NLUs need a mix of less regulatory oversight and more funding.
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FROM social media discussion, to the subject being covered up by prominent publications, the nationalisation of national law universities [NLUs] has always been a hot button issue.
What I intend to do through this piece is to bring out some aspects that otherwise remain uncovered in most of these narratives, viz. one of nationalisation as a silver bullet and one of exclusion. I have been the drafter of the only bill introduced in the Parliament on this issue to date, by Prof. Dr. Sugata Bose, erstwhile Lok Sabha member from the Jadavpur constituency. Needless to say, as a person invested in the topic, I can only present one particular viewpoint of the issue: I cannot do justice to all viewpoints in this piece.
Also read: Reimagining the National Law Universities as truly being national
Silver bullet
First, to address the issue of nationalisation as a silver bullet, one must understand what nationalisation means. ‘Nationalisation,’ loosely framed, is the ‘centralisation’ of universities where the universities are subsumed from Acts of the state legislatures into one consolidating Act by the Parliament of India. This is usually intertwined with the expectation that NLUs will become ‘institutes of national importance’ [INIs], another loosely defined term like ‘nationalisation’, but which is generally accepted to mean (coupled with ‘nationalisation’) that institutes get more autonomy and central funding.
If an institute has to assert its superiority by prohibiting the rise of others, then its entire basis of superiority is based on a spurious legitimacy.
Policy proposals assume particular problems by advancing solutions; for example, if the proposal is skills training for women to counter their lack of participation in the workforce, it is their ‘lack of skills’ that is the problem implicit in the solution. Policy proposals, therefore, produce the narrative of problems by itself. In the instant case, nationalisation (coupled with INI status) as a policy proposal presumes that autonomy and funding are the problems; the less the regulatory oversight and the more the funding, the better it is for the NLUs.
Also read: No proposal to nationalize National Law Universities, minister informs Lok Sabha
One of the distinctive features of the National Law School of India University [NLSIU] that made it special (and successful) was that, compared to other institutes, it had an increased role for the Bar Council of India. It became a “victim of its own success” by failing to sustain standards of research and teaching. It may well be that nearly all NLUs are underfunded and lack autonomy, but a causal link is missing in research; as we all know, correlation does not equal causation.
That said, gatekeeping INI status as conferrable only when an institute ‘deserves it’ is devoid of any logic whatsoever. Decisions like these are purely policy choices reflecting what is normatively attractive for the Parliament. For example, while NLUs have never been subsumed into central legislation since the passing of the National Law School of India Act, 1986, the Indian Institute of Petroleum and Energy, Vishakhapatnam has been an INI since its inception in 2018 before even a single batch had graduated. Indian Institute of Management, Jammu, established in 2016, the same year when the Himachal Pradesh NLU, Shimla came into existence, has INI status as well.
The point of this is to say that one should temper expectations from nationalisation (and INI status) as being the solution that magically solves all problems. In corona-lingo, INI is the booster dose, not the vaccine. The Centre has little to do with the day-to-day functioning of a nationalised institute, and the success of such institutes lies primarily on institutional leadership. The NLUs did not achieve even a modicum of success owing to the lack of financial support from the State – they achieved it despite it. So, one has to be careful about a means-ends reversal with nationalisation: nationalisation as a means should not eclipse the goals of transparency, accountability and government support to become an end in itself.
One cannot throw money at a problem and will it away; it has to be coupled with fundamental changes in vision, outlook, leadership and perhaps most importantly, inter-institutional unity. The brand only grows if it lifts every institution with it, including being an inspiration for all universities without the coveted ‘NLU’ tag. If an institute has to assert its superiority by prohibiting the rise of others, then its entire basis of superiority is based on a spurious legitimacy.
Also read: “Institutions of Eminence” or “Institutions of Exclusion”?
