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Transcript of Clinical Legal Education Role of Lawyers
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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. It 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. 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 veryseriously 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 establishment and
functioning of clinics.
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 and the functioning of legal
clinics, its importance and objectives.
In order to make it an easy and well understandable read the whole assignment has been
divided topic wise which individually describe its meaning, and 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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Contents
1. Introduction
2. Clinical Legal Education
• Definition
• Basic features of the Clinical Legal Education
3. What is Legal Clinic
• Types of Legal Clinics
• Problem of Legal Clinics
4. History of Clinical Legal Education
• National Legal Service Authority
• Supreme Court on Legal Aid
5. Legal Aid on Law Schools
6. Development of Clinical Legal Education in India
• Delhi University
• Aligarh Muslim University
• Banaras Hindu University
7. Global Development of the Clinical Legal Education
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8. Legal Education Reforms and Law School-Based Legal Aid Clinics in India: Laying
the groundwork for Social Justice- Based Clinical Legal Education
• Early efforts to link Legal Aid and Legal Education Reform
9. Law School Provisions
• The cost of Clinics
10.Role of Lawyers
11. Newsletters
• CJI inaugurates 2,648 villages legal aid clinics
• Free legal aid clinic
12.Conclusion
13.Bibliography
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INTRODUCTION
As we enter the new millennium, the movement beyond the casebook method to the wider
integration of clinical methodology throughout the curriculum stands on a solid intellectual
foundation. Yet, although clinical legal education is a permanent feature in legal education,
too often clinical teaching and clinical programs remain at the periphery of law school
curricula. Doctrine, theory, and skills cannot be appreciated if they are introduced without
engaging the pathos of the human issues that the lawyer encounters when representing
clients. So little attempt has been made to reflect this relationship that the goals of the legal
academy have been called into question.
Professor Richard Neumann puts it this way:
Because it does not expect itself to produce practitioners, legal education is in some ways
closer to graduate liberal arts education than it is to professional education as other
professions define it. . . . It would be unthinkable to graduate physicians with no clinical
clerkships or architects with no experience in a design studio.1
The term, "clinical legal education" was first used by Jerome Frank, in 1933 in United Statesin his article, "Why not a Clinical Lawyer School" and has since then been the focus of2
attention for improvement of legal education and for creating a synthesis between the law
schools and the legal profession. The legal clinic concept was first discussed at the turn of
the twentieth century by two professors as a variant of the medical clinic model. Russian
professor Alexander I. Lyublinsky in 1901, quoting an article in a German journal, and
American professor William Rowe, in a 1917 article, each wrote about the concept of a “legal
clinic.” Both professors associated it with the medical profession’s tradition of requiring
medical students to train in functioning clinics ministering to real patients under the
supervision of experienced physicians.
Richard K. Neumann, Jr., Donald Schon, “The Reflective Practitioner, and the Comparative Failures of Legal1
Education”, 6 Clin. L. Rev. 401, 404 (2000).
81 UPA. L. Rev. 907 (1933).2
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Clinical legal education is essential to preparing law students to practice law effectively.
Clinics are important because they prepare students to practice law by teaching them valuable
skills such as fact-finding, investigation, interviewing, and legal research and writing. In the
United States, law students learn these skills by undertaking projects or cases on behalf of
individuals, always under faculty supervision and guidance. Students also develop a sense of
social justice and empathy through their work with disenfranchised groups.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 method allows students to confront the uncertainties and challenges of problemsolving for clients in fora that often challenge precepts regarding the rule of law and justice.
To say that the process of learning law in such a textured manner should be relegated to a
certain course or set of courses ignores what educational theorists have been saying for years:
that the best learning takes place when the broad range of abilities we possess is engaged.
According to Professor Barbara Woodhouse, " perhaps one of the most serious failings in
contemporary legal education is that all too many students graduate with a vast doctrinal
base of knowledge sealed within a context that is not translatable into practice."3
The Clinical Legal Education is necessary to bridge a gap between 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.
John B. Mitchell, Betsy R. Hollingsworth, Patricia Clark & Raven Lidman, “ And Then Suddenly Seattle3
University Was on its Way to a Parallel, Integrative Curriculum”, 2 Clin. L. Rev. 1, 21 (1995).
