Building windmills: Thoughts on the future of the legal profession

Where is the social engineering of Roscoe Pound with the use of law as a tool to engineer and structure our society for the betterment of its members?

Hi Navneet,” the message from a person I didn’t know started innocuously enough. “My son is pursuing law”. I took a deep breath while attempting to banish visions of a boy chasing a deer in a black gown and waited for the inevitable request.

Could you give him an internship?”. Then followed the reason why I still remember this conversation, “If you can’t offer him an internship, could you use your contacts in a law firm to get him one?” There was also a barely remembered ex-colleague who sent me a list of 15 law firms which interested their nephew with a similar request.

These are just two of the many brusque requests that flood in every week from people I have never met. My first reaction to most of these requests is usually one of annoyance. I would have never reached out like this for a favour, I tell myself. The sheer entitlement of some people.

I must admit that my background plays a role in increasing my irritation.

Senior Advocate Sanjay Hegde’s wonderful tribute to Justice Rohinton Nariman recounts a comment by Justice TS Thakur: “You see Mr. Nariman, a common problem that we share, is that we both have had overachieving fathers.

I sympathised with that presumably ironic comment, as I too had an over-achieving father.

Fali Nariman
Fali Nariman

Children of successful parents will tell you that while there is the benefit of inheriting their financial and social capital, it can often be difficult to flee its orbit. My father was a senior government official and his well-meaning, though overbearing, shadow hung heavy over my childhood. For my self-respect if nothing else, I had therefore decided that I wanted to do things myself and hopefully in an area where he could exert no influence.

In pre-liberalised India though, this was not as easy as it sounds. I still remember the time he was ‘called on’ by a senior executive from a large bank, to use the correct bureaucratic term. While leaving his office, this particular lady gave my father an extra visiting card and said, please give it to your son and ask him to apply to us. My father who had, quite rightly I suspect, a low opinion of the abilities of his only child, promptly called me and asked me to write to them immediately. While making promising noises, I did nothing of that sort.

Coming with this history, therefore, I was not particularly impressed by such clumsy attempts to use, pun-intended, the ‘old boys’ network.

Keeping aside emotions arising from my ordeals, I could see that this wasn’t limited only to my overbearing quasi-acquaintances. It seemed to be a common theme across the profession. A lot of people seemed to have taken up the law as a future career and they were struggling to find opportunities.

The issue wasn’t limited only to internships either, my team advertised for an opening in India a few years ago. We received more than 500 applications for one job. The vast majority of applicants either had no relevant experience or often were very overqualified for what was advertised. A pall of desperation seemed to be in the air.

So, what was happening? Is the “legal dream” over?

To understand this, one needs to look back at how we came to be here.

Until the 1990s, law students in India generally tended to fall into one of three categories:

  • The ones in the family business – the second or third-generation lawyers with an active practice to protect;

  • The ones with a passion for the law – the rare and the bright;

  • The rest – Like me, this was the vast majority and had usually landed up in the law because they didn’t have an interest in the sciences, were using the law as a base to do something else like politics, or well, didn’t have anything else to do.

The quality of legal education imparted also seemed to perpetuate the problem. The first University Education Commission set up under Dr Sarvepalli Radhakrishnan in 1948 made a special mention of the state of our law colleges:

“We have no internationally known expounders of jurisprudence and legal studies. Our colleges of law do not hold a place of high esteem either at home or abroad nor has law become an area of profound scholarship and enlightened research.”

Despite many attempts over the ensuing decades, the situation didn’t change. I remember an anecdote where students in a leading law college in a large city were made to study a certain statute for an exam only to realise that the particular law had been repealed a few years ago. It seemed that no one was really interested.

Into this environment entered a titan - Dr NR Madhava Menon. A man of great passion and persistence, Dr Menon was primarily responsible for the establishment of the National Law School of India University (NLSIU) in the 1980s and the concept of the National Law University.

The concept was deceptively simple, used competitive selection, an improved curriculum, practical teaching methods, and strict norms to improve the quality of legal education and bring forth a new breed of lawyers from the ‘Harvard of the East’.

