18 Clinical Legal Education, Law Schools and Legal Aid

Dr.M.R.K. Prasad

1. Introduction

With the adoption of Constitution in 1949, the ‘rule of law’ became the basic component of Indian democracy. The essence of free India was well summed up in Art.14 of the Indian Constitution which entitles every person, equal protection of law to guarantee the enjoyment of justice, liberty, equality and fraternity; the four paramount aspirations of the Constitution.

Judicial trends in interpreting the Constitution particularly from Maneka Gandhii case, made ‘due process’ of law a cornerstone of Constitutional ideology in post-independent India. Yet this Constitutional guarantee is a luxury for many facing problems of poverty, economic deprivation, social stratification and want of education.

The efforts for ensuring access to justice apart from Constitution of Indiaii are found in Legal Services Authorities Act, 1987;iii Civil Procedure Code,1908;iv Criminal Procedure Code, 1973;v Advocates Act, 1961;vi Reports of Committees constituted by the Government of India and other agencies, Law Commission as well as Reports of various other governmental and non-governmental initiatives.

The enactment of the Legal Services Authorities Act in 1987 has entitled more than 60% of the Indian population to free Legal Aid. vii With such a huge number of claimants, it is highly impossible for the State to offer quality free Legal Aid. In addition, the challenges faced by the country in bringing legal system in tune with Constitutional guarantees of socio-economic and political equality made the legal education extremely important. As a result, legal education in India was required to change and reform its structure and pattern. The direction of such change was required to be attuned to the Constitutional philosophy of ushering in the socio-economic transformation of the Indian society in to a just society.viii

Competent and affordable legal services are pre requisites for a just society. Competent legal services would be available only when legal education produces competent and yet socially sensitive lawyers. As India is having highest number of Law Schools in the world, it has great potential in promoting access to justice to the marginalized section. Therefore this module explores the role of Law Schools in promoting access to justice through its clinical activities aimed at providing free legal aid.

2. Learning Outcome

After reading this unit, the reader shall be able to:

1.Understand the basic setup of legal education in India

2.Understand the concept of Clinical Legal Education and its goals

3.Explicate the link between Law Schools and its Legal Aid Clinics in promoting access to justice.

4.Explore the challenges in implementing clinical legal education in Law Schools

5.Learn various opportunities available to the Law Schools in dealing with the legal needs of the society

3. Legal Education in India

Legal education in India is predominantly regulated by the Bar Council of India in furtherance of powers vested in it under the Advocates Act, 1961. Legal education has been imparted by different Law Schools in India, which includes those funded and managed by the Government; financially aided by the Government but privately managed; privately managed Colleges and Universities receiving no government aid;and University Law Colleges managed by the University Departments receiving government aid.

Traditionally, legal education has been offered as a three-year graduate degree that could be pursued after completing at least a bachelors’ degree in any stream of education. However, with the last two decades beginning with a path-breaking initiative in the form of the National Law School of India University,ix there is a growing trend towards a five-year integrated LL.B Course which may be pursued after higher secondary studies.

Successful implementation of the five-year course design in the National Law School of India University, prompted many other institutions across India to follow the suit. With the success of the NLSIU, many other States also adopted the same model and established National Law Schools. Some of such National Law Schools expanded on the experimentation process, introducing science, management and other liberal subjects in the first two years of the integrated course and offered the intermediate degree in different streams. The Bar Council of India had issued new rules on Standards of Legal Education and Recognition of Degrees in Law 2008 introduced double degree integrated course in place of five-year course.

Today, with more than 1000 Law Colleges and about 80,000 law students passing every yearxi and more than 10,000,00 lawyers registered, India has the largest number of lawyers in the world. With this staggering number, it is to be expected that Law Colleges would play a pivotal role in promoting and providing access to justice.

Explaining the role of legal education, Prof. Madhava Menon observed thatxii

(i) Legal education has an important role in directing and moderating social change; and in this regard, it has to operate as conscience – keeper of the society.

