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Bloch, F S; Prasad, M R K --- "Institutionalising a Social Justice Mission for Clinical Legal Education: Cross-national Currents from India and the United States" [2007] LegEdDig 24; (2007) 15(2) Legal Education Digest 12

Institutionalising a Social Justice Mission for Clinical Legal Education: Cross-national Currents from India and the United States

F S Bloch & M R K Prasad

[2007] LegEdDig 24; (2007) 15(2) Legal Education Digest 12

13 Clinical L Rev 165, 2006, pp 1–42

Clinical legal education is in the midst of an exciting period of growth and development, prompting clinicians around the world to reflect on what clinical education’s remarkable successes over the past forty years mean for its future. One important item on this agenda that has been on the minds of law teachers in India and the United States, among other countries, is the status of clinical legal education’s traditional social justice mission. Although social justice remains at the heart of many clinical programs, the effort to obtain broad acceptance of clinical legal education by the legal academy and the bar — realised already to a substantial degree in a number of countries around the world — seems often to undercut its traditional social justice mission.

This article examines a unique opportunity in India to merge these sometimes conflicting goals by institutionalising social justice-based clinical legal education at all Indian law schools.

In both India and the United States, the basic model of clinical legal education promotes professional skills training and law school involvement in social justice. Until clinical programs entered the scene, skills training and social justice work were, for all intents and purposes, off the legal education agenda. Legal doctrine dominated law school syllabi in both countries, with virtually all instruction offered through classroom courses dominated by ‘Socratic’ dialogue and appellate-court-oriented casebooks in the United States and traditional lectures in India.

Although some law schools in the United States had established legal aid clinics in the early part of the century, the clinical movement began to gain momentum in the United States only after the Civil Rights Movement and President Lyndon Johnson’s War on Poverty (and later, the continuing war in Viet-Nam) had raised the national social conscience in the mid 1960s.

Legal aid and social justice gained prominence in Indian legal education at about the same time as they did in the United States.

There were also parallel general demands in both countries for improved training in skills and ethics in law school.

Clinical legal education’s primary focus on legal aid, social justice, and professional responsibility began to lose some ground in the United States in the 1980s, with a fading of student interest in public interest work.

Such a shift was less apparent in India, where links between legal education reform and on-going efforts at implementing legal aid projects were more direct.

Professional legal education must address the public role of law and lawyers in society and must seek to motivate young lawyers to work for the public good. This is where access to the richness of legal aid-based ‘live client’ or other forms of social justice-based clinical education is critical. A complete clinical program both provides students with the skills training needed to improve lawyer competence generally and obligates them to engage as students in supervised high-quality public service.

The stage is set in India to move beyond these theoretical ideals.

During British rule, legal education in India followed the general colonial model of producing clerks, not managers or advocates. After independence, legal education was expected to bring the legal system in tune with the social, economic, and political desires of the country. With 500 law schools and 40,000 law students graduating every year, law schools could play a pivotal role in promoting and providing justice, particularly through the field of legal aid.

As noted earlier, the contemporary legal aid movement began in independent India in the early 1960s, at about the same time as legal services programs expanded considerably in the United States. Unlike in the United States, however, the focus of the legal aid movement in India has not been on individual client representation but rather on providing legal aid to indigent people at large.

Early on, a consensus developed within the Indian legal community that law schools should play an active role in the legal aid movement. Although some schools were receptive, early responses to this call were less than satisfactory. There is now a renewed effort to reform legal education that offers the legal academy, the bench, and the bar the opportunity to realise the shared goals of meeting service needs and education reform through social justice-based clinical legal education.

The first major report on legal aid came in 1973 from the Expert Committee on Legal Aid of the Ministry of Law and Justice, chaired by Justice V. R. Krishna Iyer. In stressing the need for a statutory basis for legal aid, the Committee said that ‘legal aid is an integral part of the legal system — not a matter of charity or confined to the four walls of the court building.’ The Committee’s report advocated creating networks of legal aid groups in various places such as court houses, bar associations, law schools, community organisations, private and public agencies, and organs of local government.

On the benefits of involving law schools in legal aid programs, the Committee pointed out that law students would become an inexpensive and enthusiastic resource for providing meaningful legal aid to India’s vast population. It recommended using law students to provide legal aid in two stages: first, in preparing a case at the preliminary stages, including interviewing clients and drafting documents; then, by appearing in court in petty cases, including examining witnesses and presenting arguments. Thus, the central idea of involving the law schools was not only to provide practical skills but also to secure adequate legal aid for the needy.

In 1977, the Committee on National Juridicare submitted its report.

The Juridicare Committee expected law schools to play a pivotal role in providing legal aid and urged them to establish legal aid clinics. For the first time, this report expressed the need to develop clinical law teachers, to introduce subjects such as law and poverty and law and society, and to give academic support to law school clinics.

