1 CHAPTER 1 INTRODUCTION Legal education plays a pompous role in promoting social justice.

Education or awareness of laws, characterize the lawyers as 'Social engineers'. Legal education has an important role to play in the establishment of law-abiding society. Excellence in legal education and research is extremely important, because it will help shape the quality of the rule of law. Imparting of legal education has always been considered as one to the noblest profession.1 Legal education in Indian law schools has traditionally been confined to classroom lectures; textbooks; the law journals and the library. Labeled as a professional course by the universities, like any other professional course, it is sought to prepare a class of professionals. Expected outcome of the law schools is preparation; rather grooming of students for the needs of legal profession. Yet there is no denying the fact that there is a very wide gap between the law schools teachings and the courts, i.e. the present school and the expected future office of these students. Knowing fully well that the maximum numbers of law students do enter the profession and that this infact was the primary aim for even establishing the law schools; the majority of Indian law schools fail to prepare adequately the students for the needs and challenges of their future offices. The focus currently is on doctrinal and theoretical issues to the exclusion of those skills necessary for the competent practice of law. Theory is necessary for understanding and for the expansion and extension of analysis, but it is alone not sufficient. Proceeding

CLINICAL EDUCATION FOR THE LAW STUDENT S. RANGARAJAN Judge, Delhi High Court, Voice of Justice by A.R. Lakshmanan

2 from the abstraction of theory without any validation in practice of the propositions offered fails the test of improving the practice of law2 (a) Importance of Legal Education

'Law is the cement of society and an essential medium of change'. Its study promotes accuracy of the expression, facility in arguments and skill in interpreting the written words, as well as some understanding of social values. It is pivotal duty of everyone to know the law. Ignorance of law is not innocence but a sin which cannot be excused. Thus, legal education is imperative not only to produce good lawyers but also to create cultured law abiding citizens, who are inculcated with concepts of human values and human rights. A well administered and socially relevant legal education is a sine qua non for a proper dispensation of justice. Giving legal education a human face would create cultured law abiding citizens who are able to serve as professionals and not merely as business men. The quality and standard of legal education acquired at the law school is reflected through the standard of Bar and Bench and consequently affects the legal system. The primary focus of law schools should be to identify the various skills that define a lawyer and then train and equip its students with requirements of the field of law (b) Regulation of Legal Education

Legal profession along with the medical and other professions also falls under List III (Entry 26). However, the Union is empowered to co-ordinate and determines standards in institutions for higher education or research and scientific and technical institutions
2

Clinical Legal Education , By Poonam Saxena, Reader, Faculty of Law, D.U., Delhi, Legal Education in India in 21st Century Problem and Prospects By R.K. Roy

3 besides having exclusive power, inter alia, pertaining to educational institutions of national importance, professional, vocational or technical training and promotion of special studies or research. Empowered by the Constitution to legislate in respect of legal profession, Parliament enacted the Advocates Act, 1961, which brought uniformity in the system of legal practitioners in the form of Advocates Act and provided for setting up of the Bar Council of India and State Bar Councils in the States. The University Grants Commission has in the course of time evinced interest in improving legal education and has taken various steps towards that end, through adequate funding, creation of senior posts and other means. As suggested by Honble Justice A.M. Ahmadi in the Chief Justices Conference held in 1993, There should be proper evaluation of papers in the examination. The students should be trained to draft pleadings at the college level. The standard of English should be improved. Under Rule 9 (1) to (4) of Section A, Part-IV of The Bar Council of India Rules (under The Advocates Act 1961) deals with the subjects to be covered to complete the respective courses. Section A, Rule 9 (4) (4) Six Months of Practical Training be imparted and Practical Training will include the following Compulsory Papers: 1. Moot Court, Pre-Trail Preparations and Participation in Trial proceedings. 2. Drafting, Pleading and Conveyancing. 3. Professional Ethics, Accountancy for Lawyers and Bar Bench Relations. 4. Public Interest Lawyering, Legal Aid and Para Legal Services.

4 (c) Legal Education, towards modernization

Prior to the introduction of five year law course, most of the students who performed well in their Intermediate Education aspired to study medicine, engineering, computers, business management and accounting. Law as a profession and legal education as a discipline was not a popular choice of the students. Unlike India, the situation prevalent in England, America and in many other developed countries is convincingly different. The admissions to law schools in these parts of the world are highly competitive. The end result is that the 'creams' among students opt for law by choice and not as the last resort and thus richly contribute their shares to the society as lawyers, judges, paralegals and academicians. Though, five year law schools are doing their bit to bring about a change; but more effectively the perspective of prospective law students can be changed by a healthy pre-legal education at the school level. The conventional role of a lawyer is to step in after the event takes place, in order to resolve dispute and dispense justice to the aggrieved party. In the changed scenario, the additional roles envisaged are that of policy planner, business advisor, negotiator among interest groups, experts in articulation and communication of ideas, mediator, lobbyist, law reformer etc. In this the era of information capitalism, economic liberalization and WTO, legal profession in India has to cater to the needs of a new brand of legal consumer/client namely the foreign companies or collaborations. The law colleges are required to make strategic plans that set out a clear vision of justice delivery and also address the emerging realities of the market. Goal of the law schools should be to build a 'system of legal education' that:1. Encourage Clinical training

5 2. Promote an inter-disciplinary approach of law with other social sciences. 3. Encourage proficiency in languages. 4. Personal Characteristics 5. Promotes acquaintance with new technological means 6. Develop a critical outlook Legal education is an investment which if wisely made will produce most beneficial results for the nation and accelerate the pace of development. Of late the role of a lawyer in a common law system is more than a skilled legal mechanic; he acts as a harmonizer and a reconciler. The legal education granted at the law schools should be aligned to the conventional and contemporary needs of the legal profession.3 The observations of the Gajendra Gadkar Committee on the Reorganization of Legal Education in the University of Delhi are very relevant in this context. According to the Committee, "the aims of Legal Education would be to make the students of law good lawyers who have absorbed and mastered the theory of law, its philosophy, its functions and its role in a democratic society.4

3 4

http://www.123oye.com/job-articles/cyber-law/legal-education.htm Law as taught and law as practiced delivered at the B.H.U. at Varanasi on 5th Nov. 2004,Academic Enlightment

6 CHAPTER 2 CLINICAL LEGAL EDUCATION CONCEPT AND MEANING In the past it was sufficient for those reading law to restrict their knowledge to the theories of law, codes or decided cases. However, in order to meet the new challenges of the present legal system, it is imperative that the law schools provide clinical legal education. Justice must become central to the law curriculum and communitybased learning must give the desired value orientation in the making of a lawyer. In most countries the teaching of law, like many academic disciplines, does not require law teachers to undergo a pedagogical skills training course. The result is that most new law teachers simply adopt the habits and teaching methods of their former teachers. This usually means adopting the lecture method according to educational psychologists one of the most ineffective ways of imparting knowledge to law students. The age old practice of theoretical study basing on non-clinical and para-clinical methods in the field of legal education is not complete, if the law students are not imparted training in clinical legal education. The traditional legal education was confined to class room teaching with the aid of text books, journals, periodicals and reported cases. Now importance is given to groom the students for the need of legal profession. 'Fortunate is the field of higher education which can test its intellectual perceptions in the arena of real life: and which can, in the process, use all the energies of its students and teachers-

7 intellectual, emotional, and physical. Truly this is education, in the real sense of the word.5 Clinical legal experience is fast becoming a common offering in law school programs. The teaching of law practice skills in a real life context offers the opportunity for our law schools to do an even better job of preparing students for their careers as lawyers. Clinical legal education is the need of the hour. It is not simply a pedagogical method but the philosophy about the role of lawyers in the society. It is a liberal, radical and reformative method having the programmes in the process of development. This method keeps the legal system as a vehicle for change. This philosophy builds up faith in the legal system as a means of reform. The clinical legal education programmes provide a context for testing legal theories. This method sensitizes the law students towards ethical and moral responsibilities to perform pro bono public work so that they can provide services to the communities through public interest lawyering. The present need is to let students do things rather than merely hear things.6. The fact that studies have shown that traditional legal studies result in a "dulling of student motivation and altruistic values" clearly indicates a need to 'illuminate legal education'. 7 One method of doing this is to introduce clinical legal education methods and the interactive forms of learning associated with it when teaching substantive and procedural law to law students

William Pincus, educating the lawyer: Clinical Experince As an integral part of Legal Education, DOMINICK R. VETRI Professor of Law, University of Oregon
6

and the same has been borne out by studies culminating in the 'Learning Pyramid' The Learning Pyramid indicates that the rate of memory retention increases as more learner-centered interactive teaching methods are used. 7 Krieger, 2002:114

8 The term, "clinical legal education" was first used by Jerome Frank, in 1933 in United States in his article, "Why not a Clinical Lawyer School"8 and has since then been the focus of attention for improvement of legal education and for creating a synthesis between the law schools and the legal profession. Clinical legal education can be simply defined as experiential learning whereby law students gain practical skills and deliver legal services in a social justice environment. Clinical legal education means education that is experience-based legal and focuses on appropriate lawyer roles, institutions, professional

responsibility, and the theory or practice of legal representation or dispute resolution. Clinical legal education is basically practical legal training through moot-court, mock-trial, practice participation with the of the students in ADR and in public legal education i.e. mass legal awareness programmes, chamber lawyers, counseling, participating in the conduct of life cases, short of appearing in the courts. They are to be trained through Lok Adalats, Legal aid clinic, Legal literacy project, direct representation of clients before selected courts, tribunals and agencies. Other activities, such as legislative drafting and community participation can be chosen as well. Clinical legal education is learning through doing, or by the experience of acting as a lawyer. Hence, this is experiential learning. The clinical legal education has gained a new momentum in the past few years and capable of many definitions. In a very narrow sense it means the involvement of law students in the representation of actual clients as a part of their legal education. In a broader sense, the term includes, more structured methods of instruction which emphasized
8

the

learning

of

"practical

skills"

in

addition

to

81 UPA. L. Rev. 907 (1933)

9 substantive and procedural rules of law, usually in ways which involves students active participation beyond that normally found in lecture classes and tutorials. In short the very concept of clinical legal education is based on "learning by doing. It is described as a programme of great promise. The students gain exposure to actual cases and to the lawyers problem in dealing with litigants.9 Clinical legal education merits separate treatment, for it is not merely a methodology of teaching or learning, it is also providing service to the people and, hence, more practical and noble. When young students at the formative stage of their career are exposed to community legal services, they get sensitized to the problems and needs especially of the marginalized sections of the people, and feel motivated to continue to work for them when they enter professional life. Clinical Legal Education extends to all fields of law which are taught in the law schools and universities. Apart from lecturers and class-room discussions, CLE essentially includes Moot-Court preparation and role enactments for the law students. During the process students are confronted with real life situations and play the role of lawyers to solve the problems. They do this by interacting with clients or each other to identify and resolve legal issues, and are subjected to critical review by their teachers or peers. Clinical legal education enables law students to play an active role in the learning process and to see how the law operates in real life situations.10 Clinical legal education programmes usually take the form of 'live client' or 'street law' (legal literacy) type clinics.

