The Hindu : Opinion / Leader Page Articles : Rule of law and legal education

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Tuesday, Jul 04, 2006

Opinion

Opinion - Leader Page Articles

Rule of law and legal education

C. Raj Kumar

Law schools ought to create greater opportunities for research on issues relating to law and justice that affect Indian society.

THE FOUNDATIONS of the rule of law in India can be traced back to ancient times. In more recent times, common law traditions, the Constitution of India, and the pursuant role of the judiciary have contributed to the development of rule of law. But when it comes to enforcement, there is much to be desired. Blatant violation of law is a reality in India, and hence there is a need to seriously work towards establishing a law-abiding society. The rule of law is protected only when there is a fairly predicable legal system that responds to needs and problems in a fair, non-discriminatory, and effective manner, and there is access to justice. The problem of enforcement of laws attacks the very basis of democracy in India, and the time has come to tackle it in a systematic manner. While there is no single solution, it is important to recognise that initiatives should primarily be intended to inculcate a respect for law among the Indian citizenry. This means all legal, institutional, judicial, and constitutional measures to ensure the rule of law should be oriented towards inculcating a respect for law on the basis of the belief that it will be enforced equally and fairly.

Legal education has an important role to play in the establishment of law-abiding society. Excellence in legal education and research is extremely important, because it will help shape the quality of the rule of law. In this connection, some issues deserve serious attention.

An academic culture that promotes research. Law schools in India ought to create greater opportunities for faculty and students to undertake original and serious research on issues relating to law and justice that affect Indian society. They should create a proper research environment that enables scholars to identify issues that serve as an impediment to the efficient and effective administration of justice. This is possible through a comprehensive examination of the legal framework and justice delivery mechanisms in India. It could result in meaningful recommendations suitable to the social and economic needs of the people. Comparative research and development of institutional partnerships, both within the country and also with developing and developed countries, would go a long way towards a broad understanding of the shared experiences of other jurisdictions in reforming the administration of justice and law in India. Experiences from other jurisdictions should be thoroughly examined by legal scholars and independently assessed with regard to their suitability and appropriateness to Indian conditions. Reforming the administration of justice and of law in India is a tall order. It involves a concerted effort by various actors, including the members of the Bar and the Bench, parliamentarians, members of civil society at large, academics, and many others. Moreover, law scholars can help through rigorous research, by analysing the various structural problems of our civil and criminal justice systems from various angles and their implications for the rule of law in India.

Law schools as institutions that promote social engineering. This is inextricably linked to their role in ensuring a rule of law society. This ought to be done not only by imparting high quality legal education, through cutting edge research on numerous issues that affect law and society, but also by devoting time and attention to the question of what kind of society India ought to develop and what ought to be the role of lawyers and law academics in that society. This role of law schools is very important, and they are quite suited to perform it if they can develop a sound institutional foundation on the basis of which intellectual and scholarly abilities of legal scholars can be actively promoted. Law is a dynamic discipline. It is necessary that law and its interpretation change with time and are able to confront the challenges that are posed by the social, economic, and political transformation in society. Thus the role of law schools assumes significance particularly in relation to the social expectations generated because of the nature of universities as institutions of quality research and higher learning.

Indian society is facing deeply institutionalised problems relating to administration of justice because of extraordinary delays in justice delivery and problems such as governance crises, poverty, and corruption. As a consequence, the distance between the "law in books" and the "law in reality" is widening. If Indian society is to wake up to this challenge, and for good governance to be based only on the rule of law, it is essential that law schools play a more active and responsible role. The future development of legal education in India should encourage scholars to develop research inputs on the various problem areas of law for better understanding of the institutions engaged in law reform.

Legal education as a tool to provide access to justice. In order to have direct impact on the Indian citizenry, the promotion of increased societal knowledge of law and administration of justice should be the main focus of law school activities. It is true that the Indian judiciary has been playing this role for a long time, but the role of academic institutions such as law schools is unique and distinctive. Law schools should focus on advancing the foundational principles on which law is based and justice is done in India, and which are necessary for reinforcing the faith and trust of Indian citizenry in law and the justice system. This work can only be partially performed through the intellectual and academic pursuits of scholars. But for public scholarship to be encouraged and for academics to come out of their ivory towers, it is important that legal scholarship move towards attempts at social transformation, and recognise the most important function of law which is to ensure justice. If this function is duly performed, society can rest assured that the numerous individual instances of injustice resulting in victimisation will not in course of time result in greater threats to the foundations of the rule of law and democracy.

If the law schools in India are to provide institutional leadership in the field of teaching, research, and learning, it is necessary for them to rethink the nature of legal education. The system of legal education in India is facing significant challenges. While the idea of national law schools has flourished over the years and it has provided the leadership with new opportunities to create institutions of excellence, there is still need to continuously assess and evaluate our law schools in the light of the challenges to the rule of law.

Some of the challenges facing legal education are: maintaining good quality law schools that can produce good lawyers, teachers, and law professionals; expanding the presence of good calibre law teachers who can motivate the students and impart good legal education, including clinical legal education; motivating law students to choose various career paths within the legal profession or opt for the legal academia; and sustaining good legal talent within India, which includes persuading lawyers who are practising or working abroad to return to India to pursue similar work. These are all important issues and there are no simple answers. Law scholars in India should act as facilitators in conducting discussions on these matters among the law schools of the country and interested members of the Bar and the Bench.

In fact, the most important objective of legal education ought to be promoting excellence in both teaching and research. But these objectives ought to be fulfilled bearing in mind their relevance to and linkages with establishing a rule of law-friendly society. The present state of civil and criminal justice system in India poses numerous challenges and is far from providing the much needed faith and respect for law and legal institutions. While every institution has an important role to play in ensuring the rule of law, law schools have so far not been seen as stepping up in this regard. It is time for law schools and the legal education discourse in India to embrace this responsibility, lest the faith of the students and the faculty in the role of law and its impact on justice should be lost forever.

(The writer is with the School of Law, City University of Hong Kong, Hong Kong, China. He is also the Chief Executive Officer of Legal Education and Research Society (LEARS), India. Crajkumar4@yahoo.com)

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