The legal education in India, particularly after the rise of National Law Universities (NLUs) has often been criticized for nurturing privilege and remaining inaccessible to most. Even a cursory examination of the system is enough to demonstrate that the criticism is not devoid of merit. One, the medium of instruction in these Universities is compulsorily English, which prevents a large number of people from pursuing legal education in the NLUs. For people who manage to secure admission to an NLU, it is at times difficult to cope up with the syllabus due to language barrier and lack of remedial classes for English. Two, education at an NLU is expensive and cannot be afforded by all – unless they take education loans. Securing and paying back education loans is difficult for many. Three, there have been allegations of institutionalized caste/ class discrimination and lack of empathy and support from the University authorities or peer group. Four, the representation of people from low-income households, small towns, rural backgrounds, the North-East, Jammu and Kashmir is exceptionally low.
One of my earliest exposures to a law school was through the lens of Elle Woods in the film Legally Blonde. Not going into the merits/ demerits of the film, the reason for bringing it up is that the Indian law schools starkly remind of the movie’s Harvard Law School on two counts – one being privilege and the other being condescending alienation. Reese Witherspoon’s Elle Woods showcases both the problems in different contexts. Elle embodies privilege when out of the blue she decides at the last moment to get enrolled in Harvard, and manages to not only secure enough marks in the LSAT – which might have been impossible for someone who did not have her privileged upbringing; but is also able to pay Harvard’s tuition fee without any hassles – courtesy her wealthy father. Same is true for NLUs, where (speaking from experience) it is much easier for a person of privileged background to crack the CLAT and secure admission. While the analogy of privilege can be directly drawn, the second one requires a little stretching. Once, Elle takes admission to Harvard, she is continuously looked down upon by her peer group, which cannot see past her glitzy appearance to recognize her intellect. NLUs witness alienation of certain groups, not for their flashy appearances, but for the ‘non-flashiness’. The alienation could arise from factors ranging from caste to economic class to the inability to make fluent conversations is English. Demands have been raised on multiple occasions to increase the diversity in the NLUs in order to rid of these problems. Most of these concerns were at the earliest voiced by late Prof. Shamnad Basheer, who through his work in IDIA also attempted to tackle some of these issues. However, the points of concern have persisted rather than alleviating, due to lack of institutional reforms.
The National Education Policy 2020, apart from other objectives, also lays down certain reforms to be made in the legal education sector. The NEP primarily suggests three reforms to be made to the current legal education framework. One, it discourages the practice of stand-alone institutes and states that no new stand-alone institutes shall be permitted unless special circumstances arise. It further proposes that existing stand-alone universities shall become multi-disciplinary by 2030, either by creating new departments or through creating clusters. While this recommendation is not exclusively directed towards law institutes, NLUs shall be vastly impacted due to their isolated existence. Two, it recommends a bilingual approach for law institutes. Three, it seeks the formation of a new legal education policy to make professional education in law globally competitive. These reforms are being touted by certain commentators as a positive step in the direction of easing some problems in the NLU based education. A deeper analysis of the recommendation, however, reveals flaws in design and possible implementation.
The recommendation regarding stand-alone institutes appears to hold some merit in the context of NLUs. The 5 year law course run by the NLUs are criticized for not providing adequate multi-disciplinary approach. It is argued that study of law is incomplete without command over at least one other subject – as was the case with three year law courses. A multi-disciplinary institute could provide law students with the opportunity to interact with students and scholars from different fields and thus develop a more varied understanding of law. But, how far the idea is practically implementable, shall have to be seen. Few issues that could hinder the process of making residential institutes like NLUs interdisciplinary are lack of physical space, and lack of financial support. Physical infrastructure and financial aid from the governments have played an important role in making inter-disciplinary institutes like JNU and IITs a success. Most NLUs are, however, already facing space crunch and are unable to house the existing batch of students within the campus. Opening new faculties within them would then either limit their access to people within the region or would force people to take up residents outside campus – which in our social set-up brings complications of its own. Second, most NLUs are running in a self-sufficient model with limited funding from the state governments. In such case, forcing them to open up new departments could further drive up their costs and hence decrease accessibility. Cluster model could possibly function better for these institutes. The policy however does not elaborate on how these clusters shall operate.
