This guest blog is by Nabeela Siddiqui. She is pursuing her Master’s in Law from the Department of Legal Studies at University of Madras, India. She is also working on a project titled ‘Faith Based Organisations and Refugee Crisis’. Lately, she also interned at AALCO (Asian-African Legal Consultative Organization) and the Supreme Court of India. If you would be interesting in contributing a guest blog, please contact us at firstname.lastname@example.org
Social justice is the first charge on our Constitutional order. It is a legacy we leave to the future generations without tarnishing its purity and power. One way to promote social justice is through clinical legal education (herein after “CLE”).The term “CLE” or “law clinic”, traditionally refers to a non-profit law practice usually serving a public interest or group in the society that are in a underprivileged or exposed situation and (for various reasons) lack access to legal system.
A law clinic, as the name suggest, could be everything from a student initiative done on spare time, totally separated from the school environment, to a natural part of a clinical university program. There are also examples of clinics driven by practicing lawyers that are more or less separated from law schools but with law students participating in the form of an externship. The use of the word ‘clinic’ prompts the analogy of trainee doctors meeting real patients in their medical clinics. In the academic context, these clinics provide hands-on experience to law school students and services to various (typically indigent) clients. Many legal clinics offer pro bono work in one or more particular areas, providing free legal services to clients.
History of CLE in India
The Preamble of the Indian Constitution provides that justice – social, economic and political has to be provided to the citizens. Part IV of the Indian Constitution provides fundamental rights to the citizens. Art. 39A of the Indian Constitution guarantees remedies to address rights violations, but, CLE in India has emerged only in the 1960s with its roots in both the Legal Aid and Legal Education Reform Movements. For the first time, in 1949, the Bombay Legal Education Committee recommended that practical courses should be made compulsory only for students who choose to enter the profession of law and that the teaching methods should include seminars or group discussions, moot court competitions etc. Later, in 1958, 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. The Commission’s Report concentrated on institutionalizing and improving the overall standards of legal education.
There were demands for improved training in skills and ethics in law school. As a result, in 1977, the Bar Council of India recommended practical training in the curriculum. A report of the University Grants Commission (UGC) also played an important role in the history of CLE by outlining the objectives of reformed teaching as making students more responsive to learning and making them demonstrate their understanding of law.
On the basis of the report, considerable emphasis on clinical legal education was introduced in 1997, by increasing the number of subjects (curriculum based subjects) from 16 to 28. The Bar Council of India issued a circular, using its authority under the Advocates’ Act 1961 directing all universities and law schools to revise their curriculums. Law schools have been required to introduce 4 practical papers since the academic year 1998-99, which was viewed as a big step toward introducing CLE formally into the curriculum. The 2nd UGC report of particular interest to CLE was prepared by a Curriculum Development Committee, which was asked to upgrade the syllabi of the LL.B. course. The primary focus of CLE in the then proposed curriculum is on legal aid, social justice, and professional responsibility.
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. The Expert Committee was appointed to make recommendations for the creation and implementation of a comprehensive program of legal aid to the weaker sections of Indian society.
Access to legal remedies is frustrated either due to lack of financial means, lack of good legal representation, lack of legal awareness etc. In order to provide this access, the Indian government passed the Legal Services Authorities Act, 1987 (Legal Services Act). This Act established legal service authorities at three different levels – National (hereinafter NALSA), State and District to help bridge the need for legal representation especially for those who cannot afford it.
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 Committees, the Committee for Implementing Legal Aid Schemes insisted that court- or litigation-oriented legal aid programs cannot provide social justice in India.
Bar Council of India Report (BCI) report 1996 on NLSIU (The National Law School of India) – The Bar Council of India issued a circular in 1997 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.
In order to achieve the objects of the clinical programme, 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, Counselling, and Alternative 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 components of the scheme includes: (a) Moot Court (b) Legal services clinics; (c) community- based Law Reforms Competition. In addition to the above, NLSIU curriculum course on Professional Ethics and Law Office management taught with assistance of legal practitioners.
Report of the Law Commission of India 2002 stated that “the Commission considers that CLE may be made mandatory subject.”
Problems in Initiating Legal Aid/ CLE
Overall, the law schools have not given much prominence to practical training to their students because of several problems.
According to this UNDP study, the key difficulties in developing CLE in India are that:
- There is a lack of an institutionalized approach towards clinical legal education. Most law schools have an adhoc approach towards legal aid clinics, the success of which depends largely on the enthusiasm of the faculty and the students.
- No credit is given to students who undertake these activities, which is a disincentive to students to conduct them and discourages them to follow through on their commitments;
- There is no workload reduction given to faculty who are designated to supervise legal aid service;
- Communities are not aware that the law schools provide free legal services; and
- Under the Advocates Act, full-time law teachers and students are not allowed to represent clients before courts.
- There are difficulties in supervision and assessment: Supervising students in the clinic is a herculean task.
- Some may fear that a legal clinic offering free legal work will upset the law school’s relation with the local legal professionals (Mohammad Ghouse, 1977).
Avani Bansal, a practising Advocate at the Supreme Court of India, in an interesting piece on CLE, has compared the Indian Model with the Harvard Law school model (herein after “HLS”). The main aim of the article is to see if there are lessons that can be learnt in India from the best practices of HLS. She has devised a blueprint for the Indian model, the full text of which could be found at – http://www.livelaw.in/clinical-legal-education-part-iv-building-roadmap-clinical-legal-education-india/?utm_content=buffer710d6&utm_medium=social&utm_source=plus.google.com&utm_campaign=buffer
Though the BCI has made it obligatory to have clinical legal education in the curriculum, law schools are not showing much attention in adopting the necessary skills. The purpose and scope of legal education is to formulate 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 a dynamic society. Hence, not only the law schools, but also the authorities, have to take steps to initiate CLE in an effective manner.
- [39A. Equal justice and free legal aid] – The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and 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 disabilities.] Inserted by the Constitution (Forty-second Amendment) Act, 1976, section 8 (w.e.f. 3-1-1977).