CLINICAL LEGAL EDUCATION

ASSIGNMENT ON HISTORICAL APPROACH TOWARDS CLINICAL LEGAL EDUCATION IN INDIA

NAME ADITI RAJ, ROLL NO. 02, CLASS VII SEMESTER, IV YEAR

PREFACE
The legal education is the basis of an efficient legal profession which is the basis of a wellorganized and sound judicial system .Unfortunately the legal education was not paid due attention during the British period and even after independence it has been the most neglected branch of the education. It is a matter of pleasure that the Bar Council of India has taken the legal education very seriously and has made commendable efforts for its improvement .One of the pitfalls of the legal education is that it has put less emphasis on the practical training of the subject. This assignment makes an effort to make the readers aware of the historical development of the system if clinical legal education in India and its very importance. The material has been collected from various sources. This assignment contains material on the Historical Approach towards Clinical Legal Education and its development in India. I hope it serves as a good and helpful read to all the readers.

METHODOLOGY
This assignment has been prepared on the doctrinal type of methodology. The material has been collected from various sources that of articles,books various law journals,newspapers and internet. It contains viewpoint of many jurists and advocates. The material was collected and arranged in order. This assignment emphasizes on the Historical Approach towards Clinical Legal Education in India. In order to make it an easy and well understandable read the whole assignment has been divided into five chapters which individually describe its meaning, its origins and then very elaborately the abuse of PIL is explained in chapter 4 of the assignment. Relevant case laws are also given to explain the reader with practical view. In the last section, a conclusion is given that concludes the topic and gives a quick gist of the whole subject.

SYNOPSIS
CHAPTER-1
Introduction What is meant by Clinical Legal Education? Types of Legal Clinics

CHAPTER-2
History of Clinical Legal Education

CHAPTER 3

DEVELOPMET

CHAPTER-3
Development of Clinical legal Education

CHAPTER-4
Evolution of Clinical Legal Education in India

CHAPTER-5 Global Development Of Clinical Legal Education

CHAPTER-6
Legal Education Reform and Law School-based Legal Aid Clinics in India: Laying the groundwork for Social Justicebased Clinical Legal Education

CHAPTER-7
Reviewing Clinical Legal Education Law school Provisions The Cost of Clinics

CHAPTER-8
Conclusion

CONTENTS
S.NO. 1. 2.
CHAPTER 1

PARTICULARS
ACKNOWLEDGEMENT

PAGENO. 6 7 - 10

3. 4. 5. 6. 7. 8. 9.

CHAPTER 2 CHAPTER 3 CHAPTER 4 CHAPTER 5 CHAPTER 6 CHAPTER 7 CHAPTER 8

11 27 28 - 33 34 37 38 45 46 48 49 51 52

ACKNOWLEDGEMENT
I extend my heartfelt gratitude and sincere thanks to my clinical law teacher Mr.EqbalHussain for his encouragement and full cooperation throughout the completion of this assignment. Without his guidance and support this assignment would never have been possible.
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THANK YOU SIR

CHAPTER 1 INTRODUCTION
Clinical Legal Education (CLE) has been a significant part of legal education since 1960. The first clinic started in U. K. in 1970 and in Australia in 1990s. The concept is fast expanding across the globe also. The Clinical Legal Education is necessary to bridge a gap between 6

theory and practice. The aim of this article is to know the various types of Clinical legal Education, its necessity in curriculum and current initiatives and practices in Indian Clinical Legal Education.

WHAT IS MEANT BY CLINICAL LEGAL EDUCATION? The Clinical Legal Education can be defined in various ways Clinical Legal Education is essentially a multi-disciplined, multipurpose education which can develop the human resources and idealism needed to strengthen the legal system a lawyer, a product of such education would be able to contribute to national development and social change in a much more constructive manner.1 A learning environment where students identify, research and apply knowledge in a setting which replicates, at least in part, the world where it is practiced. It almost inevitably means thatthe student takes on some aspect of a case and conducts this as it would be conducted in the real world.2 The Clinical Legal Education is a term which encompasses learning which is focused on enabling students to understand how the law works in action. This can be done by undertaking real or realistic simulated case work. In early days law is thought as one of the curriculum available to the students. Even though the casebook method was growing in earlier days, there were critics of this method from the beginning. However the first-hand experience method will really educate the law students. The legal education clinics if properly channeled may help the students to gain their knowledge. The use of the word clinic prompts the analogy of trainee doctors meeting real patients in their medical clinics. Clinical Legal Education is only one way in which theory and practice can be brought together. Now every nation is giving importance on the clinical legal education in order togroom their future lawyers, the law makers, the executors, law officers, judges and lawteachers to acquire knowledge through a scientific method keepingpace with the ethicsand philosophy of the society. The objective of the clinical education is radical,reformative and dynamic. The following are the basic features of the clinical legal education. (i) The students are to experience the impact of law on the life of the people.
1

KuljitKaur ,Legal Education and Social Transformation [available at: Richard Lewis, Clinical Legal Education Revisited Professor of Law, Cardiff University, Wales, United

http://alsonline.amity.edu/Docs/alwjlegkk.pdf] [viewed on: 25/06/2009]

2

Kingdom, Pg. 5 , [available at: http://www.law.cf.ac.uk/research/pubs/repository/21] [viewed on: 25/06/2009]

(ii) The students are to be exposed to the actual milieu in which dispute arise and to enable them to develop a sense of social responsibility in professional work. (iii) The students are to be acquainted with the lawyering process in general and the skills of advocacy in particular. (iv)The students are to critically consume knowledge from outside the traditional legal arena for better delivery of legal services. (v) The students are to develop research aptitude, analytical pursuits and communicating skills. (vi) They are to understand the limit and limitations of the formal legal system and to appreciate the relevance and the use of alternate modes of lawyering. (vii) They are to imbibe social and humanistic values in relation to law and legal process while following the norms of professional ethics A legal clinic (also law clinic or law school clinic) is a law school program providing handson-legal experience to law school students and services to various clients. Clinics are usually directed by clinical professors.3 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 lawclinic students to appear and argue in court.45 Clinical legal education may be simply described as learning through application, practice and reflection. It is quite different from the traditional legal education. The lecture- seminar method so common in the education of the law students does not meet the clinical demands, however they are vital as they render vital information being predominantly content and assessment led. Clinical legal education is directed towards developing the perceptions, attitudes, skills and sense of responsibilities which the lawyers are expected to assume when they complete their professional education. It can, therefore, be as broad and varied as the law school curriculum would accommodate; certainly it is not limited to the mere training in certain skills of advocacy. Clinical legal education has wider goals of enabling law students to understand and assimilate responsibilities as a member of a public service in the
3 4

Black's Law Dictionary, 6th Edition, "clinical legal studies," (St. Paul, Minn: West Publishing Co., 1990), 254 Louisiana Supreme Court Rule XXhttp://www.lasc.org/rules/supreme/RuleXX.asp 5 Uniform Local Rules Of The United States District Courts For The Eastern, Middle, And Western Districts Of Louisiana, LR83.2.13, http://www.laed.uscourts.gov/LocalRules/Civil_83.htm

administration of law, in the reform of the law, in the equitable distribution of the legal services in society, in the protection of individual rights and public.

TYPES OF LEGAL CLINICS

The aims and objective of each type of clinic are in principle the same. The legal clinics may be divided into three types: 1. Simulation clinic: Students can learn from variety of simulations of what happens in legal practice. Ex moot Court commonplace etc. Cases can be acted out in their entirety, from the taking of initial instructions to a negotiated settlements or Court hearing. Such sessions can be run as intensive courses or spread through all or part of the academic year in weekly slots. Other simulations can range from negotiation exercises, client interviewing exercises, transaction exercises etc. 2. The In-house real client clinics: In this model the clinic is based in the law school. It is

offered, monitored and controlled in law school. In this type of clinic the clients require actual solutions to their actual problems hence it is called as real client clinic. The client may be selected from a section of the public. The service is given in the form of advice only or advice and assistance. In this type of Clinics, Clients are interviewed and advised orally or in writing and also helped with the preparation of their cases. The clinic may operate as a paralegal services or a fully-fledged solicitors practice. 3. The out-house clinic: It is a clinic that involves students in exercising legal work

outside the college or university. These types of clinics may operate on the basis of advice giving only. Such agencies are run by trade union councils and other non-statutory bodies. The clinic might take the form of placement also in solicitors office or barristers chambers. Simulation clinic has several advantages than other clinics. In this type of clinic risk and unpredictability of the real-client work are removed, the same materials are used for many times and hence cost is substantially less than real clinic. The administration of the simulation is very difficult. But all the clinics play active part in Clinical Legal Education and also their objectives and aims are same.

CHAPTER - 2 HISTORY OF CLINICAL LEGAL EDUCATION

The earliest Legal Aid movement appears to be of the year 1851 when some enactment was introduced in France for providing legal assistance to the indigent. In Britain, the history of the organised efforts on the part of the State to provide legal services to the poor and needy dates back to 1944, when Lord Chancellor, Viscount Simon appointed Rushcliffe Committee 10

to enquire about the facilities existing in England and Wales for giving legal advice to the poor and to make recommendations as appear to be desirable for ensuring that persons in need of legal advice are provided the same by the State. One need not be a litigant to seek aid by means of legal aid. Legal aid is available to anybody on the road. Justice Blackmun in Jackson v. Bishop says that; "The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice."

Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a 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 reason of economic or other disability. Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society. Sec. 304, Criminal Procedure Code: The Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand. Since 1952, the Govt. of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In 1960, some guidelines were drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments. In 1980, a Committee at the national level was constituted to oversee and supervise legal aid programmes throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati, then a Judge of the Supreme Court of India. This Committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities throughout the country. The introduction of LokAdalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes. In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programmes throughout the country on a uniform pattern. This Act was finally enforced on 9th of November 1995 after certain amendments were introduced therein by the Amendment Act of 1994. 11

Contributions Made By Justice V.R.Krishna Iyer To The Development Of Legal Aid - Processionals Justice To Poor The contribution of justice Krishna Iyer towards the development and incorporation of the concept of legal aid in the Indian legal system has been tremendous. His report titled Processionals justice to poor has gone a step further in enabling the recognition of the poor for the purpose of giving legal aid. In a report on Free Legal Aid in 1971 Justice Bhagwati observed " even while retaining the adversary system, some changes may be effected whereby the judge is given greater participatory role in the trail so as to place poor, as far as possible, on a footing of equality with the rich in the administration of justice." A similar report of the Committee on Legal Aid titled "processionals justice to poor" presided over by Krishna Iyer in 1973, dealt with the nexus between law and poverty, and spoke of PIL in this context. It emphasized the need for active and widespread legal aid system that enabled law to reach the people, rather than requiring people to reach the law. The two judges joined forces as a two member committee on juridicare, released its final report in August 1977. The report while emphasizing the need for a new philosophy of legal service programme cautioned that it must be framed in the light of socio-economic conditions prevailing in the Country. It further noted that the traditional legal service programme which is essentially Court or litigation oriented, cannot meet the specific needs and the peculiar problems of the poor in our country. The report also included draft legislation for legal services and referred to Social Action Litigation. Justice Krishna Iyer was appointed as the Chairman of Committee for Legal Aid. The Committee was formulated as on the 22nd day of October 1972. The Committee after conducting sample surveys of large part of the country submitted a 275 page report to the Government on the 27th day of May, 1973. This report came to mark the cornerstone of Legal Aid development in India. The report clearly laid down that it is a democratic obligation of the State towards its subject to ensure that the legal system becomes an effective tool in helping secure the ends of social justice. He coined the word "Juridicare" to cover a scheme of legal aid which brought justice to the doorstep of the lowly and which was comprehensive in its coverage.

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The report clearly suggests the colonial hangover of the Indian legal system which has prevented it from realising its true potential and extent. It also recognises the fact that much of our law was created by the British to suit their convenience and as a result of this it is mostly insensitive to the socio-economic problems of the masses it set out to govern and regulate. The 14th Law Commission Report stated the fact that if laws do not provide for an equality of opportunity to seek justice to all segments of society they have no protective value and unless some arrangement is made for providing a poor man the means to pay Court fees, advocates fees and other incidental costs of litigation, he is denied an opportunity to seek justice. Most social evils are an outcome or creation of poverty and the misery that comes with being poor in a country like India, at the same time it also needs to be borne in mind that the judiciary no matter however committed it may be towards uplifting the cause of the poor is ultimately bound by procedural formalities which do not take into account the misery or problems of the masses. Therefore the sufferings being so may it is not possible for the legal system to remove even few of such problems. In keeping with the same view Justice Krishan Iyer asserted that poverty is a creation of unjust institutions and unjust society. Therefore in a country like India if you are poor you are ineffective socially as well as economically the only way that you can then be empowered is through radical revamping of the socioeconomic structure. Such a radical change according to him could only be brought about in the form of a revolution that the legal service programme only is capable of gearing. Thus the legal aid programme aimed at revamping the socio-economic structure by way of removing the socially unjust institutions and creating a new order based upon the ethos of human liberty, equality and dignity of mankind. He realised the fact that though the system had been flagged off under the term "We the people of India" it had no longer continued in the same direction want of procedural formalities had taken precedence over the people at the cost of which justice often suffered casualties. He came to recognise the fact that the Courts of law had merely become instruments for laws sake and were not administering justice as such. However, he placed blame for the attitude of the judiciary on the colonial hangover of namely all institutional systems in the Country. This lead him to express faith in the Gandhian system which professed the resolution of disputes at the grass root level through village Panchayats. 13

The expert committee appointed under the chairmanship of justice Krishna Iyer has made significant contribution toward the development of the concept of legal aid in India. The various suggestions made by him can be summarized as under: A National Legal Service Authorityaccountable to the parliament but protected from official control was recommended. Simplification of the legal procedure and an emphasis on conciliated settlement outside court has to be the policy of legal aid schemes. The report adopted the three fold test laid down for determining eligibility: Means test- to determine people entitled to legal aid Prima facie test- to determine whether there was a prima facie case to give legal aid or not Reasonableness test- to see whether the defence sought by a person is ethical and moral. In criminal proceedings the committee is not in favour of guaranteeing legal aid to habitual offenders and in cases, which essentially involve private claims. Regular arrangement for aid and advice to the under-trials was to be provided. A liberalized bail policy which was not to be dependent on financial consideration Legal services were to be extended to investigation as well as post-conviction stage. Legal services should also include rehabilitative services. In criminal legal aid, the committee was in favour of salaried lawyers. The report also encourages payment of compensation to victims in criminal cases. Family courts should be established for women and children with women judges this is specially required in slum areas and rural villages. Public defence council should be appointed in childrens court. In backward areas, Legal Advice Bureau should be established in each development block. The report encourages the involvement of law students in legal aid schemes particularly for preventive legal services. Public law service should be an alternative available as against the private bar and legal services authority should fix the fees payable to the lawyer. Contributions Made By Justice P.N.Bhagwati To The Development Of The Concept Of Legal Aid-Report On National Jurdicare: Equal Justice-Social Justice, Ministry Of Law And Justice And Company Affairs, 1977 Justice P.N. Bhagwati practiced at the High Court, Bombay, he became a Judge of the Gujarat High Court on 21st July, 1960, and became Chief Justice of Gujarat on 16th September, 1967. On 17th July, 1973, he became the judge of the Supreme Court of India. He was also Chairman of the Legal Aid Committee appointed by the Government of Gujarat for suggesting ways and means of providing free legal aid and advice to the poor and weaker 14

section of the community; and also acted as Chairman of the State Legal Aid Committee for running the Pilot Project of free Legal Aid and Advice in Gujarat. He worked successfully to build up an elaborate legal aid programme. He is widely regarded as the originator of Indias legal aid programme, including setting up of legal aid camps in rural areas, working with NGOs, establishing legal aid clinics etc. The post-independence legal aid development was initiated by formation of BOMBAY COMMITTEE, in 1949 under the chairmanship of Mr. NH Bhagwati, followed by the below mentioned sequence of reports, committees and rules. Trevor Harries Committee in West Bengal, 1949 Initiatives by the state governments such as The Legal aid formed in 1952 in UP, The Legal Aid Committee formed in Madras in 1954, and so on, Kerala Legal Aid (to the poor) Rules, 1957, 14th Report of the Law Commission of India, Central Government Scheme 1960. National Conference on Legal Aid, 1970, The Gujarat committee along with Mr. P.N. Bhagwati (Chairman) constituted of Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker, Gujarat VidhanSabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel, Principal, New Lal College, and Ahemdabad. The focus of the committee was the indigent person seeking to access justice. Answering to the question of inequality in the administration of justice between the rich and the poor the report clearly stated that there can be no rule of law unless the common man irrespective of the fact whether he is rich or poor is able to assert and vindicate to the rights given to him by the law. The machinery of law should be readily accessible to all. The poor must be placed in the same position as the rich by means of adequate legal service programme. It stated that the inequality between the rich and the poor in administration of the justice can be removed by establishing and developing effective system of the legal aid programme. Legal aid and advice should be regarded not as a matter of charity or bounty but as a matter of right. It is a part of social security programme just as much as medical aid is. There was unanimous decision of the Committee that the State should regard it as an obligation to provide legal assistance to the poor and indigent. It stated that this obligation of the State was not merely, socio-economic or political but is also constitutional by reason of Articles 14 and 22(1). Further the report stated that the legislation and rules so made by the government should not be another piece of legislation made with the reference of any foreign legislation as there is a 15

marked difference between socio-economic conditions prevailing in advanced countries and those prevailing in developing countries like India. It also emphasized on having legal aid programmes and that the organization for effectuating the legal service programme must be responsive to the poor in giving legal service and must not be mechanical and wooden in its approach. Even after, such a programme is introduced there must be a continuous examination of its utility and its responsiveness to the poor. The report also in detail dealt with the true scope and extent of the legal aid. It recommended that the question is what costs, charges and expenses to be incurred by a litigant in court should be provided from the legal aid fund as part of legal aid scheme. The court fees constitute one of the largest constituents of legal expenses involved in a proceeding in a court of law. Instead of providing necessary funds to the assisted person to make payment of court fees the State should by legislation remit court fees in case of an assisted person. The scheme of legal aid should not be based on class or status. The report in detail stated the constitution and the working of different legal committees: (a) The Taluka Legal Aid Committee.- It was recommended that there shall be a Taluka Legal Aid Committee in every Taluka having a court of Civil Judge (Junior Division) or Judicial magistrate, It shall have power to deal with the applications for legal aid in proceedings before the Talukacourt as also before the Tenancy Tribunal situated within the Taluka. (b) The District Legal Aid Committee - The same provisions was applicable mutatis mutandis in respect of the District Legal Committee. Apart from the District Judge and the president of the District Bar Association, one more lawyer, a retired Judge or Magistrate or two social workers, the other members of the Committee was to be the Government Pleader of the District Court ex-officio, the President of the District Panchayat ex-officio and the Principal or a teacher of law college selected by the district judge. (c) The State Legal Aid Committee- It was to be at the apex of the entire Legal Aid Organization and was suggested to be a High power Body composed of different social interests dedicated to the cause of administration of legal aid. It was to have as its Chairman the Chief Justice or a High Court Judge nominated by him. The other members of the Committee constituted of the Advocate General, President of the High Court Bar Association 16