Exclusion
This brings me to my second point: one of exclusion. In the September 2020 judgment of the Karnataka High Court quashing the 25 per cent domicile reservation at NLSIU Bengaluru, the court observed, as per the arguments presented, that “[NLSIU] cannot be equated to a Law college of a State University nor is it akin to other National Law Schools in other States.” (emphasis supplied) The fundamental basis of the superiority of NLSIU is the othering of subsequent implementations of its model: there is NLSIU and then there are others. This purism of only one ‘true’ NLU effectuates itself in various other forms, whether as-is or mildly.
One obvious manifestation is the basis of exclusion as the reputational standard through the existence of ‘tiers’ of NLUs: the old ones are the ‘first tier’ NLUs while the newer ones go as low as a ‘fourth tier,’ more tiers than perhaps even the Indian Railways would be comfortable with. Both the new and old sets of NLUs mutually define each other as ‘we are not them;’ the old NLUs treat this as an exclusionary mechanism, and the newer NLUs mean this as a depiction of their misfortune. As a Swiss friend told me once about their interaction with a graduate from a ‘first tier’ NLU, “[t]hey seem like the mafia of institutional reputation.” This exclusion extends into academic, financial, and other matters much beyond reputation in a lot of cases. Unlike many other national institutional systems, there are no faculty, student, or knowledge exchange initiatives even on the own accord of the NLUs, since there is hardly any interest in lifting up the whole ‘system of NLUs;’ most interest lies at the individual institution-level.
Unlike many other national institutional systems, there are no faculty, student, or knowledge exchange initiatives even on the own accord of the NLUs, since there is hardly any interest in lifting up the whole ‘system of NLUs;’ most interest lies at the individual institution-level.
This also leads me to another angle of this exclusivity narrative: it is (nearly) always perceived as a zero-sum game. Somehow, the idea of only a couple of elite institutions founded upon exclusive access as a propagation of the NLU narrative does not resonate with me. India needs more good lawyers, not less. If one’s ‘merit’ relies on excluding others from access to the corridors of knowledge, then merit just dissolves into privilege and luck. A dilution of the NLU brand (if there is one) is certainly possible if there are 108 NLUs (three in each state/UT), but the dilution debate is one from where a solution for increasing demand for good legal institutions should come; it should not stop at prohibiting access.
Moreover, neither teaching talent nor learning capability are finite. Good institutions create demand for good academics (and competitive, better-paying jobs) and good academics demand good institutions. As for students, one can ask the question: does the institution define merit, or does merit define the institution? Often, the two are collapsed into each other: that ‘merit’ can only be found in those with a CLAT (Common Law Admission Test) rank good enough to attend the ‘first tier’ NLUs is absurd.
There is an infinite possibility of creating as many good institutions with as many ‘meritorious’ graduates as one needs. If that were not the case, the U.S.A., for example, would not be having so many world-class institutions if its teacher-student-jobs talent pool was finite. One cannot decry the attempt at a creation of Yale University or New York University (or Case Western Reserve University) as a threat to Harvard University. One has to remember that ‘elite’ is not a synonym for ‘meritocratic.’
The dilution debate is one from where a solution for increasing demand for good legal institutions should come; it should not stop at prohibiting access.
There is actual data to support the stance that limiting resource (in this case, knowledge) access to only a handful (for example, by having only a handful of good institutions) is a fallacious position. Research through controlled questionnaires (n=4197) states that “advantaged group members perceive policies that worsen or maintain disparities between groups as increasing resource access for the advantaged group, even when this is not so.” This is due to the misperception of equity as a zero-sum pie redistribution, resulting in dilution of status and holdings for the advantaged, while often, equitable policies result in universal prosperity. Non-zero-sum policies thus fallaciously end up getting discarded as disadvantageous. Interestingly, these misperceptions have little to do with ideological beliefs on equality – support for social justice, progress and equality do not necessarily follow in action.
Dénouement
In the end, there needs to be a fundamental rethink of what NLUs are to be and whether the basis of exclusion is sustainable as a progressive agenda for nationalisation. There should at least be no iota of doubt that only when there is a shared commitment towards progress and betterment with equitable enhancement of capabilities of all institutions alike, will the NLU brand be a worthwhile homage to Prof. N.R. Madhava Menon’s vision.
