Unfair Treatment of a Judgment

 

(By P.K. Ashokan, Advocate, High Court of Kerala)

 

I had always a fancy to hear and read Sri. S. Parameswaran, Advocate, whose language has a Victorian aura. But I was distressed to read his article "No Flattery, No Flak" published in the journal section of 1996 (2) KLT 16. He had claimed at the outset itself that "that this article is not meant to be an exercise in the flattery of a judge and his judgment; nor is intended to be a flak on another judge or his judgment". But, after reading it carefully, one gets a clear impression that his exercise was went for the later part. Perhaps, his mind would have had an impulse to state so at the outset so that the reader would feel that, he was dealing the two judgments with same 'lenslook.'

 

Mr. Parameswaran had attacked the decision in Chandramohanan v. S.I. of Police and another reported in 1996 (1) KLT 766 on the grounds of conservatism and strict constructionist approach. He complains that the judgment fell short of his expectations and it was not what was desired of a judge. The simple question to be decided in the judgment was whether the offences punishable under sections 3(1) (xi) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act 1989 are applicable to a victim born to Christian parents or not. Undisputed by the defacto complainant, the victim's father and the minor girl are Jacobite Christians. I had filed the said Crl. M.C. and argued the matter before Justice Nambiar. The case records revealed that the family of the victim were Christians for generations. But the case of the complainant was that originally their ancestors were Mala-Araya Community which is a Scheduled Tribe in the State of Kerala. Justice Nambiar found as the victim and her parents are Christians, they will not come within the purview of the Act and hence the charge in respect of the Section 3 (i) (XI) of the Act was quashed. He had also considered Articles 341, 342 and clauses (24) and (25) of the Article 366 of the constitution which deal with Schedule Castes and Scheduled Tribes.

 

It is not in dispute that the Act applies only to members of the Scheduled Castes and Scheduled Tribes as defined under clause 24 and clause 25 of Article 366 of the Constitution. The Act is enacted with the salutary goal of punishing offenders who commit all sorts of inhuman and savage atrocities on the Dalits. They were victims of oppression, ill-treatment and torture for centuries. Besides they were put to inexplicable disabilities, disadvantages, indignities and suffering. It is true, by and large, their conditions remain as they were before. It may take centuries to do justice to them.

 

The object of reservation for Scheduled Castes and Scheduled Tribes under Article 15 (4) of the Constitution was to remove the handicaps and suffering of these oppressed sections and to bring them in the main stream of the nation's life. The Hon'ble Supreme Court had considered the question in Mrs. Valsamma Paul v. Cochin University and others (JT 1996 (1) SC 57) and has held that "a person born in upper caste and having early advantages of education is not entitled to the benefit of Article 15 (4)". In the present case, the victim's father is a Professor and mother is an officer in a Nationalised Bank, and they belonged to Jacobite Christians, a forward caste.

 

If reservation is not applicable to such people and will they come within the ambit of a penal statute like the Act is question? The Act, in tune with it's great goal, had prescribed stringent punishments. This is the only penal statute in our country where (he provision of anticipatory bail is prohibited. Further, the trial is to be conducted by a special court presided over by District and Sessions Judge. Justice Nambiar has also decided that as the victim is born to Christian parents, the offence is not attracted.

 

The victim and her parents had styled them as "Christian Mala-Arayas". But the list of Scheduled Tribes in Kerala, published under Article 342 and Clause 25 of Article 366 of the Constitution, does not include "Christian Mala-Araya". It is held by the Supreme Court in A. Chinnappa v. Venkiatamuni & others, (JT 1996 (4) SC 213), in Prabhunder Mallikarjunaiah v. Ramachandra Veerappa (JT 1996 (5) SC 71), in S. Smigaraloos v. Zonal Manager, F.C.I. (JT 1996 (2) SC 182) and in Nithyananda Sharma and another v. State of Bihar and others that the court has no right to add or substract the names of Tribes in the light published under Articles under 342 and 366 of the Constitution.

 

Before parting with this, I should say that Mr. Parameswaran had no justification in exercising a comparison between two judgments by two Judges in utterly different situations. But he ventured to do so and then acclaimed one judgment in best chosen words. I do also appreciate the judgment of Justice Radhakrishnan. I have no doubt that Mr. Parameswaran had been quite unfair to Justice Nambiar and his judgment. Otherwise he would not have stated that it was no judgment at all. Criticism serves its purpose only when it is objective and constructive. Further, judging the judges and their judgments should be done with utmost restraint, caution and circumspection.

Mr. Justice Mathews P. Mathew -- A Tribute by his Junior

 

(Boby Mathew, Advocate, Southern Law Chambers, Ernakulam)

 

Justice Mathews P. Mathew is no more. A reality, which refuses to sink in, especially for people like me who had been associated with him.

 

As for me, Justice Mathews shall never die. Memories about him will last with me till I breath my last. I had only a brief association with him and I consider it as a blessing for having had the opportunity of serving him as his last and youngest junior in Southern Law Chambers. Despite my association with him being very short, I should say, that, I cannot think of a personality who has influenced me more.

 

I would like to try and draw the reason as to why exactly Justice Mathews wield so much an influence on me. For this, I may have to briefly touch up on his qualities which have struck me most. But I may at the outset say that the qualities I will be referring to will not be exhaustive. It can't be. I am perfectly aware of my limitations in tracing his qualities. I think of a vast number of people - many with proven eminence, with whom Justice Mathews have had far more years of close association than me. Their relationship with Justice Mathews may have been more proximate and intense than mine, which should naturally qualify them better to speak about him.

