Abstract
Legal Education has come a long way since the time of previous millennia. The number of Law Schools in India is more than ever. On the other hand, even though the number of Law Schools is at an all-time high, a similar lift in access to legal justice is still far away. There are places which don’t have any access to basic amenities and are woefully ignorant of any legal remedies and the method they might procure it by or are unaware of their rights and duties of other public entities. While it is true that intricacies of legal world are not to be in the domain of every person, still a basic awareness of law is needed for someone to know that he is not being subject to unfairness and arbitrariness in places where the law has a remedy for him. In this regard, this is a high time that Legal Aid Clinics in Law Schools rise to the occasion as they can approach the problem at grass-root levels, especially at places where other organizations might be unable to be involved. This paper explores the conception of the principle of free legal aid in India and delves into the rise of Legal Aid Clinics in the Law Schools. This would then engage further in the work that Legal Aid Clinics do and the role it plays in the legal world.There are multiple issues that these clinics face, that limits their potential and act as a detriment to their purpose. This paper would elaborate on some of those challenges faced by the clinics in their operation. This would then expound onthe possible measures that can be taken to alleviate those issues so that justice might be reached to all. Finally, it would conclude with a way forward.
Key Words: Justice, Legal Aid, Legal Aid Clinics, Law Schools, Right to Legal Aid
- INTRODUCTION
“The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice.”
–Justice Blackmun in Jackson v Bishop[1]
Contemporary India is seeing a boom in legal schools. Once considered a rare phenomenon, and rather a lucrative opportunity to learn the nuances of law by the elite; legal education has come a long way in being accessible to everyday people. In anenormous country like India, even though legal education is rising up, the same cannot be said for access to justice. For the most part, it can be said that it is not a problem of the cities where the development in its stride has made the people resilient towards any arbitrariness that they might face.[2] They, on their part,have access to resources that make solving any issue they might be facing an easier thing, with swift admittance to administrative bodies, lawyers, and other entities they might engage with to rectify the problem. The access to legal justice is much sought in the rural areas where the people are ignorant of the rights and powers that they possess. They are unaware of various entities appointed to care for their needs, and even if aware, are unable to figure out a way to approach.[3]In a place where a large demographic of the population is below the poverty line, it is the needed of the state to provide legal aid to those who seek it but are unable to get it, be it individuals or masses.
The law of legal aid in India was in India since the time of the British rule, under the Criminal Procedure Code,[4] but the law only allowed for state-sponsored legal aid in certain cases. In the 14th report of the Law Commission, there was a detailed discussion on legal aid[5], but the commission failed to mention anything about stating up the Legal Aid Clinics in Law Colleges. It was in 1976 that the importance of Legal Aid Clinics was first iterated by the two-member judicare committee.[6] The process was sped up in the case of M.H. Haskot v. State of Maharashtra.[7] The case called for the provision of free legal aid to prisoners who are unable to attain legal assistance on their own. Which led to the concept of free legal aid becoming an integral part of the constitution. It says that no one should be deprived of legal aid due to financial or other disabilities. This is the mandate of Article 39A of the constitution that free legal aid should be provided to all poor and weaker sections of the society. This is supplemented by Article 14 and Article 22(1) which talks about equality before law and justice based on equal opportunity to all which has been reiterated in many case laws.[8] In 1995, the Legal Services Authority Act came into force which tried to establish uniform nationwide units that provided legal aid services. The National and State Legal Aid Bodies like (National Legal Service Authority) NALSA and (Jharkhand Legal Services Authority) JhLSA, (Odisha Legal Service Authority) OSLSAetc. are erected by the strength of these acts and engages in providing legal aid services at national and state levels respectively. The state bodies are constituted under Legal Services Authority Act[9] and they are directed to provide legal amenity as defined under the statute in consonance of services like the promotion of LokAdalats, undertaking preventive and strategic legal aid programs, or engagement in any related work as has been directed by the central authority.[10]
In real life, the laws are still driving towards a promise unfulfilled. Many sections of the society are still in need of legal aid and the resource constraints force these established authorities to actively and absolutely involvein curing legal aid woes of all the people. Hence, these state authorities are expected to work in coordination with other entities like governmental agencies, non-governmental voluntary socialservice institutions, universities, etc. that function in the promotion of the same cause.[11] NALSA has also acknowledged the issue that the lack of resources present and hence they have actively encouraged accreditation of and co-operation with other bodies to solve problems of the people. Under this scheme, it has facilitated the formation of Legal Aid Clinics in law schools under Section 4(k) of the Legal Services Authority Act, 1987.[12] A legal Aid program is made to spread legal awareness and increase the reach of Legal Aid Services in those areas that escape the view of the National and State Legal Service Authority. One of the tenets of formation of Legal Aid Clinics is that work should be pro-bono and no fees are to be collected from the beneficiaries for any service that is provided by the clinic.[13] The benefits of Legal Aid clinics are imminent in the fact that the proliferation of Law Schools make it possible for increasing the reach of legal aid in a wide area. Currently law schools in India number at over 1200.[14] In an ideal world, a legal aid clinic would be able to help quite a large number of people as over 1200 of these clinics in the country would go a long way in solving the legal aid distresses. Still, the potential of Legal Aid Clinics has been largely ignored, both by both the legal aid fraternity and the common populace.