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CLINICAL LEGAL EDUCATION
Definitions:
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.”4
“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
that the student takes on some aspect of a case and conducts this as it would be conducted in
the real world.”5
Prof. Sathe asked the pertinent question, "Is legal education all about imparting skills
of lawyering or does it also have to create a commitment to certain values?"6
He opined:
“A lawyer is not only a seller of services but he is a professional who renders services
for maintaining the rule of law. He is supposed to be an officer of the court. He has to have
commitment to certain values such as democracy, individual liberty, social and economic
equality including gender equality and concern for the disadvantaged sections of society
which will include the poor, women, the physically handicapped, children, the minorities and
the Dalit’s. Legal education has to create such a commitment.”
KuljitKaur,“Legal Education and Social Transformation” 4
[available at: http://alsonline.amity.edu/Docs/alwjlegkk.pdf] [viewed on: 25/06/2009].
Richard Lewis, “Clinical Legal Education Revisited ” Professor of Law, Cardiff University, Wales, United5
Kingdom, Pg. 5 , [available at: http://www.law.cf.ac.uk/research/pubs/repository/21] [viewed on: 25/06/2009].
S.P. Sathe- Keynote Address in “ roundtable discussion on community responsive legal education: trends in6
South Asia”, November 27-28, 2001, organised by the United States Educational Foundation in India in
collaboration with Pune Law College.
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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 to groom their
future lawyers, the law makers, the executors, law officers, judges and law teachers to acquire
knowledge through a scientific method keeping pace with the ethics and 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-
• The students are to experience the impact of law on the life of the people.
• 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.
• The students are to be acquainted with the lawyering process in general and the skills
of advocacy in particular.
• The students are to critically consume knowledge from outside the traditional legal
arena for better delivery of legal services.
• The students are to develop research aptitude, analytical pursuits and communicating
skills.
• 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.
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WHAT IS LEGAL CLINIC
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.10
Clinics are usually directed by clinical professors. Legal clinics typically do pro bono work in
a particular area, providing free legal services to clients. Students typically provide assistance
with research, drafting legal arguments, and meeting with clients. In many cases, one of the
clinic's professors will show up for oral argument before the Court. However, many
jurisdictions have "student practice" rules that allow law-clinic students to appear and argue
in court. .Clinical legal studies exist in diverse areas such as immigration law, environmental
law, intellectual property, housing, criminal defence, criminal prosecution, and American
Indian law. Clinical education presents an interesting intersection between the academic
and professional environments. Clinical experiences are designed to maximize the student's
abilities to perform newly acquired didactic and psychomotor skills in real patient care
situations. A college depends upon clinical education centres to provide supervised learning
experiences in which the student has the opportunity to apply the principles learned in the
classroom.
A fully operational clinic is made up of five key components:
Black's Law Dictionary, 6th Edition, " clinical legal studies," (St. Paul, Minn: West Publishing Co.,1990),10254.
http://en.wikipedia.org/wiki/Environmental_lawhttp://en.wikipedia.org/wiki/Oral_argumenthttp://en.wikipedia.org/wiki/Oral_argumenthttp://en.wikipedia.org/wiki/Pro_bonohttp://en.wikipedia.org/wiki/Law_school
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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 solicitor’s 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.
What is the problem of Clinics?
1. The Integration of the clinic within the law school: Some eminent authors stated that
there is a danger that the clinic will become an isolated outpost of the law school, and not
absorbed within its mainstream activity. To avoid diversion of students from the rest of
their legal teaching, it is important to draw clear links between substantive law courses
and work done in the clinic. For example, problems arising in the clinic can be re-
examined in other law classes, research can be done on them, and even action
recommended. A wide range of teacher involvement is desirable. However, there is no
ready-made solution to the problem of integration.
2. Resources: Extra resources must be allocated to the teaching and running of the clinic.
This can be another cause of resentment for traditional academics who are less involved
in skills teaching, and it is another reason why the support and involvement in the clinic
of the law school is needed. The pressures created by the high caseload may badly affect
the moral of both staff and students. Resources can be particularly stretched if the clinic
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operates an open door policy and attempts to deal with all cases which come in off the
street. Hence there is need to limit access in some way.
3. Difficulties in supervision and assessment: Supervising students in the clinic is difficult
task. It is important to include checks on the quality of work being done for the system of
supervision.
