vbnmqwertyuiopasdfghjklzxcvbnmqw ertyuiopasdfghjklzxcvbnmqwertyuiop asdfghjklzxcvbnmqwertyuiopasdfghjkl zxcvbnmqwertyuiopasdfghjklzxcvbnm qwertyuiopasdfghjklzxcvbnmqwertyui opasdfghjklzxcvbnmqwertyuiopasdfgh jklzxcvbnmqwertyuiopasdfghjklzxcvb nmqwertyuiopasdfghjklzxcvbnmrtyui opasdfghjklzxcvbnmqwertyuiopasdfgh jklzxcvbnmqwertyuiopasdfghjklzxcvb nmqwertyuiopasdfghjklzxcvbnmqwer CLINICAL LEGAL EDUCATION tyuiopasdfghjklzxcvbnmqwertyuiopas dfghjklzxcvbnmqwertyuiopasdfghjklzx cvbnmqwertyuiopasdfghjklzxcvbnmq wertyuiopasdfghjklzxcvbnmqwertyuio pasdfghjklzxcvbnmqwertyuiopasdfghj History and Development of Clinical Legal Education in India
Aamna Khan,01, B.A.LLb (H)- 7th Semester, Faculty of Law, Jamia Millia Islamia, New Delhi -16.
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“ Justice must become central central to the law curriculum and community-based community-based learning should give the desired valueorientation in the making of a lawyer. Professional education will have to be imbibed with a spirit of social service. There is no better way of inculcating it except through exposing law students to real-life experiences crying out for justice”
~1~
“ Justice must become central central to the law curriculum and community-based community-based learning should give the desired valueorientation in the making of a lawyer. Professional education will have to be imbibed with a spirit of social service. There is no better way of inculcating it except through exposing law students to real-life experiences crying out for justice”
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CONTENT
S.no.
Topic
Page no.
1.
Acknowledgement Acknowledgement
3
2.
Introduction
4
3.
Legal Clinics
13
4.
Clinical Legal education
16
5.
History of Clinical Legal education
29
6.
Constitutional and legal status of Clinical education
46
7.
Adopting the Mac Crate Report in India
53
8.
Role of Law Student in Clinical Legal education 68
9.
Conclusion and Suggestions
86
10.
Bibliography
97
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Acknowledgement Any accomplishment requires the effort of many people and there are no exceptions. The report being submitted today is a result of collective effort. Although the report has been solely prepared by me with the purpose of fulfilling the requirements of the Clinical Law course, there are numerous helping hands behind it who have guided me on my way.
I’m
deeply grateful to my supervisor, Prof. Eqbal Hussian, for his guidance, patience and
support. I consider myself very fortunate for being able to work with a very considerate and encouraging professor like him. Without his offering to accomplish this research, I would not be able to finish my project report.
Finally, if I have mistakenly omitted to giving credits, I want to accept the humble apology and I want them to know that without their support there will have differences in this task.
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INTRODUCTION Most law schools in India confine their activities to professional and post-graduate legal education. There is hardly any institution in the University System which imparts knowledge or training in law to the people generally, to social activists and social workers using legal structures and to bureaucracy involved in administering social justice program within the government. With widespread poverty and illiteracy amongst large sections of the rural people, coupled with difficulties in getting access to justice through courts, this situation tended to result in violations of rights with impunity and in denial of social justice to the poor and the needy. Legal aid committees appointed by the Government have repeatedly pointed out the inequities of the system. They sought the introduction of legal literacy programmes, para-legal training, law reform for the poor, legal aid clinics in law colleges, orientation to the bureaucracy, the legal profession, and the judiciary. Some attempts were made in this direction in some States in India at the instance of the legal aid administration. Law Schools however remained uninterested and legal education continued to turn out law graduates least prepared for the social responsibilities expected of them in regard to social justice and social change. It was in this context, the Bar Council of India which has statutory responsibilities in respect of standards of legal education, decided to set up what they called a model law school which will act as a pace-setter in legal education reforms and in the use of law for social change. The National Law School was established in 1986 at Bangalore as an autonomous institution with a mandate to look at law in a developmental context and to strive for excellence in its programmes and activities.
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“Clinical legal education” means education that is experience-based and focuses on appropriate
lawyer roles, legal institutions, professional responsibility, and the theory or practice of legal representation or dispute resolution. This craft contemplates a range of skills and values commensurate with the development of professionalism, such as the ability to solve legal problems through various dispute resolution devises, the provision of competent representation, the recognition and resolution of ethical dilemmas, and the promotion of justice, fairness and morality. Clinical Legal Education extends to all fields of law which are taught in the law schools and universities. There are two components of Clinical Legal Educ ation: (a) Moot Court Training , and (b) Conducting Actual Clinics. Apart from lecturers and class-room discussions, Clinical Legal Education essentially includes Moot-Court preparation and role enactments for the law students. Such simulation helps in orienting students towards anticipating Court situations, handling and communicating with the client. It helps them to prepare briefs geared with practical orientation and actual Court room procedures. Moot Court training leads to better interpersonal communication – as students are trained to understand the psyche of clients, judges, etc. Such training leads to sharp reflexes and presence of mind and their language which should show alertness and attentiveness. Moot Court training obviously leads to improved communication skills, improved legal vocabulary, and better comprehension of the issue at hand.
There has been a link between social justice and clinical legal education in India and the United States since the late 1960s and early 1970s, when modern clinical legal education was first coming into its own and law schools in both countries introduced the new clinical teaching
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methodology through the establishment of legal aid clinics. Clinical education has always had a broader goal – to teach law students about what lawyers do and to understand lawyers’ professional role in the legal system – but it carried out that goal in its early years almost exclusively in the context of having students provide various forms of legal aid services. Over time, the legal aid dimension of clinical education has been replaced to some extent by a more professional skills-oriented focus as the clinical movement has made important and necessary gains in the legal academy, especially in the United States. Although social justice remains at the heart of many clinical programs, the effort to obtain broad acceptance of clinical legal education by the legal academy and the bar – realized already to a substantial degree in a number of countries around the world – seems often to undercut its traditional social justice mission.
In India the Legal education at the graduate level is under the control of the Bar Council of India vide section 7(h) of the Advocates Act, 1960 which states that one of the functions of the Bar Council of India is to promote legal education and to lay down standard of such education in consultation with the Universities in India imparting such education and the State Bar Councils. The Council has prescribed the general guidelines for the same including the minimum course content.
There is no denying the fact that law students do need training in the practical skills required by a lawyer. However, it is possible to reformulate these courses in a manner that will ensure that students not only acquire the professional skills needed by a lawyer but are also exposed and sensitized to issues of justice for the mass of India's population that suffers from the ills of poverty ,illiteracy and lack of awareness.
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In 1974 the Bar Council of India made mandatory a list of 21 courses, which the law schools must teach together with four other compulsory practical training courses at the LL.B. level. , Namely. Jurisprudence. Contract-I, Contract-II, Tort and Consumer Protection Law, Family Law-I, Family Law-Il, Law of Crimes, Criminal Procedure Code, Juvenile Justice Act and Probation of Offenders Act, Constitutional Law, Property Law,Law, of Evidence, Civil Procedure Code and Limitations Act, Legal Language and Legal Writing, Administrative Law, Company Law, Human Rights and International Law, Arbitration Counselling and Alternate Dispute Resolution Systems,Environmental Law,Labour Law, Interpretation of Statutes and Land Laws. (CiNo, 4/1997 ).
It is apparent from a perusal of these courses and the methodology prescribed for teaching that these are aimed at providing a large number of professional skills required by a lawyer relegating to the background the wider perspective and aim of ensuring that legal education should lead to just results also. If law in society is all about ensuring justice to all, legal education must ensure that the students develop a critical understanding of various disparities in society that result in denial of access to justice to variety of groups in society. Prof. Sathe asked the pertinent question , "Is legal education all about imparting skills of lawyering or does it also have to create 1
a commitment to certain values?"
He opined : “A lawyer is not only a seller of services but he is a professional who renders services for maintaining the rule of law. He is supposed to be an officer of the court. He has to have commitment to certain values such as democracy, individual liberty, social and economic
1
S.P. Sathe- Keynote Address in “roundtable discussion on community responsive legal education: trends in South Asia”, November 27-28, 2001, organiscd by.the United States Educational Foundation in India in collaboration with Pune Law College.
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equality including gender equality and concern for the disadvantaged sections of society which will include the poor, women, the physically handicapped, children, the minorities and the dalits. 2
Legal education has to create such a commitment.”
The UGC Model Curriculum has reiterated the same saying" that legal education ought to be a device for Human Resource Development in law with the object of attaining social justice and democratic development. Law colleges should make consistent efforts to impart professional training through clinical legal education.
The law colleges now have adopted all the pilot
programmes such as moot courts, mock trials and legal aid programmes in its curriculum, which is a positive step. It is important to begin by asking whether education should be limited to the development of personal capabilities and skills that enable a person to lead a better life and to earn a livelihood, and whether the wider social purpose of ensuring justice should be left to other agencies directly entrusted with this job? It is the basic premise of this research that whether education can be and should be used to promote justice in society.
Translating this concept of justice education in the field of legal education means that it is not enough for a law school to impart knowledge and skills required by a lawyer in pursuing the profession, but that education should also sensitize the student to issues of access to justice faced 3
by the deprived sections of society and the impact of law on such sections.
Students graduating from law schools spread out to various fields of governance and justice enforcement processes. Law schools therefore have an important role to play and responsibility
2
Supra Revised version of a paper presented at the Commonwealth Legal Education Association Regional Conference 2002, Thiruvananthapuram, Kerala, India. 3
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to discharge for promoting justice through education.The legal clinic concept was first discussed at the turn of the twentieth century by two professors as a variant of the medical clinic model. Russian professor Alexander I. Lyublinsky in 1901, quoting an article in a German journal, and American professor William Rowe, in a 1917 article, each wrote about the concept of a “legal clinic.” Both professors associated it with the medical profession’s tradition of requiring medical students to train in functioning clinics ministering to real patients under the supervision of experienced physicians.
This call for a clinical component to legal education was not an attempt to replicate the apprenticeship system that already existed in many countries, in which students worked outside the law school under the supervision of an experienced practitioner. Instead, it was a call for a new type of education that would offer students the opportunity to experience the realities of legal practice and the context in which laws develop, within the structured laboratory of legal education.
Law colleges should make consistent efforts to impart professional training through clinical legal education. It is good that the law college here had adopted all the pilot programmes such as moot courts, mock trials and legal aid programmes in its curriculum. The hosting of moot court competition at national level in the college for selecting a team to represent India at the Philip C. Jessup World International Law moot court competition was a creditable achiev ement of the college.
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She appealed to students and teachers in the college to devote themselves to the cause of promoting legal education and make the institution one of the best and most renowned in the country.
It is important to begin by asking whether education should be limited to the development of personal capabilities and skills that enable a person to lead a better life and to earn a livelihood, and whether the wider social purpose of ensuring justice should be left to other agencies directly entrusted with this job? It is the basic premise of this research is that edu cation can be and should be used to promote justice in society. It is believed that only such education is just which not only equips students with the skills required for the profession but which also leads to more just 4
results, practices and attitudes of professionals and decision makers at different levels. For education to become justice education, it must meet three tests:
(a) Each course should be formulated to include issues of justice in society
(b) The methods of teaching should promotes the basic values of equality and respect for difference, and
(c) The .education should equip the student with the theory and professional skills required in the given field of learning.
Translating this concept of justice education in the field of legal education means that it is not enough for a law school to impart knowledge and skills required by a lawyer in pursuing the
4
. Ved Kumari, Professor, Law Centre I, Faculty of Law, University of D~lhi,
~ 11 ~
profession, but that education should also sensitize the student to issues of access to justice faced by the deprived sections of society and the impact of law on such sections.
5
Students graduating from law schools spread out to various fields of governance and justice enforcement processes. Law schools therefore have an important role to play and responsibility to discharge for promoting justice through education.
The 1990s appear to be an interesting decade for liberal democracy and human rights. NGO movements in Asia, Africa and Latin America ha ve become increasingly articulate and assertive in their respective countries, and together, they are influencing policies at the international level too. The U.N. System has to be responsive to this development. The Rio experience and the 6
proposed Vienna Conference on human rights are indicative of this trend. The international funding institutions like the IMF and the World Bank are n ow seeking involvement of NGOs and the inclusion of human rights protection clauses in the ir aid agreements with Governments of the Third World. With the extension of economic demo cracy inevitably resulting from marketfriendly structures and globalizing processes, one can reasonably expect rule of law and human rights to be critical factors in world development during 1990s.
5
Revised version of a paper presented at the Commonwealth Legal Education Association Regional Conference 2002, Thiruvananthapuram, Kerala, India.
6
Madhava Menon “ In defense of socially-relevant legal education” (1996)
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Most law schools in India confine their activities to professional and post-graduate le gal education. There is hardly any institution in the University System which imparts knowledge or training in law to the people generally, to social activists and social workers using legal structures and to bureaucracy involved in administering social justice programmes within the government. With widespread poverty and illiteracy amongst large sections of the rural people. Coupled with difficulties in getting access to justice through courts, this situation tended to result in violations of rights with impunity and in denial of social justice to the poor and the needy. Legal aid committees appointed by the Government have repeatedly pointed out the inequities of the system. They sought the introduction of legal literacy programmes, para-legal training, law reform for the poor, legal aid clinics in law colleges, orientation to the bureaucracy, the legal profession, and the judiciary. Some attempts were made in this direction in some States in India at the instance of the legal aid administration. Law Schools however remained uninterested and legal education continued to turn out law graduates least prepared for the social responsibilities expected of them in regard to social justice and social change. It was in this context, the Bar Council of India which has statutory responsibilities in respect of standards of legal educ ation, decided to set up what they called a model law school which will act as a pace-setter in legal education reforms and in the use of law for social change. The National Law School was established in 1986 at Bangalore as an autonomous institution with a mandate to look at law in a developmental context and to strive for excellence in its programmes and activities.
The experience of the National Law School experiment during the last five years may be of interest to those who want to support legal edu cation in all its dimensions for the promotion of rights, social justice and democratic governance.
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The minimum that can be done in the current-scheme of the practical training papers to introduce justice is to frame problems for moot courts on aspects relating to human rights, poverty, discrimination or displacement issues, students to observe cases involving the issues of social justice and violation, of human rights and by including such issues in the instruments to be drafted by them.
