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By Jayshree Satpute*
To deny people their human rights is to challenge their very humanity.
The Constitution of India recognizes the right of all citizens to secure justice. However, too many disadvantaged and poor citizens in India are denied access to justice. Simultaneously, law graduates lack analytical, research and drafting skills to compete in the job market and become highly skilled professionals.
Clinical Legal Education would not only build a pro bono culture and increase access to justice, but also significantly enhance students’ skills. While the attempt to develop a structured clinical education in India is not unprecedented, past efforts have fallen short in training students in becoming highly skilled professionals and in impressing responsibility of providing quality legal services to the community. This article seeks to discuss some of the lessons learned and suggest steps ahead.
Access to Justice and Clinical Legal Education in India
Article 39A of the Constitution of India guarantees remedies to address rights violations. It is in this context that effective access to such remedies assumes significance, especially in a country like ours, where citizens face several barriers in availing access to the justice delivery system.
The denial of the fundamental right of access to justice as set out in Article 8 of the Universal Declaration of Human Rights is the result of several factors, including poor availability of legal representation, costs of litigation, an inefficient courts system, and gaps in legal literacy.
The Legal Services Authorities Act of 1987 was envisaged to remove these barriers in access to justice. Pursuant to the Act, legal services authorities were set up across the country with a mandate to provide better access to justice to the marginalized. However, the implementation of the Act failed to address barriers in accessing justice, resulting in an even wider gap between the goal of the Act and the ground reality.
According to Justice Muralidhar, some of the reasons for this were,
“general lack of awareness of the availability of legal aid, the belief that a person who gets help for ‘free’ is disabled from demanding quality service and (…) the disinterestedness of lawyers and legal aid administrators in providing competent legal assistance.”
Against this background, the emergence of Clinical Legal Education initiatives could prove to be an effective way of increasing access to justice.
In several western countries, including the United States, Legal Clinics avail of full time faculty who teaches classes “where students learn lawyering skills by undertaking legal services, typically on behalf of poor or marginalized people and communities. Even though most Indian law schools do not offer clinics defined in this way, many have ‘legal aid cells’ where students, largely without faculty supervision, perform legal services for poor communities.”
Unlike clinical legal education in the United States, legal aid cells in India do not generally carry academic credits, thereby reducing programmes’ impact and authoritativeness. For instance, the United Nations Development Programme (UNDP) conducted a study of law school clinics in India and found that
“…nearly 82% of the colleges have designated faculty to conduct legal aid activity. But only a miniscule of them provides the facility of academic credit to the faculty in terms of workload/lecture hours and for the students in terms of grades or marks. This has considerably reduced the enthusiasm in the conductance of legal aid activity…in the process the cause of legal aid is substantially dampened.”
For this reason, the UNDP recommended,
“strengthening the law school based legal aid clinics with a view to sensitise the law students and to use them in assisting marginalised communities.”
The attempt to develop structured clinical education in India is not unprecedented.
Under Section 4 (K) of the Legal Services Authority Act, the Central Authority has been entrusted with the responsibility to “develop… programmes for clinical legal education and promote guidance and supervise the establishment and working of legal services clinics in universities, law colleges and other institutions.”
Despite the Bar Council, the Law Commission, and other important government and non-governmental agencies having recognised its importance, this provision has not been implemented effectively yet.
Lawyers have a vital role to play in the justice delivery system. Without a skilled, sensitised and proactive Bar, universal access to justice cannot be realised. These skills-building exercise should start from our law colleges, by ensuring that,
“students are taught a fair mix of courses that give them knowledge and training in Indian law, but at the same time prepare them for facing the challenges of globalisation…”
With the globalisation of legal education and research becoming a universal trend, promoting Clinical Legal Education through institutional mechanisms is the need of our times.
While there is already ample recognition of clinical education in several domestic laws, effective initiatives and attention in this direction is lacking. Once Universities and law schools integrate clinical education in their programmes, Legal Services Authorities and courts would show more responsiveness towards such initiatives.
Once Universities and Law Schools integrate clinical education in their programmes, Legal Services Authorities and courts would show more responsiveness towards such initiatives.
Compared with American students, our students lack in analytical, research and drafting skills due to the absence of skill building in our law colleges. Moreover, the current legal aid system has proven to be ineffective to ensure access to justice for all. The few pro bono lawyers in the country are struggling to cope with the vast demand of quality legal counseling.
Looking at the current scenario, it has become inevitable for law colleges in India to set up legal clinical programs. These programmes should be an integral part of legal education, with dedicated marks to be awarded based on the performance. Law Clinics should avail of professionals with experience in practicing and teaching law. Clinical programmes would not only contribute to building a pro bono culture and increase access to justice, but also to significantly enhance students’ skills.
This requires the Bar and the Bench to come together and offer students an opportunity to build bridges with the profession from the very beginning of their legal careers. This will benefit both –young lawyers as well as litigants, who cannot afford to engage with expensive legal services to claim justice.
*Jayshree Satpute is a Delhi based lawyer and human rights activist with extensive experience advocating at the Supreme Court and various High Courts. She has been recognized by The Guardian (UK) as one of “World’s Top 100 Inspiring women”. She co-founded Nazdeek, a legal capacity building organization based in Delhi, and has been appointed amicus in several cases.