Clinical - Copy

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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

1

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


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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


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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 legalprofession, 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.


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(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, businessmanagement 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, para-

legals 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


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2. Promote an inter-disciplinary approach of law with other social

sciences.

3. Encourage proficiency in languages.

4. Personal Characteristics5. 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

http://www.123oye.com/job-articles/cyber-law/legal-education.htm4 Law as taught and law as practiced delivered at the B.H.U. at Varanasi on 5thNov. 2004,Academic Enlightment


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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 community-

based 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-


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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 lawschool 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

5 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 retentionincreases as more learner-centered interactive teaching methods are used.7 Krieger, 2002:114
http://lowery.tamu.edu/Teaming/Morgan1/sld023.htmhttp://lowery.tamu.edu/Teaming/Morgan1/sld023.htmhttp://lowery.tamu.edu/Teaming/Morgan1/sld023.htmhttp://lowery.tamu.edu/Teaming/Morgan1/sld023.htm


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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 synthesisbetween 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 and focuses on

appropriate lawyer roles, legal 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, participation of the

students in ADR and in public legal education i.e. mass legal

awareness programmes, chamber practice with the 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 the learning of "practical skills" in addition to

8 81 UPA. L. Rev. 907 (1933)


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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 aprogramme 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.

9

Legal Aid and Legal Education in India By B.R. SHARMA*

10 Brayne, Duncan & Grimes, 1998:1


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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 furtherand 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


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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.


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(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 arebeing 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 education has a broad range of impact upon law

students. The objectives of clinical work fall basically into five

areas:-

a) Legal skills development,

b) System operation knowledge,

c) Growth of professional responsibility,

d) Self-knowledge,

e) Human relations understanding.

(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.


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(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 ofoperation 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.


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(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. Thestudents 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 EDUCATIONDOMINICK R. VETRI Professor of Law, University of Oregon


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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


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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 fromeach 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 a variety of courses like the client

interviewing to client counseling, professional responsibilities and

professional ethics; negotiations and mediation; the trial

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 ofthe Legal Studies

14 Supra note 2*


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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. 16This 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


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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 haswider 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


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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 tohuman 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 Supra note 918

Gurjeet Singh * Pooja Dhir**Clinical Legal Education in India: Some Lessons from the National Law SchoolBangalore,


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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. Lawstudents 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


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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 thefollowing 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, and

appreciation of evidence, examination and cross-examination of

witnesses in real life situation.

(ii) The intricate and professionally significant lawyer-client

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


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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 bypotential 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.


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(b) Clinical teachers should prepare significant and thoroughly

developed programme of clinical institution.

(c) The members of the Bench and Bar should understand theiremerging 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

21 Supra note 1


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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


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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 ofteaching 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


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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


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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 studentsfor 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.
http://en.wikipedia.org/wiki/Bar_Council_of_Indiahttp://en.wikipedia.org/wiki/Bar_Council_of_India


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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 lawschools 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
http://en.wikipedia.org/wiki/Bar_Council_of_Indiahttp://en.wikipedia.org/wiki/Law_degreehttp://en.wikipedia.org/wiki/Law_degreehttp://en.wikipedia.org/wiki/Bar_Council_of_India


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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 theperformance 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, part-

time 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


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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 legaleducation.

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


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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 activitydid 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- gas-

tragedy .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.


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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 maximumof 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.


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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 incharge 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


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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 ofLaw 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.


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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 197325 Report on National Juridicare, pp. 66-74.


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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 thecontent 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


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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 studentlearns 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


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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 fullyendorse 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


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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 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 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


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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 theBhagawati-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 30-

11-1998.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


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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 yearcourse 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


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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. Itadopts 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


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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 sectionrelating 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


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Relations.

4. Public Interest Lawyering, Legal Aid and Para Legal Services.

In India the clinical legal education has been introduced in thecourses 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.

Furthermore in 2002 the Law commission in its 184th

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 theUniversities 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


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Procedure, 1908 (Sec.89) and observations of the Honble Supreme

Court in Salem Advocates Bar Association v Union of India30 for

following the mandatory procedure.

The Commission is of the view that there is an overwhelming needto 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 14th

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) factualinvestigation, (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 2002 (8) SCALE 14631Mac 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 BarAssociation


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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 justthe 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

Documents

Clinical - Copy