HIGHER EDUCATION LAW
What ails legal studies
RISING fees are a burning issue in university and college campuses across the country. The narrow framing of the issue in terms of “budgetary constraints” does not do justice to the much larger set of concerns at stake. The chief among them is how inequitable access to educational capital can amplify existing socioeconomic disparities. The vocal protests at Jawaharlal Nehru University (JNU) and elsewhere have drawn national attention to this vital issue.
However, it would be a mistake to assume that these issues are only relevant for larger public universities. They extend to every branch of knowledge, even to professional areas such as legal education.
Adopting a market-oriented approach towards higher education leads to the large-scale exclusion of prospective students owing to the “accident of their birth”. This has adverse long-term consequences for not just the students but for society at
large. Should the delivery of public goods such as education be treated like commercial services? Would that not reproduce existing patterns of status-based hierarchies instead of gradually dismantling them?
This debate is not limited to the context of JNU, which perhaps attracts a disproportionate share of media attention owing to its location in the national capital and ill-judged stereotyping by right-wing voices. Grievances related to increasing fees have been raised at public universities across the country, all of whom have their own localised realities. Most of the Central universities are unitary institutions which largely concentrate on postgraduate and research programmes but account for only a small portion of the aggregate enrolment numbers. On the other hand, the larger State universities are spread over multiple campuses and affiliated colleges which offer both postgraduate and undergraduate programmes, thereby constituting the larger chunk of the higher education sector. There are also several institutions devoted to teaching and research in professional disciplines, the network of IITS, IIMS, AIIMS and NITS being the better known examples. These are often ascribed a “self-financing” character in the public imagination, on the presumption that students who pay higher fees will be able to recover the costs of their education subsequently.
The mistaken notion, abetted by the media’s nexus with the education “industry”, that professional education does not require state support has become the basis for some to argue that support must be withdrawn or scaled down. This presumption is responsible for the considerable havoc caused in the medical and technical education sectors. It is not sufficiently appreciated that the damage extends much further. Legal education is also affected by this presumption, and this can cause long-term damage to society, not just in terms of what students seek to learn but also in terms of what society gains or loses as a result. In recent years, there have already been significant fee hikes at institutions specialising in legal education, most notably at the “new age” National Law Universities (NLUS). In order to examine the consequences, one needs to revisit the very rationale that resulted in their birth.
HISTORICAL BACKGROUND
During colonial times, formal legal education was delivered under the regulatory purview of larger State universities, through specialised departments or affiliated colleges. In the early years after Independence, there was a growing perception that legal education in India needed to evolve in line with developments in other parts of the world. Writings from the 1950s and 1960s documented concerns about deficiencies in the content and delivery of legal education in the country. They observed that the curriculum privileged rote learning and memorisation of legal materials instead of encouraging critical thinking about the role of law in a rapidly changing postcolonial context. Even the most wellknown law colleges largely relied on part-time instructors, and classes were often quite unstructured.
Students who chose to study law often came to it after failing to secure admission in other disciplines. A large number of law graduates would not eventually choose a career related to legal practice. The institutions offering legal education largely consisted of faculty members and students from the respective regions. Most law students at locations outside the larger urban centres found it difficult to absorb the instructional materials, which were predominantly in English. The dearth of fulltime faculty members and inadequate funding had created an environment where these institutions found it difficult to frame and pursue independent research that would advance the frontiers of legal learning.
It was in this context that the interventions of funding agencies such as the Ford Foundation were instrumental in the establishment of the Indian Law Institute in 1956, followed by curriculum reform exercises at Delhi University, Aligarh Muslim University, Panjab University and Banaras Hindu University in the late 1960s. Efforts were made to improve the methods of instruction, the quality of reading materials and the techniques for assessing student performance. These curriculum reform activities proved to be significant in ensuring a transition from the two-year Bachelor of Laws (B.L.) course to the three-year degree (LLB) all over India.
One of the earliest references to the concept of a “National Law School” in India can be found in a report from 1964 prepared by a committee set up by Delhi University. Apart from making pointed recommendations for curricular revision, this committee alluded to the need for a model institution that could serve as a laboratory for academic experimentation. This idea gradually gained traction over the next two decades. The need for a few “model” institutions was articulated during an International Seminar on Indian Legal Education held in Pune in 1972. Concretisation of this proposal came in a 1979 report submitted to the University Grants Commission (UGC), which was shepherded by Professor Upendra Baxi. The need for a “model institution” bearing a national character was also voiced on account of concerns about the increasing “provincialisation” of State universities.