4. The dangers of public service: The idea of providing free legal advice is attractive but
problems can develop if the public service aim takes precedence over that of providing a
sound and well-rounded legal education.
5. Relationship with the local legal profession: Some may fear that a legal clinic offering
free legal work will upset the law school’s relation with the local legal profession.
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
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 seeking11
justice cannot be equated with the value of dollars. Money plays no role in seeking justice."
Article 39A of the Constitution of India provides that State shall secure that the operation of
the legal system promotes justice on a basis of equal opportunity, and shall in particular,
404 F. 2d 571 - Court of Appeals, 8th Circuit 1968.11
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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 thecountry. 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.
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
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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.
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 fee’s,
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advocates fees and other incidental costs of litigation, he is denied an opportunity to seek
justice.
Most social evils are an outcome or creation of poverty and the misery that comes with being
poor in a country like India, at the same time it also needs to be borne in mind that the
judiciary no matter however committed it may be towards uplifting the cause of the poor is
ultimately bound by procedural formalities which do not take into account the misery or
problems of the masses. Therefore the sufferings being so may it is not possible for the legal
system to remove even few of such problems. In keeping with the same view Justice Krishan
Iyer asserted that poverty is a creation of unjust institutions and unjust society. Therefore in a
country like India if you are poor you are ineffective socially as well as economically the
only way that you can then be empowered is through radical revamping of the 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 law’s 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 Panchayat’s.
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 Authority accountable 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
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adopted the three fold test laid down for determining eligibility: Means test- to determine
people entitled to legal aid Prima facie test- to determine whether there was a prima facie
case to give legal aid or not Reasonableness test- to see whether the defence sought by a
person is ethical and moral.
In criminal proceedings the committee is not in favour of guaranteeing legal aid to habitual
offenders and in cases, which essentially involve private claims. Regular arrangement for aid
and advice to the under-trials was to be provided. A liberalized bail policy which was not to
be dependent on financial consideration Legal services were to be extended to investigation
as well as post-conviction stage. Legal services should also include rehabilitative services. In
criminal legal aid, the committee was in favour of salaried lawyers. The report also
encourages payment of compensation to victims in criminal cases. Family courts should be
established for women and children with women judges this is specially required in slum
areas and rural villages. Public defence council should be appointed in children’s court.
In backward areas, Legal Advice Bureau should be established in each development block.
The report encourages the involvement of law students in legal aid schemes particularly for
preventive legal services. Public law service should be an alternative available as against the
private bar and legal services authority should fix the fees payable to the lawyer.
Contributions Made By Justice P.N.Bhagwati To The Development Of The Concept Of
Legal Aid-Report On National Jurdicare: Equal Justice-Social Justice, Ministry Of Law
And Justice And Company Affairs, 1977
Justice P.N. Bhagwati practiced at the High Court, Bombay, he became a Judge of the Gujarat
High Court on 21st July, 1960, and became Chief Justice of Gujarat on 16th September, 1967.
On 17th July, 1973, he became the judge of the Supreme Court of India. He was also
Chairman of the Legal Aid Committee appointed by the Government of Gujarat for
suggesting ways and means of providing free legal aid and advice to the poor and weaker
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
India’s legal aid programme, including setting up of legal aid camps in rural areas, working
with NGOs, establishing legal aid clinics etc.
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The post-independence legal aid development was initiated by formation of BOMBAY
COMMITTEE, in 1949 under the chairmanship of Mr. NH Bhagwati, followed by the
below mentioned sequence of reports, committees and rules. Trevor Harries Committee in
West Bengal, 1949 Initiatives by the state governments such as The Legal aid formed in 1952
in UP, The Legal Aid Committee formed in Madras in 1954, and so on, Kerala Legal Aid (to
the poor) Rules, 1957, 14th Report of the Law Commission of India, Central Government
Scheme 1960. National Conference on Legal Aid, 1970, The Gujarat committee along with
Mr. P.N. Bhagwati (Chairman) constituted of Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy
Speaker, Gujarat VidhanSabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel,
Principal, New Lal College, and Ahemdabad.
