Hits and misses of NEP 2020 and its impact on legal education

The prominence of this new policy is that it redefines the education system on several trajectories, enabling easy access and participation of students, multidisciplinary courses, system efficiency & governance, and facilities of research and development.

Emerging from a painful partition and struggle for independence, the first-ever education policy of the nascent Indian democracy was implemented in the year 1968, under the reign of the then Prime Minister Mrs. Indira Gandhi laying focus on Right to Education. Ever since then, India has seen a new education policy only once every few decades. Debated sparingly, it was then replaced by the policy of 1986, administered by Mr. Rajiv Gandhi. Embodying a few modifications, the policy of 1992 has since then, guided the education system of the country. It is now approximately 3 decades later, that a refurbished National Education Policy (NEP-2020) with sweeping amends has been unveiled by the government spearheaded by Mr. Narendra Modi. Not since 1992, has there been more educational reform. As a result, the NEP 2020, has been doing rounds of debate and suggests to touch down on several prime issues of educational development. The prominence of this new policy is that it redefines the education system on several trajectories enabling easy access and participation of students, multidisciplinary courses, system efficiency & governance, and facilities of research and development.

 A Blow to Rote

 The NEP-2020 welcomes some revisions as it establishes a single regulatory body for higher education institutions, discontinues MPhil programs, and provides for multiple entries and exit points in degree courses. It likewise suggests low stakes board exams and a common entrance exam for universities across the nation. This was necessitated due to the dearth of quality institutions and unreasonable entrance requirements such as high cut-off marks.

 Another applauding step that the policy tenders is to universalize school education at all levels by expanding access to more early childhood education. It further envisions to ace a 100 percent Gross Enrolment Ratio (GER) from Pre-Primary to Secondary level (age group of 3 to 18 years) in school education by 2030 thereby proffering a strong foundational literacy and numeracy for all.

In a significant shift from the 1986 policy, the existing school curriculum structure of 10+2 will be revamped with a 5+3+3+4 structure thereby encapsulating children of all ages (3- 18 years) under the covers of formal schooling.

 Beyond this, the policy aims to expand open schooling facilities through the establishment of an autonomous body to march open and distance learning (ODL) as well as massive open online courses (MOOCs). This step caters to the dropouts and working children who are unable to find the space to attend formal schooling. It also suggests the medium of education to optionally be in the regional language mother tongue or local language until at least grade 5 as it manifests better creativity and understanding abilities.

Assessment modules will see a comprehensive shift from a program outcome-based evaluation to a year-round assessment structure with regular and formative assessments that will promote learning and development and at the same time will test higherorder skills, analytical and critical thinking.

Additionally, the students will now be able to flexibly pick and choose their interests within-subjects ranging from arts and sciences to vocational and academic streams as well as extracurricular and curricular activities.

Another idea that the policy professes is the concept of bagless days or internship for students, so as to open them up to the realworld understanding of the subjects of their interest from local experts and inculcate skills at an early age.

Donning another feather in the policy is the inclusion of coding as a subject with the intent to merge with the rapidly increasing technological era. This will expand innovation and seamless creativity while promoting analytical and logical thinking. The policy likewise speaks of a comprehensive set of recommendations for the promotion of online and digital education consequent to the recent epidemic to better prepare the system with alternative modes of quality education in case such need arises.

The idea is to make education and learning easier accessible and engaging. The realization of this idea will involve board exams to be testing primarily core capacities and competencies rather than rote learning. There will also be a provision for an improvement exam after the main exam if the student so wishes. Standardized school exams will be introduced for students in grades 3,5& 8 for the purpose of tracking the progress throughout the years of study in the school rather than at the end. The National higher education regulatory council NHERC will be set up to function as the primary and sole regulator in the higher education sector including teacher education but excluding medical and legal education.

Orchestrating Legal Education

Under the helm of the new policy, private and selfgoverned institutes are witnessing a radical shift from being perceived as affiliated to a more self-reliant structure. This ‘autonomy’ will now bring organizations and institutions vested with financial and educational independence, to the brink of corporatism, wherein they are enabled to create additional courses and departments. Disjunctively, without funding from government bodies, institutions will naturally turn to the students. Under the guise of this autonomy and structure, a steep increase in the tuition fee will be witnessed, not just for students in that particular department, but all the students attending that institution. This coupled with the window of multiple exit options at universities will increase the dropout rates which will only exacerbate the already fragmented landscape of the Indian higher education system. Under the multiple exit and entry option, if a student decides to leave mid-course, he/she will bestow appropriate certification for credits earned until that point which will be then be digitally stored in an Academic Bank of Credit [‘ABC’]. A ‘certificate’, a ‘Bachelor’s degree’, a ‘diploma’, and a ‘Bachelor’s Degree with Research’ respectively will be accorded for each year of a four-year course. The financial autonomy resulting in financial burden on students and the availability of certification each year will propel students to consider dropping out. This creates an immense disparity between financially strong and other students where the former has the higher prospects for studies and is reinforced with better opportunities, thus creating an unlikely situation where higher studies become a privilege rather than a basic requirement only for those who can afford it.