LEGAL CLINICS A legal clinic (also law clinic or law school clinic) is a law school program providing hands-on 7 legal experience to law school students and services to various clients. Clinics are usually directed by clinical professors. Legal clinics typically do pro bono work in a particular area, providing free legal services to clients. Students typically provide assistance with research, drafting legal arguments, and meeting with clients. In many cases, one of the clinic's professors will show up for oral argument before the Court. However, many jurisdictions have "student practice" rules that allow law-cl inic students to appear and argue in court. . Clinical legal studies exist in diverse areas such as immigration law, environmental law, intellectual property, housing, criminal defense, criminal prosecution, and American Indian law. Clinical education presents an interesting intersection between the academic and professional environments. Clinical experiences are designed to max imize the student's abilities to perform newly acquired didactic and psychomotor skills in real patient care situations. A college depends upon clinical education centers to provide supe rvised learning experiences in which the student has the opportunity to apply the principles learned in the classroom. A fully operational clinic is made up of five key components: 1. The clinic is part of the law school curriculum, and it offers academic credit for student participation in handling cases or projects as well as in a seminar that is taught either before or during the handling of cases or projects;
7
Black's Law Dictionary, 6th Edition, "clinical legal studies," (St. Paul, Minn: West Publishing Co., 1990), 254
~ 14 ~
2. The students work on actual cases or projects, to the extent that local rules for those rules to permit the widest practical scope of the practice of law permit, and with the goal to expand student practice that local conditions permit; 3. The clients of the clinic are generally those who cannot otherwise gain access to legal representation, either due to their poverty, their social marginalization, or the unique or complex nature of their claims; 4. Representation by students is closely supervised by an exp erienced attorney admitted to practice in the relevant jurisdiction where they appear, preferably a teacher with full or part time status in the law school; 5. Work on real cases is accompanied by a course in the law school, taught with experiential methods such as simulation, role-plays and games, which trains students in the skills, values and ethics of law practice. TYPES OF LEGAL CLINICS
To meet the demands of the Indian Constitution, and the Legal Services Authorities Act, and the Bar council of India, an endeavor is made to bridge the gap between the theory and practice and to provide a remedy to the social problems, by Universities, Law Colleges, Bar Associations, Legal Service Authorities, Courts and NGO's who are setting up legal aid clinics. These clinics may be classified as Law College Annexed Clinics, Specialist Legal Aid Clinics, Mobile Service Clinics, Outreach Legal Aid Clinics, Community Service Clinics and Alternative Dispute Resolution Clinics. Clinics that provide an opportunity to law students to gain experience on variety of problems which include labour matters, such as wrongful dismissal, unemployment, insurance, compensation; Consumer Law problems, such as Hire purchase, defective goods, unscrupulous debt collection; Housing problems, relating to ownership and rent control; Family problems, such as maintenance, succession, inheritance, woman's rights, children's rights, aspects of HIV and Aids etc.,
The college annexed law clinics have an advantage of an association with a university and the supervision of the Faculty of the college, which gives an opportunity to the students to practice in. different areas of law including the emerging areas such as environmental law, IPR, ADR and Cyber laws. Students also have an opportunity to consult experts of the various fields of law.
BENEFITS OF LEGAL CLINICS
Who benefits from integrating legal clinics education and community service?
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Law students: acquire legal, transferable and personal skills; develop knowledge of legal rules and procedures in a real world setting; engage with a range of ethical and professional practical consideration;
Have the opportunity to apply acquired theoretical knowledge in an integrated way in a working context; Develop self confidence and Are sensitized to the plight of the indigent, creating awareness of broader societal issue issues in their relation to legal problems.
The faculty of law: Improves teaching, learning and assessment strategies; Has an opportunity for research in context as well as interdisciplinary; Develop links with legal practitioners, government, other service provider and funders; Obtains inputs from clinicians who are used to be practitioner and Raise its profile in the community.
The community: has improved access to legal services; benefits in that goals, set at national level for public interest are defined at clinical
level and put into effect and members are trained through interacting with students and clinicians
The organized profession: inherits better students in terms of ability, experience and value; and
improves its image through pro bono work funding
Governmental and its legal aid agencies: are assisted in achieving critical educational outcomes; are supported in providing legal aid; gain access to to academic research share in university resources through partnership and
benefit from the promotion of careers in the field of social justice.
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CLINICAL LEGAL EDUCATION Entering the workforce as a new lawyer can be a daunting prospect for any law graduate in any country. From society’s perspective, it can be risky for society to place responsibility for protecting the rule of law in the hands of untrained lawyers. Although law school education immerses students in legal principles, laws, codes, and regulations, applying this knowledge correctly and confidently requires an entirely different set of skills from those required to excel in classes and examinations.
Clinical legal education may be simply described as learning through practice, application, and reflection. It is quite different from the traditional legal education. The lecture and seminar method in the law schools to teach the students, does not meet the clinical demands. The aim and object of clinical legal education is to expose the law student in practice and to provide analytical, management and problem solving skills. In fact the clinical legal education is a bridge 8
which connects between theory and practice. What is learnt through books is easily forgettable but not what is learnt through practical experience. Clinical Legal education emphasizes on the student- centered education rather than teacher-based learning. It is the student who actively finds the learning and not the teacher putting the learning on the passive student. The purpose of Clinical Legal Education is not only make a' student a perfect lawyer as a marketable commodity and it also expose him to the social realities, responsibilities. professional ethics, which is known as social-centered education and value education.
8
“Clinica lLegal Education” by Jaya Kumar
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It is submitted that clinical legal education is essential to the student community and helpful to them in the following ways:
1. To develop the professional skills and practical application of law. 2. To develop research, analytical and communicative skills . 3. To provide necessary experience and exposure to handbook of the cases independently with the SC reliance . 4. To bring the law students Closer to the people who me in need of their professional assistance 5. To focus on social, moral and ethical values to a promising lawyer which are necessary in finding social reasoning in judicial decisions. 6. To motivate the law students by creating a sense of responsibility to serve the community
Clinical legal education is an interactive method of teaching law students the legal skills they will need in order to become competent, conscientious, and ethical lawyers. Most consider 9
clinical legal education to have two main purposes. One primary goal is to teach practice skills and professional responsibility to law students by having them generally represent real clients under the watchful eye of professors who supervise the students’ work. The other main goal is to provide legal services to meet the needs of the poor and underrepresented. In the process of addressing those needs, students must consider the practical, ethical, social, and moral considerations concerning law and the legal process. The relative significance of these objectives
12.
Ibid.
~ 18 ~
will depend on the country and the environment in which the clinical legal education program operates.
Clinical legal education is different from the traditional method of legal education. In traditional law school teaching methodology, professors lecture law students about legal principles, laws, codes, and regulations. In legal clinics, students usually represent real clients while being supervised by professors who generally are or have been practitioners themselves. These instructors teach the students practice skills such as how to conduct interviews, counsel clients, conduct negotiations, and advocate ethically on behalf of their clients.
Participation in legal clinics helps students learn about law through application, practice, and reflection. Clinic students learn how to listen to and communicate effectively with clients, witnesses, experts, adversaries, prosecutors, judges, and other players in the legal process. Their research and writing skills are enhanced, and students develop critical thinking skills and a contextual understanding of the legal process.
Clinic teachers prepare the students for working with real clients in a variety of ways. Typically, there is a classroom component in which interactive teaching methods are used to teach the students core skills including interviewing, client counseling, case analysis, negotiation, legal analysis and writing, oral advocacy, and professional responsibility. The classroom component may also focus on the substantive area of law that is the subject of the client representation. A disability rights clinic, for example, might have a classroom component that includes several sessions devoted to learning about the rules and regulations applicable to people seeking government assistance.
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In addition to the classroom component, students have many opportunities to consult with their supervising professor in order to prepare for real interviews, engage in case analysis, anticipate problem areas, and brainstorm possible remedies. When students engage in actual advocacy on behalf of a real client, their supervisor is available to provide expertise. Feedback is an essential part of the learning process.
TYPES AND FUNCTIONS OF LEGAL EDUCATION
There are at least five types of legal education all of which can make significant contributions in the area of rights and social justice. The five types are:
Public legal education or mass legal literacy; Para-legal training or legal education for social action and preventive legal services; Professional legal education or training for lawyers and judges;
Continuing legal education or education to upgrade skills and to equip person for special tasks in delivery of justice; 10 Most law schools in India confine their activities to professional and post-graduate legal education. There is hardly any institution in the University System which imparts knowledge or training in law to the people generally, to social activists and social workers using legal structures and to bureaucracy involved in administering social justice programmes within the government. With widespread poverty and illiteracy amongst large sections of the rural people. coupled with difficulties in getting access to justice
10
Madhava menon’s clinical legal education.
~ 20 ~
through courts, this situation tended to result in violations of rights with impunity and in denial of social justice to the poor and the needy. Legal aid committees appointed by the Government have repeatedly pointed out the inequities of the system. They sought the introduction of legal literacy programmes, paralegal training, law reform for the poor, legal aid clinics in law colleges, orientation to the bureaucracy, the legal profession, and the judiciary. Some attempts were made in this direction in some States in India at the instance of the legal aid administration. Law Schools however remained uninterested and legal education continued to turn out law graduates least prepared for the social responsibilities expected of them in regard to social justice and social change. It was in this context, the Bar Council of India which has statutory responsibilities in respect of standards of legal education, decided to set up what they called a model law school which will act as a pace-setter in legal education reforms and in the use of law for social change. The National Law School was established in 1986 at Bangalore as an autonomous institution with a mandate to look at law in a developmental context and to strive for excellence in its programmes and activities.
GENERAL OBJECTIVES:
It is not an easy task to consider how to improve legal education, even if all concerned agree there is a need for improvement. Generations of debate have not resolved the relative merits of liberal, general education versus a technical, professional orientation for the practice of law. Nor will we ever be able to reach universal agreement about the specific knowledge, skills, and values that law schools should teach if for no other reason than the vastly diverse practice settings in which our graduates work. There are some fundamental things about which we should be able to agree, however, and we should not refrain from trying to improve legal education simply because the task is difficult. Other countries are reforming
~ 21 ~
their systems of legal education, and our attention improving the preparation of lawyers for practice in India is overdue. 11 Objectives of clinical legal education can be achieved under the supervision of law schools by undertaking massive works in the following areas:
Integration of Social Values through Curriculum
Professional Practice and Skills Development
Externship
Law Clinic
Legal Service
The Legal Advice
Legal Aid
Public Interest Litigation
Greater Emphasis on Alternative Dispute Resolution (ADR)
Public Legal Education / Street Law Programme
Professional Ethics: Making Lawyers Work for the People
Community Involvement. Diversity and Pro-people Practice
BENEFITS OF CLINICAL LEGAL EDUCATION
In every society some portion of the population cannot afford professional legal representation, though they desperately need the advocacy of a good lawyer. Clinic students can make a
11
Supra n. 1 0, 12
~ 22 ~
significant, if only partial, contribution to filling this gap. Lawyers in many Central and Eastern European countries are overwhelmed by demand for their services and unable to devote proper attention to clients who cannot pay for their services.
Legal clinics can contribute to meeting this need, particularly in those cases that do not present a level of complexity requiring an experienced lawyer. Moreover, legal clinics can often do more for their indigent clients than law firms can. People often go there to seek legal advice about a problem that may be a result of a number of other social and legal problems that clients may not even want to acknowledge. Students learn to deal with some of the other needs of their clients and provide them with more than just the legal advice sought. Clinic students are able to directly assist only a small portion of all those individuals who might need free legal services. However, as is borne out from the experience of clinics in many countries, students who have been able to use their knowledge of law to help those in need often choose to continue to work for the public good. Clinics often produce a pool of young lawyers who will directly address society’s need for free or low-cost legal consultation and representation.
In many of the emerging democracies in the region, where a majority of people live in poverty, it is tempting for clinic administrators to look to clinics as a means of meeting a significant portion of the population’s need for legal services. Nevertheless, university legal clinics will always have to balance the interest of serving underrepresented clients with the educational goals of the clinic. This balancing will often mean taking fewer cases in order to have sufficient time to provide the supervision, evaluation, and feedback that clinical legal education requires.
Sensitizing students to social issues.
~ 23 ~
In a profession that lures young lawyers toward lucrative careers, clinics show students the tangible advantages of legal careers devoted to empowering poorer members of society and bringing the benefits and protections of the law to those who traditionally have had little access to them.
Perhaps one of the most valuable products of clinical education is that young lawyers-to-be feel the deep satisfaction that results from providing free legal assistance to people in need. Clinic students learn not only about the law, but also about its impact on life. By bringing law to life through the experience of clients in need, law clinics can be a crucial force in the improvement of human rights and the development of the rule of law.
Clinical legal education programs are a mechanism for training law students and helping them to understand the ethical, professional, and practical problems faced by practicing lawyers. Exposing law students to real-world experiences, within the context of a clinical legal education program, can result in a future talent pool for the public interest legal community.
Assisting practicing lawyers and legal organizations.
Legal clinics can also help the practicing bar by relieving attorneys of cases that demand too much time for too little reward. Student lawyers can learn from these cases. Likewise, clinics might take on a small number of less-complicated cases referred by human rights groups, leaving those groups the time and resources to focus on cases whose outcomes might affect larger policy issues.
~ 24 ~
In many countries with clinical legal education programs, practitioners choose to become involved in clinical legal education programs by providing an “internship” or apprenticeship opportunity with their organization or firm. They can also directly supervise students in a university-based clinic or serve as outside mentors whom the students can consult regarding specific issues. In such situations, students profit from a practitioner’s expertise and perspective, which may be different from that of the clinical professor. In turn, the experienced attorney or public interest organization receives low-cost lab or and may benefit from being able to influence and educate bright young students who will later join the ranks of legal professionals better prepared for practice.
Enhancing the legal reform process.
In the societies of Central and Eastern Europe, many viewed laws under the socialist legal order as tools of arbitrary power. Large portions of the populations of the region felt alienated and cut off from the benefits and protections of their own laws, even though they could be punished or restricted by those laws. As a result, to this day a pervasive attitude of fear, estrangement, and mistrust toward the legal system discourages many citizens from seeking the legal help they need.
By assisting individuals in their relationships with state and local administration, clinics improve the legal consciousness of administrators, bur eaucrats, and citizens alike. Students’ assistance and advice encourage citizens to pursue their rights through administrative procedures. Students’ involvement in facilitating communication between citizens and governmental entities also
~ 25 ~
functions as a type of civil control over the administration and encourages officials to apply the laws in good faith.
Clinical legal education may also play a valuable role in promoting legal reform and furthering respect for the rule of law.