The focus of the committee was the indigent person seeking to access justice. Answering to
the question of inequality in the administration of justice between the rich and the poor the
report clearly stated that there can be no rule of law unless the common man irrespective of
the fact whether he is rich or poor is able to assert and vindicate to the rights given to him by
the law. The machinery of law should be readily accessible to all. The poor must be placed in
the same position as the rich by means of adequate legal service programme. It stated that the
inequality between the rich and the poor in administration of the justice can be removed byestablishing and developing effective system of the legal aid programme. Legal aid and
advice should be regarded not as a matter of charity or bounty but as a matter of right. It is a
part of social security programme just as much as medical aid is.
There was unanimous decision of the Committee that the State should regard it as an
obligation to provide legal assistance to the poor and indigent. It stated that this obligation of
the State was not merely, socio-economic or political but is also constitutional by reason of
Articles 14 and 22(1).
Further the report stated that the legislation and rules so made by the government should not
be another piece of legislation made with the reference of any foreign legislation as there is a
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
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not be mechanical and wooden in its approach. Even after, such a programme is introduced
there must be a continuous examination of its utility and its responsiveness to the poor.
The report also in detail dealt with the true scope and extent of the legal aid. It recommended
that the question is what costs, charges and expenses to be incurred by a litigant in court
should be provided from the legal aid fund as part of legal aid scheme. The court fees
constitute one of the largest constituents of legal expenses involved in a proceeding in a court
of law. Instead of providing necessary funds to the assisted person to make payment of court
fees the State should by legislation remit court fees in case of an assisted person. The scheme
of legal aid should not be based on class or status.
The report in detail stated the constitution and the working of different legal committees:
(a) The Taluka Legal Aid Committee.- It was recommended that there shall be a Taluka
Legal Aid Committee in every Taluka having a court of Civil Judge (Junior Division) or
Judicial magistrate, It shall have power to deal with the applications for legal aid in
proceedings before the Talukacourt as also before the Tenancy Tribunal situated within the
Taluka.
(b) The District Legal Aid Committee - The same provisions was applicable mutatis
mutandis in respect of the District Legal Committee. Apart from the District Judge and the
president of the District Bar Association, one more lawyer, a retired Judge or Magistrate or
two social workers, the other members of the Committee was to be the Government Pleader
of the District Court ex-officio, the President of the District Panchayat ex-officio and the
Principal or a teacher of law college selected by the district judge.
(c) The State Legal Aid Committee- It was to be at the apex of the entire Legal Aid
Organization and was suggested to be a High power Body composed of different socialinterests 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
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,
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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 theamount of bail should be an individual decision depending on the individual financial
circumstances of the accused and the probability of his absconding. There should not be too
many adjournments on the ground that the prosecution is not ready with its witnesses. The
magistrate should be given power to order payment of costs of adjournment to the accused
where the prosecution has not taken reasonable steps to secure the presence of any witness
and the case has to be adjourned on that account.
The report stated that we as a nation really want to eradicate poverty and establish a truly
free, just and egalitarian society; the legal service programme recommended by the
Committee should be implemented wholly and in its entirety. But recognizing the difficulties
that the state government may face, it may not be possible for the State Government to
implement the whole of the legal service programme immediately in one single stage. It was,
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
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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 Juridicare Committee’s report was titled Report On National Juridicare: Equal
Justice – Social Justice (hereinafter referred as the 1977 report). The introduction of the
1977 report made it clear that it was in continuation of the 1973 report. It said that ‘In a
sense, the present report is an extensive revision, updating, revaluating and adding to the
previous.’
In an attempt to overcome the criticism of the 1973 report the Juridicare Committee
submitted an interim report furnishing a draft of the national legal services bill, 1977, which
comprehensively drew up the institutional setup for the delivery of legal services.
The 1977 report first focused on the infrastructure of the legal services of the organization
and clearly stated that it was not to be a department of the government but an autonomous
institution headed by the Judge of the Supreme Court. The body would have representations
from Bar Associations, the Government, the Parliament and the judiciary as well as voluntary
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associations and social workers and that there would be a multi-tier set up for the legal aid
organization.
The 1977 report was an amalgamation of the 1971 Gujarat report and the 1973 report but
absence of certain aspects of the legal services was conspicuous. For instance, both the 1971
Report and the 1973 report dealt with the issues arising from the criminal justice separately.