Dr NR Madhava Menon
Dr NR Madhava Menon

Dr Menon’s ambitions weren’t limited only to improving the training provided to lawyers. He wanted his lawyers to be social engineers and change the very nature of the justice system from within:

“...the justice delivery system today with its adversarial legalism as the major tool is not sustainable in unequal societies where people do not have their basic needs met. It is a no-win situation for the poor even if the laws are favourable to them.”

On the social engineering theme, things didn’t go completely to plan. Just as the Abbasid era poet Al-Mutanabbi cautions us, “Not everything a man longs for is within his reach; For gusts of wind can blow against a ship’s desires.

There was a sudden gust that blew up in the mid 90s that changed things.

Coincidental but in parallel to the establishment of NLS, came what is called the liberalisation. Starting in the late 90s, these reforms completely changed the face of our economy. These had far-reaching consequences, not least to our legal profession.

One of the most significant of these was a new need - that of a corporate lawyer - in numbers which were unheard of until then.

The legal profession, famously allergic to change, didn’t quite react to this transformation.

The venerable litigation chambers and firms continued the way they were used to, focused on the courts, paying their junior lawyers' miniscule amounts for the ‘privilege’ of learning from them while pointedly ignoring the storm gathering at their gates. If you wanted a career in litigation, you had no choice but to live off your parents for a few more years. This was an option not available to many, including me.

I would argue that the reluctance of the traditional legal luminaries to change was the biggest betrayal of Dr Menon’s concept of social engineering, but the gusts of wind begotten by liberalisation also played a role.

As liberalisation took off, new law firms blossomed to milk the demands of the new economy and also led to the rise of in-house departments within companies. These jobs tended to be better paying and had lawyers who didn’t go to the courts, but to offices. You could now be a lawyer without having to search for clients and perhaps, more importantly, without having to go to the male-centric world of the courts. This opened up the profession to more women and first-generation lawyers than ever before.

The legal profession had changed despite itself.

Another unintended consequence of these changes was that it brought our elderly profession to the attention of another category of people – the Indian parent.

Attending law school in the early 90s, my father would often chuckle at the sympathetic demeanour of his officers when he told them that his son was studying law. Poor fellow, their glances suggested, despite his accomplishments look at what a failure he has for a son.

A younger Chief Justice DY Chandrachud, himself the son of a Chief Justice of India, mentions how he was once advised to procure a gas agency licence to pay his bills, since a law practice would never be enough.

So, for us to see this sudden change, where CLAT is mentioned in the same breath as a JEE or a NEET and the legal profession being considered the place for a ‘solid job,’ was quietly amusing.

In addition to the first three categories, there was now a new, fourth category of law student, those pushed to take up the law for financial gain. These students were expected to make good the ‘investment’ of the high college fees. In other words: join a ‘top tier’ law firm or a company. Social engineering be damned.

The final result is before us and can be encapsulated in one word: Oversupply.

The Bar Council of India recognizes 194 Central Legal Education centres or CLEs (including 18 NLUs) with an estimated 550,000 students enrolled. Conservative estimates suggest there are approximately 15 lakh registered advocates in the country. There are just too many people chasing too few jobs.

It is easy to write this off as a problem of too much population. However a deeper look suggests that in the middle of all this is present a paradox.

We have an oversupply of lawyers, but at the same time, the justice system seems to be missing sufficient numbers if one looks at the huge number of cases pending before our courts.

Anecdotal evidence also suggests that we complain about there being too many lawyers, but struggle to find the one who is dependable and competent (not to mention reasonably priced) when we have a particular issue. This matter becomes even more acute when you look at lawyers available to take on matters related to social justice in a world increasingly becoming more unequal.

So, the problem is not that we don’t have enough lawyers, the problem seems to be that we don’t have enough of the right kind of lawyers.

In addition, our profession seems to only attract people who look at it as another job with a cushy pension at the end of it. That is not only what our noble profession is supposed to be. Where is the social engineering of Roscoe Pound with the use of law as a tool to engineer and structure our society for the betterment of its members?

Are we supposed to be comfortable with a fancy car or a foreign holiday for a select few while watching the rest struggle?

