Libertatem Magazine

Parley with Prof. Dr. Shamnad Basheer, Founder of SpicyIP & Increasing Diversity by Increasing Access to Legal Education [IDIA]

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You put your hands out in the galaxy of Intellectual property Law in the country searching for the brightest of the stars, you’re looking for Professor Shamnad Basheer.

In our pursuit of getting to you the best advice and counsel, we went to Prof. Basheer, the man whose opinion was sought by the Honorable Supreme Court before it set out the Novartis judgment which has changed the course of evolution of IPR law in India.

Here’s what Prof. Shamnad Basheer has to say about the CLAT PIL, the mushrooming of law schools, the Indian Legal Education System and his piece of advice to Law Students.

Every time CLAT ends, ensue a new row of law suits. You’ve filed a PIL demanding that a permanent body be set for conducting CLAT, calling the present system, “arbitrary, unreasonable, inconsistent, opaque, negligent, sub-standard and inefficient.” What led you to file the PIL? What do you think the holding of the court would be?

Well I’ll start with the second part of the question since it is difficult to say what the judgment of the court is going to be. Our courts are as unpredictable as the rest of the country but we are hoping that they take it seriously in the sense that year after year its individual law schools doing this exam. While they may be good law schools and they could be running their setups well but then to conduct an exam of this magnitude is enormously difficult. Given that year after year the number of CLAT aspirants is going up, the quality of the question paper needs to be of a certain caliber and if you have one law school doing this exam one year and another law school doing it another year, one is never going to have a system that is foolproof. Everyone is going to make errors since each law school is doing it for the first time. What we really need is one institutionalized system that is a repeat player. It gains experience from the previous years, corrects the mistakes and more on. What we did is over the years we’ve noticed that almost every law school has committed errors, even the best of them, whichever way one wants to define the best as in the CLAT preference or any other method. No one really knows which is the best Law School, its controversial. But if you look at the National Law School of India, Bangalore, 2008, everyone says that was an error free paper, but we said no, even that had errors and we documented it. But the quality and quantity of errors was lesser than what we see now. Of course, this year, I think the college that did CLAT took the cake in terms of the number of errors, 50% or more of the paper was faulty, it had wrong answers or wrong questions. It’s for right reasons that we call it arbitrary and unreasonable, it had arbitrary questions, plagiarized questions! Even amongst the plagiarized questions, questions that had errors. I think it hit a very new low in terms of quality when it came to a premier entrance examination that is supposed to pick presumably the best students out of the country for the study of law. And if you look back at the National Law Schools, what made them premier law schools is the quality of students. It was the entrance filter that guaranteed that you have a high caliber student ratio coming in and then you give them enough space to interact among themselves and whatever shortcomings that you had in terms of faculty or infrastructure or resources, you more than made up by the fact that you had this high quality student base that interacted with each other, learnt from each other and then go on to become good lawyers. So by default that was the system and if that is the system and your reputation is drawn by the fact that you have these enormously talented children coming in because of this filter, you need to respect that filter and you need to treat it well. But what has happened is that over the years we have compromised the one key filter that accounts for this reputation and that’s why it agitated us, that, you know, this is the one that made a lot of these law schools what they are so let’s go back to this filter and repair it, put it back on track. We are not saying that the law schools are bad or that somebody is doing it intentionally, it’s just that systemically, there is an issue because it is impossible for the best of the law schools to do it independently. You need a permanent institutionalized set up.

On the same note Prof. Basheer, what are your thoughts about the prospects of the two new National Law Universities, namely Mumbai and Tiruchirapalli, have to offer to the law students?

Well I’m not a great fan of the mushrooming of law schools. It’s very simple, you have more than enough law schools in this country. I’d rather say you put your focus on improving the standards of the existing law schools of the country rather than go on and create more and more. This is almost an extension of the Indian ‘jugaad’ mentality in one sense, so there is a problem here, we don’t fix the problem but we go there and create another institution. And this seems to me to be our mindset. I mean many years ago when the government said that we don’t have much of legal research happening in the country out of universities so we create what they call ‘Centers for Legal Research and Excellence’, some such rubbish, and I said well, you already have your universities, invest in them and make them centers of research and excellence, our entire notion seems to be when something is faulty, we create something new. You create something new when the thing that is faulty cannot be repaired. I don’t think that we’re beyond repair. I think some of these things can be repaired we can focus a bit of our energies on it. No point just creating law schools after law schools. And we have very limited resources. How many faculty do you have going around really? Where are you going to get the faculty from? You have to think through the system. It cannot be asymptomatic assessment of the situation which is what unfortunately most of us do, we’re very symptomatic. We want quick pain relief we don’t care about the underlying symptom, the underlying symptom is that we don’t have faculty. How do you encourage more students to get into teaching, research and policy? Those are the things that need to occupy our mind. Once you get that pool of good quality people coming out of research and academia, then you have enough people going into institutions, that is the way you grow institutions and are build them. But all this mushrooming of institutions left, right and center and getting, presumably you don’t have enough people, you have dumb quality people coming in, what’s the point? What sort of lawyers are you going to create?