Legal Aid and Legal Education in India By B.R. SHARMA* Brayne, Duncan & Grimes, 1998:1

10

10 Clinical legal education provides law students with the tools that lay the foundations for their future careers as lawyers. While traditional legal education tends to focus on the theoretical content of the law and to be knowledge-based, clinical legal education goes further and provides law students with the necessary skills for legal practice. It also inculcates values such as the duty of lawyers to become involved in social justice issues in society, and to display professional responsibility while practicing law. Many of these skills and values can also be incorporated into the teaching of substantive and procedural law. Thus, clinical legal education programme encourages law schools to expand their educational objectives to more completely serve the needs of their students and to provide instruction about the knowledge, skills, and values that will enable their students to become competent legal problem solvers, This craft contemplates a range of skills and values commensurate with the development of professionalism, such as the ability to solve legal problems through various dispute resolution devises, the provision of competent representation, the recognition and resolution of ethical dilemmas, and the promotion of justice, fairness and morality. Clinical legal education requires students to take an active part in the learning process. They assume a degree of control over their own education and they see law in its real-life context. Learning by doing exposes students to real or realistic settings in which both basic concepts and substantive rules can be studied. At the same time, students may address the practical, ethical and policy issues surrounding a given problem. The clinical legal education programme is providing a vehicle for the introduction to an enhancement of skills relevant to the study and practice of law. Students taking clinical courses are encouraged, as an explicit

11 educational objective, to reflect critically on the content of the experience and to redefine their needs and strategies in consequence. (a) CHARACTERSTICS OF CLINICAL LEGAL EDUCATION

The following are the characterstic features of the clinical legal education. (i) The students are to experience the impact of law on the life of the people. (ii) The students are to be exposed to the actual milieu in which dispute arise and to enable them to develop a sense of social responsibility in professional work. (iii) The students are to be acquainted with the lawyering process in general and the skills of advocacy in particular. (iv) The students are to critically consume knowledge from outside the traditional legal arena for better delivery of legal services. (v) The students are to develop research aptitude, analytical pursuits and communicating skills. (vi) They are to understand the limit and limitations of the formal legal system and to appreciate the relevance and the use of alternate modes of lawyering. (vii) They are to imbibe social and humanistic values in relation to law and legal process while following the norms of professional ethics.

12 (b) OBJECTIVES OF CLINICAL LEGAL EDUCATION

The objective of clinical legal education is to develop the perception, the attitudes, the responsibility and the skills to become a lawyer after the completion of the course from the law schools. They are being given the training to acquire knowledge in the non-clinical subjects like language, history, economics, political science, sociology and philosophy. This would motivate a student of law to undertake the responsibility to face the complicated problems and to analyze the fact with the help of the study in literature, arts, science, economics, commerce and other relevant subjects, The objective of the clinical education is radical, reformative and dynamic. Clinical areas:a) b) c) d) e) Legal skills development, System operation knowledge, Growth of professional responsibility, Self-knowledge, Human relations understanding. education has a broad range of impact upon law students. The objectives of clinical work fall basically into five

(a)Legal Skills Development: Training is necessary for law students to develop skills in writing and legal research. In the recent years the law schools are giving much emphasis on legal writing, preparation of memorandums, deeds, documents, appellate briefs, analysis of problems and pleadings. The underlying rationale behind these activities is the inculcation of good research and also to develop writing skill during the early career of a law student. This foundation would help him to be proficient in any branch of law.

13 (b)System Operation Knowledge: The law students obtain the skill development benefits of actual participation as well as they are prompted to understand critically and systematically the mechanism of operation from the institution in which they are participating. Institutional exposure enables the students to evaluate more carefully about the recent literature concerning in the field of legal institution. All the law schools are to develop a system to enable the students to acquire knowledge through first hand observation. (c)Growth of professional Responsibility: This course includes analysis of lawyers responsibilities in the arena of social problem. But the courses on legal education are incomplete without knowledge on ethical issues. Some times the students complain of non-relevance of the course. But new insights can be created through clinical programme where students are engaged in actual cases rather than the dramatic learning experience of classrooms. To find out a solution to a problem forces the student to choose among values, including his emotional consideration. (d)Self-knowledge: Learning about ones self is a continuous process. From professional point of view, self-knowledge is important in understanding ones abilities and limitations. In the clinical programme, the students are encouraged to analyze, probe and evaluate their performance in the real life they encounter. Students can confront and accept, modify or reject or at least recognize the existence of values that will guide their professional lives and reactions to people and problems.

14 (e)Human-Relations Understanding: The practice of law can not be accomplished in isolation from the interaction of the people. Although the practitioner knows that the client is a significant factor in any legal problem. The students are to be trained in order to develop their zeal for logical purity and not to ignore the human aspect of legal problems. Clinical legal education programme provides an opportunity to prescribe remedy for this omission. Developing keen lawyer client skills concomitantly results in gaining an understanding of how human beings are inter-related. Similarly, acquiring knowledge about ones self in the context of law practices, involves learning about human relations11 (c) Clinical teaching methods

Although clinical legal education learning methods are traditionally used to teach such lawyering skills as interviewing and counseling, legal writing and drafting, fact finding, case analysis, trial preparation and trial advocacy, they can also be used to teach substantive and procedural law courses. Depending on the nature of the law school's academic programme it may not always be possible to replace lectures entirely with clinical teaching methods. However, where there is scope for small group work, such as tutorials or practical sessions, it is possible to introduce a wide variety of interactive clinical legal education teaching methods in order to illuminate the substantive and procedural law curriculum for law students. Some of the more common interactive learning methods include the following:
11

EDUCATING THE LAWYER: CLINICAL EXPERIENCE AS AN INTEGRAL PART OF LEGAL EDUCATION DOMINICK R. VETRI Professor of Law, University of Oregon

15 role plays simulations moots mock trials case studies small group discussions debates 'taking a stand' 'thinking on your feet' the PRES formula games triads 'fishbowls'12 This concept of justice education that is clinical education in the field of legal education means that the law school curriculum should entail certain programs like Lok Adalats, Legal Aid & Legal Literacy and para-legal training. The complementary teaching methodology of learning by doing and the conventional classroom teaching, through the law school clinics, help in developing the advocacy skills in the law students. 'Mock' trials and Moot court competitions, structured as court trial; client interviewing and counseling sessions; legal research; editing of law journals; legal drafting and conveyancing; court visits etc. in the curriculum is one of the ideal ways to facilitate performance based education. It is a means of improving in students the basic skills such as the skills of critical thinking, presentation skills, participation skills, the skills to work as a team, the leadership quality, in addition to the boost in students knowledge of law (d) Significance Of Clinical Legal Education

12

ibid

16 The question before us, is - is a student ready to face the world after he graduates in 'Law. Unfortunately we find that he is generally not able to cope with problems which face him. It is often said that law in books and law in practice are quite different from each other. This in effect means that teachers are not equipping, the students adequately to make them confident enough to face the court straightaway after passing out.13 The proper place for training the law students is neither the law school alone nor the courts alone. They are to work together. Neither the theoretical teaching alone nor the apprenticeship rule is desirable. The problem of preventing inexperienced law graduates to enroll the profession and at the same time without imposing an extra academic year by insisting on an apprenticeship is very aptly tackled with by the American law schools by inculcating and making practical training as part of the three year law graduate programme. This practical training is imparted with the help of clinical courses and the establishment of clinics in the law school premises. The clinical courses include professional ethics; a variety of courses like and mediation; the the client trial interviewing to client counseling, professional responsibilities and negotiations techniques; preparation of cases and representation of clients by the law students in the actual courts under the supervision of the practicing attorneys who also happen to be law teachers.14 Hence for reorienting legal education and for making it suitable to our needs, besides others the inclusion of clinical legal education in LL.B. course is one necessary step. Clinical legal education denotes

13

Legal Education in India-A Point of View By Prof. T. Bhattacharya*, Journal of the Legal Studies
14

Supra note 2*

17 the involvement of law students in the representation of the actual clients as past of their legal education. The broader function includes moots courses of trial advocacy, courses in legal drafting all of which rely on orientation of lawyer client based education.15 Basic to this concept is ' learning by doing". Though classroom method of legal education has taken prominence in majority but the clinical legal education is not a rare example. Efforts have been made in many countries to provide such training courses in the form of post-graduate training course which provide training in advocacy, drafting procedure, ethics and law office management in a class room environment with heavy emphasis on stimulation.
16

This can

be managed by the law schools themselves with the assistance of the members of Bar and Bench. Such a course is prominent in Canada, United States & Australia. Numerous internship programs are functioning at American law schools involving students of local, state and federal agencies charged with responsibilities for consumer protection, environmental control and the enforcement of anti-discrimination legislation. What must be remembered is that whatever are the programmes designed for imparting clinical training to the students, he must be an active participant in it. He should not be a spectator or a glorified peon. He must have a sense of professional identity and responsibility, and must be actually involved in the activity rather than watching it from a distance. Clinical legal education is directed towards developing the

perceptions, the attitudes, the skills and the responsibilities which

15

Clinical Legal Education A Necessary Step, By Subhash Chandra Gupta", Legal Education in India in 21st Century Problem and Prospects By R.K. Roy
16

ibid

18 the lawyer is expected to assume when he completes his education in the law school. It can, therefore, be as broad and varied as the law curriculum would allow or accommodate. It is certainly not limited to ,the mere training in certain skills of advocacy, it has wider goals in enabling the students to understand and assimilate responsibilities as a member of a public service in the administration of the law, in the reform of the law, in the equitable distribution of the legal services in society, the protection of individual rights and public interests and in upholding the basic elements or 'professionalism', clinical experience in law school, therefore, is a unique opportunity ,for the students to learn under supervision, many aspect of the curriculum essential for preparation to think and act like a lawyer. In this connection, it is necessary to clarify the proclaimed and ludden goals of the curriculum, of legal education. As noted earlier, clinical teaching revolves around student participation on legal projects, whether simulated or real. The choice whether to base a clinical course or programme on a real or simulated projects fundamental, and will, to a substantial degree, be based on clinical methodology that should be used. At the same time there are certain general principles that can guide clinical teachers in implementing the clinical methodology for both real and simulated projects. There is a certain richness that can be brought to a clinical experience only by involving law students in real legal projects as a central element of a clinical course or programme. However, it is not enough simply to put students into a real, law related situation, and wait for them to learn. The real work of the clinical methodology is to refine and structure the students clinical experiences in order to maximize their effectiveness, and to supplement the students clinical experiences with appropriate instruction and supervision in order to create the maximum opportunities for learning

19 The students become familiar with the technicalities of court procedure by taking part in pre-trial preparation under the proper supervision of an experienced law-teacher and practitioner. The clinical education enables a law student to contribute more to human perspective. Students contact with poor and indigent clients through participation to legal service clinic can contribute to a more human perspective. This also helps in removing suspicion or mistrust from the mind of a client belonging to the weaker sections of the community. Further this will help giving social-orientation to law students, and ultimately help in creating an army of legal aiders and thereby help in promotion of social justice.17 Clinical experience in Law College, therefore, is a unique

opportunity for a student to learn under supervision, many aspects of the 'hidden curriculum' essential for preparation to think and act like a lawyer. Clinical legal education is a novel and one of the most appropriate methods of imparting legal education. Just like the knowledge of the engineer without training in a workshop is incomplete and just like a doctor without a practical training in a hospital or clinic may be harmful to the patients, similarly a lawyer without clinical experiences may not be able to serve the society to the extent of his personal capacity and capability as well as to the extent of his social accountability.
18

(e) Goals of Clinical Education Clinical legal experience programmes provide different and complimentary training unknown to the basic classroom sessions in
17 18

Supra note 9 Gurjeet Singh * Pooja Dhir** Clinical Legal Education in India: Some Lessons from the National Law School Bangalore,

20 law school. On the whole the programme is a mean to avail well organized supervised and co-ordinated field experiences as part of an educational process. This led the students to prepare themselves more adequately for the professional role of the lawyer. Law students generally understand law reform needs. They are capable of proposing reforming majors, but are totally frustrated over the process of implementation. They understand the complicating policy choices and values that operate with regard to specific problem areas, but are never forced to choose among them in a situation that has significant impact on people. Learning occurs at many levels. Cognitive learning is the basic goal of our educational institution. But the learning process is in complete until the student has synthesized substantive concepts and methods into his actual performance in a real life context. Developing that synthesis is a learning process that may be appropriately guided during one's legal education. It is under the supervision of an educator concerned with the development of the clinical abilities that time and energy may be spent productively on the method and style of performance. Clinical programme provide the opportunity for a supervised synthesis process.19 (f) Types of Clinical Programme

Introduction of Law Practice - The law practice introduction programme permits first year law students to sit in on conferences with clients are made to witness, discussions 'of tactics, depositions, negotiations, pre-trial conferences, trials, and in general any type of activity that lawyers engage in including attendance at corporate Board meetings. Each student is assigned to a co-operating attorney who provides the student with an opportunity to see a
19

