March 3, 2012

National Law Schools in India; challenges and future

Many students do not have any idea about what it is to be an average lawyer. Today, Indian law schools,
National University of Juridical Sciences
and in particular, the so called elite National Law Schools (offering five year integrated program), believe in the survival-of-the-fittest principle, and in this run for pride and fame, inevitably seem to be compensating on the quality of students and culture on campus. Law schools definitely hone research, drafting and the like. But civility?
These are the main issues that we shall discuss on today’s interview with Dr. Clarence Dias (International Center for Law in Development, New York); Advocate Protik Prokash Banerjee (Calcutta High Court); and Nishant Beniwal (Senior Associate, Trilegal, Delhi). The panel was chosen strategically to rubbish all claims of biasness, and to ensure that every field of law is properly represented viz. litigation, law firm work, and academics.  

Ashish Goel – Law professors in Indian law schools have little or no experience in law practice, be it as a consultant or litigator. I think a minimum of four-five years of litigation or consultancy experience must be the pre-requisite for a teaching position in a law university, so that the teachers can share their practical experiences and relate them to classroom coursework. Don’t you think this will help students appreciate the challenges that this profession will pose to them after graduation?

Dr. Clarence Dias: There are 2 key concepts here: experience and the practice of law. Experience, most importantly, not just in the school of law; but in the school of life. Practice of law as a concept that subsumes and transcends “law practice” in litigation or consultancy. Both such concepts are essential for becoming a law professor. But it is a mistake to prescribe a time period of “four or five years”. What counts is the quality of the experience and not the quantity.
An important opportunity to gain such quality experience can come while one is a lecturer or reader. So, at the entry level into law teaching, it is unrealistic to require such experience. But if we have come to live with the “publish or perish principle” surely we are ready to require a “no room for ostriches principle” which eschews both burying one’s head in the sand as well as burying one’s head in the law books.
There are many ways to experience law: as plaintiff, defendant, victim, violator, lawyer, prosecutor, law enforcer or judge. Quality experience is a composite of all such ways of experiencing law.
Similarly, there are many ways of practicing law of which being advocate, solicitor or judge are just the tip of the proverbial iceberg. Law is importantly practiced in many places other than the court room: in self-determination struggles, in independence movements, in constitution-making processes that follow, in struggles against exploitation, exclusion, discrimination and marginalizing to name but a few. What unites these diverse practices of law is the common pursuit of justice through the rule of law and the reign of justice.
In sum, it is important that life be brought into the law classrooms so that truly “those who have less in life, shall have more in law”. A Professor of law must not only profess, but also practice and propagate the cherished principle of “and justice for all”.

Ashish Goel – My personal experiences as a law student at one of the best law schools in India forced me to believe that a majority of students go gaga over moot competitions and debates. According to me, and observing from the way these moots and debates are conducted, students invariably get swayed by only one factor – victory. This implies that the case has to be won and the client be freed from legal wires – by hook or by crook. Isn’t victory-driven research winning over the moral obligations to work towards reforming clients? Do you think such experiences in law school add up to a bad lawyer, resulting into diminishing moral standards with every successful case in real life?

Nishant Beniwal: I am not sure, if one has to only blame competitions and this victory at any cost approach for the apparent decline in moral standards, though this apparent desire to succeed may be a factor. What I think is that in any event on the whole there is been a moral decline in society, so why wouldn't the legal profession not be affected, especially since it is a profession that cannot be insulated from society, say like the Army. What is happening is that we as a society seem to be moving from a means and ends based approach to an ends only one. This is thereby leading to the instances that you have termed as victory by 'hook or crook'.
Gandhi had an interesting take on this, he used to say 'means are, after all, everything'. And to explain, he used the following example, which I think is extreme well thought out, he said; 'If I want to deprive you of your watch, I shall certainly have to fight for it; if I want to buy your watch, I shall have to pay for it; and if I want a gift, I shall have to plead for it; and, according to the means I employ, the watch is stolen property, my own property, or a donation.' Unfortunately, in what may be a race towards success, we seem to have forgotten such lessons. 
In my opinion the main driving force for a lawyer should be 'justice'. So the question needs to be as to what role can law schools play in ensuring that 'justice' becomes the fulcrum of a good legal education. I think if that goal is kept in mind things will sort themselves out eventually. What law schools need to emphasize is that achieving justice is the ultimate goal of the practice of law. What we require is therefore, justice education and not just legal education. For this, we need to include courses on law and poverty, law and development, etc., sensitize students on social realities and also what should be their role as lawyers in society. The integrated law school experiment was started with this in mind, integrating social sciences into legal studies and churning out 'social engineers' and not lawyers. Clearly, at this stage, the experiment does not seem to be achieving its desired result. But, that does not mean that we should give up hope just yet.