- LEGAL AID CLINICS IN LAW SCHOOLS
Law Schools play an important role in making the future handlers of the law of the country. While ensuring the access of justice to the poor is the duty of the government, and the people practising law, the Law Schools do have a part in contributing to the welfare of the people, and such a responsibility can be best executed with the formation of Legal Aid Clinics. While the main purpose of these clinics, along with spreading awareness of the law,is to increase the appeal of legal education. It aims to get people involved in public policy and empower people to stand up to their rights. A UN Study concluded that ‘expansion and deepening of Legal Services and Protection will enable the poor to free themselves from their poverty.
One of the functions of a Legal Aid Clinic is to bridge the gap between Legal Services Authorities of the government and the common people who are untrusting and ignorant of the law.[15]Further, the clinics, based on their capabilities and reach are expected to provide solutions to smaller and self-solvable legal issues on their own. This may include meetings with administrative authorities and private bodies who are a party to the legal issue, and if necessary acting as a mediator between the aggrieved citizen and the entity whose action had caused grievance.Also, as many low-income families generally possess a large number of legal problems that remain unsolved due to overburdened legal services. Soonly if the clinic is unable to solve the issue to its entirety and the satisfaction of the people, even after trying everything it could, is it expected to bring the issue to the Legal Service Authority.
Legal Aid clinics can go a long way in promoting justice. Not just providing direct assistance, it can also engage in spreading legal awareness through street plays, competitions, and seminars etc. The essence is that it has to encourage as many people as possible to be aware of their rights and assist those people in solving any legal problems that they have. Many legal aid clinics adopt villages and slums around them and the students of those clinics make regular visits to the concerned area and listen and try to solve the issues. These can range from simple issues like lack of access to the educational facility to the people to other more personal issues like property disputes. In every situation the clinic is expected to solve the problem amicably is such is possible, only assisting the people in legal discourse if the mediation fails. This is reminiscent of real-life law practice, where it is expected to try out other remedies before diving into filing legal suits and petition. Legal aid clinics also associate with local NGOs and other entities to collaborate on projects that won’t be easy to achieve by either of them alone. This can range from providing backhand legal support to actively assisting in field operations.[16] They further might employ lawyers and other such resource persons to facilitate their work, with such persons agreeing for pro bono work.
Legal Aid clinics are not just critical in spreading the reach of justice, they can also play an important role in advancing the practical aspect of legal education while the student is still in Law School.[17] It is a known fact that in India, practical legal education is rare, and most of the learning in the academic year is by attending lectures where the teacher explains the concepts. The only time students get a chance to use their knowledge is when they intern during their internship breaks, but that is like peeking through a window when you should be walking out of the door. This leaves most students woefully underprepared to handle real life when they finally graduate from their law college. The case-book method that initiated in Harvard Law School and is followed in most of the Law Schools of the world works wonders in explaining the theoretical concepts but falls duly short in illuminating the practical contours of the law. This leads to students not having enough experience to handle the application of the law in real life, where people’s lives depend on their actions and minuscule mistakes can lead to disasters. Thus legal training via Law Clinics is of paramount importance.[18]This can be achieved to a substantial extent by participation in these clinics by the students in their time at their law colleges, where they get to taste the dynamics of the use of law for real-life problem solving, and helping others in the process.For the purpose of its functioning, a clinic can in addition to students have faculty who coordinate and guide the functioning of the Legal Aid Society.
- ISSUES AND POSSIBLE SOLUTIONS
Legal Aid Clinics still have to take the spotlight in legal education like other activities have taken. This is mainly because of several reasons as are listed below along with possible solutions that may lighten the said problems.