 

I would describe Justice Mathews as a mild mannered, soft spoken, affable, dignified, decent gentle man. Too many words of description perhaps. But not without reason. I have not seen him loose his temper even once. Occasions are few, when I have seen him talk in a raised tone. He had a simplistic approach towards everything as though nothing ever seemed to be complex for him. I found his remarks to be candid and it was not difficult to figure out the deliberation and incisive thinking behind those remarks. He seldom invaded the privacy of any person'an4. always gave as much respect to another as he gave to himself. He formed definite opinion about issues and persons arid also possessed the uncanny ability of revealing his mind, only when necessary, that too without hurting the sentiments of another. Logic tempered with common sense seemed to be his tool to encounter anything and everything. He never restricted himself to any particular group, but moved in different social circles and even served many a philanthropic organisation in various capacities. No airs, no presumptions, no clichéd jargons, no clumsy way of going about things -just an ordinary-simple-jovial yet matter of fact person, whose hall mark was his humility. A successful man in his own right, just too perfect for words to describe. I was for the first time coming across a person with such fine blend of qualities, which perhaps is the reason why I stay so much influenced by him.

 

I was able to gather that he had to put in much effort and toil to make it big in the profession. His determination and will power was stupendous. He loved and respected the profession of an advocate. I have read, may be a hundred times, the reply speech he gave at the full court reference on his elevation as a Judge. I always think that if not anything, years of his determined effort and toil to establish himself as a successful lawyer remains concealed in that speech. As a lawyer, brief and to the point was his style of presentation. He would in a matter of moment or two, make the idea as clear to the Judge as it was for him. Thus the unnecessary confusions were spared and I found that the Judges were willing and quick to act on his submissions without any demur or doubt. As a counsel he was thorough in his approach and his opinions not only protected the rights of his clients but also helped the Judges secure those rights effectively while dispensing justice to the parties.

 

I can say that my liking for Justice Mathews was instantaneous. From the day we met, till his last moment in the hospital, Justice Mathews had bagged my total acceptance and admiration, always. I am amazed by the fact that my esteem and regard for him had grown to such an astounding proportion that too within such a short span of time. Probably what was true with me was true with many others. So I presume, when I see the torrent of sentiments and emotions which flow on his bereavement.

 

Justice Mathews left the world as dignified as he lived. He was aware of everything till almost the last moment. He must have known for sure that many others were equally aware of his illness. Justice Mathews was not a person who would under estimate anybody. Yet Justice Mathews smiled at his visitors as charmingly as ever, exchanged pleasantries with them and spoke to them with courtesy and without the slightest hesitation. He remained unshaken even in the face of fast approaching death.

 

I visited him constantly while he was lying on his sick bed. He never let his memory fail him. He took pains, to make everything appear so normal. Till the end, he neither showed any irritation nor made complaints about anything, inspite of the fact that he would have been perfectly justified had he chosen to, given his physical condition. Thus even in his death. Justice Mathews has set an example for me, to learn, to ponder.....

 

In my life, I may probably never come across a person whom I can totally admire as much as 1 admired Justice Mathews. It seems highly unlikely. But then the ways of life are myriad. Whatever that be, as for me Justice Mathews shall never die.

Plea for State Law Universities and Other Reforms in Legal Education

 

(By Hon'ble Mr. Justice M. Jagannadha Rao, Chief Justice, High Court of Kerala)

 

Today, it appears that there are 84 Indian Universities which award Bachelor's degree in Law. It is said there are 464 Law Colleges in all. To the existing number of lawyers who are about 6 lakhs, we are, it is stated, adding roughly 2 lakhs every year. There are about 5,500 Bar Associations throughout the country. We have the second largest number of lawyers in the world next only to the U.S.A. There is, therefore, every need to properly take care of the standards of legal education in all these 464 Law Colleges and those which may come up in future.

 

Decline in Standards.—The decline in standards of legal education in England was noted and lamented by Lord Bryce as long ago as 1893 in his lectures [1]. In America too [1A], the standards declined after the Revolution in the teaching as well as in the profession. Standards in Canada in legal education too declined from time to time in 'quality and quanliiy' [2]- Thanks to various reformatory steps taken in those countries, the position there is much different today.

 

In our country, Dr. Radhakrishnan [3]observed that 'our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an area of profound scholarship and enlightened research'. The Law Commission (1958) presided by Sri M.C. Setalvad [4] said:

 

"In the period of about ten years which has elapsed since the publication of the Radhakrishnan Commission, the position in regard to legal education in this country has, it appears, definitely deteriorated".

 

In 1968, Prof. P.K. Tripathi [5] said that 'no laborious investigation or profound research is required to establish that things have been far from satisfactory here in the field of legal education and research'. During the period since then, the decline has been steeper. The Upendra Baxi Committee [6] observed in 1989 that the bulk of law colleges suffer from lack of full time teachers, virtual absence of libraries, staggering emoluments, absentee students, mass copying at examinations, inadequate physical and financial resources and in most cases, law colleges are neither recipients of Government grant-in-aid nor the UGC funding.

 

It must, therefore, be accepted that before and after 1961, when the Advocates Act, 1961 came in, there has been a clear downward trend in the quality of legal education in our country. Perhaps, much argument or material is not required in proof of what we have today. We can see the present with our own eyes.

 

A question is asked as to how, in spite of these adverse circumstances, the country has been able to produce some of the greatest lawyers and Judges. The Setalvad Law Commission answered [7] referring to these great men that' their achievements probably arise from their own intellectual brilliance and capacity rather than to the education received by them at the Universities'.

 

Legal Education - Commercialised.-- It is rather surprising that even in 1958, the Setalvad Law Commission expressed [8] that legal education had become a 'profit making industry', that there is hardly even a pretence of teaching and the situation is 'chaotic'. Between 1958 and 1993, one cannot but say that the chaos continues in its worst forms with all the ills noticed in 1989 by the Upendra Baxi Committee [9]. Justice Ahmadi of the Supreme Court [10] too observed recently in 1992 that by and large, the law colleges have no proper infrastructure, teaching and other facilities or specifications. ' Today, students can live hundreds of miles away from colleges, get full attendance and degrees too. In Unnikrishnan J.P. v. State of A.P. [11], the Supreme Court has now observed that imparting education cannot amount to 'trade' or 'business' within Article 19(1)(g) of the Constitution of India. Education 'cannot be allowed to be converted into commerce'. Nor can the persons who want to treat it as 'occupation' be allowed to treat it as a business or commercial activity. Imparting education, the Supreme Court held, cannot be a 'profession' within Article 19(1)(g). Teaching may be a profession but establishing a profession is not.

