The problems of plenty and scarcity: An analysis of the BCI list of law colleges in India

After a mammoth and laudable data collection on the law colleges by the BCI (to comply with the Legal Education Rules of 2008), recently BCI has published a comprehensive list of law colleges in India (however there are some glaring omission like NLUD etc., there is also a tendency to add newly approved applicants who do not have any infrastructure at present). As per this new list dated 10.04.2010 the total number of law colleges in India is 900. As per the list the distribution in number of law colleges per state in India is as below:

Unfortunately BCI website no longer has the earlier list (at least not in the same domain location) which in July 2009 formed the basis of a post on the explosion of law colleges in India. According to the earlier list there were 1136 law colleges in India in 2008, thus it is surprising that in a period of couple of years the number went down by 236 colleges. The number of law colleges per state also shows that states in North-East except for Assam have very few law colleges. In Karnataka for example there is one law college for every 5 lakhs 93 thousand people, in NE including Sikkim (except for Assam) there is one law college for every 11 lakhs 10 thousand people (source of population data is wiki article on List of states and union territories of India by population). A quick comparison of population, HDI and number of law school per state would further bolster this argument. 

Thus the need of the hour is for BCI to encourage setting up of law school in the NE of India (another interesting nugget of information, this is also the region of India which is farthest from any kind of National Law University).

Apart from this regional imbalance another approximation garnered from the data is the chronic overproduction of lawyers in India. As of March 2007 the total number of lawyers enrolled with BCI through various state Bar Councils were around 9,55,000. The total number of law colleges according to the latest tally is 900, thus if every law college on an average enrols 100 students every year (please note that 100 is on the lower scale of the spectrum, all National law universities except for NLS Bangalore takes in more than 100 students, most Government law colleges, even the most famous one, like CLC Delhi, GLC Mumbai etc. take in around 300-500 students p.a.), the total number of law graduates produced every year in India is 90,000. Thus every year 9.42% of the total number of lawyers is added to the Bar. Obviously there is a mortality rate which on an average for the last 10 years stood at 7% in India. Thus the effective rate of growth in number of lawyers is 2.42%. Strangely the rate of population growth in India is 1.3%. Therefore the rate of growth in number of lawyers in almost double the rate of population growth in India, which is bound to create a decreasing rate of opportunity for lawyers in future. 

The obvious solution to this twin problem of geographical imbalance and overproduction of lawyers is to first curtail the number of existing law colleges (this can be done through periodic checks on the infrastructure and faculty quality of the law colleges against the agreed minimum standard), raise the entry barrier for aspiring/new law colleges (which should be more than the minimum standard for existing law colleges, BCI may argue that the scope of improvement for existing colleges is a slow process, but for new entrants the standard is that of ideal standard), give sops for private colleges which wants to open law colleges in NE (given Indian Govt. recent NE Development Policy, it wouldn’t be financially difficult to set up a NLU in NE) and finally to derecognise colleges which have a 3 year/part time/night shift law programme.

Before we part another chart to show the privatisation/commercialisation of legal education in India.

 

Telling a true story few Indians know

One of the major advantages of pursuing LLM in a foreign university is that you come to meet with students with varied cultures and traditions from around the world, unlike Indian NLUs with generally monochromatic student population (hailing from educated middle class or upper middle class, English speaking, fancy schooled, city dwelling families). While pursuing LLM at a somewhat reputed UK university I met a Bangladeshi student from the Chittagong Hill Tracts (CHT), my knowledge about Chittagong was quite limited, though I knew that it was a port of some significance, there was blockade in 1971 Indo-Pak war and that it had a medium capacity good cricket stadium (atleast that is what I gathered from the televised matches). I also vaguely remembered that some time ago there was a talk among the diplomatic community in India that Bangladesh Government might let Chittagong be used as an alternate gateway/port for NE India. But what this Bangladeshi-Chakma student told me greatly altered my understanding of ethnohistoriography of Eastern India during the perilous times of Independence and the irrelevance of partition by a colonial master.

We all know something or other about the partition and its fallout every Indian would have heard of the Kashmir story (irrespective of what view he/she may hold on the issue), most know about the partition of Bengal and Punjab (and the enormous emotional-economic hardship borne by the displaced people), many would know about integration of Hyderabad, Junagad and Goa by force to Union of India, some may know that North-West Frontier Province of British India (presently the Khyber Pakhtunkhwa province and FATA in Pakistan) which decided to join Pakistan in a referendum would have joined India if Khan Abdul Gaffar Khan (also known as the Frontier Gandhi) and his volunteer/political faction/followers (the Red Shirts) had not abstained from voting (during consultations on the future map of India and Pakistan, Patel/Gandhi is thought to have conceded that NWFP should be part of Pakistan, hearing this Khan is said to have famously lamented that ‘You have thrown us to the wolves’), few Indians may know that in Sylhet (today a province of Bangladesh) only a majority of 43.8 per cent voted in favour of being part of Pakistan.

