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Legal Education in India
by Justice M. Katju*
Cite as : (2002) PL WebJour 2
The topic of legal education can be discussed from various viewpoints, but I would like to speak on it from the point of view of the needs of society and the nation.
In modern times, lawyers in various countries have given leadership to their nations. In the great American and French Revolutions many of the leading figures were lawyers. Abraham Lincon, the great American President during the American Civil War of 1861-1865 was a lawyer, and so was Robespierre, the great French leader during the French Revolution of 1789. Lenin, the great leader of the Russian Revolution of 1917 was a student of law. During our own independence struggle, many of the leaders, like Gandhiji, Pandit Nehru, Sardar Patel, Dr Rajendra Prasad, Deshbandhu Chitaranjan Das etc. were lawyers.
The reason why many great leaders in various countries were lawyers is that the legal profession is objectively in the position of producing statesmen. This is due to two reasons: (1) lawyers belong to an independent profession, they are not subordinate to the Government or to anyone else, and (2) they are directly in contact with society in its entirety as they have to deal with all kinds of problems of people from all sections of society, unlike say, doctors who are confined to medical problems or engineers who are confined to technical problems. Hence lawyers are the people who are most conversant with the problems of society as a whole.
Today, however, the plight of the legal profession is a sorry one. What respect lawyers command in Indian society today need hardly be commented upon. Nowadays, very few lawyers are in politics in our country, and many politicians are people who are not respected (many of them are even known to be criminals).
In my opinion the main reason for this sad state of affairs is the kind of legal education which is imparted in our universities and law colleges. In the LLB course, there are papers on constitutional law, Contract Act, company law, tort, Hindu law, Muslim law, jurisprudence, legal history, revenue law etc. The student merely wants to get his law degree, he is hardly interested in these papers, so he crams up the stereotyped answers to the stereotyped questions (often from the solved questions and answers books available in the market). The teachers are also hardly interested in the subjects they are teaching, they are simply employees earning their bread, and do not arouse a genuine interest in the subject in their pupils. The result is that law as taught in the LLB course is a drab, dull, boring subject and the student wants to quickly get out of the law college by getting his degree.
In my opinion, this whole approach is wrong, and will not produce the kind of lawyers society and the nation needs for giving leadership to the people.
Today our country is facing gigantic problems, social, economic and political. It is intellectuals alone who can give guidance to the people for overcoming these problems, they are the eyes of the people without whom the people are blind. And the class of intellectuals most fit for fulfilling this role are lawyers, but unfortunately they are not doing so, and to my mind the reason for this is that the legal education in our country is totally defective.
Take for instance the teaching of constitutional law in our law colleges. Students are taught about the fundamental rights in the Constitution, the directive principles, Parliament, the executive, the judiciary, the federal structure etc. But what is not taught is the historical significance of the constitutional document.
The Indian Constitution was based on western models. Our modern-minded founding fathers borrowed the parliamentary system of democracy and an independent judiciary from England, the federal structure and fundamental rights from the U.S. Constitution, the directive principles from the Irish Constitution, etc. Thus our Constitution is a modern western type Constitution, but it was imported and transplanted on our backward, semi-feudal society from above, and was not the product of our own indigenous social and political struggles. Consequently our Constitution and our society do not correspond with each other, the former being modern while the latter being backward (unlike in western countries where both are modern).
For example the great rights incorporated in the part relating to fundamental rights include the rights of personal liberty, equality, freedom of speech and expression, freedom of religion etc. These rights were won by the peoples of Western Europe (particularly England and France), after tremendous, arduous struggles, turmoils and repression by the then feudal State authorities. One may recall the English Civil Wars of 1642-1660 and the Glorious Revolution of 1688 which established the principle of parliamentary supremacy in England, the struggle in France by Voltaire, Rousseau and other enlightened thinkers which led to the French Revolution of 1789 and the Declaration of the Rights of Man in 1791, the American Declaration of Independence of 1776 which proclaimed that all men are created equal, having the right to life and liberty and religious conscience etc. It was only after these historical and momentous struggles during which the entire society was in turmoil in these western countries for long periods that the successful transition from feudalism to a modern industrial society could be accomplished.
In India, on the other hand, the fundamental rights in our Constitution were not a result of such prolonged social and political struggles in our country as happened in the western countries. These rights were imported by our modern-minded founding fathers from the west and then transplanted from above on our semi-feudal, backward society.
The belief that by merely importing and transplanting a modern Constitution from above will result in our society quickly becoming modern has proved to be mistaken. What has happened in Gujarat is proof of this. People have killed each other in the name of religion in the year 2002 (as they did at the time of Partition in 1947) although the Constitution has been in force since 1950.
