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Changing times have brought profound changes to the nature of expectations of lawyer today. What we will do in this column is to outline where the changes are coming from and how the legal education sector will need to interface with the professional organization of the practice of law in this country.
The Legal Profession Historically
In India the legal profession first emerged as a distinct modern profession under colonial conditions. In some senses the story of its roots is analogous to the emergence of the Indian bureaucracy (ICS, later, IAS) under colonial conditions. While the eventual (contemporary) bureaucracy has stayed rooted to its strong association with the colonial/modern Indian state, the legal profession has clearly had a far more adventurous career. There are two principal reasons for this diverse and adventurous career: (a) the democratization of the profession itself and its sinking roots amongst the vast majority of the people of the country as the primary profession discharging legal advice and dispute resolution services in Indian society; and (b) the democratization of the state structures that allowed all peoples of India to access the dispute resolution mechanisms (court system) of the state. A corollary to this has been that the languages in which the court structures of India operate have seen a dramatic deepening and change in favour of the local languages of India. English has remained a language of argument only in the Supreme Court and, to a lesser extent, in the state High Courts. For the most part, in all lower courts across the entire country the specific local languages have become salient as the operating languages.
What all of this has meant is that the legal profession in India is far more democratized – and, as a consequence, far more complex/diverse – today than it ever was in the modern era. Concomitantly, regulating such a complex profession has become a lot more complex than ever before.
Becoming a competent and successful professional in such circumstances requires a legal professional to acquire competencies in a variety of skill sets & languages. This has put a premium on an understanding of the court and state structures in India in general and in all the specific states in particular.
Because of all of these complexities that have been introduced into the legal system and profession, creating a legal educational curriculum that can attempt to address these demands from the nature of today’s profession itself has been very challenging.
Legal Education Historically
Even as recently as twenty years ago, the demands made of a typical legal educational institution imparting legal education in India were not many. As was the norm, people that joined law colleges to pursue legal degrees belonged to two broad categories. Either they were people that could not get admission in science or commerce streams, or they were people that wished to join the legal practice of a family member, usually a father or a grandfather. Irrespective of why they came to study law, they made use of their legal degrees in more or less the same ways. While the family lawyers grew up to join their parents’ practices the other set of lawyers drifted into the other sectors. Primarily, the other set of lawyers joined the practice of law in the courts, or they joined law firms or they drifted into the corporate sector (legal departments of corporations).
Further observations in this regard can be summed up as below:
(1) The ones that practiced in the courts largely needed to learn the civil laws (viz., contracts, torts, etc.); (2) the ones joining law firms did civil laws also (and transactional law in addition to that); (3) the third category of lawyers that joined corporate legal departments became responsible for legal and quasi-legal secretarial functions involving the company as well as the specific economic domains that that/those companies did business in. (For instance, a lawyer working for a real estate company ended up learning a lot about that domain and a lawyer working for a pharmaceutical company learnt a lot of the legal regime regulating that industry ).
Back in the old days (early & mid 20th century) legal education was a means of getting into the colonial bureaucracy or entering practice as lawyers in the colonial courts. During this time there was social prestige associated with the legal profession and so people attended law colleges and enrolled in the profession. However, towards the latter part of the 20th century the prestige associated with the legal profession diminished significantly in favor of careers in engineering, technology, medicine, etc.. Certainly amongst the urban middle classes, the legal profession acquired a negative halo and even the fading memory of Mohandas Gandhi as a legal professional could not redeem the image of the legal profession and professional lawyer.
The Market for Legal Professionals Today
The market for legal professionals has evolved over time in India and the kinds of career options aspiring students that want to study law have in mind has become more diverse than it was even a few years ago. Not so long ago, students typically wanted to join the practices of either their parents or someone else in the family. The corporate legal sector was not such a significant alternative nor was the professional law firm. However, today the market for legal professionals has become more diverse with many more alternatives to the typical legal graduate than were available a few years ago. Of course, each of these career options is distinctive in the career paths they provide for the legal professional. While, generally speaking, a career in private practice or with a law firm are broadly comparable in terms of the kind of work that one gets to do, a career with legal departments in the corporate sector are more focused and specialized and do not generally require the kind of generalized knowledge that would be required in practice or in the law firm.