Clinical Legal Education, Sri R.K. Roy, Legal Education in India in 21st Century

21 lawyer in action. The primary value of the programme is in exposing students to the realities of law office practice. Legal Aid Programme- Legal aid clinics in law schools can impart the following unique educational experiences. (i) Clinical work enables the law students to learn the practice of law including the technique of interviewing, collection of facts, critical decision-making, preparation of legal documents, witnesses in real life situation. (ii) The intricate and professionally significant lawyer-client and appreciation of evidence, examination and cross-examination of

relationship can be learnt by the young student lawyer with ease and confidence win the setting of a legal clinic. (iii) Clinical legal education provides essential knowledge in the operation of legal system and its functional relationships with social, economic and political processes. It gives him a see through to malfunctioning and injustice involved in the legal machinery and helps him develop perspectives on law - social change relationship and law - justice dilemma. (iv) Clinical education has great potentialities to transform the dull repetitive classroom lectures into hall going situations for the creative spirit of young minds/Education will then become a truly participatory experience between the teacher and the taught promoting self - development and knowledge. (v) Law study has become the professional course for the rejects, the mediocre and the educated unemployed and law schools have become the breeding centers of student revolt and unrest. It is

22 submitted that law school clinic has a constructive alternative to offer to this increasing wastage in university education. (vi) The legal clinic can enrich the general law school curriculum by potential feed - back through the field experience of teachers and students gathered in the course of programme with empirical data of social sciences. (vii) Clinical experience is likely to instill an empirical dimension to legal research. It links law and social sciences thereby informing the legislative, administrative and judicial process of their essential links in management of human affairs. (viii) Law school legal aid clinics can make substantial contribution in the matter of aid, advice and education to the weaker sections of the community with relatively little investment and without elaborate institutional structure. (ix) The prospects of legal services clinics acting as field agencies for initiating legal reform are also very bright and if properly coordinated, they can develop into effective two-way channel of communication between actors and consumers of the legal system. No doubt the clinical legal education programme as a regular part of the law school curriculum offer significant educational opportunities, but the successful operation of such programme basically depends upon some factors, namely (a) Students enrolled in this programme should have the benefit from the new learning experience.

23 (b) Clinical teachers should prepare significant and thoroughly developed programme of clinical institution. (c) The members of the Bench and Bar should understand their emerging role in aiding perspective lawyers to develop practical legal skills. (d) Law school and university administrators should provide the necessary manpower and funds for clinical programme.20 (g) Programme of great Promise

It is a sad thing that the Profession on which the responsibility ultimately rests to improve its own professional performance, has not yet adequately realized the need for such a program and become aware of its usefulness, so necessary to make him take on his professional responsibility at least within a reasonably short time after he is called to the bar is so poor, despite all intense attempts over a decade, to reform the curriculum it seems to me that there is no other practical way of imparting that quality of legal education except by supplementing the efforts we are otherwise making.21

20

ibid Supra note 1

21

24 CHAPTER 3 HISTORY OF CLINICAL LEGAL EDUCATION; A WORLDWIDE OVERVIEW (a) History of Clinical legal education in India Although there is no record of formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the King through his appointees who in turn were persons of known integrity and reputation of being fair and impartial. The pattern of legal education which is in vogue in India was transplanted by the English, after the establishment of their rule in India. In the early days of British settlement, the justice was administered by non-lawyers, and there was also dearth of law knowing solicitors, lawyers etc. This state of affairs continued up till 1773. With the establishment of Supreme Court at Calcutta in 1774, practice in law, as a profession came to be recognized, for the first time in India. Formal legal education in India came into existence in 1855 when the first professorship of law was established at the Government Ephistone College. As majority of the population was rural and illiterate, the need was felt to bridge the gap between the existing law and the uneducated masses crying for justice, by rendering importance to formal legal education. In the year 1857, legal education was introduced as a subject for teaching in three universities in the presidency towns of Calcutta, Madras and Bombay. Thus, a beginning of the formal legal education was made in the sub-continent. Initially, the study of the law was not exclusive and could be coupled with the study of arts. The system of legal

25 education, which was introduced, was simple in nature and hardly any standards or test of aptitude. For almost a century from 1857 to 1957, a stereotyped system of teaching compulsory subjects under a straight lecture method and the two year course continued. The need for upgrading legal education has been felt for long. Numerous committees were set up periodically to consider and propose reforms in legal education. The first commission of legal education of 1902, endeavored to improve legal education and recommended new methods to modernize it to meet new challenges of the ever changing society. The commission stated that legal education could be commenced only after passing the degree examination in arts or science and the course was reduced to two years instead of three. The University Education Commission was set up in 1948-49 and in the year 1949, the Bombay Legal Education Committee was set up to promote legal education. Later on the Bombay Legal Education Committee,1949 recommended a three year law scheme of legal studies which provided for two years at the university for a law degree followed by the third year spent in the study of professional examination ending with a professional examination conducted either by the Bar Council or by the Council of Legal Education, the 'establishment of which was proposed by it.22 The Committee recommended that the Lecture method should be supplemented by seminars or group discussions amongst a small group of students and teachers on some particular topic which was selected before hand and on which the students were expected to have had done some reading .Further, the Committee states: "the success of this method will depend on various factors, the important of them being the size of the class, the number of
22

The Bombay Legal Education Committee Report,1949,p.37

26 teachers in relation to the number of students, the time available to the students and teachers, the number of lectures and the number of subjects to taught. Group discussions should be held in each subject amongst a group of twenty to twenty-five students It was tried at Delhi university students but it failed because it was divorced from other necessary elements of the system and worked with a staff inadequate to the number of students. This system could not yield any useful results because a proper ratio was not, maintained between the students and the number of teachers capable of stimulating a students interest. The committee also suggested that moot courts and moot trials should be conducted regularly for the future training of the lawyers. In the year 1951 the need was felt for a unified All India Bar which will facilitate a sense of unity among the legal professionals and the same was the need of the hour .In furtherance of this much felt need the All India Bar Committee was constituted by the end of December 1951. The All India Bar Committee made certain recommendations in 1951. Further this committee soon after coming into operation submitted its report on March 30, 1953. It recommended that the minimum qualification for admission to the roll of advocates should be a law degree obtained after at least two years study of law in the university after having first class graduated in arts, science or commerce and a further apprentice course of study for one year in practical subjects. The law students were required to complete certain courses on procedural subjects offered by the State Bar Councils and acquire practical training for over a year under apprenticeship in the chamber of a senior lawyer In 1954, XIVth Report of the Law Commission (Setalvad Commission) of India discussed the status of legal education and recognized the need for reform in the system of legal education. It

27 depicted a very dismal picture of legal education. It was only from 1958, that many universities switched over to three year law degree courses. In fact, in 1958, when the Law Commission voiced its concern there were hardly 43 institutions preparing 20,519 students for law examination. In 1959, the law commission of India submitted a report about the state of legal education in India at that time. The commission made a plethora of observations and recommended that lectures should be supplemented by seminars or group discussions. Further tutorial methods and American case method of teaching should be adopted in India. Those who wish to join the legal profession should be required to work with experienced lawyers and maintain diaries and the apprentice course should be of one year duration. Minimum attendance should be strictly complied with and importance of moot courts and mock trials was emphasized by the commission and stated that apprentices should be subjected to a very stiff practical test. Moreover bar council should arrange for lectures for the benefit of students pursuing the course. Empowered by the Constitution to legislate in respect of legal profession, Parliament enacted the Advocates Act, 1961, both on the aspect of legal education and also regulation of conduct of legal profession and which brought uniformity in the system of legal practitioners in the form of Advocates and provided for setting up of the Bar Council of India and State Bar Councils in the States. Under the Act, the Bar Council of India is the supreme regulatory body to regulate the legal profession in India and also to ensure the compliance of the laws and maintenance of professional standards by the legal profession in the country. The Advocates Act, enacted in 1961, became the Patriarch of the Legal Education system presently in existence.

28

After enactment of Advocates Act, 1961, it was noticed that there was a mushroom growth of sub-standard law schools, with hardly any regard to the quality of legal education. Admission to these law schools was easy. The Bar Council of India Rules, inducted under The Advocates Act 1961, lays down the curriculum for imparting Legal Education throughout India and said Bar Council of India Rules have been governing the procedural aspects of Legal Education, including, but not restricted to the subjects to be taught, mode of examination to be conducted, the various Degrees to be conferred on successful students and the like. To this regard, the Bar Council of India prescribes the minimum curriculum required to be taught in order for an institution to be eligible for the grant of a law degree. The Bar Council also carries on a period supervision of the institutions conferring the degree and evaluates their teaching methodology and curriculum and having determined that the institution meets the required standards, recognizes the institution and the degree conferred by it.23 During the later nineties it as felt that the apprenticeship system was neither helping the profession nor the fresh lawyers but was rather adding to the frustration of the lawyers. Thus it was abolished in 1967 along with the bar examination. The abolition of the apprenticeship system was justified as the arrangement was unsatisfactory because of the lack of integration between the University education in law and the practical training. The Bar examination and the system of apprenticeship were not organized in a manner to provide the best educational and professional experiences to the new entrant to the Bar. The Bar Council of India
23

http://lawmin.nic.in/la/subord/bcipart4.html

29 in consultation with the universities devised a new curriculum uniformly applicable throughout India under which the necessary practical training was to be imparted by the universities themselves in the course of the three year law education. But again the performance was very unsatisfactory. Under the scheme of legal education introduced in the late 1960s practical training as such was not included as a compulsory part of the law programme. Courses such as Civil Procedure, Criminal Procedure, Evidence, Minor Acts, Conveyancing and Pleadings were being taught mainly through the lecture method and examined through annual written examinations like other courses. It was possible that a practice- orientation was given to the teaching of these subjects by the sheer accident of being taught by a prasticizing lawyer employed as a part-time teacher. However, parttime teachers also adopted generally the lecture method and the student had no active, participatory obtaining in clinical courses. There was hardly any exposure to legal research and legal writing. In the absence of the case method of teaching and class discussion, even opportunities for developing analytical faculties and reasoning capabilities were inadequately provided in the curriculum. The term clinical education was not even talked about in academic circles or referred to in the literature pertaining to law study. Because of the traditional separation between legal education and practical training the first remaining with the universities and the second with the Bar, it did not appear necessary for law teachers -to-develop a clinical methodology and integrate it with the law curriculum. The structure and status of legal education obtaining during this time also did not permit the same to be taken as professional training for the Bar. It was only by 1967, that it became onerous task for the three year law colleges to include procedural subjects into the curriculum of

30 their law school. The monologue lecture scheme adopted in law schools, where practical training is either totally neglected or marginally implemented at the level of Moot Courts, Court visits and legal research will not make good lawyers in todays scheme of legal education. Nevertheless, some universities did make an honest effort to impart clinical experiences to LL.B students by organizing moot courts, mock trials, legal writing exercises, advocacy' courses and court visits as optional, co-curricular activities. 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 LL.B. degree. There was no attempt to integrate the clinic with the curriculum excepting perhaps some support derived through the introduction of an optional course called Law and Poverty" in the second year which carried a clinical orientation .The clinic continued to attract some students every year and it diversified its programmes creating a lively interest in clinical programmes amongst an increasing number of faculty members and students. Every year the clinic organizes a week-long orientation course informing the students of the clinics' programmes and encouraging

31 them to participate voluntarily. The programme continues to be voluntary and extra-curricular even today. Delhi Legal Aid Clinic despite being a purely extra-curricular activity did accomplish some impressive results during the recent past. Two Lok Adalats were organized in Delhi in 1985-86 by the clinic in collaboration with Delhi Legal Aid and Advice Board. Over 150 students were involved in this project another set of students assisted in reaching legal services to the victims of the Bhopal- gastragedy .In collaboration with the Department of Adult and Continuing Education, students and teachers of Campus Law Centre now support legal literacy projects amongst the students of several under-graduate colleges of Delhi University and through those students in as many communities in the Union Territory. These activities cannot be called clinical education as such. They are not structured that way; nor are they included in the law curriculum. Supervision is marginal. Though they do contribute to the learning experiences of a few law students in a clinical setting, they lack the academic frame-work for self-directed education. They are more service-oriented programmes which desperately seek academic recognition from the faculty and curricular planners. Aligarh Muslim University Aligarh Muslim University introduced in its third-year LL.B. class a course on "Advocacy" which introduces students to fact investigation, legal research and writing, court procedures, litigation strategies and issues of professional ethics. However, it does not go far in introducing clinical methodology in terms of self -directed learning on the part of students. In 1985-86, AMU organized few legal aid camps and helped organize a Lok Adalat .A legal aid clinic in the law school is said to be working with limited programmes.

