HSP Project: History of Legal Education in India
HSP Project: History of Legal Education in India
HSP Project: History of Legal Education in India
History of Legal
Education in
India
Mohammed Ziyad R.V
610
IInd Semester
CONTENTS
Acknowledgements………………………………………………..3
Bibliography………………………………………………………...22
Acknowledgement
First of all I would like to thank almighty god for all the blessings he has given us. Secondly I
would like to thank my parents and sisters for their support. I would also like to thank My HSP
professor Jacob Joseph for having given me this informative topic. Fourthly I would like to
thank the librarian for his invaluable support .Last but not the least I would like to thank my
friends for their help .
History of Legal Education in India:
Introduction:
History of legal education in a democratic society cannot be over emphasized. Knowledge of law
increases one understands of public affairs. Concept of ‘Dharma’ in Vedic period also includes
dispensation of justice by King who acquired specific legal knowledge. There was a time in the
human evolution when law was a part of ethics and religion, of morals and values, of philosophy
and consciousness. Ancient civilization particularly that of India, conceived a legal order based
on the compendious Sanskrit expression “Dharma”. The role of ethics and philosophy in
explaining social problems and giving directions for social action is not adequately appreciated
today. However, in making and interpreting law, no society can afford to ignore Ethics. One can
say that law is an applied ethics. No civilized society can be structured without developing its
moral fibre and consciousness either through law, religion, education or other instruments of
social control. The gurushishya parampara has existed ever since Vedic era making education an
integral part of human development. It is education which ultimately results in shaping or
transforming the whole society in to human civilization. Spiritually, it is believed that the life on
the earth is regulated by the laws of the Lord or the Divinity. It is 'Rule of Law', that draws the
essential difference between human society and animal world. It is the legal education that plays
a pompous role in promoting social justice. Education or awareness of laws, characterize the
lawyers as 'Social engineers'.
A study of history reveals that in modern times shows that it is intellectuals alone who can give
leadership to the nations. We can find that it was the lawyers who gave leadership to most
nations. For example, during the great American Revolution of 1776, most of the American
leaders were lawyers e.g. Thomas Jefferson, John Adams, James Madison etc. In the great
French Revolution of 1789, about two-thirds of the members of the French National Assembly
were lawyers, e.g. Robespierre, Danton etc. In the American Civil War of 1861-65, the American
President who led the nation to victory over slavery was a lawyer-Abraham Lincoln. In the
Russian Revolution of 1917, the leader of Russia was Lenin who was a lawyer. In our own
independence Struggle, most of the leaders during that period were lawyers e.g. Mahatma
Gandhi, Motilal Nehru, Jawaharlal Nehru, Sardar Patel, CR Dass, Dr. Rajendra Prasad, Rajaji
etc. The lawyers who gave leadership to the nations and not doctors or engineers or teachers or
other professionals because of the reason those lawyers are intimately connected to the Society.
Doctors deals with medical problems, engineers deals with technical problems, teachers deals
with academic matters etc, but it is lawyers who deals with the entire society.
In modern India legal education came in to existence in 1885. Numerous committees were
foamed to consider and propose reforms in legal education. Constitution of India basically laid
down the duty of imparting legal education. Advocates’ Act, 1961 which brought uniformity in
legal system. In the changed scenario the additional roles envisaged are that of policy planner,
business advisor, negotiator of any interested groups etc. In the Era of Globalisation legal system
in India include catering the needs of new brand consumers or clients namely foreign companies,
collaborators etc. Strengthening our legal education system is need to face the new challenges.
Imparting of legal education has always been considered as one to the noblest profession. Legal
education which is part of general education cannot be viewed in isolation. Today, legal
education derives its impetus from the economic, social and economic and political set up of the
society.