The second recommendation is regarding bilingual teaching in state law universities. While the idea of promoting bilingual learning in law universities is commendable, it nevertheless has certain lacunae. The policy is directed towards state institutes offering legal education, which makes it applicable to NLUs. As envisaged in the draft NEP, the methodology of appointing bi-lingual teachers based on the regional language of the place could help translating legal materials for the purpose of students familiar with the regional language and also for higher courts of law which function mostly in English. However, it solves the problem of language barrier for NLU students only to a limited extent. While it can certainly help a student who is studying at an NLU situated in her region, it fails to take into account people who could be taking admission in different states. A student from Tamil Nadu who got admission to an NLU in Bihar could neither be well-versed in English, nor familiar with Hindi, the regional language. Similarly, a person from Delhi seeking admission to an NLU in Maharashtra could have problems in both English and Marathi. In order to cater to the issue, it is necessary not merely to introduce bilingual education, but to also start extra classes/ remedial classes for English- which is the most common language used in the legal field. De-emphasizing English in favour of regional languages is not the solution for legal education in India – especially considering inter-state students.
The most concerning issue pertains to the third recommendation in the NEP. The NEP document states – ‘It (legal education) must be informed and illuminated with Constitutional values of Justice – Social, Economic, and Political – and directed towards national reconstruction through instrumentation of democracy, rule of law, and human rights. The curricula for legal studies must reflect socio-cultural contexts along with, in an evidence-based manner, the history of legal thinking, principles of justice, the practice of jurisprudence, and other related content appropriately and adequately.’ The statement is quite innocently worded, and prima facie appears to be a reaffirmation of the Constitutional ethos in legal education. However, it is words like national reconstruction and socio-cultural contexts that demand further exploration. While neither the NEP nor its revised draft throw any light on the exact meaning of national reconstruction; the term socio-cultural context does find explanation in the revised NEP draft.
The NEP revised draft elaborates upon curriculum to include socio-cultural contexts in the following words – ‘It is the function of legal education to transmit the foundational values of Indian democracy to learners in order to give legal studies the necessary social relevance and acceptability. In doing so, the law curriculum has to fall back upon the culture and traditions of people, the history of legal institutions and victory of “Dharma” over “Adharma” writ large in Indian literature and mythology. Further, there is growing consensus worldwide that the study and practice of law cannot be independent of the culture of society, including the study of classical law texts.’
Looking at history and culture for understanding law is not new. Historical context has been jurisprudentially recognized as an important aspect of legal theory by scholars such as Savigny and Henry Maine. While Savigny believed in the concept of Volksgeist (akin to a national spirit), which emphasized that law is found and not made, and it cannot be separated from its people and transplanted onto others; Maine’s approach was more comparative in nature and he also acknowledged the role played by judges and jurists in developing law. With time, it has been realized that historical approach is only one way of studying legal theory and cannot be the sole method. Relying solely on history for law brings with the bad along with good and might not suit the current needs of the society.
The draft policy, however, ignores all other aspects of law and tends to over-emphasize on culture, tradition, and mythology. The usage of the term ‘has to fall back upon culture and traditions’ cannot be ignored. The present government has on multiple occasions expressed the desire for reviving the Vedic traditions and the party in power has on multiple occasions spoken about creating a Hindu nationalism. In this background, the talk of culture, tradition and mythology, while discussing legal education raises alarm. The draft further asserts that law cannot be independent of culture and talks of study of classical law texts. The classical law texts in India are commonly believed to include the four Vedas, Smritis, and acharas. Dharmashastras are smritis dealing with ancient legal principles. Out of numerous dharmashastras some of the most prominent as Manusmriti, Yajnavalkeya Smriti, Narada Smriti, etc. Many of these texts, most prominently the Manusmriti have fallen into disrepute over the years for propagating discriminatory attitudes towards non-brahminical castes and women. Falling back to these texts for inspiration shall do more harm than good to legal education. Barack Obama wrote in his memoir Dreams from my Father ‘The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.’ It is true that the law is a memory, and hence has to derive from its past; but at the same time, it is an ever-evolving concept that changes with times – it is a long running conversation. Some memories can only function as a reminder for the need to progress and cannot be texts to rely upon for the study of law. One cannot speak of Constitutional values and what constitutes our classical legal texts (such as Manusmriti) in the same breath. While culture and tradition of a place are important for developing its legal principles, it needs to be taken into account that cultures, traditions and the society evolves. Also, culture and traditions cannot be presumed to be a homogenous concept, as projected by the draft NEP’s wordings. Cultures and traditions should be appreciated in their diversity. The draft NEP’s failure to take these factors into account is alarming, to say the least.
It is noteworthy that the policy when dealing with legal education – makes no recommendation towards making law schools more inclusive. It remains silent on questions of caste, and gender – both in graduate level training as well as in post-graduate studies. Not only does it ignore this vastly raised concern, its recommendations can potentially enhance the concerns further. On the whole, the NEP policy on legal education, like most of its other recommendations, is quite like a pie in the sky – agreeable to contemplate but improbable to be realized in the manner of contemplation.
Tanaya Thakur is PhD Candidate (Law) at IIT Kharagpur. She holds masters in international law from South Asian University, New Delhi.