At the same time, it cannot be said that the Indian Constitution is merely a paper document. By setting up modern ideals, the right to free speech, equality, secularism etc. the Constitution is pulling society forwards towards the goal of creating a modern society. No doubt it has not done so automatically merely by its promulgation, but it has reduced the pain, agony and duration which western societies had to go through during the period of their transition from feudalism to modernism. One may recall the Thirty Years' War in Germany (between Catholics and Protestants) from 1618 to 1648 in which one-third of the entire German population (including women and children) were wiped out, or the massacre of the Protestants (called Huguenots) in France in 1572 or of the Catholics in Ireland.
Thus by setting up modern ideals in our Constitution our founding fathers rendered great service to the nation. The ideal of secularism incorporated in Article 25, for instance, will ensure that India will remain united. Our country has tremendous diversity, so many religions, castes, lingual and ethinic groups etc. and hence only secularism and equality for all can hold it together. These were the ideals which our great Emperors Ashok and Akbar taught us.
When India gained Independence in 1947 the subcontinent was engulfed in religious madness, and people were massacring one another in the name of religion. It was easy for our leaders at that time, and there must have been tremendous pressure on them, to declare India a Hindu State since Pakistan had declared itself an Islamic State. It is difficult to retain a cool mind when passions are inflamed, but it is the greatness of our political leaders at that time that they could do so. That is why India will survive whereas Pakistan, based on feudal communal ideals, will disintegrate.
What has happened in Gujarat was the work of some vested interests utilizing the unemployed lumpen elements in our society to commit acts of barbarism and sow seeds of discord between Hindus and Muslims. But after a momentary period when they were swayed by passions the Indian people have seen through this game. It was heartening to see pictures in the newspapers and on TV of processions in Faizabad comprising of peoples of all communities with posters stating:
I may also mention about caste, since it is still an important feature in our society.
It is said that caste originated from the Aryan invasion and conquest over the Dravidians. I need not go into this controversy, because subsequently caste developed into the feudal occupational division of labour in society. Every vocation became a caste e.g. badhai (carpenter), lohar (smith), darzi (tailor), kumbhar (potter), dhobi (washerman) etc.
Now at one time the caste system may have played a progressive role because it introduced a rudimentary kind of division of labour in society, and as any student of economics knows, division of labour is necessary for human progress (see Adam Smith's The Wealth of Nations). In ancient and medieval times, there were no engineering colleges or technical institutes, and hence the only way to learn a trade or craft was to sit with one's father from childhood and imitate him in his work. Thus up to feudal times, one had no choice in selecting his profession, he had to follow his father's profession, and so the son of a badhai became a badhai, the son of a lohar became a lohar etc. In this way, badhai, lohar, dobhi etc. became castes.
The same thing happened in Europe too up to the feudal age. Even today, many Englishmen have surnames like Taylor, Smith, Carpenter etc. which indicates that their forefathers belonged to these professions.
In modern times, however, the situation is totally changed. Division of labour now cannot be on the basis of one's birth but on the basis of technical skills. A factory recognizes no caste or religion but only efficient production based on technology. Hence the caste system is totally outmoded today and has to be quickly destroyed if we wish to progress. In fact it has already been destroyed economically because the son of a badhai now does not become a badhai, he comes to the city and becomes an electrician or motor mechanic, or having acquired education he becomes a clerk, or a lawyer, engineer, doctor, etc. Thus today people are no longer following their father's profession, and this has largely destroyed the economic foundation of the caste system.
However, the caste system is being deliberately fostered and sustained socially by certain vested interests for vote bank politics etc. The recent killings in Meerut of a Jat boy and Harijan girl who wanted to marry each other is an example of how backward we still are socially. We have still a long way to go before the caste system is totally eradicated, but this is a goal towards which all modern-minded and patriotic people must strive.
I would also like to mention about sexual discrimination and the need to struggle for women's emancipation if we wish to make India a modern industrial nation. No doubt Article 15(1) prohibits the State from discriminating against women, but it does not prohibit society from doing so, and in fact such discrimination is widespread, beginning from the very birth of a child. I was told by Dr Baweja, former Medical Superintendent of Kamla Nehru Hospital, Allahabad that whenever a male child is born in the hospital the relatives distribute sweets, their faces are full of joy, but if a female child is born, their faces are downcast and crestfallen, as if a great tragedy has occurred. Crimes against women have increased lately, the courts are flooded with cases relating to dowry deaths, rapes, wife-beating etc. and all this shows that our society is still backward, even though the Constitution is modern.
It may be mentioned that IQ tests in modern psychology have shown that the IQ of an average woman is the same as that of an average man. Hence it is not due to any inherent inferiority but only due to the fact that women were not given education and other opportunities that they could not come up to the level of men.
I have dilated on all this because no doubt in our law colleges it is taught that Article 15(1) prohibits discrimination on the basis of caste, religion or sex, but the historical and social relevance of this is not explained, and without understanding such relevance the subject becomes dull and devoid of any significance.