Significance of Legal Education
'Law is the cement of society and an essential medium of change'. The significance of legal
education in a democratic society cannot be over-emphasized. Knowledge of law increases one
understands of public affairs. Its study promotes accuracy of the expression, facility in arguments
and skill in interpreting the written words, as well as some understanding of social values. It is
pivotal duty of everyone to know the law. Ignorance of law is not innocence but a sin which
cannot be excused. Thus, legal education is imperative not only to produce good lawyers but also
to create cultured law abiding citizens, who are inculcated with concepts of human values and
human rights. We must have a legal education which can fulfill the need of the society and
country as well. We are no longer laissez-faire but a welfare State and in welfare society law
plays a very important role in every affair of human being. Law serves as an important
instrument to achieve socio-economic development1. Today law is not viewed merely as an
instrument of social control but also an instrument of social change. The aim of legal education
should be not only to produce good lawyers but also create cultured, law abiding citizens who
are inculcated with concepts of human values and human rights who can serve humanity in
various capacities such as, administrators, law teachers, jurists, judges, and industrial
entrepreneurs etc. As far as creation of good advocates and solicitors is concerned, the legal
education should aim at equipping them with legal techniques and professional skills. An
Advocate must be tolerant, must listen patiently other man’s point of view and not hazard
opinions without some basis. He should be rational, secular keeper, willing to work hard,
competent to communicate having good expression, must have critical understanding of human
institutions and values. Legal profession is objectively in the position of producing Statesmen.
This is due to two reasons
(1) Lawyers belong to an independent profession. They are not subordinate to the government or
to anyone else.
(2) They are directly in contact with society in its entirety as they have to deal with all kinds of
problems of people from all sections of society, unlike say, doctors who are confined to technical
1
Maxwell Cohen, ‘Condition of Legal Education in Canada”, 28 Canadian Bar Review, (1950) p.249 referred in Legal
Education in India: Some suggestions AIR 1999 Journal 168 at p.169
problems. Hence lawyers are the people who are most conversant with the problems of society as
a whole.
A well administered and socially relevant legal education is a sine qua non for a proper
dispensation of justice. Giving legal education a human face would create cultured law abiding
citizens who are able to serve as professionals and not merely as business men.
The quality and standard of legal education acquired at the law school is reflected through the
standard of Bar and Bench and consequently affects the legal system. The primary focus of law
schools should be to identify the various skills that define a lawyer and then train and equip its
students with requirements of the field of law.
History of Legal Education:An Overview
Legal historians record instances of legal practitioners indigenously known as ‘Pleaders’ or
‘Niyogis’ representing parties in litigation at least from the time of Manu Smriti. There are
difference of opinion on the exact role these ‘lawyer’ played in ancient times and whether they
aware at all organized as a profession. Legal system in India is the natural outcome of its deep
roots in ancient Indian traditions. It has existed in India from the dawn of Aryan civilization2.
But there are different viewpoints in the matter of legal education in ancient India. Dr.Kane
quotes Sukraniti 3 to say that a person appointed to represent a party should get as his wage 1/16,
1/20, 1/40, 1/80, 1/60 part of the amount in dispute. K.P.Jayaswal observes that professional
lawyers existed in India at least from the Manu Smriti. According to Dr.Kane, a person well
versed in Dharma Shastra and procedure of law could be appointed as the representative. The
King should punish any representative who took wages without having these qualifications.
According to P.V.Kane there could be some people who represented others in the Kings Court,
but the opinions of such legal experts were not binding on the King.4
2
F.E.Keay ,Ancient Indian Education,(1986) P.Preface ,Para I
3
Sukraniti IV 5, pp.114-117
4
Kane ,P.V ., op.cit., also see K.L Sharma ,”Legal Education in India”
Legal Education in Ancient India
In ancient India law was understood as a branch of Dharma. It is difficult to draw a distinction
between secular law and religious ordinances in Ancient India5. The Vedas were the original
sources of law, and the Smritis announced the message of Vedas and Smritikars were great
jurists. Smritikars, commentators and Nibandhakars [essayists] were the legal guardians of law.
King made laws were also interpreted, thus, the commentators were virtually law-makers.
