing examination systems and suggest the
development of evaluation methods that test critical reasoning by encouraging essential
analytical, writing and communication skills. The end-semester examination should be
problem-oriented, combining theoretical and problem oriented approaches rather than
merely test memory. Project papers, project and subject viva, along with an end-semester
examination to be considered as pedagogic methods imperative for improving quality.
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 lawteaching.
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. There is also an enormous need for non-practising law graduates in
trade and commerce. It is also necessary to allow engineers, chartered
Accountants, scientists and doctors to qualify in law for non-practising purposes.
Indeed, it is gratifying that some Indian Institute of Technology (“IIT”)
institutions have recently started several courses in law. The Open University
system must also be allowed to cater to legal education. The Bar Council of India
may, of course, still deal with the minimum standards of legal education for the
purposes of entry into the Bar but there is a need to have a new regulatory
mechanism that will cater to the aforementioned present and future needs of the
country.
India and the various resolutions in other conferences have repeatedly pointed out
that the BCI has granted permission to a large number of law schools that are
maintaining very poor standards and have very poor infrastructure.
1.6 Most of the seven hundred odd law schools do not compare well with the
standards and curriculum required in the present age
1.6.1 While the NLSUs and some other law schools teach a very large
Today, we have about 11 NLSUs where students are selected in an all India
competition. These colleges have been producing our best legal talent
comparable to the most renowned colleges in U.S and U.K. However, this alone is
not sufficient for our purposes and we have to raise the standards of the remaining
700 odd law schools. The Law Commission has indeed observed in its 184th
Report (2002) (see para 10.7) as follows:
“We cannot, however, rest content with a few star colleges. We must be
concerned with all the rest of the hundreds of law colleges located in cities
and district headquarters all over the country. It is these students who
come to the Bar in great numbers at the grass root level… A few bright
star colleges with limited number of student intake in an All India
selection is not the end and may not result in an over all change in the
level of legal education”.
Needs of the Bar and Subordinate Judiciary are not met by the graduates
from the existing 700 and odd law schools:
1.7.1 Recently, the Supreme Court of India has observed in All India Judges
Association Vs. Union of India (2002) 3 SCALE 291 = (2002) 4 SCC 247,
(2002) 2 SCR 712 = AIR 2002 SC 1752 that recruitment rules in the States should
be amended to permit raw graduates from the law schools to enter the subordinate
judiciary.
To meet various new challenges
Legal education must be socially engaged. This means that legal education
programs must compulsorily expose students to the problems of poverty, social
exclusion, social change and environmental degradation through clinical legal
education, legal aid programs and through seminars and debates that sensitize and
expose students to issues of social justice. Working with the poor through one or
other program must become a mandatory part of the curriculum. Faculty must
include individuals with inter-disciplinary training and direct experience on social
issues. This situation that has been created can be broken only by
establishing an independent regulatory mechanism with an international vision,
which can see beyond the requirements of ‘entry into the Bar’
A new regulatory mechanism is needed with powers to deal with all aspects
of legal education:
Chief Justice A.M.Ahmadi pointed out in one of his lecture, “I think we have waited long enough
to repair the cracks of the Legal Education system of this country and it is high time that we rise
from our arm chairs and start the repair work in right earnest.” The reforms in Legal Education and
Legal Profession have been long over due.
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.
The Indian law teacher's conception of law is typically a static one, and he approaches legal
education through a lecture method, emphasizing systematic presentation and verbal analysis of the
existing structure of rule and doctrine. Little attention is paid either to the policies that underlie the
rules or to the processes of growth and development through which the legal system adapts old
rules or announces new ones.
Sunday, September 13, 2009
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