 

Recent proliferation of sub-standard Law Colleges.— One wonders how recently there is a tremendous spurt in the number of new sub-standard law colleges. I am told reliably that there are atleast 22 colleges in Hyderabad city alone. Law Colleges I n equally large number are established in small local areas and are spread over the length and breadth of the country. Colleges are established in small towns or some district head-quarters and some lawyers who have neither professional practice nor teaching experience are employed just to satisfy the minimal requirements under the rules. Students reside hundreds of miles away and need not attend classes. Those who are local residents also do not attend classes. In classes with, say, a hundred students, sometimes hardly five or six remain. The spectacle of students not attending classes and teachers not taking classes is the normal phenomenon.

 

Reasons for spurt in such colleges.— Establishment of law colleges is easy because no laboratories or workshops are necessary as in the case of Engineering Colleges. There is atleast a requirement that medical colleges must be attached to hospitals with a standard number of beds. Expenditure in establishing law colleges is comparatively less. Colleges can be established in sheds and there can be a show of a temporary library to satisfy an inspection team of the Bar Council of India. The Managements are mainly interested in making their profit after meeting the expenses.

 

The last graduate can get admission.— The Bar Council of India perhaps believes that there is nothing wrong in permitting, in any local area, as many law colleges as may perhaps take in, the last graduate in the rank list or the last successful candidate at the common entrance examination, available in any local area. If 22 law colleges exist for Hyderabad city alone, a large number having been sanctioned recently, the expectation of the promoters is that they can take in even the last student who is successful in the common entrance examination. In fact, some of them had admitted students who had not appeared at or even passed the common entrance examination and then, the students moved the Court, obviously at the instance of managements, saying that such admissions were not violative of the law. In some instances, the successful students at the examination have been ousted for by that time the college had its admissions complete (see P. Venkateswara Rao v. Osmania University, Hyderabad) [12]

 

It may be that the State Governments or the Universities issue orders for the mere asking of it, for starting new law colleges, but the Bar Council of India has to apply its mind and exercise its powers independently as it has a duty to maintain standards of legal education.

 

Standards of Education: The Bar Council & the UGC.— It will be noticed that the Bar Council of India as well as the UGC have the duty to lay down and improve the standards of legal education. Both the Bar Council of India and the UGC have powers of inspection.

 

Under the Advocates Act, 1961, one of the functions of the Bar Council of India (see S.7(h)) is to 'promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Council. S. 27(l)(c)(iii) and (iiia) refer to the 3 year/5 year courses of study. The Bar Council of India may make rules under S. 49(d) in regard to 'the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose'. Rules have been made in Part IV of the Bar Council of India Rules, 1965, dealing with the 'standards of legal education and recognition of degrees in law for admission as advocate'. This is so far as the Bar Council of India is concerned.

 

The University Grants Commission Act, 1956 specifies in S.12 that it is the general duty of the UGC' in consultation with Universities or other bodies to take all such steps for promotion and maintenance of standards of teaching, examination and research in Universities'. Under S.2(d), the UGC may recommend to any University, the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendations. Under S.12(e), the UGC may advise any authority, if such advice is asked for, on the establishment of a new University or a proposal connected with expansion of the activities of any University. S.13 of the UGC Act provides for inspection for ascertaining financial needs of a University or its standards of teaching, examination and research and for causing an inspection of any department and for recommending to the University the action that the UGC requires it to take as a result of inspection.

 

The respective roles of the Bar Council of India and the UGC.— The respective roles of the Bar Council and the UGC have to be properly understood. The UGC Act, 1956. is made by Parliament in exercise of the legislative powers under Entry 66 of List I: 'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions (see Premchand Jain v. R.K. Chabbra) [13]. The Advocates Act, 1961 is also a law made by Parliament under Entries 77.78 of List I — entries which deal with the 'persons entitled to practice before the Supreme Court' and 'persons entitled to practise before the High Courts'. The State Legislatures have passed various statutes in relation to establishment of Universities or other bodies for the purpose of regulating education, in exercise of their legislative powers (previously under List II) under List III Entries 25 (after 1976) which deals with 'Education, including technical education, medical education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I. Vocational and technical training of Labour'. The State Legislature can also make laws under Entry 26 List HI in respect of 'legal, medical and other professions'.

 

As held by the Supreme Court in O.N. Mohindroo v. Bar Council, Delhi [14], the Advocates Act, 1961 is passed by virtue of the powers under Entries 77 and 78 of List I which entries carve out the area relating, to 'persons entitled to practice before the Supreme Court and the High Courts', out of the legislative powers of the State in Entries 25 and 26 of List III.

 

Adverting to the role of the UGC, the Supreme Court said in Osmania University Teachers Association v. State of A.P. [15] as follows:

 

"The UGC has, therefore, a greater role to play in shaping academic life of the country. It shall not falter or fail in its duty to maintain a high standard in the Universities. Democracy depends for its very life on a high standard of general, vocational and professional education. It is hoped that the UGC will duly discharge its responsibility to the Nation and play an increasing role to bring about the needed transformation in the academic life of the Universities".

 

Bar Council only prescribes minimal standards - Universities can prescribe higher standards.—The Bar Council of India, while fixing standards of legal education under S. 7(h) of the Advocates Act, 1961, can fix the minimal standards at the entry point and also at the enrolment point. It can fix the requirements at the entry point and say that a University degree is necessary (The Bar Council of India v. Gundimeda Kesavaramayya) [16]. Such minimal requirements fixed by the Bar Council at the entry point are binding on the Universities. But nothing prevents the University from prescribing a higher condition of eligibility, (Sobhana Kumar S. v. The Mangalore University) [17]. Similar view has been taken in regard to the corresponding powers of the Medical Council of India under the Indian Medical Council Act, 1956, The Allahabad High Court has held that the Ordinances of a University can prescribe higher standards while the Medical Council prescribes only the minimum standards (Kum. Darsha Ahuja v. University of Agra). [18].