But almost none of the Indians today know that in the last days of British Raj, the Boundary Commission which divided British India (which worked on the principle that a region should be awarded on the basis of its religious demographics, simply put Muslim majority area would goto Pakistan and no-Muslim majority area would be awarded to India) by a mere pen stroke had given to Pakistan a land area of over fifteen thousand square kilometres (to put in perspective about half the size of Kerala or larger than any NE Indian state except for Assam) which were populated by 97% tribal non-Muslims in 1947. This area is today known as the Chittagong Hill Tracts (CHT) and the demographics have completely altered with the native tribal non-Muslim population trimmed to 52% in 1991.     

The curious case of ‘missing’ 70,000 law students

As per the latest data available at the Bar Council of India website on the number of law colleges in India, there are at present around 900 educational institution offering LLB course. BCI notes in that this data is correct as of March 2010. Thus if every institution has around 100 students then the total number of graduating law students by August-September 2010 should have been around 90,000. Its a quantum leap to average out the number of law students around 900 institutions at 100 each, however if we consider that all NLUs have more than 100 students (except for NLS Bangalore) and that most Government law colleges have intake of 200-300 students and that most private colleges would not break without 100-150 students per batch. Thus arguably 100 students on an average per batch per institution seems to be at the lower end of the scale. So let us agree that at least 90,000 students passed LLB in 2010 in India.

However as per the data made available by BCI in the latest press release on AIBE, it has noted that around 22,000 students have applied/appeared for the first AIBE. If we do simple arithmetic it seems that close to 70,000 LLB passouts of 2010 have not sat for the AIBE, it seems pretty weird that  no one bothers to investigate why around 77.78% of 2010 law graduates did not opt for the exam or what happened to them.    

How to choose your law university in UK?

This is Part I of the series on ‘Doing LLM in UK’ aimed mostly at students from the various National Law Schools in India who aspire to study LLM in UK. In this part I try to discuss the finer and (mostly) broader nuances of choosing the right university in UK to pursue LLM. We must understand that just like no single sizes fits everyone, so too no single uni would satisfy the demand of every student and thus the choice of a uni would depend on various factors like the size of the pocket (both of the prospective student and his/her parent), career plan, merit, previous work experiences (real work not internships!!!), personal choices of the student etc.

The first step of any student who aims to pursue LLM in UK would be to draw up a list of top 20 tentative law unis, how do we do it? Just like in India there are lot of UK law uni rankings available, but we must remember that most of them talk about LLB and NOT LLM, having said that the rankings of Guardian and Times (requires login) may serve as a good indicator for LLM rank too. Another government sponsored ranking for law unis in UK is the RAE (Research Assessment Exercise) rankings, some tend to discount this ranking as dubious, but my personal opinion is that RAE rankings reflect LLM rankings better than say Guardian or Complete University LLB rankings. But lets be objective and collect all the top 10 unis from the three lists Guardian, Times/Complete University Guide and RAE – obviously there are going to be repetitions, and there would be some unique ones (unis which are mentioned in one list but nowhere near top 10 in other list). So finally you would get somewhere between 20 unis in your list. This is the master list. My list looked something like this Cambridge, Oxford, LSE, UCL, KCL, QMUL, SOAS, Nottingham, Warwick, Edinburgh, Newcastle, Manchester, Liverpool, Glasgow, Bristol, Kent, Reading, Strathclyde, Exeter, Dundee (this list is not of any ranking but merely collection of unis that I culled out from longer lists for more in-depth examination).

Let us look at the usual marks which a student needs to gain an offer of admission into these unis (please do remember that these are just ball park representative figure and may be different from the official minimum), to get into Oxbridge and LSE one needs at least 65% marks, for UCL, KCL and Edinburg its 60%, for QMUL, Nottingham and other red brick and plate glass unis its 55% and some other unis like Cardiff and SOAS even take student having a bare pass. Having said this I must remind readers that to get into the top 5 unis one needs to have some extra curricular achievements  (not just marks) and must be duly embellished in the statement of purpose.