(ii) Legal education, shall manifest higher moral values, maintain high degree of competence and discipline, and ensure that no section of society is denied of access to its services because of poverty or social status.

(iii)All types of legal education is supposed to influence governmental policies on social justice and to prevent distortions. It should play the role to correct governmental wrongs, increase efficiency of excellence and achievement in all spheres of it activities.

To understand the role of Law Schools in providing legal aid to the needy, one should understand the fact that legal aid to the litigants only in court would not ensure access to justice. Though it is one of the necessary component but by itself would not be sufficient for achieving the goal of free access to justice. Then the question would be, what legal services are required in order to ensure equal justice?

To answer such a question one should comprehend the fact that people need access to lawyers’ services in order to defend and assert their legal rights however simple they may be. Constitutional guarantee of equality before law and protection of law would be meaningless if people are expected to represent themselves in court. It would be more meaningless if they are required to do it merely because they cannot afford lawyers’ fees. Further, if free legal aid is limited to litigation, it is inadequate and futile as several matters do not necessarily involve litigation yet require professional help. Such services are often more important as they assist the people in deciding how to respond to legal issues and avoiding litigation.

Three major Committees appointed for providing legal aid summed up what constitutes legal aid.xiii They identified seven components of legal aid. They expected Law Colleges to play a pivotal role in providing legal aid and suggested that students’ participation in the Legal Aid Clinics would help them in acquiring the skills necessary in the legal market place and also help in providing an opportunity for the students to develop humanistic perspectives and social orientation.xiv

Out of seven components that are identified by the Reports, Law Schools can meaningfully address all of them with some kind of limitation with the first one in view of the restriction on students and faculty on representing the clients in the regular courts. Keeping this potential of Law Schools in view the next part deals with emergence of Clinical Legal Education and its goals Law Schools.

4.  Clinical Legal Education and its Goals

The concept of practical problem solving, whether by working in a laboratory or in the field, as an important means of developing skills has been acknowledged since time immemorial. However, the concept of Clinical Legal Education, albeit one of the most outstanding developments, came to be incorporate in the teaching methodology only from the early twentieth century. It was in 1901, that a Russian Professor, Alexander Lyublinsky, first proposed clinical education in law on similar lines as in medicine.xv

Until clinical programs entered the scene, skills training and social justice work were for all intents and purposes, off the legal education agenda. Legal doctrines dominated the Law School syllabi with virtually all instruction offered through classroom courses dominated either by “Socratic” dialogue and appellate-court-oriented case books or traditional lectures.xvi Concentration on “the Law” pushed consideration of law practice to the background, to the point that any practical training seemed out of place in Law School – except when preparing for a moot court. Legal education was “Law School”, not “Lawyer School.”xvii

Clinical legal education is directed towards developing the perception, attitudes, skills and sense of responsibilities which the lawyers are expected to assume when they complete their professional education. Clinical legal education has wider goals of enabling law students to understand and assimilate responsibilities as a member of public service in the administration of law, in the reform of the law, in the equitable distribution of the legal services in society, in protection of individual rights and public interest and in upholding the basic elements of professionalism.xviii Thus, Clinical legal education provides students with opportunities for professional and intellectual development and prepares them for the practice of law, as competent and socially as well as professionally responsible lawyers.

According to Prof. Kenneth. L. Penegar, the Clinical legal education shall focus on;xix

(i) Creation of more coherent information about the law and its institutions in different communities so that people can easily know where to go, to get what type of services;

(ii) Develop suitable applications of social science findings to improve access to justice of disadvantaged or unorganized groups. For example, if we know that an organization stands more chances to win in a litigation than an individual litigant, why not the Clinic mobilize and organize such individual litigants as a influence group to seek justice;

(iii) Evolve delivery systems involving team services not only with other lawyers but with other professionals such as social workers, psychologists etc.;

(iv) Build teaching materials with the case histories of the varied matters processed in the Clinic;

(v) Expand the Clinic’s reach for clients beyond environmental law, poverty law, tax law, women’s rights etc., the Clinic can venture on service to public agencies dealing with welfare, prisons, social services etc, where the authorities may be well-disposed to receive fresh ideas, critiques and evaluations;

(vi) Help stimulate the creation of new and community-based institutions for resolution of disputes without resorting to lawyers and the courts; Consider alternatives to the traditional model of lawyer professionalism.