Sadachara, custom, Nyaya or Yukti were the base of legal process in Ancient India. The King
was advised by a Sabha which had both advisory and executive functions. The parishad was an
expert committee comprised of ministers of officials, generally Brahmans, who advised the King
authoritatively on law.6
The concept of dharma, in the Vedic period, can be seen as the concept of the legal education in
India. Although there is no record of formal training in law, the dispensation of justice was to be
done by the king on the basis of a self-acquired training. Justice was also administered by the
King through his appointees who in turn were persons of known integrity and reputation of being
fair and impartial. The guiding force for the King or his appointee was the upholding of the
Dharma.
5
S.K.Sharma, “Legal Profession in India” Sociology of Law and legal Profession, Ed.(1984) p.43 and also see
P.V.Kane, “History of Dahrmasatras,6 volumns, Poona, 1930-62
6
Derret J Duncan.M., “Essays in Classical and Modern Hindu Law
Legal Education In Muslim India
Jurisprudence is believed to be derived from the quranic Law (the Sharia ) and is therefore
regarded as immutable by any human institution .It appeared to have been drawn from two
sources, the Quran and the sunna which consist of the traditions revealed to explain the Quran.
The various schools of Muslim or jurisprudence grew up in later times according as they
attached importance to the different elements of the fight. The legal system in Muslim India,as
compared to ancient period was less elaborate and was confined mainly to the towns. There was
great divergence between theory and practice. In theory, sovereign was the fountain head of
justice possessing unlimited scope and authority over all sorts of causes and disputes wherever
and in which ever community they might occur. But in actual the jurisdiction of the state system
of justice was very much restricted. In matters like religious and communal the parties were
allowed full freedom to have their causes tried by religious and communal courts. But in addition
to these the village panchayats were allowed to continue in full enjoyment of their ancient
powers of deciding all disputes occurring in the villages, excepting cases of very serious crime,
such as murder or organized robbery. If the village jury failed to give satisfaction to either party,
the latter could prefer an appeal in the government court of the quasi.
The most typical and definite opinion in this respect is that of Sir Jadunath Sarkar, viz that “The
main defect of the department of law and justice was that there was no system, no organization
of the law courts in a regular gradation from the highest to the lowest , nor any proper
distribution of courts in proportion to the area to be served under them” .but it is curious that
above statement is followed up with the following comments .Every provincial capital had quazi
. appointed by the supreme qazi of the empire (the quazi-ul-quzat ); but there were no lower or
primary courts under him , and therefore no provincial courts of appeal7 .A qazi was also posted
to every large town and seat of a faujdar .The smaller towns and all the villagers had no quazi of
their own ,but any plaintiff living in them ,….could carry his suit to the qazi of the neighboring
town in whose jurisdiction they law. .The qazi was the chief judge in criminal suits , and tried
them according to Muslim law . Assisted by the mufti, who consulted the old Arabic book on
jurisprudence and stated the abstract law bearing on the case , the qazi pronounced the sentence.
7
History of Legal Education in India : Sushma gupta
It is observed that during the Sultanate and Mughal periods , lawyers were not employed in local
and often informal courts .But it is recently observed by some jurists that there were people who
performed some of the functions of modern lawyers .No doubt , the activities of their legal
representatives were not as well defined in Mughal and Pre-Mughal periods as they were to
defined in the British period . H.H Wilson defined Wakil as ,: A person invested with the
authority to act for another , an ambassador , a representative .an agent an attorney ,his job was
to negotiate with equals or superiors of his employer ini order to obtain a desired goal , such as
trading privileges , a reduction of the revenue demand , a military alliance , or a favorable
decision in a civil or criminal court of law .the most important land holders and foreign trading
companies employed wakils , whose job was to attend the court of the emperor in order ro
collect information that might be useful , as well as to represent the interests of their employers
when dispute arises .