32 Banaras Hindu University 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.

33 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 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 academic and 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

34 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. Bar Councils' new pattern of Legal Education The Bar Council of India gave a fresh look to legal education at an All India Seminar held at Bombay in 1977 attended by the Universities and State Bar Councils. On the basis of the recommendations of this Seminar, a dialogue was initiated by the Council with the Universities teaching law which eventually, in 1982, resulted in a new 5-year integrated professional programme after 10+2 school education. Two important features of the new pattern of legal education which was to come into force from the year 1987-88 are the introduction of a two-year Pre-law Study consisting of several social science courses, and a six month intensive compulsory clinical education (Practical training programme) in the final two years comprising of course equivalent to four papers of 400 marks. The Rules framed by the Council suggested to the universities that law schools and law colleges should provide adequate teaching and examination on practical aspects of lawyering. It recommended that these skills may be imparted through exercises in pleadings and conveyancing, Legal Method courses, Court visits and Moot Courts and through active participation in Legal Aid Clinics. The Bar Council of India desired every college of law imparting professional legal education to set up a Legal Aid Clinic according to the model proposed by the Committee for Implementing legal Aid Scheme (CILAS) of the Government of India. The Bar Council also introduced a course of Law and Poverty" as an optional subject in the revised curriculum for which it took the initiatives, in collaboration with CILAS, to put together teaching materials.

35

Committee for Implementing Legal Aid Schemes While the Bar Council of India was in the process of restructuring legal education giving a prominent place to "Practical Training", another parallel development on the legal aid front brought about fresh thinking on the role of law school in the delivery of legal services, particularly to the weaker sections of the community. Two major reports on Legal Aid24 submitted by Government appointed expert committees in 1973 and 1977 called for extensive involvement of law teachers and students in the legal services programmes outlined in them. Both reports devote a full Chapter to "Legal Aid Clinics in Law Schools" and have advanced convincing arguments on why law students should be exposed to clinical methods of learning law in order to impart better education and to develop better professional services. The following observations25 extracted from these reports make it clear beyond doubt that clinical methodology supported by legal aid-related activities provide the most viable and effective strategy for improving standards of professional legal education: "There is a continuing controversy among legal educators in India regarding the goal of legal education. One section holding it to be strictly concerned with producing legal practitioners who are experts in litigation oriented skills, while another section advocating a wider role in which the lawyer is equipped with divergent skills, perspectives and tools with a view to making him a policy maker, administrator or social engineer. The latter group contends that with the fast changing socio-economic structure and methods of social ordering and conflict management, the traditional role of the lawyer
24

Processual Justice to the people: Report of the Expert committee on Legal Aid, Govt. of India, May 1973 25 Report on National Juridicare, pp. 66-74.

36 is of diminishing value and the new role of the lawyer in the society calls for skills, knowledge and techniques far more diverse and comprehensive than those possessed by the traditional lawyer. This divergence in objectives is bound to produce difference in the content and methodology of legal education. But one thing is certain, and there are no two opinions about it that there is need to reform the system of legal education in the direction of making it poverty oriented, multi-disciplinary and related to actual social conditions. The introduction of legal service clinics in law schools as part of curricular instruction in professional education is the natural answer to the vexed question of building up a cadre of poverty lawyers competent to run a nation-wide legal services programme. The programme of student participation in the legal services clinics would ordinarily involve interviewing applicants for legal aid, preparing detailed reports on these interviews, research into legal issues raised, drafting of pleadings and such further pre-trial preparations as the programme director may think fit . The student gains exposure to actual cases and to the lawyers' problems in dealing with litigants. He gets the opportunity to develop skills of interviewing and a critical analysis of legal problems. He becomes familiar with the intricacies of court procedure and court-craft by taking part in pre-trial preparations, such as drafting of pleadings and watching actual conduct of cases. In addition, litigation strategy, the crucial skills of examination and cross- examination of witnesses, the handling of evidence, the skills of oral advocacy- all these come within the scope of his education. It is true that these, practical skills could also be learnt by him when he starts practice, but that would be by a process of trial and error, and at the cost of the litigant. But in a programme of clinical legal education in legal services clinics, these skills are acquired by the law student under proper supervision by experienced law teachers and practitioners

37 whose primary task is to educate the law student while at the same time guaranteeing that the clients served by the law student receive the highest standard of professional service. The essence of a clinical education programme is supervision so that the student learns and acquires the practical skills in a proper and satisfactory manner. It is better that a law student should acquire the skills necessary in the legal market place and also develop his personal outlook towards his role as a lawyer while he is still a student when he can draw upon the advice and experience of the law teachers and practitioners in a relatively quiet and untroubled atmosphere, instead of acquiring such skills and developing such outlook in the market place under the pressures of economic necessity and professional rivalry. The above excerpts from the National Juridicare Report submitted by two eminent judges of the Indian Supreme Court read like a memorandum prepared by a curriculum reform committee of an Indian law school. The Report further presents many persuasive arguments why and how clinical legal education and student work on legal aid clinics can help develop a professionally significant and socially relevant legal education. As clinical legal education since 1977 (the year in which the National Juridicare Report was submitted) has been influenced and patterned on the lines recommended by the Report, it is appropriate to recall some of the other observations26 of the Committee on clinical legal education: The legal services clinic would be able to develop social and humanistic attitudes and motivations in the law student which would equip him to be a better lawyer of the poor when he comes out of the University. It would, therefore, be seen that the establishment of legal services in law schools is absolutely imperative both from the point of view of imparting. The clinical legal education to the law students as also from the point of view of
26

National Juridicare Report, pp 67-70

38 creating a service-oriented cadre of lawyers who will be dedicated to the cause of juridicare. There has been almost unanimous opinion in the country in favour of participation of law students in the legal services programme through legal services clinics. We fully endorse this opinion and strongly plead for establishment of legal services clinics in law schools." The Legal Aid not only canvassed for the establishment of clinics in law schools but also recommended that funds be provided from the State and Central Legal Aid Boards/Committees for the effective functioning of law-school legal aid clinics. Funding law school clinics was considered very much the function of the legal aid authority in as much as it served a dual purpose of clinical legal education: creating a socially sensitized cadre of lawyers and delivery of a variety of legal and para-legal services to people who would otherwise be denied the benefits of laws. The committee in this regard was so impressed by the results of the few experiments initiated at Delhi and Banaras law schools that it recommended the amendment of the Advocates Act to allow senior students under supervision to represent clients in courts in certain matters. According to the Committee27 One of the important reasons for the quick expansion of the student's legal services programme in the United States is the statutory adoption of students Practice Rules in most of the States enabling law students to appear in courts on behalf of poor clients. Even in India suitable provision can be made in the Advocates Act so that students of third year LL.B. class who are participating in the activities of the legal services clinic and who have been certified by the Dean or the Principal, shall be entitled to appear in any court or tribunal on behalf of a poor person, provided, of course, that such representation shall be under the supervision of lawyers
27

National Juridicare Report ,p.72

39 associated with the legal services clinic and with the approval of the judge in whose court the student appears. We feel that a provision, somewhat on the following lines, may be added after Section 37 in the Advocates Act: Section 37-A : Legal Aid by Law Teachers and StudentsNotwithstanding anything contained in the preceding section, the following categories of persons may appear in any Court or tribunal on behalf of an indigent person, if the person on whose behalf an appearance is to be made has requested in writing to that effect : (i) Teachers of a law school which provides full-time instruction for the professional LL.B. degree and which maintains a legal aid clinic as part of its teaching programme where poor persons receive free legal aid, advice and related services: (ii) Students of third year LL.B. class of law school as aforesaid who are participating in the clinics activities and who have been certified by the Dean/Principal of the law school under rules made therefore by the law school: Provided that such representation in the case of students shall be under the supervision of lawyers associated with the said legal aid clinic and with the approval of the judge in whose court the student appears." The Report anticipated the need for a trained cadre of clinical law teachers throughout the country and asked for crash programmes for such training. For proper coordination and maximization of the educational experience of law students the Report recommended the creation of a National level council for legal services clinics, preparation of a manual for law school clinics and exchange of clinical law professors amongst different law schools. The National Council would have consultative status with the legal aid authority and would be financed by it. The Report also made another proposal under which the law students may be compulsorily required to do six months' internship in a legal aid

40 organization on a monthly honorarium of Rs. 250 in order to be eligible for enrollment as an Advocate. The legal aid movement acted as a catalyst in the evolution of clinical programmes as part of law school activity, and the Bhagawati-Iyer Committee Report (National Juridicare Report, 1977) provided the desired legitimacy and institutional support. The impact has been wide and decisive. Between 1979 and 1986 over sixty Universities/Colleges teaching law have set up legal aid clinics, some of them purely as voluntary, extra-curricular programmes and some others as part of the curriculum.28 During the late ninety seventies The Bar Council Of India Trust was created and the object of the trust in relation to the clinical legal education is to organize seminars, symposia and extension, lectures on various law subjects at different places in India and of the said purpose to engage eminent jurists, advocates , teachers etc. With a view to further achieve the goal of clinical legal education the National Law School of India (NLSUI) was established in 1987 and its one of the objective is to promote clinical legal education. Rules on Legal Education have been amended from time to time which were incorporated in the pre-existing regulations. There were demands for a consolidated latest version of the Rules under Part IV on standards of Legal Education and Recognition of Degrees in Law for admission as Advocates from Universities and Colleges teaching Law in the Country. In response to popular demand, the Bar Council of India published the Rules in its final shape as applicable from 3011-1998.The minimum qualification for being an advocate is an LL.B Degree, generally a three year course, which can be obtained after graduation in other disciplines. A debate as to its efficacy in the recent past led to a proposal of five years integrated course after
28

Clinical Legal Education By N.R. Madhavan Menon, pp. 238-240

41 intermediate (10+2) examination. The three year course itself came to be restructured into a semester system and several papers came to be included and excluded as per the Bar Council Guidelines. Hence, the Council today allows both the 3 year course and 5 year course to continue. The U.G.C has in the course of time evinced interest in improving legal education and has taken various steps towards that end, through adequate funding, creation of senior posts and other means. Further the report of the UGC's Curriculum Development Centre in Law further helped in the evolution of clinical legal education. As we can see from above falling standards of legal education and legal profession and making legal education more 'modern' and 'contemporary' to make it 'socially relevant have been the subjects of concern for long. The principal 'moments' or trends have been summed up in the Report of the UGC's Curriculum Development Centre in Law (CDC) as follows: In the first phase (roughly 1950-65), the principal theme was how best to transform legal education away from the colonial heritage, and in a way to Indianise it: in the second phase (roughly 1965-75) the emphasis was on sound reorganization of curricula and pedagogy towards professional legal education; in the third phase (1976-88) the focus shifted to 'modernization' of law curricula so as to make these increasingly relevant to the problems of a society and state in deep those of transition. The CDC suggested a course on Practical Training in Law in addition to other twelve core courses. While the Report contains detailed contents of all the other twelve courses, the details of Practical Training were absent. But in its additional report the CDC had pointed out what a course on practical training had to integrate

42 However, it was felt that an adequate programme for practical training can only be formulated after a social audit of the present programmes is undertaken to enable it to identify specific remedial measures to bring the programme in line with its objectives. It adopts the assessment of existing programmes as a priority task for its continued further activities. Furthermore the Ahmadi Committee Report further provided for modernization of legal education. The Ahmadi Committee Report which contains extracts of letters of the Chairman, Bar Council of India and Chairman, University Grants Commission, and views of Chief Justices of various High Courts in the matter of Legal education. Various suggestions were given regarding the courses of study, attendance, entrance examination, final examination, the lecture method, case method, problem method, constitution of committees and membership, and need for apprenticeship and Bar examination. The Ahmadi Committee Report dealt elaborately with the methods of teaching. It referred to the case method" introduced by Prof. Langdell of Harvard University and to the problem method" pioneered by Prof. Carl Llewellyn and Judge Jerome Frank and the Notre Dame Law School. Though the scheme of apprenticeship was struck down by the Supreme Court as ultra vires the rule making power of the Bar Council of India under the Advocates Act. This was held in the case of V. Sudeer vs. Bar Council of India and another.29 The question was whether, having regard to the legislative history which revealed that the Training was part of the mandate in the Act, the same could not be reintroduced by way of a Rule by the Bar Council of India.