or the Vice-President, Chairman of State Bar Councilor the Vice-Chairman, one senior member of the High Court Bar, three members of the mofussil Bar, one District Government Pleader, District Judges of Rajkot, Baroda and Surat, Secretary, Legal Department and Finance Secretary of the State Government, two members of the State Legislative Assembly, Director of Backward Classes, four social workers and a teacher of law. This Committee was to have mainly supervisory functions and lay down policies and principles for the administration of the Legal Aid Scheme. There was to be a State Director of Legal Aid responsible for the actual administration of the Legal Aid Programme within the State and was to be the Chief Executive Officer of the State Legal Aid Committee. The Committee was to exercise control over all the Legal Aid Committee in the State, and similarly the Taluka Legal Aid Committees shall be under the control and supervision of the District Legal Aid Committee. A special mention and recommendation was given regarding the Bail System. The bail system caused discrimination against the poor since the poor would not be able to furnish bail, while wealthier persons otherwise similarly situate would be able to furnish bail. The committee giving wide powers to the magistrate suggested that if a Magistrate was satisfied after making an inquiry into the conditions and background of the accused that the accused has his roots in the community and is not likely to abscond, he could release the accused on order to appear or on his own recognizance. The Magistrate must ordinarily do so unless the Prosecutor can show that, having regard to the conditions and background of the accused, there is a substantial risk of his non-appearance at the trial. The decision as regards the amount of bail should be an individual decision depending on the individual financial circumstances of the accused and the probability of his absconding. There should not be too many adjournments on the ground that the prosecution is not ready with its witnesses. The magistrate should be given power to order payment of costs of adjournment to the accused where the prosecution has not taken reasonable steps to secure the presence of any witness and the case has to be adjourned on that account. The report stated that we as a nation really want to eradicate poverty and establish a truly free, just and egalitarian society; the legal service programme recommended by the Committee should be implemented wholly and in its entirety. But recognizing the difficulties that the state government may face, it may not be possible for the State Government to implement the whole of the legal service programme immediately in one single stage. It was, 17

therefore, suggested that the legal service programme may be implemented in stages according to a phased plan. The committee recommended that the state government may implement the legal service programme immediately in so far as it relates to the provisions of legal aid in civil cases and cases before the administrative tribunals and also in regard to criminal cases other than committal proceedings and cases under the Bombay prohibition act, Bombay prevention of gambling act prevention of food adulteration act and suppression of immoral traffic in women and girls act. This report was followed by the EXPERT COMMITTEE ON LEGAL AID, 1973headed by Mr. Krishna Iyer. Meanwhile there were many state initiatives taken and more state Reports were prepared which lead to development of legal aid in the states such as Tamil Nadu, Madhya Pradesh and Rajasthan. On 19 May, 1976, the government of India appointed a two member committee, known as JURIDICARE COMMITTEE, of justice P N Bhagwati as chairman and Justice V.R.Krishna Iyer as member. One of the purpose for setting up the committee was that the central government is of the view that an adequate and vigorous legal service program is necessary to be establish in all the states in the country on a uniform basis. The terms of reference of the Juridicare committee included making recommendations for the establishing and operating comprehensive and a dynamic legal service program for effective implementations of the socio economic measures taken or to be taken by the government including formulation of scheme (s) for legal services. The JuridicareCommittees report was titled Report On National Juridicare: Equal Justice Social Justice (hereinafter referred as the 1977 report). The introduction of the 1977 report made it clear that it was in continuation of the 1973 report. It said that In a sense, the pres ent report is an extensive revision, updating, revaluating and adding to the previous. In an attempt to overcome the criticism of the 1973 report the Juridicare Committee submitted an interim report furnishing a draft of the national legal services bill, 1977, which comprehensively drew up the institutional setup for the delivery of legal services. The 1977 report first focused on the infrastructure of the legal services of the organization and clearly stated that it was not to be a department of the government but an autonomous institution headed by the Judge of the Supreme Court. The body would have representations 18

from Bar Associations, the Government, the Parliament and the judiciary as well as voluntary associations and social workers and that there would be a multi-tier set up for the legal aid organization. The 1977 report was an amalgamation of the 1971 Gujarat report and the 1973 report but absence of certain aspects of the legal services was conspicuous. For instance, both the 1971 Report and the 1973 report dealt with the issues arising from the criminal justice separately. Hence it may be stated that except saying that it was continuation of the earlier reports, the 1977 Report made no reference to these aspects. The other goals that were reiterated were: the programme should not identify lawyers with the law but should even pose them against law, wherever law is the reflection of an unjust social order, it had to recognize the inter relatedness of social, legal, educational and psychological problems which beset the poor; the content of the legal services programme was to include spreading of awareness amongst the poor about their rights, tackling the class problems of the poor, initiating socio-legal research into the problems with a view to bringing about reform in law and administration and helping different groups of the poor to organize themselves. The 1977 report envisaged several modes of delivery of legal services. The primary mode would be the providing of legal advice through various legal aid offices having both salaried lawyers and assigned lawyers. The 1977 Report was the latest attempt by the Central government to comprehensively determine the issue of providing legal services to the poor. It is further submitted that there were certain common lacunae in all the reports, which need to be noticed: Each of the reports though suggested of setting up of setting legal aid through a network of autonomous legal aid bodies, there was no clarity on how that could be achieved with the state being the major contributor of funds to the programme. The 1977 report of the committee of Justices Krishna Iyer and P.N. Bhagwati, both of the Supreme Court, drew up a detailed scheme which envisaged public interest litigation (PIL) as a major tool in bringing about both institutional and law reform even while it enabled easy access to the judicial system for the poor. Their report, as those of the previous committees, was ignored. This explained partly the impatience of these two judges, in the post-emergency 19

phase, in making the institution appear responsive to the needs of the population that had stood distanced from it. The two judges played a major role in spearheading the PIL jurisdiction. NATIONAL LEGAL SERVICES AUTHORITY was constituted on 5th December, 1995. His Lordship Hon. Dr. Justice A.S. Anand, Judge, Supreme Court of India took over as the Executive Chairman of National Legal Services Authority on 17the July, 1997. Soon after assuming the office, His Lordship initiated steps for making the National Legal Services Authority functional. The first Member Secretary of the authority joined in December, 1997 and by January, 1998 the other officers and staff were also appointed. By February, 1998 the office of National Legal Services Authority became properly functional for the first time. The First Annual Meet of the State Legal Services Authorities was held on 12th of September, 1998 at VigyanBhawan, New Delhi which was presided over by His Lordship Hon. Dr. Justice A.S. Anand, the then Executive Chairman, NALSA. His Lordship Hon. Mr. Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman, Supreme Court Legal Services Committee, the Members of the Central Authority and the Executive Chairmen and Member Secretaries of the State Legal Services Authorities attended this Meet. In this Meet, the progress of on-going schemes which had been initiated by NALSA was examined and decisions of far reaching implications were taken with a view to strengthen and streamline legal aid programmes in the country. The Second Annual Meet of the State Legal Services Authorities was held at Jubilee Hall, Hyderabad on 9th of October, 1999. This Meet was inaugurated by His Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice of India and Patron-in-Chief, NALSA. Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA delivered the keynote address. Other dignitaries present at the inaugural function included Hon. Mr. Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman, Supreme Court Legal Services Committee, Hon. Mr. Justice M.S. Liberhan, Chief Justice of Andhra Pradesh High Court and Members of Central Authority. In pursuance of the call given by His Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice of India in the First Annual Meet, 9th of November is being celebrated every year by all Legal Services Authorities as "Legal Services Day". NALSA is laying great deal of emphasis on legal literacy and legal awareness campaign. Almost all the State Legal Services Authorities are identifying suitable and trustworthy 20

NGOs through whom legal literacy campaign may be taken to tribal, backward and far-flung areas in the country. The effort is to publicise legal aid schemes so that the target group, for whom Legal Services Authorities Act has provided for free legal aid, may come to know about the same and approach the concerned legal services functionaries. NALSA has also called upon State Legal Services Authorities to set up legal aid cells in jails so that the prisoners lodged therein are provided prompt and efficient legal aid to which they are entitled by virtue of section 12 of Legal Services Authorities Act, 1987. CONSTITUTION OF STATE LEGAL SERVICES AUTHORITY: A State Authority shall consist of (a) the Chief Justice of the High Court who shall be the Patron-in-Chief; {b) a serving or retired Judge of the High Court, to be nominated by the Governor, in consultation with the Chief Justice of the High Court, who shall be the Executive Chairman; and (c) such number of other Members, possessing such experience and qualifications, as may be prescribed by the State Government, to be nominated by that Government in consultation with the Chief Justice of the High Court. The State Government shall, in consultation with the Chief Justice of the High Court, appoint a person belonging to the State Higher Judicial Service not lower in rank than that of a District Judge, as the Member-Secretary of the State Authority, to exercise such powers and perform such duties under the Executive Chairman of the State Authority as may be prescribed by that Government or as may be assigned to him by the Executive Chairman of that Authority. A person functioning as Secretary of a State Legal Aid & Advice Board immediately before the date of constitution of the State Authority may be appointed as Member-Secretary of that Authority, even if he is not qualified to be appointed as such under this sub-section, for a period not exceeding five years. The administrative expenses of the State Authority, including the salaries, allowances and pensions payable to the Member-Secretary, officers and other employees of the State Authority shall be defrayed out of the Consolidated Fund of the State.