If we wish the lawyer community to be again become respected leaders in our country, legal education must be drastically changed, and the students taught the real significance of the Indian Constitution and the laws in the manner explained above.
I may now also discuss some other topics taught in the LLB course in order to show the defects in our law teaching.
Everyone who has studied company law knows of the English decision in Salomon v. Salomon & Co. Ltd.1 in which the principle that a company is a distinct legal entity was laid down. What is unfortunately not taught in our law colleges is the historical significance of this principle.
In modern society, business is perhaps the most important economic activity (unlike in the feudal era in which agriculture was the most important economic activity). Now in every business there is a risk, for there is always a possibility that the business may fail (due to competition, recession etc.) Businessmen were reluctant to take risks because if the business failed they may even lose their homes, personal effects etc. To protect them from such an eventuality, and to encourage them to take risks, the principle that a company is a distinct legal entity separate from its shareholders or directors was created. Thus, this legal principle was of great historical importance, for without it, modern industrial society could not have been so easily created.
Hence when teaching Salomon v. Salomon & Co. Ltd.1 the law teacher should explain to the students the historical significance of the principle in this decision. In this way, it will become of fascinating interest to the students, instead of being just another decision which is to be merely mugged up for examination.
Similarly, when the Contract Act is taught, the historical importance of a contract should be explained. In feudal society, there could be no contracts as there was very little commodity production (a commodity is a goods for sale, not for self-consumption). Feudal society was agricultural society in which the tenant farmer produced agricultural goods partly for self-consumption and partly to give to his feudal landlord. In feudal society, there was very little freedom, one was bound by custom from birth till death.
As contrasted to feudal society, modern society is characterized by the immense production of commodities. Now since commodities have to be sold, there has to be a voluntary transaction between the seller and buyer. This agreement is called a contract, and its distinctive feature is its voluntary (i.e. not coercive) nature. Hence freedom is a notable feature in modern society but this freedom to change human relationships voluntarily (by contracts) was unthinkable in the previous feudal age, and hence was of revolutionary significance.
When the contract law is taught, it should be taught from this historical perspective, but that is perhaps never done in our law colleges.
As regards criminal law, which is the basic law, everyone knows that the greatest failure in the Indian legal system is in the field of criminal law. That is because the criminal law administration rests on two assumptions: (1) the police is honest and effective, and (2) witnesses have no fear in giving evidence. Since both these requirements are today missing in India, much of the criminal law remains on paper, mafia dons are operating everywhere in society with impunity, often hand in glove with certain politicians and bureaucrats and most crimes go unpunished. Trials take years and years to conclude, and criminal appeals are being heard in the Allahabad High Court after 22 years of their filing, which itself is a mockery of justice.
The reason for this failure is that we imported notions of criminal law from England mechanically without taking into account our own social circumstances. Hence our universities and law colleges should become laboratories where this phenomenon is analyzed, and teachers and students of law use their creativity to prepare new ideas and solutions and new institutions to tackle the problem.
I may also mention about the subject of international law, which is a paper in the LLB course. What is not taught is that it was the Thirty Years' War in Germany (1618-1648), with its revolting cruelty, which turned the attention of a considerable number of scholars to the need of formulating rules for the protection of non-combatants in war, the treatment of the sick and wounded, the prohibition of wanton pillage and other horrors which shocked the awakening humanitarianism in Europe and motivated Grotius to publish in 1625 his famous book on international law The Laws of War and Peace. Similarly, the need of freedom of trade and commerce required nations to give up claims of sovereignty over the high seas and accept it as res nullius.
I need not go further into various other branches of law which are taught in our law colleges. Everyone knows that the teaching is dull, boring, mechanical and uninspiring, and many students, if given an option, would prefer to read at home rather than attend classes, and the reason for this is that the subject is not taught from a historical and social perspective. This is because our law teachers are usually ignorant of history, sociology and other subjects without knowing which the study of law becomes a dull, formal exercise.
The student wants to quickly get his law degree and start practice to earn one's bread. There is nothing wrong in wanting to earn one' bread, but to my mind the educational system should also produce socially committed human beings who want to serve society and the nation, and not merely themselves. An education system should serve the country, and not merely produce self-seekers. Hence it should inculcate a sense of idealism, and a desire to help one's fellow citizens but the unfortunate truth is that it is just doing just the contrary. The result is that today most of the Indian educated middle class is utterly selfish and unpatriotic, and the "brain drain" from India is proof of this.
Today, India is passing through a transitional phase, between feudal, agrarian society and modern, industrial society. We still have a lot of casteism, communalism and other backward features in our society. We must help our people to cross this transitional phase with as little agony as possible, so that India becomes a modern nation like in Europe or North America. The education system, including legal education, must therefore help in this process, and for this it needs to be radically changed in the light of what has been said above.
- 1897 AC 22 (HL)
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