29

JT 1999 (2) SC 141 at 171

43 The court held that once the relevant statutory provisions in sec. 24(1)( d) or in the proviso thereto were deleted and also when the subject of Training which was one of the items enumerated in clause (b) of subsection (2) of sec. 28, (sec. 28 being the section relating to rule making), was deleted in 1973, the Bar Council of India could not have made any rule regarding Training and such a condition had to be introduced only by an Act by the Legislature. It was also held that it was for the State Bar Councils to introduce training and that the Bar Council of India could not by itself introduce the Training. It must be noted that the Supreme Court in V. Sudheer's_case merely considered whether the new Rules were ultra vires of the provisions of the Act. It did not say anywhere that Training was not necessary. On the other hand, it expressly endorsed the need for reintroducing training and accepted the recommendations of the Ahmadi committee As suggested by Honble Justice A.M. Ahmadi in the Chief Justices Conference held in 1993, There should be proper evaluation of papers in the examination. The students should be trained to draft pleadings at the college level. The standard of English should be improved. Under Rule 9 (1) to (4) of Section A, Part-IV of The Bar Council of India Rules (under The Advocates Act 1961) deals with the subjects to be covered to complete the respective courses. Section A, Rule 9 (4) (4) Six Months of Practical Training be imparted and Practical Training will include the following Compulsory Papers: 1. Moot Court, Pre-Trail Preparations and Participation in Trial proceedings. 2.Drafting, Pleading and Conveyancing. 3. Professional Ethics, Accountancy for Lawyers and Bar Bench

44 Relations. 4. Public Interest Lawyering, Legal Aid and Para Legal Services. In India the clinical legal education has been introduced in the courses of studies of all the National Law Universities and Law Colleges from the academic session, 1995-1996. This clinical course is classified in to two categories; (a) Foundation clinical course and (b) Optional clinical course. The foundation clinical course is compulsory for all the students of law where as the students are to opt for any two optional clinical courses as per the courses of studies of the University. The foundation clinical course is to provide training on client counseling, client interview, mediation, negotiation and trial advocacy. They are also to be trained in alternative dispute resolution mechanism and case planning. In the optional clinical legal education a student has to visit the courts and other dispute resolution bodies.
th

Furthermore in 2002 the Law commission in its 184 Report on The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956 recommended the following provisions:The Bar Council of India (BCI), under Section 7 (1) (h) of the Advocates Act, 1961, is empowered to promote legal education and lay down standards of such education in consultation with the Universities imparting such education. In this Report, the Commission has proposed that the University Grants Commission should constitute its Legal Education Committee consisting of various specified faculty members The Commission is also of the view that training of Alternative Dispute Resolution system should be given to law students, lawyers and judges, in view of the recent amendments to the Code of Civil

45 Procedure, 1908 (Sec.89) and observations of the Honble Supreme Court in Salem Advocates Bar Association v Union of India 30 for following the mandatory procedure. The Commission is of the view that there is an overwhelming need to reintroduce appointment of adjunct teachers from lawyers and retired Judges on part-time basis. In view of the Commission, it is necessary to impart professional training to the law teachers apart from the existing refresh course conducted by the UGC. Accordingly, the Commission has suggested establishment of at least four colleges by the UGC or by the Central Government in consultation with BCI, in the four corners of the country. The commission stated that several efforts have been made from time to time, to improve standards of legal education. The 14
th

Report of the Law Commission headed by Sri M.C. Setalvad is one of the best and elaborate reports on Legal education aspects and we propose to lay emphasis on Legal Skills and Values as adumbrated in the Mac Crate Report of USA.31 There are 10 chapters in the Mac Crate Report in Parts I to III. Chapter 5 of the Report refers to the Statement of Fundamental Lawyers Skills and Professional Values, Under chapter V(A) thereof, the legal skills referred are (1) legal research, (2) factual investigation, (3) communication, (4) counselling, (5) negotiation, (6) skills required to employ or to advise a client about the options of litigation and alternative dispute resolution mechanisms, (7) the skill to identify the administrative skills necessary to organize and
30 31

2002 (8) SCALE 146 Mac Crate Report of USA (1992) which is the Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, prepared by the American Bar Association

46 manage legal work effectively and (8) finally, the skill of analyzing the skills involved in recognizing and resolving ethical dilemmas. Professional values, according to the Mac Crate Report, include training in professional responsibilities and involve more than just the specifics of the Code of Professional Responsibility and the Model Rules of Professional Conduct; they should encompass the values of the profession, including the obligations and accountability of a professional dealing with the lives and affairs of clients. These values are many, such as, (1) the value of competent representation, analyzing the ideals to which a lawyer should be committed as a member of a profession dedicated to the service of clients, (2) the value of striving to promote justice, fairness and morality; the ideals to which a lawyer should be committed as a member of a profession that bears special responsibilities for the quality of justice, (3) the value of striving to improve the profession; explore the ideals to which a lawyer should be committed as a member of a self-governing profession, (4) the value of professional self-development, analyzing the ideals to which the lawyer should be committed as a member of a learned profession. The Report also refers to the relationship between the skills and the values. Chapter V(b) of the Report refers to Fundamental lawyers skills as follows: (1) Diagnosing a problem, generating alternative solutions and strategies, developing a plan of action, implementing the plan and keeping the planning process open to new information and new ideas. (2) Identifying and formulating legal issues, formulating relevant legal theory, elaborating legal theory, evaluating legal theory and criticizing and synthesizing legal argumentation.

47 (3) knowledge of the nature of Legal Rules and Institutions, knowledge of and ability to use the most fundamental tools of legal research, understanding of the process of devising and implementing a coherent and effective research design. (4) determining the need for factual investigation, planning a factual investigation, implementing the investigative strategy, memorializing and organizing information in an accessible form, deciding whether to conclude the process of fact gathering, evaluating the information that has been gathered, assessing the perspective of the recipient of the communication; using effective methods of communication. (5) Establishing a counseling relationship that respects the nature and bounds of a lawyers role; gathering information relevant to the decision to be made; analyzing the decision to be made; counseling the client about the decision to be made, ascertaining and implementing the clients decision. (6) Preparing for negotiation, conducting a negotiating session, counseling the client about the terms obtained from the other side in the negotiation and implementing the clients decision. (7) Advise the clients about the options of litigation and alternative dispute resolution, and have a fundamental knowledge of (a) Litigation at the trial-court level (b) Litigation at the appellate level (c) Advocacy in disputes between and Executive Forms (d) Proceedings in other Dispute Resolution Forums

48

(8) skills of efficient management such as formulating goals and principles, developing systems and procedures to ensure that time, effort and resources are allocated efficiently; develop system to ensure work is completed at the appropriate time; develop system or procedures to work effectively with other people, develop system and procedures for efficiently administering the law office. (9) keep familiar with nature and sources of ethical standards, the means by which ethical standards are enforced, the processes for recognizing and resolving ethical dilemmas. The Mac Crate Report says that law schools and the practicing bar should look upon the development of lawyers as a common enterprise, recognizing that legal education and practising lawyers have different capacities and opportunities to impart to future lawyers the skills and values required for the competent and responsible practice of law. Each 58 law school, the Report says, should determine how its school can best help its students to begin the process of acquiring the skills and values that are important in the practice of law. Law schools should be encouraged to develop or expand instruction in such areas as problem solving, fact investigation, litigation. The Lecture method and Case method: Methods of teaching have been changing from time to time. The time old method of lectures was supplemented by the case method introduced by Prof. Langdell in Harvard in 1911 and these have been supplemented by the problem method later. Problem method: communication, counseling, negotiation, and

49 The problem method of teaching is today considered more important than the other two methods. The American Association of Law Schools (AALS) in their 1942 Report stated as follows: The merit of the problem method is that it more effectively forces the law student to reflect on the application of pertinent materials to new situations and accustoms him to thinking of case and statute law as something to be used, rather than as something to be assimilated for its own sake. Training and Apprenticeship Before the Advocates Act, 1961 was enacted, there was a system by which a law graduate had to undergo training by way of apprenticeship in the chambers of a lawyer for one year and pass a separate Bar examination conducted by the Bar Council on the subjects of the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1898. It was only after a law graduate successfully completed his apprenticeship and the Bar examination that he became eligible to be enrolled as an Advocate After the Advocates Act, 1961 came into force, the procedure for apprenticeship was continued by virtue of clause (d) of subsection (1) of sec. 24. (The enrolment was, however, to be before the enrolment committee of the State Bar Council.) That clause required the graduate in law to undergo a course of training in law and pass an examination after such training, before he could be enrolled. Certain categories of persons were exempted under a proviso to the said sub-clause. In the year 1964 there were certain amendments to sec. 24 but it is not necessary to refer to them in as much as in 1973, by Act 60/73, clause (d) of subsection (1) of sec. 24 was omitted and the amendments made in 108 1964 to the proviso were also omitted. The result was that after 1973, there was no requirement of the training or the Bar examination.

50 Yet another amendment related to the rule making power of the State Bar Councils. In sec. 28 (2)(b), the clause permitting the State Bar Council to make rules regarding the training and Bar examination was also deleted by the same Act 60 of 1973. The Supreme Court considered the question in V. Sudheer vs. Bar Council of India 1999 (3) SCC 176 whether, having regard to the legislative history which revealed that the Training was part of the mandate in the Act, the same could not be reintroduced by way of a Rule by the Bar Council of India. 109 The court held that once the relevant statutory provisions in sec. 24(1)(d) or in the proviso thereto were deleted and also when the subject of Training which was one of the items enumerated in clause (b) of subsection (2) of sec. 28, (sec. 28 being the section relating to rule making), was deleted in 1973, the Bar Council of India could not have made any rule regarding Training and such a condition had to be introduced only by an Act by the Legislature. It was also held that it was for the State Bar Councils to introduce Training and that the Bar Council of India could not by itself introduce the Training. In this connection, we may point out that in several countries across the world, a graduate from the Bar is not permitted to get enrolled and practice straightaway. There is a period of training between one year or more. In some countries it even extends to 5 years. Today, an advocate in India, once enrolled, can directly address even the Honble Judges in the Supreme Court of India. We do not think that in India we should allow the law graduates to address any Court straightaway without further training and a Bar examination. We may next refer to another aspect of the matter. In a recent judgment in All India Judges Assn. vs. Union of India, 2002 (3) Scale 291, the Supreme Court issued a direction that law graduates from college must be enabled to directly enter the Judicial service at the lowest level instead of being required to have a minimum

51 experience of 3 years at the Bar but that after entering service, they should be given one years training. We have referred to the above judgment of the Supreme Court in the context of the question relating to training. If in some States law 120 graduates are proposed to be recruited straightaway as observed by the Supreme Court, at least a one-year apprenticeship and Bar examination before enrolment, would be certainly advantageous and, in fact, will be necessary. It was thus recommended by the commission report that the clinical legal education may be made a compulsory in legal education. The Central Government should start at least four colleges in the country for providing professional training to law teachers in consultation with the Bar Council of India and the University Grants Commission. Training for one-year (Apprenticeship) in the Chambers of a lawyer with at least ten years standing and Bar Examination to be introduced for a law graduate before he enters the legal profession, by amendment of the Act. Power to do so to be vested only in Bar Council of India. Sections 7, 24 and 49 to be amended.
32

Thus starting from a modest beginning clinical legal education has come a long way but still much needs to be done towards increasing the scope of clinical legal education in the field of legal education in India (b) HISTORY OF CLE IN FOREIGN COUNTRIES It is often debated whether academic and professional training aspects of legal education should be separated and undertaken by

32

http://lawcommissionofindia.nic.in/reports/184threport-PartI.pdf

52 different bodies. The modern view is that the two are inter-related and should be taught together rather than separately.33 The 1960s, 1970s, 1980s and 1990s saw the rise of clinical legal education in countries such as the United States (the United Kingdom, South Africa, Australia and others).In these early programmes clinical legal education was often designed to teach practical legal skills in a social justice context. This meant moving away from traditional, mainly knowledge-based, learning, towards the incorporation of skills and values in the law curriculum using interactive teaching methods. The objective was to engage law students in student-centered learning rather than relegating their role to that of passive recipients of the law teacher's perceived wisdom. 'Learning through doing' to teach legal knowledge, skills and values requires law teachers to forget unimaginative past practices and to motivate and stimulate the students to take an active part in the learning process. The clinical legal education started in the United Kingdom in the year 1970. The operation of legal clinic started at University of Kent. The Queens University Belfort provides a model for working with a number of advice centers. The Warwick University has adopted simulated clinical techniques. The Columbia Universitys professional law course uses simulated clinical methods to develop a critical approach to professional ethics. Similar developments have taken place in Australia, Canada, India, Malaysia, South Africa and south pacific. In Canada and Australia the Government have recognized the value of clinical legal education.