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High Court Legal Services Committee: The State Authority shall constitute a Committee to be called the High Court Legal Services Committee for every High Court, for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the State Authority. The Committee shall consist of a) a sitting Judge of the High Court who shall be the Chairman; and b) such number of other Members possessing such experience and qualifications as may be determined by regulations made by the State Authority, to be nominated by the Chief Justice of the High Court. Constitution of the District Legal Services Authority: A District Authority shall consist of :a) the District Judge who shall be its Chairman; and b) such number of other Members, possessing such experience and qualifications as may be prescribed by the State Government, to be nominated by that Government in consultation with the Chief Justice of the High Court. The administrative expenses of every District Authority, including the salaries, allowances and pensions payable to the Secretary, officers and other employees of the District Authority shall be defrayed out of the Consolidated Fund of the State. Supreme Court on Legal Aid The linkage between Article 21 and the right to free legal aid was forged in the decision in HussainaraKhatoon v. State of Bihar where the court was appalled at the plight of thousands of undertrials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that "there can be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21." The court pointed out that Article 39-Aemphasised that free legal service was an inalienable element of reasonable, fair and just procedure and that the right to free legal services was implicit in the guarantee of Article 21. In his inimitable style Justice Bhagwati declared: "Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to such an accused, the trial

22

itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventuality". Further in the case of HussainaraKhatoon&Ors. (V) v. Home Secretary, State of Bihar, Patna Justice Bhagwati held that: "its the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a free lawyer to such accused person if the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and it is hoped that every State Government would try to avoid such a possible eventuality." Two years thereafter, in the case of Khatri&Ors. (II) v. State of Bihar &Ors. , the court answered the question the right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It held that: "the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform the accused of such rights. The right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid at the expense of the State. The only qualification would be that the offence charged against the accused is such that on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may, however, be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal or child abuse and the like, where social justice may require that free legal services need not be provided by the State."

23

He reiterated this in Suk Das v. Union Territory of Arunachal Pradesh and said "It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21." This part of the narration would be incomplete without referring to the other astute architect of human rights jurisprudence, Justice Krishna Iyer. In M.H. Hoskot v. State of Maharashtra , he declared: If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal (to the Supreme Court) for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice.

In Khatri& Others v. St. of Bihar & others, Bhagwati J. observed: Right to free legal aid, just, fail and reasonable procedures is a fundamental right (Khatoons Case). It is elementary that the jeopardy to his personal liberty arises as soon as the person is arrested and is produced before a magistrate for it is at this stage that he gets the 1st opportunity to apply for bail and obtain his release as also to resist remain to police or jail custody. This is the stage at which and accused person needs competent legal advice and representation. No procedure can be said to be just, fair and reasonable which denies legal advice representation to the accused at this stage. Thus, state is under a constitutional obligation to provide free to aid to the accused not only at the stage of.... Every individual of the society are entitled as a matter of prerogative.

In Indira Gandhi v. Raj Narain the Court said: "Rule of Law is basic structure of constitution of India. There ought to be a violation of the fundamental right or prerogatives, or privileges, only then remedy goes to Court of Law. In absence of legal aid, trial is vitiated." In, State of Haryana v. Darshana Devi, the Court said that:

"the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXXIII, CPC. The state of Haryana, mindless of the mandate of equal justice to the indigent under the Magna Cartaof republic, expressed in Article 14 and stressed in Article 39A of the constitution, has sought leave to appeal against

24

the order of the high court which has rightly extended the 'pauper' provisions to auto-accident claims. Order XXXIII will apply to tribunals, which have the trappings of the civil court. Civil procedure code, 1908 - order XXXIII, rule 9A - it is a public duty of each great branch of government to obey the rule of law and uphold the tryst with the constitution by making rules to effectuate legislation meant to help the poor. Justice Bhagwati while delivering the judgement in the case of Kara Aphasia v. State of Bihar, where the petitioners were young boys of 12-13 years were arrested, and were still languishing in jail for over 8 years. They also alleged to have been kept in leg irons and forced to do work outside the jail, directed that the petitioners must be provided legal representation by a fairly competent lawyer at the cost of the State, since legal aid in a criminal case is a fundamental right implicit in Article 21. In Centre for Legal Research &Anr. v. State of Kerala , Chief Justice Bhagwati took a step further and laid down norms or guide-lines laid down for State to follow in giving support and cooperation to voluntary organizations and social action groups in operating legal aid programmers and organizing legal aid camps and lokadalats or nitimelas. While delivering the judgment Bhagwati, C.J., stated that the writ petition raised a question as to whether voluntary organizations or social action groups engaged in the legal aid programmed should be supported by the State Government and if so to what extent and under what conditions. "There can be no doubt that if the legal aid programme is to succeed it must involve public participation. The State Government undoubtedly has an obligation under Article 39-A of the Constitution which embodies a directive principle of State policy to set up a comprehensive and effective legal aid programme in order to ensure that the operation of the legal system promotes justice on the basis of equality. But we have no doubt that despite the sense of social commitment which animates many of our officers in the Administration, no legal aid programme can succeed in reaching the people if its operations remains confined in the hands of the Administration. It is absolutely essential that people should be involved in the legal aid programme because the legal aid programme is not charity or bounty but it is a social entitlement of the people and those in need of legal assistance cannot be looked upon as mere beneficiaries of the legal aid programme but they should be regarded as participants in it. If 25

we want to secure people's participation and involvement in the legal aid programme, we think the best way of securing it is to operate through voluntary organizations and social action groups. These organizations are working amongst the deprived and vulnerable sections of the community at the grass-root level and they know what are the problems and difficulties encountered by these neglected sections of Indian humanity. It is now acknowledged throughout the country that the legal aid programme which is needed for the purpose of reaching social justice to the people cannot afford to remain confined to the traditional or litigation oriented legal aid programme but it must, taking into account the socio-economic conditions prevailing in the country, adopt a more dynamic posture and take within its sweep what we may call strategic legal aid programme camps, encouragement of public interest litigation and holding of lokadalats or nitimelas for bringing about settlements of disputes whether pending in courts or outside. The assistance of voluntary agencies and social action groups must therefore be taken by the State for the purpose of operating the legal aid programme in its widest and most comprehensive sense, and this is an obligation which flows directly from Article 39-A of the Constitution. It is also necessary to lay down norms which should guide the State in lending its encouragement and support to voluntary organizations and social action groups in operating legal aid programmes and organizing legal aid camps and lokadalats or nitimelas. We are of the view that the following norms should provide sufficient guidance to the State in this behalf and we would direct that the State Government shall, in compliance with its obligations under Article 39-A of the Constitution extend its cooperation and support to the following categories of voluntary organizations and social action groups in running the legal aid programme and organizing legal aid camps and lokadalats or nitimelas."

26

CHAPTER 3 EVOLUTION OF CLINICAL LEGAL EDUCATION IN INDIA

Looking at legal aid as one of the alternatives has been problematic in two senses. Firstly, is the problem of scopewhich canbe divided into two sub-categories.The first leg of this is legal aids association with the formal adjudicatory system. Due to this, its efforts have been largely restricted to securing representation in courts. The second leg of this is that it has further been constrained by limiting its applicability to poverty-related issues. Secondly, is the problem of the institutions. This too can be further sub-divided into two parts. The first leg relates to State-sponsored Legal Aid which is largely the authorities established under the Legal Services Authorities Act, 1987. While the original Act creating a structure for the legal aid authorities, it has been unable to break out of the problems of scope. While the introduction of LokAdalatshas to some extent addressed it, it has not been able to break out of the poverty rubric. The second leg has been the lack of recognition of the

27

role of organizations outside the Legal Services Authorities Act, 1987 leading to legal aid provided by law schools6 to be completely ignored. Due to the lack of acknowledgement and a clear mandate, these Law School Legal Aid Clinics have been unable to realize their full potential. It is claimed that clinical legal aid can assist existing mechanisms such as LokAdalats as well as be able to provide standalone preventive and remedial solutions.

Legal Aid in Pre-Independence India

Legal aid is a concept which scholars trace back to the East India Companys assuming control of the criminal justice system from the hands of the Mughal rulers.7 The transition to this system, was not by any means smooth. The British justice system, being alien to the Indians, faced a severe credibility crisis.Even the lawyers who were licensed by the government to practice in Indian courts were seen as mere tools of the British which used them to quell any form of dissent.8 The problem of credibility manifested itself in several important political trials such as that of Bahadur Shah Zafar right after the 1857 revolt wherein he was effectively denied the right to legal representation and eventually exiled.9Therefore, it is possible that the first conception of legal aid comes as a measure to effectively control the Indian populace by restoring their faith in the justice system. It is for this purpose that the Code of Criminal Procedure, when first passed in 1898 contained a provision wherein the accused when on trial for a capital offence before the sessions court, had the opportunity to be represented by a lawyer at the expense of the state.Such sort of protection however, was discretionary and depended largely on the political sensitivity of the case. However, considering the limited nature of protection afforded by such legal aid, many sought to find solutions outside the legislative schemes for legal representation for the economically worst off. Significant amongst such groups was the

For the purpose of this paper, by law schools, I mean those colleges and Universities offering 3 year and 5

year LLB Programmes, unless otherwise stated.

7 8 9

Jain (1989), pp. 134-135. Murlidhar (2004), p. 32. Noorani (2005), p. 77. A day after his appointment and meeting Bahadur Shah Zafar, the lawyer was called as a

witness for the prosecution.

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Bombay Legal Aid Society which started in 1924 with the scope of its work being providing free representation andpaying court fees to enable access to justice to the poor. With meager funding and industrial houses and the Bombay government, it took up the cases of indigent persons before the Bombay High Court. It was infact this body that recommended that a system of legal assistance and representation be introduced across India.10 The understanding of legal aid in this period clearly suffered from the problem of scope as it is court-oriented and poverty-centric.

