The Union Cabinet has approved the new National Education Policy (NEP), 2020 with an aim to introduce several changes in the Indian education system – from the school to college level.
● It aims at making “India a global knowledge superpower”.
● The Cabinet has also approved the renaming of the Ministry of Human Resource Development to the Ministry of Education.
● The New Education Policy cleared by the Cabinet is only the third major revamp of the framework of education in India since independence.
● The two earlier education policies were brought in 1968 and 1986.
The policy has been seen as a review of the country’s current education landscape, including the legal education sector, along the path of its objectives.
The intelligent legal profession, legal education also serves as a link to legal education and is directly linked to the quality of the country’s rule of law. Where society trusts the law, the rule of law prevails and legal education acts as a medium to inculcate the values of law in the young generation. Concerning the importance of legal education for the country’s safety, peace and welfare, emphasis should be put on ensuring the quality of legal education. Several improvements and reforms have been made to the 2020 policy, which could have a large impact on legal education.
A framework has been provided by the National Education policy of 2020, which is required to be adopted by all centres of legal education, which has been stated below:
● Legal education needs to be competitive globally, adopting best practices.
● Legal education must be embraced with new technologies for wider access to and timely delivery of justice.
● Legal education must be informed and illuminated with constitutional values of justice; social, economic, and political.
● Legal education must direct towards national reconstruction through democracy, the rule of law, and human rights.
● The legal education curriculum must reflect socio-cultural contexts emphasizing the history of legal thinking, principles of justice, and jurisprudence practices.
● Legal education in State institutions must consider offering bilingual education for future lawyers and judges in English and in the State language where the legal institution is established.
Dynamic Scenario of Legal Education
Inclusion of Ethics and Constitutional Values
Ethics, morality, and principles are based on legal education. Morality, justice, and principles are some of the most significant keywords in the life of any law student. These values were also the most key components of our ancient Hindu education system. In traditional legal education, emphasis has been placed on maintaining the importance of justice in a format. But the gravity for such values has been depreciating with the changing time and change in the legal profession. We have several cases of immoral, unethical professional behavior in the recent past, one of which is the recent case of Prashant Bhushan, where famous lawyers were charged by the supreme court for the offence of Contempt of Court. All these offences arise from the vacuum created by the lack of ethical and moral values in the profession, such as contempt of court.
In the case of legal work, the lack of inclusion of ethical principles in legal education may be one of the key reasons for losing the integrity of the profession. There is a famous saying that education moulds the future of that profession. The current legal education system, however, emphasized access to education for all but ignored the quality assurance aspect by inscribing ethical and moral values. One of the primary aims of this new draft of NEP is “to create a new system that is aligned with the aspirational goals of 21st Century education while remaining consistent with India’s traditions and value systems.” The policy also aims to provide a legal education that is guided and informed by the constitutional ideals of social, economic, and political justice. The importance of democracy, the rule of law, and justice in the country will grow with the introduction of these values.
The legal profession is considered to be one of the most prestigious professions of all; it is the responsibility of legal education to maintain the same. To fulfill that responsibility, it is important to state that ethical and constitutional values should be an integral part of legal education. A commendable reform was made in the 2020 NEP to include these values in the curriculum while recognizing the long-term objectives of legal education.
Indian Constitution acknowledges 22 languages. India has even more languages than the number of states the country has, despite having just 22 languages in the Constitution. India’s multilingual existence provides the country with a distinctive character. Because of the variety of cultures and languages in the country, India has become popular throughout the world. A system of education at the foundation of any society. Society thrives on the educational sector’s development and growth. The drafted NEP 2020 is the prominent document in consideration of the same when deciding the country’s future. The changes in the inclusion of various languages in the process of improving society.
The policy stated that education in English and the language of the state in which the law school is located should be considered by the state institutions providing legal education. It has been speculated that by ensuring the ease of legal education at the comfort of law students, it will reform the education sector. It should be noted, witnessing the response to this initiative, that it will help to reduce the delay in legal outcomes due to the need for translation.
