Bridging the Gap: Understanding the Trends in Indian Legal Education from Recent Developments
| Date | 01 January 2020 |
| Published date | 01 January 2020 |
| DOI | 10.1177/2322005819881100 |
| Author | Shuvro Prosun Sarker,Prakash Sharma |
| Subject Matter | Articles |
Bridging the Gap: Understanding
Asian Journal of Legal Education
7(1) 57–72, 2020
the Trends in Indian Legal Education
© 2019 The West Bengal National
University of Juridical Sciences
from Recent Developments
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DOI: 10.1177/2322005819881100
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Shuvro Prosun Sarker1
Prakash Sharma2
Abstract
The constitutional mandate of legal aid provides Indian law schools a unique opportunity to achieve
the social justice mission of legal education. Taking cue from such holistic vision, Indian legal education
aims to provide a fair, effective and accessible legal system to its citizens. Having said this, the euphoria
of ideal legal education remains a distant dream with continuous declining standards in legal education
impartation. There appear efforts to correct such decline, which led to the introduction of clinical legal
education (CLE) as a mandatory component in the law school curriculum by way of mandatory practical
papers. Also, the modern approach to legal education demands adoption of local circumstances while
implementing ‘broadly shared aspirations’ and ‘goals of global level’. In this regard, this article covers
three recent activities, which if clubbed together present wider scenes pertaining to the state of
legal education and reforms in India. On a collective reading of all three events, this article argues for
introducing continuing legal education (CLE) in India.
Introduction
Legal education has attained the shape of both professional education and value- and social justice-
oriented education. The central theme is to transform law students into socially sensitive, justice-oriented
and intellectually competent legal professionals. Law has attained practical importance; therefore, the
very nature of law teaching, around the world, maintains no conflict between ‘teaching of law’ and
‘practising of law’. The contemporary approach of law teaching, in fact, sponsors its usage to engage in
both ‘knowledge’ and ‘skill impartation’. In the words of Roscoe Pound, ‘practical training outperforms
theories’.3 The overemphasis of legal scholarship in the direction of theory has alienated students, who
rely on their professors to prepare them to contribute meaningfully to the legal profession. However,
such greater emphasis on preparation for the Bar requires equal amount of attention towards ensuring
deep conviction of the profession as a group of men pursuing a learned art as a public service.
1 Maharashtra National Law University, Nagpur, India.
2 Vivekananda Institute of Professional Studies (VIPS), New Delhi, India.
3 Roscoe Pound, Some Comments on Law Teachers and Law Teaching, 3(4) J. LegaL educ. 519 (1951).
Corresponding author:
Prakash Sharma, Vivekananda Institute of Professional Studies (VIPS), New Delhi, Delhi 110034, India.
E-mail: prrakash89@gmail.com
58
Asian Journal of Legal Education 7(1)
Having constitutional mandate, the concept of legal aid provides Indian law schools a unique
opportunity to achieve the social justice mission of legal education.4 Taking cue from such holistic
vision, Indian legal education aims to provide a fair, effective and accessible legal system to its citizens.
Having said this, the euphoria of ideal legal education remains a distant dream with continuous declining
standards in legal education impartation. There appear efforts to correct such decline, which led to the
introduction of clinical legal education (CLE) as a mandatory component in the law school curriculum
by way of mandatory practical papers.5
This article presents arguments linking legal education with reforms. It covers three recent activities,
which if clubbed together present wider scenes pertaining to the state of legal education and reforms in
India. These three developments have been elaborately discussed and thereupon a proposed blueprint for
realizing India’s long-standing efforts to reform legal education is made. It also describes how a number
of current creative approaches to legal education are made to adapt to local circumstances while
implementing broadly shared aspirations and goals of the global level. Thus, the second section focusses
on the petition filed before the Supreme Court of India, seeking relaxation to rule barring legal academics
from practising in courts. The third section then focusses specifically on second Vice-Chancellors
Conference on legal education and its outcome in detail. The fourth section examines the study conducted
by the National Academy of Legal Studies and Research (NALSAR) on how law schools are chosen by
students. The fifth section examines a possible solution to the existing concerns and presents the creative
approach that the law schools must look forward to while exploring the fuller meaning and implications
of responsibility in law practice.