Legal Aid in Post-Independence India

The newly formed nation of India had more than its fair share of problems. One of these was the problem of crushing poverty. The story of legal aid in post-independence India therefore is told through the reports prepared by the government and circulated across various ministries. In this part, I shall be restricting myself only to the relevant portions of the important reports on legal aid. While efforts to increase the effectiveness started as early as 1950 in Bombay and Calcutta, these efforts focused on the creation of a multi-tiered system of legal representation by the judiciary but restricted its scope only to those persons who were indigent.11 A meeting of Law Ministers of various states in 1958 culminated into the creation of the Kerala Legal Aid Rules in 1957 which extended the protection of legal aid to those persons who were unable to afford access to courts.12 The Law Commission of India in 1958 in its 14th Report devoted a whole chapter to legal aid. While uncritically consolidating previous initiatives, it called for a graded scheme of fees for legal to those who were not indigent, but economically weak.13 However, while recognizing the role that legal aid clinics played in law schools in the United States, it did not make any recommendations calling for law schools to be asked to start such clinics in India. In 1970 the Bhagwati Committee constituted by the Gujarat Government recognized that the traditional model of legal aid was quite unsuitable to conditions in India which is courtcentric. However, it stated that poverty and legal aid could not be divorced from each other.
10 11 12

Murlidhar (2004), p. 36-37. Ibid, p. 37-39 While, the scope was still heavily poverty-centric, it was seen as a part of the larger agenda of the Communist

Partys in the eradication of inequality in society. It is interesting to note that these rues were framed under the guidance of then Law Minister of Kerala, Mr.V.R. Krishna Iyer. (as he was then).
13

Austin (1999), p. 141.

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From the traditional model of remedial legal aid, it shifted its focus on preventive legal aid.14It was here for the first time that alternative dispute resolution was advocated through the form of legal counseling in the nature of negotiated settlements and compromises.15 This is quite significant because the use of alternative dispute resolution mechanisms was for the first time advocated in the provision of legal aid. The two-member Juridicare Committee appointed by the Central Government in 1976 recommended that there be established a national-level legal aid programme and for the first time recognized the role of the law schools in providing legal aid. Its emphasis too was on preventive legal aid and at the pre-litigation stage by negotiating and conciliating disputes outside the court. Further, it sought participation of law students and voluntary organisations in carrying out its recommendations.16 However, to neutralize the effectiveness of this Committee, within 10 days of the Committee being formed, the 42nd Amendment was passed which, amongst several changes, include Article 39-A which asked the State to endeavour to provide legal aid. By this move, the Emergency government largely nullified any real measures suggested by the Committee. 17 To make matters worse, when the Juridicare Committee submitted its report in 1977, the Government which had appointed it was no longer the in power and while Article 39-A remained only on paper, and the recommendations of the Committee remained, along with the draft National Legal Services Bill on the shelf. The issue was seriously considered again only in 1987 with the passing of the Legal Services Authorities Act, 1987 (LSAA) was passed to further the States commitment under Article 39-A of the Constitution.18This act expanded legal aid beyond merely the poverty-based notion to the disadvantaged groups.19 Further with the establishment of LokAdalats and Permanent LokAdalats in an Act meant ostensibly for the administering legal aid indicated a

14

This included within its ambit legal advice, education and representation. Also, it was felt that there is a need

to include those who handled legal aid cases and not just its clients.
15 16

Murlidhar (2004), p. 49. Murlidhar, (2004), p. 65. This committee comprised of Justice P.N. Bhagwati, author of the Gujarat

Committee report and Justice Krishna Iyer, who spear-headed the Kerala Rules and the Expert Committee reports which in 1976.
17 18 19

Murlidhar. p. 68 Statement and Object of reasons of Legal Services Authorities Act, 1987. ss. 12, 13 Legal Services Authorities Act, 1987.

30

shift away from the court-centric model.Therefore, quite clearly there necessarily has been a change in the understanding of legal aid provided by the State. Over the years, the problems of scope have been addressed to some extent as the thrust has moved away from a mere poverty-centric understanding to a broader understanding of disadvantage. Further, with institutions such as the LokAdalats being established, there has been a shift away from the court-oriented model of legal aid reducing to some extent the problems of scope. However, the, the role of clinical legal aid has been completely ignored under the LSAA.

Legal Aid in Law Schools

The role which the law schools play in the provision of legal aid has been an aspect which has largely been ignored in academic discourse. Lesser still has been written about their role in alternative dispute resolution in India. It is due to the lack of recognition of the role that Clinical Legal Aid plays that the problems of the institutions continue to plague legal aid in India. The role of law schools in training lawyers is a concept which is relatively new. Law schoolstraditionally taught the theory of the law while the job of training of legal professionals was left to the Bar in the form of apprenticeships.20 This changed to some extent with the introduction of the case-book method in the 1900s at Harvard. However, this was found to be insufficient and a need was felt tocounter-balance this with practical experience.21 The solution was found in the form of legal dispensaries or clinics, inspired by the model of free medical aid in medical colleges. Here, poor persons could come for free consultation and advice.22While most of the work of these clinics focused on poverty-based issues, the bulk of it was in the nature of counseling which was not court-centric. With the growing demand for relevance in education legal education shifted its attention to social issues. Over the years, due to the specializations in various areas of law, there has been a diversification in the areas in which these clinics operate and range from areas as diverse as taxation and intellectual property to a specialized branch called street legal aid wherein

20 21

Dubin (1998), pp. 1463-1466. The clinic thus becomes a 'case book' - not, however, of dead letters descriptive of past controversies, but

always of living issues in the throbbing life of the day, the life the student is now living.", William Rowe, quoted in Barry, Margaret et al.(2000), p. 7.
22

Dubin (1998), p. 1463.

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day-to-day issues as well as poverty-centric issues are addressed. These clinics exist in many different forms, depending on local social and political circumstances and sometimes the available sources of funding.23 The objective of clinical legal education, therefore, has been two-fold. Their primary aim is to ensure that students get experiential exposure to diverse situations and the secondary aim is to ensure that the objectives of social justice are met by providing assistance to those who faced real legal problems in diverse field.24 The origins of legal education in India, however, are quite different. Legal education in India followed the general colonial model of producing clerks, not managers. Its primary goal was to support the existing financial interests of England, certainly not to reform the local legal profession or promote some sense of social justice. While at the time of independence, there were approximately 500 law schools operating in India and there was a real chance that they could be used to promote social justice initiatives through the tool of legal aid. However, due to the inability of the law schools as well as be body governing them, the Bar Council of India, to provide professional and infrastructural support, this was not transformed into reality.25 Some law schools however, took the initiatives such as the Delhi University to carry out a broad-ranging Legal Aid Clinic and conducted programmes such as prison-legal aid programmes and representation in the beggars courts.26 However, these programmes suffered from the problems of scope. Also, due to lack of institutional support, its success was shortlived. With the government doing a considerable amount of work, albeit beset by problems of scope and problems of institution, legal aid in law schools was gradually edged out.27 The emergence of the five-year law course at the National Law School, Bangalore and other such similar institutions started pursuant to the Justice Ahmedi Report in 1994, has helped atleast to some extent to enable clinical legal aid to be backed by reasonable professional and institutional support. Further, with the onus squarely on the law-schools to train lawyers rather than leaving it to the Bar, there is a heightened realization for the incorporation of clinical legal education into the curriculum. Most significantly, the Bar Council too passed
23 24 25 26 27

Bloch (2008), p. 123. Bloch, and Prasad, (2006), p. 165.

Ibid, 172. Ibid, 176.

This statement is largely due to the fact that there is very little material on record to show the existence of vibrant legal aid programmes in law schools. I take the example of Delhi University due to the availability of some academic material on it.

32

rules to govern these institutions and has mandated that for accreditation there must exist a functional legal aid clinic within the law school.28 However, this regulation remains largely on paper and has not been seriously implemented. Whatever little has happened however, is that previous initiatives such as those by the Delhi University which follow the traditional model of legal aid have been replicated. It is my claim therefore, that there needs to be a serious rethinking about clinical legal aid as it has for the most part failed capture the essence of the dynamism is the field of legal education which was sought to be brought about by setting up of law schools across the country. Therefore, the conflation which exists between Clinical Legal Aid and State-sponsored legal aid must be resolved thereby setting to rest the problems of the institution because while State-sponsored legal aid is statute-based and therefore heavily bureaucratic, Clinical Legal Aid due to the lack of regulation, offers much more flexibility which goes unutilized.

CHAPTER - 4 DEVELOPMENT OF CLINICAL LEGAL EDUCATION IN INDIA

Clinical Legal Education took off in the 1960s as a response to the social and political movements of the time and the perceived irrelevance of traditional legal education. 29 It featured service to poor clients and lay advocates interested in attacking poverty and racism. It represented first and foremost a commitment to social justice and the law. But learning legal skills has also been an important dimension of clinics, defined clinical education as a lawyer-client experience under law school supervision for credit. Clinical legal education is in the midst of an exciting period of growth and development, prompting clinicians around the world to reflect on what clinical educations remarkable

28

Rule 31, Chapter III, Bar Council of India Rules on Legal Education, 2008.

29

AM. BAR ASSN SECTION OF LEGAL EDUC. AND ADMISSIONS TO THE BAR, AM. BAR ASSN, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT AN EDUCATIONAL CONTINUUM, REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP 133-41 (1992). [hereinafter MACCRATE REPORT].