 

Judiciary and Bar must have say apart from Universities and Bar Council of lndia.—If therefore, the Bar Council and consequently its legal Education Committee have only to prescribe the minimal standards and the Universities can prescribe higher standards, it is obvious that the Bar Council cannot be said to be exclusively in charge of the standards of legal education, but is only in charge of prescribing minimum standards. Even that it has to do in consultation with Universities.

 

Inasmuch as the law student enters the legal profession and may also get into the subordinate judiciary or the higher judiciary, it is necessary that the judiciary and the legal profession must necessarily have a say in the standards of legal education. The Setalvad Law Commission in 1958 [19] quoted the words of a former member of the UPSC to the effect that 'half-baked lawyers, who do not know even the elements of law and who are let loose upon society as drones and parasites' are flooding the country. These students are now let loose on the courts. That is why the judiciary and the profession must have a say when the Legal Education Committee of the Bar Council of India lays down the standards of legal education.

 

Bar Council of India Rules and the Committee.— Rule 4 of Chapter III of the Bar Council of India Rules provide that there shall be a Legal Education Committee. Rule 6 says that the procedure for election thereto is by secret ballot as per rules. Others are co-opted members. Under Rule 8, the Committee shall have the following powers and duties:

 

(a) to make its recommendations to the Council for laying down the standards of legal education for the Universities, (b) to visit and inspect Universities and report the results to the Council, (c).........(d)(i) to recommend to the council for recognition of any degree in law of any University in the territory of India under S.24(1)(c)(iii) of the Act; and

 

(ii) to recommend the discontinuance of any recognition already made by the Council.

 

Rule 2(iv) of Chapter VI requires communication to all State Bar Councils the 'decisions of the Council relating to recognition of degrees referred to in S. 24(1)(c)(iii), (iiia), (iv) of the Act and nothing else, so far as the standards, the norms for recognition or the inspection reports, the periodic reports as to compliance with directives in the reports.

 

Infirmities of the Legal Education Committee of the Bar Council of India.-- If the judiciary, the UGC and the Universities and the legal profession do not take interest or are not consulted in the matter of laying down standards of legal education and in the norms for granting recognition and as to the norms of the inspection, it must be assumed that these bodies have abdicated their responsibilities and surrendered themselves to the Bar Council of India, nay, its Legal Education Committee. The responsibility for the continuous decline, at any rate, from 1961 must, therefore, be borne by the Bar Council of India, as stated by Sri. F.S. Nariman in his Valedictory speech on March 14, 1993 [20]. But, there is no purpose in finding fault with the Bar Council of India. The fault also lies with the judiciary, the UGC and the legal profession in abdicating their responsibilities and in remaining wholly complacent or silent spectators to the decline of standards in the colleges. These bodies must realise that by slow or repaid erosion, the very foundations of the judiciary and the legal profession and, therefore, of the rule of law and democracy will be in jeopardy.

 

Prof. Upendra Baxi and 11 other Professors of great repute were Chairman and members of a Committee constituted under the auspices of the UGC in 1989. In their report (1989) (21), they had this to say of the Legal Education Committee of the BCI:

 

"Under the (Bar Council of India) BCI Rules, while existing affiliated law colleges have to satisfy the minimum norms prescribed by it, no new law college can obtain recognition unless the BCI inspection team certifies compliance with standards. Neither the monitoring of standards reports for existing colleges nor compliance reports in case of new institutions are published; no one knows the constitution of inspection committees (usually elected members of the BCI, accompanies by a law-teacher member of the committee), the standards actually applied for accreditation, the difficulties experienced by the BCI in insistence on these standards or the bases of formulation and reformulation of standards. There is no five-year audit of the success or failure of the BCI in securing compliance........"

 

"In crucial areas, the BCI has not emerged as a strong professional organisation fully able to discharge its statutory responsibilities to promote standards of legal education. Quite . notably, it has not been able to assume moral leadership over constituent units from which it is composed; the State Bar Councils............"

 

"..........The BCI, at any rate, does not perform its statutory role in ways which distinctly promote forces of change and innovation in legal education".

 

They have also stated [22]:

 

"The community of law-teachers has usually no access to information concerning who the academic members of the (legal education) committee and panel are, what agenda are discussed, and the quality or representative deliberation. The result is an overall alienation on the part of large majority of law teachers with both these bodies, a result that has substantially impeded action on recommendation of both these bodies, even as they emanate, finally, in terms of the directives of the BCI (Bar Council of India) or the UGC".

 

This is indeed unfortunate. If the norms fixed, the names of the academicians, their inspection reports etc. are not available for scrutiny, there is no knowing how the committees are functioning.

 

Nature of defects in Law Colleges.— Case of Colleges admitting students even before the formalities for establishing the college are completed are many (see P. Venkateswara Rao v. Osmania University, Hyderabad) [23]. Students who have not passed the common entrance examination are admitted by several private law colleges. Colleges are established in temporary buildings with tin or asbestos roof. There is no adequate furniture. No library as required. Make-shift arrangements are made with law book sellers for making a show of existence of a library. Books are later returned to the book sellers for good. The students do not attend classes regularly. Hardly 5-6 are present in a class. Several staff members do not take up their allotted quota of classes. Notes are given in cyclostyled sheets for the students to have short cuts. Several students would have never known the names of standard text-books even of Indian origin let alone of England. Students are allowed to live hundreds of miles away, and sometimes in another State and get their attendance. A student can secure a degree by attending the college only thrice - once at the time of admission, once when he gets the hall-ticket for the examination and finally at the time of the examination. Then, they are ready for being ushered into the law courts, not necessarily in the lowest court but even in the highest court at Delhi. What is stated above is the normal situation. The good colleges are the exceptions.