Of course, amongst the law firms themselves, there are those that are professionally run and those that are run more like family fiefdoms, and the smarter lawyers tend to go to the professionally run firms. Pay packets tend to be stable and growth prospects linear and predictable in the professional law firms and corporate legal departments. Not surprisingly, it is the smarter law firms that go to the modern day law schools to recruit professionals that come with a certain degree of caliber/expertise. Neither the traditional family law firms nor successful professionals in private practice go to these newer law schools. Of course an assortment of corporations do go to the same law schools to hire professionals to man their legal departments. By a rough guesstimate, at this time, the main recruiters from the law schools are (in terms of percentages), law firms (50-70%) and corporate legal departments (20-30%).
Today, there are a small group of law graduates that choose to go into other sectors, such as academics/teaching, working with NGOs or other such paths generally considered “alternative” as opposed to mainstream. And there are many that are attempting to make careers in the globalised legal outsourcing sector.
Legal Education Today
To be sure, attempts to transform the Indian legal educational curriculum have been underway for quite some time now. For the first three or four decades after Indian independence, legal education barely changed from its colonial form and structure. The only things that changed during this time were the list of laws that were typically studied by law students.
It was towards the latter part of the 1980s that attempts were first made to attempt to change (and even) overhaul the legal education system in very fundamental ways. The name that is most associated with this exercise is that of N.R. Madhava Menon and his experiments with a National Law School model. For Menon, the model was clearly the American Law Schools that taught legal subjects in very intense, rigorous courses, with a heavy emphasis on research skills and course work. The major difference from the American law schools was that whereas the American law schools made the law school program something people pursued after they first obtained a 4 year basic college degree, in Menon’s version of the law school, Indian students joined the law school right after their class XII, i.e., as 17/18 year-olds. In contrast, the typical age at which students went to a Law School in the US was 23 or older.
Measured by certain parameters of success, Menon’s model worked well for the graduates from NLSIU and the other national law schools. This was because most graduates were able to find positions with law firms or corporations. However, the very success of these law schools led, inevitably, to the creation of a pecking order among recent Indian law schools by which some of these were identified as the top tier (“cool”) and the others as not so hip. For a number of urban middle class kids today it is virtually a case of either make it to any of the top tier law schools or not at all.
This privileging of the national law schools will not endure and things will even out over the longer term. These newer “hip” law schools will, inevitably, be the victims of their own success. This is because the curricular and pedagogic practices of these law schools have not sunk roots amongst the democratic cultures of India. The languages and content that is imparted at these law schools is biased heavily in favour of the westernised urban upper middle classes. As a consequence these legal pedagogic cultures are alienated from the democratic mainstream of India. One symptom of this is of course the fact that nobody that wants to practice law in the country’s courts seems to go to any of these newer law schools for a legal education. Those that want to just practice law will keep going to their “neighbourhood” law colleges that will allow them to qualify for a license to practice. (In Bangalore alone, there are nearly 25 law colleges apart from the NLSIU and so a lot of the “regular” folks/“aam jantha” will keep going to these colleges). However, the corollary to this is that people that do study in these 25 other law colleges will struggle in westernized global corporate and legal settings.
The challenge for legal education today is whether it can address the needs of all the diverse stakeholders in the system.
Note that while addressing the second point noted above, legal education will also assure itself that it is a sustainable business enterprise over the longer term.
The tasks for legal education are today very clear then. For it to prosper and achieve its true potential it will have to navigate a path between the NLS models and the “neighbourhood” law schools. When combined with a culturally informed curriculum and pedagogic practices this will allow the legal education sector to thrive profitably and meet the diverse needs of all of its stakeholders.
The State of Legal Education series of columns are devoted to discussing relevant and contemporary issues with respect to legal education in the country.
CS Dattathreya is a graduate from the National Law School of India University, Bangalore (Class of ’97) and did his MA and MPhil from Columbia University, eventually returning in India in 2006. He was also one of the founding members of the School of Law, Christ University in Bangalore.