Month: September 2010

Legal Education in India

abaindialawnews 2010 - Fall, ALL

By Kian Ganz

The Indian legal system is well known for not being an enjoyable place for most litigants; cases can drag on for dozens of years, outcomes are never certain, and low-level corruption is endemic at some courts. For years, India’s government has proposed solutions but the problem has proved to be too vast to handle. The livelihoods of more than 1 million lawyers in India depend on the system and its inefficiencies as they currently stand.

The most realistic approach therefore looks further into the future towards the next generation and starts right at the beginning: improving Indian legal education.

The need for reform in education is necessary both in its own right as well as for the positive effect this would ultimately have on the country’s legal profession.

And interestingly, legal education in India is currently in a state of flux that has not been seen for decades, if ever.

India has more than 900 law colleges, of which around 300 are “condemnable” according to Gopal Subramanium, the country’s solicitor general and current chairman of lawyers’ only regulatory body, the Bar Council of India (BCI).

The subtext to “condemnable” in this context is that for years the BCI has given permissions for law colleges to open all over India, and according to almost everyone familiar with the process, things were not always kosher.

Whether someone was allowed to open a new law school depended less on the faculty and institution of learning one wished to assemble and build, but more on local political connections, clout and in some cases allegedly, even outright bribes.

India’s Prime Minister Manmohan Singh in June 2010 described Indian legal education as a “sea of institutionalised mediocrity,” in which there were only “a small number of dynamic and outstanding law schools.”

“But I am afraid,” he added, “they remain islands of excellence amidst a sea of institutionalised mediocrity.”

The law ministry has announced an ambitious plan for every state in the country to have its own “national law school,” which will be part-state funded and more heavily regulated.

But more changes that have more immediate repercussions are taking place too.

Subramanium has made education reform a centrepiece of his unusual tenure as BCI chairman, being the first ex-officio and unelected chairman of the regulatory body.

One of his aims is to reduce the number of law colleges to something more reasonable, “consolidating” the number to 175. In other words, he would like to reduce the size of the sea of “institutionalised mediocrity” by effectively closing more than 700 law schools.

Such a rationalisation of colleges is unlikely to hurt the quality of legal education. A large number of purported legal educational institutions do not have significant or experienced faculty (or even any in some cases), library resources are barely existent, if at all, and any commitment to being a centre of learning is negligible. Students who graduate from such institutions will have learned only a little about the law.

“It has become necessary to filter out the law graduate who got his law degree without attending the minimal percentage of lectures or who cheated his way through the exams or who studied in dubious law colleges where degrees were up for sale or where qualities for education were so sub-standard that their degrees were not worth the paper they were printed on,” argues Chennai-based advocate Elizabeth Sehadri. “I shall call this category of law graduates the ‘pseudo-lawyer’.”

While many such pseudo-lawyers are already roaming free in the wild of the courtrooms, stopping that tide is important if the wheels of the legal system – its lawyers –  are to one day turn smoothly again.

What has been one of the most controversial but potentially effective plans by the new BCI is the introduction of an India-wide bar exam, which all new Indian lawyers will have to pass before they can practise.

The first exam is scheduled for 5 December 2010 and the plan of action has been carried out at breakneck pace, with many 2010 graduates in fact having started practising law in the summer of 2010 and finding out only later that technically they were not permitted to practise law until they passed the exam six months later.

Understandably, this has sparked serious resistance from graduates with more than 10 different cases challenging the constitutional legality of the exam and the BCI’s power to conduct it. The Supreme Court is set to hear the petitions but so far there has been one adjournment after another, which is not unusual in Indian courts.

Resolution by December is unlikely and it appears that the bar exam will most likely go ahead.

So can the exam make a real difference, and particularly also weed out the pseudo-lawyer? The plan right now is for it to be an open-book multiple-choice exam that will take three-and-a-half hours to complete.

The model questions and answers were published in early September and the difficulty level seems reasonable – roughly 80 per cent of student takers of a web poll on Indian legal website LegallyIndia.com thought they would “definitely” or “probably” pass the exam after studying for it.

The barrier may not be very high but it may just be high enough to weed out the “pseudo lawyer” and with more than 50,000 law students estimated to be graduating in India every year, it could mean that as many as 10,000 graduates will be left without the ability to practice law. All of them would of course have begun their studies never expecting to be examined on their legal knowledge.

The likely reality of the situation is, however, that many of those 10,000 will try and be able to practise law anyway. Due to the speed of implementation of the exam, there is currently no mechanism in place for enforcing whether or not a lawyer is practising or not.

All one has to do in most courts is slip on a black gown, wear a white band around the neckline, step confidently in front of a judge, and start arguing.

The BCI is fully aware of this problem, and it often appears that Subramanium’s intention is simply to get the exam running as quickly as possible, even if badly, ignoring vested interest groups and stakeholders along the way and sorting out the kinks later.

In the meantime, the BCI will be working on building electronic databases to track the enrolment and practice of every lawyer in India. It will likely take years until such systems have fully permeated the Indian legal system and reached also the smallest courts in rural India.

But perhaps that is the only way possible.

Kian Ganz is Editor of legal news website LegallyIndia.com and can be contacted at kian.ganz@legallyindia.com.

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Bank Deposit Guarantee in India – An Overview

abaindialawnews 2010 - Fall, ALL

By Jayesh and Veena Sivaramakrishnan

International Perspective

World over, deposit insurance has become a popular tool used by governments in an effort to ensure the stability of the banking system and protect bank depositors from incurring large losses in case of bank failures. Most countries have financial safety nets in place that include explicit and/or implicit deposit insurance, bank regulation and supervision, central bank lender of last resort facilities and bank insolvency resolution procedures. Apart from the explicit deposit insurance scheme established by most countries, many countries also have an implicit deposit insurance scheme in place since governments would inevitably intervene and impose a moratorium and/or provide other relief measures rather than allow a bank to fail and expose the financial system to a systemic risk.

The Great Depression of the 1920s compelled the need to instill confidence in the public at large by providing better protection against bank failures. This prompted the United States of America to introduce a deposit insurance scheme in 1934, which was the first of its kind in the world. Under this scheme, the Federal Deposit Insurance Corporation reimburses the depositors of failed banks, thereby reducing the impact of such bank failures. Such schemes gained popularity in the 1960s, with nine other countries, including India, following this move.

Growth of Deposit Insurance in India

India was the second country in the world to introduce deposit insurance. As in the rest of the world, the need for deposit insurance in India was also on account of bank failures in the late 19th and early 20th centuries. The failure of the Travancore National and Quilon Bank (the largest bank in the Travancore region) in 1938 led to various interim measures relating to banking legislation and reforms. The banking crisis in Bengal between 1946 and 1948, coupled with the failure of Laxmi Bank and the subsequent failure of the Palai Central Bank in 1960 led to the introduction of deposit insurance in India.

The Deposit Insurance Corporation Act was enacted in 1961, leading to the formation of the Deposit Insurance Corporation (DIC), which regulated and supervised deposit insurance in India. DIC, a wholly owned subsidiary of the Reserve Bank of India (RBI), commenced operations on January 1, 1962 with 287 banks registered with it as insured banks. However, this number dwindled on account of RBI’s policy of reconstruction and amalgamation of small and financially weak banks so as to make the banking sector more viable.