In 1981, the government of India appointed the Committee for Implementing Legal Aid Schemes. The Committee was headed by Justice P. N. Bhagwati, then Chief Justice of the Supreme Court of India. Like the earlier Juridicare Committee, the Committee for Implementing Legal Aid Schemes insisted that court-or litigation-oriented legal aid programs cannot provide social justice in India. The Committee concentrated more on the promotion of legal literacy, the organisation of legal aid camps to carry legal services to the doorsteps of people, training of paralegals to support legal aid programs, establishing legal aid clinics in law schools and universities, and bringing class actions by way of public interest litigation. Further, Justice Bhagwati acknowledged the significance of the educational process in its task: ‘Education efforts must become a significant factor contributing to the social development of the poor.’

In spite of these high expectations, only limited efforts were made to transform legal education in India to meet the challenges of the profession. The momentum gathered by the legal aid movement was confined at most law schools to student extracurricular activity, with a few exceptions.

Although these efforts were encouraging at the time, no serious efforts were made by academics or members of the legal community — or by the Bar Council of India, the primary body regulating legal education — to institutionalise legal aid clinics. The main reason for this failure was that law schools were neither physically nor professionally ready to undertake such a huge responsibility.

In 1994, a Committee chaired by Justice Ahmadi dealt elaborately with law school teaching methods. The Ahmadi Committee Report recommended inclusion of the problem method, moot courts, and mock trials in law school curricula. It also suggested supplementing the lecture method with the case method, tutorials, and other modern techniques for imparting legal education. Further, it recommended that all these new methods be made mandatory. The Committee also suggested the establishment of premier law schools to improve legal education along the lines of the National Law School of India University in Bangalore.

In 1997, following the Ahmadi Committee’s recommendations about practical training and the filing of cases in several high courts challenging its new rule reviving a one-year training requirement under senior advocates, the BCI (Bar Council of India) issued a circular directing all universities and law schools to revise their curricula and directed them to incorporate four Practical Papers. Law schools felt that training law students to work in the legal profession was not the job of the schools but of the Bar.

On their face, the papers focus mainly on practical training. So far, however, most legal educators see them as providing only limited support for including instruction in social justice lawyering in the new curriculum or for providing social justice to indigent clients.

Because Bar Council directives are mandatory, law schools made half-hearted attempts to fulfil their obligations — despite having neither the expertise in skills training nor the infrastructure and financial resources needed to implement these papers.

Finally, in 2002 — and after considering the Ahmadi Committee Report — the Law Commission of India took up legal education reform in its 184th Report.

Although the Law Commission mentioned several studies about improving legal education in its 2002 report, one report was given special prominence: Legal Education and Professional Development — An Educational Continuum, a 1992 American Bar Association (ABA) task force report on professional skills and values popularly known as the MacCrate Report. The Law Commission felt that the members of the Legal Education Committee of the Bar Council of India and the University Grants Commission needed to study the MacCrate Report closely.

Specifically, the MacCrate Report set forth a Statement of Fundamental Lawyering Skills and Professional Values that recognises a ‘compendium of skills and values’ fundamental to the practice of law. The Statement first identifies ten skills that are required of competent lawyers. The Report then identified four fundamental values of the profession: provision of competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development.

Finally, the MacCrate Report emphasised that ‘the statement is not, and should not be taken to be, a standard for a law school curriculum. The Statement of Skills and Values is concerned with the limited goal of ensuring practice at a minimum level of competency.’

The MacCrate Report also made an effort to draft a new agreement between law schools and the legal profession. The Report thus points out rightly that the Bar, law school teaching faculty, and the judiciary ought to share the responsibility for providing skills-and value-oriented legal education to new lawyers entering into the profession.

Despite the MacCrate Report’s stated aim to improve both skills and values, it focuses mainly on skills. Moreover, it indicates indirectly that professional values are subordinate to skills by listing the four fundamental values after the ten fundamental skills. If they are to complement each other, then skills must be developed according to identified values.

Not only have these critiques of the MacCrate report not been noted by Indian commentators, the report has not been questioned as an appropriate model for legal education reform in India.

India’s status as a developing country makes promoting social welfare a major aim of the law. The constitutional goals of equality and justice will be accomplished only by enacting a number of ‘socially oriented legislations.’ Legal education must, therefore, focus not only on what lawyers actually do but on what lawyers ought to do.

One option would be to appoint an Indian counterpart to the MacCrate task force that would identify the professional values and skills required for the legal profession in India. Indeed, this idea was endorsed in principle during the inaugural meeting of the South Asia Clinical Teachers Association in December 2006.

It may be helpful in the meantime to suggest a set of fundamental professional values and skills to guide legal education reform in India.

Value 1: Provision of fair and effective resolution of disputes.

It is equally important to provide a fair, effective, quick, and inexpensive system for dispensing justice.

Value 2: Striving for social justice.

In many countries, social welfare cannot be implemented through constitutional provisions. The Supreme Court of India has, by contrast, a rich history of judicially enforcing socio-economic rights by liberal interpretation of fundamental rights. It is now a well established principle that free legal aid is a state’s duty and not government charity.

Value 3: Promotion of alternative lawyer roles. In its place, modern India needs a system that provides non-judicial forums and various types of informal proceedings to satisfy natural justice, involving little cost and speedy disposal.

