Clinical Legal Education - [Part IV] Building A Roadmap For Clinical Legal Education In India
This piece is the fourth piece in the series of articles on clinical legal education in India. To that extent, this piece should be read in continuation of the former pieces which can be found here : Part I, Part II and Part III. This piece shows that it is important to draw upon the lessons of both the Indian experience with clinical legal education and the Harvard Law School (HLS) experience, to come up with a blueprint to reform clinical legal education system in India. First up - there are several challenges that create an obstacle in having a robust model of clinical legal education in India. Some of these challenges have been highlighted in the earlier pieces. Lack of funding, lack of trained clinical instructors, no academic credits for clinical work, lack of practice component to clinical education are some of the major challenges. Besides there are different stakeholders involved in the process. To bring everyone on the same page, to agree on a set of minimum reforms and to adopt a ‘model’ that will be applicable across all law schools in India, could be an ambitious project and a daunting task. The involvement and seriousness on part of the Bar Council of India (BCI), law universities, the National Legal Services Authority (NALSA) to create clinical legal education as centers of excellence has been lacking. In light of all of this, any roadmap or blueprint for reforms in clinical legal education has to be drawn knowing that it’s a long shot to hope that any such model will be adopted. However the very presence of these challenges makes this exercise worthwhile.A. Initial Remarks
The aim of this section is to discuss few broad guidelines that law-makers and policy-makers should consider when discussing reforms needed in clinical legal education in India. So fleshing out the details of each of the suggestions mentioned here is outside the scope of this piece. Even though this section is written with law reformers and policy makers in mind, this section may be useful for all those who are serious about the need for reforms in clinical legal education in India. The big theme in the backdrop of this debate on clinical legal education is access to justice and rule of law, as discussed in the Part I. Therefore a variety of stakeholders who may not have any direct interest in reforming clinical legal education could also consider some of the issues outlined here. It is also important to note that this section is not a step-by-step guide to reforming the clinical legal education in India. Instead, it identifies some of the major themes that underlie the debate on reforming the clinical legal education and suggests the way ahead based on the Harvard Law School (HLS) clinical legal education model.B. DESIGNING A ROAD-MAP
(a) Clear Policy Decision
First, there is a need to clarify the aims of clinical legal education in India. Whether the aim is only to impart professional training to law students or also to provide access to justice to those who cannot afford legal services through help of law school clinics? Unless this fundamental question is discussed and answered, the clinical legal education in India will not have the requisite lynchpin around which to design the model. Since there is a death of literature or a study that encapsulates the existing view of the different stakeholders on both the need and the aim for clinical legal education, the Bar Council of India (BCI) or the National Legal Services Authority (NALSA) can bring together different stakeholders to adopt a resolution on both these aspects of clinical legal education. This will send a strong unambiguous signal to the country of the intentions of the policy makers in reforming the clinical legal education.
(b) Concrete Steps
The following are the specific steps that can be taken to promote the discussion on clinical legal education in India:
- Clarify – What Does Practical Component Of The Course Mean
The HLS model has a very clear distinction between the classroom and the practical component of the clinical legal education. In India, even though there is a mandatory rule requiring 4 compulsory papers in practical training, these papers have no practical component to them. These compulsory papers have come to mean subjects such as advocacy, poverty law etc. without any added practical training. Therefore, there is a need for BCI to clarify whether the requirement of practical papers suggests the need for an actual practical component to them.
- A Systematic Approach To Addressing This Issue As Opposed To A Case-By-Case Approach
Whether to have a ‘model’ for all law schools across India is an important question. There can be different trade-offs on this policy decision. There can be a broad instructive policy with recommendations, with specifics to be decided by law schools. Or there can be a policy at the central level, which if followed by law schools can lead to incentives, such as partnerships with BCI, NALSA etc. Having ‘one model fits all’ may be the right approach for steering some major changes in the way clinical legal education is practiced at law schools. However there should also be room for creativity and flexibility for law schools to tweak the clinical legal educations as per their requirements.