 

The National Law School. Bangalore.— In the midst of this decline, it is heartening that the Bar Council of India Trust with the help of the Karnataka State has established the National Law School University with a 5 year course. Today, it is almost the best institute in the country comparable to other good institutions in other countries.

 

Reforms did not always start with Bar Council of India (2 year to 3 year Course).—Dr. C.D. Deshmukh, the then Vice Chancellor appointed on April 20, 1963, a Committee 'to study the problem of legal education in the University of Delhi and recommend the lines of re-organisation' [24]. The committee was headed by Chief Justice P.B. Gajendragadkar and included Members of Parliament, the Bar and the teaching professions in India and in the United States of America. The Committee also obtained, at first in writing and later through oral discussion, the views of 'fifteen representative persons' on the basis of a questionnaire and two working papers circulated earlier for this purpose. After due deliberation, the Committee made recommendations of far reaching import calculated to revolutionise the methods of teaching and examination at the law school, and to set the school on the road to achieving the dream of international excellence. Important steps were then taken to implement the spirit and the recommendations of the Gajendragadkar Report by the Law School in Delhi [25]. The two-year course became a three-year course on semester basis with compulsory/ optional papers.

 

Later, Dr. D.S. Kothari, Chairman, UGC appointed in 1969 a sub-committee on Legal Education headed by none else than Dr. P.B. Gajendragadkar, formerly Chief Justice of India and the author of the 1964 Report (for Delhi University) for reorganising the system in all law colleges. This Committee, which had a three-year term, made important recommendations, which were later accepted and adopted by the Bar Council of India. [26]. As a result, the number of required subjects was reduced to ten (rather than eighteen in the Delhi University) and the Universities were left free to add to the list of optionals listed by the Bar Council. Also, rigid prescriptions in regard to minimum hours of class-room instruction, working days in the year, maximum number of students in a class were made and qualifications of teachers were relaxed and a workable degree of flexibility introduced. The Committee of 1969 headed by Chief Justice Gajendragadkar was composed entirely of law-teachers. It was during this period that the Bar Council of India switched over from the two-year course to the three-year course [27].

 

Reform I: Case for a continuous body to monitor legal education and recommend to Bar Council of India.— The problem of taking the revolution to all the law schools in the country is a staggering one. Yet a beginning has to be made somewhere. In a modest but determined way it was started on April 5,1968 when, at a meeting held under the Chairmanship of Chief Justice Hidayatullah and attended by Judges, Lawyers, Ministers of the Union Government, representatives of the Ford Foundation and the International Legal Centre, legal educators, government officials and legal researchers, it was decided

 

"to found a society to be named the "Council for Advancement of Legal Education'."

 

The details were to be worked out. The meeting was attended by Dr. Douglas Ensminger, representative of the Ford Foundation in India, and Dr. John Howard and Mr. Peider Konz of the International Legal Centre, New York.

 

But, today, the Legal Education Committee of the Bar Council which consists of members of the Bar Council and a few academicians, does not have the assistance or g . guidance of any committee of the stature of the Gajendragadkar Committee or the Council for Advancement of Legal Education established, at one time, by Chief Justice Hidayatullah. Judges, Senior Law Officers, Vice Chancellors, UGC members and topmost academicians have to guide the Legal Education Committee. The UGC too cannot absolve itself of its responsibility in maintaining the standards of legal education and it must give funds to the Universities for the purpose of legal education. The Upendra Baxi Committee (1989) has stated that so far no UG C funds are given for the purpose of legal education.

 

Similar societies or bodies to help and guide legal education were repeatedly tried in all countries [28].

 

Therefore, it will be for the Chief Justice of India, as the head of the Judiciary to revive the 'Council for Advancement of Legal Education', appoint members thereto from various fields and bring about sufficient outside control over the Bar Council of India and its Legal Education Committees. The UGC is statutorily authorised to consult other bodies for the purpose of maintaining the standards of legal education. The Legal Education Committee of the Bar Council of India should have proper and effective guidance for, as had been pointed out earlier, it can only lay down minimum standards and there is no bar for the UGC or the Universities to lay down higher standards on the basis of any recommendations made by Committees appointed by the UGC, such as the two Committees chaired by Chief Justice P.B. Gajendragadkar.

 

Reform II: Plea for a Single Law University in each State.— If there arc, today, 84 Universities and 464 Law Colleges in the country, it will be difficult to introduce reforms by amending various statutes made by the Legislatures which have established the Universities and also to amend the various statutes of the Universities. It will, in my humble view, be easier to handle a smaller number of Universities in the country on the basis of one Law University for each State. Introduction of new norms, procedures and management systems will be easy if there is a single Law University in each State. Rationalisation and harmonising of the systems will also be easy. Weeding out or derecognising some colleges (by resort to S.21 of the General Clauses Act) can be resorted to by the Bar Council of India which has power to grant recognition. It must, by implication, have the power to de-recognise a single Law college. There is no need to re-recognise the degrees granted to all law colleges in any particular University for the sake of taking action against a single College.

 

Today, in several States, colleges imparting particular professional education, have been brought under a single University. We have, in some States, a Medical University, a Technological University, an Agricultural university and so on and so forth. Having regard to the need for urgent and drastic reforms, it will be convenient to bring all law colleges in a State under a single University. The UGC, the Bar Council, the Judiciary, the Legal Profession and the Academicians must examine this proposal. I do not find any difficulty in implementing the same as in the case of medical, engineering or agriculture (and veterinary) sciences.

 

Reform III: Common entrance examination.— There must be a common entrance examination for entry into each law college and this system has been legally upheld and is in vogue in several Universities already. This will help in eliminating the differential standards in various Universities.

 

Reform IV : 5 year/3 year course.— The Bar Council of India had suggested a 5 year course and advised the closure of 3 year study altogether. This was not fully implemented. Some Universities have opted for 5 year and some for 3 year. The Rajasthan University is, it appears, reverting back to 3 year course. Parents and students too are not all for abolition of 3 year course. Therefore, both courses could stay. Suitable changes in the syllabi has to be made to conform to both type of courses.