Clinical students spend time studying particular legal provisions, applying such provisions in specific cases, and communicating with administrative agencies and law enforcement offices. The students’ experience may bring to the attention of academia some of the discrepancies between theory and practice or shortcomings of the law that might otherwise go unnoticed. Stimulating professors’ interest in these issues may also trigger academic discussion and encourage efforts to change judicial or administrative practices, or even to achieve legislative reform.
Teaching ethics and professional responsibility.
Working as a lawyer in the protected environment of the university-based clinic helps students to understand the implications of being practicing lawyers. The clinic serves as a forum for exploring and resolving ethical dilemmas under the supervision of teaching faculty, after which students are better equipped to make difficult decisions and live with the consequences. Clinics thus infuse legal education with a strong sense of responsibility and professional ethics.
~ 26 ~
As students handle their cases from beginning to end, they see the results of their decision making and work. Through clinical training, students assume responsibility for matters of great importance to their clients, and they gain the opportunity to incorporate the legal profession’s ethical standards into their practice routine during its formative stages. Working with the law in real-world situations allows students to discover the values critical to effective legal systems, and it encourages their commitment to the rule of law, justice, fairness, and high ethical standards. Indeed, learning about ethics on the basis of actual cases is far more effective than learning the abstract principles alone. Over the long term, clinics can help to develop students’ understanding and appreciation of strategic considerations with the interrelationship of issues of professional responsibility and ethics.
Improving the system of legal education.
Clinical legal education may have a positive impact on the quality of education in the law school generally. Meeting real clients and discussing real problems can stimulate students’ interest in legal issues, encouraging them to become more proactive and to pursue their studies more diligently. Trying to solve real cases instead of simply memorizing legal rules helps develop students’ critical thinking, a skill that they will use in their other law school courses.
Clinical legal education can also bring students’ practical experience under the supervision of law school professors. The system currently in place in Central and Eastern Europe provides an opportunity for students to work with practicing lawyers in the community prior to or just after graduating from the university. The system is widely criticized as inefficient because it places all
~ 27 ~
responsibility for instructing and supervising students on practicing lawyers, judges, or prosecutors, who are most often overburdened with other work. The law schools play an insignificant role or none at all. Introducing legal clinics into the law school curriculum offers an alternative form of instruction by providing practical education designed and implemented by law school professors to meet the needs of their students.
Finally, clinical education affords students an opportunity to consider the kind of legal work they would like to undertake in the future — or even whether they want to
be a lawyer at all, at a point in their education that allows them to adjust their studies accordingly.
In putting their education to the test in a clinic setting, they discover their strengths and weaknesses before finishing their legal studies. Consequently, students are able to work with their teachers on converting those weaknesses into strengths. The understanding of their professional qualities versus the demands of the profession aids students in determining which areas of legal practice suit them best before the y commit themselves to a specific field of law.
SIGNIFICANCE
Law is the cement of society and an essential medium of change. The significance of legal education in a democratic society cannot be over-emphasized. A knowledge of law increases one's understanding of public affairs. Its study promotes accuracy of the expression, facility in arguments and skill in interpreting the written words, as well as some understanding of social values.
~ 28 ~
It is pivotal duty of everyone to know the law. Ignorance of law is not innocence but a sin which cannot be excused . Thus, legal education is imperative not only to produce good lawyers but also to create cultured law abiding citizens, who are inculcated with concepts of human values and
human
rights.
Legal profession is objectively in the position of producing Statesmen. This is due to two reasons
(1) Lawyers belong to an independent profession. They are not subordinate to the government or to anyone else, and
(2) They are directly in contact with society in its entirety as they have to deal with all kinds of problems of people from all sections of society, unlike say, doctors who are confined to technical problems. Hence lawyers are the people who are most conversant with the problems of society as a
whole.
A well administered and socially relevant legal education is a sine qua non for a proper dispensation of justice. Giving legal education a human face would create cultured law abiding citizens who are able to serve as professionals and not merely as business men.
The quality and standard of legal education acquired at the law school is reflected through the standard of Bar and Bench and consequently affects the legal system. The primary focus of law schools should be to identify the various skills that define a lawyer and then train and equip its students with requirements of the field of law.
~ 29 ~
HISTORY OF CLINICAL LEGAL EDUCATION
The legal education in India particularly in traditional law schools has always been subject to criticism on the ground that it has failed to teach students how to practice law and develop court craft. On the other hand the corporate law schools have also criticized for not providing social context education namely service oriented, community oriented, public interest oriented and ADR oriented education to focus on issues that have an impact on large sections of the society. The present legal education is confined to traditional method of teaching viz., class room lectures, seminars, tutorials, court attendance and moot Courts. It is therefore, necessary to bridge the gap in legal education by strengthening the present clinical legal education offered in the law schools. The concept of dharma, in the Vedic period, can be seen as the concept of the legal education in India. Although there is no record of formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the King through his appointees who in turn were persons of known integrity and reputation of being fair and impartial . The guiding force for the King or his appointee was the upholding of the dharma.
The pattern of legal education which is in vogue in India, was transplanted by the English after the establishment of their rule in India. Formal legal education in India came into existence in 1855 when the first professorship of law was established at the Government Ephistone College . As majority of the population was rural and illiterate, the need was felt to bridge the gap between the existing law and the uneducated masses crying for justice, by rendering importance to formal legal education. In the year, 1857 legal education was introduced as a subject for teaching in
~ 30 ~
three universities in the presidency towns of Calcutta, Madras and Bombay. Thus, a beginning of the
formal
legal
education
was
made
in
the
sub-continent.
For almost a century from 1857 to 1957 a stereotyped system of teaching compulsory subjects under a straight lecture method and the two year course continued . The need for upgrading legal education has been felt for long. Numerous committees were set up periodically to consider and propose reforms in legal education. The University Education Commission, was set up in 1948 49, in the year 1949 the Bombay Legal Education Committee was set up to promote legal education. The All India Bar Committee made certain recommendations in 1951. In 1954, XIVth Report the Law Commission (Setalvad Commission) of India discussed the status of legal education and recognized the need for reform in the system of legal education. It depicted a very dismal picture of legal education . It was only from 1958 that many universities switched over to three year law degree courses. It was only by 1967, that it became onerous task for the three year law colleges to include procedural subjects into the curriculum of their law school.
The minimum qualification for being an advocate is an LL.B. degree, generally a three year course,
which
can
be
obtained
after
graduation
in
other
disciplines
.
A debate as to its efficacy in the recent past led to a proposal of five years integrated course after intermediate (10+2) examination. The three year course itself came to be restructured into a semester system and several papers came to be included and excluded as per the Bar Council Guidelines. Hence, the Council today allows both the courses 3 year and 5 year courses to continue. However, the dichotomy between the two courses based on various factors such as professional legal education, mental faculties of students, multi-disciplinary and clinical legal
~ 31 ~
approach
to
legal
education,
still
continues.
Clinical legal education emerged out of a recognition that while a traditional academic curriculum could teach legal principles, it took practical experience to know how to apply those principles correctly and with confidence. The legal clinic concept was first discussed at the turn of the twentieth century by two professors as a variant of the medical clinic model. Russian professor Alexander I. Lyublinsky in 1901, quoting an article in a German journal, and American professor William Rowe, in a 1917 article, each wrote about the concept of a “legal clinic.” Both professors associated it with the medical profession’s tradition of requiring medical students to train in functioning clinics ministering to real patients under the supervision of experienced physicians.
This call for a clinical component to legal education was not an attempt to replicate the apprenticeship system that already existed in many countries, in which students worked outside the law school under the supervision of an experienced practitioner. Instead, it was a call for a new type of education that would offer students the opportunity to experience the realities of legal practice and the context in which laws develop, within the structured laboratory of legal education.
Although some legal clinics were operating in the United States in the early to mid-twentieth century, the clinical legal education concept did not take hold in U.S. law schools on a large scale until the 1960s. Law schools in Russia and Central and Eastern Europe seriously began to consider clinical legal education in the 1990s. One reason for the development of clinical legal education in the 1960s was the general societal focus at that time on civil rights and an
~ 32 ~
12
antipoverty agenda. Law students were demanding a “relevant” legal education, one that would give them the opportunity to learn how to address the unmet legal needs of poor people in the communities in which they were studying law. The Ford Foundation saw the value of clinical legal education and funded clinics in their initial phases through the Council on Legal Education for Professional Responsibility (CLEPR). CLEPR grants enabled legal clinics to flourish, and once law faculties, students, and administrators saw the virtues of clinical legal education, law schools began to fund them from their general budgets.
Clinical legal education is so well entrenched in some countries that there are associations of clinical teachers which meet on a regular basis to discuss many of the issues this chapter raises. In the United States there is the clinical section of the Association of American Law Schools (AALS), the Clinical Legal Education Association (CLEA), and the Society of American Law Teachers (SALT). In the United Kingdom there is the Clinical Legal Education Organization (CLEO), and in South Africa the Association of University Legal Aid Institutions. In addition, the Global Alliance for Justice Education (GAJE) was started in 1996 to promote socially relevant legal education by forming an internationally active network for the exchange of information and ideas on justice education. The inaugural GAJE international conference was held in India in December 1999, with the second conference scheduled for December 2001 in South Africa.
12
Supra, introduction
~ 33 ~
CLINICAL LEGAL EDUCATION IN INDIA: A HISTORICAL OVERVIEW
Clinical legal education, broadly conceived, includes not only the clinical courses strictly so called, but also practice- oriented courses and activities included in or offered outside the curriculum. Before the advocate act came into force, the law students were required to complete certain courses on procedural subjects offered by the state bar councils and acquired practical training for over an year under apprenticeship in the chamber of a senior advocate.
The
arrangement was un satisfactory because of lack of integration between the university education in law and the practical training. The bar examination and the system of apprenticeship were not organized in a manner to provide the bar council of India, therefore, in consultation with the universities, devised a new curriculum uniformly applicable throughout India under which the necessary practical training was to be imparted by the universities themselves in the course of the 3 years law education. The intention was good: but the performance has been again very unsatisfactory. Under the scheme of legal education introduced in the late 1960s, practical training as such was not included as a compulsory part of LL.B programme. Courses such as civil procedure, criminal procedure, evidence, minor Acts, conveying and pleading were being taught mainly through the lecture method and examined through annual written examinations like other courses. It was possible that a practice orientation was given to the teaching of these subjects by the sheer accidents of being taught by a practicing lawyer employed as a part time teacher. However, part time teacher also adopted generally the lecture method and the student had no active, participatory role obtaining in clinical courses. There was hardly any exposure to legal research and legal writing. In the absence of the case method of teaching and class discussion, even
~ 34 ~
opportunities for developing analytical faculties and reasoning capabilities were inadequately provided I the curriculum. The term clinical education was not even talked about in academic circle or referred to in the literature pertaining to law study. Because of the traditional separation between legal education and practical training, the first remaining with the universities and the second with the bar, it did not appear necessary for law teachers to develop a clinical methodology and integrate it with the law curriculum. The structure and status of legal education obtaining during this time also did not permit the same to be taken as professional training for the bar. The bar council of India, while adopting the rules under the advocate Act for restructuring legal education in 1982, did not appear to have given clear thinking to the nature, content and method of practical training it desired the university to give through its recommended curriculum. Nevertheless, some universities did make an honest effort to impart clinical experiences to LL.B students by organizing moot courts, mock trials, legal writing exercises, advocacy courses and courts visit as optional co-curricular activities. DELHI UNIVERSITY
In the mid- 1960s, Delhi university introduced the case method of teaching followed by a few other universities. In 1969, a legal services clinic was set up by some teachers and students of Delhi law faculty as a purely voluntary activity mainly to provide legal service to inmates of prisons and custodial institutions. The programmes were developed on ad hoc basis and faculty supervision was marginal. The clinic acted more as an investigating and referral agency rather than as a centre for delivery of services. Students [participation was neither consistent nor was the programme supported by the prescribed curriculum for the LL.B degree. There was no
~ 35 ~
attempt to integrate the clinic with the curriculum expecting perhaps some support derived through the introduction of an optional courses called “ law and poverty” in the second year which carried a clinical orientation. The clinic continued to attract some students every year and it diversified its programmes creating a lively interest in clinical programmes amongst an increasing number of faculty members and students. Every year the clinic organizes a week- long orientation course informing the students of the clinic programmes and encouraging them to participate voluntarily. The programme continues to be voluntary and extra- curricular even today.
Delhi legal aid clinic, despite being a purely extra- curricular activity, did accomplish some impressive result during the recent past. Two lok adalats were organized in Delhi in 1985-86 by the clinic in collaboration with Delhi legal aid and advice board. Over 150 students were involved in this project. Another set of students assisted in reaching legal services to the victims of the Bhopal Gas tragedy. In collaboration with the department of adult and support legal literacy projects amongst the students and teachers of campus law centre now support legal literacy projects amongst the student of several under graduate collages of Delhi university and through those students in as many communities in the union territory. These activities cannot be called clinical education as such. They are not structured that way: nor are they included in the law curriculum. Supervision is marginal. Through they do contribute the learning experiences of a few law students in a clinical setting, they lack the academic frame- work for self directed education. They are more service- oriented programmes which desperately seek academic recognition from the faculty and curricular planners.
~ 36 ~
ALIGARH MUSLIM UNIVERSITY
Aligarh Muslim university introduced in its third year LL.B class a course on “Advocacy” which introduces students to fact investigation, legal research and writing courts procedure, litigation strategies and issues of professional ethics. However, it does not go far in introducing clinical methodology in terms of self- directed learning on the part of students. In1985-86, AMU organized few legal aid camps and helped organize a lok adalat. A legal aid clinic in the law school is said to be working with limited programmes.