The 1960s and 1970s, which were a period of institution building, also witnessed the establishment of the Credit Guarantee Corporation of India Ltd. (CGCI). While deposit insurance had been introduced in India out of concerns to protect depositors, ensuring financial stability, instilling confidence in the banking system and helping mobilization of deposits; the establishment of the CGCI was essentially in the realm of affirmative action to ensure that the credit needs of the hitherto neglected sectors and weaker sections were met. The essential concern was to persuade banks to make available credit to the not so creditworthy clients i.e. small borrowers belonging to weaker sections of society.

With a view to integrating the functions of deposit insurance and credit guarantee, the DIC and the CGCI were merged and the Deposit Insurance and Credit Guarantee Corporation (“Deposit Corporation”) came into existence on July 15, 1978. The Deposit Insurance Act, 1961 was thoroughly amended and renamed as the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (“Deposit Corporation Act”). After the merger that integrated the functions of deposit insurance and credit guarantee, the focus of the Deposit Corporation shifted to credit guarantees. Following the financial sector reforms of the 1990s, credit guarantees gradually were phased out and the focus of Deposit Corporation is now back to deposit insurance with the objective of averting panics, reducing systemic risk, and ensuring financial stability.

The coverage limit in India has been sensitive to the growth of the economy and has been revised from time to time. It has been revised from INR 1,500  initially to INR 5,000  in 1968; INR 10,000  in 1970; INR 20,000  in 1976; INR 30,000  in 1980, and finally to INR 100,000  in 1993, which has not been revised to date.

Coverage

All commercial banks (including branches of foreign banks operating in India), local area banks and regional rural banks, and all co-operative banks regulated by the RBI (other than those from the States of Meghalaya, and the Union Territories of Chandigarh, Lakshadweep and Dadra and Nagar Haveli) (“Insured Entities”) are covered by the bank guarantee deposit scheme (“Scheme”).

All deposits in the nature of savings, fixed, current, recurring, etc. that are placed by natural persons, sole proprietorships  and partnership entities (but not limited liability partnerships) in an Insured Entity are covered under the Scheme.

Salient Features

The salient features of the Scheme are as follows:

(a) Guaranteed Amount: The deposits are insured up to a maximum amount of INR 100,000 (Indian Rupees One Hundred Thousand Only) cumulative of principal and interest, held by a depositor in the same capacity in the same bank. Effectively, the deposits kept in different branches of the same bank in the same capacity are aggregated, but the deposits held in different capacities are not.

(b) Premiums: The Scheme is ‘ex-ante,’ i.e., Insured Entities pay advance premiums to the Deposit Corporation on the basis of their assessable deposits semi-annually, within two months from the beginning of each financial half year based on its deposits as at the end of previous half year. The premium paid by the Insured Entities to the Deposit Corporation is required to be borne by the Insured Entities themselves.

(c) Triggering Payment Under the Scheme:

(i) Liquidation: The Deposit Corporation is liable to pay to each depositor through the liquidator.

(ii) Reconstruction/Amalgamation/Merger: A scheme of compromise or arrangement or of reconstruction or amalgamation of an Insured Entity may be sanctioned providing for payment of an amount that is less than the original amount (total amount due by the Insured Entity) and also the specified amount (currently INR 100,000) to the depositor. of the Insured Entity,  In such an event, the Deposit Corporation shall be liable to pay to every such depositor the lesser of an amount equivalent to

(a) the difference between the amount so paid or credited and the original amount, or

(b) the difference between the amount so paid or credited and the specified amount (currently INR 100,000).

(d) Time Frame: The time frame for payment of the insured amount is 2 months from the date of receiving the list of depositors from the liquidator in case of winding up of the bank. In case of a reconstruction, arrangement or amalgamation, the Deposit Corporation shall be furnished with a list of depositors within 3 months from the date on which the scheme of amalgamation / reconstruction comes into effect and thereafter, the Deposit Corporation shall make payments under the Scheme within 2 months, either directly to the depositor or to the transferee bank or insured bank for credit to the account of such depositors.

(e) Source of Payment: The Deposit Corporation can pay the amount from its general funds and out of returns of investments made by it, with a right of repayment from the liquidator or the transferee or the insured bank. In addition, the depositors can claim the amount as per the manner set out in the Banking Regulation Act, 1949, subject to priority of certain other creditors such as workmen dues, dues from the state government, etc. Since its establishment, the Deposit Corporation has always been able to fulfill its obligations.

(f) Recovery by the Deposit Corporation: The liquidator (in case of liquidation) or the insured bank or the transferee bank (in case of an amalgamation or merger, etc.), as the case may be, is required to repay the Deposit Corporation out of the amounts realised from the assets of the failed bank and other amounts in hand after making provision for the expenses incurred. Such claims of the Deposit Corporation are not privileged to claims of third parties.

Some Statistics

As per the latest available data, Deposit Corporation boasts of having fully protected 89.3 percent of the deposit accounts as of March 31, 2009 as compared to the international benchmark of 80 percent. Amount-wise, 56.2 percent of the assessable deposits were protected by the deposit insurance cover, as against the international benchmark of 20 percent (Source: Annual Report of Deposit Corporation for the year ending 2008-2009).

Way Forward

The goal of Deposit Corporation, as explained by Subir Gokarn, the Deputy Governor of RBI and Chairperson, Deposit Corporation is “to go beyond the statutory prescription, and ensure settlement of claims within a few days of liquidation of a bank as against a few months taken now.” To achieve this, Deposit Corporation would be required to have a computerised depositors’ database for over 85,000 branches spread across the country. Secondly, the entire process of filing claims by the liquidator and their processing by the Deposit Corporation would have to be computerized with appropriate connectivity. The Deposit Corporation is believed to have already initiated steps to move in this direction by formulating an ambitious project of Integrated Claims Management System.

There have been frequent demands to raise the limit of deposit insurance cover in India. As the economy of India has grown substantially since 1993, there is a proposal to enhance the deposit cover to INR 250,000 as against the current maximum amount of INR 100,000. In our view, while this would be a welcome move, it may be some more time before this sees the light of the day given that the statistics mentioned above reflect a wide coverage. .

With regard to  the issue of the extension of deposit insurance cover to deposits mobilised by Non Banking Finance Companies (“NBFCs”) and Financial Institutions (“FIs”), a working group set up in 1999 recommended against the extension of deposit insurance cover to NBFCs, and suggested that the matter be re-examined later when the supervisory mechanism concerning the NBFCs is fully stabilised. Extension of the deposit insurance cover to FIs was not considered favourably for a range of reasons, including but not limited to the fact that they do not enjoy the regulatory protection which banks do. In our view, given the present set up of NBFCs and their stringent regulatory regime (especially for deposit taking NBFCs), the time is ripe to consider extending deposit insurance to such NBFCs.

An important step going forward will be to reduce the inordinate delays in payments. Given that these delays have been attributed to the delay on the part of the liquidators, it is hoped that a computerised depositors’ database and the Integrated Claims Management System become a reality sooner than later, as the Indian banking system may not remain unaffected by the next global financial crisis.