 

Reform V: Method of teaching - Less marks for Theory and more marks for Practical questions.— The Setalvad Law Commission in 1958 [29] pointed out that students today cram their memory with cheap guides and other small devices. 'The so-called teaching imparted at institutions of this character is followed by law examinations held by the Universities, many of which are mere tests of memory and poor ones at that - which the students manage to pass by cramming short summaries or catechisms published by enterprising publishers'. Full time class study has been, in point of fact, reduced to an unwholesome type of distance-education, students living hundreds of miles away and yet getting required attendance. Teaching standards and methods must change.

 

With a view to compel students to attend classes, no other system of compulsion can succeed than one which makes the student feel that if he does not attend the classes he will fail in the examination. Cramming the memory can be minimised and copying totally excluded by adopting a practical-oriented system of teaching and examination. The marks at each semester available for each subject must be such that the theory marks are limited to (say) 40% and the practical part having the remaining (say) 60%, with a separate minimum for the theory and practical, in each subject. This is the pattern in medicine and perhaps engineering too. There must be a National Question Bank not only to cater to the case-method but also to the problem-method and this system will not only improve attendance and thereby the quality but may also soon eliminate sub-standard colleges which are not able to impart this system of teaching.

 

That brings one to the case-method and the problem-method. Today, in the field of legal education, all over the world, these two systems have come to stay and it is unfortunate that except perhaps in Delhi, Bangalore, National Law School and a few other colleges, this system has not been introduced.

i

Reform VI: (A) Case-method.— The introduction of the case-method came with the publication in 1871 by Prof. Christopher Columbus Langdell [30]. His principal achievement as Professor and later Dean was the introduction of the case-method of instruction. These are collection of judgments of the superior courts, for use of students. He has concluded that the shortest and best way of mastering the few basic principles on which he thought the la w to be based was by studying the opinions in which they were embodied. The students are to study the cases before the class starts and the Professors/ students have discussion in the class. A class may contain even 100 students as in USA, but this system is still adopted as suitable.

 

"So it is that the American Law student still finds the case method the basic pattern in most large classes, which may number over a hundred students, and is expected to spend two hours reading case-books in preparation for each hour of most of twelve to fifteen hours of class per week". [31]

 

The case-method system has undergone considerable modification since the publication in 1914 of Redlich's famous Report on it for the Carnegue Institute. Prof. Laski had also commended this method [32] In England, though the case-method is followed, the case-books are not published as in USA in large numbers, but it is a teachers's own individual collection. Dr. Kahn-Freund has attributed the differing outlooks of the Continental and English lawyer to the fact that the former is trained in the University to rely on abstract principles of logic while the latter is trained in the school of experience to treat each case on its merits [33]. The case-method is a system.

 

"forged between the hammer and anvil of opposing counsel in the cause of the trial of actual controversies in court".

 

Prof. P.K. Tripathi has referred to this system in detail (34), as suitable in India too. He quotes other writers abroad (see 64 Columbia Law Review 710)(1964); Fuller (I.J. Legal Ed. 189) (1948); Jones 11. Ohio St. L.J4 (1950) in this behalf. This method stirs up the thinking process.

 

(B) Problem-method.— Critics of the case-method have suggested the problem-method also to be part of the curriculam. The case-method involves decided cases whereas the problem-method deals with hypothetical problems. This method has the advantage of approximating and stimulating legal practice, presenting a realistic challenge to the students' mind and mitigate the rigour of compartmentalisation. The Notre Dame School, Ohio Law University and several other schools have adopted it. Its proponents are Prof. Carl Llevellyn and Judge Jerome Frank [35]

 

(C) Other methods.—Moot courts have now, of course, become part of programes in most law colleges and the tremendous interest shown by the students in these Moot Courts is a clear indication of the real interest of the students. Mock trials are also conducted in some Universities such as the National Law Schools. Legal clinics, legal aid programmes involving law students will also generate genuine interest in the subject and its practical application.

 

Reform VII t Legal ethics etc. to be compulsory subjects.— There can be no doubt that legal ethics, etiquette and Judicial ethics must be a compulsory subject in all Universities perhaps requiring higher minimum than all other subjects.

 

Conclusion.— The main conclusions are that the standards of legal education have declined fast, there is undue proliferation of law colleges on account of the commercialisation of legal education, that the Bar Council of India and its Legal Aid Committee lay down only minimum standards; and the UGC and the Universities can require higher and better standards to be obtained. The other proposal are to have a single Law University in each State bringing within its purview all the law colleges in the State, the examination system must be revamped by having a common entrance examination, the semester system must prescribe more marks for practical-oriented problems based on case-method and problem-method and lesser marks for theory, there should be a separate minimum for theory and practical questions in each subject, the case-method, the problem-method should be rigorously introduced so as to improve the quality and it would automatically eliminate absenteeism and result in winding up of sub-standard colleges. The Bar Council of India and the UGC must conduct inspections, periodically monitor the standards and publish their reports. The Bar Council of India and the UGC must work in co-ordination. They must be guided by a 'National Council for Advancement of Legal Education' presided over by the Chief Justice of India and other Judges, Academicians, Lawyers, Senior Law Officers, UGC Members etc. and should continuously aid and help the Bar Council of India and the UGC to maintain superior standards. The UGC must give substantial aid to Law Colleges and Law Universities. The Legal Education Committee of the Bar Council must be suitably revamped by taking in the nominees recommended by the Chief Justice of India and by the UGC. It must not recommend recognition to a college merely because of orders of the State Government or the University. It must de-recognise colleges (by resort to S. 21 of the General Clauses Act) which are sub-standard. Professional ethics, etiquette and Judicial ethics must form a compulsory subject in legal education.

 

I hope and trust that the Bar Council of India, the UGC, the Bar Associations and the Judiciary will come forward to revolutionise the present system of legal education soon.