Hence it may be stated that except saying that it was continuation of the earlier reports, the
1977 Report made no reference to these aspects.
The other goals that were reiterated were: the programme ‘should not identify lawyers with
the law but should even pose them against law, wherever law is the reflection of an unjust
social order’, it had to recognize the inter relatedness of social, legal, educational and
psychological problems which beset the poor; the content of the legal services programme
was to include spreading of awareness amongst the poor about their rights, tackling the class
problems of the poor, initiating socio-legal research into the problems with a view to bringing
about reform in law and administration and helping different groups of the poor to organize
themselves.
The 1977 report envisaged several modes of delivery of legal services. The primary mode
would be the providing of legal advice through various legal aid offices having both salaried
lawyers and assigned lawyers.
The 1977 Report was the latest attempt by the Central government to comprehensively
determine the issue of providing legal services to the poor. It is further submitted that there
were certain common lacunae in all the reports, which need to be noticed:
Each of the reports though suggested of setting up of setting legal aid through a network of
autonomous legal aid bodies, there was no clarity on how that could be achieved with thestate 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
phase, in making the institution appear responsive to the needs of the population that had
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stood distanced from it. The two judges played a major role in spearheading the PIL
jurisdiction.
National Legal Service Authority
NLSA was constituted on 5th December, 1995. His Lordship Hon. Dr. Justice A.S. Anand,
Judge, Supreme Court of India took over as the Executive Chairman of National Legal
Services Authority on 17the July, 1997. Soon after assuming the office, His Lordship initiated
steps for making the National Legal Services Authority functional. The first Member
Secretary of the authority joined in December, 1997 and by January, 1998 the other officers
and staff were also appointed. By February, 1998 the office of National Legal Services
Authority became properly functional for the first time.
The First Annual Meet of the State Legal Services Authorities was held on 12th of
September, 1998 at VigyanBhawan, New Delhi which was presided over by His Lordship
Hon. Dr. Justice A.S. Anand, the then Executive Chairman, NALSA. His Lordship Hon. Mr.
Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman, Supreme Court Legal
Services Committee, the Members of the Central Authority and the Executive Chairmen and
Member Secretaries of the State Legal Services Authorities attended this Meet. In this Meet,
the progress of on-going schemes which had been initiated by NALSA was examined and
decisions of far reaching implications were taken with a view to strengthen and streamline
legal aid programmes in the country. The Second Annual Meet of the State Legal Services
Authorities was held at Jubilee Hall, Hyderabad on 9th of October, 1999. This Meet was
inaugurated by His Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice of India and
Patron-in-Chief, NALSA. Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA
delivered the keynote address. Other dignitaries present at the inaugural function included
Hon. Mr. Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman, Supreme
Court Legal Services Committee, Hon. Mr. Justice M.S. Liberhan, Chief Justice of Andhra
Pradesh High Court and Members of Central Authority.
In pursuance of the call given by His Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice
of India in the First Annual Meet, 9th of November is being celebrated every year by all
Legal Services Authorities as "Legal Services Day".
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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
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 service 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.
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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.
High Court Legal Services Committee:
The State Authority shall constitute a Committee to be called the High Court Legal Services
Committee for every High Court, for the purpose of exercising such powers and performing
such functions as may be determined by regulations made by the State Authority.
The Committee shall consist of -
a) a sitting Judge of the High Court who shall be the Chairman; and
b) such number of other Members possessing such experience and qualifications as may be
determined by regulations made by the State Authority, to be nominated by the Chief Justice
of the High Court.
Constitution of the District Legal Services Authority:
A District Authority shall consist of :-
a) the District Judge who shall be its Chairman; and
b) such number of other Members, possessing such experience and qualifications as may be
prescribed by the State Government, to be nominated by that Government in consultation
with the Chief Justice of the High Court.
The administrative expenses of every District Authority, including the salaries, allowances
and pensions payable to the Secretary, officers and other employees of the District Authority
shall be defrayed out of the Consolidated Fund of the State.
Supreme Court on Legal Aid
The linkage between Article 21 and the right to free legal aid was forged in the decision in HussainaraKhatoon v. State of Bihar , where the court was appalled at the plight of12
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
AIR 1979 SC 1360.12
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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."
