Monday, May 25, 2009

Specialised Legal Education: Bar Council Compliance?

As some of you may be aware, a generous bequest by US billionaire Vinod Gupta helped kickstart the Rajiv Gandhi School of Intellectual Property law (RGSOIPL), India's first specialised law school, focusing on intellectual property law (IP). This school, which is based out of IIT-Kharagpur has been operational since 2006 and has strong ties to the George Washington University law school, one of the top IP law schools from the US.

Although this law school does not only teach IP, but a string of other legal courses normally taught at the other law schools, it restricts admissions to candidates with a first degree in science. In pertinent part, the IIT-K website notes:

"The School presently has one programme: Six-Semester, Three-Year Full-Time residential LL.B. Programme leading to the Degree of Bachelor of Law with specialization in Intellectual Property Rights, at par with the LL.B. Degree requirements of the Bar Council of India."

Just as this novel experiment in specialised legal education produced its first set of law graduates this year, it has been hit with a legal challenge. Express Buzz reports:

"The Supreme Court has issued notices to the Bar Council of India, Indian Institute of Technology, Kharagpur and to the Secretary, Ministry of Human Resource Development on a writ petition questioning the propriety and correctness of the Bar Council of India in giving permission to IIT, Kharagpur to start a course in LLB in Intellectual Property Rights.

A Bench comprising Chief Justice K G Balakrishnan, Justice P Sathasivam and Justice Deepak Verma directed issuance of notice after briefly hearing advocate Sanjay Parekh.

The petition filed by M Chandrasekhar, an advocate of the apex court, pointed out that the eligibility for joining an LLB course is a graduation in any discipline, that is BA, B. Com, BSc etc.
The petitioner pointed out that LLB is an entry-level professional course in law wherein a candidate is taught basic principles of law in a number of subjects. If any candidate desires to specialise, he can opt for LLM course in a subject of his choice like Constitutional Law and Contracts.

But, for the first time, the general character of the LLB course is sought to be changed by IIT Kharagpur by starting a specialised course in Intellectual Property Rights and that too restricting admission only to BE, B Tech, MBBS, M Pharma, MSc, MBA with Science/Engineering background, the petitioner averred."

Towards Specialised Law Schools?

Given the sheer dearth of skilled patent lawyers in this country, I am very partial to the idea of a specialised IP law school. Particularly since the premier legal institutes in the form of the National law schools do not focus on science at all, a discipline that is absolutely essential for churning out decent patent lawyers. The National Law University (NLU), Jodhpur does offer a B.Sc. LLB, but I am not entirely sure if the level of the science taught as part of the BSc is adequate. The head of the IP Division of a big Indian pharma company once confided to me that these candidates were of no use to them, as the science taught was fairly elementary.

NUJS offers a very curious BA/BSC LLB degree, but there is no science taught at all. Dr Madhav Menon, the founding director of this law school may have intended for this law school to provide a science option as well, but this never really kicked off. The nomenclature seems more of a historic relic now.

Anyway, back to the dispute at hand and legal challenge mounted against the grant of approval to RGSOIPL's 3 year LLB course. I don't necessarily see a problem with a specialised "IP" focus in an entry level LLB course, provided other foundational legal courses such as contracts, torts, criminal law, constitutional law etc are also taught. I'll try and bring you a more detailed note on the specific legal issues once I lay my hands on the petition.

In the meantime, let me try and highlight some of the broader issues raised by this recent controversy:

i) To what extent do law schools comply with the Bar Council of India (BCI) norms?

ii) Should the BCI (in its current form) be permitted to regulate legal education at all? Does it have the institutional competence to do so?

Compliance With Bar Council Rules?

To answer the first question, a couple of months back, I checked the Bar Council of India (BCI) requirements applicable to the five year integrated law degrees (BA LLB, BSc LLB etc) and found that none of the law schools were likely to comply with the fairly onerous requirements spelt out by the BCI.

In particular, given that these schools accord rather step motherly treatment to the BA component (having a mere 5-6 courses of history, economics and political science), they are likely to fall foul of the BCI mandate that the BA or BSc syllabus "has to be comparable to the syllabus prescribed by leading Universities in India in three year bachelor degree program in BA, B.Sc, B.Com, BBA etc taking into account the standard prescribed by the UGC/AICTE and any other respective authority for any stream of education".

The BCI norms appear to require a good 14-20 courses to cover the "BA" component--which is way beyond the current 5-6 course offerings in this regard by the law schools.

Institutional Competence of the BCI?