Jayesh is the Founder Partner of Juris Corp. Mr. Jayesh is an expert in the field of Financial Services and is the pre-eminent practitioner in India for Derivatives, Structured Finance and Structured Products. He has been consistently recognized as one of Asia’s Leading Lawyers. Mr. Jayesh is an Advocate, Solicitor, Diploma holder in Business Finance and a Chartered Financial Analyst. He is a member of Mensa International and of GARP (Global Association of Risk Professionals). He can be reached at h_jayesh@jclex.com.

Veena Sivaramakrishnan is a partner at Juris Corp. Veena started her career at Juris Corp in 2004 and then worked with ICICI Bank Limited and Davis Polk and Wardwell (as a Foreign Temporary Associate) at New York. Veena returned to Juris Corp in 2009 and became a partner in 2010. Her practice focuses on regulatory and documentation issues relating to the entire spectrum of derivatives, structured products, banking and money market related issues. She can be reached at v.sivaram@jclex.com.

 

Med-Arb: A Viable Substitute for International Arbitration

abaindialawnews 2010 - Fall, ALL

By Norman Solovay and Tanya Paula de Sousa

You have a dispute involving international parties or you are afraid that your deal will devolve into one.  And if you are the aggrieved party, you need to end up with an arbitration award in your favor that you can enforce almost anywhere under the New York Convention.  But you have heard some terrifying stories about protracted international arbitrations that have devoured, rather than helped, the disputing parties.

There is a quick and economic shortcut to that arbitration award called Med-Arb, which is a hybrid dispute resolution process combining mediation and arbitration. In Med-Arb, both parties to the dispute sign up with a mediator who, in the event of an impasse, is authorized by their agreement to put on an arbitrator’s hat and resolve any remaining issues that the mediation failed to dispose of.  In a Med-Arb proceeding, the parties’ “informed consent” is required before an arbitration award rendered in it can be insulated from attack under normal rules applicable to ex parte dealings with arbitrators.

Although the name Med-Arb was coined in the 1970’s in the U.S., the process is hardly a new one: it dates back to the ancient Greeks and in addition to the U.S., is used in many countries such as China, India, and Italy.  Despite being regularly used, it came under attack by many mediators who felt it inhibited frank interchanges and fell out of favor for a number of years.  Now, however, as arbitration has come to be called the “new litigation” because of its increasing length and cost, Med-Arb has had a dramatic rise in popularity.  In fact, many of its U.S. proponents refer to it as encompassing “the best of both worlds” because it combines so many of the benefits of mediation and arbitration. As viewed by its now growing number of users, this amalgamation capitalizes on the advantages of both processes, while simultaneously eliminating many of their individual disadvantages. The combined proceeding aims to resolve disputes faster, more efficiently and more economically.

Med-Arb’s biggest advantage is that you know when you sign up that your dispute is going to be resolved.  Moreover, you can also be sure that if you select a good Med-Arbiter you will at least start off with a sympathetic mediated hearing that saves time, energy, and also conserves relationships. Another certainty is that the proceeding will take a fraction of the time and cost of typical long-running commercial (and particularly international) arbitrations with excellent odds that a real arbitration will never be needed. Even in those very infrequent cases where a party, having disregarded the Med-Arbiter’s suggested resolutions causes an impasse, the arbitration portion need only deal with the remaining issue or issues that the mediator couldn’t resolve.

There used to be doubts about whether a Med-Arb proceeding could be assured of generating an arbitration award enforceable under the New York Convention.  But Med-Arb’s ability to do so has now become far more certain.  See, in this regard, a particularly well-done article on the subject by Edna Sussman entitled “The New York Convention Through a Mediation Prism,” 15 Dispute Resolution Magazine #4, which cites the U.S. cases in which agreements arrived at in a Med-Arb proceeding were enforced, and goes on to describe methods for obtaining similar enforcement  under the New York Convention.

Med-Arb is not for everyone, especially those with strongly held views as to the importance of being able to walk away from an unsatisfactory mediation. But it can be the right choice for many parties needing closure in a dispute and/or wanting to avoid the cost and strain of drawn out expensive arbitration proceedings, both international and domestic.

Norman Solovay is Partner & Chair of the Alternative Dispute Resolution Department of McLaughlin & Stern, LLP.  He can be contacted at nsolovay@mclaughlinstern.com. 

Tanya Paula de Sousa is an Associate of the Alternative Dispute Resolution and Corporate Departments of McLaughlin & Stern, LLP.  She can be contacted at tdesousa@mclaughlinstern.com.

India from Within:  the India Internship Project at the Indiana University Maurer School of Law

abaindialawnews 2010 - Fall, ALL

By Ramla Farzad

This past summer, the Center on the Global Legal Profession at Indiana University Maurer School of Law launched a new internship program in Delhi, India.  Through a highly competitive selection process, six students were placed in law firms, NGOs and the Assistant Solicitor General’s Office for a six-week period and tasked with an array of legal assignments.  The Center’s mission is to create a new paradigm for learning about the legal profession and legal practice in other countries.  As the legal profession becomes more global in nature and attorneys become more integrated in cases and transactions that cross boundaries, the Center seeks to enhance understanding of this evolving system.  The Center’s long term objective is to help attorneys navigate the complexities of international legal issues and become leaders and problem solvers within a rapidly globalizing world.

With this goal in mind, the Center focused on internship opportunities for its students.  The Center chose India as its first country of focus because of the similarities between the foundation of the American and Indian legal systems as well the differences.  India is the world’s largest democracy, with a flourishing economy, free press, and a legal system based on common law.  Under the leadership of Professor William Henderson, the Center’s Director, and Professor Jay Krishnan, a leading scholar on the Indian legal system, the Center was able to develop relationship with several key organizations around Delhi.  Milton Stewart, an Indiana University alumnus and partner at the Portland firm of Davis Wright Tremaine, donated both his time and money to launch the program.  In February 2010, Henderson, Krishnan, and Stewart traveled through Delhi to meet with various law firms, NGO’s, and the Assistant Solicitor General.  They were able to secure internship placements for Maurer students, officially known as the Stewart Global Legal Fellows, with Amarchand & Mangaldas & Suresh A. Shroff & Company, J. Sagar Associates, Bhasin & Company, and the Clarus Law Firm.

The delegation had equal success in finding placements for students interested in working in the non-profit sector.  Kathy Sreedhar, the Director of the Unitarian Universalist Holdeen India Program, provided significant assistance in matching students with the NGOs.  With Sreedhar’s help, the Center was able to place students at the Dalit Foundation, Jagori, and the Self-Employed Women’s Association, NGO’s devoted to empowering marginalized and disadvantaged people in India.  Sreedhar also provided funding for the students, which greatly helped the students undertake this once in a lifetime experience.

The six students, Erica Oppenheimer, Nick Dau-Schmidt, Erin Mihalik, Jillian Rountree, Zachary Holladay and Renee Turner, arrived in mid-May to begin their internship program.  Five of the six students resided at the O.P. Jindal Guest House, affiliated with the new O.P. Jindal Global University, which is in the process of partnering with Indiana University.  The modern and spacious guest house provided a retreat for the students to live comfortably and interact with one another, further solidifying their bond.  Dau-Schmidt, who interned at J. Sagar Associates was graciously invited to stay at Mr. Jyoti Sagar’s guest house, located minutes from the office.