He reiterated this in Suk Das v. Union Territory of Arunachal Pradesh, and said "It may15
therefore now be taken as settled law that free legal assistance at State cost is a fundamental
right of a person accused of an offence which may involve jeopardy to his life or personal
liberty and this fundamental right is implicit in the requirement of reasonable, fair and just
procedure prescribed by Article 21." This part of the narration would be incomplete without
referring to the other astute architect of human rights jurisprudence, Justice Krishna Iyer.
In M.H. Hoskot v. State of Maharashtra, he declared: If a prisoner sentenced to16
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: 17
Right to free legal aid, just, fail and reasonable procedures is a fundamental right (Khatoon’s
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
(1986) 25 SCC 401.15
AIR 1978 SC 1548.16
Id. 14.17
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the society are entitled as a matter of prerogative.
In Indira Gandhi v. Raj Narain, the Court said: 18
"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, S tate of Haryana v. Darshana Devi , the Court said: "the poor shall not be priced out of19
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 Carta of republic, expressed in Article 14 and stressed in Article
39A of the constitution, has sought leave to appeal against 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 judgment in the case of Kara Aphasia v. State of
Bihar , where the petitioners were young boys of 12-13 years were arrested, and were still
languishing in jail for over 8 years. They also alleged to have been kept in leg irons and
forced to do work outside the jail, directed that the petitioners must be provided legal
representation by a fairly competent lawyer at the cost of the State, since legal aid in a
criminal case is a fundamental right implicit in Article 21.
In Centre for Legal Research &Anr. v. State of Kerala, Chief Justice Bhagwati took a step20
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.
AIR 1975 SC 2299.18
1979 AIR 855, 1979 SCR (3) 184.19
AIR 1986 SC 1322.20
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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
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 socialaction 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
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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."
LEGAL AID IN LAW SCHOOLS
The role which the law schools play in the provision of legal aid has been an aspect which
has largely been ignored in academic discourse. Lesser still has been written about their role
in alternative dispute resolution in India. It is due to the lack of recognition of the role that
Clinical Legal Aid plays that the problems of the institutions continue to plague legal aid in
India.
The role of law schools in training lawyers is a concept which is relatively new. Law
schoolstraditionally taught the theory of the law while the job of training of legal
professionals was left to the Bar in the form of apprenticeships. This changed to some21
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. The solution was found in the form of “legal dispensaries” or clinics, inspired22
by the model of free medical aid in medical colleges. Here, poor persons could come for free
consultation and advice. While most of the work of these clinics focused on poverty-based23
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
Dubin (1998), pp. 1463-1466.21
“The clinic thus becomes a 'case book' - not, however, of dead letters descriptive of past controversies, but22
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.
Dubin (1998), p. 1463.23
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taxation and intellectual property to a specialized branch called “street legal aid” wherein
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.24
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.25
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.26
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. However, these programmes suffered27
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 were gradually edged out.28
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
Bloch (2008), p. 123.24
Bloch, and Prasad, (2006), p. 165.25
Ibid, 172.26
Ibid, 176.27
This statement is largely due to the fact that there is very little material on record to show the existence of28
vibrant legal aid programmes in law schools. I take the example of Delhi University due to the availability of
some academic material on it.
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at least 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
rules to govern these institutions and has mandated that for accreditation there must exist a
functional legal aid clinic within the law school.29
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.
Rule 31, Chapter III, Bar Council of India Rules on Legal Education, 2008.29
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DEVELOPMENT OF CLINICAL LEGAL EDUCATION IN INDIA
Clinical Legal Education took off in the 1960s as a response to the social and political
movements of the time and the perceived irrelevance of traditional legal education. It30
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 education’s remarkable
successes over the past forty years mean for its future. One important item on this agenda31
that has been on the minds of law teachers in India and the United States, among other
countries, is the status of clinical legal education’s traditional social justice mission. There32
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
Am. Bar Ass’n Section of Legal Education and Admissions to The Bar, Am. Bar Ass’n, Legal Education and30
Professional Development – An Educational Continuum, Report of the Task Force on Law Schools and The
Profession: Narrowing The Gap 133-41 (1992). [Hereinafter MACCRATE REPORT].
For example, the 6th International Clinical Conference co-sponsored by UCLA and the University of London31
in 2005 carried the theme “ Enriching Clinical Education” and included among its purposes reflection on “the
remarkable growth of the clinical movement worldwide.” See conference brochure (on file with authors). See
also Margaret Martin Barry, Jon C. Dubin, & Peter A. Joy, Clinical Education for the Millennium: The Third
Wave, 7 CLIN. L. REV. 1, 57-60 (2000) (discussing the global aspects of clinical legal education’s future).