(vii) More experiments in Clinical courses including production of “help yourself” series in simple legal transactions without lawyer assistance and public evaluation of better distribution of legal services;

He summed up his assessment stating:“… it seems to me the future challenge of Clinical education is not just an integration of theory with practice, as important as that idea is, it is not just service to the poor and others ill-served by lawyers and legal institution, as important as that is; rather it is to find and develop new definitions and conceptions give proper scope, proper reflection to the complexities of our age. To put the idea differently, it seems to me the Clinical educator is in a unique position, and because of that position, has a unique responsibility to bridge the gap between law and its traditional conservatism on the one hand and the frankly pragmatic, spiritual idealism of many of its practitioners including the future lawyers who sit at your feet through several years of Law School.”xx

Thus, the concept of Clinical Legal Education has evolved and contributed a new pedagogy in the teaching of law. It, to a large extent, also plays a crucial role in bridging the gap between the theory and real-life practice of law or at least the environment in which they operate.

If institutionalized and implemented properly, clinical education has a potential to benefit the community, the institution, the faculty and the students immensely. With such a potential, how the Clinical Legal Education had evolved in India and what efforts are made by Law Schools in India would be addressed in the next part.

5. Clinical Legal Education in India

In India, the involvement of Law Colleges in legal aid activity began when the legal aid movement gained momentum in the 1960s. It was assumed that Law Schools could play a significant role in providing legal services and that they would do so through Legal Aid Clinics.xxi As a result, clinical legal education took its roots in India in the late 1960s.xxii In the year 1969 the faculty and students of Delhi University established a Legal Service Clinic. The efforts made by the faculty were purely voluntary and no attempts were made for institutionalizing and integrating Clinics into the curriculum. xxiii The Clinic was setup mainly to offer legal services to prison inmates.

Aligarh Muslim University organized a few Legal Aid Camps in the mid 1980s. Banaras Hindu University was the first to introduce a course on Clinical Legal Education in early 1970s. In 1983– 84, a Legal Aid Clinic was established in the Faculty of Law, University of Jodhpur. This Clinic was actively involved in the dissemination of information about social welfare legislation, helping in settling cases in accident and matrimonial disputes.xxiv National Law School of India University, Bangalore, introduced both compulsory and optional clinical courses. Three compulsory clinical courses were introduced in the year of 1992.

In addition to the above efforts, other Colleges, though without the establishment of Legal Aid Clinics, organized few Legal Literacy Camps and some Colleges also used their N.S.S. units for the above purpose.xxv

Though the number of Law Colleges involved in clinical education grew in this period, their programs remained fairly small, isolated and voluntary and they were compelled to work with limited financial resources. Further, the Clinics suffered due to lack of supervision, absenteeism and dearth of trained faculty. Almost all such initiatives were aimed at serving the poor and no proper emphasis was laid on the skills that the law students require in order to work in the Legal Aid Clinics or the skills that they could develop by working in the same.

Nevertheless, the efforts in developing and employing clinical legal education programs in a voluntary manner in infrastructurally deficient conditions at least resulted in sensitizing student in socio-economic issues hitherto alien to class room discussions in the teaching of law.

Finally in 1998, clinical education was made mandatoryxxvi and now many Law Schools offer legal services through Legal Aid Clinics with an academic credit. However, in 2008 the BCI issued revised rules on “Standards of Legal Education and Recognition of Degrees in Law”xxvii and the practical paper on legal aid was replaced by Alternative Dispute Resolution. But fortunately the rules made it mandatory that each Law School is under the obligation to establish and run a Legal Aid Clinic.xxviii This clinic shall be supervised by a senior faculty member with final year students.with the help of legal aid authorities, pro bono lawyers and NGOs. However, the Rules are silent about the academic credit for the legal aid work.