Each intern had a unique and singular experience.  The interns at the law firm were asked to research legal issues that crossed international boundaries and informed the way they approached a novel legal issue.  Rountree interned at Clarus Law Firm, a boutique law firm specializing in environmental law.  She captured this experience in a weekly journal that all the students were required to submit as part of their internship program, writing:

I think what really impressed me was the subject matter.  I was really working on important and cutting edge material. Again, I didn’t believe that everything the firm would work on would be dry or repetitive, but I did not think I would be trusted with research on what to me is such new and central material. I come away from the internship I hope having made those at Clarus a bit more knowledgeable about my research topics, but mostly with immense new knowledge on not only international, environmental, and trade law topics but also an increased familiarity with the process of developing arguments and providing consultation on these matters. I believe I have a far greater grasp on what questions are asked and how they are answered in international trade law.

The interns working for NGOs had a vastly different experience.  These interns were taken out of their comfort zone and asked to see life through the lens of the struggling and impoverished people of India.  In addition to researching laws which affect the disadvantaged population of India, they also engaged in field work, traveling to remote villages and meeting with people who literally have nothing.  Turner, who interned at the Dalit Foundation, made the following comments in her journal:

While out and about one day, I stumbled upon two women working at a construction site.  These women were carrying at least ten bricks on top of their heads, while their babies lay off to the side, crying.  When I asked the man I was with about these women, he responded, with a smile, by saying “A strong woman can carry sixteen bricks on top of her head.”

When I inquired about their living conditions (shanty homes) and children lying in the dirt, he off-handedly said they are migrant workers paid to work at the construction site, so that’s where they live.  The sound of the babies crying was heartbreaking.  I wanted to rush over and pick all three of them up and rock them until they stopped crying.

Experiences like this can change a student’s life.  Not only did they get the opportunity to learn about Indian law and the Indian legal system, but they also got a taste of what life in India is like.

The Center seeks to create a new model for professional education that better fits the rapidly globalizing legal, political, and economic landscape.  American law students can no longer limit themselves with knowledge about just the American legal system.  The Center seeks to create global alliances and assist Maurer students in gaining an international perspective.

The Center is working towards expanding the program next summer with more internship slots within India.  The Center is also actively looking for internship opportunities in other countries, including China, Brazil, South Africa, and Australia.  The Center hopes to replicate the success of the India internship in these other countries and provide more law students with this unique experience.

Ms. Ramla Farzad serves as the Executive Director of the Center on the Global Legal Profession at Indiana University Maurer School of Law.  Ms. Farzad is responsible for organizing all of the Center’s international internship programming.  To learn more about the Center on the Global Legal Profession and the India internship program, please contact Ms. Ramla Farzad, Executive Director at rfarzad@indiana.edu.

AUTHOR BIO

Ms. Ramla Farzad serves as the Executive Director of the Center on the Global Legal Profession.  Ms. Farzad graduated with highest honors from the University of California, Berkeley with a degree in political science and an emphasis in South Asian studies. She went on to attend law school at the University of Southern California.  After law school, Ms. Farzad worked in general commercial litigation at a large national law firm.

Ms. Farzad joined Indiana University Maurer School of Law as the Executive Director of the Center on the Global Legal Profession in fall of 2009.  As the Executive Director, Ms. Farzad is responsible for the Center’s international internship placements.  She is responsible for organizing, managing and overseeing all aspects of the India Summer Internship Project, including, obtaining University approval of the program, drafting the agreements with the law firms, NGO’s and Solicitor Generals office, interviewing and selecting candidates into the program, organizing all pre-orientation meetings and travel plans, providing support services for students in India and serving as a liaison between the students and their summer employers.

 

 

 

Writing Requirements, Student Assessment and Plagiarism in Indian Law Schools

abaindialawnews 2010 - Fall, ALL

Jonathan Gingerich and Aditya Singh

The Bar Council of India (BCI) noted in a June 8 press release that plagiarism is a widespread problem in Indian law schools and law colleges.  This was the first official acknowledgement of a phenomenon widely recognized by teachers and students.  The BCI asked law schools to take steps to prevent plagiarism and announced that it would support the use of plagiarism detection software.

We are conducting an extensive empirical study on student evaluations and academic integrity in law schools and colleges all over India.  In addition to conducting an online survey of law students across the country, we have visited a cross section of law schools and traditional law colleges in all regions of India, where we have interviewed students and teachers about the extent and causes of plagiarism.  While our initial findings support the BCI’s conclusion that plagiarism is a pervasive problem in Indian legal education, they also indicate that the causes of this problem are deep and law schools cannot adequately address the issue with anti-plagiarism software alone.

The Emergence of Writing Requirements in Legal Education

Traditionally, student evaluation in Indian legal education has revolved around annual final exams.  Some institutions, like the University of Delhi, experimented in the 1950s and 1960s by requiring students to write papers for their courses as part of a tutorial system.  However, by the 1970s, these experiments had been abandoned and, as a rule, law faculties and colleges assessed their students solely through final examinations.

The most recent implementation of writing requirements for law students began with the establishment of National Law School of India University (NLSIU).  Since it was founded, NLSIU has required its students to write “research projects” (or “term papers”) in every course of study.

Now, most five year law programs at national law universities, of which there are currently fourteen, and private law schools, require students to write a significant number of research papers as part of their law school coursework.  Indeed, many institutions require their students to write a paper of around 5,000 words in every course that they take, with students often taking five or six courses a semester.  These schools seek to advance several objectives by requiring their students to write a significant number of research projects: improving students’ writing skills, teaching students how to perform effective legal research, increasing academic rigor, and encouraging students to learn about substantive areas of law that are not taught in class.

The Prevalence of Plagiarism

While the introduction of writing requirements in the past two decades has certainly increased the quantity of written work by students, it has also occasioned the emergence of widespread plagiarism in law schools. Students and teachers at almost every law school with a writing requirement that we visited told us that seventy percent or more of students routinely turn in plagiarized papers (often called “copy-paste”), and most of the students with whom we spoke have readily acknowledged that they plagiarize some or most of their papers.

Students commonly plagiarize by copying and pasting an article from the Internet or an electronic database, by copying chunks of a few different articles and stringing them together, or by taking papers written by students at their own law school or another law school in a previous year and submitting these papers as their own.  Sometimes, and especially when they are worried that plagiarism detection software might be used, students modify some of the material they have copied or paraphrase the papers they have obtained from older students.  The BCI’s concern that plagiarism pervades legal education therefore seems well founded.

Causes of Plagiarism

Students plagiarize research papers for a wide variety of reasons, and the reasons for plagiarism vary from school to school and class to class.  Many students told us that some, or even most, of their teachers do not read the research projects that students submit. Even if teachers do read them, they do not provide any helpful feedback to students.  Students have repeatedly told us that they are likely to plagiarize projects where they doubt that their teachers will take the time to read and think about their writing.  An overwhelming majority of students point out that they are most motivated to do high-quality, original work for teachers they know will thoughtfully read their papers and tell them what they have done well and poorly.