Value 4: Protecting judicial independence and accountability. India is ranked as low as 88th out of 159 countries in the Corruption Perceptions Index. By contrast, the Indian judiciary, particularly in the higher courts, has emerged in the recent past as a powerful institution that enjoys the faith and esteem of the people due to a low level of corruption among its members. Therefore, it is very important to protect the judiciary’s independence from the influence of the legislature and the executive.

New, additional fundamental skills required for Indian lawyers may include the following: (1) Innovative/alternative problem-solving techniques; (2) Skills to invent new options beyond the established norms; (3) Mass communication skills: (4) Skills to analyse the socio-economic background of legal problems; (5) Skills in research with a sense of responsibility to serve the society.

The burden for providing lawyers these skills lies heavily on law schools, particularly in India. There is no requirement for apprenticeships or to pass a bar exam, as exists in most other countries.

As noted earlier, three of the four mandatory Practical Papers introduced by the Bar Council of India (and also mentioned in the Law Commission’s recent report) focus on general skills and professionalism, while the fourth paper addresses legal aid and public interest law.

Paper I covers moot-court, pre-trial preparations, and participation in trial proceedings. Paper II covers drafting, pleading, and conveyancing. Paper III covers professional ethics, accountancy for lawyers, and bar-bench relations.

At the same time, Paper IV — dealing with public interest lawyering, legal aid, and paralegal services — aims at providing social justice. This paper is flexible, allowing law schools to design course content according to local needs.

Although the four papers, on their face, appear adequate to provide certain basic skills to law students, in reality they have not met even the limited expectations of the Bar Council — let alone the long term goal of establishing a fair, effective, and competent legal system, accessible to all citizens.

In effect, the Bar Council washed its hands of the matter by simply passing the obligation on to law schools — and the law schools have, in turn, relinquished their responsibility by assigning the four papers to the faculty without providing necessary support.

What is needed to make these papers meaningful is a combined effort from the law schools, the Bar, and the bench to implement them finally through a model of social justice-based clinical legal education — and to do so keeping in mind the principles behind the fundamental values and skills set out above. The purpose of legal education is not simply to encourage the lawyer’s function as champion of his or her client’s cause; lawyers are also educators, policy makers, and counselors.

Since India is a vast multilingual and multiethnic country, a single model for clinical teaching is not possible. Particularly in providing legal aid, students are required to have sufficient knowledge about the local culture, living conditions, ethnic problems, and — most importantly — the local language.

Another option is for students to conduct legal research on welfare benefits provided under various social welfare schemes in order to identify the beneficiaries and to help them in submitting applications. Assisting in this task is a key factor in carrying out the social justice mission of legal education as it will expose students to the plight of their country’s poor and help them develop a sense of professional social responsibility.

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 identifying the problems, students can approach the concerned authorities and arrange a public forum.

A lok adalat (people’s court) is an informal and voluntary dispute settlement process that operates outside the court system.

Organising lok adalats in collaboration with the local bar and judiciary is a natural choice for law schools to impart social justice-based clinical education.

Another way in which law schools can implement social justice-based clinical education is by providing legal aid and other paralegal services to prisoners. Law schools can have a significant impact on prison administration in India by providing basic legal help.

Through this work, law students would be able to acquire and practice skills such as interviewing, drafting, and fact-finding techniques. It also provides an excellent opportunity for the students to learn how criminal administration works and what their responsibilities would be as public defenders, prosecutors, or even presiding officers. Finally, as with lok adalats, this type of clinical experience can be provided at no significant additional cost to the law schools by working in cooperation with local prison and legal services authorities.

With a strong desire to serve the society both by providing free legal assistance to the general public and by producing competent and socially sensitive legal professionals, V. M. Salgaocar College of Law started the ‘V. M. Salgaocar College of Law Legal Aid Society’ in 1998.

The Legal Aid Society works toward achieving its stated objectives in a number of diverse ways, including permanent free legal aid cells, mobile legal aid cells, paralegal services, and public interest litigation.

The Legal Aid Society’s thirty-five permanent legal aid cells are set up and housed largely in Panchayati (county) buildings, schools, and church or temple premises, selected on the basis of availability and easy accessibility to the public.

The legal aid cells work not only with individual members of the community but also with the local administration.

The mobile legal aid cells do not have a permanent setup but rather go to different places to educate the people on various legal and social issues.

Members of the Legal Aid Society also perform a number of paralegal aid services.

Student involvement in Public Interest Litigation starts when they become sensitised to social justice issues in the course of regular lectures and at Legal Aid Society meetings.

Students at V. M. Salgaocar College of Law have filed successfully eleven Public Interest Litigation cases before the Mumbai High Court (Panaji Bench) on various issues ranging from the use of motorcycle helmets to violations of Coastal Regulation Zones.

In order to encourage students to be conscious of and concerned about existing legal and social issues, every year the faculty identifies an area or legal issue that needs to be addressed. These projects provide students with obvious opportunities to develop critical research and writing skills aimed directly at matters of social justice.

Legal education is both professional and liberal. As professional education, it needs to impart professional skills; as liberal education, it should aim at providing value-and social justice-oriented education. The particular social justice aim of Indian legal education is to provide a fair, effective, competent, and accessible legal system to the citizens.


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