As for the second question, most academics abhor the thought of having legal education in India solely dictated by the BCI, most of whose decision makers are practitioners with no real insights into legal education policy. And this sentiment has been echoed by the National Knowledge Commission as well, which recommended that course curriculum etc be designed by a new standing committee on legal education under a proposed Independent Regulatory Authority for Higher Education.

Arun's paper titled "The Waning of a Magnificent Obsession: An Abridged Story of the History of Legal Educational Reform in India" (which I referred to in an earlier post) has some fascinating insights into this issue. He discusses the Gajendragadkar Committee Report of 1964 in this regard and notes:

"The Committee had noted the distinction made under the Advocates Act, 1961 according to which, theoretical or scientific legal education would be in charge of the Faculties of Law working under the different Universities in India and the practical or technical legal education would be in charge of the State Bar Councils.

To remedy the situation, the Committee had recommended that the Bar Councils and the Universities should act in concert and agree upon evolving suitable criteria for both theoretical and practical forms of education. However, the Committee felt that a more substantive and long term solution to the problem would be the creation of a statutory body called the Council of Legal Education which could be given supervisory control over all aspects – theoretical, practical and incidental – of legal education in the country. The Gajendragadkar Committee was of the opinion that the Council should be constituted on a high-power basis and be composed of judges, law teachers, members of the Bar, and representatives of industry or other fields which would have an interest in law. The Committee did not elaborate on the details of the constitution of the Council or on its powers, but felt that the constitution of such a Council by Parliament would facilitate the progress of legal education along healthy lines.

Similar suggestions have, over the years, been made by several persons who have had some experience with policy making in the field of legal education, and recent fiascos like the V.Sudeer case only serve to heighten the urgency of the requirement of such a unified authority."

5 comments:

K.V.DHANANJAY said...

First of all, I think that the petitioner before the Court is right. All technical complexity behind patent grants must eventually lend itself to legal adjudication before a competent court of law.

I don't subscribe to the belief that patent lawyers cannot serve the judicial process unless they know too much of the science behind the patents. To insist on a Science Degree as a pre-requisite is simply ridiculous.

The purpose of law is to accomplish fairness and in order to do so, all technical complexity behind a legal dispute is broken down into elements intelligible to a Court of Law. The only question that needs to be asked here is, do I need a graduate degree in physics or mathematics to tell a judge that my client is injured and wrongfully so? Hardly.

Shamnad Basheer said...

Dhananjay,

Thanks for your comment. You're making the mistake of viewing the issue only from the lens of a litigating lawyer. You're forgetting that patent drafting and prosecution are a completely different ball game--and a non science person will find it very difficult to do justice here.

If you speak to someone in the field, you will find that there may be just about 10 good patent drafters in the entire country. And this alone underlies the huge significance of a program tailored towards creating more such specialised people.

Underlying your comment is a sentiment that equates "law" to only what happens in court. Many of us find this equation problematic. And for this reason, we're also concerned with the Bar Council (consisting mainly of practitioners) being the key determinants of course content.

In fact, given the logic you propose, I might stretch it to the extreme to argue that the law is nothing more than a lesson in logic (or illogic as the case may be). And anyone reading the law books and case law will be competent to argue before a court of law. So lets not have any formal degree requirement at all!

Sushant said...

I do not know which side to take on this. I will agree with Dhananjay that lawyers or judges do not need to be expert in science as science issues can be broken down into "pieces intelligible to court". But when I look at many patent related cases I feel that they got it completely wrong. The lawyers successfully argued points that was just insanity for anyone who understands the field.

The law requirement of non-obviousness is very broad and rarely lawyers or judges feel anything is obvious. I do not know where the problem is. May be the law is too broad and it needs to be narrowed down. But certainly people with no experience in particular field have lot of difficulty in coming up with the right value judgments.

Wrong value judgments by judges does not harm everyone for civil or criminal suits. But the impact of such judgments on the patent/copyright related issues are binding on the entire country and certainly has significant impact. So I wish people who pass such judgments should have some experience (not just an educational degree) or should try to do something when the case comes up. Thinking that they are smart enough to pass value judgment is not a good idea.

Talha said...

If I am permitted to may be extend Shamnad's comment: the quality of legal education generally is such that possession of a law degree ((after writing and passing exams)is by itself no better than a legal presumption of technical competence.

Should it not be the case then that each law graduate should write a separate bar exam to prove his/her competence as a practising lawyer, and not merely as a law graduate?

Shamnad Basheer said...

Dear Sushant, Talha and Dhananjay:


Thanks for all your insightful comments. I have reflected further on this in a recent post on SpicyIP

http://spicyipindia.blogspot.com/2009/06/is-science-essential-for-creating.html.