clinical legal education

5/28/2018 Clinical Legal Education

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CLINICAL LEGAL

EDUCATIONASSIGNMENT ON HISTORICAL

APPROACH TOWARDS CLINICAL

LEGAL EDUCATION IN INDIA

NAMEADITI RAJ, ROLL NO.02, CLASSVII SEMESTER, IV YEAR


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PREFACE

The legal education is the basis of an efficient legal profession which is the basis of a well-

organized 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.


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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.


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SYNOPSIS

CHAPTER-1

Introduction What is meant by Clinical Legal Education? Types of Legal Clinics

CHAPTER-2

History of Clinical Legal Education

CHAPTER3

DEVELOPMET

CHAPTER-3

Development of Clinical legal Education

CHAPTER-4

Evolution of Clinical Legal Education in India


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CHAPTER-5

Global Development Of Clinical Legal Education

CHAPTER-6

Legal Education Reform and Law School-based Legal Aid Clinics inIndia: 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. PARTICULARS PAGENO.

1. ACKNOWLEDGEMENT 6

2. CHAPTER1 7-10


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3. CHAPTER2 1127

4. CHAPTER3 28-33

5. CHAPTER4 3437

6. CHAPTER5 3845

7. CHAPTER6 4648

8. CHAPTER7 4951

9. CHAPTER8 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


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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.

1KuljitKaur ,Legal Education and Social Transformation[available at:

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

2Richard Lewis, Clinical Legal Education Revisited Professor of Law, Cardiff University, Wales, United

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


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(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 hands-

on-legal experience to law school students and services to various clients. Clinics are usually

directed by clinical professors.3Legal clinics typically dopro bonowork in a particular area,

providing free legal services to clients.

Students typically provide assistance with research, drafting legal arguments, and meeting

with clients. In many cases, one of the clinic's professors will show up for oral argument

before the Court. However, many jurisdictions have "student practice" rules that allow law-

clinic 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

3Black's Law Dictionary, 6th Edition,"clinical legal studies," (St. Paul, Minn: West Publishing Co., 1990), 2544Louisiana Supreme Court Rule XXhttp://www.lasc.org/rules/supreme/RuleXX.asp

5Uniform Local Rules Of The United States District Courts For The Eastern, Middle, And Western Districts OfLouisiana, LR83.2.13, http://www.laed.uscourts.gov/LocalRules/Civil_83.htm


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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 CLINICSThe 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 interviewingexercises, 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.


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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


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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 39Aof 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.


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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 acountry 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 socio-

economic 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.


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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 beestablished 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 forsuggesting ways and means of providing free legal aid and advice to the poor and weaker


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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 Committeein

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 thereport 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 notbe another piece of legislation made with the reference of any foreign legislation as there is a


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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 courtof 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


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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 accusedwhere 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,


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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 JuridicareCommitteesreport 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 autonomousinstitution headed by the Judge of the Supreme Court. The body would have representations


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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 unjustsocial 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


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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 AUTHORITYwas 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 anddecisions 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


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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 Authorityshall 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 Bi harwhere 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


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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. (I I ) 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 freelegal 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."


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He reiterated this in Suk Das v. Union Terr itory of Arunachal Pradeshand 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 M aharashtra, 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 I ndira Gandhi v. Raj Narainthe 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


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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 acriminal case is a fundamental right implicit in Article 21.

In Centr e for L egal 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


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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."


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CHAPTER3

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 problemof 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 ofLokAdalatshas 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


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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.

9

Therefore, it is possible that the first conception oflegal 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

6For 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.

7Jain (1989), pp. 134-135.

8Murlidhar (2004), p. 32.

9Noorani (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 14thReport 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.13However, 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 court-

centric. However, it stated that poverty and legal aid could not be divorced from each other.

10Murlidhar (2004), p. 36-37.

11Ibid, p. 37-39

12While, 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.15This

is quite significant because the use of alternative dispute resolution mechanisms was for thefirst 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.17To

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

PermanentLokAdalatsin an Act meant ostensibly for the administering legal aid indicated a

14This 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.

15Murlidhar (2004), p. 49.

16Murlidhar, (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.

17Murlidhar. p. 68

18Statement and Object of reasons of Legal Services Authorities Act, 1987.19

ss. 12, 13 Legal Services Authorities Act, 1987.


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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 LokAdalatsbeing 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 whichhas 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.21The 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

20Dubin (1998), pp. 1463-1466.

21The 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.26However, these programmes suffered

from the problems of scope. Also, due to lack of institutional support, its success was short-

lived. 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

23Bloch (2008), p. 123.

24Bloch, and Prasad, (2006), p. 165.

25Ibid, 172.

26Ibid, 176.

27This statement is largely due to the fact that there is very little material on record to show the existence ofvibrant legal aid programmes in law schools. I take the example of Delhi University due to the availability ofsome academic material on it.


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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 - 4DEVELOPMENT 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

28Rule 31, Chapter III, Bar Council of India Rules on Legal Education, 2008.

29AM. BAR ASSN SECTION OF LEGAL EDUC. AND ADMISSIONS TO THE BAR, AM. BAR ASSN,

LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENTAN EDUCATIONAL CONTINUUM,REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP133-41 (1992). [hereinafter MACCRATE REPORT].


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successes over the past forty years mean for its future.30One 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.31There

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 barrealized 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.

30For 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). Seealso 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 keymission 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).


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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 14thReport 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)

34Richard Lewis, Clinical Legal Education RevisitedProfessor 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]


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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.


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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.

CHAPTER5

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


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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 valueand 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

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