One of the biggest issues that the Legal Aid Clinics face is lack of motivation by the students to actually engage in the affairs. This can be due to general lethargy or due to lack of definable incentives that the students can believe in. The optional nature of the participation allows students to focus on more glamorous and monetarily rewarding ventures like Moot Courts, Paper Presentations etc. Thus legal aid while initiated as a noble and beneficial experience for both the needy and the students lack in the dazzling aspect of legal education.One way to change this scene in the colleges is if the BCI enforces the rule that clinical legal aid classes are mandatory, and are a part of the curricula.[19] Further, the participation should be marked, not under co-curricular activity, but as a primary course. It is often seen that many students tend to ignore co-curricular activities in favour of the ones in the syllabus. Thus this step will alleviate the problems that arise due to the putting it up as an optional subject. After this is enforced, the manpower for the Legal Aid Activities will be improved dramatically. A particular structure has to be implemented which will be used to admit students in the clinic. Generally, a Law School Legal Aid Clinic that is in the inception stage will need ten to fifteen members for the functioning. Hence depending on the circumstances, a certain number of members from the entire batch of 3rd year students of 5 year law course, or 2nd year students of 3 year law course can be taken as a members for a short fixed duration where they can be expected to serve the society as well as learn the practical nitty-gritty. Students in these years know the law papers enough to work appropriately, in the Clinic, and still have reasonable time not being in the senior year. Further, the students who are in 4th and 5th year of the 5 years course and 3rd year of the 3 years course can be chosen as senior members and student coordinators of the Clinic. The NALSA rules[20] even allow for an honorarium, subject to the financial resources of the State Legal Service Authority, even though the same is rarely followed up. Perhaps some incentives, financial or otherwise might be devised for the benefit of the students engaged in the work. The students can simply be given academic credit for their work, which would work wonders for involvement and enthusiasm for the Legal Aid work.The faculty also is generally unenthusiastic on actively working for the Clinic, as most of the so-called designated faculty who are assigned a duty to oversee legal aid activities aren’t given any benefits or perks because of this work. Thus they view this only as additional and unwanted work other than their normal job and thus their enthusiasm drains away.[21]They have to be provided with some definite benefits for their services. In the end though, it would be prudent to leave the exact details for the complementation and implementation of the above suggestion by the college authorities.
The second problem as stated above that many legal aid clinics face is the lack of resources. In India, while the number of law schools is on the rise, the same cannot be said about the quality of the schools. Thus the number of legal aid schools are a bad demarcation of the number of legal aid clinics. With only the top 100 schools that can boast of decent infrastructure, it is a delusion to accept that all of the 1200 plus law schools throughout the country will be able to handle a semblance of the legal aid program, much less create a Legal Aid Clinic.[22] The Legal Aid Clinics established also face a resource shortage and are sometimes unable to run its day to day affair. Some entities suggest that the clinics should be self-funded with the students pitching in whatever contribution that they can. But it is unfair to expect the students to bear the cost of operations as well as provide legal aid services. While definitely possible, such an undertaking would be a burden that many students would be unwilling to take. The consideration for resources is further compounded by lack of access to governmental funds for legal aid that the clinics are supposed to get, but in many circumstances are diverted somewhere else. Thus Law Schools are ultimately the entity that provides for maintenance of the clinics. It is a known fact that most Private Law Colleges are focused on profits rather than communal goods. Hence, the allocation of funds becomes an uphill battle for those students who seek to establish and maintain a legal aid clinic. Again, the rules of the BCI can be the rescue. It should mandate maintenance of legal aid clinics in every law school, and strictly debar schools that fail to do the same. Further, these institutions should have adequate facilities to tend to every student’s academic needs and orientation. Thus a minimum standard of education, infrastructural development, resource allocation etc. is essential for the progress of the system. BCI should out rightly refuse to give any accreditation to thatinstitute that fails to meet the minimum standard and withdraw the accreditation of those that have failed to adhere to these standards even after giving due time. Further, it should ensure that the minimum standards of the college are always followed.[23] This will curb the rise of law schools whose sole purpose is existing. The rise in quality will set a higher benchmark for any upcoming law school and force the current ones to upgrade lest they lose their authorization. The remaining schools will have no issues in managing and maintaining a self-funded legal aid clinic.