33

successes over the past forty years mean for its future.30 One important item on this agenda that has been on the minds of law teachers in India and the United States, among other countries, is the status of clinical legal educations traditional social justice mission.31 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 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.32 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.33 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.

Clinical Legal Education includes not only the clinical courses but also practice-oriented courses and activities included in or offered outside the curriculum.

30

For example, the 6th International Clinical Conference co-sponsored by UCLA and the University of London in 2005 carried the theme Enriching Clinical Education and included among its purposes reflection on the remarkable growth of the clinical movement worldwide. See conference brochure (on file with authors). See also Margaret Martin Barry, Jon C. Dubin, & Peter A. Joy, Clinical Education for the Millennium: The Third Wave, 7 CLIN. L. REV. 1, 57-60 (2000) (discussing the global aspects of clinical legal educations future). 31 Preserving and supporting a social justice focus for clinical legal education around the world is the key mission of the Global Alliance for Justice Education (GAJE). The GAJE website is at http://www.gaje.org. See also DUCATING FOR JUSTICE AROUND THEWORLD: LEGAL EDUCATION, LEGAL PRACTICE AND THE COMMUNITY (Louise G. Trubek& Jeremy Cooper eds., 1999); Richard J. Wilson, Training for Justice: The Global Reach of Clinical Legal Education, 22 Penn. St. Intl L. Rev. 421 (2004). 32 See generally Frank S. Bloch &IqbalIshar, Legal Aid, Public Service and Clinical Legal Education: Future Directions From India and the United States, 12 MICH. J. INTL L.96 (1990). See also CLINICAL LEGAL EDUCATION: CONCEPT AND CONCERNS, A HANDBOOK ON CLINICAL LEGAL EDUCATION 17 (N.R. MadhavaMenon ed., 1998) [hereinafter HANDBOOK ON CLINICAL LEGAL EDUCATION]. This linkage existed also in earlier efforts to introduce clinical legal education in the United States, but it found special strength at this time. See infra text accompanying notes 8-11. 33 See Stephen Wizner, Beyond Skills Training, 7 CLIN. L. REV. 327, 332 (2001) (clinical legal education has tended to emphasize skills training and professional development over social objectives). But see Peter A. Joy, Political Interference with Clinical LegalEducation: Denying Access to Justice, 74 TULANE L. REV. 235, 268 (1999) (describing clinical educations twin goals of teaching lawyering skills and professional values and providing legal services to low-income clients as inextricably intertwined).

34

Clinical Legal Education is more than a vehicle for the study of lawyering and the legal profession.Clinical Legal Education should be devised and implemented; this will give law students a deeper and more meaningful understanding of law. The subject-matter or content of Clinical Legal Education and the Clinical method of law teaching can be separated; the subjects sought to be taught in a clinical course or program can be presented in traditional classes, and the clinical teaching method can be utilized in courses outside the usual clinical subject areas.34 Clinical Legal Education in India has its roots in both the Legal Aid and Legal Education Reform Movements. Formal Legal Education started in 1855, in India. Many commissions and Committees were set up for the development of Clinical Legal Education in India. Legal Education has gone through many stages of development. Some of these stages are The Bombay Legal Education Committee concluded in 1949, recommended that practical courses should be made compulsory only for students who choose to enter the profession of law and the teaching method should include seminars or group discussions, moot court competitions etc. The 14th Report of the Law Commission of India recognized the importance of professional training and for a balance of both academic and vocational training. It recommended that University training must be followed by a professional course concentrating on practical knowledgebut it suggested that the professional course be made compulsory only for those who chose to practice law in the courts. The Commissions 1958 Report concentrated on institutionalizing and improving the overall standards of legal education. In that regard, the Report also discussed teaching methods and suggested that seminars, discussions, monk trials, and simulation exercises should be introduced--- in addition to lectures. Thus, although the Commissions Report didnt deal directly with improving skills, it did so indirectly by supporting the use of teaching methods that could be more helpful in developing various skills. A link between expressed Legal Aid and Legal Education Reform was published in 1970s by the Expert Committee on Legal Aid of the Ministry of Law and Justice. After 5 years of debate over a 3-year v/s 5-year L.L.B. course, which began during a 1977 National Seminar on Legal Education at Bombay, the Bar Council of India (BCI)
34

Richard Lewis, Clinical Legal Education Revisited Professor of Law, Cardiff university, Wales, United Kingdom, Pg. 11 [available at: http://www.law.cf.ac.uk/research/pubs/repository/212] [viewed on: 25/06/2009]

35

unanimously agreed to introduce the new 5-year course from July 1982, open to students after 10+2. The BCI recommended practical training in the curriculum. Reports of University Grants Commission (UGC) also played important roles in the history of Clinical Legal Education and report emphasized the role of legal education in developing law as a hermeneutical profession, explaining that lawyers must be taught a variety of skills and sensibilities. It outlined the objectives of reformed teaching as making students more responsive to learning and making them demonstrate their understanding of law. The next important step in the evolution of Clinical Legal Education began at the conference of Chief Justice of India in 1993, which resolved the Chief Justice shall constitute a committee to suggest appropriate steps that should be taken to assure that law graduates acquire sufficient experience before they become entitled to practice in the courts. It found that the general standard of law colleges in country was deteriorating and that the syllabus should be revised to include practical subjects so that the students could get professional training. Bar Council of India (BCI) report 1996 on NLSIU (The National Law School of India)The Bar Council of India issued a circular in1997 using its authority under the Advocates Act 1961 directing all universities and law schools to revise their curriculums. It included 21 compulsory courses and 2 optional courses, leaving Universities free to add more courses. The circular also mandated the inclusion of 4 practical papers. Law schools have been required to introduce these 4 practical papers since academic year 1998-99, which was viewed as a big step toward introducing Clinical Legal Education formally into the curriculum. In order to achieve the objects of the clinical programm, NLSIU offers a wide range of opportunities in clinical programmes, compulsory as well as optional, to the students. At present the compulsory clinical courses are(a) Client Interviewing, counseling, And Alternate Dispute Resolution methods; (b) Litigation Clinic; (c) special Clinic integrated with compulsory placements of two months from III year to V year of the 5 year LL.B. course. The optional component of the scheme includes: a) Moot Court (b) Legal services Clinics; (c) community-based Law Reforms Competition. In addition to the above, NLSIU curriculum carries a full course of 100 marks taught outside the declared clinical courses. This is a compulsory course on Professional Ethics and Law Office management taught with assistance of legal practitioners. The 2nd UGC report of particular interest to Clinical Legal Education was prepared by a Curriculum Development Committee, which was asked to upgrade the syllabi of the LL.B. 36

course. The proposed curriculum also includes several subjects which have a potential to be taught clinically in order to offer instruction in various values and skills required for a new lawyer. Also it introduced a clinical aspect in the LL.M. program. Report of the Law Commission of India - 2002 stated that the Commission considers that Clinical Legal Education may be made mandatory subject. Current Assessment: One can trace the development of Clinical Legal education in India to the efforts of a few law schools in the late 1960s. For example, faculty and students at Delhi University established a legal service clinic in 1969 on a voluntary basis. Banaras Hindu University was the first to introduce a clinical course, in the early 1970s. This was an optional course offered to a limited group of 30 students with academic credit for 200 marks. The course included courts visits, participation in a legal aid clinic in the school, and an internship in chambers of lawyers. While each of these early efforts was significant, no steps were taken during those years to institutionalize Clinical Legal Education. A national movement to do so was begun with the opening of the National Law School of India University in Bangalore, established by the Bar Council in 1987 as a model for legal education reform. The National Law Schools curriculum includes several clinical courses, including more recently course that cover the subjects included in the practical papers mandated by the Bar Council of India in 1997. Over the past 10 years, seven other national law schools have been established.

CHAPTER 5 GLOBAL DEVELOPMENT OF CLINICAL LEGAL EDUCATION

Clinical Legal Education gathered importance globally due to its potential to improve the quality of legal education. As law graduates in India directly enter legal profession without any further training or any Bar Examination Law Colleges in India share the entire responsibility of skill training. As a result Clinical Legal Education assumes more importance in India. The concept of practical problem solving, whether by working in a laboratory or in the field, as an important means of developing skills has been in acknowledged since time immemorial. However, it was in 1901, that a Russian professor, Alexander Lyublinsky, first proposed Clinical Education in law on similar lines as in medicine. The earliest reference on Clinical Legal Education in United States could be traced in the year of 1917. Since that time, Clinical teaching has become an integral part of legal education in most developed and developing countries. The global Clinical movement started taking 37

hold in the late 1960s; however, by that time Law Schools in the U.S. took the lead in providing Clinical Legal Education. In most of the countries initially the primary focus of Clinical Legal Education was on legal aid, social justice and professional responsibility. However, this focus began to shift from client and community service to teaching skills, particularly in U.S. due to fading of student interest in public interest work. Thus, the concept of Clinical Legal Education has evolved and contributed a new pedagogy in the teaching of law. It, to a large extent, also plays a crucial role in bridging the gap between the theory and real-life practice of law, or at least the environment in which they operate. The dearth of clinical legal education programs in the first half of the twentieth century reflects several conditions that law schools faced in that era. First, law schools were distinguishing themselves from apprenticeships, and clinical legal education efforts to create "model law offices" as part of law school education did not further this market differentiation. Second, law schools of this era were terribly under-funded and clinical legal education courses with intensive faculty supervision were not as economical as large classes employing the casebook Socratic method. Third, law school teachers of this era disagreed about the value and feasibility - of teaching lawyering skills other than legal analysis. For example, a 1944 Report of the Association of American Law Schools (AALS) Curriculum Committee, primarily authored by Karl Llewellyn, noted that the "current case-instruction is somehow failing to do the job of producing reliable professional competence on the by-product side in half or more of our end product, our graduates. Fourth, the period from the 1920's to the 1940's was marked by ABA and AALS efforts to create and raise standards for law schools, and none of these standards focused on encouraging or requiring clinical legal education experiences. These above four factors combined not only to limit the number of clinical programs but also to stunt the growth of clinical pedagogy by limiting the number of law faculty teaching clinical courses. In the 1950's, there was no single vision of clinical legal education and the concept of a law school "legal aid clinic" encompassed any "law school sponsored program for law student