The background conditions made it difficult for teachers, researchers and students to reflect on legal controversies from a national and international perspective, both of which were undoubtedly important for a country emerging out of colonial rule. There was also considerable dissatisfaction with the existing encumbrances on faculty hiring and curriculum design in larger State universities. For example, individual instructors would require approvals from multiple authorities within a university system even to make incremental changes to the syllabus in a given subject.
This structural limitation made it difficult for course content to keep pace with newly published scholarship and developments in the field of
practice as well as from a comparative and international perspective. Students were evaluated largely through annual examinations conducted within the university system in the dozens of affiliated law colleges. Many educators observed that this was not a prudent method since students did not face the requisite pressure for regular and meaningful study throughout the academic year. Furthermore, this form of assessment did not forge a channel of accountability between the students and their teachers.
NATIONAL LAW SCHOOL SYSTEM
By the early 1980s, most Indian universities were offering the three year LLB programme. Applicants could join it after completing an undergraduate programme in any discipline. Those interested in gaining specialised knowledge or pursuing careers in teaching and research could proceed to advanced programmes such as the LLM, Mphil or PHD. It was at this juncture that the Bar Council of India took steps to prepare the ground for the creation of a “National Law School”. The proposed “National Law School” would aim to develop a national character in its composition. In order to enable meaningful and effective teaching, it would have the status of a university, with considerable autonomy in the recruitment of teachers and staff and in the framing and revision of the curriculum.
The objective was to recruit fulltime teachers who would devote time and attention to classroom teaching and also pursue their own scholarly interests. Instead of admitting students to a three-year LLB degree after undergraduate studies, students would be admitted after class XII in order to pursue a five-year integrated BA, LLB programme. They would be selected through a national-level entrance examination so as to attract those who consciously choose the formal study of law. To ensure an intensive academic experience, the institution would have a residential character with small class sizes, and the performance of students would be assessed through frequent examinations and assignments over the course of the academic year.
The National Law School of India University (NLSIU) was established in Bengaluru by an Act of the Karnataka Legislature in January 1986. While the Chief Justice of India was designated as the Visitor (designation changed to “Chancellor” in 2004) to the institution, its governing bodies had representation from the judiciary, the Bar Councils, the State government and the academia. Dr N.R. Madhava Menon, who passed away in May 2019, was appointed the first Director (designation changed to “Vice Chancellor” in 2004). Classes for the undergraduate programme commenced at a temporary campus in July 1988 with a small number of faculty members. In 1992, the institution started operations from its permanent campus on the outskirts of Bengaluru.
CLAT AND SOME CONCERNS
Since then NLSIU Bengaluru has emerged as a successful academic institution in some respects. It has consistently attracted and motivated students who undergo an intensive programme of undergraduate study. Graduates are able to directly seek professional opportunities and the alumni have earned a reputation for competence in courtroom advocacy, corporate and commercial laws, higher education, civil services and international organisations. Several other institutions based on a similar structure have been established over the past two decades; in 2019-20 there were 23 NLUS. A majority of them admit students to their undergraduate and postgraduate programmes through the highly competitive Common Law Admission Test (CLAT), which was initiated in 2008 to reduce the transaction costs applicants incurred in writing multiple entrance examinations.
However, the functioning of these institutions has come in for criticism. For one, there is concern about the rapid rise in their number. While an overall expansion of capacity might be necessary for a developing country, it should not happen at the cost of processes that are essen
tial for building a durable educational institution. For instance, it is not optimal to admit students and launch taught programmes before doing the groundwork of substantial faculty recruitment, curriculum development and preparation of physical infrastructure such as classrooms, hostels and library facilities.
Several of the newer NLUS are facing teething difficulties such as shortage of faculty members, underdeveloped infrastructure and lack of deliberations on syllabus design and academic practices. There have been reports of student unrest over the lack of necessary infrastructure, deficiency in teaching personnel, selfdealing behaviour by officials and the lack of assistance in securing employment. There is an evident mismatch between demands of students and the availability of teaching talent needed to address them meaningfully. Some would even argue that there is a qualitative gap between the academic potential of the incoming students and the abilities of the teachers.