33

(See Australian Law Reform Commission, 1990 at para 2.81, American Bar Association, 1992, and Cooper, 2002.)

53

CHAPTER 4 PRESENT OVERVIEW OF CLINICAL LEGAL EDUCATION IN LAW INSTITUIONS There is no shortage of clinical experiences that are currently available to law students in India. Predominant among them are the Lok Adalats and legal aid camps; legal literacy projects; public interest litigation; direct representation of clients before selected courts ;tribunal and agencies; legislative drafting and community organising.34 In India, the legal education has retained, primarily confined to the surrogate aspects of the law. Though in recent years some advances have been made in clinical legal education. It was in Delhi in June 1972 that the very idea of a legal service clinic in the lawfaculty was born. The idea was given a concrete shape and provided the basis for the establishment of the students legal service clinic of the Delhi Law School. The faculty invited lawyers, judges, social workers, sociologists and law-teachers for having a discussion on wide range of subjects like law and poverty, legal and social responsibility of the profession, clinical legal education and sociolegal research, organization of the legal profession in India, the civil and criminal judicial processes, costs and delay in litigation, law students and legal aid etc. It was practically this initiative which received a wide support from all quarters and helped in consolidating the clinical education programme in the faculty. The clinic has been functioning since then and has handled many problems concerning criminal; matrimonial, civil, labour and of service matters. Similarly the Gujarat legal aid Committee felt that
34

Supra note 2

54 the association of law students in the task of rendering legal services would not only help the cause of legal services but also will give to the young students a scheme of identification and involvement with the cause of the poor. The Tamil Nadu Legal Aid Committee also observed in its draft scheme for the state that student legal aid clinics should be started wherever the facility existed in the law colleges. The same aspect was also emphasized by the participants in the National Legal Aid Conference held in New Delhi in 1970. In 1972, the XIIth All India Law Teachers Conference laid a great emphasis on clinical legal education and establishing some good legal aid clinics in the law colleges of the country. The principal objective of establishing Legal Aid Clinic in the law colleges have been to improve the standard of legal education and preparing the students for the practice of law by affording them an opportunity to develop such skills needed in a lawyer (a) Clinical Legal Education Programme at the National Law School of India University at Bangalore35 National Law School of India University was established in the year 1987 and is the first law institute in the country which holds the character of an "autonomous institution with 'Deemed University" status from the University Grants Commission. It is perhaps the one of the best examples of Bar Bench co-operation in the field of law in India today. Education at the National Law School is based on a rich heritage of legal thought and tradition provides depth and breadth of instruction which cannot be compared to legal education elsewhere in the country. The object of the school is not just limited to
35

preparing

conscientious

and

competent

members

of

the

Supra note 18

55 profession but also disseminate knowledge of law and legal processes in the context of national development. Law is taught to the students from a broader socio-cultural angle and development goals. Legal education is imparted to the students so as to inculcate the sense of responsibility towards the society and respect for human life besides developing in them highest standards of professional behavior and personal integrity. Law is taught as a professional discipline with emphasis on analytical and reasoning abilities as well as on practical skills, with the perspective of law as a socio-cultural phenomenon. Keeping in view that legal education cannot be completed with the law school alone; NLSIU makes an effort to develop in the student critical intelligence, humanistic values and a holistic perception of men and women in human evolution.36 In the first year curriculum at NLSIU, students are encountered with the vast array of legal problems in the context of varied social, economic awareness regime. The clinical method of legal education is an innovative method of teaching adopted by NLSIU which tries to integrate actual field work with Classroom instructions. The school endeavors to produce lawyers with a sense of social responsibility who can face new challenges posed to the legal profession from time to time .This clinical programme in NLSIU covers a wide range of activities which include simulation exercises, working on real client problems, legal aid clinic, legislative drafting, and a number of other programmes. The broad objectives of the clinical programmes at NLSIU are: and political processes which enables the to develop non-legal amongst the students towards

environment of legal issues and its management in the legal

36

www.bangalorebest.com/cityresources/Education/colleges.asp

56 1. To acquaint the students with the lawyering process in general and to equip them with the skills of advocacy in particular; 2. To expose the students to the actual social situations in which" the disputes arise so as to enable them to develop a sense of social responsibility in their professional work; 3. To be able to critically consume knowledge from outside the traditional legal areas for better delivery of legal services; 4. To understand the limits and limitations of the formal legal systems and to appreciate the relevance and use of alternate modes of lawyering; and 5. To imbibe social and humanistic values in relation to law and legal processes while following the norms of professional ethics. For achieving these objectives, the NLSUI offers wide range of compulsory as well as optional opportunities to students. In the optional course the students are imbibed with the techniques of: (a) Moot Court and Mock Trials; (b) Law Reforms projects and Competitions; (c) Legal aid support activities; (d) Placement programmes commencing from the second year other undergraduate degree course; (e) Work in the Centre for Women and Law and Human Rights course; and (f) Legal Services Clinic - Rural and Urban. Thus, the NLSUI is striving hard to promote excellence in imparting legal education and research. In pursuance of this objective, the University is organizing a Legal Services Clinic in its premises where legal and para-legal services are offered by the faculty members, students, retired judges, public-spirited lawyers and civil servants

57 including social action organizations. A Legal Aid Advisory Council and Faculty Programme Committees administer the activities of the Clinic. As a part a clinical education, the clinic helps in organizing moot court on socially relevant issues. It also includes law enforcement assistance project{a legal advice and preventive legal services programme, a law reform project, a public interest litigation support project, asocial audit of welfare legislations project, a social audit of welfare legislations project, a para-legal training programme}. Besides the general legal services programme of the Clinic, the NLSIU curriculum provides for clinical courses on specialized areas of legal practice where in the students can gather expertise on different branches of law requiring multiple approaches and knowledge from different disciplines. Another important feature of Legal Service Clinic is that the students are put under legal internship during the vacations with the law offices at different places in the country. 'Under the compulsory clinical courses, there are three clinical courses of 100 marks each. Out of three, two courses are simulation courses. The courses offered are: (i) Alternative Dispute Resolution Clinic; (ii) Special Clinic; and (iii) Trial Advocacy or Appellate Advocacy. In India, though the Clinical Legal Education has yet not gained momentum. The legal aid c1inic of the faculty of Laws of Delhi University established by Prof. Madhava Menon is perhaps the oldest clinic. The Delhi clinic operates in the same way as the law school clinics in the United States with the noted difference that in India neither the students nor the teacher participating in the programme can appear in the courts on behalf of the poor clients. The clinic provides free legal services in Court through a large

58 number of practitioners who are registered with the clinic. It is also engaged in research surveys so as to find out the legal needs of the poor and the nature and extent of legal services needed in the criminal cases. The Delhi law school has also introduced course like, "Law and Poverty and 'Law and Society" in the LL.B./LL.M. Curriculum which is expected to go a long way to add a new dynamism to the clinical education. Further, it is also carrying the mission of 'legal literacy' and 'on the spot legal advice.37 (b) Faculty of Law, Jamia Millia Islamia The Faculty of Law, Jamia Millia Islamia was established in 1989. Being the youngest of the Faculties of Jamia, over the last decade it has passed through various stages of development while having made significant progress towards becoming a notable center for legal learning in the capital. At the initial stages, a three-year LL.B. Course was introduced with an annual intake of 45 students, with a bare minimum of infrastructural facilities and a skeleton staff. The faculty has over the years grown into a full-fledged Faculty. The intake of students, presently 50, has been deliberately kept low, so as to give individual attention to each student and to maintain better standards of discipline and legal education. In its teaching methods, the Faculty of Law has adopted several innovative techniques including Lectures and Seminars with the help of the Overhead Projector, Case-Study methods, presentation of assignments and Moot Courts & with emphasis on Clinical Legal Education. In addition to the LL.B. Three Year Course, the Faculty is also running an LL.M. Four Semester Course presently in three streams, i.e., Personal Laws, Corporate Laws and Criminal Laws and a Ph.D. programme.
37

www.nls.ac.in

59 Besides the academic activities, the Faculty is aiming at an overall development of the personality of the students by giving adequate attention to co-curricular and extra-curricular activities through the Jamia Law Students Association with particular emphasis on Moot Courts, Debates and Extension Lectures involving crucial and controversial legal issues. With the growth of new vistas in Law and to respond to the challenges of law and technology and other political, economic and societal needs vis--vis law, the Faculty is steering to expand its horizon further towards excellence in legal education.38 The Faculty of Law, JMI fulfills its commitment to provide CLE through following methods:It has got Clinical Course as a compulsory subject in 4th year. The Clinical covers practical training like visiting of courts, research, moot court etc. It ahs all the necessary committees like moot court committee, sports The and cultural are activities sent committee the etc. to fulfill in the requirements of Clinical Education students represent University various competitions held by the university. Some of the achievements of this faculty are stated as follows:1) Third Highest Marks scored in the memorial at 6th Henry Dunant Memorial Moot Court Competition, held in September 2006 2) Second position held in VIIIth National Client Counseling and Interviewing competition, 2006 at Kerela Law Academy, Trivandrum in November 2006. 3) College team adjudged as the Champion team in National Consumer Law Moot Court Competition, 2007 at Rayat Law College
38

www.jmi.nic.in

60 4) Our team declared winners of ALL Delhi (NCR) Moot Court Competition 2007 at Law Centre Delhi University held in March 2007 5) 6) Our team participated in the MARG ULLS Quiz Competition at Our team participated in the XI Moot Court Competition 2007 at I.P. University and achieved II position Calicut, and secured 8th position. WE also received Best Researcher Award. 7) Our team participated in the 1st National Jamia Moot Court Competition, 2006 and won the Best Memorial Award Workshops and Seminars have been organized by the faculty from time to time towards enlightening the students and imparting best legal information possible. Moreover the faculty organizes Legal Services Clinics every year as part of Talimi Mela. From the above events and activities we can see that the Faculty does every possible thing to fulfill its commitment to provide legal education to its students (c) Faculty of Law, Delhi University

Delhi University, established in 1922, is one of the premier universities in India and perhaps among the largest in the world. In 1924, the Faculty of Law was established for providing legal education. The faculty has now three law centers, viz, Campus Law Centre (CLC), Law Centre-I (LC-I) at Chhatra Marg (north campus), and Law Centre-II (LC-II) at Dhaula Kuan. The Faculty has been running a legal services programme since the early seventies. The programme is sustained by the voluntary participation of the law students, teachers and lawyers who are inspired by the legal aid ideals. The main objective of the legal services programmes is to

