Legal Education in India

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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Writing Requirements, Student Assessment and Plagiarism in Indian Law Schools

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.

 

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

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.