A second cause of copying is that students feel that they do not have sufficient time to write all of the projects assigned to them. When students are asked to write 5,000 words or more for each subject in a semester, often with deadlines clustered closely together, they feel that it is impossible to do original work in every subject.  Furthermore, at many colleges, students have class for as many as thirty-five hours per week.  Together with the time that students spend on extracurricular activities, like moot courts, law journals, and writing papers for conferences, this leaves students little time to write original research projects for all of their courses. The length and quantity of research projects exacerbates the problem of inadequate feedback to students from teachers, as teachers are unable to closely read and comment on twenty or thirty page projects from all of the students in their classes, which can have up to 120 students.  It is unsurprising that many students who have spoken to us have said that they will do lots of work to write original papers in the one or two subjects that interest them most each semester and are fairly evaluated, but that they do not do original work for projects for other subjects.

Penalties for plagiarism tend to be light and are almost never enforced.  Even when teachers detect that a student has submitted a plagiarized project, they will most commonly respond by simply admonishing the student not to plagiarize again, reducing the student’s marks on the project, or asking the student to resubmit her or his project.  Students who are asked to resubmit their projects because of plagiarism are likely to make a few changes to their plagiarized projects to make them look a bit more original, hand in a new project plagiarized from another source, or, if they are frightened by the teacher, write a new, original project. Even if a student receives zero marks, or very low marks on a plagiarized project, she or he will typically still be able to pass the class by achieving a high enough grade on the final examination. While some law schools have set up formal mechanisms to take action when plagiarism is reported to the school administration by a teacher, these mechanisms are very rarely used.  Even when such formal mechanisms consider imposing serious penalties on students for plagiarism, like requiring them to repeat a year of law school, students commonly apologize for their misconduct and the school will decide not to impose severe penalties.

Yet another cause of misconduct is that many law schools neither clearly define plagiarism nor teach their students how to avoid it.  While some schools have definitions of plagiarism, such definitions are often vague, and interpretation of these vague definitions may be left up to disciplinary bodies instructed only to follow “natural justice” in their interpretation of the definition.  While a handful of professors discuss plagiarism with their students, hardly any law schools provide their students with formal training about what plagiarism is and how to avoid it.  Thus, students are often unaware of what plagiarism is and of how and when they must reference the materials that they use in writing projects.

Proposals to Enhance Academic Integrity

The BCI has suggested that making use of software to detect plagiarism in student papers would be an effective means of preventing students from handing in copy-paste projects.  NLSIU has also recently licensed the anti-plagiarism software Turnitin for use by its professors.  Other schools are trying out less technological solutions.  For instance, the West Bengal National University of Juridical Sciences (NUJS) has reduced the quantity of writing that students are required to do in their first two years of law school and has introduced a system of “tutorials,” where fourth and fifth year students instruct first and second year students in small groups and give advice on their written projects.  Individual faculty members at many institutions have taken steps to reduce copying by their students, like providing more comprehensive and transparent feedback to students on their writing.

We believe that the use of anti-plagiarism software is only a partial solution to the problem of copying by students. We have spoken to students whose teachers use software to detect plagiarism, who have told us that the threat of the software changes the manner in which they plagiarize: rather than copying and pasting without changing the original material in any way, they will copy by paraphrasing the ideas of the article, book, or website on which they are relying.  Anti-plagiarism software is unable to detect this type of plagiarism.

The one solution that is likely to be highly effective in reducing plagiarism is building up a competent, qualified, and committed legal professoriate, with teachers who have the ability and inclination to read and provide helpful feedback on student research projects.  In the institutions that we have visited, we have seen signs that the building up of an excellent faculty is beginning to happen, but this will take money, institutional and regulatory support, and a great deal of time.

However, we believe that law schools could change how they evaluate student writing in some ways that would have a more immediate impact on improving the quality of legal education.  By reducing the length of the research projects that students are required to write, or by reducing the number of projects that students are required to write every semester, these institutions could give their students more time to do quality original work and give their faculty more time to evaluate student projects and provide helpful feedback.  Secondly, they could monitor faculty to ensure that they grade students’ projects on the quality of their research and writing and that they provide helpful feedback to their students.  Thirdly, law schools could clearly define plagiarism and institute formal training programs to teach students how to properly reference works from which they quote.  Finally, if law schools consistently enforced prescribed penalties for plagiarism, they could more credibly tell their students that plagiarism is not tolerated and could better deter students from plagiarizing.

While these suggestions, and any other proposals to modify the structure and procedures of student evaluation, such as NUJS’s tutorial system and BCI’s software proposal, will make it more difficult for students to plagiarize and increase the incentives for students to write original papers, they are incomplete solutions as long as students believe that their professors are unlikely to read the work that they hand in or doubt the ability of their professors to understand and fairly evaluate the projects that they write.  Thus, structural changes to law school evaluation must be accompanied by a commitment to hire more talented, enthusiastic law professors, or they will leave the problem of copying largely unchanged.

Jonathan Gingerich and Aditya Singh are conducting research on academic integrity and student evaluation in Indian law schools as Student Empirical Research Fellows with the Harvard Law School Program on the Legal Profession.  Additionally, Mr. Gingerich is a Ph.D. student in the Department of Philosophy at the University of California, Los Angeles, and Mr. Singh is a final year B.A.,LL.B. (Hons.) student at NALSAR University of Law, Hyderabad.  They may be contacted at indianlegaleducation@law.harvard.edu.

 

Case Notes – Fall 2010

abaindialawnews 2010 - Fall, ALL

Poorvi Chothani

 

FM Stations Pay Reduced Royalty to Broadcast Music

A long-standing revenue related dispute between FM radio stations and music labels, which had been pending before the Copyright Board, part of the Ministry of Human Resources Development, India, has been adjudicated. The Copyright Board passed an order in the matter of Music Broadcast Private Limited and Others v. Phonographic Performance Ltd., F.No.20-2/2001.CRB (WZ), where the applicant was granted a compulsory license under Section 31 (b) of the Copyright Act, 1957.

Phonographic Performance Ltd. (PPL) is a copyright society that administers the rights on behalf of about 137 recording companies. Several FM radio stations filed applications before the Copyright Board because the radio stations and PPL could not agree on the amount of royalty for use of PPL’s content. These applications were filed under Section 31 (1) (b) of the Copyright Act, 1957, which provides that the Copyright Board has the power to grant compulsory licenses when it finds that the owner(s) of published Indian works or of works that have been performed in public refuses to allow the communication or broadcast of the works to the public. Indian works include artistic works, cinematographic films, or a record made or manufactured in India, the author of which is a citizen of India. The Copyright Board is required to issue a notice to the owner of the work(s) refusing such access and, after conducting an inquiry, can require the Registrar of Copyrights to grant a compulsory license if it finds that the grounds of refusal are not reasonable. Such a license is on payment of fees that the Copyright Board prescribes.

The Copyright Board issued a directive (the Directive) to the Registrar of Copyright to grant to each of the nine applicants a compulsory license to PPL’s collection of music and requires FM stations to pay 2% of their net advertising revenues (total advertising income minus agency commission and government taxes) to music labels by way of royalty. Earlier FM radio stations had to pay Rs. 1,200 to 1,600 (approximately US$ 27 to US$ 36) per hour.