On the same point, there seems to be some obsession among law students, in the contemporary law schools of joining law firms and make a lot of money, nobody wants to go and teach and guide or enter public lawyering. What is your take on that?

I always tell my students, go out and make all the money you want but the assumption that law firms are the only way to make money is, I think, the most mistaken assumption. You know couple of students, very bright entrepreneurs at NUJS, some of my former students, went out and did legal entrepreneurship, they went into areas that nobody had gone, spotted business opportunities. Now compare them to their classmates who are slaving it out 16 hours a day in law firms. Some of them like it, but many of them hate it. I too worked in an intellectual property law firm, it is for each one of us to assess if we like the sort of job that comes with a certain outfit like that of a law firm. I loved my job at the law firm, somebody may not like it! But students are making their choices the wrong way. They are making their choices based on the assumption that my seniors had done this, this is the most prestigious job, this is the most reputed job, this is the coolest thing to do so let me try and aspire towards this. But if you ask the question do you really have a passion for that kind of a job, they’re not even asking that question. And if you don’t ask that question and you go there without a passion for that kind of transactional lawyering, one, you will never be a good lawyer in that set up, two, you will be unhappy, three, you will not be an asset but a liability for the firm itself. Law school should be an opportunity for you to find your passion. If your passion is that, go into that! If your passion is not that, once you find your passion, the money will follow, the fame will follow, the satisfaction will follow.

Prof. Basheer, you were a visiting associate professor at the George Washington University of Law at Washington D.C. and then you returned to India as a Ministry of Human Resource Development Professor Chair of Intellectual Property Rights at the West Bengal University of Juridical Sciences, Kolkata. What is the difference that you find in the teaching styles when we compare the Indian style vis-à-vis the American style?

I believe there is a lot more experimentation that is going on in the United States when you compare the two teaching styles. In India for a very long period of time we followed the lecture method, although we claim it to be a Socratic methodology of teaching, I’m of the view that no one really follows the Socratic process not for any other reason but for the fact that it is an extremely difficult method to imitate, it requires the teacher to help the students reach to their answers on their own, by posing before them a series of questions, something that is extremely tough to imitate in real terms because you need to not only have a stealthy hang of the subject at your end, you must also know how to control a class, which is something that hasn’t really happened. So, largely it is still a lecture method that we follow here in India, although once I came back to India in 2008 I did find a number of professors experimenting with their teaching styles by introducing more elements of critical thinking in their classes, but with that being said, I must admit the rate of research and experimentation is far less in India. In the US it is more of a critical mode of teaching that they follow, they first had the case law approach, now they have the problem solving approach, now they are gradually moving to the “flip class approach” as they call it where all of the reading happens at home, so that when you return to the class, it is just a one-on-one engagement with the professor in the classroom, which means that a bulk of your reading and assignments happen back home while there is a lot more deliberation and brainstorming in the classrooms. Also, the system in the US emphasizes largely on experiential learning, which I believe is another aspect that Indian law schools are far behind at. But, I’m as hopeful, I hope that with time the Indian Law Schools adapt such pedagogies and induct them into their systems in a bid to ensure an overall development of law students in India, a glimpse of which, I’ve already seen in a number of budding law schools.

Prof. Basheer you are an inspiration to an entire generation of law students, what is your message to all those law students?

I must say I’m not really a big fan of giving messages, but if I had to give one, I’d say, live every moment. As a law students there is this wild rush to embellish and craft your CVs in a certain manner, all of which is delved into to ensure that you get a nice job. And I don’t oppose that, you might get a great job, but I’m certain you are going to live a sad sad life if you tune into such a film. Each moment is to be cherished, each moment is to be lived, I’d say, explore your passions, find out who you really are, because quite frankly, law school is meant to be a journey of introspection, of self-discovery, don’t let it pass by as a banal set of years just because you were too busy preparing your CVs. Discover what the law is all about, discover philosophy, discover what is your connection with the universe; go out there, find love, love someone, go out and learn things from nature, which has so much more to offer; there is simply no rush at all. Interestingly, most of mankind’s cherished inventions were invented by inventors quite late in their lives, you don’t get it right on day 1, in fact you don’t need to get it right on day 1, take one moment at a time, but find your passion; I love the story of a Japanese painter who made his masterpiece when he was way beyond the age of 70 and had started painting after he was 50. Some of the best legal academicians that I know have found the law after 40 years of being in the profession. So, find your passion, give up on your race of embellishing your CVs, in fact I’d love to live another day to see CVs banned from university campuses. Let go of the mad rush, find your passion.

Ed Miliband once said, “Remember, every time you’re not practising, someone somewhere is, and the day that person meets you, he will win”, without a speck of doubt, we are certain, Prof. Basheer is indeed

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