There is also concern about the design, content and administration of the CLAT. The undue priority given to English in a country where the majority of students are not exposed to it in their formative years in school has been questioned. In fact, some sections of the CLAT require applicants to possess specialised knowledge of fields such as the Law of Contracts, Law of Torts, Criminal Law and Indian Constitutional Law. If the intention is to deliver meaningful instruction in these areas during the course of undergraduate studies, it is not clear why applicants should be expected to have prior knowledge in them.
Defects in the administration of the CLAT have received a lot of attention. For example, CLAT 2009 had to be rescheduled because of a suspected leak of the question paper at one of the centres. Errors have been regularly identified in the framing of questions and in the answer keys given for multiple-choice questions. Applicants have also voiced disgruntlement with the lack of transparency in procedures used for seat allocation by some of the participating NLUS. The transition to a fully computer-based test (2015-18) was criticised because it was perceived to be creating an additional barrier for applicants from economically disadvantaged backgrounds who might have little or no previous experience of using computers. Citing this reason, the CLAT reverted to an offline format in 2019. It was recently announced that candidates would not be tested on knowledge of legal subjects in the examination in May 2020.
NUDGE TOWARDS ELITISM
Being State universities in the formal sense, the NLUS are dependent on State governments for financial assistance. They need substantial financial support, especially in their nascent years, for constructing residential campuses and hiring a sufficient number of well-qualified teachers and staff. They also need recurring annual support to pay salaries and maintain their residential campuses. While a few NLUS are in good fiscal health because of generous state support, most of them appear to have limited means at their disposal. This has led to a situation where they are substantially dependent on fees collected from students even to meet the recurring expenditure.
The fee structures at the NLUS are considerably higher than those in the law departments and colleges affiliated to the large public universities. This has led to the perception that despite their public character, the NLUS are only accessible to the elite sections of society. Several observers and insiders have pointed out how the admissions process and fee structures favour applicants from wealthy, urban and English-speaking backgrounds. A survey conducted at NLSIU in 2015-16 showed an unmistakable pattern of under-representation of students belonging to religious minorities and from rural areas and schools that predominantly taught in Indian languages.
It is of utmost importance to pursue meaningfully the social justice goals envisioned by the framers of the Constitution. Ironically, this ought to have been an obvious objective in a branch of knowledge that is most intimately tied to the actual functioning of the Constitution. In any discipline, exposure to social, economic, linguistic and regional diversity is an essential component of higher learning.
A certain degree of representation from historically disadvantaged groups such as the Scheduled Castes and the Scheduled Tribes has been enabled by reservation policies. However, there are serious concerns about how students from these historically disadvantaged groups face an additional layer of difficulties once they are inside highly selective institutions such as the NLUS. Very often, their biggest challenge comes in the form of disapproval and ridicule from upper-caste peers. Their sense of alienation can be further amplified if the teachers are not attentive to such discriminatory behaviour, especially against first-generation learners.
The fact that teachers are mostly from upper-caste backgrounds and are often insensitive to the individual circumstances of the students perpetuates the sense of alienation. This often manifests itself in the form of censures directed at those students who struggle with the coursework that is delivered entirely in English. This also has an impact on the evaluation of academic performance. The silver lining is that the residential character of the NLUS, coupled with the considerable length of the undergraduate programmes, often provides the impetus for dissolving prejudices and forging meaningful friendships that cut across social markers. It might be worthwhile to recall B.R. Ambedkar’s emphasis on the positive role played by common hostel facilities to mitigate entrenched patterns of social discrimination.
FEES & SOCIAL JUSTICE
The fee structures at the NLUS are considerably high by Indian standards, especially when compared with other public institutions that offer legal education. On the other end of the spectrum, some of the relatively
newer private universities charge much higher amounts than the NLUS. The pursuit of a five-year undergraduate programme in the NLUS entails an aggregate investment of Rs.12 lakh to Rs.15 lakh. For “foreign nationals” and “non-resident Indians”, the figure is usually three or four times higher. In comparison, the annual fees charged for LLM students are generally 20 to 30 per cent lower than what is charged for the undergraduate programme. The considerably higher fee structure has contributed to the ambivalence about the broader social role of these institutions. Should they be seen as sites of enabling higher learning or simply providing training for the workplace? What is the right balance between the inculcation of liberal values and imparting of skills needed for professional success? This contributes to the constant tension between the “civilisational” and “vocational” role of higher education. This dilemma often plays out in the pedagogic choices of teachers and the motivation of students who pay high fees to acquire a professional education. For example, students might become more risk-averse in the choice of optional courses, choosing not to opt for courses that entail intensive engagement with theoretical frameworks and more rigorous evaluation. There is likely to be higher enrolment for courses that demonstrate tangibly their utility for professional prospects in the short run as opposed to those that are oriented around theory-building and may enable deeper intellectual growth in the long run.