- Generalized versus Specialized Approach
This is one of the big policy decisions that has to be taken by the law reformers- whether we want a generalized or a specialized approach to law. Currently most clinics at law schools have a generalized approach whereby they take-up programs which are general in nature, such as creating legal awareness about different laws and rights of the community members, distributing pamphlets, holding public talks on a variety of topics etc. Having a specialized approach would mean promoting clinics which have a focus on a particular subject area such as human rights, environmental law, housing matters, helping with government schemes etc. How specialized these clinics should be, can be left to the universities to decide. But a broad policy formulation that indicates the need for a specialized approach towards clinics, can steer the law schools to think and act in that direction.
The advantages of having a specialized approach is that students will be able to engage in more concrete and impactful work and pick up skills that they can apply after graduating. This will also help them determine their career direction by taking up jobs that are of their interest. Having knowledge, both theoretical and practical of a certain area of law, can give students an edge when they start their careers.
- To Craft The Role For Clinical Instructors, Who Can Mix Teaching And Practice Components Without Being Over-Burdened With The Need To Publish Scholarship
For the smooth running of a clinical legal office, it is pertinent that it is run by a team of lawyers, professors and instructors who can combine their skills for the benefit of students. On the one hand, there has to be a split between the role of those faculty members who will teach the classroom component of the course and those who will focus on supervising the practical component. But on the other hand, having Clinical Instructors as people who combine both teaching and practice experience and thereby can help students bridge that gap will be extremely helpful.
The challenge will be in training the clinical instructors themselves and recruiting them. But if proper incentives are in place, with an attempt to develop a separate track for clinical instructors at law schools, then the problem of untrained clinical instructors can be solved over a period of time. Also its important not to overburden the clinical instructors with the same requirements as those needed for others to become professors, especially the need to have a certain number of publications.
- The Need For A Team Of Lawyers And Para-Legals
A well structured clinic requires a team of faculty members who can teach the classroom component of the clinic, a team of supervising lawyers who are practicing attorneys, and a team of para-legals along with a Clinical Instructor to oversee the clinic and manage its administrative functions. Since most clinics in India only have one faculty member, who sometimes may or may not have the requisite practical experience, this frustrates the very objective of having a clinic. It leads to an empty exercise of checking the box by showing that there is a clinic without having the necessary team to carry out serious quality work.
- Trusting The Students’ Ability To Represent The Clients With Adequate Supervision
The debate in India as to whether law students should be permitted to represent the clients hasn’t really been vigorously taken up. The question is - what substantive difference will it make if a student who cannot represent a client in his/her final year, will be able to do so in the next year after graduation? This is not to suggest that only final year students should be allowed to represent the clients in courts but the logic that the quality of legal representation will suffer leading to miscarriage of justice, if students are allowed to represent the clients does not hold water. The way the HLS model deals with the issue of quality is by ensuring that students are adequately supervised.
Therefore supervision is the key, and should be the focus of reforms instead of blocking any attempts to give a right to law students to represent the clients. In order to strike a fair balance, there can be detailed rules of when law students can represent the clients, under what type of supervision etc. There can also be rules regarding the role of NALSA and state legal service authorities such that the students could work in conjunction with them. The point here is that a blanket ban on students representing the clients needs to be re-considered.
- Need To Change Rules To Let Practicing Lawyers Teach
India makes a clear cut distinction between those who want to teach and those who want to practice. This frustrates the attempt to bring in practical perspectives to class-rooms. Also it creates a separation between academia and the bar. Doing so has implications beyond the clinical legal education debate. For instance, once the bridge between academia and the bar is broken, it has several implications including lack of collaboration on projects which in turn takes away the important perspective that both academic and the bar can bring to each other, and it also forces a black or white kind of choice framework on graduating students. Developing all these arguments is beyond the scope of this piece. But the rule that does not permit practicing lawyers to teach definitely has implications for clinical legal education, as the latter’s objective is to combine theory and practice.
- Need To Focus On Quality Of Legal Services Being Offered
As the UNDP study suggested, most law school clinics are not conducting real impact clinical work. It is mostly limited to creating legal awareness and there isn’t much follow up. This takes away the requisite seriousness from clinical work and law school clinics are perceived by students as an ‘extra-curricular’ activity as opposed to being a mainstream component of law school education. Increasing the quality of legal services, and the quality of legal projects taken up by law school clinics is pertinent to change this perception. Nothing compares engaging students in real life cases with the benefit of supervising attorneys but even non-litigation related work such as drafting reports, policy formulation related work can be take up by law school clinics. Any work that requires a minimum number of hours, a structured approach, in-depth analysis, legal research etc. can fit the bill. Even the legal awareness programs when carried out with utmost seriousness can go a long way in addressing the access to justice gap in India. The quality of work has to be a primary focus in all law school clinic work.