61 impart clinical legal education, provide social service opportunities, and impart socially relevant legal education. The faculty has a comprehensive programme for clinical legal education with a view to undertake activities such as moot courts, legal aid services, legal awareness and development of professional skills for the students of all the three law centers, in addition to curricular course on clinical legal education and practical training.39 (d) The University Law College, Bangalore University The experience and exposure to various facets of academic and clinical legal training at ULC is unparalleled. Recognizing the necessity of experiential learning, ULC has developed a stateofthe art clinical program offering students an opportunity to be associated with the legal profession through internships, mandatory trial-court visits, legal-aid programs, model parliament and moot court activities. Legal education at ULC equips the students for the complete spectrum of career opportunities available to lawyers, and provides them with the capability to adapt to the rapid pace of change that characterizes modern legal practice The National Law School, Bangalore is said to have prepared a new curriculum in 2001 based on the Mac Crate and Harvard curriculum, with modifications suited for Indian conditions40 (e) Other Colleges in India41 This experiment has been followed in some more universities and law colleges in the various States. In Assam legal aid clinics have been in operation in as many as eleven law colleges of the State. In the Union territory of Pondicherry, the legal aid clinic is functioning

39 40 41

http://en.wikipedia.org/wiki/Faculty_of_Law,_University_of_Delhi http://en.wikipedia.org/wiki/University_Law_College ibid

62 in the premises of court building and legal aid cell is operated from the Government Law College. There are more than sixty law colleges in the country which have legal aid clinics in operations. In some places, they have been integrated with the law curriculum and students are regulated by academic grades for their services. The experiment has also helped in building a true professional approach in law students and help in inspiring the idea of service to the community for doing justice to the door. The central committee for implementing legal aid schemes has so far not succeeded in evolving an appropriate model for institutionalizing clinical legal education effectively throughout the country. Though the Bar Council of India has made some attempts in re-structuring of the courses for legal education including practical training for the law students but it is too early to make an appraisal about the success rate of this newly envisaged programme of legal education to be introduced in the l8 law colleges from the academic session 199899. (f) Clinical Legal Education in Foreign Colleges There have been clinical work in law colleges or law departments through moot courts, mock-trials and other related programmes in advocacy. In the United Kingdom, initially there was no idea of clinical education. However, during the last century, the need for teaching some of the basic discipline and courses was considered as essential to make the persons a lawyer. In the United States of America, Ceylon, Indonesia, Zambia, Chile and Costs Rica, the legal service clinics are performing variety of functions and the law students have made significant contributions to the success of the

63 legal service programme by rendering direct assistance to the weaker sections of the Community.42 The entire scheme of clinical legal education is of recent origin it would be appropriate to examine some of the models of legal aid clinics operating in some of the foreign countries. In Zambia, the Practice institute came to be established in 1968; the traditional apprenticeship was not providing adequate opportunities for Africa to qualify for practice. The institute designs courses for law graduates to enable them to find an entry in the professional market. The methodology adopted is very interesting. The instructor himself takes the place of a client and allows him to be interviewed by the students. They take instructions or explain a legal problem to the client. This method gives the student the practical experience they require. This venture is running successfully in Zambia. In Costa Rica, there is a compulsory participation of students in legal service programme towards the end of their law school courses for about 22 months. In addition to their Traditional course work Legal Aid clinics are headed by Attorney Directors. The duties of the students include receiving and interviewing the clients, collecting the factual data and preparation of all documents required for submission to courts, under the supervision of the director of each legal aid clinic. The University of Costa Rica is the only agency which provides for an organized scheme of clinical legal Education and legal services to the poor.

42

http://www.numyspace.co.uk/~unn_mlif1/school_of_law/IJCLE/docs/full_abstract _list.doc

64 In Sri Lanka, the students legal aid programme at the Ceylon law college, has been in operation since 1970. The programme involves final year students and those serving their compulsory apprenticeship. The Colombo Legal Aid Centre interacts in running the programme and once in a fortnight each student is required to interview legal aid applicants at the above Centre or in one of the prisons in Colombo area. However, students cannot themselves appear in the court. At the law college, a research-cell has been established and the programme is funded by the governing body of the law college. In Canada, the system of legal aid has been made part of course study and the student can undertake the courses, on a voluntary basis. In as many as eight of the provinces law students are participating in the running of legal service clinics. The basic objective is to meet the unmet legal needs of the poor and also, to provide an opportunity to the students to develop in themselves the necessary legal skills required for the profession. The government gives substantial grants to the clinics run by the law schools. In United States one finds a large variety of models for law school of clinics. One common type is the clinic located at the law school where students handle cases for indigents, under the direct supervision of a practitioner. They interview clients and follow up their cases even in courts where the rules permit. The neighborhood law office, established under the Economic Opportunity Act of 1964 and operated under several staff attorneys also provide an opportunity for students participation in legal aid work. This system has been continued even under the Legal Aid Corporation Act, 1974. There are also clinics sponsored by a law-agency to solve the individual problems of its members or other poor people the other model is the law reform Institute. A law school legal aid clinic can be converted to this model by eliminating the general service function. Then there are law-students Internship Programmes with

65 a governmental or a private agency like Municipal Board, Consumer Council, State Department of Foods and Drugs etc., where students undertake specific tasks including field investigation. Each of these clinical programmes have a goal of public service coupled with legal education for responsibility. Many states in USA have passed statutes enabling students participation in court-proceedings.43

43

LAW REFORM AND LEGAL EDUCATION: UNITING SEPARATE WORLDS* Michael Coper

66 CHAPTER 5 LACUNAS IN CLINICAL LEGALEDUCATION AND ITS FUTURE PERSPECTIVE (a) Lacunas in CLE Even though, in tune with the time, Clinical Legal Education holds an indispensable position, still its acceptance, existence and development in present legal education system, is at its nascent stages. Albeit the Bar Council of India, constituted under the Indian Advocates Act, 1961, is endowed with the responsibility by Parliament to prescribe and maintain the standards of legal education in consultation with State Bar Councils and universities teaching law, the curriculum adopted at various law schools has not been structured to give adequate time for clinical training programs. The divergence between law in books and law in action calls to strike a balance between the law curriculum and the teaching methods. The monologue lecture scheme adopted in law schools, where practical training is either totally neglected or marginally implemented at the level of Moot Courts, Court visits and legal research will not make good lawyers in todays scheme of legal education. Most of the Universities due to lack of infrastructural support and lack of funds have failed to establish a clinic in the Law Schools which would facilitate the students to carry out experimental learning of law. It is pertinent that the University Grants Commission facilitates, by funding, the establishment of functional clinics and for promoting the programs like Lok Adalats, legal aid and legal literacy, client interviewing and counseling etc. Even those law schools where the clinics do exist, the results are fruitless, for the reasons of lack of resource faculty who have the competence and knowledge in clinical training. The teachers

67 associated with the clinical education should preferably have some practical experience in law. Association of retired judicial persons, as visiting faculty would be instrumental in selecting suitable clinical experience for the students and enhance amongst the students the commitment to learn. Other constraints that curtail the law schools to foster higher standards of clinical legal education is the high teacher student ratio. Law being an interactive discipline there should not be more than 20 students to 1 teacher, so as to ensure adequate supervision, right guidance and extensive practical learning. There should be regular refresher courses organized by the authorities - 'training the trainers' which would consequently, help in developing among the students, the aplomb which every advocate should possess. Notwithstanding the professional and educative advantages of the legal clinic, there are several obstacles in the way of introducing them in law schools in India. Some of the problems which can be identified right away are the following44: (I) Absence of a sufficiently long tradition of legal services to the poor and the institutions thereof in the country. It is not just a problem of integrating the law school clinic with an already existing legal services programme but organizing the legal aid apparatus from almost nothing. (2) Almost total absence of qualified clinical professors with commitment to the cause of legal aid and clinical training. Proper and competent, supervision is the most important element in transforming experience into education in clinical work. In the absence of devoted supervisory staff, the programme can run into difficulties and may even cause more harm than good.
44

Supra note 1

68 (3) The deplorable state of legal education generally in all its departments, curriculum, methods of teaching, examination system, admission policies, library facilities and teacher selection. Many law colleges are mere "teaching shops" run on business lines with marginal social utility and professional value. (4) Neglect of legal education by the profession as well as indifference and apathy on the part of the government and the public. (5) Existence of a large number of part-time law colleges where students, most of them already in employment and without any desire for a legal career, attend in person or by proxy few hours every week in the morning or evening to complete their course requirements for a law degree. Involvement of these part-time students in clinical work is normally difficult except in those cases where the nature of work they are employed in has relevance to law and legal aid. (6) Non-availability of funds even for the minimum needs of a professional school. The question of adequate funds for the legal services clinics is likely to meet with disfavor by University administration everywhere unless an all-India policy is evolved and implemented by the University Grants Commission and the Bar Council of India. (7) Unwillingness to experiment with inter-disciplinary programmes and collaborative teaching amongst professional institutions. (8) Lack of sustained student motivation in legal studies largely borne out of the bleak employment prospects, the frustrations of

69 the junior bar and the intellectually hollow programme of legal education presently available. (9) A general impression in the public mind that students are irresponsible, immature, unsympathetic and cannot handle a legal problem competently even under supervision. (10) Lack of appreciation of talents, idealism and commitment of students on the part of the University community and absence of recognition therefore. Besides the above difficulties there exist the perennial problems. which continue to worry the promoters of clinical legal education everywhere, namely, the method of effective supervision, the mechanics of integrating clinical programmes with the general courses of study, the mode evaluating student performance, the proportion and relationship clinical study with other academic and theoretical courses, enforcement of standards of professional ethics and rules of student practice' the relation of law school legal aid clinics with the general programme. (b) Future of the Clinical Education Prof. Kenneth L. Penegar found a bright future for clinical education in law and summed up his assessment stating45: It seems to me the future challenge of clinical education is not just an integration of theory with practice as important as that idea is, it is not just service to the poor and others ill-served by lawyer and legal institutions and important as that is. Rather it is to find and develop
45

new

distinctions,

new

conceptions

of

practice

and

Supra note 15

70 professionalism in which new definitions and conceptions give

proper scope, proper reflection to the complexities of our age, To teach the idea differently, it seems to me the clinical educator is in a unique position, and because of that position, has a unique responsibility to bridge the gap between law and its traditional conservatism on the one hand and the frankly pragmatic, spiritual idealism of many of its practitioners including the future lawyers who sit at your feet through three years of law school. The Bar Council of India has made tremendous changes in the course & syllabus of LL. B and is started to teach from this session Clinical legal education is also included in this new syllabus. The following measures are suggested for adequate implementation of this conceptI. Essential expenses and equipments should be provided by the university, State Govt., U.C.G. & Bar Council of India. 2. Training of teachers and attachment with judges & senior advocates for at least one month is necessary because teachers have no initial training of clinical legal education. 3. Loan should be given on nominal or zero interest for purchasing computers, audiovisuals & journals etc. by the funding agencies. ' 4. Participation of law students in moot court competitions

organized by universities & Bar Council of India should be made compulsory. 5. Legal literacy programme may be implemented by holding camps in the remote & rural areas with the help of Gram Pradhan. The

71 leaflets in layman language will be prepared so as to acquaint the mass with the necessity of legal protection. 6. Participation of law students in the Lok Adalat with the help of judiciary. 7: Law students should participate and assist in District Consumer forum where there is no compulsion to engage advocates by the parties. 8. Consensual Dispute Resolution (CDR) centers maybe developed in the college/university campuses, cities and rural areas with the help of faculty members, district administration & Gram Pradhans respectively. 9 Law students must visit to the subordinate courts, High Courts

and Supreme Court.