Like all other countries, Clinical education in India was principally focused on providing legal aid to the poor. But unlike many countries, providing legal aid in India is not confined to representing individual clients. Rather, it has a broader goal of securing social justice. Therefore the next part would focus on how Clinical Legal Education could promote access to justice.

6. Clinical Legal Education and Access to Justice

The connection between law and society is a complex one, albeit very important. Each society must therefore, identify the goals of the legal system it adopts, more so in case of a legal system which is expected to transform the concept of a welfare State into reality. The conceptualization and operation of law in terms of rights and duties and in terms of mechanisms, judicial and otherwise, for enforcing such right and duties is essential.

However, law and legal processes cannot exist in abstract but need to be attuned to the needs of and cater to society. Hence, conceptualization of law and its operation sans a clear understanding of its goals and role in social control and the development and its pitfalls. Further, when we speak of achieving a welfare State, we speak of a goal in common for the betterment of society. Thus, such goal ought to be reflected in the law and legal processes.

Legal professionals, be they at the Bar or Bench or even as policy makers, are agents in the legal process. Thus the legal education system, which creates these professionals, should itself have substantially identical social goals and ensure that such social goals are reflected in the content as well as methods of teaching. Therefore, the legal education needs to transform itself from a technocratic legal education to a socially relevant legal education.

Therefore, a sound system of legal education properly perceived and utilized, can make an important, positive contribution to national development and also determine the quality of the lawyers which will ultimately determine access to legal services.xxix

Approaches to achieving social justice must take into account not only those legal matters involving litigation but also assist people in understanding and responding to legal matters xxx and in securing their simple legal entitlements to improve the quality of life.xxxi

There is no doubt in the minds of the members of the various Committees on legal aid that this is a daunting task in view of the vastness of the country. They must structure a legal system that can deliver justice to a billion people. As a result, law students are expected to share part of the obligation of legal aid, i.e., provision of legal literacy, legal awareness and paralegal services.

Providing legal representation to an individual client is only a small part of the social justice mission in India. In order to promote social justice, Law Colleges must play a key role, particularly in programs that promote legal awareness, legal literacy, and influence public policy. An effective way by which a Law College can successfully promote social justice is by adopting Clinical Legal Education.

Clinical teaching in Law Schools has the potential to bring about change in the attitude of lawyers, judges and other law enforcement agencies, not only in relation to the traditional methods for resolving disputes but in also bringing about structural changes in legal policy and implementation. Therefore, the prime function of clinical legal education is to ensure that the legal system does not permit law to act as a tool to oppress the weaker sections of society.

Clinical legal education gathered importance globally due to its potential to improve the quality of legal education. Therefore, there is strong recommendation for the establishment of legal clinics in Law Schools and observed that participation in legal service clinics would not only be helpful in acquiring the skills necessary in the legal market place but also in providing an opportunity for the students to develop a humanistic perspective and a social orientation. To accomplish this task, clinical education in India needs to adopt Community Clinics different from the Clinics traditionally operated from Law Schools in the West. In order to achieve the dual object of producing socially sensitive and competent lawyers, India needs quality clinical legal education. Community clinics provide an excellent opportunity for Law Schools to promote access to justice.

In spite of such potential and reach of the Law Schools, legal education in India struggles to raise its standards. Particularly privatization and increasing cost of legal education poses several challenges in implementing clinical legal education across the nation. The next part focuses on those challenges.