BENARAS HINDU UNIVERSITY
On the recommendation of the faculty committee, Banaras Hindu university Law school introduced an optional course of “clinical legal education” in the Vth and VIth semester with academic credit for a maximum of 200 marks. The courses are open foe 30 students each year who are selected on the basis of aptitude and performance in written tests. The method of teaching is through lectures and fieldwork. Fieldwork includes court visits, assignment in the law school legal aid clinic socio- legal surveying on specific problems and internship in the chamber of lawyers. A faculty member headed by the dean manages the clinical courses and the programmes. The legal aid clinic was set up in the law school under the supervision of a retired judge who was taken as a part time professor of the school on a token honorarium. Presently there is a faculty member designated as a director of the clinics. Funds for clinic activities came from students’ contribution, then from the national service scheme of the university and later from the university itself. The university grants commission provided special grants for the clinic
~ 37 ~
to expand its legal activities to the neighbouring rural areas. The clinic has its own bus to transport students on the fieldwork. Students shared the required time between the courts, the field and the legal aid clinics office. Each week the students are expected to spend at least one day in the court and report at the office of the assigned lawyer on two occasions. Another day they are required to spend in the legal aid office ding the work assigned by the teacher in charge. The student and the teachers associated with the legal programme go to the village around the city and undertake programme of legal literacy, socio legal survey on the implementation of welfare legislation and attempt conciliated settlement of dispute through legal aid camps. The students keep separate diaries in which they record their experiences, do the written assignments and get the comment of the teachers/ lawyers. The court work is jointly evaluated by the legal aid clinics grades the work of the students in the clinic for the maximum of 50 marks. It is interesting to note that clinical legal education at Banaras law school revolves almost entirely around the legal aid clinic and its projects. Although it continues to function with some success it reflects the troubles from which legal aid schemes generally suffer and it does not receive full faculty support. Further, the clinical opportunities provided are limited to small section of final year students. NATIONAL LAW SCHOOL IF INDIA UNIVERSITY, BANGALORE
The object of the present paper is to explain the concept of Clinical legal education besides highlighting its significance in the law school curriculum. A novel programme of clinical legal
~ 38 ~
education has been introduced at the Bangalore Law School. Therefore, an endeavour has also been made to discuss in detail the various constituents of this programme in the present paper. National Law School of India University was established in the year 1987 and is 'the first law institute in the country which holds the character of an autonomous institution with "Deemed University” from the University Grants Grant s Commission. It is perhaps the one of the best examples 13
of Bar-Bench co-operation in the field of law in India today. Education at the National Law School is based on a rich heritage of legal thought and tradition provides depth and breadth of instruction which cannot be compared to legal education elsewhere in the country. The object of the school is not just limited to preparing conscientious and competent members of the profession but also disseminate knowledge of law and legal processes in the context con text of national development. Law is taught to the students from a broader socio-cultural angle and development goals. Legal education is imparted to the students so as to inculcate the sense of responsibility towards the society and respect for human life besides developing in them highest standards of 14
professional behaviour and personal integrity. Law is taught as a professional discipline with emphasis on analytical and reasoning abilities as well as on practical skills, with the perspective of law as a socio-cultural phenomenon. Keeping in view that legal education cannot be completed with the law school alone NLSIU makes an effort to develop in the student critical intelligence, hun1anistic values and a holistic perception of men and women in human 15
evolution.
.
13
NLSIU Bulletin, Bangalore (1995-96) at p.1-13
14
Legal education and the law clinics, in N.R. Madhava Menon. Id, at p.4.
15
~ 39 ~
In the first year curriculum at NLSIU, students are encountered with the vast array of legal problems in the context of varied social, economic and political processes which enables to develop awareness amongst the students towards the non-legal environment of legal issues and its management in the legal regime. The clinical method of legal education is an innovative method of teaching adopted by NLSIU which tries to integrate actual field work with classroom instructions The school endeavours to produce lawyers law yers with a sense of Social responsibility who can face new challenges ch allenges posed to the legal profession from time to time and orders to achieve this, clinical programme in NLSIU covers a wide range of activities which include simulation exercises, working on real clients problems, legal aid clinical legislative drafting, law reform exercises and a number of other programmes. The broad objectives of the clinical programmes at NLSIU are: To acquaint the students with the lawyering process in general and to equip them. with
the skills of advocacy in-particular To expose the students to the actual social situations in which the dispute arise so as to
enable them to develop a sense of social responsibility in their professional work. To be able to critically consume knowledge from outside the traditional legal areas for
better delivery of legal services; To understand the limits and limitations of the formal legal systems and to
appreciate1!:he relevance and use of alternate mod es of lawyering; and to imbibe social and humanistic values in relation to law and legal processes while
following the norms of professional ethics.
~ 40 ~
For achieving these objectives, the NLSIU offers wide range of compulsory as well as optional opportunities to students. In the optional course the students a re imbibed with the techniques of:
Moot Court and Mock Trials;
Law Reforms projects and Competitions;
Legal aid support activities;
Placement programmes commencing from the second year of the under-graduate degree course;
Work in the Centre for Women and Law and Human Rights course; and
Legal Services Clinic - Rural and Urban.
In the category of compulsory courses, there are project assignments, the placement training and 16
three clinical courses which every student has to offer in the final year. Under the optional opportunities the students are taught in the following manner: (1) Moot Court: By conducting moot courts, the students are acquainted with the art of
researching on a problem that is given to them, and the skills of drafting and arguing the case are inculcated in them. The drafting of the given problem is done by the students and they argue the case.
16
, Indian Bar Review, 1995, pp.87-94 at p.88
~ 41 ~
(2) Law Reform Competitions:
Another novel and interesting method of clinical legal
education available at the NLSIU is this programme. Through this programme, the Law School provides an opportunity to the students of other law colleges, both within and outside the country to learn some of the lawyering skills and to understand the working of the legal system. By conducting Law Reform Competitions, the NLSIU aims to study law by keeping people and community as focus. It is a study which is from the field to the library and not vice-versa as done in the traditional method of law teaching where the students go 'from the library to the field. (3) Placement Programme: It is a programme which enables the students to learn professional
skills and exposes them to legal work. Students are thus made able to compare and critically evaluate the theoretical knowledge acquired in the school with the social realities. (4) Legal Services Clinic and Human Rights Centre: Legal Services Clinic not only aims to
help the poor but is also a centre for providing professional education to law students. It works in coordination with other organizations like NGOs and the Karnataka State Legal Aid Board. The clinic caters to the needs of both rural and urban poor litigants. It works both for the poor as well as the non-poor. The clinic has a panel of advocates, besides the regular faculty involvement. Thus, the NLSIU is striving hard to promote excellence in imparting legal education and research. In pursuance of this objective, the University is organizing a Legal Services Clinic in its premises where legal and Para-legal services are offered by the faculty members, students, retired judges, public-spirited lawyers and civil servants including social action organizations. A
~ 42 ~
Legal Aid Advisory Council and Faculty programme Committees administer the activities of the 17
clinic.
Clinical Legal Education constitutes an important tool for getting practical training on lawyering skills for students of the law school. Hence, NLSIU Legal Services Clinic is not merely an agency for legal services to the people but also a center for professional education for the law students/It works in co-ordination with social work and legal organizations and in conjunction with the Karnataka State Legal Aid Board. The Clinic is founded by the grants from the Central and the State Legal Aid Authorities. The programme of the Clinic includes a number of projects directed towards legal awareness among all sections of the public orientation. programmes for legal and Para-legal functionaries of the system, legal counseling at all the levels including the setting up of Legal Consultancy Chambers in selected areas rendering assistance to Lok Adalats in liaison with the Legal Aid Board etc.19 The .clinic also carries out various other activities like conducting legal literacy programmes for women in various colleges, workers in industries, students in schools, as well as social workers associated with social organizations. The clinic also provides assistance to the law students in their project assignment- Legal writing and research in identified areas. As a part a clinical education, the clinic helps in organizing moot court on socially relevant issues. It also includes law enforcement assistance project legal advice and preventive legal services programme, a law reform project, a public interest litigation support project, a social audit of welfare legislations project, a Para-legal training programme etc. Besides the general legal services programme of the Clinic, the NLSIU curriculum provides for clinical courses on specialized areas of legal practice wherein the students can gather expertise
17
NLSIU Bulletin, Bangalore (1995-96) at p.16
~ 43 ~
on different branches of law requiring multiple approaches and knowledge from different disciplines. Another important feature of Legal Service Clinic is that the students are put under legal internship during the vacations with the law offices at different places in the country.
(5) Centre for Women and Law (CWL): The CWL works in close collaboration with the Legal
Services Clinic. The CWL working under a Programme Advisory Board (PAR) and an Executive Committee (EC) endeavours to look at law and. the legal process from the perspective of gender justice and administer programmes directed towards equal justice for women in Indian society. The CWL in association with social activists and women's organizations, undertakes various programmes focusing on legal literacy for women, social auditing of welfare legislations affecting women, legal aid and assistance and the development of a Uniform Civil Code for the country. Students are associated with the programmes of the centre in a number of ways extending support services and field assistance. Selected students are allowed to take their project assignments in different courses on topics related to women's issues in law and society. This centre is supported by governmental and non-governmental organizations for funds. Under the compulsory clinical courses there are three clinical courses of 100 marks each. Out of three, two courses are simulation courses. The courses offered are: Alternative Dispute Resolution Clinic, Special Clinic; and Trial Advocacy or Appellate Advocacy.
~ 44 ~
The Alternative Dispute Resolution Clinic is a simulation course. It is compulsory for all the students. It has its focus on client interviewing and counseling, case planning and strategies, negotiation and mediation. The students are made to follow alternate methods to litigation for solving the problems. If these alternate methods fail then only cases should be taken to the court is the principle that is basically practiced. Trial advocacy and Appellate advocacy are another simulated courses. The students can
choose one out of these two optional courses. The trial advocacy focuses on the preparation for trial and strategies thereof. It also lays stress upon the techniques of examination and crossexamination of witnesses, argumentation in the court, bail applications, injunction applications and other incidental proceedings. The Appellate advocacy focuses on drafting appellate briefs in civil cases as well as criminal cases, and arguing the appellate briefs. It also lays emphasis on the drafting and arguing of writ petitions and writ appeals.
The special clinical course is not a simulated course, but is connected with the real life
situations. Every student under the special clinic is placed under the senior advocates so that the students can work on all relevant aspects of advocacy. Though the limitation is imposed by the Bar Council of India, where the law students are not permitted to represent the clients in the courts, it is through such special clinics, that the Law School makes efforts to teach the students about the legal ethics and other aspects of advocacy. Efforts are also made to develop special clinics in the areas where the students can represent the clients’ cases before the appropriate
~ 45 ~
forums like the Consumer Disputes Redressal Forums envisaged and established under the Consumer Protection Act, 1986. Under the special clinical course, students work on the problems of real clients in the Legal Service Clinic or at the Rural Mediation Centre or legislative drafting or any other courses like 'Child and the Law Clinic intellectual Property Clinic and 'Women and the Law clinics etc To sum up, students trained at the NLSIU are not trained as mere degree holders but are trained like the professionals who help in improving the legal profession which is admittedly not in a good shape in the country. It may be appropriate to mention here that since the mid 1970s, the focus of revamping the legal education has shifted towards modernization of law curricula so as to make it socially relevant and career oriented and the National Law School at Bangalore is the first institute in India where the students study social science and law simultaneously and take three clinical courses before graduation. Many law colleges and law departments have started following the pattern of NLSIU but, even as these colleges are most supportive off clinical legal education, some face financial problems in running legal aid clinic. Confronting to the financial realities of clinical legal education, the administration in most law colleges ask their clinicians to change the methodology of clinical law teaching. Therefore, to remove this problem, more funds ought to be provided to legal institutions, and the Bar Council of India and Law Commission should take notice of this.
~ 46 ~
CONSTITUTIONAL AND LEGAL STATUS OF CLINICAL LEGAL EDUCATION Agencies Regulating Legal Education:
The Constitution of India basically laid down the duty of imparting education on the states by putting the matter pertaining to education in List II of the Seventh Schedule. But it now forms part of List III, giving concurrent legislative powers to the Union and the States. Legal profession along with the medical and other professions also falls under List III (Entry 26). However, the Union is empowered to co-ordinate and determines standards in institutions for higher education or research and scientific and technical institutions besides having exclusive power, inter alia, pertaining to educational institutions of national importance, professional, vocational or technical training and promotion of special studies or research. Empowered by the Constitution to legislate in respect of legal profession, Parliament enacted the Advocates Act, 1961, which brought uniformity in the system of legal practitioners in the form of Advocates and provided for setting up of the Bar Council of India and State Bar Councils in the States. Under clause (h) of sub-sec (1) of Sec.7 of the Advocates Act, 1961 the Bar Council of India has power to fix a minimum academic standard as a pre-condition for commencement of a studies in law . Under clause (i) of sub-sec (1) of Sec. 7, the Bar Council of India is also empowered "to recognize Universities whose degree in law shall be taken as a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities". The Act thus confers on the Bar Council power to prescribe standards of legal education and recognition of law degrees for enrolment of persons as Advocates. However, for promoting legal education and for laying down standards of legal education, the Universities and State Bar Councils must be effectively
~ 47 ~
consulted . The University Grants Commission has in the course of time evinced interest in improving legal education and has taken various steps towards that end, through adequate funding,
creation
of
senior
posts
and
other
means.
th
The Law Commission of India in its 184 report felt that legal education is a fundamental to the 2
very foundation of judicial system . It also felt that clinical legal education should be made 18
compulsory which will1 be, an excellent supplement to the legal aid. The Indian constitution aims at securing, social, economic and political justice·. Article 39-A is the direct and express provision of legal a id, which reads as: “Equal Justice and Free Legal Aid: the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall in particular, provide. free legal aid, by suitable legislation or schemes or in any other "way, to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities.”
18
19
See Law Commission of India 184 report on the legal education and professional training and proposal for amendment to the advocates act 1961 and the universities grants commission act 1956.
19
nd
Article 39-A, inserted in part-IV of the Indian Constitution by 42 Amendment Act 1976.
~ 48 ~
6
The National commission to review the working of the constitution recommends that the following new article should be added to the constitution making, legal aid as a fundamental right: 30-A: Access to courts and Tribunals and speedy justice 1) Everyone has a right to have any dispute that can be resolved by the application of !aw decided in a fair public hearing before an independent court. or, where appropriate, another independent and impartial tribunal or forum.
20
2) the right to access to courts shall be deemed to include the right to reasonably speedy and effective justice in all matters before the courts, tribunals or other fora and the State shall take all reasonable steps to achieve the said object. 30-B: Equal justice and free legal aid: the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen ;::'y reason of economic or other disabilities.
21
In Center for Legal Research v. State of Kerala,
it has been suggested that in order to achieve
the objective of Article 39A, the State must encourage and support the participation of voluntary
20
.See Report of The National Commission to review the working of the Constitution, 2002, Universal Law Publishing co..Pvt Lld.vol-I, pp63-64.
~ 49 ~
organizations and social action groups in operating the legal programme? Therefore, the State cannot avoid from its constitutional obligation to provide legal services to indigent litigants who are facing financial and administrative difficulties the Government should set up a "suitors fund" 22
to meet the cost of defending a poor or indigent.