When assessing the compulsory license applications, the Copyright Board considered the profitability and revenue streams of the FM radio stations, the promotion of music by the radio stations, public interest, international standards and the terms of the license or Grant of Permission Agreement (the Agreement) between the Ministry of Information and Broadcasting, the Government of India and the radio stations among other things. The Agreement mandates that the FM radio stations will be “free to air” services and they cannot impose subscription fees on the public. When arriving at the revenue model, the Copyright Board also considered the interests of all the stakeholders in the matter including the public and the advertisers that use the medium of FM radio stations.

Importantly, the Directive could affect the royalty collections of other music owners who were not a party to the proceedings before the Copyright Board and might have a bearing on the rights of the owners of musical and lyrical works.

Are transactions involving the transfer of shares in offshore companies taxable in India if the underlying assets are located in India?

The international business community has been watching India anxiously for the outcome of what has been called the Vodafone case.  The issue was whether Indian tax authorities had jurisdiction over Vodafone’s acquisition by way of a transfer of shares of mobile phone operator Huchison Essar. In Vodafone International Holdings BV v. Union of India and Anr., MANU/MH/1040/2010, Vodafone International Holdings BV, a Netherlands entity, had acquired 100% shares in CGP (Holdings) Ltd, a Cayman Islands company from Hutchison Telecommunications International Ltd. for US $11.2 billion.

The Bombay High Court did recognize that the shares of the foreign company were located outside India but observed that the transfer of the attendant commercial rights situated in India would be subject to Indian tax.  There is some ambiguity about this as the decision suggests that the transfer of the shares per se, including the shareholder rights and controlling interest should be treated separately from the value of the commercial interest in India.

India currently does not have laws that tax the profits arising from the transfer of shares outside the country even if the underlying assets or properties are situated in India.  However, the Vodafone decision of the Bombay High Court changes the situation that might be further formalized as and when the Direct Taxes Code Bill, 2010 is passed, which is now pending before the Parliament, and which contains a provision that will tax the transferor of an offshore company’s shares outside India in proportion to the fair market value of assets located in India.  It is important to note that this rule will apply only when the fair market value of assets in India is more than 50% of the value of all assets owned by the offshore company.

In the meantime, the Vodafone ruling is likely to be challenged in the Supreme Court of India and if the apex court confirms the Bombay High Court judgment, it could have far-reaching ramifications with retrospective effect on certain large deals with similar transfer of shares in offshore companies.

Do parties to an investigation by the Competition Commission of India (CCI) have a right of appeal against every order of the CCI?

In Competition Commission of India v. Steel Authority of India Ltd. and Anr., MANU/SC/0690/2010, the Supreme Court of India on September 9, 2010 passed its first decision in a matter arising out of the Competition Act, 2002 (as amended) (the Competition Act) in an Appeal filed by the Competition Commission of India (CCI) against an order of the Competition Appellate Tribunal (COMPAT).  The Supreme Court of India ruled that parties to an investigation by the CCI do not have a right of appeal against every order of the CCI.

The matter before the CCI concerned an arrangement between Indian Railways and the Steel Authority of India Limited (SAIL) for the supply of rails to Indian Railways. SAIL is the exclusive supplier of rails to the railways.  Jindal Steel and Power Limited (JSPL) challenged this arrangement before the CCI as being anti-competitive.  The CCI initiated the process to establish whether there was any merit in the complaint as per its standard norms. On finding that there was some substance in the complaint the CCI referred the matter to its Director General (Investigations). Before the Director General could begin its investigations, SAIL filed an Appeal with COMPAT, challenging the order passed by the CCI requiring the Director General to investigate the exclusive arrangement, which stayed the investigation and ruled that the CCI need not be a party to the Appeal.

COMPAT allowed the Appeal on the basis that “any order, decision or direction of the CCI” was appealable under section 53A of the Competition Act and such right of appeal was not limited to the orders listed in section 53A. The Supreme Court found that COMPAT had erroneously interpreted section 53 A (1) of the Competition Act to find that it had jurisdiction to entertain Appeals against all directions or decisions of the CCI. The Supreme Court was also of the opinion that the CCI was expected to record some reasons as to the existence of a ‘prima facie’ case. The decision clearly defines COMPAT’s appellate powers and enables the CCI to conduct investigations without being embroiled in long drawn Appeal proceedings at each stage. The Apex Court further ruled that the CCI has to be a party to all Appeals before COMPAT as it must necessarily be involved in Appeals arising from its orders.

Can two different entities use the same trademark in India?

The Delhi High Court in Lowenbrau AG and Anr. v Jagpin Breweries Ltd. and Anr., 157 (2009) DLT 791, found that two owners of the same trademark can simultaneously use the trademark when they did so in other countries without being granted any preferential rights. Lowenbrau AG and In Bev India International Pvt. Ltd. (Lowenbrau Bev) filed a suit for permanent injunction, rendition of accounts, mandatory injunction in form of delivery against Jagpin Breweries Ltd. and Lowenbrau Butterheim (Jagpin Lowenbrau). Lowenbrau Bev claimed exclusive right to use the mark/word LOWENBRAU, device of lion or any other trade mark or device mark identical or deceptively similar to it.

The Delhi High Court observed that a mark, which was commonly used at one time, might in course of time become distinctive while on the other hand such a mark might lose its distinctiveness. Additionally, word or words used by a number of entities as part of their identity may be considered to be words in common use. Further, 100 years ago both the parties were in litigation in Germany, which ended when a German Court found that the LOWENBRAU mark couldn’t be monopolized, as there were a number of breweries in Germany that had been using the same mark without any dispute.

The Delhi High Court held that both the parties are Germans and have been marketing their products worldwide using the mark/word LOWENBRAU without any dispute.  As a result, the balance of convenience was not in favor of Lowenbrau Bev., for the reason that when both the parties could sell beer all over the world with the common mark or word LOWENBRAU, they could continue to do so in India too. Both companies’ products had other distinguishing features in their marks and labels to help consumers distinguish between the products.

Are business plans and boardroom discussions protected as Trade Secrets in India?

Boardroom discussions and business plans do not merit protection as trade secrets while proprietary software and manuals are eligible for trade secret protection.

In Bombay Dyeing and Manufacturing Co. Ltd. v. Mehar Karan Singh, MANU/MH/0955/2010, the Bombay High Court found that Mehar Karan Singh (Mr. Singh) had been appointed a whole time Director of the Bombay Dyeing Company (Bombay Dyeing) under an employment agreement dated August 22, 2005 for the period July 24, 2004 to July 23, 2009. Under this employment agreement, he agreed not to divulge or disclose confidential information of any nature. However, he divulged Bombay Dyeing’s information to its competitor. Mr. Singh had also exchanged several e-mails with the competitor containing information relating to Bombay Dyeing. According to Bombay Dyeing, the confidential information divulged by Mr. Singh included customized software for Bombay Dyeing’s real estate business and its manual as well as a Memorandum of Understanding and some business plans and strategies which were discussed in the board meeting of Bombay Dyeing. India does not have any specific law protecting trade secrets and parties are bound only by the contracts they enter into.

The Bombay High Court restrained Mr. Singh from divulging any information about the software and its manual prepared by Bombay Dyeing but refused to restrict Mr. Singh from disclosing Bombay Dyeing’s business plans discussed in the board meetings. The Bombay High Court found that boardroom discussions and strategic business plans are not eligible for protection as Trade Secrets, but proprietary software and software manuals were considered to be Trade Secrets.