Moreover, a centralized education system leading to social exclusion and dilution of the Right to Education Act is only the tip of the iceberg; the government stated that it is proposing to improve the quality and autonomy of higher education, however, is a completely backward move, it is dismantling the University Grants Commission [‘UGC’] which is a core structural and regulatory body for higher education. This will only accelerate the commodification and centralization of education, which is perilous considering the probability of the ruling party thrusting its ideological and capital requirements. This is in fact, not the first time such a move was attempted. The Atal Bihari Vajpayee Government tried to usher similar reforms but was met with strong opposition. The contemporary education reforms have come into being only because they were passed through the backdoor without the consent of the parliament and a proper code of conduct.

While NEP 2020 envisions a transformative sea of changes across India, the arcane passing of the bill and the possibility of augmented malfunctioning in the Indian landscape needs to be ventured into. On a superficial level, this policy will seemingly elevate the economic rift in a country that is already dissected by wealth, caste, religion, and gender.

 The policy apparently envisages centralizing young Indian mindsets; however, a pertinent question that arises is whether that can paint the education system of the country with the hues of saffron? In this scenario, interdisciplinary, overall learning, multidisciplinary, holistic, could be a decoy to camouflage all the above-mentioned aspects. It will take ample time before this policy goes into full swing, letting the complexities rise to the surface. The procedure of its implementation will be put to test to decide its outcome. The drawbacks in this policy need to be addressed with a stringent and disciplined code of conduct to reduce the current deficiencies and prevent future adversities.

One of the critical fixes is to make the professionals equipped for changing situations. Professional education is the part and parcel of the overall higher education system; for professionals to take on the mantle, a skillset comprising education in the ethic, the importance of public purpose, interdisciplinary thinking, critical analysis, debate, innovation, and research must be inculcated and put to play. This can be surmountable if professional education does not suppress the individual’s forte. Selfgoverning bodies like the agricultural universities, health science universities, technical universities, legal universities, and autonomous institutions in other fields, must aim to become bodies propounding multidisciplinary education. All institutions offering either general or professional education will aim to naturally evolve into clusters in a centralized manner by the end of 2030. Legal education needs to be competitive globally, embracing novel practices, and espousing new technologies for extensive access and timely delivery of justice. Proactively, it must be enshrined with Constitutional attributes of Justice –Political, Social, and Economic, aimed towards national reconstruction through orchestration of rule of law, human rights, and democracy.

 Another dire issue to be addressed is of the English language which is not only paramount for global competitiveness but is also necessary for communicating and connecting with people from other states in India. In the new scheme, English will only be offered from the secondary level. Discontinuing English as the primary medium of teaching and learning can hamper competition on a global level mostly where English is the parent/ first language. Career building, outsourcing technical support, and skills are hegemonized by the western countries where English has the utmost importance. Consequentially, students from impecunious families in India will not have strong communication attributes along with a low grasping power compared to the rest. This usually happens due to the lack of affordability of tuitions and students not being able to hone the English language ultimately growing averse to it. A disadvantage persists to the lower caste who see this language as a medium to escape caste hierarchy.

Additionally, it is also alleged that this policy promotes centralization because this policy has a point that states that a new teacher’s training board will be set up for all kinds of teachers in the country and no state can change. Further, the curriculum for legal studies must mirror the socio-cultural contexts with an evidence-based manner, history, legal principles and jurisprudence. Institutions offering legal education must consider offering bilingual education in English and in the language of the State where the institution is situated.

The Interplay of NLUs and NEP

The advent of the National Law Universities [‘NLUs’] for legal education in India has often been censured for fostering entitlement and remaining inaccessible and isolated to most of the law aspirants. A cursory glance examination of the system is enough to exemplify that the criticism is not bereft of merit. Voices have been pedestaled on multiple occasions to increase the diversity in and of NLUs. Most of these concerns were at the earliest expressed by late Prof. Shamnad Basheer, who through the establishment of Increasing Diversity by Increasing Access to Legal Education [‘IDIA’] attempted to equip and intercept some of these issues. However, these points of concern have suffered the consequences and costs of insufficient and slow institutional reforms. Moreover, a deeper analysis of recommendation, however, reveals flaws in design and possible implementation.