So now depending on the marks you have scored you can shorten the list to say 15 (towards either the higher end or the lower depending on which end of the spectrum you fit in – this means that if you are a 70% holder only apply to the top 15, if you are 50% holder don’t waste your money by applying to Oxbridge)

However there is a small twist, an average LLM in UK including tuition and living cost would cost around 15-18 lakhs INR, thats a lot of money and many students want a scholarship, most of the unis have scholarships for masters students but the competition is fierce (I would in a later post write on how best to apply for a scholarship). So if you are a scholarship aspirant the list makes no sense as it is going to pit you against the best students in the top 20 unis, so spread the net wide and check on every uni website if they have scholarship and apply to all of them (they say beggars cant be choosers, but there’s no limit for number of attempts).

So the post in nutshell if you have unlimited budget, outstanding marks and influential reco then only apply to the first three on my list - Cambridge, Oxford, LSE and maybe UCL as an insurance. If you have unlimited budget, average marks then apply for KCL and QMUL (basically stay in London). If you require scholarship (which means you must have outstanding marks and influential reco) then apply to any uni which has a scholarship for masters and then select the topmost uni in your list which offers you a scholarship.

My first week in UK

From the sultry heat of late Indian monsoon (36 C) to windy, rainy, foggy and cold British countryside autumn (17 C), the transition is not something to charm the heart of any tropical person, but thanks to free broadband internet and some strong heating the transition can be far less painful. However this post is not just about weather or my adaptation to it, but is a preview to a series which I seek to write on steps to secure admission and a scholarship at a British university to pursue LLM. So to test the water (hot and cold), this are my observations from my first week in UK.

The journey starts in Mumbai, where past the immigration officer the economy class passengers are herded to the jumbo Boeing 777 of Jet Airways. After walking though the aisle (in what seems like a long walk) I get settled into a quite cushy seat (with neck pillows), the food is bad (but then you are not there to eat), the entertainment system is fabulous (they got loads of the latest flicks), the overhead luggage cabins gets filled up quickly. So starts the journey with an East European captain at the helm. After 9 hours and quite a few circles over south England the plane finally lands at Heathrow. After almost an hour I reach the immigration counter, few basic questions about where I am travelling to etc. and I get the entry seal.

Few buses and 3 hours later I reach my hostel, the lady at the reception seems to have a strange accent (and so begins my encounter with the Brit accent) but after few ‘pardon’ and ‘sorry’ I collect my key and move to my rooms. I am sharing a flat with 5 other students, all PG and from 5 different countries a third generation British-Greek-Cypriot, a lanky Nigerian a French-Scottish, an Ugandan and a Chinese. So after I get settled into this multicultural, multilingual (for many it was just monolingual – hope you get the drift), multiverse, I explore out the campus which is quite different from the standard law school campus in India. First it is quite big (not every campus is as big as HNLU), its bit far from the city (not every campus is NUJS), it has got the most stupendous multimedia and IT support (not every campus is NALSAR), it has got lakes, a hillock and a mid sized forest within the campus (well as you know those Pune law colleges have got those). Thus on my first and second day while trawling through the campus I realized that given the investments made by the Brit Government in these universities, it is no wonder that they seem to have the best of all law schools in India. And this is a plate glass university not even the Oxbridge material, so if I get so much here I wonder what my colleagues in the ‘higher’ places getting.

So I am settling fast, with faculties who are the very best (unlike the Nationals where some are good, some are average and some are bad), I am sure this is also a huge difference the other thing is the approach of the university on PG studies, it is more on self learning and critical analysis rather than the exam in the end of semester kind of rigour (which unfortunately most of the Law schools in India follow even at the LLM stage, though with projects this may be no longer fully true, but with the regressive stand in some univs on projects and experimentation thereon, I do fear that this gap would only widen).

I am getting a camera soon and hopefully I would let you all know about my travails in a pictographic manner. Hope you would be around when I next start on the series. As always feel free to spam the comments tool.

Reforming CLAT counselling process

Drawbacks in previous CLAT counseling:

·         Numerous categories like SC/ST/OBC/State quota/NRI/Foreign national were all counseled together and the lists were made freely migrable i.e. a student who has applied for NRI quota can move into foreign national seat if the seat remains vacant.

·         If a seat remains empty at a higher ranking college after the first round of counseling then the process to fill up that seat becomes cumbersome as the candidate who would to be allotted that seat may have already taken up his second choice and secured admission.

·         A central counseling as mooted in CLAT-2009 is impossible as students have to come from all over India and would create needless logistical and financial problems for the students and their families.

·         Two step process as followed in CLAT-2010 is fraught with confusion and uncertainty as a candidate who has submitted the initial amount for one college may get admitted into the higher rank college at a later date, thus it creates needless perplexity and anxiety among the candidates.