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work on legal aid cases."35 A 1951 study of clinical programs identified twenty-eight clinics run by law schools, independent legal societies, or public defender offices. At five schools, a clinical legal education experience was mandated, but most schools offered clinics as electives or extra-curricular activities. The work assigned to students varied among programs, but typically included client and witness interviews, drafting pleadings, and preparation of legal documents. Some programs gave students the opportunity to negotiate matters with clients' creditors, and at least nine law school clinics provided opportunities for trials and other court appearances. Most clinics attempted to have students work on cases from beginning to end. Student supervision was cited as a "major problem," and the task of supervision was often delegated to experienced students, who supervised less experienced students. At ten of the twenty-eight law schools with some form of clinical program in 1951, students did not earn any academic credit for their work. At four schools, clinic credit was available as part of a student's credits for a general course on legal practice. At the remaining fourteen schools, students only earned between one and three hours of credit for clinic work. By the end of the 1950's, thirty-five law schools reported "some form of legal aid clinic."36 In thirteen of these law schools, legal aid clinics were located inside the schools. In a few law schools, all or most law students were required to do some legal aid work. In fifteen laws schools, students were able to earn limited academic credit for clinic work. In only five law schools, supervising faculty were able to receive teaching credit for their clinical courses. Although the number of clinical legal education programs increased slightly from the late 1940's to the early 1950's, the late 1950's ended on a note of relative stagnation for the nascent clinical legal education movement. There were several different models of clinical programs, and no generally accepted definition or description. Schools defined "clinical" programs to include both credit-earning and non-credit-earning real-life experiences for law students either in programs located within the law school or offsite at legal aid or public defender offices. The level of faculty involvement and supervision varied greatly, and clinical experiences existed on the fringes of the law school curriculum. The limited growth of clinical programs during this decade may reflect the fact that clinical instruction was only one of several experiments under way to address perceived deficiencies of the casebook method. Some of the other "experiments" included simulated trial practice courses, legal research and writing courses, drafting courses, and subject matter seminars based on simulated problems.

35 36

QuintinJohnstone, Law School Clinics, 3 J. Legal Educ. 535, 535 (1951). AALS Proceedings 121, 121 (1959)

39

Notwithstanding these "experiments" many of which are now standard fare in virtually all law schools the 1960's witnessed continued complaints by law students and some law faculty about large classes, the dominance of the casebook method, and the lack of writing opportunities. Of all the curricular experiments since the introduction of the casebook method in the late nineteenth century, "the concept of clinical legal education was to prove the most important." In fact, clinical legal education is "so often called the most significant change in how law was taught since the invention of the case method that it now sounds trite.37Until Clinical programs entered the scene, skills training and social justice work were for all intents and purposes, off the legal education agenda. Legal doctrines dominated the Law School syllabi, with virtually all instruction offered through classroom courses dominated by traditional lectures in India. Legal education was Law School, not lawyer school. Introduction of Clinical Legal Education changed this scenario. Clinical Legal Education is directed towards developing the perception, attitudes, skills and sense of responsibilities which the lawyers are expected to assume when they complete their professional education. Thus, Clinical Legal Education provides students with opportunities for professional and intellectual development and prepares them for the practice of law, as competent, and socially as well as professionally responsible lawyers. Clinical Legal Education took its roots in India in the late 1960s. But Clinical Legal Education becomes integral part of curriculum only when BCI introduced four practical papers to improve standards in legal education in late 90s. These papers are aimed at providing practical training to law students. Until these papers were introduced in the curriculum, very little effort was made by Law Colleges to train students in advocacy skills. Clinical Legal Education in India offers an opportunity to make integrative transformation of legal education and at the same time make legal profession socially relevant. To make such a transformation Clinical Legal Education should be viewed as a method of teaching and understanding law effectively rather than a component to offer mere skills. The complexities of modern life require lawyers to play multiple roles such as advisors, negotiators, arbitrators, mediators, and administrators. The present day legal profession calls for much more skills than what was required of a legal practitioner a decade or so back. The field of lawyering is becoming highly competitive in that sense. Clinical Legal Education justifies the existence of law school in communitys context. The faculty will be benefited by the real life situations. This enriched experience in dealing with practical problems of the
37

Philip G. Schrag& Michael Meltsner, Reflections on Clinical Legal Education 5 (1998).

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members of the society strengthens their theoretical knowledge of law. This in turn garners the benefits of teaching law in social context to the students. Therefore, the ideology and pedagogy used in teaching in V.M. SalgaocarCollege is to make the legal education socially relevant. Clinical legal education emerged out of 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 professions 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 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. Over the past three decades, law clinics in U.S. law schools have evolved from an elective component within a handful of curricula into an integral part of legal education. Most U.S. 41

law schools have clinics, clinical law professors generally have some kind of long-term status within the law school, and students earn academic credit for their participation. Parallel to these developments, clinical law school programs have developed in South Africa, the United Kingdom, and other Commonwealth countries. Countries in Latin America, Asia, and Africa have also developed clinical programs designed to meet their societies dual needs for improved legal representation of those who cannot afford to pay for legal services and for more practically oriented legal education. For example, in South Africa in 1983, there were only two university legal aid clinics; by 1992, sixteen of the twenty-one law schools had legal aid clinics. Meanwhile, in Central and Eastern Europe and Russia, the clinical movement has spread from several experimental programs in the mid-1990s to more than sixty law schools in 2001. 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.

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CHAPTER 6 LEGAL EDUCATION REFORM AND LAW SCHOOL-BASED LEGAL AID CLINICS IN INDIA: LAYING THE GROUNDWORK FOR SOCIAL JUSTICE-BASED CLINICAL LEGAL EDUCATION
During British rule, legal education in India followed the general colonial model of producing clerks, not managers or advocates. Its primary goal was to support the existing financial interests of England, certainly not to reform the local legal profession.38 After independence, legal education was expected to bring the legal system in tune with the social, economic, and

38

INTERIM REPORT OF AUXILIARY COMMITTEE OF THE INDIAN STATUTORY COMMISSION ON REVIEW OF THE GROWTH OF EDUCATION IN BRITISH INDIA, 11 (Government of India, Calcutta 1930).

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political desires of the country.39 With 500 law schools and 40,000 law students graduating every year,40 law schools could play a pivotal role in promoting and providing justice, particularly through the field of legal aid? As noted earlier, the contemporary legal aid movement began in independent India in the early 1960s, at about the same time as legal services programs expanded considerably in the United States. Unlike in the United States, however, the focus of the legal aid movement in India has not been on individual client representation but rather on providing legal aid to indigent people at large.41 Thus, in conjunction with the 42nd Amendment to Indian Constitution giving free legal aid constitutional status under Article 39A Parliament passed the Legal Services Authority Act, 1987, which aims at both providing free legal aid and organizing lokadalats(peoples courts) to secure quick justice at low cost. More recently, the Central Government proposed establishing Gram Nyayalayas (informal courts) to provide justice in rural areas at a grass root level.42 Early on, a consensus developed within the Indian legal community that law schools should play an active role in the legal aid movement. Although some schools were receptive, early responses to this call were less than satisfactory. There is now a renewed effort to reform legal education that offers the legal academy, the bench, and the bar the opportunity to realize the shared goals of meeting service needs and education reform through social justice-based clinical legal education.

39

A. S. Anand, H.L. Sarin Memorial Lecture: Legal Education in India Past, Present and Future, (1998) 3 SCC (JOUR) 1, 2. 40 N. L. Mitra, Legal Education in India, Conference of International Legal Educators,Florence, Italy (2000) available at http://www.aals.org/2000international/english/India.htm(last visited on Aug. 20, 2006). Currently there are 193 law schools accredited by theAmerican Bar Association.http://www.abanet.org/legaled/approvedlawschools/approved. html (last visited Sept. 16, 2006). Just over 40,000 students graduated from ABAaccreditedlaw schools in 2004. Seehttp://www.abanet.org/legaled/statistics/jd.html (last visited Sept. 16, 2006). 41 Bloch &Ishar, supra note 3, at 96. This has begun to change in India; for example,the Delhi Legal Services Authority is now running twenty-eight legal aid centers and a 24-hour hotline at permanent legal services clinics to provide legal aid to individual clients.See http://dlsa.gov.in (last visited Aug. 23, 2006). 42 See The Gram Nyaalayas Bill, 2005. Nyaayalaysare panchayat-level (county level)courts that serve lowpopulation jurisdictions. They are, in effect, the lowest court of theState judiciary and operate as traditional courts but at the grass-roots level. LokAdalats,on the other hand, are designed to help settle disputes between the parties that may bepending before any court, as well as matters at the pre-litigation stage. Lokadalatsarediscussed also infra at text accompanying notes 135-38.