The third problem is that the Clinics face is a lack of awareness of their existence. One has to keep in mind that these clinics are designed to operate generally in rural areas. But for the most part, the people living in these rural areas are unaware of the existence of legal aids,[24] much less have clarity of how to take their assistance.[25] Compounded with the fact that advertisement and promotion of legal advice and assistance is a crime under BCI rules. These rules explicitly forbid any overt act to advertise legal service. This leads to the promotion of legal aid clinics gaining repute through word of mouth. It is apparent that advertisements can reach people when the word of mouth has failed. Further people in rural areas are more sensitive to the advertisement. A loud and flashy online endorsement won’t be necessary, with those who can afford and use the internet also being well off enough to afford legal service; but a mean of promotion like a card containing basic information like the name, address and phone number etc. of the legal aid cell. People have a tendency to keep something in mind more when they see physical evidence of it. Further, they can easily gain access to the clinic if they ever need to, provided they have these basic details. Perhaps the Legal Aid Clinics should be granted exemption from the rule. They should be allowed to promote their existence in a practical manner which would enable them to provide the villagers and people with a lifeline if they are ever in need of any legal help. More than that, it can allow the reach and dependence of legal aid and promote its working which is a result we are seeking for the justice of all.
Another aspect of Legal Aid clinics in India that is lacking is the extent of legal help that the clinic may provide a person. Indian legal constraints prevent the students from representing clients in most of the situations. In many other jurisdictions, the laws are not so stringent and the students are allowed to practice under the supervision of a senior. While, there are in fact certain limitations like education qualification, nature of the case etc., but allowing the students to actually appear in courts will go a long way in both helping those in need and growing the student as a future lawyer.
Lastly, the problem that the legal aid clinic faces is a lack of cooperation among legal aid clinics of different law schools operating in the same area. Further, this is compounded by a lack of communication and seclusion of the individual entities from other Legal Aid Clinics. The results of various conferences and seminars on the topic are rarely felt. This can be easily resolved by motivating the students to distribute exact areas of operation among their respective clinics in the area by mutual discussions. Even if active co-operation doesn’t materialize, one can still hope for a passive helpful presence. The results of the work done by a respective legal aid clinic will be shared among all those who are either actively working together or passively part of the system. This system of peer review would ensure the quality and amount of work done by a legal aid clinic doesn’t fall too far from the standard. The Legal Aid Clinic with the best results should be the one to set the benchmark for the work to be done.
This has to be clearly stated that the list of the issues aren’t exhaustive, but are a representation of the major challenges faced for the establishment of optimum legal aid clinics who are a representative of quality education. The solutions on the other hands are a perfect description of how to best solve the challenge with minimal disruptive impact on legal education, and harmonizing the clinical aspect to the academic aspect of learning along with providing the most prudent legal aid to the needy.
- CONCLUSION
In multiple jurisdictions throughout the world, legal aid is already a well-established concept.The concept originated in France in 1800s has achieved global recognition.In the US the opportunities to work in pro bono is part of the legal education, contrary to India where it is mainly optional and upon the discretion of the students who seek to join the clinic. The US Bar has mandated a particular level of Pro Bono work as necessary in getting a law degree.[26]While still in its infancy compared to the US Legal Aid Clinic setting, nonetheless, the US Style Legal Aid Clinic is gaining popularity in India. The focus on clinical education during the law course is a need of the hour. The Legal Aid clinics are still associated with social service and are not much incentivized for the students. Perhaps the Bar Council can learn from the other jurisdictions. It can mandate some fixed amount of pro bono work a law student would be expected to do during his academic tenure. These would go a long way in increasing the reach of clinical legal aid and making justice would be accessible to the needy. Legal Aid Clinics in law schools have diligently provided social pro bono services and legal assistance, but much work is still left to be done.[27]
There is an inherent problem with Indian education. It tends to focus more on quantity than on quality. This is a representation of the Indian population which allows the wheels of the education sector to accommodate as many as possible, at the cost of the quality students that can be produced. To counter this, most NLUs and reputed private institutions have a small and strict cap on student intake. There is a need to develop quality institutions like the ones mentioned above, and BCI should be reluctant to give certification to any college that fails to meet out the standards. As pointed out in the previously, the number of colleges won’t matter if most of them are unable to provide basic facilities for development of the student as a lawyer, and clinical legal aid can play in that. Other than that presence and involvement of a lawyer would go a long way in steam lining the work. The future of Legal Aid Clinics is rife with possibilities. It has the potential to develop into a strong legal body with an immense reach and the quantum to help both the society and legal education. In a country like India, a better and more pronounced Legal Aid Clinic culture is not just a blatant supposition but a felt need which can only be addressed by solving the issues plaguing their spread.