In State of Maharashtra v Manubhai Pragaji vashi, the Supreme Court held that Article 21 read with Article 39-A mandated or cast a duty on tile State to extend the grant-in-aid scheme to all Government recognized private Law Colleges according to the criteria applicable to the regular degree colleges. The purpose of giving grants to law colleges is to enable those colleges to function effectively and in a meaningful manner and turn out sufficient number of well trained or properly trained law graduates.
To implement the scheme for legal aid in India, the Legal Services Authorities Act was passed in
1987. The Act aims at providing a protective umbrella to the weaker sections of the society, against all injustices and giving it adequate funds. The National Legal Services Authorities setup under the Act, provides for the constitution of Legal Services Authorities at the national, the state and the district levels. These authorities are to provide free and competent legal services with the aim of securing equal justice to the weaker sections of the society. The Act has
21
7.AiR 1986 SC 1322 .See Nandini satpathy v P.L.Dan;, AiR 1978 SC 1025, Haskot v State of Maharastra.AIR 1978 se 1548, Hussainara khatoor. (IV) v. Horne Secretary, State of Bihar, (1980) 1 see 98, Kha!ri v Stale of Bihar and others, AIR 1981 se 829, Suk Das v union territory of Arunachal pradesh, AIR 1986 SC 991. 22
.State Bank of India v N.S.Money. AIR1996SC1.
~ 50 ~
introduced
a
scheme for deputing a Legal Aid Counsel in every court of Magistrate in the
country for providing free legal aid assistance to poor prisoners. The Code of Criminal Procedure, 1973 under Section 304 provides for legal aid to an accused who is not represented by a pleader in trial before the court of session, provided that he has no sufficient means ·to engage a lawyer. The code requires that the court shall assign a pleader for his defence at the expense of the State. Section 304(2) of the Code, empowers the High Courts to make rules in this connection. The State government is also authorized, by notification, to extend the legal aid to an accused in case of trial before any Court of law.
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R ELEVANCE OF CLINICAL LEGAL EDUCATION IN THE LEGAL EDUCATION IN INDIA There is no shortage of clinical experiences that are currently available to law students in India. Predominant among them are the Lok Adalats and legal aid camps; legal literacy projects; public interest litigation; direct representation of clients before selected courts; tribunal and agencies; legislative drafting and community organizing. In India, there is a very wide gap between the people, specially the poor and the justice delivery system. The need of the lawyer to be sensitive to the causes and cases of the poor is all the more needed here, than anywhere else in the world. The law students need to require training for the profession; they also need to help the socially and economically deprived citizens of India. As the legal aid lawyers do remain overburdened with the 'increasing pressures of the demand of the profession on their time, there is no alternative available with the poor except to suffer in silence. Young, energetic and dedicated students can work with their teachers to provide free and quality professional service to the poor and socially deprived, while still at the school, with the active co-operation of the State and •the Bar. Besides giving an active participation in the variety of legal aspects of the legal process wider faculty guidance and supervision, it would also enable them to assess themselves not only how a legal system works but also how it can be reformed. The legal system is an extremely important profession, enabling people to have recourses to justice peacefully and with the framework of law, yet there is no denying the fact that this, profession it is also a controversial profession and is in need of reform: The harsh realities of the unevenness of the availability of the legal system to the people depending on their socio economic status can give an opportunity to the law students to bridge this unevenness with his hard work and determination by giving
~ 52 ~
quality service to the disadvantage in the society. In India scenario social sensitization of lawyers extremely desirable. Motivated by the individualistic and materialistic approach good and reputed lawyers failed to take up the cases and the causes of the poor. Others function to the total lack of function for the vary clients that they represent. For a majority of lawyers it is the number rather than the interest of the client which matters. Infact the success of a lawyer is measure by the amount of fees he charges and the number of clients that he has. Being extremely busy and also expensive, he is clearly out of reach of the majority of Indians who are poor. The only alternative felt with them is to approach the legal aid lawyers who are also overburdened. Thus the need is to have socially sensitized lawyers who can take up the cases of the poor. But the question is how to sensitize them? Sensitization is ineffective when imparted in theory. It comes from an interaction with people, with an appraisal of their problem, an aspect of field education on which both the bar and apprenticeship programme is totally silent.
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ADAPTING THE MACCRATE REPORT IN INDIA As noted above, a number of committees, commissions, and seminars have called for reforming both the legal profession and legal education since India gained independence from the British. The legal system introduced by the British was created essentially to serve British commercial interests; very little concern was shown for social justice, such as protecting the rights of children, women, workers, and other disadvantaged members of society. In the words of Justice Krishna Iyer: “British legal culture fertilized the Indian legal elite and sterilized the spirit of the 23
people. By contrast, the Indian Constitution aims to secure social, economic and political justice, but the Indian legal profession, the legislative process, and the administration of justice remain restrained by feudalistic and pro-British colonial laws.71 Therefore, many legal luminaries in India felt the need to move away from this model and to reform the legal profession. A common theme was that reforms in legal education should aim at providing competent and socially sensitive lawyers. The Bar Council of India’s directive on Practical Papers in 1997 and the 2002 report of the Law Commission of India (together with the Ahmadi Report that preceded it), discussed earlier in Part II, are particularly important because they addressed specifically various changes needed to update teaching methods and to reform the law school curriculum – all with a view to improving the legal profession. Although the Law Commission mentioned several studies about improving legal education in its 2002 report, one report was given special prominence:
23
Justice v. R. Krishna Iyer, Inaugural Address at the second state lawyers’ confere nce, Andra Pradesh at Rajahmundry, 2 scc 1, 3 (jour) (1976).
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Legal Education and Professional Development – An Educational Continuum, a 1992 American Bar Association (ABA) task force report on professional skills and values popularly know as the 24
Mac Crate Report. The Law Commission felt that the members of the Legal Education Committee of the Bar Council of India and the University Grants Commission needed to study the Mac Crate Report closely. This nod to the Mac Crate Report was doubly significant, since the four papers mandated by the Bar Council in 1997 (also mentioned by the Law Commission in its report) focus on skills similar to those identified as fundamental in the Mac Crate Report. Further, the National Law School of India University in Bangalore, established by the Bar Council in 1987 as a model for legal education reform, prepared a new curriculum in 2001 that included skills training based in part on the Mac Crate Report, with modifications suited for 25
Indian conditions.
Although prominent, the references to the Mac Crate Report in the Law Commission’s report did not discuss the report’s conceptual basis or its central content, a statement of fundamental skills and values. or did they include any sort of critical analysis that would support its relevance in the Indian context. Although well received generally, the report has had its critics in the United States – particularly among those who would believe that a wider set of skills and values are needed to serve today’s legal needs. Similar questions arise if the report is to serve as a model for legal education reform in India. Both of these topics – the Mac Crate report as a model for legal education reform and its relevance to India – are taken up below. 24
73 see law commission of india, 184th report
25
75 the national law school’s new curriculum also includes clinical courses that cover the subjects included in the practical papers mandated by the bar council.
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A. The Mac Crate Report as a Conceptual Basis for Legal Education Reform
The Mac Crate task force was formed by the ABA in 1989, following the publication of a number of studies stressing the need to improve lawyer competence. With those goals in mind, the Mac Crate Report put forward certain guidelines for satisfying the demand for producing skilled and competent lawyers – and called for law schools and the legal profession to play a greater role in improving the competence of incoming lawyers and the overall professional fitness of the practicing bar. The Mac Crate Report thus redefined the scope of the modern debate on what and how law schools should teach, including which skills and values legal education should emphasize. The skills and values identified in the Mac Crate Report constitute a noble vision of professionalism toward which all lawyers should aspire. Perhaps most fundamentally, the Ma Crate Report affirms that acquiring lawyering skills and professional values aimed at providing competent lawyers is essential to the task of preparing lawyers to represent clients. Specifically, the Mac Crate Report set forth a Statement of Fundamental Lawyering Skills and Professional Values that recognizes a “compendium of skills and values” fundamental to the practice of law. The Statement first identifies ten skills that are required of competent lawyers. These skills are categorized into five groups: problem solving and legal analysis, which are the basic abstract skills for legal practice; legal research, factual investigation, communication, counseling and negotiation, which are specific skills required to carry out a legal practice; knowledge about trial and appellate litigation and about alternative dispute resolution (ADR), in order to be able to provide ADR or to advise clients about the various options available to
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resolve disputes under ADR; the ability to organize and manage legal work effectively; and the ability to identify and resolve ethical dilemmas.81 The Report then identified four fundamental values of the profession: provision of competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development. The Mac Crate task force viewed the Statement of Skills and Values as “a work in progress“ and recognized that several of the suggestions put forward would require designing new modes of teaching and the development of new teaching materials. The Mac Crate Report was thus intended to serve as a stimulus – a starting point – for profession-oriented legal education reform. The task force hoped that these skills and values would be revised from time to time to fulfill its intended purpose of preparing new lawyers for practice. Finally, the Mac Crate Report emphasized that “the statement is not, and should not be taken to be, a standard for a law school curriculum. The Statement of Skills and Values is concerned with the limited goal of ensuring practice at a minimum level of competency.” Therefore, the skills and values mentioned in the Mac Crate Report are not comprehensive, but rather express the specific goal of narrowing the professional gap between law schools and the practice of law. The Mac Crate Report also made an effort to draft a new agreement between law schools and the legal profession. The foundation of this new agreement is that “legal educators and practicing lawyers should stop viewing themselves as separated by a ‘gap’ and recognize that they are engaged in a common enterprise – the education and professional development of the members of a great profession.” The Mac Crate Report also introduced the concept of an “educational Continuum” and called for an unending exchange within the profession about the skills and values that a legal practitioner should acquire and about the kind of education and training that
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26
prospective lawyers should receive at different stages of their careers. The Report thus points out rightly that the Bar, law school teaching faculty, and the judiciary ought to share the responsibility for providing skills- and value-oriented legal education to new lawyers entering into the profession.
CRITICISMS OF MAC CRATE’S REPORT As noted above, although the Mac Crate Report was well received generally in the United States its Statement of Skills and Value was not free from criticism. The more substantial criticisms include missing the humane element of lawyering, overemphasizing the traditional lawyer role of problem solver, overemphasizing skill with relatively little attention paid to social justice, failing to recognize the importance of subject matter to the study of law, a lack of attention to community based advocacy, and ignoring the importance of the alternative role of lawyers and changes in the relationship between lawyer and client due to the economics of law practice. Carrie Menkel-Meadow has observed, for example, that the Mac Crate Report’s declaration on lawyering skills visualizes the lawyer largely as a litigator, a “means-ends” thinker who can accomplish a client’s goals. She notes that in the 21st century, lawyers will have to solve problems synthetically as well as analytically and argues that the legal profession also needs a basic understanding of socio-economic concepts and statistics to analyze the empirical effects of lawmaking and enforcing the law. This observation applies equally to India today; mere analytical skills of problem solving will not be sufficient to solve broader socio-legal problems.
26
Mac crate report
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Members of the legal profession need to play the role of educator, planner, and counselor. Therefore, lawyers must be trained in skills that provide for a broader understanding of various facets of legal problems. Fundamental lawyering skills are important to provide social justice; however, any set of skills confined only to traditional methods of problem solving would be manifestly insufficient.
Typically, both law students and new practitioners are rewarded almost exclusively on the basis of skills. Although extremely negative values may be grounds for disqualification, an individual’s values – excellent or mediocre – play virtually no role in academic or professional incentives. Despite the Mac Crate Report’s stated aim to improve both skills and values, it focuses mainly on skills. Moreover, it indicates indirectly that professional values are subordinate to skills by listing the four fundamental values after the ten fundamental skills. To achieve the Mac Crate Report’s aim, goals should be identified first and then the skills needed to achieve those goals. If “the values are the goals and the values are not identified, it is pointless to talk first about skills. Professional values and skills should be promoted as the two wheels of social justice. If they are to complement each other, then skills must be developed according to identified values. B. Mac Crate as a Model for Reform in India: The Need for a Statement of Fundamental Values and Skills for Indian Lawyers
Not only have these critiques of the Mac Crate report not been noted by Indian commentators, the report has not been questioned as an appropriate model for legal education reform in India.
~ 59 ~
Perhaps this is because many reforms in Indian legal education over the past decades have been influenced by developments in the United States, as India has undergone a shift since the late 1960s and early 1970s from the British model of legal education to the US model.96 This United States focus has been the case particularly with respect to clinical legal education, since – as noted earlier in Part I of this article – many of the goals for (and the challenges faced by) clinical education in India and the United States are, to a large extent, similar. It may indeed be helpful for Indian legal education reformers to present a set of fundamental professional skills and values along the lines of those set out in the Mac Crate Report as part of the effort to implement both the Bar Council’s mandated Practical Papers and the Law Commission’s renewed push for clinical legal education. However, in that case a more critical look at the Mac Crate Report and its relevance to Indian legal education is needed. First of all, and consistent with much of the criticism of the Mac- Crate Report in the United States, before reforming legal education in India the values sought to be supported by such reforms and the skills needed to achieve them must be identified. The skills and values enunciated in the Mac Crate Report should be analyzed carefully as part of this process; however, they should be followed only to the extent that they are in keeping with the local needs in India. Members of the Indian legal profession have an obligation to assess the strengths and weaknesses of the Report before using it as a guide to reform. At the same time, the report’s Statement of Skills and Value may be useful in identifying the goals of legal education in India and in other countries as well. The important thing is to create appropriate goals for the local legal profession; only then can one decide which values and skills should be taught – and how they should be taught – in order to improve the profession.
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India’s status as a developing country makes promoting social welfare a major aim of the law. The constitutional goals of equality and justice will be accomplished only by enacting a number of “socially oriented legislations.”98 As noted earlier, this challenge cannot be met by focusing legal education on lawyering skills confined to traditional problem solving. India needs not only technically skilled lawyers, but also lawyers who are socially sensitive and have socially relevant lawyering skills. Legal education must, therefore, focus not only on what lawyers actually do but on what lawyers ought to do. In this regard, the first task is to identify the values that legal education must foment. Indian society needs socially sensitive and community oriented lawyers and a legal education system with a social justice agenda. Justice, fairness, and morality can be taught in the classroom; however, this requires a curriculum that exposes students not only to law and legal process, but also to the many factors that influence clients and the ir lawyers. One option would be to appoint an Indian counterpart to the Mac Crate task force that would identify the professional values and skills required for the legal profession in India. Indeed, this idea was endorsed in principle during the inaugural meeting of the South Asia Clinical Teachers Association in December, 2006. Properly constructed, a set of values and skills along the Mac Crate model, but adapted for modern India’s needs, can serve to support the current movement toward legal education reform. They can also provide an underlying substantive basis for institutionalizing a social justice- based clinical curriculum that is missing from the Bar Council’s Practical Papers mandate and the Law Commission’s general call for meaningful and effective educational reform. And they can help set India’s longstanding quest for socially relevant legal education finally on the right track. It may be helpful in the meantime to suggest a set of fundamental professional values and skills to guide legal ed ucation reform in India.