For Global Common Good
Jiddu Krishnamurti, an Indian thinker from Andhra Pradesh, once stated on “learning in a non-competitive and non-hierarchical ecosystem and discovering one’s true passion without any sense of fear.” He emphasized the element of critical thinking to make education a means of achieving education as a public good. The ability for critical thinking derives from the ability for cultural differences to stand out. The ability would ultimately create the common good of the nation.
In order to ensure nation-building, community development, education is a necessary public good. We have a rather exclusive society, which is witnessed by incidents such as the exclusion of the transgender community based on their sex. Legal education may be a major factor in making this society inclusive. As a public good, education will work in the fresh air to make communities alive. Ensuring access to education to every section of the public will produce sensitive, creative, and upright citizens, on whom the society could rely on the aim of an inclusive society.
The idea of introducing legal education as a subject in schools has not witnessed requisite planning and execution. Several issues need to be addressed to ensure the success of such an endeavour. First, there is a need to revise the pedagogical approach to legal education in schools. The textbooks released by the CBSE span immensely vast subject areas such as property, contracts, criminal law, alternative dispute resolution, human rights and legal services, among others. Rather than being a primer for legal education, these topics have been dealt with in a manner similar to what students in law universities would be expected to know at the end of their course. The need, however, is to prime the students for higher legal education.
There is a need to shift the pedantic focus from the black-letter law to a more fundamental discourse surrounding the impact of laws on those governed by them. The students must be educated not just about the existence of laws or what the law says, but to also enlighten them as regards the rights, obligations and duties of the State as well as the citizens. Linking the lives of students with the laws governing them would allow them to better understand the intrinsic connection between the two. Besides, there is scope for the use of technology and software to create animation, graphics and narration to make the teaching of law effective.
Secondly, legal education must be given the same importance as other subjects such as biology, chemistry, physics, maths, accounts and economics. The pedagogical approach to these subjects prepares and primes the students for the rigours of higher education while ensuring sound foundational knowledge. The subject of law too must be tailored in such a manner. Legal education must be treated on a par with other subjects and the resources of the State should be used adequately towards ensuring the same.
Thirdly, keeping legal studies as an optional or elective subject is bound to blunt the efficacy of the initiative. It is pertinent, therefore, that all students must be required to undertake the course, given that the laws would have a significant impact on their personal and professional lives, irrespective of whether they become scientists, accountants, engineers or entrepreneurs. As citizens of the country, they should be made aware of their legal rights as well as their obligations and duties — both towards the State and each other. Moreover, the National Education Policy also requires a choice-based option of subjects for the students, irrespective of their core discipline.
Fourthly, there is a dearth of trained educators who are both well versed with the scope of the laws as well as the ability to simplify them. There is a need to create a class of educators who can impart legal education effectively while appealing to the imagination of the students. Involving young law graduates as instructors to support the core faculty in the schools can produce better results.
NEP intends to establish a National Research Fund to facilitate research activities in institutions of higher education. However, policies such as NEP and many other national initiatives for research tend to automatically apply to ‘law’. These research initiatives are basically borrowed and based on the discipline of science. The MHRD-UGC duo first mandated all Law University publications to have an ISSN number, followed by the need for registering with the Registrar of Newspaper, followed by mandatory listing in UGC CARE Journals, and then Scopus indexed journals.
In adhering to these requirements, legal education parameters and practices are often ignored and several concerns are left unaddressed. This is adding to the confusion and has caused discriminatory hardship for legal journals which should not be judged through the same lens as journals of life sciences, physical sciences, arts or technology are evaluated. Legal research must not be constrained by these straitjackets of formality, especially when the contribution of legal research is in law making and policy transformation, rather than invention and technological patenting. Apart from addressing the above issues, the Bar Council should come up with guidelines for research ethics in law and immediately set standards for legal research.
There are concerns of legal education having multiple regulatory frameworks. While the Bar Council, UGC, NAAC and other bodies inspect law schools, the autonomy to start courses, award certificates, diplomas and degrees must be expounded. While NEP advocates globalized education, the UGC in the past several years has not permitted Indian Universities to go abroad and open campuses.