The Petition
The present structure of Indian legal education does allow practising lawyers to teach at law schools,
whereas restricts law teachers from practising in the courts.6 This demonstrates the traditional approach
of law teaching, wherein law courses are meant to provide necessary knowledge. The impartation of
skill is treated outside from the purview of law teaching. This on many occasions justifies selective
apprehension from a section of society towards the actual role of law teachers. It is generally argued that
meaningful contribution to the legal system does not find justifiable contribution from law teachers.
On the other hand, the continuous impetus to bridge the gap between ‘law in books’ and ‘law in action’
unmasks dual yardsticks adopted by the Bar against law teachers. How could ‘law in practice’ be taught
when access to courts remains purposefully guarded?
This has resulted in a greater divide between profession and academia. On multiple occasions, law
discussed in classrooms includes discussions on wrongly decided judgements that require correct
interpretation. On other occasions, need for highlighting issues involving violation of human rights
requires pro bono efforts. There cannot be any better opportunity to correct such a lacuna. It is for these
reasons that Professor Shamnad Basheer filed a petition before the Supreme Court of India, arguing to
4 The 42nd Amendment to the Constitution brought Article 39A that advocates for free legal aid. In addition to constitutional status,
Parliament passed the Legal Services Authority Act, 1987, the Gram Nyayalayas Act, 2008.
5 ShuvRo PRoSun SaRkeR, aniRban chakRaboRty, & Shounak chatteRJee, Visualizing Third Generation Reform of Indian Legal
Education, in LegaL education in aSia 257–279 (ShuvRo PRoSun SaRkeR ed., 2014).
6 Rule 49, Chapter III, Part VI of the Bar Council of India Rules, 1975. These rules have been placed there under section 49(1)(c)
of the Advocates Act, 1961.
Sarker & Sharma 59
relax the rule barring legal academics from practising in the courts.7 The petition even received support
from the Consortium of National Law Universities (NLUs) that echoed a similar apprehension against
the rule prohibiting law teachers to simultaneously practise.8
The Impetus
Perhaps none but with the introduction of CLE, a thought developed towards bridging the gap between
the theoretical underpinnings of the law and its practical working on the ground.9 This holistic thought
extended towards impartation of legal education has convinced many to adopt CLE as a necessary
measure for creating ‘practice-ready law student’.10 However, the initial movement of legal education
was formulated around the apprenticeship model.11 The apprentice system does recognize the importance
of hands-on skills training, but due to varied quality of instruction and exploitation, such as cheap source
of labour, it saw its withdrawal in the USA.12 India, however through an amendment in 1973, abandoned
apprenticeship requirement.13 The idea behind such change brought practical training as part of curriculum
structure of the universities. This saw formation of legal aid clinics to deliver experiential learning
through active involvement. Such experimental learning brought relevance in university studies and saw
clinical movement gain momentum.
The initial CLE movement saw greater emphasis on transforming traditional lectures into basic
practical training, largely settled around moot court preparation, and with the establishment of national
law schools (NLSs) and other private institutions, the focus shifted towards imparting professional legal
education. There is another thought which has developed recently, that is, to establish the ‘clinical
momentum of social consciousness’. It thus far appears settled with many NLSs that CLE requires
serious effort and investment in finding the right set of people with a significant background in the
practice of law. The idea is to integrate a setup, basically in the form of a clinic, with a pedagogy that
provides for assessing learning outcomes and evaluation.
These clinics have a purpose to solve. The purpose is defined through institutions. Each institution is
required to form a wide range of conceptions that could be narrowly or widely explained. Traditional law
schools have construed it narrowly, in the sense that clinics are meant to offer legal aid to a section of
society who is deprived of basic rights. The approach so adopted focusses on (a) what lawyers do and
(b) to understand...
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