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Four professional values, conceptualized specifically for the Indian context, and a five professional skills intended to supplement skills set out in the Mac Crate Report are proposed below: 1. Fundamental Professional Values
Value 1: Provision of fair and effective resolution o f disputes. Article 14 of the Indian Constitution is a positive affirmation of equal access to the justice system in India. Thus, providing free legal aid to an indigent person is not only a statutory obligation, but a constitutional obligation on the part of the State. “State obligation” does not mean that only the State has an obligation to provide free legal aid; this professional and legal 27
obligation extends to every member of the legal profession. It is equally important to provide a fair, effective, quick, and inexpensive system for dispensing justice. Easy access to justice is meaningless unless there is a guarantee to fair and effective justice. Lawyers should also take responsibility for quick disposal of disputes, especially given the chronically high volume of cases pending in Indian courts.106 Thus, the provision of effective resolution of disputes involves two interrelated fundamental values for the profession: providing fair, effective, and accessible legal system; and providing quick and inexpensive resolution of disputes. Value 2: Striving for social justice. India is a country with many of its resources concentrated in the hands of few, and with a large number of poor people. As noted earlier, the immediate concern of the nation after independence
27
Bar Council of India Training Rules, 1995, Section VI Rule 46 imposes a duty on every lawyer to render legal aid
~ 62 ~
was to provide social welfare and to bring social order. The main objective behind the Directive Principles of State Policy in the Indian Constitution, setting out fundamental principles for state governance, is to establish a welfare state and to provide socio-economic justice. Free India expected the law to play a vital role in bringing social order. In many countries, social welfare cannot be implemented through constitutional provisions. The Supreme Court of India has, by contrast, a rich history of judicially enforcing socio-economic 28
rights by liberal interpretation of fundamental rights. The Court has extended to scope of fundamental rights to include certain directive principles, particularly in the area of social welfare. Thus, in a number of decisions it recognized directive principles – such as equal pay for equal work, protection of children from exploitation, free and compulsory education for children, prevention of sexual harassment, free legal aid to the poor, medical assistance to workers, the right to health, the right to shelter, the right to livelihood, the right to live with human dignity, and the right to minimum wage – as fundamental rights. All these judgments impose a positive constitutional obligation on the state to implement social welfare programs to guarantee these judicially recognized rights. It is now a well established principle that free legal aid is a state’s duty and not government charity. Although social justice is the ultimate goal of law in India, very few people in India understand that social welfare is a legal entitlement of the poor. The value of striving for social justice is particularly important in this context. It focuses on making the legal process an instrument of social development and on developing the legal profession as a vehicle for social justice. Socially relevant legal education can meet the constitutional goal of
28
See, e.g., Olga Tellis v. Bombay Municipal Corporation A.I.R. 1986 S.C. 180;
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providing socio-economic and political justice by promoting a legal profession that can meet the needs of the common person through the rule of law and a progressive social order. Value 3: Promotion of alternative lawyer roles. Lawyers need to play a vital role in dispensing justice. They cannot be mere spectators of the judicial process; they must be an integral part the process of providing justice. The present Indian system of adversarial justice is largely influenced by the British model. The complexities and technicalities imposed by the British model need to be simplified. In its place, modern India needs a system that provides non-judicial forums and various types of informal proceedings to satisfy natural justice, involving little cost and speedy disposal. Alternative dispute resolution th
(ADR) is considered to be an outstanding development in 20 century law. In fact, various forms of ADR, such as negotiation, mediation, arbitration, and conciliation, were the traditional methods of dispute resolution in ancient India
29
. Recognizing this need, ADR was given
statutory status in India in the form of lok adalats. Although not without controversy, lok adalats have proved to be cost effective, simple, and easy – and, more importantly, they provide speedy justice. Socio-economic conditions in India necessitate more ADR programs. India’s ancient culture and philosophy of simple living require lawyers to shift their traditional role of problem solving to the roles of negotiator, mediator, counselor and public policy maker. The legal profession must change its purpose from providing client-centered legal services to securing the social justice mission of providing fair justice. The legal profession should recognize that lawyers must be loyal to justice rather than just to their clients. 29
During the Vedic period, disputes were tried and settled generally by the elders of the family; however, if this failed the disputants approached a Sabha, or village council, consisting of elders of the community or village heads. WILLIAM, ALTERNATIVE DISPUTE RESOLUTION (2002);
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Apart from promoting ADR, it is also necessary for lawyers to make citizens aware of their legal rights and duties. Legal literacy is a condition precedent to making the law relevant and 30
meaningful. With the national literacy rate at 68.4 percent, disseminating basic legal knowledge is as important as any other function of the legal profession. All members of the profession have a moral and professional responsibility to impart legal literacy by way of simplifying legal rules that one may encounter in day-to-day life. This may include translating laws into vernacular languages, as laws are written customarily in English. The agenda of promoting alternative lawyer roles thus includes shifting the traditional role of the lawyer from problem solver to dispensing justice, promoting loyalty towards justice rather than only to the client, and disseminating basic legal knowledge to the common person. Value 4: Protecting judicial independence and accountability. 31
India is ranked as low as 88th out of 159 countries in the Corruption Perceptions Index.
By
contrast, the Indian judiciary, particularly in the higher courts, has emerged in the recent past as a powerful institution
that enjoys the faith and esteem of the people due to a low level of
corruption among its members. When the two other organs of the modern state are held in low esteem, the judiciary has a special duty to protect the common person’s interests and to join in fighting against corruption. Therefore, it is very important to protect the judiciary’s independence from the influence of the legislature and the executive. To protect the judiciary’s independence, it is imperative to have a transparent legal profession. In addition to transparency, all members of the bar, bench, and law faculties must be accountable to 30
Census of India 2001, T 00-006, available at http://www.censusindia.net
31
Transparency International’s 2005 Corruption Perceptions Index
~ 65 ~
their profession and to society in general. Thus, this value stresses the need to promote and preserve judicial independence and to develop accountability among lawyers, judges, and law teachers.
2. Fundamental Professional Skills
To complete a modified Mac Crate conception of fundamental skills and values for the Indian legal profession, certain skills must be targeted to assure that lawyers can implement the previously identified values. Almost all of the skills set out in the Mac Crate Report are required for securing these India-focused values; however, special emphasis should be given to certain skills enumerated in the Report for securing the first three values. The fourth value – provision of judicial independence and accountability – does not implicate skills in the same way as the others. For securing the first value, effective resolution of disputes, the following skills enumerated in the Mac Crate Report are helpful: legal research, communication, litigation and alternative dispute resolution procedures, and organization and management of legal work . For securing the second value, striving for social justice, the following skills are important: generating alternative solutions and strategies, elaborating legal theory, evaluating legal theory, and identifying and evaluating other possible legal theories. For securing the third value, alternative role of lawyer, the following skills may play a significant role: methods of effectively tailoring the nature, form, or content of the written or oral communication, counseling, negotiation, and knowledge of the fundamentals of proceedings in other dispute-resolution forums. Although these skills are helpful
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in promoting the proposed values for Indian lawyers, other skills are required in order to secure them in a meaningful way. New, additional fundamental skills required for Indian lawyers may include the following: Skil l 1: I nn ovative/altern ative problem-solvin g techni ques .
In order to provide fair, effective and accessible justice, the mere achievement of minimum competency in analyzing and applying legal rules and doctrines is not sufficient. Lawyers need to develop the skills to invent innovative techniques to provide alternatives to the adversarial process. They need to be creative in developing new methods of problem solving to provide a quick, fair, and cost effective justice-dispensation process. Skil l 2: Ski ll s to in vent new option s beyond the establi shed norms .
To secure the constitutional goal of bringing about a just social order, lawyers need to think about options beyond traditional norms. They need to be able to handle group actions and community- or social oriented litigation. They must also have strong interpretative skills to convince judges to recognize the need for considering a client’s socioeconomic conditions in analyzing and disposing of legal problems. . Skil l 3: M ass communi cation skill s
Lawyers need the skill to communicate not only with judges and clients, but also with the society as a whole. Skills in mass communication are necessary to carry out legal literacy projects, which are extremely impor tant in view of India’s high rate of illiteracy in general and legal
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illiteracy in particular. Communication skills are needed also to explain public policy issues and to convince the public to influence public policy by putting pressure on the government. Skil l 4: Ski ll s to analyze the socio-economic backgroun d of legal problems .
In a developing country like India, most legal problems are related to social relations and poverty. To deal with these problems, skills in understanding the broader social and economical issues behind the problem are essential. . Skil l 5: Skil ls in r esearch wi th a sense of r esponsibi lit y to serve the society
Sound research skills are essential to virtually all aspects of lawyering. However, a mechanical application of research findings is not sufficient to achieve the values identified earlier as fundamental for Indian lawyers. Lawyers conducting research need to have a commitment to serve society. Thus, the goal is to develop research skills that will serve society rather than simply applying legal rules mechanically to problems.
These various skills are not a comprehensive listing of what lawyers need to be able to do, nor do they and the fundamental values discussed earlier address all of the problems facing the Indian legal profession. They provide only a possible outline of the values and skills that could be identified and developed further by an appropriate task force or working group. Moreover, the skills that may be needed to support certain values might vary from place to place and from time to time, depending on local conditions and community needs. The burden for providing lawyers these skills lies heavily on law schools, particularly in India. All legal training in India takes place in law schools and once students graduate from law school they can straightaway enter the
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legal profession. There is no requirement for apprenticeships or to pass a bar exam, as exists in most other countries. Thus, in highlighting the need for quality legal education, Justice A. S. Anand said that “the quality of education has a direct impact on the prestige of the legal profession. We must therefore identify the areas of default and initiate corrective action to repair ”32
the damage.
R OLE OF LAW STUDENTS IN CLINICAL LEGAL EDUCATION CLINICAL LEGAL EDUCATION is a term capable of many definitions. At its narrowest definition the term denotes the involvement of law student! in the representations of the actual clients as part of their legal education.
33
More broadly the term includes mere structured methods of instruction which emphasize the learning of "practical skills" in addition to substantive and, procedural rules of law, usually in ways which involve students' active participation beyond that normally followed in the lecture rooms. The narrow definition expresses the traditional system of apprenticeships in the legal aid clinic. The broader definition, includes moots, courses
of
trial advocacy, courses in legal
drafting all of which rely on orientation of lawyer-client based education. Basic to this concept is "learning by doing" though it connotes structure, and supervision to make it something more than learning by trial and errors. Though class room method of legal education has taken
32
Dr. Justice a. S. Anand, inaugural address at the second annual meeting of the state legal services authority, held at Hyderabad (1999), 33
“clinical legal education and the role of law students” by shri Baldyanath choudhury
~ 69 ~
prominence in majority but the clinical legal education is not a rare example. English legal education for centuries relied primarily on apprenticeship. In Japan even before a distinct legal profession developed. the legal ,functions performed by Kijiyado or suit inns were transmitted from father 'to son through a loosely structured apprenticeship. The arts of vakils of, Moghal India were passed from generation to generation. Even today apprenticeship is in element of legal education in many countries. Yet through out the world there is a bent towards the classroom training. As the apprenticeship method has fallen down and the class room of legal education has becomes dominant, efforts have
now
been made to improve the practical
clinical training. Efforts have been made in many countries to provide such training courses in the form (i) Post Graduate training course, (ii) internship programme, (iii) Student's legal aid clinic, Post Graduate courses provide training in advocacy, drafting procedure, ethics and. law
office management in a class room environment with heavy emphasis on stimulation. This can be managed by the Law schools themselves with the assistance of the members of Bar and Bench. Such a course is, prominent in Canada" United' States,
&
Australia, Internship is
a least explored area; Internship involves a supervised work in the office of the Solicitor and Attorney house. The emphasis more toward, advisory and administrative work rather than the advocacy process internship programme is attractive in, those countries where large number of law graduates is designed to enter in the government service. Numerous internship programme is functioning at American Law Schools involving student in the
working of local, state and Federal agencies charged with responsibility for consumer protection environmental control and the enforcement of antidiscrimination legislation.
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But the most popular manifestation of practical legal training is the students legal aid clinics is the direct student involvement in handling the legal problem of indigent. The role of law student as legal aid lawyer is potentially on of mutually benefit to the student, to the legal aid scheme in which the student works and to his university. This scheme is well experimented in Ceylon, Indonesia, the united state Chile and Zambia. While the primary mission of a student’s legal aid clinic is the educational, significant services can be rendered
to a parent legal aid scheme or to the community at large.
Law students are expected to learn practical lawyering skills in two ways, namely, classroom courses for teaching such skills and legal aid clinics. For example, in the Law Faculty in Delhi University the course on Drafting, Conveyancing, Moot Courts and Professional Ethics has teaching of skills of legal writing, argumentation and issues of professional ethics as its primary goals. The Law Faculty also has its legal aid clinic and has run its legal aid programmes in the beggars' court, juvenile court and Tihar Prison in addition to organizing legal literacy camps in rural areas on a regular basis. It has been long recognized that legal aid clinics offer a large range of professional skills to students. "A variety of skills not otherwise available to the students in the traditional legal curriculum are provided by the law school clinic. These include interviewing and counselling, the association and management of human relations, fact gathering and sifting, fact consciousness and a sense of relevancy, legal research and writing, handling crises-situations and intelligent decision-making and above -all an appreciation that law is only one method of solving problems and not always the best method."
34
34
Report of the Expert Committee on Legal Aid, processual justice to the people 157 ( 1973).
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Mainstreaming of legal aid clinics and other similar programs by incorporating them in the LL.B. curricula is necessary to ensure teaching of the practical skills of lawyering and generating awareness and sensitivity to the issues of access to justice by poor and deprived sections of society: Such inclusion will not only promote the Bar Council's agenda of teaching professional skills but will also ensure that more law schools undertake legal aid activities making law accessible to the poor and deprived. The legal aid clinics in law schools in India function as an adjunct social service activity rather than part of the main curriculum.
Involvement of students in the legal aid clinics as part of their courses has many benefits.