72 CHAPTER 6 CONCLUSION AND SUGGESTIONS Objectives of clinical legal education can be achieved under the supervision of law faculties or law schools by undertaking massive works in the following areas: Integration of social values through curriculum: Lack of social relevancy and humanistic approach in the curriculum alienates and suppress various values, ethics, gender perspectives and views of minority etc. Therefore, by way of adding courses to the curriculum that address the issues of gender, cultural migration, minority and indigenous peoples or allowing students to work with people of other cultures, we can equip law students to revisit their responsibilities to the marginalized section of the society. The law curriculum should be introduced in integration with other disciplines. Members of the legal profession need to play the role of educator, planner, and counselor. Therefore, lawyers must be trained in skills that provide for a broader understanding of various facets of legal problems. Fundamental lawyering skills are important to provide social justice. However, any set of skills confined only to traditional methods of problem solving would be manifestly insufficient. Students would be required to undergo the entire process of lawyering either by exposure to actual cases or in dramatic simulations. In both instances, they are to act as lawyers and learn the details of lawyering from the experience of being a lawyer, real or simulating. While the students work under the supervision of a practicing lawyer or a clinical teacher, they are expected to face situations, analyze facts and take decisions independently. In externships programmes, post-graduate students are required to

73 work with leading NGOs, engaged in para-legal activities. This programme is extremely useful for the students as it provides necessary motivation and sensitizes and exposes them to the society and masses at large. Placement with legal services groups will offer law students valuable opportunities to broaden their perspectives, integrate such services into their careers, and join the community sophisticated representation. of educational Balancing regimes the twin legal to accompany of activists. live service client and Law clinics focused on poverty law issues formulated increasingly missions

education, the clinical movement became an component of legal education.

institutionalized

Today, there is little dispute about the merits of clinical legal education. By addressing human rights and social justice concerns, law clinics and NGOs may help upgrade the quality of the legal profession in general. Dismay at the profession's low ethical and professional standards drove many top law graduates into teaching or business in the past. The clinics and expanding NGO opportunities improved legal training and encouraged high-caliber graduates to practice law. Law schools can also establish legal aid cells where students and teachers can guide people in identifying their problems and make them aware of the remedies available to them. Students in these cells can also provide paralegal services such as drafting affidavits, assisting in registration of marriages, births and deaths, electoral rolls, and filling out various forms. This type of work gives students ample opportunity to learn key interviewing, counseling, and drafting skills. Another approach is for law schools to adopt a village and encourage students to conduct a survey to identify the problems that the people in that particular village face. After

74 identifying the problems, students can approach the authorities concerned and arrange a public forum. Often, local authorities are not responsive to local citizens' concerns, especially those from disadvantaged communities. The idea here is to inform villagers about the programme and to encourage them to participate in the forum so that they can meet the officers concerned on that particular day and can settle their grievances in public. Students can be instrumental in the smooth functioning of the entire programme, and they can follow up on particular matters with the officers concerned. Justice education requires us to place an even greater emphasis on negotiation, dispute resolution and collaborative working relationships. Our students must be taught how to resolve problems before they deteriorate into potential lawsuits. Our young lawyers need to be educated to recognize that even if the outcome of litigation is relatively certain, there is not always just one right answer to a problem. A money judgment may not be an effective solution for all parties, and so lawyers should work to provide for a lasting solution, one that is worked out through negotiation or appropriate dispute resolution. They need to learn that it is not enough to root out the facts of the problem: they must understand the context in which the problem arose. 'A good lawyer can assist clients in articulating their problems, finding their interests, ordering their objectives, and generating, assuring, and implementing alternative solutions.' The whole idea of clinical legal education can go in vain if ethical side of legal profession is overlooked. Objective of clinical legal education is not merely to help students master the skills of lawyering and make them technically sound. In representing a client's case in the court, student lawyer must not resort to any

75 means, which is morally condemnable, must avoid resorting to false witnesses and distortion of facts. While client's interest must guide his actions and efforts, ethical and moral values must also be upheld, for in that lies greater good of the society. In fact, in all the programmes that are linked with clinical legal education emphasis is always on the aspects of justice, protection of rights and progressive development of the society. While execution of these programmes requires moral and ethical motivation, successful implementation of the programmes will itself instill process further and ethical skills and moral To values in the students. truly Our legal education has so far been concentrating on the lawyering learning. make legal education meaningful in the context of our social realities effort must be made without further delay to accommodate the remaining objectives in the clinical curriculum. This, very likely, will necessitate establishment of 'out-reach programmes where students will have the opportunity to interact with 'real problems', whose resolutions they are expected to come up with. This will allow the students to reflect on whether justice can always be done by litigation. The present system of our legal education has to be designed in such a way that it is made poverty oriented, multidisciplinary and takes into account actual social-conditions. Legal Education without associating with socially relevant purpose cannot play a meaningful role in making a lawyer professionally competent.46 The students can engage themselves in the legal service clinic. Their participation in legal aid clinics, will not only make them professionally competent but will also generate in them new skills
46

Supra note 9

76 and values favorable to the weaker sections, which may help in promoting the real cause of legal aid to the poor. India has completed fifty years of her independence. Time has come to make legal education socially relevant to the needy and the deprived people. Legal aid should be made an essential component of legal education in all the colleges and universities. Clinical legal education should be made a permanent feature of law courses. Second, legal aid clinics should be established with adequate infrastructural facilities, and should function under the supervision of a professionally experienced professor Third, the Indian Advocate Act 1961 should be amended and the final year students of law should be permitted to appear and argue cases in law courts under the supervision of an associated attorney. The right of true legal aid and speedy trial are guaranteed rights under Art. 21. Art. 39A mandates that the State shall provide free legal aid, by suitable legislation or scheme or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. In Law Colleges, where no legal aid clinics are functioning, students may be involved in the work of the local legal aid committee. The task of ensuring good practical training to a law student is to be greatly shared by the law teacher, as the law teacher is the model point of all education. To promote the advocacy skills and love for the profession among the new entrants, the Moot Court competitions are very essential for the law students. At these competitions, the students get benefit greatly in the development of their skills of study, research & analysis of presentation. The trial conducted in the moot courts offer immense opportunities to a law student to expand his

77 knowledge and develop the power of articulation, analysis and legal reasoning. In the practice of legal profession, 50% work is oral. Hence fluency in language and power of argumentation are very important aspects.47 In consultation with the law school heads, and the active

cooperation of the bar, the State and the CILAS, clinics should be set up in the law school premises where the law students along with their regular courses can get practical training necessary for the profession. Methodology of teaching in these clinics can range from simulation to actual representation of the clients. The rigid rules currently prevalent need to be relaxed and special rules be enacted to allow the students to represent the clients under the supervision of the practicing attorneys, the part-time teachers. In this era of globalization, there is no reason why lessons cannot be taken from advanced nations and benefit from the success of their programmes. There is therefore the need to understand the importance and potential utility of clinical legal education and to implement the programmes effectively, systematically and as part of the course curriculum. It will help in improvement of the quality of legal education and will be more meaningful to both the students and the society.48 In conclusion, it may be mentioned that legal educators in India have sought to balance the contributions of traditional pre independence, British influenced legal education with those from more recent reforms developed locally or imported from other countries, particularly the United States. The infrastructure of legal

47

Supra note 4 Supra note 2

48

78 education in India is large and diverse; students may study law at a university law faculty, where most law teachers teach full-time and the orientation tends to be more academic, or at a university affiliated Law College, where the orientation is more practical and most faculties teaches part-time. Although most instruction are carried out in a traditional lecture format, clinical legal education has made some inroads in India, but not yet on a widespread scale. India is now in the process of implementing new reforms in the structure of legal education whereby an optional under-graduate five year programme, with mandatory skills training in the fifty year, must emerge as the national standard. Besides this, recent studies have shown that clients from linguistic and cultural minorities receive a lower quality of justice in the court system. It is a pity that even after many years of independence; judgments like on Mandal Commission Reports have to be given, whereby the plight of the minority class has not changed much. We need to train the law student to work with multi-cultural clients more effectively. For this, we need to do away with the traditional way of teaching and presenting cases and require variety of new techniques to stimulate thought and conversations. Clinical legal education is perhaps the ideal way to inculcate such knowledge amongst the law students. An additional factor necessitating the need for clinical legal education to be a part of LL.B curriculum in India is the state of the present judicial system and the emergence of 'Alternate Dispute Resolution' (ADR) as its strong supplement. Judiciary is under a tremendous amount of strain. The present system is rigid, expensive and time consuming. Jurists have called for initiation of corrective measures to prevent its imminent collapse. Though even the judges and legislatures have also expressed their inability to

79 root out the triple vices of delay, cost and complexity and to improve the judicial system. Some people with the assistance of a few committed judges were, however, able to chalk out some viable alternatives from within the system. The emergence, utility and popularity of the public interest litigation sine 1975 paved the way for others to take lead in inventing other options. Reducing the backlog of arrears of cases and to provide justice without delay to poor litigants at their doorsteps, being the initial aim, the schemes of 'Lok Adalats'(People's Courts) also gained popularity quite steadily since its inception in its present from in 1982. Unable to comprehend the importance of negotiations, fresh law graduates cannot effectively represent their clients in a Lok Adalat. A lawyer having little or no knowledge of the skills required for effective settlement in a Lok Adalat would find himself excluded from participating in a large number of cases. Therefore, there is a great need for meaningful practical training programmes to be introduced in the professional legal educational scheme. As we are aware: legal profession is expected to play an important role in the circumstances that are taking place in today's world and legal studies are being pursued by the people with different objectives. It is, necessary to impart meaningful practical training to the law students. Now when there are clear directions from the Bar Council of India regarding the practical papers to be introduced in the LL.B. curriculum, each law faculty or Law College will have to introduce these papers in order to save their LL.B. degrees room being de-recognised. Therefore, besides compulsory contents, each institution needs to decide about the remaining contents of these papers according to their local needs and requirements. It is here that the Clinical Legal Education Programme being run at the

80 National Law School has some novel ideas to offer to other law faculties, who may endeavour to adopt similar pattern with requisite modifications and alterations according to the physical, material and financial resources available at their disposal and keeping in view their constraints, too. Keeping in mind the limitations and adverse circumstances in law school clinics may have to operate for quite some time suggest the following :(a) Clinical legal education to begin with be confined to selected schools and selected students only, say, full-time colleges arid per cent of students selected on the basis of their aptitudes, academic merit and willingness to do legal aid work. (b) Such schools can maintain legal aid clinics either in the school premises or in the neighborhood and be entitled to receive financial assistance from the national legal aid agency in which they have representation also. (c) Full-time teachers supervising the clinic and senior students under their guidance be permitted to present cases in lower courts and practice law otherwise in legal aid matters only. To prevent any possible abuse of such an enabling provision and at the same time to provide maximum opportunity for law school clinics to participate in the legal aid programme it is necessary that, the following new section be added after Section 33 in the Indian Advocates Act: "Section 33 A: Legal Aid by Law Teachers and Students Notwithstanding anything contained in the preceding section, the following categories of persons may appear in any court or tribunal on behalf of an indigent person, if the person on whose behalf an appearance is to be made as requested, in writing to that effect :-

81 (i) Teachers of a law school which provides fulltime instruction for the professional LL.B degree and which maintains a legal aid clinic as part of its teaching programme, where poor persons receive legal aid, advice and related services; (ii) Students of third year LL.B class of law schools as aforesaid who are participating in the clinic's activities and who have been certified by the Dean/Principal of the law school under rules made therefore by the law school. provided such representation in the case of students shall, be under the supervision of lawyers associated with the said legal aid clime and with the approval of the judge in whose court the student appears. (d) Bar Council may make it mandatory for every new entrant to the profession to serve for a specified period in a legal aid agency on a modest stipend (e) Workshops and training programmes be organized to evolve a cadre of clinical law professors who may be relieved of their other teaching assignments and be given a special pay in addition to their usual emoluments. (f) Manuals be prepared giving guidelines in the organization and administration of law school clinics. (g) Marks be awarded to the performance of the participating students in the clinical programme and this be taken as part of their course requirements.

82 (h) Courses related to and supporting the clinical programme like Law, and Poverty, Landlord-Tenant Problems, Land Reform, Consumer Protection etc., be introduced as optional subjects. , (i) The interest of the clinical programme be increased by diversifying ,activities through students placement and internship schemes, visit to poverty areas and researching problems of the poor, radio and television discussions on poverty law, professional responsibility etc. It is hoped that with the introduction of the national legal services scheme by the Government of India, the climate for clinical legal education will improve considerably and students will become active agents with the delivery of legal services to the poor while improving the, content and methods of legal education in the process.49

49

Supra note 18

83

BIBLIOGRAPHY 1) Indian Bar Review, 1996 2) Journal of the Legal Studies, Vol.34, 2003 3) Central India Laws, Quarterly Vol. VII 1994 4) Legal Education in India 21st Century Problems & Prospects, By R.K. Roy 5) Voice of Justice, By AR Lakshmanan 6) Legal Aid & Legal Education, By Madhav Menon 7) Academic Enlightment,