Are we supposed to be comfortable with a fancy car or a foreign holiday for a select few while watching the rest struggle? Are we supposed to ignore the inequalities and discriminations present in our broader society in the pursuit of Mammon? Should we not use our calling to do more? After all, the history of our young nation is replete with examples of lawyers in the freedom struggle.

Have we lost our way? Perhaps more importantly, what should we do? 

This is a complicated problem to which I don’t profess to have all the answers. It needs a concerted and broad-based approach. But for now, here are some thoughts:

1. Like Dr Menon, I would suggest that we start with education. The National Education Policy calls for legal education to be “competitive globally, adopting best practices and embracing new technologies for wider access to and timely delivery of justice.” It further goes on to require it to “be informed and illuminated with Constitutional values of Justice” and “directed towards national reconstruction through….democracy, rule of law and human rights.” These are commendable values with, I suspect, some inputs from Dr Menon, and integrating this into legal education on a broader scale is the need of the hour. To this end:

  • We should require our educational institutions to take on more responsibility in teaching the next generation. This is not just a case of training teachers better or investing in a bigger library. They should also be pushed to provide more practical opportunities to their students to learn the application of the law.

  • To this end, we should set up a central internship registry, which helps students to get the clinical legal experience and the internships they require as opposed to just being asked to reach out to their friends or relatives.

  • Like some international curricula, can we include a requirement that a law degree needs to come with some work done in the social sphere? There are fantastic examples of individuals doing their bit in organizations like IDIA and Zenith, but they often struggle to get support. Why can’t we use our demographic advantage to support them and be more involved in helping the vast number of people who need assistance in our country?

  • Finally, and perhaps most controversially, we have to recognize that the NLUs are not the solution. The NLUs have shown us what is possible when a few, determined people do their part, but in the best of times, they form a minute portion of the institutes imparting legal education. Far from becoming beacons of light as was hoped, they have instead become islands of elitism in a vast ocean. Similar to the criticism aimed at the Indian services IT industry, our NLUs are often considered to be places from which lawyers come out who would have done well anyway. Whether because of English proficiency or the economic background of their parents leaving the vast hinterland unaffected. If a portion of the funds being allocated to the formation of new NLUs and imparting quality education could be allocated to existing CLEs, then I suspect the returns for us as a nation will be much higher.

2. We should use more of what we have, in particular the in-house community. Keeping them excluded from the profession by requiring them to suspend their bar licenses is something that should be reconsidered. Whether we like it or not, employed professionals are among us and have extensive experience which may assist in areas like drafting of laws, education, access to funds and pro-bono activities. Somewhat selfishly, I would suggest we include them and use their knowledge and experience to improve our profession instead of acting as if they don’t exist.

3. As a profession, we have done very little to provide support to our own. Can we consider assisting the lawyers who are a part of the system in handling their professional needs and the usual problems that life throws at all of us? Some kind of insurance schemes perhaps, along with access to mentoring and guidance? We could reward the folks who undertake coaching and mentoring of their fellow advocates with a system similar to professional continuing legal education points. Perhaps those points could add to their standing in the Bar whether as a part of the senior designation process or elevation to the Bench.

4. Finally, future proofing our profession is the key for our mutual future and for that, early adoption of technology will be critical. There is no point in having a virtual court if the vakalatnama still needs to be physically signed or the cost of access to case law is very high. How we use technology to make things easier for everyone is going to be important and lower the barrier to access.

The legacy of Dr Menon and his colleagues is half-fulfilled. Yes, it improved the quality of legal education in the country for a select few. Yes, it helped make the legal profession a personally and financially fulfilling one for some, like me. Its tragedy, I however fear, is that it wasn’t allowed to go far enough.

The vast majority of lawyers still haven’t seen the improvements or the opportunities that liberalisation and the NLUs have wrought. Without change in higher volume, we cannot hope to see real transformation.

I hope we will make the changes necessary to make that happen in the coming years and our profession takes its rightful place as a leader in both the board room and the court room.

As the Chinese remind us: “When the winds of change blow, some people build walls and others build windmills.” I suppose the answer to how we will respond, is for now, blowing in the wind.

Navneet Hrishikesan
Navneet Hrishikesan

Navneet Hrishikesan is Senior Director & Associate General Counsel for Asia Pacific & Japan SP at Cisco.

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