clinical legal education role of lawyers

8/15/2019 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

clinical legal education role of lawyers

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