There has also not been a well-defined role and pronounced legislations in this field, which has to be rectified as soon as possible. Further discussions regarding the role of legal aid clinics are vital for the development of this establishment in Law. Legal Aid clinics hold the exponential potential to change multifarious things in the country for the better, it should be properly regulated to ensure it achieves what it has been established to do.
[1] 404 F.2d 571 (8th Cir. 1968).
[2]RichaKachhwaha, Access To Legal Aid In India: An Unfulfilled Promise?,LIVELAW (15 Mar, 2018 10:46 AM), https://www.livelaw.in/access-legal-aid-india-unfulfilled-promise/.
[3]Id.
[4] Code of Criminal Procedure, 1908; Order 33, Rule 9A.
[5] Law Commission of India, 14th Report, Reforms in the Administration of Justice, 621 (1958).
[6]Report on National Juridicare, Equal Justice – Social Justice, 87 (1977).
[7] 1978 AIR 1548.
[8]Manoharan v.Sivarajan&Ors. (2014) 4 SCC 163; see alsoMotilal v. State AIR 1954 Raj 241.
[9] Legal Services Authority Act; Section 6.
[10]Srd Law Notes, Constitution and Functions of the State Legal Services Authority, SRD LAW NOTES(2019) https://www.srdlawnotes.com/2017/03/constitution-and-functions-of-state.html.
[11]Legal Services Authority Act, 1987; Section 8.
[12] Rebecca Furtado, How To Get Free Legal Advice and Free Legal Aid in India, IPLEADERS (January 17, 2017) https://blog.ipleaders.in/free-legal-advicefree-legal-aid/.
[13]National Portal Content Management Team, Legal Aid, INDIA.GOV.IN (Feb 10, 2011), https://archive.india.gov.in/citizen/lawnorder.php?id=10.
[14]Legally India, In two years, number of law schools increased from 800 to 1,200: Now BCI hopes to put brake on mushrooming epidemic, LEGALLY INDIA (Dec 09, 2014, 6:21PM), https://www.legallyindia.com/lawschools/in-two-years-number-of-law-schools-increased-from-800-to-1-200-now-bci-hopes-to-put-brake-on-mushrooming-epidemic-20141209-5408.
[15] CHRI, LEGAL CLINICS, COMMONWEALTH HUMAN RIGHTS INITIATIVE (2019),http://www.humanrightsinitiative.org/content/legal-clinics.
[16] GUJARAT NATIONAL LAW UNIVERSITY, Report on National Seminar on Law School Based Legal Services Clinics, GNLU (July 30, 2017), http://probono-india.in/Indian-Society/Paper/76_Final%20Report-%20NALSA%20Seminar.pdf.
[17]Quintin Johnstone, LAW SCHOOL LEGAL AID CLINICS,3(4) JLE,535–554, 536,(1951).
[18]Pathik Arora, Legal training is of crucial importance, VANTAGE ASIA (Feb 20, 2019), https://www.vantageasia.com/legal-training-crucial-importance/.
[19]Yashu Bansal, Legal Aid and Legal Schools, ACADEMIKE(April 4, 2015) https://www.lawctopus.com/academike/legal-aid-and-legal-schools/.
[20] National Legal Services Authority (NALSA) Legal Aid Clinics Regulations, 2011; Rule 17.
[21]GoI and UNDP India, A Study of Law School Based Legal Services Clinics, UNDP(2011), http://www.in.undp.org/content/dam/india/docs/a_study_of_law_school_based_legal_services_clinics.pdf.
[22]Legally India, supra note 14.
[23]Krushna Chandra Jena, ROLE OF BAR COUNCILS AND UNIVERSITIES FOR PROMOTING LEGAL EDUCATION IN INDIA,44 JILI 557, 567(2002).
[24]Pooja P. Vardhan, Right to Legal Aid; A Constitutional Commitment, PRESS INFORMATION BUREAU(April 7, 2015, 2:51 PM), http://pib.nic.in/newsite/mbErel.aspx?relid=118011.
[25]Avani Bansal, Clinical Legal Education As A Means To Advance Access To Justice In India, LIVELAW (July 4, 2017, 1:57 PM), https://www.livelaw.in/clinical-legal-education-means-advance-access-justice-india/.
[26]Samarth Chaddha, The Differences between Indian and US Law Schools, NYU BLOG (Nov. 18, 2016),https://blogs.law.nyu.edu/lifeatnyulaw/the-differences-between-indian-and-us-law-schools/.
[27] New India Assurance Co.Ltd v.Gopali&Ors., A.I.R. 2012 S.C. 3381.