Preserving and supporting a social justice focus for clinical legal education around the world is the key32
mission of the Global Alliance for Justice Education (GAJE). The GAJE website is at http://www.gaje.org.
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exclusively in the context of having students provide various forms of legal aid services.33
Over time, the legal aid dimension of clinical education has been replaced to some extent by
a more professional skills-oriented focus as the clinical movement has made important and
necessary gains in the legal academy, especially in the United States. Although social34
justice remains at the heart of many clinical programs, the effort to obtain broad acceptance
of clinical legal education by the legal academy and the bar – realized already to a substantial
degree in a number of countries around the world – seems often to undercut its traditional
social justice mission.
Clinical Legal Education includes not only the clinical courses but also practice-oriented
courses and activities included in or offered outside the curriculum.
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.35
See generally Frank S. Bloch & Iqbal Ishar, Legal Aid, Public Service and Clinical Legal Education: Future33
Directions from India and the United States, 12 MICH. J. INT’L L.96 (1990). See also Clinical Legal
Education: Concept and Concern, A handbook on Clinical Legal Education 17 (N.R. Madhava Menon ed.,
1998). 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 Stephen Wizner , Beyond Skills Training , 7 CLIN. L. REV. 327, 332 (2001) (“clinical legal education has34
tended to emphasize skills training and professional development over social objectives”). But see Peter A. Joy,
Political Interference with Clinical Legal Education: Denying Access to Justice, 74 TULANE L. REV. 235, 268
(1999) (describing clinical education’s “twin goals” of teaching lawyering skills and professional values and
providing legal services to low-income clients as “inextricably intertwined”).
Richard Lewis, “Clinical Legal Education Revisited” Professor of Law, Cardiff university, Wales, United35
Kingdom, Pg. 11 [available at: http://www.law.cf.ac.uk/research/pubs/repository/212] [viewed on: 25/06/2009]
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Clinical Legal Education in India has its roots in both the Legal Aid and Legal Education
Reform Movements.
Formal Legal Education started in 1855, in India. Many commissions and Committees were
set up for the development of Clinical Legal Education in India. Legal Education has gone
through many stages of development. Some of these stages are –
The Bombay Legal Education Committee concluded in 1949, recommended that practical
courses should be made compulsory only for students who choose to enter the profession of
law and the teaching method should include seminars or group discussions, moot court
competitions etc.
The 14th Report of the Law Commission of India recognized the importance of professional
training and for a balance of both academic and vocational training. It recommended that
University training must be followed by a professional course concentrating on practical
knowledge—but it suggested that the professional course be made compulsory only for those
who chose to practice law in the courts. The Commission’s 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 Commission’s Report didn’t 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)
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
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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 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, 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.
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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.
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 School’s 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.
Delhi University
In the mid 1960s, Delhi University introduced the case method of teaching followed by a
few other universities. In 1969, a legal services clinic was set up by some teachers and
students of Delhi law Faculty as a purely voluntary activity mainly to provide legal services
to inmates of prisons and custodial institutions. The programmes were developed on an ad
hoc basis and faculty supervision was marginal. The clinic acted more as an investigating and
referral agency rather than as a centre for delivery of services. Student participation was
neither consistent nor was the programme supported by the prescribed curriculum for the
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On the recommendation of a faculty Committee, Banaras Hindu University Law School
introduced an optional course of Clinical Legal Education in the Vth and VIth semesters with
credit for a maximum of 200 marks .The course is open for 30 students each year who are
selected on the basis of aptitude and performance in written tests. The method of teaching is
through lectures and fieldwork. Fieldwork includes court visits, assignment in the law school
legal aid clinic, socio-legal surveying on specific problems and internship in the chamber of
lawyers. A faculty committee headed by the Dean manages the clinical course and
programmes. The Legal Aid Clinic was set up in the law school under the supervision of a
retired judge who was taken as a part-time Professor of the school on a token honorarium.
Presently there is a faculty member designated as director of the clinic. Funds for clinic
activities initially came from students' contribution, then from the National Service Scheme
of the University and later from the University itself. The University Grants Commission
provided a special grant for the clinic to expand its legal aid activities to the neighboring rural
areas. The clinic has its own bus to transport students on fieldwork.