First, it will result in the training of students in the professional skills of lawyering, (as desired by the Bar Council) through introduction of the practical training courses.
35
Second, inclusion of the social service activity in the main curriculum gives a clear message to the students that legal aid is integral to the profession and not something which the law schools and lawyers engage in at their discretion. This realization and perspective is necessary to serve the long recognized need for legal aid of a large population of poor who go unrepresented in the absence of sufficient number of lawyers providing free legal a id.
Third, it will ensure legal aid work a place of priority in the law school planning and administration and hence the functioning of legal aid clinics will not remain a labour of love of a few teachers in the law school. 35
Students participate in the Legal Aid Clinics in al: law schools on a voluntary basis and their work in the clinic is not assessed for examination, as is the case in courses that arc part of the main curricula.
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Finally, it will generate awareness about and sensitize the upcoming generations of lawyers to the problems of poverty and access to justice.
This exposure to the unjust and difficult situations people live in during their education will lead to more sensitive and just decisions and practices by them when the y assume important offices of decision making as lawyers, judges, politicians ,or bureaucrats. Hence, it must be compulsory for each law school to evolve projects aimed to help various sections of society living in difficult circumstances and to involve law students in them as part of their curricula. Report of the Expert Committee on Legal Aid' had pointed out some of the obvious benefits to the student, to the profession and to the cause of legal aid which a student legal aid clinic imparts as follows:
The nature of existing legal practice heavily inclined towards the rich business corporations and propertied individuals is bound to get a revision-orientation with the advent of legal aid. An expanding clientele drawn from the poor, the oppressed and the under privileged will generate new demands upon the legal profession including new skills a value system favorable to the weaker sections and a sensitivity to injustice.
Given proper supervision, law students can give excellent legal aid and advice at much cheaper cost to remote villages in the country where official a nd professional agencies often fail to serve.
The legal aid clinic is an excellent medium to teach professional responsibility and a greater sense of public service, Faced with real challenging problems and-conflicting value choices the student develops necessary perspective, a sense of relevancy and proportion and skills to articulate and apply rules of professional ethics in concrete situations . The law school clinic is a
~ 73 ~
visible and effective instrument for Community education and a wide variety of far-reaching preventive legal services programmes.
An important by-product of inducting law students in legal aid is its potential contribution 36
towards a better legal education, socially relevant and professionally valuable. The word legal aid has been used here as encompassing all kinds of legal aid activities in the community, including legal literacy and awareness, ahem ate dispute resolution, Para-legal and legal aid work in judicial, quasi-judicial and administrative bodies and for the inmates of various State-run institutions
A law school that already has a legal aid activity may begin by identifying the skills students are taught / learn by participating in that project it may then consciously choose the skills requiring special attention and decide the methods for systematic imparting and evolution of this skill. For example, in a typical legal aid clinic students are usually given some basic legal knowledge on the field of work of the clinic before they are sent to the community while the students learn on their own about client interviewing and counseling, negotiation, legal research and drafting. (Empathy and awareness of the problems of the poor are prominent among many skills needed by students.) There is no structure to this learning nor any reflection and analyses on it. There is enough literature available on each one of these aspects that the students should he asked to read. The teacher should supplement this reading with role-plays and research and writing exercises. Armed with this skill the students would be able to handle the field situations better.
~ 74 ~
In case a law school is beginning afresh, it has to at the outset, as with any other course, be clear about the "objectives of the course. Broadly speaking there will always be the twin objectives of teaching professional skil1s and serving the community. However, what needs to be identified are the particular skills the course aims to achieve and the kind of project that would be most suited to teach those skil1s. For example, if the school wants to focus on alternative dispute resolution, participation in lok adalats may be more suited to hone these skills than a legal literacy programme. On the other hand, a legal literacy programme may be chosen if the object is to teach legal research and writing and communication skills. Assisting the clients by drafting their documents for filing in courts or other official bodies gives o pportunities to train students in drafting, pleadings and conveyancing.
It is of utmost importance to remember that all community projects leave an impact on the people whose lives they touch and the students should no t be allowed to interact with community until they have shown sufficient sense of the responsibility and commitment towards the people with whom they would be interacting. Since the people whose life these projects touch are usually deprived it is the responsibility of the project directors to ensure that the students' learning projects should not result in greater disillusionment or harassment to the clients. Hence, each one of these activities in the field needs to be preceded by rigorous classroom training.
Having identified the skills and the project for those skills the teacher needs to identify the regarding material for those skills, choose skills teaching method and identify or develop appropriate simlilation exercises for practicing them in the classroom setting before allowing the
~ 75 ~
37
students to interact with the live-clients. There are a good number of books, few Indians but mostly foreign available on the subject to choose from on various aspects of trial, pre-trial, ADR and other' skills required by a lawyer. Lecture and case-methods may be supplemented or substituted by brain storming, experiential, simulation, role plays, group discussion, games, 38
pyramid, sub-groups, hypothetical problems, handouts. Each one of these methods involves the students in active learning but choice of the appropriate method is crucial for success. For example, brainstorming is most appropriate for generating ideas and widening the canvas of thinking. Experiential learning stimulates learning either by making the students recall an actual experience from their lives or creating an everlasting experience in the class for generating empathy. Simulation exercises like moot courts are good for learning argumentation and communication skills, while role-plays may be used effectively for client interviewing and counseling and professional ethics. Group discussion results in the thrashing out of ideas and enables the students to work with others. Games bring in fun and sense of outshining the other while learning Pyramids start with the activity “beginning with two participants and then including others through a snow balling effect. This activity may be more useful for learning fact gathering, relevancy of fact and active listening. Activities in sub-groups may provide opportunities for improving the skills of observation and critical peer evaluation. The students learn to apply the law in a given hypothetical situation. Handout or written materials supplied helps in retaining the important points of the subject.
37
38
Steven Lubet’s Modern Trial AdvocyAnd Practice (1992)
See, Brun and R. Johnstone, “the quite revolution improving students training in law” (1994) See also, Simon Rice with Graeme Coss, A Guide to implementing~ clinical teaching methods in the law schoolcurriculum (1996).
~ 76 ~
Finally the teacher may need to determine the manner of evaluat4Jn of the students' skill and fieldwork. There are many options .to choose from for evaluation of these skills. One may decide to evaluate them on the basis of their performance In simulation exercises after due practice or they may be evaluated on the basis of their performance in a given field, work activity. In the latter case, factors like initiative, participation, diligence, rapport with the client, confidence building, empathy communication, time-management, etc. may be among the factors to be focused for evaluation rather than the outcome of their work. The best of efforts may not bear results while the least work may show best results. For example, if the students have been assigned to work for a lok adalat, it should be irrelevant for the purpose of evaluation whether the client showed up for the lok adalat or not as that may be influenced to a great extent on the client's own motivation rather than the nature of the effort put in by the student. Similarly, if the students are participating in the litigation process, they' should not be judged on the outcome of the case but how they handled it. The outcome may be dependent on a variant of factors. Understanding of facts and their relevancy knowledge of legal provisions and precedents, preparation of papers, delivery of arguments? Summing up of the case, court manners and body language are more"; appropriate aspects to judge student's performance.
Professor Jay Erstling from the University of St. Thomas, Minnesota, USA while acting as a consultant to the Bangladesh Bar Council, expressed his view on the objectives of legal education as follows: “ Legal Education must inform students about crucial societal issues, including poverty alleviation, the role of women. the environment and human rights must focus on ways in which the legal system can help to solve the problems plaguing society. In other words, legal education
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must not teach students simply what the current law says, but it must provide students with the vision and skill to make the law more responsive to the development needs of this country. Put simply, it must train students to be social engineers. Legal education must not only teach students about legal theory, but must prepare students to engage in the practice of law or law related professions. Students, therefore, must learn not only how to be outstanding lawyers but also outstanding members of the judiciary, government service, NGO or industry. To accomplish that goal, legal education must impart skills in research,- d rafting, oral communication, interviewing, interpreting and advocacy ...”
Law students are expected to learn practical lawyering skills in two ways, namely, classroom courses for teaching such skills and legal aid clinics. For example, in the Law Faculty in Delhi University the course on Drafting, Conveyancing, Moot Courts and Professional Ethics has teaching of skills of legal writing, argumentation and issues of professional ethics as its primary goals. The Law Faculty also has its legal aid clinic and has run its legal aid programmes in the beggars' court, juvenile court and Tihar Prison in addition to organizing legal literacy camps in rural areas on a regular basis. It has been long recognized that legal aid clinics offer a large range of professional skills to students. A variety of skills not otherwise available to the students in the traditional legal curriculum are provided by the law school clinic. These include interviewing and counselling, the association and management of human relations, fact gathering and sifting, fact consciousness and a sense of relevancy, legal research and writing, handling crises -situations and intelligent decision-making and above -all an appreciation that law is only one method of solving problems and not always the best method.
~ 78 ~
Mainstreaming of legal aid clinics and other similar programs by incorporating them in the LL.B. curricula is necessary to ensure teaching of the practical skills of lawyering and generating awareness and sensitivity to the issues of access to justice by poor and deprived sections of society: Such inclusion will not only promote the Bar Council's agenda of teaching professional skills but will also ensure that more law schools undertake legal aid activities making law accessible to the poor and deprived. The legal aid clinics in law schools in India function as an 39
adjunct social service activity rather than part of the main curriculum
Involvement of students in the legal aid clinics as part of their courses has many benefits.
First, it will result in the training of students in the professional skills of lawyering, (as desired by the Bar Council) through introduction of the practical training courses.
Second, inclusion of the social service activity in the main curriculum gives a clear message to the students that legal aid is integral to the profession and not something which the law schools and lawyers engage in at their discretion. This realization and perspective is necessary to serve the long recognized need for legal aid of a large population of poor who go unrepresented in the absence of sufficient number of lawyers providing free legal aid.
Third, it will ensure Students participate in the Legal Aid Clinics in all law schools on a voluntary basis and their work in the clinic is not assessed for examination, as is the case
39
Report of the Expert Committee on Legal Aid, Process of Justice to people 157( 1973).
~ 79 ~
in
courses
that
form
part
of
the
main
curricula.
Finally, it will generate awareness about and sensitize the upcoming generations of lawyers to the problems of poverty and access to justice.
R OLE OF CLINICAL LEGAL EDUCATION IN INCREASING ACCESS TO JUSTICE In our adversarial legal system, poverty, inordinate delay, high cost of litigation, lack of legal aid mechanism and unavailability of alternative informal justice delivery system are considered the road blocks in the way of access to justice. In most of the cases, access to justice is only 40
available to the resourceful person and powerful elite since in order to have access to justice
one must have the means, which includes money. The poverty-ridden people in our country are, normally, not aware of the rights and the reliefs they are entitled to. This is primarily due to lack of education. Even if they are made aware of their rights and the reliefs, because of financial constraints they cannot enter even the gate of justice. In this context, law and the attitude and activities of the personnel involved with the operation and enforcement of law can be used to help the poor and the disadvantaged to exercise greater control over their lives. The institutions of legal education i.e. law faculties and law departments in the universities, both
40
Mostafa Mahmud Naser, Assistant Professor of Law at the University of Chittagong and a former participant in the Winter Course on Forced Migration 2006 The Hindu, Friday, May 11, 2007
~ 80 ~
public and private, and the law colleges can play a vital role in this regard. These institutions can distinguish themselves by concentrating their resources and efforts in encouraging and enhancing access
to
justice.
Clinical legal education is basically practical legal training through moot-court, mock-trial, participation of the students in ADR and in public legal education i.e. mass legal awareness programmes, chamber practice with the lawyers, counseling, participating in the conduct of life cases, short of appearing in the courts. Clinical legal education is learning through doing, or by the experience of acting as a lawyer. Hence, this is experiential learning. Clinical legal education merits separate treatment, for it is not merely a methodology of teaching or learning, it is also providing service to the people and, hence, more practical and noble. When young students at the formative stage of their career are exposed to community legal services, they get sensitized to the problems and needs especially of the marginalized sections of the people, and feel motivated to continue
to
work
for
them
when
they
enter
professional
life.
Thus, clinical legal education programme encourages law schools to expand their educational objectives to more completely serve the needs of their students and to provide instruction about the knowledge, skills, and values that will enable their students to become competent legal problem solvers. Successful implementation of clinical legal education programmes in the law faculties and law schools in a country like India will not only improve the quality of its legal education, but it can go a long way in meeting the demands of social justice, legal needs of the poor and improving human rights conditions.
Enhancing access to justice:
~ 81 ~
Objectives of clinical legal education can be achieved under the supervision of law faculties or law
schools
by
undertaking
massive
works
in
the
following
areas:
Integration of social values through curriculum: Lack of social relevancy and humanistic approach in the curriculum alienates and suppress various values, ethics, gender perspectives and views of minority etc. Therefore, by way of adding courses to the curriculum that address the issues of gender, cultural migration, minority and indigenous peoples or allowing students to work with people of other cultures, we can equip law students to revisit their responsibilities to the marginalized section of the society. The law curriculum should be introduced in integration with other disciplines. It is time to appreciate that the subject matter of economics, sociology, anthropology, philosophy, literature and psychology are essential to the education of the future law graduates. As the minimum, the budding lawyers must be taught in the economics of law, lawsuits
and
lawyering.
Members of the legal profession need to play the role of educator, planner, and counselor. Therefore, lawyers must be trained in skills that provide for a broader understanding of various facets of legal problems. Fundamental lawyering skills are important to provide social justice. However, any set of skills confined only to traditional methods of problem solving would be manifestly insufficient. Students would be required to undergo the entire process of lawyering either by exposure to actual cases or in dramatic simulations. In both instances, they are to act as lawyers and learn the details of lawyering from the experience of being a lawyer, real or simulating. While the students work under the supervision of a practicing lawyer or a clinical
~ 82 ~
teacher, they are expected to face situations, analyse facts and take decisions independently.
In externships programmes, post-graduate students are required to work with leading NGOs, engaged in para-legal activities in different parts of India. This programme proved extremely useful for the students as it provides necessary motivation and sensitizes and exposes them to the society and masses at large. Placement with legal services groups will offer law students valuable opportunities to broaden their perspectives, integrate such services into their careers, and
join
the
community
of
legal
activists.
Law clinics remained focused on poverty law issues and formulated increasingly sophisticated educational regimes to accompany live client representation. Balancing the twin missions of service and education, the clinical movement became an institutionalized component of legal education. Today, there is little dispute about the merits of clinical legal education. By addressing human rights and social justice concerns, law clinics and NGOs may help upgrade the quality of the legal profession in general. The clinics and expanding NGO opportunities improved
legal
training
and
encouraged
high-calibre
graduates
to
practice
law.