Legal education needs to be competitive globally, adopting best practices and embracing new technologies for wider access to and timely delivery of justice. At the same time, it must be informed and illuminated with Constitutional values of Justice – Social, Economic, and Political – and directed towards national reconstruction through instrumentation of democracy, rule of law, and human rights.
The curricula for legal studies must reflect socio-cultural contexts along with, in an evidence- based manner, the history of legal thinking, principles of justice, the practice of jurisprudence, and other related content appropriately and adequately.
A lawyer is to be a harmoniser, a reconciler, a legal architect, indeed an inventor. The character of university law departments determines the character of the Bar and Bench. We must focus on tying up the existing corpus of rich data on legal education into a national legal education plan. The democratisation of legal education is vital. We have to spread distributive equity over inclusive legal education.
The National Education Policy 2020, apart from other objectives, also lays down certain reforms to be made in the legal education sector. The NEP primarily suggests three reforms to be made to the current legal education framework. One, it discourages the practice of stand- alone institutes and states that no new stand-alone institutes shall be permitted unless special circumstances arise. It further proposes that existing stand-alone universities shall become multi-disciplinary by 2030, either by creating new departments or through creating clusters. While this recommendation is not exclusively directed towards law institutes, NLUs shall be vastly impacted due to their isolated existence. Two, it recommends a bilingual approach for law institutes. Three, it seeks the formation of a new legal education policy to make professional education in law globally competitive. These reforms are being touted by certain commentators as a positive step in the direction of easing some problems in the NLU based education. A deeper analysis of the recommendation, however, reveals flaws in design and possible implementation.
The recommendation regarding stand-alone institutes appears to hold some merit in the context of NLUs. The 5 year law course run by the NLUs are criticized for not providing adequate multi-disciplinary approach. It is argued that study of law is incomplete without command over at least one other subject – as was the case with three year law courses. A multi-disciplinary institute could provide law students with the opportunity to interact with students and scholars from different fields and thus develop a more varied understanding of law. But, how far the idea is practically implementable, shall have to be seen. Few issues that could hinder the process of making residential institutes like NLUs interdisciplinary are lack of physical space, and lack of financial support. Physical infrastructure and financial aid from the governments have played an important role in making inter-disciplinary institutes like JNU and IITs a success. Most NLUs are, however, already facing space crunch and are unable to house the existing batch of students within the campus. Opening new faculties within them would then either limit their access to people within the region or would force people to take up residents outside campus – which in our social set-up brings complications of its own. Second, most NLUs are running in a self-sufficient model with limited funding from the state governments. In such case, forcing them to open up new departments could further drive up their costs and hence decrease accessibility. Cluster model could possibly function better for these institutes. The policy however does not elaborate on how these clusters shall operate.
The second recommendation is regarding bilingual teaching in state law universities. While the idea of promoting bilingual learning in law universities is commendable, it nevertheless has certain lacunae. The policy is directed towards state institutes offering legal education, which makes it applicable to NLUs. As envisaged in the draft NEP, the methodology of appointing bi-lingual teachers based on the regional language of the place could help translating legal materials for the purpose of students familiar with the regional language and also for higher courts of law which function mostly in English. However, it solves the problem of language barrier for NLU students only to a limited extent. While it can certainly help a student who is studying at an NLU situated in her region, it fails to take into account people who could be taking admission in different states. A student from Tamil Nadu who got admission to an NLU in Bihar could neither be well-versed in English, nor familiar with Hindi, the regional language. Similarly, a person from Delhi seeking admission to an NLU in Maharashtra could have problems in both English and Marathi. In order to cater to the issue, it is necessary not merely to introduce bilingual education, but to also start extra classes/ remedial classes for English- which is the most common language used in the legal field. De-emphasizing English in favour of regional languages is not the solution for legal education in India – especially considering inter-state students.