7. Challenges

The fundamental challenge faced by the Clinical Legal Education is lack of resources. Lack of resources includes both, human and material resources. Lack in human resources includes insufficient number of trained faculty, lack of expertise, lack of guidance, failure of BCI to involve the local Bar, support staff, indifference of the judiciary and lack of public support. Problem with material resources includes financial resources, low access to computers and communication infrastructure, low pay to the part time faculty, practical difficulties such as transport for the students to the rural areas, lack of training manuals, books on Clinical Legal Education, etc.

In addition to these problems, Clinical Legal Education in India also faces problems like mass legal education, low involvement of other faculty in clinical program, part time students, supervision and evaluation of clinical programs, language and cultural differences.

8. Opportunities

In spite of several problems and drawbacks faced by the Law Colleges in access to justice through clinics, Law Schools could adopt appropriate clinical programs depending on conditions prevailing in the local region. The following are some of the programs and obviously the list is not exhaustive.

i. Legal Literacy Camps/Street Law Programs

In a country like India, where about 363million people live below the poverty linexxxii and some two-third of the population of more than a billion is dependent on agriculture; focus on legal literacy programs is extremely important. Law Schools can play a major role in sensitizing the public about their legal rights and duties. Legal literacy campaigns are suitable for Law Schools in India as far as organization is concerned. They require neither large financial resources nor special expertise.

Theater Art:

Law Schools also can encourage and train the students in street plays, skits and public performances for legal literacy and to advertise the free legal aid available at their colleges. Law Schools can take the help of various NGOs in training the students. Various issues such as Right to Information, untouchability, gender discrimination, domestic violence, children rights, and environmental issues, can be the subjects for such plays. Students can even go to nearby schools and educate the school children about the legal issues that concern them.

The following video link shows one of such attempt.

RTI Street Play

Legal Entitlement Programs

With a large number of families living below the poverty line in India, students can be trained to conduct legal research on welfare benefits floated under various Social Welfare Schemes by State and Central Government. This kind of research will be necessary to identify the beneficiaries under various schemes and to help them in submitting applications.

Proper research on these beneficial provisions is more than a necessity to identify the beneficiaries and to see that these measures actually reach the needy. This kind of work develops a sense of social responsibility in students and will expose them to the plight of their country’s poor.

Free Legal Advice Clinics

Law Schools can also establish Free Legal Advice Clinics in schools. In the Clinic, the students and teachers can guide people in identifying their problems and make them aware of the remedies available. These services are invaluable not only because they save the time and money of the prospective clients but also because they can reduce unnecessary litigation.

Para Legal Services

Students can provide paralegal services such as drafting affidavits, assisting in registration of marriages, births and deaths, electoral rolls and filling out various forms. Law Schools can do this easily by associating with Local Self -Governments, such as Panchayats and Municipalities. Para-legal services provide greater help to the public in securing their basic legal entitlements.

v.  Open Forums:

Another option for Law Schools is to adopt a village and encourage students to conduct a survey to identify the problems that the people in that particular village face. After identifying the problems, the students can approach the concerned authorities and arrange a public forum. Villagers can be duly informed about the program and encouraged to participate in the forum. People can meet the concerned officers on that particular day and settle their grievances in public.

Students can be instrumental in the smooth functioning of the entire program and they can follow up the matter with the concerned officers. These kind of programs are very effective in settling problems, as the officers give an assurance publicly and thus it is less likely that they would not fulfill those promises.

vi. Pro bono Representation in Quasi-Judicial Bodies

Restriction on students to represent clients was viewed as one of the major hindrance in development of clinical education in India. This being the reason, clinical movement in India is confined more to legal literacy and paralegal services. But quasi judicial bodies such as the Consumer Dispute Redressal Forums provide an opportunity to develop live client clinics in colleges.xxxiii As the Consumer Forums allow any person to represent the parties in resolving consumer disputes, the Consumer Clinics have the potential to offer all the skills that a lawyer requires in the profession. Therefore, establishing Consumer Clinics in the Law Colleges, becomes a viable option for both the faculty and the students.

vii. Public Interest Lawyering/Litigation

Students can be encouraged to conduct legal research on issues of public importance and the findings can be placed before the concerned Officer (who is responsible for its effective implementation). In case of inaction by the Officer concerned, the students can approach either the High Court or the Supreme Court for redress in the form of Public Interest Litigation. In all appropriate public interest litigations, students can appear before the Court and there by ensure justice.