At the time of Aurangzeb , it was decided by the government that Government should employ
above said so called wakils to represent its own interests . it is observed from the observations of
Khafi Khan ,” a Wakil - I –Shar’sai for the emperor ‘ Alamgir was appointed in every city and
Subah , and in other areas , so that he might sit together with the Qazi in the Court of justice .If
necessary the opinion of the wakils are taken into consideration before the verdict is given .The
appointment of Wakils continued in mid 18th century .Their duty as it appeared was to conduct
suits on behalf of the governments and to act as legal advisors to the poor .Thus it is evident from
the study of Mughal period , that during that time ,there were some very specialized legal
practioners in that period in india .What is true that the Wakil operated within a wider
framework as representative and bargainers of their clients.
Legal Education in British India
Britishers came to this country for the purpose of trade, which they started through a company
popularly known as East India Company formed in 1600 in England. In the beginning the courts
were presided by merchants who were having very rudimentary knowledge of law, but later on
legally trained persons were put for the job.
First British court was established in Bombay in 1672 by Governor Gerald Angier. The first
Attorney General appointed by Governor was George Wilcox who was acquainted with legal
business and particularly in the administration of estates of deceased persons and granting of
probate. He made provision for parties to be represented by attorneys and fixed the counsel fee a
little more than Re.one. First concrete step in the direction of organising legal profession was
taken through Regulating Act of 1773 which empowered to enrol advocates and Attorneys-at-
law to the Supreme Court. The Supreme Court was established in Fort William in Bengal
through a charter issued in 1774. At that time Indian Lawyers had no right to appearance in the
Courts. The position was same when the Supreme Courts with the same jurisdiction and power
were established at Bombay and Madras later. The Bengal Regulation VII of 1793 which created
for the first time a regular legal profession for the company’s courts, which allowed the
appointment of Vakils or native pleaders in the courts of civil judicature in the provinces of
Bengal, Bihar and Orissa. In 1861 three High Courts were established at Calcutta, Madras and
Bombay. At this time three bodies of practitioners viz, advocates, Attorneys and Vakils were in
existence. Advocates were the barristers of England or Ireland but the Vakils were Indian
Practioners. According to Clause 19 of Letters Patent 1865 of the High Court of Calcutta
empowered the court to approve, admit and enrol such and so many Advocates, Attorneys and
Vakils as the High Court shall deem fit. As already state Supreme Court not allowed but High
Courts were allowed them which increased the prestige of Indian Lawyers. Legal Practioners
Act, 1879, provided for enrolment to only those practioners who had taken LL.B degree from
Indian Universities. Under Section 41, the High Court could dismiss any advocate or suspend
him from practice by giving an opportunity to defend him. Bar Councils Act, 1926 unified two
grades of legal practioners, the Vakils and Pleaders, by merging them in the class of advocates. It
also provided for making rules for giving facilities of legal education and training.
The pattern of legal education which is in vogue in India was transplanted by the English; after
the establishment of their rule in India. Formal legal education in India came into existence in
1855 when the first professorship of law was established at the Government Ephistone College in
Bombay and Madras and Hindu College at Calcutta. At that time the primary aim of legal
education was to equip law students so that they could help the lower courts and the High Courts
in the administration of justice by enrolling themselves as Vakils or becoming judicial officers,
and thus serve the interests of the Administration.[iv]As majority of the population was rural and
illiterate, the need was felt to bridge the gap between the existing law and the uneducated masses
crying for justice, by rendering importance to formal legal education. Initially a law school had
to be a self – financing institution, and if possible a money making concern so that it could feed
the teaching of other disciplines in the University. There is no tradition of legal research and
academic legal training. In the year, 1857 legal education was introduced as a subject for
teaching in three universities in the presidency towns of Calcutta, Madras and Bombay. Thus, a
beginning of the formal legal education was made in the sub-continent. The language of the
British statutes being English, so any Indian who learnt English could study law and was
considered qualified to practice the profession. At that time law classes were attached with arts
colleges. However, if one aspired to something higher, he could go to England and join the Inns
court, provided one could afford it.