Is the distributor of consumer products a necessary party when a complaint is filed before a consumer disputes redressal forum?

The Mumbai Suburban District Consumer Disputes Redressal Forum held that the manufacturer of a television set could not escape from its liability to a consumer even if the consumer who filed a complaint had not made the distributor, who sold the complainant the television, a party to the proceedings. The Court held that the complaint is not bad for “non-joinder” of parties.

The complainant, Mitesh Barot had purchased a Sansui television from Snehanjali Electronics, a distributor. The television malfunctioned within a month of purchasing it. The problem was reported to the dealer and the Sansui service center. Despite several attempts, the service center representatives were unable to solve the problem. Mr. Barot finally filed the complaint against Sansui Main Service Center but failed to file a complaint against Snehanjali Electronics, the distributor.  Mr. Barot was finally granted Rs. 10,000 as compensation for mental agony and hardship.

Does the export of books whose sale and distribution are subject to territorial restrictions amount to copyright infringement?

The Delhi High Court, in John Wiley  v. Prabhat Chander, 170 (2010) DLT 701, found that such exports violate the copyright laws of India in certain circumstances.

The plaintiffs were a group of international publishing houses that publish low price editions (LPEs) or low cost books to be used in schools and colleges in India.  The defendants included a company and its officers who sold books online, offering the plaintiffs’ LPEs to buyers all around the world in contravention of the territorial notice on the books.

The court did not agree with the defendant’s arguments based on an earlier decision in Warner Bros v. Santosh VG, 2009 (2) MIPR 175 (Del) that India follows the principles of the “first sale doctrine” applicable to literary works whereby literary works that are already in circulation cannot be controlled by the copyright owners. The court also disagreed with the defendant’s argument that India follows the principle of international exhaustion whereby the copyright owner exhausts its rights once the LPEs are first sold into India. The defendants presented another argument that the Copyright Act, 1957 only applied to the import of infringing goods but not the export of copyright protected goods.  However, this argument also did not hold.

The Delhi High Court found that the Copyright Act, 1957 grants to the copyright owner the right to exploit copyrights by way of assignment or licensing, which could be exclusive or non-exclusive.  The copyright owner also had the right to limit the assignment or license by time or territory.   As a result the copyright owner could exhaust his or her rights in some territories while retaining rights in others.  Hence, the plaintiffs in this case were prevented from selling and exporting the LPEs to territories where the plaintiffs’ rights of distribution and sale still subsist.

Legal Notes

Can Service Marks be registered in India?

In India, the Trade Marks Act, 1999 for the first time introduced service marks so as to bring the Indian trademark law in line with TRIPS, which contemplates registration of service marks for services in addition to trademarks for goods. India has been following the international classification of goods and services under the Nice Agreement and the same is incorporated in the Fourth Schedule to the erstwhile Trade and Merchandise Marks Rules, 1959 and now Trade Marks Rules, 2002. The Fourth Schedule has recently been amended vide a notification dated May 20, 2010 to include three additional classes of services to the pre-existing ones, thereby raising the total number of classes to 45. The Amendment also modifies the existing class 42 and adds the following additional classes to the list of existing class of services: (a) Scientific and technological services and research and design relating thereto; (b) industrial analysis and research services; design and development of computer hardware and software; (c) Services for providing food and drink; temporary accommodation; Medical services, veterinary services, hygienic and beauty care for human beings or animals; agriculture, horticulture and forestry services and (d) Legal services; security services for the protection of property and individuals; personal and social services rendered by others to meet the needs of individuals.

 

Poorvi Chothani, Esq. is the founder and managing partner of LawQuest, a law firm in Mumbai, India. She is admitted to the New York State Bar with an LL.M from the University of Pennsylvania, USA, and is registered as a Solicitor in England and Wales. Poorvi has been practicing law in India since 1984 and is admitted to the Bar Council of Maharashtra and Goa. She can be reached at  poorvi@lawquestinternational.com.

Establishing India’s First Global Law School: Challenges and Opportunities

abaindialawnews 2010 - Fall, ALL

C. Raj Kumar & Jonathan Burton-MacLeod

O.P. Jindal Global University (JGU) is a non-profit university established by the Haryana Private Universities (Second Amendment) Act, 2009 at Sonipat, Haryana (National Capital Region of Delhi). JGU is recognized by the University Grants Commission (UGC).  Jindal Global Law School (JGLS) has been recognized by the Bar Council of India (BCI).

To the uninitiated, the inclusion of JGU and JGLS’ credentials at the beginning of all promotional materials and university publications seems a marketing faux pas. Should not JGLS trumpet its elite faculty profiles, with professors holding both Indian and foreign law degrees from some of the world’s leading educational institutions?

Readers of the India Law News (ILN) are a self-selecting group, and it is likely that they understand both the necessity of, and the effort required, to attain the highest possible regulatory credentials. JGU, and with it, JGLS, is an ambitious new entrant into the Indian – and indeed global – academic scene. Nevertheless, as this essay will elicit, JGU and JGLS were established with a very deliberate eye towards both Indian and global contexts. After all, unlike leading institutions worldwide – Harvard, Yale, Stanford – private universities traditionally have been looked down upon in India, and have been held responsible for the lowering of academic standards in a push for profit margins. Yet, as will be argued below, private universities – run not for profit but for excellence – are essential to the creation of new conditions for global and interdisciplinary study, as well as an emphasis on research that creates knowledge and contributes to the resolving of pressing societal problems.

Each word of the introduction to JGU and JGLS, then, carries import not readily perceived outside the Indian context.  JGU’s non-profit status, statutory establishment, and the recognition conferred by the UGC and the BCI, all showcase JGU as being held to the highest of standards, acting as an empirical response to those dubious of JGU’s vision and credentials. Equally impressive, however, is the mammoth effort necessary for this portfolio of legislative and regulatory credentials. Anyone who is familiar with India will tell you that, for all its potential, India can be a bureaucratic nightmare. From foreign persons registration to acquiring a driver’s license, Indian systems of governance can confound and confuse.

It never fails to amaze visitors that, as hard as it is to navigate India, a global university with a USD $100 million dollar infrastructure and complete statutory backing could be established in the space of two years.  Yet the impossibilities posed by India’s bureaucratic structure exist dialectically and inexplicably with an ability to –  with incredible effort, passion, and persistence – achieve what in other contexts would be considered impossible.  The perplexities of India exist in parallel with its irresistible trajectory; a trajectory not simply due to the eight-plus percent GDP growth, but to India’s emerging position as a key player and potential bridge builder on international issues ranging from trade and development to carbon caps to human rights.

In an article on globalization and legal education for Halsbury’s Law, a LexisNexis publication, C. Raj Kumar, JGU’s Vice Chancellor, argued that the establishment of global universities of excellence has the potential to create new opportunities for growth and development in the knowledge sector, a key component for India’s ascendency, economically or otherwise.