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CHAPTER - 6 EARLY EFFORTS TO LINK LEGAL AID AND LEGAL EDUCATION REFORM
The first major report on legal aid came in 1973 from the Expert Committee on Legal Aid of the Ministry of Law and Justice, chaired by Justice V. R. Krishna Iyer. 43 The Expert Committee was appointed in the Silver Jubilee year of Independence to make recommendations for the creation and implementation of a comprehensive program of legal aid to the weaker sections of Indian society, including persons of limited means and socially
43

See EXPERT COMMITTEE REPORT, supra note 14. Justice Krishna Iyer, known as apioneer in protecting prisoners constitutional rights, held various legislative and ministerialposts, was a judge of the High Court of Kerala, and served on the Law Commission ofIndia before being elevated to the Supreme Court of India in 1973.

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and educationally backward classes. In stressing the need for a statutory basis for legal aid, the Committee said that legal aid is an integral part of the legal system not a matter of charity or confined to the four walls of the court building. The Committees report advocated creating networks of legal aid groups in various places such as court houses, bar associations, law schools, community organizations, private and public agencies, and organs of local government. Recommendations ranged from establishing an autonomous national legal aid authority, to compulsory public service as a part of law school curricula, to giving priority to candidat es social sympathies in filling judicial and police posts. TheCommittees report also stressed the need to modify the law schoolcurriculum in order to focus on the needs of citizens and to provideactual legal aid services. The Committee recommended introducingclinical legal education in law schools with a focus on socio-economicpoverty. It opined that student exposure to real legal problems wouldbenefit the students, the legal aid scheme, and the legal system as awhole. It also observed that students encounters with the problemsof poverty and exploitation would change their outlook when they becomelawyers, and as a result they would not treat clients simply asfacts but as living neighbors. On the benefits of involving law schools in legal aid programs, theCommittee pointed out those law students would become an inexpensiveand enthusiastic resource for providing meaningful legal aid toIndias vast population. It recommended using law students to providelegal aid in two stages: first, in preparing a case at the preliminarystages, including interviewing clients and drafting documents; then, byappearing in court in petty cases, including examining witnesses andpresenting arguments.44 Thus, the central idea of involving the lawschools was not only to provide practical skills but also to secure adequatelegal aid for the needy. In 1977, the Committee on National Juridicare submitted its report.45 The Juridicare Committee was intended to revise, update, revaluate,and supplement the report of Expert Committee, and itsreport concentrated more on the liability and working conditions oflegal aid programs.46 The JuridicareCommittee recognized the valueof lawyers services in

44

At the time, and still today, there was no student practice rule in India. Seeinfra note 45 and accompanying text. 45 JURIDICARE COMMITTEE REPORT, supra note 15. 46 Members of the Committee met with members of government, Bar associations, theJudiciary, and actual beneficiaries of legal aid schemes, and examined various experimentsin legal aid at the village and municipal levels in order to devise a comprehensive free legalservice program.

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seeking remedies or asserting rights, and placed comprehensive legal aid projects as a high priority in the States responsibility. The main thrust of the report was the recognition that a legal services program that reflected western attitudes and ideals cannot work successfully in India because only a few of the problems of the poor are true legal problems. The Committee believed that a legal aid program should aim at radical transformation of the socio-economic structure, and concluded that the legal profession must recognize law as a potential instrument to eradicate poverty by securing equal distribution of material resources of the country. 47 The Juridicare Committee expected law schools to play a pivotal role in providing legal aid and urged them to establish legal aid clinics. It observed that student participation in legal aid would not only be helpful in acquiring the skills necessary in the legal market place, but would also provide an opportunity for the students to develop a humanistic perspective and a social orientation. Students would realize the social role of the law, and their participation in clinical projects would reduce the burden of legal services institutions. For the first time, this report expressed the need to develop clinical law teachers, to introduce subjects such as law and poverty and law and society, and to give academic support to law school clinics. In 1981, the government of India appointed the Committee for Implementing Legal Aid Schemes. The Committee was headed by Justice P.N. Bhagwati, then Chief Justice of the Supreme Court of India. Like the earlier Juridicare Committee, the Committee for Implementing Legal Aid Schemes insisted that court- or litigation-oriented legal aid programs cannot provide social justice in India. The Committeeconcentrated more on the promotion of legal literacy, the organization of legal aid camps to carry legal services to the doorsteps ofpeople, training of paralegals to support legal aid programs, establishinglegal aid clinics in law schools and universities, and bringing classactions by way of public interest litigation.48 Further, JusticeBhagwati acknowledged the significance of the educational process inits task: Education efforts must become a significant factor contributingto the social development of the poor.49
47 48

JURIDICARE COMMITTEE REPORT, supra note 15, at 25. REPORT OF COMMITTEE FOR IMPLEMENTING LEGAL AID SCHEMES (1981). 49 From the Chairman, LEGAL AID NEWSLETTER 2 (Feb. 1983) cited in JagatNarain, Legal Aid Litigational or Educational: An Indian Experiment, 28 J.I.L.I. 72, 76 (1986).

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CHAPTER - 7 REVIEWING CLINICAL LEGAL EDUCATION

Those using legal services have a direct interest in the competence and aptitude of their legal representatives. Whether a client consults a lawyer because he or she needs a will drafting, wants to move house, seeks compensation for an injury suffered or has been changed with a criminal offence, the lawyer, the client may expect is likely to meet certain professional and ethical standards. The lawyer of course may not end up lingering a case for the client. Students who study law at university or college or perhaps through a form of apprenticeship, have ideals in terms of their prospects as eventual practitioners. The legal profession has traditionally taken a direct role in the regulation and, in part, provision of legal education and, for a considerable period, provided the overtly vocational 48

courses that were a pre-requisite for admission. Employers have a vested interest too. Apart form the need to supply the profession with competent pardoners, prospective employers will be on the look out for staff that have the legal and transferable skills relevant to the job market. There is also a governmental agenda. The massive expansion in the UK of the undergraduate student market has a dramatic impact on the graduate numbers in law and in other disciplines. Much has been heard under the present Labour government of the need for joined-up thinking. The importance of having a legally literate society is now recognised at governmental level and lawyers have a key role in addressing rights awareness as a precursor to access to justice. The wider public may also have reason to take more than a passing interest in legal education. Apart from individual concerns as actual or potential clients of lawyers, members of the public are presumable concerned that the legal profession, as a whole, strives for and reaches requisite professional standards. We suggest, therefore, that the stakeholders identified have a common interest in both the quality of legal service available and in the education that forms the foundation for such provision. We maintain that to meet the expectations of all interested parties newly qualified lawyers should have a sufficient grasp of the relevant knowledge, skills and values to enable them to meet the may and varied needs of their clients. At the point of qualification a lawyer should be able to apply these facets of competence to produce appropriate and sustainable results for their clients in whatever dispute or transaction that may be involved. The learning process through which this overall position may be achieved has been described in detail elsewhere. The key stages in this process, in ascending order of depth of learning, are termed by bloom et al as: Knowledge Comprehension Application Analysis Synthesis Evaluation

It is our view that a (law) student is significantly disadvantaged if he or she is denied the opportunity of applying theory to practice and of having the chance to take apart that experience and reflect on the lessons to be learnt form that process- what happened and why, 49

what might have happened and what would be done differently another time. This article looks at the future of legal education in England and Wales and further a-field in a clinical context. We look in particular at perceptions of what legal education should aspire to from an international perspective and at two particular examples of clinical practice that illustrate how the aspirations identified can be achieved.

LAW SCHOOLS PROVISION Teaching in UK law schools has, so long as this has been found in the domain of universities and colleges, largely been delivered through lectures, and tutorials followed by various forms of summative assessment. As far as can be deducted the lecture is supposed to impart knowledge, the tutorial to allow for discussion and questioning and the coursework or examination to test understanding. With few exception, learning though direct experience of the practice of law has played virtually no role in legal education in the UK in living memory, save for what happens during the discrete apprenticeship stage served after time spent in law school. This position is in principle little different in other jurisdictions in both the civil and common law worlds. This contrasts profoundly with legal education prior to the law school involvement when teaching, such as we would recognise it, was entirely practice based. Learning by structured experience and reflection on the experience permeates learning in may professions any trades-except it seems ion law there are of course notable exceptions. Much has been written on the history of clinical education in the USA, UK and elsewhere. Relatively recent research suggest that interest in law schools in the UK in clinical legal education has grown over the past 5 years. Whilst a hard core of universities and colleges in the higher education sector have been running clinics, more now are either doing so or intend to do so. Two case studies may assist here to demonstrate the nature, extent and potential of clinical legal education. Pro bono work carried out by lawyers without charge, or at a subsidized cost, for those unable or otherwise unlikely to be able to access legal services. Clinical legal education a method of teaching and learning through which student assume responsibility, under supervision, for real or simulated legal casework, coupled with the opportunity for the students to reflect on that experience in discussion with co- students and teaching staff. 50

Clinics bodies providing a legal service, located within the law school or in the form of organizations outside of the law school where clinical legal education is practiced. Clinics are more often than not pro bono in nature.

THE COST OF CLINIC There are considerable differences between university clinic programmes in terms of size, scope and resource needs. Some operate on a shoestring with staff time offered on a voluntary basis and other costs either absorbed by the law school, shared with other partners or paid for by participants themselves. Where resources are needed these may be in cash or kind. Funding may come from specific grants from Legal Service Commission contracts, from the lottery funds, from commercial sponsors or through charitable foundations.

CHAPTER 8 CONCLUSION
It is necessary to emphasize that the purpose and scope of legal education must be to prepare students for the practice of the profession of law. Therefore, the law and legal education which together constitute the backbone of society should change according to the changing needs and interests of the ever changing society. Undoubtedly clinical work will be more expensive than class room teaching. The time frame of curriculum will be difficult to maintain as stated by the university. There are some things which are good for clinical experience is enabling students to understand experimentally how the law works in practice. Hence clinic must be included as a part of curriculum.

51