Students share the required time between the court, the field and the legal aid clinics' office.
Each week the students are expected to spend at least one day in court and report at the office
of the assigned lawyer on two occasions.
Another day they are required to spend in the legal aid office doing the work assigned by the
teacher in charge. The students and teachers associated with the clinical legal programme go
to the villages around the city and undertake programmes of legal literacy, socio-legal
surveys on the implementation of welfare legislation and attempt conciliated settlement of
disputes through legal aid camps. The students keep separate diaries in which they record
their experiences, do the written assignments and get the comments of the teachers / lawyers.
The court work is jointly evaluated by the teacher and the lawyer for a maximum of 50
marks. The teacher in charge of the legal aid clinic grades the work of the students in the
clinic for a maximum of 50 marks.
It is interesting to note that clinical legal education at Banaras Law School revolves almost
entirely around the legal aid clinic and its projects. Although it continues to function with
some success it reflects the troubles from which legal aid schemes generally suffer and it
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does not receive full faculty support. Further, the clinical opportunities provided are limited
to a small section of final year students.
During the nineteen seventies a report was prepared by the committee on legal education
headed by Chairman Mr. Justice Ormrod which emphasized the need to combine the
traditional legal education with instructions in skills and techniques which are essential to
enable a person to follow a learned profession. Realizing the error of largely relying upon the
apprenticeship method, ignoring the new situations which had developed over a period of
time it recommended that new ways and means should be evolved to enable use of new
facilities for educating the professional person by supplementing them with training in
professional skill and technique. It emphasized the need for a synthesis between the academicand professional and there integration into a coherent whole noticing the isolation between
both. It recommended three stages of legal education, the academic stage, the professional
stage and the continuing education or training. This would enable the individual not only to
equip himself with the basic knowledge of the law but also acquaint himself with the skills
and techniques so essential to the practice of law. The idea of continuing education or training
would enable him to adapt himself to the ever changing scenario in the field of law, so vital
for career advancement.
GLOBAL DEVELOPMENT OF THE 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
hold in the late 1960s; however, by that time Law Schools in the U.S. took the lead in
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providing Clinical Legal Education. In most of the countries initially the primary focus of
Clinical Legal Education was on legal aid, social justice and professional responsibility.
However, this focus began to shift from client and community service to teaching skills,
particularly in U.S. due to fading of student interest in public interest work.
Thus, the concept of Clinical Legal Education has evolved and contributed a new pedagogy
in the teaching of law. It, to a large extent, also plays a crucial role in bridging the gap
between the theory and real-life practice of law, or at least the environment in which they
operate.
The dearth of clinical legal education programs in the first half of the twentieth century
reflects several conditions that law schools faced in that era.
First , law schools were distinguishing themselves from apprenticeships, and clinical legal
education efforts to create "model law offices" as part of law school education did not further
this market differentiation.
Second, law schools of this era were terribly under-funded and clinical legal education
courses with intensive faculty supervision were not as economical as large classes employing
the casebook Socratic method.
Third , law school teachers of this era disagreed about the value – and feasibility - of teaching
lawyering skills other than legal analysis. For example, a 1944 Report of the Association of
American Law Schools (AALS) Curriculum Committee, primarily authored by Karl
Llewellyn, noted that the "current case-instruction is somehow failing to do the job of
producing reliable professional competence on the by-product side in half or more of our end
product, our graduates.
Fourth, the period from the 1920's to the 1940's was marked by ABA and AALS efforts to
create and raise standards for law schools, and none of these standards focused on
encouraging or requiring clinical legal education experiences.
These above four factors combined not only to limit the number of clinical programs but also
to stunt the growth of clinical pedagogy by limiting the number of law faculty teaching
clinical courses.
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In the 1950's, there was no single vision of clinical legal education and the concept of a law
school "legal aid clinic" encompassed any "law school sponsored program for law student
work on legal aid cases." A 1951 study of clinical programs identified twenty-eight clinics36
run by law schools, independent legal societies, or public defender offices. At five schools, a
clinical legal education experience was mandated, but most schools offered clinics as
electives or extra-curricular activities. The work assigned to students varied among programs,
but typically included client and witness interviews, drafting ple