It remains a double-edged reality that India has long been an exporter of its greatest asset – thinkers that have changed the way we view the world,  many of whom find seats in leading universities abroad. JGLS seeks ultimately to ameliorate this trend through the establishment of a research-driven, globally ambitious, institution in India. The future of higher education in India is hugely dependent on the role of the private sector and to what extent the regulatory policies in higher education favor the role of this sector.

If this is true, it is necessary to recognize that governments in developing countries like India are not in a position to wholly support the significant levels of financial commitments needed to establish and sustain reputed institutions of higher learning. In this context, the role of the private sector is indispensible.

Yet, as was previously alluded to, privatized higher education in India has been traditionally viewed with immense distrust.  While in other sectors, such as telecom, the privatization of services resulted in increased quality and decreased pricing, in the educational sector, the opposite has been the case.  Largely unregulated degree programs have taken advantage of the huge demand for undergraduate and postgraduate study.

While globalization has created new opportunities for promoting growth and development in education, the focus of this growth ought to be based on the principles of public service that is essential for achieving reforms in education, rather than profit-seeking. It is notable that most of the reputed universities in the United States are the products of private players with a common motto that has been adopted by JGU: “a private university in the public service.”

There is no doubt that the emergence of a private, global entity like JGU rides on the coattails of visionary developments in the context of public higher education. The establishment of national law schools, starting with the National Law School of India University (NLSIU) in Bangalore, successfully challenged institutionalised mediocrity and succeeded in attracting serious students to the study of law. But where these schools face significant challenges is in attracting faculty members who are top researchers in the field of law and can combine sound teaching methods with established track records of research. The lack of researchers in law and absence of due emphasis on research and publications in the existing law schools have led to the absence of an intellectually vibrant academic environment

In August 2006, Newsweek magazine ranked the top 100 global universities taking into account openness and diversity, as well as distinction in research. The list included: Harvard, Stanford, and Yale in that order and Cambridge, Oxford, MIT and Columbia were among the top 10 global universities. While rankings have their flaws, it is notable that there was not a single university from South Asia among the top 100.  What is insightful is that the ranking criteria – beyond faculty-student ratio and library holdings – related to a string of research-based criteria, such as the citations per faculty member, the number of articles listed on leading academic databases, re-emphasizing research as a core area of deficiency for many South Asian institutions.  The other notable factor was diversity levels amongst faculty and students, or the number of international faculty and the percentage of international students.

Hiring good faculty has been a challenge in law schools in India and abroad. Generally, the financial incentives offered by the private sector both in India and abroad are far more attractive than those available in the public sector, including law schools, for good lawyers to make a commitment to academia. Even at elite law schools in India, the pay rates and heavy teaching loads can prove a disincentive to long-term research.

JGLS has attempted to incentivize research – financially and within its internal promotion scheme – in benchmark with leading institutions worldwide. JGLS Faculty receives generous paid conference leave, summer research leave, allocated funds for conference expenditure, and financial bonuses for the publication of ranked articles. Most importantly, however, JGLS seeks to foster a research culture.

To that end, eleven research centers have been established.  Research centers are part of the landscape for any leading research university. They are, however, seldom so integrated into the fabric of a university. At JGLS and JGU, this approach has been adopted for several overlapping reasons. Research centers provide the institutional framework to develop collaborative research projects with select Indian and foreign partners. True to its global name and vision, research centers at JGLS aim to generate global networks of minds addressing pressing legal and policy questions for India, and the world.

Secondly, no other university in India, and few globally, have centers that are intended to cover such a large range of pressing research topics. The establishment of JGLS’ eleven research centers is seen as a stand against the scarcity of academic contribution to many of India’s contemporary challenges. Simultaneously, the establishment of these centers represent a stand in favor of new, more globally considered, perspectives on these issues.

JGU is made possible by the private philanthropic initiative of Mr. Naveen Jindal, industrialist, Parliamentarian and now the Founding Chancellor of JGU. Mr. Jindal’s contribution is unprecedented within India’s educational sphere.  It is this philanthropic donation that has allowed JGLS to hire (to date) twenty-three faculty with world class teaching backgrounds and research credentials.  Almost all faculty members hold foreign law degrees in addition to training in India’s elite schools.  Almost fifty percent are foreign trained academics who have been swept up in the vision of JGLS and of India. JGU retains a faculty-student ratio of 1:15.

Just as importantly, JGLS is embedded within the larger JGU context. This is unique for leading law schools in India, and is intended to encourage interdisciplinary and holistic inquiry into a range of pressing policy problems facing contemporary India. JGU established a research-intensive and multidisciplinary global business school, Jindal Global Business School (JGBS) in August of 2010. The full blue print for JGU is to have four schools that reflect the most pressing needs for an emerging India, with schools of Public Policy and International Affairs joining JGLS and JGBS.

As a prototype global law school, JGLS aspires to develop a think tank model where research relationships are established with leading institutions worldwide on pressing transnational, development, and Global South issues.  In the first two years of the institution, there has been evidence of incredible eagerness to collaborate with JGLS. Perhaps belatedly, institutions in the U.S. and other jurisdictions are recognizing that, while they may have robust China Studies Centers, they do not have the same access or understanding to the Indian context.

Seizing this opportunity, over the course of the 2010-2011 Academic Year, JGLS has scheduled joint conferences with Yale, Cornell, Michigan, Osgoode Hall, and the Australian National University on topics as diverse as comparative law and governance in India and the U.S. to a critical perspective on global feminism. And, in August 2009, the JGLS hosted a landmark conference with the Indiana University Maurer School of Law, where the inaugural issue of the Jindal Global Law Review was launched.  (The JGLS and Indiana have maintained close ties since and will be building upon this deep relationship in the near future.)

India, and with it JGLS, exists at a set of incredible cross-roads – the Global North and Global South, Emerged and Emerging economies, wealth and extreme poverty, and a shifting balance of geopolitical power. JGLS aspires to build and to host a network that connects civil society participants, leading law firms, and foreign institutions of excellence, with Indian Government Departments, to assist in the formulation of policy that enhances an emerging India. JGLS, together with the University of Cambridge, has already been awarded a contract from the Government of India for the training of senior Indian Police Services officers.  On a different front, JGLS has entered into Memorandums of Understanding with India’s top five ranked law firms. JGLS is a unique institution for a unique time.  The beauty of it, perhaps, is that JGLS represents an initiative that is not limited by its own resources. By building a global network, JGLS seeks to lead in India’s knowledge economy, providing a link between an emerging India and the world.  There is another sentence that makes it into all JGLS materials. Ambitious as it might be, it represents the vision of both JGLS and JGU as a whole: “The vision of JGU is to promote global programmes, global curriculum, global research, global collaborations, and global interaction through a global faculty.”  As such, JGLS pursues a global research agenda for India.

C. Raj Kumar received his LL.B. in Delhi, a B.C.L. from Oxford, and his LL.M. from Harvard.  He is Vice Chancellor, O.P. Jindal Global University; Dean, Jindal Global Law School; Member, National Legal Knowledge Council.  He can be contacted at crk@jgu.edu.in.

Jonathan Burton-MacLeod received his A.B. from Harvard, a J.D. from Queen’s, and his LL.M. from Harvard.  He is Assistant Professor & Assistant Dean (Research and International Collaborations), Jindal Global Law School, O.P. Jindal Global University, and can be contacted at jmacleod@jgu.edu.in.