___________________________________________________________________

 

Foot Note

 

1.     Valedictory Lecture (Studies in History & Jurisprudence) (Vol.2, p.504 at 517).

1A.An Introduction to the Legal System of the United States (1988) (2nd Ed.) E. Allan Farnsworth.

2.  Report of the Committee on Legal Research 34 Can. Ba. Rev. 1000-01 (1956).

3.   Report of the University Education Commission, Vol.1, 257.

4.   Law Commission (14th Report) (1958) Vol.1, Ch.25, p.522.

5.   Journal of the Indian Law Institute, Vol.10 (1968) p.469 at 483.

6.   Report of Curriculam Development Committee (Under UGC)) 1989 at p.4 (1.13) At p.64 refer to 100% copying with assistance of Principal.

7.   See Fn. 4, Ibid p.522.

8.   See Fn. 4, ibid p.522.

9.   SeeFn.6, ibid p. 4 (1.13), p.63, 65(10.8)

10.  Repairing Cracks in Legal Education - Lecture given at Jodhpur, 1989.

11.  JT1993 (1) SC 474

12.  AIR 1990 A.P. 346

13.  AIR 1984 SC 981

14.  AIR 1968 SC 888

15.  AIR 1987 SC 2034

16.  AIR 1972 AP 206

17.  AIR 1985 Karn. 223

18.  AIR 1982 All. 359

19.  14th Report Vol.1, p.523.

20.  Seminar on Legal Education etc. at Bangalore under the auspices of the Bar Association of India.

21.  Report of the Curriculum Development Centre in Law (UGC) p.8.

22.  Ibid p. 63-65.

23.  AIR 1990 AP 346

24.  See "In the quest for better legal education", by Prof. P.K. Tripathi (Journal of the Indian Law Institute, 1968, p.469 at 484).

25.  Report of the Committee on the Reorganisation of Legal Education in the University of Delhi (1964).

26.  ’In the quest for better Legal Education' Journal of the Indian Law Institute (1968), p.469 at 488 by Prof. P.K. Tripathi. See also 'Basic Legal Education in India' (1970), Journal of the Indian Law Institute, p.39 at 40 by Russel B. Sunshine & Arthur L. Berney.

27.  Resolution of 1966 (AIR Journal SC) pp.35-36 (1966) quoted in (1970) JILI p.39 at 41.

28.  See: 13 Modern Law Review (1950) p.137 ‘English Legal Training' by L.C.B. Gower (pp. 137 to 207).

29.  Law Commission (14th Report) (1958) Vol.1, Ch.25. p.523.

30.  C.C. Langdell (1826-1896) was a New York lawyer who became Professor of Law at Harvard Law School in 1870.

31.  See: ‘An introduction to the Legal System of the United States' (1988) by E. Allan Farmsworth.

32.  13 Mod. Law. Review (1950): ‘English Legal Training' by L.C.B. Gower at p.187.

33.  ibid, p.188

34.  This method has also been referred to by Justice Ahmadi of the Supreme Court in his Jodhpur Lecture (1992).

35.  See Prof. P.K. Tripathi's Article 1968, JILI p.469 at 479 quoting Llewellyn Report, Jones (11 Ohio ST.L.J. 4 (1950) Vanderbilt 43 ABAJ 207 (1957) etc.

Child Custody : Mother or Father

 

(By Nadir Modi, Advocate, Bombay)

 

When marriages break up, bitter and prolonged battles often follow over the custody of minor children.

 

More often than not, the custody of minor children particularly of children under 7, is given to the mother. Whether she is psychologically fit to rear the child or not and whether the psychological growth of the child will be belter if the custody is given to the father or not, are factors to which more judicial attention could be usefully given.

 

The modern tendency in child custody cases is to avoid any decisions based on any a priori assumption that for the welfare of the child the custody should be given to the mother.

 

Increasingly Judges show understanding and compassion in their decisions and have moved away from the earlier pattern of judgments which unwittingly tended in the words of Dr. Arnold A. Hutschnecker to be cruel, sterotyped and void of any genuine psychological awareness of the child's needs or interests.

 

In this regard, a few recent Indian decisions show how the much spoken of paramount welfare of the child has been safeguarded by the custody of minors being given to the fathers and their families.

 

In Shoib @ Shobu v. Sabir Ali : 1986 (II) D.M.C. 505 at 506 (All.): The Allahabad High Court held that: "In spite of the fact that the mother is entitled to the  custody of her male child until he has completed the age of seven years, still the welfare of the child will be kept in view before deciding the custody".

 

In this case in fact the son who was only 4 years of age was allowed to remain with the father and the Court without arriving at any adverse conclusions regarding the mother's character or conduct decided that it was in the paramount interest of the 4 year old son to allow him to remain with the father and the father's family.

 

In Bilkis w/o. Murine Khan v. Murine Khan: 1987 (32) M.P.L.J. 430: the facts were that a Mohammedan wife was living separate from her husband. She filed a petition for custody of her minor son aged about 2 1/2 years. During the subsistence of the marriage it was found that she was residing at a distance from the husband's home and neglecting to lake proper care of the child.

 

On these facts the court held that it was not for the welfare of the child even though the child was of tender years to give his custody to the wife and custody of the 2 1/2 year old son was given to the father.

 

In Y. Varalakshrni v. Kama Durga Prasad: 1989 (1) D.M.C. 379 at 380 (A.P.): the Division Bench of the Andhra Pradesh High Court had to decide another custody battle where the minor son involved was just about 5 years of age. Here again the High Court held that the paramount welfare of the son was in allowing him to remain with the father and his parents. The child had been happily residing with the father and his parents when the mother had applied for custody. The Trial Court refused custody to the mother and the Appeal court upheld the refusal.

 

This decision contrasts favourably with the fictional decision in the much talked about movie, Kramer v. Kramer, where the father and not the mother was bringing up the child. In the film, the husband, a young, ambitious vice-president of a company, is not aware of the emotional needs of his very attractive wife. In her quest for "fulfillment", she chooses to leave her husband and her young child with seemingly no previous quarrel.