For almost a century from 1857 to 1957 a stereotyped system of teaching compulsory subjects
under a straight lecture method and the two year course continued. The need for upgrading legal
education has been felt for long. Numerous committees were set up periodically to consider and
propose reforms in legal education such as
• In the year 1949 the Bombay Legal Education Committee was set up to promote legal
education. The All India Bar Committee made certain recommendations in 1951.
• In 1954, XIVth [14th] Report the Law Commission (Setalvad Commission) of India
discussed the status of legal education and recognized the need for reform in the system of legal
education and made certain recommendations.
1. Only graduates should be eligible for legal studies.
2. The theory and principles of law should be taught in the law schools and the procedural law
and the law of practical character should be taught by the Bar Council.
3. The university course should be for two years and the Bar Council training should be for
one year.
6. All India Bar Council should be empowered to ascertain whether law colleges maintain the
requisite minimum standards and should be empowered to refuse recognition for law colleges.
The recommendations accepted by All India Law Conference [1959] and also the All India Law
Teachers Association. After the year 1961 the Bar Council of India was empowered to lay down
standards of Indian Legal education. In 1967 this body established a uniform three years LL .B
Course with annual examinations and prescribed compulsory and optional subjects to be taught
at LL.B level. Most of these subjects were traditional topics and there is no guidance relating to
curriculum planning.
It depicted a very gloomy picture of legal education. It was only from 1958 that many
universities switched over to three year law degree courses. It was only by 1967, that it became
onerous task for the three year law colleges to include procedural subjects into the curriculum of
their law school.
Historical Background of Legal Education
in Independent India
With the Independence the situation has completely changed. In 1950 we gave ourselves
democratic foam of government. The rule of law became the foundational doctrine. It is also
clear that a polity based on rule of law would require a legal profession sufficiently skilled and
possessing knowledge of laws and their principles in order to maintain and preserve the legal
system.
The Advocates’ Act, enacted in 1961, became the focal point of the legal education system
presently in existence. The Bar Council of India Rules, inducted under The Advocates’ Act
1961, lays down the curriculum for imparting legal education throughout India and these said
Bar Council of India Rules have been governing the procedural aspects of legal education,
including, but not restricted to, the subjects to be taught, mode of examination to be conducted,
the various Degrees to be conferred on successful students and the like. It was only in 1967 that
it became the burdensome task of the three year law colleges to include procedural subjects into
the curriculum of their law school. The monologue lecture scheme adopted in law schools, where
practical training is either totally neglected or marginally implemented at the level of Moot
Courts, Court visits and legal research will not make good lawyers in today’s scheme of legal
education.
Rules on Legal Education, which were incorporated into the pre-existing regulations, have been
amended from time to time. There were demands for a consolidated latest version of the Rules
under Part IV on standards of Legal Education and Recognition of Degrees in Law for admission
as Advocates from Universities and Colleges teaching Law in the Country. In response to
popular demand, the Bar Council of India published the Rules in its final shape as applicable
from 30 November 1998.
The minimum qualification for being an advocate is an LLB Degree, generally a three year
course, which can be obtained after graduation in other disciplines. A debate as to its efficacy in
the recent past led to a proposal of a five year integrated course after an intermediate (10+2)
examination (from 1st class to 12th class - total period of 12 years of study). The three year
course itself came to be restructured into a semestered system and several papers came to be
included and excluded as per the Bar Council Guidelines. Hence, the Council today allows both
the 3 year course and 5 year course to continue. The Advocates’ Act, enacted in 1961, became
the focal point of the legal education system presently in existence. The Bar Council of India
Rules, inducted under The Advocates’ Act 1961, lays down the curriculum for imparting legal
education throughout India and these said Bar Council of India Rules have been governing the
procedural aspects of legal education, including, but not restricted to, the subjects to be taught,
mode of examination to be conducted, the various Degrees to be conferred on successful students
and the like. It was only in 1967 that it became the onerous task of the three year law colleges to
include procedural subjects into the curriculum of their law school. The monologue lecture
scheme adopted in law schools, where practical training is either totally neglected or marginally
implemented at the level of Moot Courts, Court visits and legal research will not make good
lawyers in today’s scheme of legal education.