An oft-cited complaint about graduates of the established NLUS is that they prefer to pursue lucrative employment opportunities in corporate legal practice instead of choosing careers in litigation, the judicial services, teaching or advocacy of social causes. Prof. Upendra Baxi has repeatedly said that these institutions appear to be producing “servants of global capital” instead of “soldiers of social justice”. Others have argued that the alumni networks evolving around the established NLUS might be replacing
family or kinship ties as enablers of professional mobility, especially in corporate legal practice. However, it has also been pointed out that the rise of corporate law firms in India has made it tractable for women lawyers to pursue professional success in this field when compared with the pursuit of courtroom advocacy, where they encounter deeply gendered obstacles.
Yet another weakness of the NLUS is that while they seem to be heavily invested in the administration of the five-year integrated undergraduate programmes, they have neglected advanced programmes such as the master’s in law (LLM). A presumptive reason for this disparity is that admissions to the undergraduate programmes tend to be more competitive in comparison to those for postgraduate ones. This appears to be linked directly to expectations about employment opportunities. Enrolling for a master’s programme entails opportunity costs in terms of lost earnings and may hence not attract the best pool of law graduates.
There is also a mismatch between the institutional goals behind offering LLM programmes and the immediate motivation of applicants. The institutions look at these programmes as preparation for academic careers, while the students might be viewing them as yielding credentials to enhance their prospects for employment in better-paid lines of work. Furthermore, the transition from the two-year LLM to the one-year LLM from the academic year 2013-14 raised questions about the suitability of the reduced period for Indian law graduates, especially when they came from disparate levels of previous academic exposure.
There is also dissatisfaction about the quality of research degrees such as the PHD programmes. Most applicants for research degrees tend to be working professionals who enroll for these programmes on a parttime basis, often with the limited objective of acquiring formal credentials for career advancement.
There is an evident lack of financial and infrastructural support for applicants interested in pursuing research degrees on a full-time basis. The existing channels for governmental support, such as the Junior Research Fellowship administered by the UGC and doctoral fellowships awarded by the Indian Council for Social Science Research, are getting limited, both in terms of the number of scholarships given each year and the amount of funding given to successful applicants. When it comes to legal studies, the opportunity cost of pursuing full-time research appears to be too high to attract competent candidates. This contributes to a climate of laxity in the process of conducting and supervising research activities. The time and attention devoted to training in research methodology tend to be minimal, and most NLUS have not developed library resources or institutional networks for meaningful exposure to the same. As a result, the NLUS have produced few dissertations recognised for their quality of scholarship.
Most of the problems enumerated above are linked to a common cause, namely, the lack of financial support from the state. This is why students are burdened with high fees and the growth of the NLUS into serious academic institutions has been seriously hampered. Besides, it has also created barriers to the entry of students from underprivileged backgrounds. While the existing efforts to address the lack of diversity in these institutions include the provision of government-backed scholarships, need-based fee waivers and philanthropic contributions, such measures only help a limited number of students. Voluntary sector groups such as “Increasing Diversity by Increasing Access to Legal Education”, started by the late Shamnad Basheer (a well-known scholar on intellectual property rights), have done admirable work in this regard by identifying law school aspirants from marginalised communities, mentoring them and supporting them through their studies. However, at the structural level, regular financial support from the state is needed urgently to control the escalation of fee structures and broaden the social base of prospective students. The failure to do so over the next few years will ensure that the NLUS become ready examples of how public universities have increasingly been forced to run like businesses. $ Sidharth Chauhan is an assistant professor at the National Academy for Legal Studies and Research, Hyderabad. This essay is derived from a report on the working of the National Law Universities submitted to the Ministry of Law and Justice in May 2018.