- Incentive Should Be Given In Form Of Credits, Awards, Recognition Etc
Lack of incentive is a major factor that distinguished the HLS clinic model with the clinical legal work at law schools in India. Lack of academic credits pushes clinical work to the sidelines of law school. Clinical work needs to be treated at par with other academic subjects and this is possible only when there are academic credits given for it.
One of the argument given against this proposition is that, this will require building huge facilities so as to make the option of availing credits through clinical work to all the students. Nothing prevents the law schools from starting small and offering clinics to a few students and selecting the students from a pool of candidates based on merit. Besides academic credit, students should be given awards, recognition and other forms of incentive to engage in clinical legal work.
- Partnership With Practicing Lawyers, Law Firms Etc. And Not Just With NGOs And Local Panchayats
Currently, law school clinics do not pay much emphasis on developing partnerships with other stakeholders such as local law firms, practicing attorneys, local NGOs, National and State Legal Service Authorities, local offices of the UN and other international organizations etc. Developing these connections and partnership can go a long way in getting good quality work and having a tangible use of the work that is produced by law students. Also these local stakeholders can give proper guidance, feedback to students, helping the students grow and learn in their chosen field. NALSA and the BCI can help in forging these partnerships by maintaining a database of the local organizations who are willing to partner with law school clinics.
- Network Of Legal Aid Clinics
There can be huge benefits of developing a network of law school clinics across India and potentially even the world. This will help law school clinics to pool in their resources, students, expertise, know-how etc. and promote a spirit of team learning. Students can take up projects that have nation-wide impact and divide the research in way that different law schools can pitch in that part of the research which requires local knowledge, expertise or research. There can be an annual meeting of faculty and student representatives from law school clinics around the country to brainstorm ideas, mainstream efforts of different clinics, engage with national stakeholders etc.
There is much that the law school clinics in India can learn from the HLS model. The first step is to start an active discussion for the need for reforms. It is not suggested that Indian law schools should adopt the HLS model in a blind manner, nor is it suggested that the practices of HLS clinical model are the only ones that should be drawn upon. Indian law schools should look around the world, for the best practices to draw upon in fashioning and revamping its clinical legal education. It is essential to do so in order to prepare Indian law students for practice and for thinking about the bigger issues of access to justice when they step into the world of legal profession. Any reform requires participation and coming together of different stakeholders. To bring about a change in the clinical legal education in India and to invigorate it requires efforts by:
- the BCI, which is required to change the rules enabling practicing lawyers to teach and law students to represent clients, passing a resolution requiring academic credits to be given to students for clinical work,
- the Vice-Chancellors and law schools, who are required to put special emphasis on developing law school clinics, hiring faculty members, giving credits and incentives to students for engaging in clinical work, facilitating partnership with stakeholders, making resources on clinical education (including clinical legal journals and books on the topic) available,
- the members of legal academy to study the need for and reforms in clinical legal education in India, take up training required for clinical practice, and encourage students to take up clinical work,
- the donors and funding agencies to fund legal aid work at law school clinics,
- the NALSA, State and District Legal Service Authorities to partner and facilitate the work of law school students, to collaborate with them and take the assistance of students with their work, to create a network of law school clinics, to bring different stakeholders together in the process.
In order to bring about the requisite reforms in clinical legal education, the need of the hour is mutual collaboration amongst different stakeholders such as between the lawyers teaching at law school and lawyers in practice, the law schools and the bar, the clinics and lawyers in practice etc. Even the law firms have to play a role in doing their bit and co-ordinating with the law school clinics. Better trained lawyers with a sense of empathy can change the very face of the Indian legal profession and make it shine brighter than ever before.Avani Bansal is an Advocate practicing in the Supreme Court of India. She has pursued her B.A.LL.B from HNLU, Raipur and Masters in Law from University of Oxford and Harvard Law School. Write to her at [email protected] .