The government has released a draft policy to improve education in India; also buried within its 484 pages are recommendations to improve legal education in the country by ensuring it “reflect[s] social-cultural contexts” and “fall[s] 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”.

The government’s Ministry for Human Resource Development (MHRD) has released the latest Draft National Education Policy 2019 around a week ago (it’s been working on iterations since 2015).

The report makes many sensible suggestions (see a summary here) for improving India’s frankly dire state of primary, secondary and further education landscape (though it primarily attracted headlines for dropping version 2.0’s proposal to make Hindi-teaching compulsory in non-Hindi-speaking states).

But buried on page 303 is a proposal for reforming legal education, though not necessarily how some have been hoping by nationalising national law schools or increasing their funding or central support (Ed: thanks to an eagle-eyed reader for pointing us to it).

The draft report, which only contains recommendations and is not law, makes only two main suggestions:

• “State institutions offering law education must consider offering bilingual education for future lawyers and judges - in English and in the language of the state in which the law programme is situated,” and
• “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”.

The second of these has uncanny similarities to our fake April Fools’ Day story earlier this year, about the BCI (not) recommending to set up spiritual gurus in law school chairs to teach subjects, such as “ethics in Vedas and Spirituality”.

Alongside the more than 300 hundred people and institutions the MHRD committee apparently “met and interacted with” over the draft, were also:

• NLSIU Bangalore,
• Bangalore-based Mundkur Law Partners partner Divya Balagopal,
• Ramaiah College of Law assistant professor Chetan B Singai,
• as well as the late NLS-founder, Prof Madhava Menon.

Polyglot lawyering?

The idea behind the first suggestion of multilingual legal education, according to the document, is that “legal transactions at the lower courts are conducted in their respective regional languages whereas those at the High Courts and Supreme Court continues to be done in English, in most States in India. This contributes to the considerable delay in legal outcomes as cases can move up only after the documentation has been translated”.

It also adds that state institutions should induct “teachers who are well versed in the regional language as well as English”, and make text books and materials available in both languages, and allowing exams to be taken in either English or the local language.

It proposes that special cells could be set up to translate such texts, assisted by bi-lingual students who could be “invited/incentivised” to contribute.

The bit about language difficulties in local courts is certainly true and sounds sensible enough on paper (though it is far from the main reason for high pendency and delays).

However, one concern could be that it would create a two-tier system of lawyers who are trained well in English, and could therefore appear before high courts and lawyers who will be stuck forever practising in lower courts in a single state, since much of their legal knowledge may have been acquired in a regional language.

On the other hand, it could make the legal profession more accessible - one of the main burdens of applicants from non-traditional backgrounds making it to national law schools, according to diversity programme IDIA, is that students struggle with the English requirements of law school. This could bridge the gap.

In reality, de facto, the profession is already segregated into a multitude of tiers, and the majority of taluka-level lawyers may never practice in high courts or the Supreme Court anyway due to the economics of legal practice and other soft-institutional barriers (such as an inability to argue in English).

Mythological lawyer?

The second proposal is bound to be even more controversial, though it could also in-part just be read as a push for more philosophy and jurisprudence - courses that are afterthoughts in most Indian LLB programmes.

The full text of the LLB serving suggestion reads:

Curriculum to reflect socio-cultural contexts: 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. Hence, concerned authorities in universities must ensure that the curriculum reflects, in an evidence-based manner, the history of legal thinking, principles of justice, practice of jurisprudence and other related content appropriately and adequately.

An obvious objection is, of course, that the Indian legal system and jurisprudence is mostly based on the writings of modern-day Indian scholars and politicians and (mostly British) common law legal philosophy.

It is hard to see how the ideas of Hinduism’s (and Buddhism’s) Dharma and its antonym Adharma, albeit perhaps interesting in an elective course on ethics, could have a great role to play in becoming an effective lawyer.

And law students who follow other religions may wonder if the Ten Commandnents from the Koran or the Bible should also be added to their legal education.

Arguably, the practice of law should be primarily based on historical facts and the law as written and interpreted by courts, rather than “literature and mythology”.

The flipside - perhaps a tad condescendingly - could be that it may make legal education more accessible to certain sections of society, where couching legal concepts in more familiar everyday terminology (at least to Hindus) will encourage participation in the legal process (and maybe allow lawyers to communicated better with some clients).

Full text of legal education reform suggestions

(PDF of the 484-page document can be accessed here).

16.7. Legal Education

India’s development in the 21st century and the fulfilment of our dream of taking our rightful place in the global arena will depend crucially on our ability to strengthen institutional frameworks that underpin governance. A key aspect of governance systems is the ability of the State and private interests to adhere to Constitutional values, and establish, support and maintain the rule of the law as envisioned in our founding documents. The maintenance and flourishing of socio-political institutions requires a cadre of professionals in the judicial system, including lawyers, judges, paralegal and administrative staff. All these roles require the continued development of legal education. Further, this Policy envisages a law education that is 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. It recognises that the legal profession has social responsibilities to reach justice to the unreached in rural and tribal areas of the country through community or social justice lawyering. Therefore, legal education is visualised as a public rather than a private good wherein the State, society and markets have distinct interests and reasonable expectations related to their contribution to inclusive and equitable development. Finally, professional education in law has to be globally competitive, adopting best practices and embracing new technologies for wider access to justice and timely delivery of justice. Hence a new legal education policy is found imperative for assigning direction for future change.

P16.6.5. Curriculum to reflect socio-cultural contexts: 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. Hence, concerned authorities in universities must ensure that the curriculum reflects, in an evidence-based manner, the history of legal thinking, principles of justice, practice of jurisprudence and other related content appropriately and adequately.

P16.7.2. Multilingual education: A new generation of children will grow up to be completely multilingual through the implementation of this Policy. In the meantime, some areas of professional education, such as law education will require innovative solutions to a specific challenge. Legal transactions at the lower courts are conducted in their respective regional languages whereas those at the High Courts and Supreme Court continues to be done in English, in most States in India. This contributes to the considerable delay in legal outcomes as cases can move up only after the documentation has been translated.State institutions offering law education must consider offering bilingual education for future lawyers and judges - in English and in the language of the State in which the law programme is situated. To facilitate this transition, a host of measures will be undertaken such as, inducting teachers who are well versed in the regional language as well as English, making text books and study materials available in both languages, and allowing examinees to write their examination in either medium. In addition, special cells for translating legal materials from the State language to English and vice-versa will be setup and students who are fluent in both languages will be invited/incentivised to contribute to the work of the translation cells.