Above methods show that Clinical Legal Education can play a crucial role in offering both; skills to students and service to the society. With the limited opportunities available in India, a whole hearted attempt to provide quality clinical education can promote and improve access to justice to the marginalized sections of the society.

9. Summary

Equality jurisprudence under the Indian Constitution is aimed at securing access to justice to the people irrespective of status. However, to ensure such guarantee to more than a billion is difficult though not impossible. As a result several attempts were made to involve Law Schools in sharing this noble cause. Various reports on legal aid stress the need of involvement of law students in this endeavor. Efforts of this sort could be traced as early as 1960s where several Law Schools like Delhi University and Banaras Hindu University experimented with a fair amount of success in providing access to justice to the marginalized sections of the society.

Unfortunately, such attempts being voluntary and practically without any backing by the Authorities, waned in time. At the same time in the other countries, particularly in USA, Legal Aid Clinics flourished with initial backing by the government and later became part of one of the effective legal pedagogy in majority of Law Schools.

Introduction of integrated five year program in law boosted legal educational reforms across the country and success of National Law School of India University at Bangalore revived Clinical Legal Education in India. With Bar Council of India making clinical courses compulsory and legal aid by the Law Schools mandatory, clinical education all of sudden become compulsory in all the Law Schools. Though it is a path breaking decision, it resulted in several problems like lack resources both; human and material. In spite of these initial hiccups, it opened a plethora of choices to the Law Schools to adopt and implement several social justice initiatives like legal literacy, para-legal services, law reforms and community Legal Aid Clinics. As clinical legal education has dual advantage of providing skills to the students and sensitizing them to the social needs it had a great role to play in ensuring access to justice.

REFERENCES:-

1. Koul A.K., ‘Legal Education in India in 21st Century: Problems & Prospects’, (Edit), Proceedings of the All India Law Teachers Congress Jan 22 – 25, (AILTC, New Delhi, 1999).

2. Madhav Menon N.R., ‘Clinical Legal Education: Concept and Concerns, A Handbook on Clinical Legal Education’, (N.R. Madhav Menon, ed., Eastern Book Company, Lucknow, 1998).

3. Rajeev Dhavan Ed., ‘Access to Legal Education and the Legal Profession in India’, (Butterworths, London, 1989).

4. Sushma Gupta, ‘History of Legal Education’, (Deep & Seep Publications (P) Ltd., New Delhi, 2006).

5. Frank S.Bloch & Iqbal S. Ishar, ‘Legal Aid, Public Service and Clinical Legal Education: Future Directions from India and the United State’, Mic. J. Int’l. L. (1990).

6. Frank S. Bloch & M.R.K. Prasad, ‘Institutionalizing a Social Justice Mission for Clinical Legal Education: Cross-national Currents from India and the United States’, 13 Cl. L. R., (2006).

7. American Bar Association, Section of Legal Education and Admissions to the Bar, Legal Education and Profession Development – An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, (ABA 1992).

8. Law Commission of India 14th Report on Reform of Judicial Administration (1958).

9. Law Commission of India, 184th Report on The Legal Education and Professional Training and Proposal for Amendments to the Advocates Act 1961 and the University Grants Commission Act 1956, 54.

10. Report of Expert Committee on Legal Aid : Processual Justice to The People 43 (1973).

11. Report on National Juridicare: Equal Justice – Social Justice 1 (1977).

12. Report of Committee for Implementing Legal Aid Schemes (CILAS) 1981.

13. Dr. Prasad, M.R.K.; & Dr. Pinheiro Marian, ‘Access to Justice for Marginalized People, A Study of Law School Based Legal Services Clinics’, GoI &UNDP 2011.