Dharma and Adharma: The Draft National Education Policy

Bar & Bench June 16 2019
Tis Hazari

Vishavjeet Chaudhary

The recently published Draft National Education Policy notes,

"India’s development in the 21st century...will depend crucially on our ability to strengthen institutional frameworks that underpin governance. A key aspect of governance systems is the ability of the State and private interests to adhere to Constitutional values, and establish, support and maintain the rule of the law as envisioned in our founding documents. The maintenance and flourishing of socio-political institutions requires a cadre of professionals in the judicial system, including lawyers, judges, paralegal and administrative staff."

It goes on to say,

"...legal education is visualised as a public rather than a private good wherein the State, society and markets have distinct interests and reasonable expectations related to their contribution to inclusive and equitable development."

The Draft National Education Policy also notes that as matters in the lower courts are argued in the vernacular language, unnecessary time is wasted in translating them as High Courts mostly deal in English. 

Very interestingly, the report alludes to familiarising students with the idea of victory of ‘dharma’ over ‘adharma.’ It also suggests introducing students of law to Indian literature and mythology and its concepts of dharma and adharma. 

These are very stark observations about the legal profession. The idea that the legal profession is an exalted, onerous and noble one has been discussed in various places. In fact, the Constitution of India itself mentions only one profession in its tex t- that of law. It is a non-derogable constitutional right to have a free and fair representation by a lawyer in a court of law. 

This exalted position, along with the importance of lawyers in maintaining socio-economic as well as political rights and justice, has meant that they enjoy a very special place in the fabric of a democracy. Owing to that, it is essential that those who become lawyers continue to display the highest level of ethical conduct and integrity. 

Alice Wooley in a variety of her writings has identified some of the ethical as well as moral dilemmas that the legal profession faces. Duncan Kennedy had identified, how, according to him, law schools are places where hierarchy is the norm. 

In the Indian context, Ipshita Sengupta has critiqued professional ethics in the current system in her piece, ‘Nurturing Caring Lawyers: Rethinking Professional Ethics and Responsibility in India’. She recounts how, in the 2013 Advocate on Record examination, 90 per cent of those who appeared failed in ‘Professional Ethics and Advocacy.’

This figure is certainly shocking. Professional ethics is a compulsory course to be taught to all law students. It is also a compulsory exam to qualify to enrol for the Indian Bar. Thus, all lawyers in the country are expected to have ‘learnt’ the principles of ethical lawyering through this medium. 

Most countries have similar rules about training in professional ethics. In fact, in the United Kingdom, during the Bar Professional Training Course (for barristers), if one answers a question unethically in any of the courses being done, one can be awarded a fail in the entire course. Thus, the importance of professional ethics is such that it runs throughout the training as a lawyer. In most of the Commonwealth countries, lawyers have some form of training in professional ethics. 

The importance of integrity and ethics in the legal realm is now unequivocally pivotal. First, the lawyers wield immense power and with this power comes great responsibility. It is one of the very few professions which gives individuals the right, power and authority to question even the highest of officials and the state itself.

Second, lawyers deal in the justice system. Any civilised society must have enough faith in relying on them as agents in getting justice.

Third, the legal system, in order to be obeyed at least by the majority of people, should enjoy legitimacy and prestige. It is certainly more likely that a citizenry that sees the justice system and its agents as ethical are more likely to repose their time, trust and faith in it. It is also more likely that the laws are followed in a more uniform manner not just because of fear, but more so because of the faith in the justice system.

The means on how to strive to reach the gold standard in professional ethics for lawyers can be debated. Nonetheless, the Draft National Education Policy provides for a sound starting point on the importance of ethics in the profession. 

The author is a Barrister-at-law and has recently taken up door tenancy at London-based barrister chambers.

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