 

She goes to California, sees a psychiatrist, has several affairs, and after about two years returns to New York and sues for custody of her child. The Judge proceeds on the patently erroneous basis that it should be routine procedure to award the custody of a child to a mother, whether she is psychologically fit to rear the child or not.

 

The Judge awards the mother the custody of the child, a decision that is depicted in the film, as cruel and void of humanity. The mother is at first triumphant. But then comes a dramatic change of heart. Perhaps seeing the pain of the defeated ex-husband (or is it a flash of guilt or magnanimity), she allows the child to stay with the father.

 

This film as commented on by Dr. Hutschnecker, reflects a modern trend that corrodes, if not the sanctity of marriage, then at least a deeper meaning of a commitment.

 

Why did this woman marry this particular man? His looks? His future that seemed secure? Did she use him for a start in her own life? And why did she not talk to him if she felt dissatisfied? Both were educated people. Why, instead of trying to communicate and come to an understanding, did she, like an angry and irresponsible child, run away to satisfy her own selfish needs? Was it for survival or simply an ego tussle or a power play?

 

True, the man pursuing his own American Dream was so busy building his career that he perhaps did not notice his wife's dissatisfaction. Evidently they did not communicate and thus were unaware of each other's needs and feelings.

 

It is the story of many people who thought they were in love, which dynamically means they move toward one another. But contrary to usual experience, when people begin to fall out of love, for whatever reasons, they move against one another. That is, they either fight or make adjustments. In the film they move away from each other - a breaking away or, symbolically death!

 

It is heartening to note that Indian courts in this as in many respects show a greater awareness of human needs and do not blindly or short-sightedly follow the "mother first" principle while deciding custody battles.

 

In Lekh Raj Kukreja v. Smt. Raymon: 1989 (38) D.L.T. 137: the Court was concerned with the question of the interim custody of a minor male child aged 11 years. The Trial court gave the custody to the mother on the ground that the minor son would then be in the company of his sister whose custody was with the mother.

 

In revision it was held that the father was the natural guardian and that the welfare of the child also demanded that he should be in the custody of his father especially as the child himself also showed an inclination to stay with the father.

 

On the same lines, in Tara Chand Mavar v. Basanti Devi: 1989 (1) D.M.C. 402) (Raj.): the Division Bench of the Rajasthan High Court in appeal reversed the decision of the Family Court giving custody of a 7 year old minor son to his mother stating that sentimental considerations in favour of the mother ought not to prevail over the welfare of the minor where the father was a fit person to be a guardian and in the opinion of the Court it was in the interest of the minor son that he should be with the father and the father's family.

 

In Shailaja J. Erram v. Jayant V. Erram : 1990 (2) Mah. L.R. 492: Once again the same question was decided by a Bench of the Bombay High Court in the same manner. In this case the mother was a working woman and remained outside the home until 4 p.m.

Caparisoned Elephant

 

(Varghese T. Abraham, Addl. District Judge, Mavelikkara)

 

How tedious and tough, the work was on that day

Answers to piercing questions recorded under pressure

Heard a lot - relevant and irrelevant - without any pleasure

"To write and hear, your duty" they often assert.

 

Set the Sun at dusk and returned I home

Sat for a while and thought for a walk

Better half and kids joined with joy

Busy streets and shops made them to rejoice.

 

Saw we a procession in pomp and splendour

Heard beat of drums and bugles' sound

Stood in front an elephant decorated and caparisoned

Gigantic is it in size and glamour is in look

"Alavattom" and fluffy "Venchamarom"

Moved in unison; in tune the beast waved its cars

At its top saw I two holding "tidam" and idol

Tourists and public jostled and filmed.

 

*    *    *    *   *   *

 

"Didn't you observe that giant of the wild"?

Wife queried at the bed room cot

"Gigantic and beautiful", said I soon

"State Animal - though fiere by naturae".

 

"What makes you to differ from that caparisoned tusker'?.

With the usual laugh commented she at me.

How happily the jumbo lived in the jungle

With a lot of friends and dear ones to mingle

Chained by legs it can't move freely

At dawn it starts on foot to the forest

Carries tonnes of timber without any rest

Again walks miles faster to temples without protest

Collects it "Paras" in the blazing noon sun

Travels it on hot concrete roads unsuitable for its feet

Bows before sanctum sanctorum for hours

Mahouts are there on either side to control

With sticks they beat and stab with knives

They slash, blow, prick and abuse

Excruciating pain suffers it without demur

Wounds inflicted often go unattended.

 

Proceeds it from places to places as the mahouts command

Nobody knows its hunger, thirst and fatigue

Amidst beat of drums and bugles band

Moves it the trunk hither and tither in search of cadjans

 

Waits it for guests under sun heat and monsoon

Attends it festives to augment income for State

Sleepless nights it spends - nay time for relaxing

On holidays mahouts take it for taming.

 

People deify the jumbo, decorate and display

The titan of the wild is tortured and adulated

Mahouts torture it while taming and hawling timber

No water is given to quench its thirst.

 

Bananas and jaggery the devotees lavish

Fermentation takes place and constipation results

"State Animal"! It is.......a pivotal status

Status gives it nothing but eternal pain.

 

Gigantic is your status like that of its size

Beautiful and powerful when you are in dais

"Here goes our judge; there comes our judge"

Boast your friends, relatives and public.

 

Round the clock you work like that black beast

Place to place you go without any rest

Restrictions on movements make your life a hell

To me and kids - a life with you is dull.

 

Opulence you lost and power is clippled

Liberty is curtailed and freedom is crippled

You also attend "melas" and with smile for training

To me and children holidays arc deprived.

 

"Seemingly I am a caparisoned Elephant", said to my wife

Eternal pain a judge has to suffer in his life

Elephant works hard unaware of its size

I'm aware of my size; but works in the Temple of justice.