Recommendation for changes in CLAT-2011:

·         Have four distinct seat types which are sacrosanct and no one can migrate from one group to another after the submission of form. The groups may be 1. General 2. Statutory reservation (SC/ST/OBC etc.) 3. State quota 4. Management seat (no further division like NRI or foreign national)

·         No preference is sought at the time of filing up of form, results are declared and four distinct merit lists with further subdivisions as applicable are published.   

·         Instead of all the candidates to be called to a central location they are asked to report to their state capital where there would be a CLAT counseling centre linked up to a central office. Thus using a robust and secure IT network (if finances permit a temporary leased line from private operators like Reliance/BSNL/Airtel, if finances do not permit then Internet) all the candidates would be asked to submit their preferences.

·         All the counseling centers would ask the candidates from Rank 1-100 to come to the centre and fill up the college choice form which would allow the students to choose 3 colleges in preference list (there would also be a board alongside which would show the number of realtime vacancies in colleges in that category)

·         After the forms have been submitted with the requisite money, they would be collated and according to the ranks seats would be allotted and the list where each student has been selected would be published. A draft timetable could be like as below:

Time period	Comment
00.00-0.20	Reporting for x to 100+x
0.20-0.30	Distribution of choice forms
0.30-0.50	Filling up of choice forms
0.35-1.00	Submission of choice forms and DD
1.00-1.15	Creation of admission list
1.15-1.30	Publication of list and update of vacancy

·         State quota seats would be counseled by respective law school as per their own process.

·         Any vacant seat would be put up for counseling under management counseling which would be held after all the counseling process is over.

Advantages of the proposed counseling process:

·         A single tier process which would eliminate need to modify list at a later stage and would also do away with the needless anxiety suffered by candidates.

·         Entire admission process would be completed in 7 days instead of the present 20-25 days, thus classes can begin earlier and semesters wouldn't be affected.

Disadvantages of the proposed counseling process:

·         Every candidate has to travel to the counseling centre and that would entail some travelling and accommodation cost.

·         CLAT has to invest both human resource as well as capital in setting up at least 15-20 temporary counseling centers allover India.

The origin of Absolute Liability

Liability is another side of the rights accorded to citizens. Evolution of liability went hand in hand with evolution of law and society, vicarious liability evolved when the concept of delegation came about thus possibly in cave man society when a child destroyed property his/her parents would be held liable, later in the civilized societies of Sumer and Indus this would be slave or servant. Romans refined the system of liability and also added the codes of law and liability the vanquished would face, but the real impetus to provide a fault based liability came in the Islamic era when the Islamic canon laws derived independently or under the influence of Roman laws. Post renaissance laws regarding liability evolved at a fast pace in the common law system of Britain where the concept of Damnum sine injuria (damages without injury) was given precedence. Thus any damage would not necessarily give rise to injury and according to scholars of that era injury wan necessary to provide relief. Thus English courts dealt with two broad heads of cases:

• Where individual harm may lead to societal benefit at large eg, stopping adjoining landowner from doing something detrimental to neighbouring proprietors.
• Where legal remedy would be costlier than loss accrued.

In 1860 there arose the case of Ryland v Fletcher in England where a mine was damaged by water from overhead lake and when the miner sued the owner of lake the judge found that the laws of the time relating to the damage caused did not occasion an injury. Prosecution could be done on lines of tort of cattle trespass or negligence, the lower court allowed compensation based on negligence and trespass but on appeal in the Court of exchequer where Justice Colin Blackburn laid the principle of strict liability in order to break the impasse. He spoke on behalf of all the judges and said,

"We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiff’s default; or perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exits here, it is unnecessary to inquire what excuse would be sufficient."

Here we find a classic example of use of pragmatic use of tort regime to attain just and fair result. The law of the land at the time was incapable of providing equitable remedy so Blackburn J invented the concept of Strict liability to provide remedy. On further appeal Lord Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn, but added a further limitation on liability, which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate. Thus the rule of strict liability had following exception:

1.      The use of land has to be non natural

2.      Plaintiff’s own fault

3.      Act of God

4.      Consent of the plaintiff

5.      Act of third party

6.      Statutory authority

The position remained constant and thought to be saturated in common law countries until 1980s when pursuant to the biggest industrial disaster in world in Bhopal Indian Supreme court in an unrelated gas leak case (Oleum gas leak case of Delhi) laid down a liability principle without any exceptions.

Bhagwati CJ pointed that there is a need to find out ‘as to what is the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured.’ The question was does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined? The court held that, ‘the rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape’. But the court rued that ‘this rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country’.

So Bhagwati CJ went on to formulate his own test to fix liability:

“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.”