Ashish Goel – As an established lawyer, what is it that you think law schools must institutionalize in order to take a more humanistic approach to legal education? Meaning, should legal education not emphasize on learning and unlearning through group discussions with less hullabaloo on attendance and grades. Moreover, please enlighten us on the importance of extra-curricular activities, especially mooting and publications, in a post-law-school scenario and on those lines, tell us if there is a better way to spend time in those vital 5 years at law school.  

Protik Prokash Banerjee: Law-school professors, unless they have had at least 10 years’ experience in a Court with an active practice, hardly know enough procedural law and how it works in practice to help a law student learn how to practise law, whether as an advocate, an associate in a law firm, a human rights activist or a law officer in the government, industry or even as a judge.
I agree with you that legal education should put less emphasis on attendance, and no importance at all on grades except between passing and failing.  What is required is daily internship at different levels of the hierarchy of courts and law firms and the industry, with mandatory judicial clerkship and NGOs for a term, so that the practical aspect of being a lawyer (in the widest and American sense of the term, where anyone who earns his livelihood through law is referred to as a lawyer) is drilled into the student alongwith the theory. 
Law students must be encouraged to read, a vanishing art.  Most law students do last moment cramming for the exams and live it up the rest of the year.  This is not the way to learn law.  This may help in getting good grades and CGPA or whatever and making yourself look good in the curriculum vitae, but it does not make you a good lawyer.
I would suggest, that the best way to utilize law school is to attend Courts and intern at those places I wrote about earlier, and have minimal classes where the doubts of the students was clarified, but lots of assignments (home work) for the student to complete wherever he wants; he may use the law school library, the chambers of the Senior or the office of the law firm or the Non Governmental Organization or the industry, or even his home.  I would in fact insist that there be no pure theory questions at all.  All law school examinations should have a certain number of problems and subjective answers through which the student would show his “understanding” of the law and how to apply it in a given situation, rather than test his ability to cram and vomit what he has crammed on the answer-script, so that his performance in artificial circumstances does not define his ability.
Mooting does not really help one to learn the practical pit falls of advocacy or arguing before a court or tribunal or even an authority.  Firstly to be a practising advocate, a student must make the transition from academics to the real life cut and thrust of litigation.  That means knowing the law or where to find the law, knowing how to research, learning how to draft pleadings and notices and documents effectively and precisely, learning court craft and learning how to argue.  While law school, even in its present incarnations teach the first three very well, without attending courts or tribunals where you watch both the masters of the profession and the monsters, you will never learn court craft or the art of arguments.  Drafting pleadings require intense interaction with a professional lawyer who is good at what he does. It requires a clarity of mind, an ability to grasp the essentials and marshal the facts (a technical phrase which means arranging the facts in the best order that would present your client’s case most effectively—at least two superlatives—so that anyone considering the facts in that order must incline towards your client’s position).  I have found no law school which has the faculty to teach how to draft and most law school graduates that I have come across, whether personally or through their drafts, even after five years of practising law or working in a law firm, have abysmal drafting skills.
So I guess the open-system that I have advocated, is what would make better lawyers than we or our previous generations have ever been.