Into the bargain, one of the primary recommendations of the policy is regarding a multi-disciplinary institute which acts like a double-edged sword which can either provide law students with the opportunity to interact with students and scholars from different fields and thus develop a more varied understanding of the law or lack the practicality of this facet to be warranted with the shortage of physical space, and deficiency of financial support. Most NLUs are, however, already facing space crunch and are unable to shelter the existing batch of students within the campus vicinity. They are working in a self-reliant model with limited funding from the state governments. In such cases, forcing them to open up new departments could further drive up their costs and hence decrease accessibility. Cluster model could function better for these institutes. The policy, however, does not elaborate on how these clusters shall operate.

The recommendation to promote bilingual teaching in state law universities is commendable, though it has certain pitfalls. The policy is intended towards implications to the state institutes offering legal education, which makes it applicable to the NLUs. As envisaged, the appointment bilingual teachers based on the regional language of the place could help to translate legal materials for students familiar with the respective language and also for the courts which function mostly in English. However, it disentangles the problem of a language barrier for NLU students only to a restricted extent. Though it certainly helps a student, who is studying at an NLU situated in her region, it turns a blind eye to account for people who could be taking admission in different states. De-emphasizing English as against regional languages is not the solution for legal education. To address this issue, it is necessary not merely to introduce bilingual education throughout, but to also start extra remedial courses/classes for English as it is the primary language used in the legal field.

The most pressing issue exists with the third recommendation in the NEP. The statement prima facie materializes to be a reaffirmation of the Constitutional ethos in legal education. However, phrases like national reconstruction and socio-cultural contexts that stipulate further travesties. While the term socio-cultural context finds its explanation in the policy, it does not throw any light on the exact meaning of national reconstruction.

The revised NEP as it elaborates, states, “It is the function of legal education to transmit the foundational values of Indian democracy to learners to give legal studies the necessary social relevance and acceptability.”

 Novelty cannot be refurbished by looking at history and culture for understanding the legal aspect. Historical context has been jurisprudentially recognized as an important aspect of legal theory by scholars. The draft policy passed over all other aspects of law and tends to over-emphasize on culture, mythology, and tradition. The usage of the term “has to fall back upon culture and traditions” cannot be disregarded as a mere statement. The government on multiple stages has expressed its desire for reviving the Vedic traditions and Hindu sentiments. Taking this in the background, the verbatim of culture, mythology, and tradition while discussing legal education portrays an alarming situation. The draft further asserted that law cannot be independent of culture and states the study of classical law texts. Some of these texts, being the prominent have fallen into ignominy for cultivating an outdated and discriminatory frame of mind. Revisiting these texts in the educational framework shall do more harm than good to legal education. With assertion, it is true to say that the law is a memory, and hence has to derive from its past; but at the same time, some memories can only function as a reminder for the need to progress and cannot text to rely upon for the study of law.

It is noteworthy that the policy when dealing with legal education makes no recommendation towards making law schools more comprehensive. It remains tranquil on both the questions of caste and gender in graduate as well as in postgraduate studies. Its recommendations can potentially enhance concerns.

Hawk-Eyed View

 A nagging question that remains is whether there is more to this policy which was unceremoniously adopted by the Union cabinet without any juridical application of mind? Though the vital reforms required in the education sector, such as widening the availability of scholarships, strengthening infrastructure for open and distance learning, online education and increasing usage of technology are reflected in the new policy, it is also categorized as a political document which can be comprehended from the remarks of political and ideological organizations.

As education is catalogued under the concurrent list, laws made subsequent to this list are first put up as drafts for a minimum threshold period. This threshold period is to stimulate suggestions and discourse from the states or distinguished personalities from the respective field of the draft bill. However, the NEP 2020 was bypassed in the parliament, thereby violating the above-mentioned code of conduct and procedure. A new inherent policy introducing such substantial changes in the country must endure discourse in the parliament. Can this be visualized in the light of an existing ruptured system of higher education being replaced with the decoy of a commercialized and centralized education system?

Altogether the NEP policy on legal education, like most of its other policies is quite like a pie in the sky – agreeable to comprehend but implausible to be realized. It does change things academically and theoretically, but to implement them in real life is going to be a very onerous task. This policy needs to be followed in its spirit to realise its intricate benefits.