Set the bar higher

Recently,the Bar Council of India (BCI) was in the news for protesting attempts by the Ministry of Human Resource Development to usurp its superintendence of legal education through the Higher Education and Research Bill,2011. This squabble is merely one of many in a series of turf wars between various agencies to assert their dominance over legal education.

All of this naturally raises the question: does the BCI have the competence to regulate legal education in the first place? In terms of legal competence,the answer appears to be in the affirmative. As for institutional competence,the less said,the better.

Even in terms of legal competence,there is an important caveat that seems to have been missed by the BCI in all these years of regulatory dominance. Section 7(1)(h) of the Advocates Act,1961,requires the BCI “to lay down standards of… (legal) education in consultation with the Universities in India imparting such education”. Past records do not suggest any meaningful consultation with universities. While castigating this deficiency,the National Knowledge Commission noted that of the 10 members of the BCI’s Legal Education Committee,only one was a full-time legal academic.

The lack of proper consultation is not just anathema to the law,but has also had an impact on the quality of BCI norms. Any legal educator knows that it is near impossible for law schools to fully comply with the BCI’s rather onerous curriculum requirements. To add to its woes,the 184th Law Commission Report noted several complaints from law schools that the BCI’s directives often “tend to be arbitrary.”

The BCI’s attempt at salvaging its institutional credibility through a Directorate of Legal Education led by a legal academic was a step in the right direction. Unfortunately,apart from conducting the All India Bar Exam,the Directorate appears to have done little else. If the BCI is serious about this institution and its role in setting standards for legal education,it must ensure that the Directorate is well funded,sufficiently autonomous and not subject to wanton interference by BCI officials.

While enhancing its institutional legitimacy,the BCI would do well to keep in mind that the purpose of law schools is not to merely mass-produce technically competent lawyers ready to serve the bar. Rather,it is to cultivate critical thinkers,social reformers and creative leaders free to pursue an array of career options. Law schools must therefore be encouraged to experiment with their curricula and conceptualise courses that foster critical and creative thinking beyond the black letters of the law.

The Advocates Act mandates the BCI to consult with law schools while formulating educational norms,but it does not specify the form or extent of consultation. For this process to be effective,it is important that law schools form a representative association that speaks in one voice to the BCI.

This association must work with the BCI and the University Grants Commission (UGC) to fix the bottlenecks plaguing even the most elite of legal institutions. Although the prime minister was generous in labelling the National Law Universities (NLUs) “islands of excellence amidst a sea of institutionalised mediocrity”,these islands fall several notches short of “excellence” when measured against their international peers. They mostly bask in the glory of their students without investing significantly in upgrading their standards. The quantum and quality of research output are appalling and the teaching methodology continues to rely largely on a one-way lecture based transmission of legal doctrines that are simply regurgitated during exams. There is no real interactive or experiential learning.

Most problematically,the governance structures of these premier institutions are extremely fragile,hanging on the whims and fancies of vice-chancellors chosen to lead them. Visionary VCs have taken law schools up by several notches,only to have unimaginative successors undo the work in no time.

What is most worrying is that many of these leading institutions have no public funding and are forced to rely primarily on student fees. Not only is this unsustainable in the long run,it effectively strips away the “public” character of these institutions and converts them to elitist centres with hardly any representation from poor,marginalised students.

Going forward,we need to move beyond the turf wars and craft creative solutions to redress the various problems plaguing legal education. Only then can we hope to create world-class institutions that push the frontiers of knowledge and encourage their students to use one of the most powerful tools of social justice to fashion a better society for all of us.

The writer is the Ministry of HRD professor of intellectual property law at the National University of Juridical Sciences,West Bengal,express@expressindia.com