Agencies Regulating Legal Education
The Constitution of India basically laid down the duty of imparting education on the states by
putting the matter pertaining to education in List II of the Seventh Schedule. But it now forms
part of List III, giving concurrent legislative powers to the Union and the States. Legal
profession along with the medical and other professions also falls under List III (Entry 26).
However, the Union is empowered to co-ordinate and determine standards in institutions for
higher education or research and scientific and technical institutions besides having exclusive
power, inter alia, pertaining to educational institutions of national importance, professional,
vocational or technical training and promotion of special studies or research.
Roscoe Pound directed to particular attention new aspect of the lawyers’ role in modern society.
He said that the worldwide economic unification is challenging the self sufficiency n the systems
of law. He pointed out that law transcended local and political limits and has become an
economic necessity. He said “Even more the development of industry carried on with
instrumentalities and under conditions increasingly dangerous to life and limb and under
conditions creating ecological problems and the mechanizing of every activity of life likewise
threatening injury to everyone, have been creating new legal problems calling for revision of the
old doctrines and finding out a new means of promoting and maintaining a general
security......thus the science of law must be increasingly comparative. Whether we are dreaming
of a world law or thinking of further development of our own law, to suit to the worldwide
problems of general security in the present and immediate future, the methods of jurist must have
a base of comparison. Comparative law and international law have achieved such vital
importance in current life that they have become an essential part of legal education. The lawyer
of today has to play a role in influencing world policies and building up the future of mankind.”8
8
Legal Education in India: Some Suggestions, Dr.K.P.Singh, AIR 1999 Journal 168 at p.169
How should the legal profession and legal education respond to the new challenges? Never
before in history has the need for sound thinking and planning on all issues been felt so intensely
as today. Unless the topics of universal application are integrated into legal education in
developing countries, our lawyers and those of other countries would not be able to compete in
the transnational marketplace. In the present day, an innovative programme of integrated
interdisciplinary legal learning and in the new areas such as Comparative Law, information
technology, intellectual property, corporate governance, human rights, environment, and
international trade law, investment, and commerce, transfer of technology, alternative dispute
resolution and space is important. Comparative Legal education for professional excellence is
needed in these and other areas on a global basis.
The world's problems require international co-operation and solutions, especially after the
initiation of the liberalization and globalization process in today's world of increasing
international trade and inter-dependence. The recent trend is that most of the agreements are
construed internationally and the member countries are obliged to implement them at the
domestic level. It is necessary for lawyers to understand the political, cultural and social
influences on the legal systems of other countries and, by using that knowledge, to forge strong
relationships between parties. Some observations of David Gerber are apposite in this context.
For instance, Gerber calls for greater attention to theory in the broad sense of conceptual
structure, because theories are the mechanisms for structuring information and knowledge
effectively. The object of the entire exercise is to structure knowledge about foreign legal
systems. Analogous to this viewpoint is the model suggested by Ugo Mattei. He argues for a
classification of legal systems, which he refers to as taxonomy of legal systems for the purpose
of learning from each other by rethinking the traditional boundaries drawn in the context of
changing nature of global politics. This situation necessitates revisiting the classic categorization
of legal systems as civil, common and socialist.
For a new beginning, one has to think within the paradigm of change and bring to the forefront
the need for developing new approaches to the ongoing challenges posed by globalization, which
should be prioritized in the framework of legal education in a country such as India, in order to
cope with the current and future pressures.
Bibliography
www.Vakilno1.com
www.google.com
History of Legal education in India Sushma gupta
Strippedlaw .com
Legal Profession in India K.L Sharma