Law schools can also establish legal aid cells where students and teachers can guide people in identifying their problems and make them aware of the remedies available to them. Students in these cells can also provide paralegal services such as drafting affidavits, assisting in registration of marriages, births and deaths, electoral rolls, and filling out various forms. This type of work gives students ample opportunity to learn key interviewing, counseling, and drafting skills. Another approach is for law schools to adopt a village and encourage students to conduct a
~ 83 ~
survey to identify the problems that the people in that particular village face. After identifying the problems, students can approach the authorities concerned and arrange a public forum. Often, local authorities are not responsive to local citizens' concerns, especially those from disadvantaged communities. The idea here is to inform villagers about the programme and to encourage them to participate in the forum so that they can meet the officers concerned on that particular day and can settle their grievances in public. Students can be instrumental in the smooth functioning of the entire programme, and they can follow up on particular matters with the
officers
concerned.
Justice education requires us to place an even greater emphasis on negotiation, dispute resolution and collaborative working relationships. Our students must be taught how to resolve problems before they deteriorate into potential lawsuits. Our young lawyers need to be educated to recognize that even if the outcome of litigation is relatively certain, there is not always just one right answer to a problem. A money judgment may not be an effective solution for all parties, and so lawyers should work to provide for a lasting solution, one that is worked out through negotiation or appropriate dispute resolution. They need to learn that it is not enough to root out the facts of the problem: they must understand the context in which the problem arose. 'A good lawyer can assist clients in articulating their problems, finding their interests, ordering their objectives,
and
generating,
assuring,
and
implementing
alternative
solutions.'
Public legal education can be effected through lectures, discussions, publications and distribution of simplified and adopted versions of constitution and international human rights instruments etc.
~ 84 ~
or adopting any other informal methods like production of street plays that focus on legal issues. As a part of the public legal education programmes the aforesaid lectures, seminars and discussions can be organized in villages, factories, professional unions, educational institutions and amongst particular disadvantaged groups like slum dwellers, garments workers or aborigines. Public legal education should also motivate the people to participate constructively in the
creation
of
law,
which
has
a
pervasive
influence
on
our
society.
The whole idea of clinical legal education can go in vain if ethical side of legal profession is overlooked. Objective of clinical legal education is not merely to help students master the skills of lawyering and make them technically sound. In representing a client's case in the court, student lawyer must not resort to any means, which is morally condemnable, must avoid resorting to false witnesses and distortion of facts. While client's interest must guide his actions and efforts, ethical and moral values must also be upheld, for in that lies greater good of the society. In fact, in all the programmes that are linked with clinical legal education emphasis is always on the aspects of justice, protection of rights and progressive development of the society. While execution of these programmes requires moral and ethical motivation, successful implementation of the programmes will itself instill further ethical and moral values in the students.
Our legal education has so far been concentrating on the lawyering process and skills learning. To make legal education truly meaningful in the context of our social realities effort must be made without further delay to accommodate the remaining objectives in the clinical curriculum.
~ 85 ~
This, very likely, will necessitate establishment of 'out-reach programmes' where students will have the opportunity to interact with 'real problems', whose resolutions they are expected to come up with. This will allow the students to reflect on whether justice can always be done by litigation. The Constitution of India in its preamble and Fundamental Principles of State Policy speaks about social justice, which is the key pillar of the Constitution, according to which it shall be a fundamental responsibility of the state to attain, through economic growth, a constant increase of productive forces of the people, with a view to securing to its citizens the provision of the basic necessities of life, including food, clothing shelter, education and medical care. But due to vicious circle of poverty, even after so many years of independence these goals are yet to be achieved. High ideals of our liberation struggle as reflected in the constitution will continue to remain mere promises if we fail to ensure that every individual citizen has access to justice and access
to
the
law-
just
law
justly
and
equitably
administered.
In the background of constitutional commitment and the societal needs, legal education must embrace a broad and comprehensive concept.
~ 86 ~
CONCLUSION
The Constitution of India in its Preamble and the Fundamental Principles of State Policy speaks about social justice as its key pillar. But due to vicious circle of poverty, even after so many years of independence these goals are yet to be achieved. High ideals of our liberation struggle as reflected in the Constitution will continue to remain mere promises if we fail to ensure that every individual citizen has access to justice and access to the law - just law, justly and equitably administered.
In the background of constitutional commitment and the societal needs, legal education must embrace a broad and comprehensive concept. Legal education, therefore, should be rendered with a view to create an environment and ability for reshaping the structure of the society for the purpose of achieving national goals. The law and legal system are being called upon to advance arguments and develop tools to compel the state to abide by the social justice mandate of the Constitution and to promote the human rights of the under-privileged section of society. The responsibilities of legal education in a globalizing world make it necessary periodically. to revisit law school programmes, to allow for necessary reforms and improvements. Law schools must prepare them to meet these challenges by providing not only a sound substantive education, but also the necessary skills and experience. By adapting curriculum to alert students to the international contexts, offering clinics and externships, promoting student and emphasizing ethical foundations, today's legal education will fulfill its obligation to train lawyers to serve their clients and society.
~ 87 ~
Therefore, it may be mentioned that legal educators in India have sought to balance the contributions of traditional pre-independence; British influenced legal education with those from more recent reforms developed locally or imported from other countries, particularly the United States. The infrastructure of legal education in India is large and diverse: students may study law at a university law faculty, where most law teachers teach full time and the orientation trends to be more academic, or at a university affiliated law college, where the orientation is more practical and most faculty teaches part- time. Although most instruction are carried out in a traditional lecture format, clinical legal education has made some inroads in India, but not yet on a widespread scale.
India is now in the process of implementing new reforms in the structure of legal education whereby an optional under-graduate five year programme, with mandatory skills training in the fifty year must emerge as the national standard. Besides this, recent studies have shown that clients from linguistic and cultural minorities receive a lower quantity of justice in the court system. It is a pity that even after many years of independence, judgments like on Mandal commission reports have to be given, whereby the plight of the minority class have not changed much. We need to train the law students to work with multi-cultural clients more effectively. For this, we need to do away with the traditional way of teaching and presenting cases and require variety of new techniques to stimulate thought and conversation. Clinical legal education is the ideal way to inculcate such knowledge amongst the law students.
~ 88 ~
Legal education is both professional and liberal. As professional education, it needs to impart professional skills; as liberal education, it should aim at providing value- and social justiceoriented education. In other words, legal education’s ultimate mission is to transform law students into socially sensitive, justice-oriented legal professionals. Although the broad aim of legal education is social justice, its particular aim differs from country to country and society to society. The particular social justice aim of Indian legal education is to provide a fair, effective, competent, and accessible legal system to the citizens.
As discussed above, India’s broadly defined concept of legal aid provides Indian law schools a unique opportunity to achieve the social justice mission of legal education. However, this noble mission has remained a distant dream. The euphoria of the 1960s and 1970s about the ideal role of law schools in providing legal aid had withered away by the 1980s. Various efforts to revive this ideal and to reform legal education have not succeeded in arresting the decline of standards in legal education. These developments finally led the Bar Council of India to introduce clinical legal education as a mandatory component in the law school curriculum by way of four mandatory Practical Papers. The Law Commission of India has recommendations on clinical legal education drew on the American Bar Association’s MacCrate Report. Although the MacCrate Report can be used as a model to identify fundamental professional values and skills suitable to Indian conditions (a tentative listing of which is presented in this article) a full Indian MacCrate-style report is needed
~ 89 ~
to identify those appropriate to the Indian legal profession – and, by extension, to a reformed curriculum and methodology for legal education. Preparing an Indian MacCrate-style report will not be a simple task. In the meantime, law schools can use the opportunities created by the Bar Council’s four mandatory Practical Papers to enhance clinical legal education and to accomplish legal education’s social justice mission to a substantial degree. As demonstrated in Part IV, the opportunities exist in India already to achieve the broadest educational goals of the papers through a social justice-based clinical curriculum. Certain projects already undertaken at law schools, such as introducing lok adalats into the curriculum and setting up legal aid cells similar to those operated by the V. M. Salgaocar College of Law, are relatively simple and have the potential of addressing virtually all of the values and skills that are advocated in this project. But more is needed to fully institutionalize social justice-based clinical legal education – and for Indian society to obtain the benefits of a reformed legal profession. Law schools need financial and intellectual support from the bench, the bar, and the government. It is true that law schools are the starting point for establishing a legal profession that provides social justice, but the bench and the bar also have an obligation to shoulder this responsibility. The bench can participate by allowing internships and clerkships; the bar by involving practicing lawyers to teach and monitor clinical programs; and the government by amending The Advocates Act in 1961 to allow students and faculty to represent clients in pro bono cases. Each of these is an immediate concern for the successful implementation of clinical legal education’s mission of social justice. In addition, there must be a consensus, consistent with the recent reforms and pronouncements of the Bar Council and the Law Commission of India, to identify the fundamental values of the legal profession together with skills necessary to achieve those values. Only then can clinical
~ 90 ~
legal education focus fully on the broader goal of teaching social justice and providing socially relevant learning experiences.
While clinical professors share many common goals, there are many, many differences in style, approach, subject matter, and method among clinical law professors. These differences should be welcomed. In fact, many clinical professors continue to vary their own teaching styles depending upon their interests and needs and those of their students. It is important for those reviewing clinical teaching to understand the methods used by clinical teachers and to embrace a wide range of different approaches while helping those professors achieve a high level of teaching quality.
~ 91 ~
SUGGESTIONS
Some of the main lacunae in the legal education in India are as follows:
1. There are a large number of institutions imparting legal education and in most of them attendance of the students is very poor. 2. Many Law Colleges/Universities do not have ad equate teaching faculty. 3. Perhaps a large number of teachers believe that like any other profession teaching is also a profession as a result of which that zeal which a teacher must possess is absent. 4. It is often said that law in books and law in practice are quite different from each other. This in effect means that teachers are not equipping the students adequately to make them confident enough to face the court straight away after passing out. 5. Supervision of Law Colleges by the Bar council Universities is utterly deficient. 6. Examination system at this point of time has almost become useless. The following suggestion can be considered for improving the standard of legal educations: 1.Attendance of the students in the classrooms must be strictly ensured: The Universities Colleges State Bar Councils must ensure this and they should not fail in their duty. In no case should a student be allowed to take the examination if he has fallen short of a minimum o£15% attendance in each subject,
~ 92 ~
2. A proper student teacher ratio should be fixed first, and wherever the same is not followed, examination may not be conducted. The Universities Bar Councils must supervise strictly such matters and they should be made accountable so That they discharge their duty properly 3. All law teachers must be made to understand that teaching is not profession but a mission. Teachers are the backbone of any society. and they must be made to understand that If they lack the zeal of a teacher, then they don't fulfill an essential quality of a teacher. Such teachers even if they .have the essential educational qualification to be appointed as Assistant Professors, should not be so recruited. 4. In most of the, Law Colleges in India, the students have no access to courts, Neither are, regular visits by them to courts ensured nor are they exposed to Moot Courts. Consequently, law in books and law in practice remain different for them. This is a huge gap which must be filled up forthwith. A student must be' thoroughly 'taught as to how a witness should be examined and cross-¬examined. Examination and cross-examination of a witness should be made a full separate paper and adequate reading material and practical training in the same must ,be given to the students. A large number of law students do not enjoy their studies because they know that during their stay in the Law College they will not be able to learn as much as they should. This aspect needs to be tackled forth with. Similarly, some basic laws like Information Technology, Business, Negotiable Instruments, Banking, Insurance, Stamps and Registration must be made essential components in the graduate curriculum in law 5. Many Law Colleges are utterly inadequately equipped to impart legal education. They are especially handicapped with respect to the practical training to be imparted to students. Many of such law colleges are situated at small towns where only a few magistrate courts exist. The
~ 93 ~
students of such law collages suffer as there are hardly any court visits organized for them. If at all they are taken to the Courts to familiarize themselves with courts procedure etc. they hardly learn any thing, as they are able to attend only these small courts. There 'are hardly any moot courts organized for them as the infrastructural facilities for them are almost non-existent. The Universities and State Bar Councils should be made to see reason in such cases. Their supervision should be at par with the Medical Council of India, which supervises the medical colleges in the country. An institution which is not able to provide adequate practical knowledge of law to its students has no right to remain in existence and must be closed down. Many of such institutions may be owned by people highly connected but they cannot be allowed to play with the lives of students. 6. Examination system in the law colleges have almost become rotten. Most Universities in India follow the orthodox pattern in which examinees are required to answer five questions out of ten. The nature of the questions is almost same as they were more than half a century ago. This needs to be drastically corrected. The question paper could be a combination of partly purely objective type multiple choice questions, partly short answer questions, partly medium answer questions and partly long answer questions. This would ensure that a student would succeed only when he studies hard and true. Reputation of a degree depends to a large extent on its examination pattern. The
general
public
-respects
such
degrees/examination
and
the
reputation
of
the
degree/examination automatically goes up. For instance, the IIT entrance examination or CA degree examination enjoy a very high reputation everywhere. Can we all make the' LL.B degree at par with them? The society expects that together we must make an effort into that direction.
~ 94 ~
It is further suggested that the following measures to be taken to impart the clinical legal education in law colleges on a practical, continuous and sustainable basis:
A suitable legislation be enacted by the State to make it compulsory for every law college to establish a law clinic to impart clinical legal education.
The legislation should cover that every law college should adopt a Revenue division to organize legal aid programs with the help of authorities under Legal Service f\uthorities Act.
The four practical training papers such as Moot-Court, Drafting and . Pleading, Professional Ethics and Legal Aid should be attached to the law clinics of the college.
A full time professor should be entrusted with the duties of over all supervision of the ,
clinical legal education.
The law clinics should have sufficient number of clinicians from the teaching faculty and practicing advocates to assist the professor and to execute the various programs of clinical legal education.
Too many protocols and the existing formal procedure in organizing the outreach programs for the welfare of . the poor and indigent litigants should be avoided.
~ 95 ~
The State Government, State Barcouncil and the Governing Body of the respective law colleges should workout a formula to share the expenditure in organizing and conducting the legal aid clinics and outreach programs.
Moreover, it is suggested that the particular social justice aim of Indian legal education is to provide a fair, effective, competent, and accessible legal system to the citizens, therefore, clinical legal education should be client-centered, service-centered, socially relevant and communitycentered with emphasis on value based education. Then only, desired goals and objectives will be achieved.