The most concerning issue pertains to the third recommendation in the NEP. The NEP document states – ‘It (legal education) must be informed and illuminated with Constitutional values of Justice – Social, Economic, and Political – and directed towards national reconstruction through instrumentation of democracy, rule of law, and human rights. The curricula for legal studies must reflect socio-cultural contexts along with, in an evidence-based manner, the history of legal thinking, principles of justice, the practice of jurisprudence, and other related content appropriately and adequately.’ The statement is quite innocently worded, and prima facie appears to be a reaffirmation of the Constitutional ethos in legal education. However, it is words like national reconstruction and socio-cultural contexts that demand further exploration. While neither the NEP nor its revised draft throw any light on the exact meaning of national reconstruction; the term socio-cultural context does find explanation in the revised NEP draft.
The NEP revised draft elaborates upon curriculum to include socio-cultural contexts in the following words – ‘It is the function of legal education to transmit the foundational values of Indian democracy to learners in order to give legal studies the necessary social relevance and acceptability. In doing so, the law curriculum has to fall back upon the culture and traditions of people, the history of legal institutions and victory of “Dharma” over “Adharma” writ large in Indian literature and mythology. Further, there is growing consensus worldwide that the study and practice of law cannot be independent of the culture of society, including the study of classical law texts.’
Looking at history and culture for understanding law is not new. Historical context has been jurisprudentially recognized as an important aspect of legal theory by scholars such as Savigny and Henry Maine. While Savigny believed in the concept of Volksgeist (akin to a national spirit), which emphasized that law is found and not made, and it cannot be separated from its people and transplanted onto others; Maine’s approach was more comparative in nature and he also acknowledged the role played by judges and jurists in developing law. With time, it has been realized that historical approach is only one way of studying legal theory and cannot be the sole method. Relying solely on history for law brings with the bad along with good and might not suit the current needs of the society.
The draft policy, however, ignores all other aspects of law and tends to over-emphasize on culture, tradition, and mythology. The usage of the term ‘has to fall back upon culture and traditions’ cannot be ignored. The present government has on multiple occasions expressed the desire for reviving the Vedic traditions and the party in power has on multiple occasions spoken about creating a Hindu nationalism. In this background, the talk of culture, tradition and mythology, while discussing legal education raises alarm. The draft further asserts that law cannot be independent of culture and talks of study of classical law texts. The classical law texts in India are commonly believed to include the four Vedas, Smritis, and acharas. Dharmashastras are smritis dealing with ancient legal principles. Out of numerous dharmashastras some of the most prominent as Manusmriti, Yajnavalkeya Smriti, Narada Smriti, etc. Many of these texts, most prominently the Manusmriti have fallen into disrepute over the years for propagating discriminatory attitudes towards non- brahminical castes and women. Falling back to these texts for inspiration shall do more harm than good to legal education. Barack Obama wrote in his memoir Dreams from my Father ‘The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.’
It is true that the law is a memory, and hence has to derive from its past; but at the same time, it is an ever-evolving concept that changes with times – it is a long running conversation. Some memories can only function as a reminder for the need to progress and cannot be texts to rely upon for the study of law. One cannot speak of Constitutional values and what constitutes our classical legal texts (such as Manusmriti) in the same breath. While culture and tradition of a place are important for developing its legal principles, it needs to be taken into account that cultures, traditions and the society evolves. Also, culture and traditions cannot be presumed to be a homogenous concept, as projected by the draft NEP’s wordings. Cultures and traditions should be appreciated in their diversity. The draft NEP’s failure to take these factors into account is alarming, to say the least.
It is noteworthy that the policy when dealing with legal education – makes no recommendation towards making law schools more inclusive. It remains silent on questions of caste, and gender – both in graduate level training as well as in post-graduate studies. Not only does it ignore this vastly raised concern, its recommendations can potentially enhance the concerns further. On the whole, the NEP policy on legal education, like most of its other recommendations, is quite like a pie in the sky – agreeable to contemplate but improbable to be realized in the manner of contemplation.
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