In March 2022, Union Law Minister Kiren Rijiju informed Parliament that a total of 1,721 law universities and colleges are recognized and operating in India. With the object of equitable access to justice, establishing and operating a legal services clinic in law schools was made a mandate under the Bar Council of India Rules of Legal Education, 2008.
However, despite such a huge number of law schools, very few of them house functional legal services clinics making meaningful contribution to the community. In this article, I reflect on the causes of the failure of law school based legal services clinics.
Poorly designed interventions
Designing an intervention requires robust research which works as the foundation for such intervention. Understanding the problem is a crucial step towards finding the solution. However, due to lack of funds and expertise, law schools often make interventions and provide legal services without studying the gaps. This makes the interventions generalized and ineffective.
A successful model to study in designing an intervention is found in Project 39A, housed in National Law University, Delhi. Project 39A started as the Death Penalty Research Project (DPRP) with the sole aim of generating a report recording the plight of Indian death row prisoners and their families. The gaps in the administration of death penalty became obvious in the process, and the report formed the foundation for setting up the Death Penalty Research Clinic, which worked with lawyers who agreed to provide pro bono representation to convicts on death row. Gradually, the clinic broadened its area of work to include mental health of prisoners, torture, forensics and legal aid, which gave birth to Project 39A.
Lack of understanding of different models of legal services
There are two approaches a legal services clinic could adopt towards providing legal assistance to the marginalized:
1) A State-supported legal aid model, or
2) A pro-bono model which works as a parallel system to legal aid.
Legal aid is a welfare mechanism supported by the State to provide support to individuals who do not have the capacity to manage legal representation on their own. Generally, law schools tie up with District Legal Services Authorities to provide legal assistance to the needy. The role of the State is at the centre of the idea of legal aid, because the mechanism is heavily dependent on initiatives and funding from the government. In India, roughly eighty percent of the population is eligible for legal aid as per the criteria under Section 12 of the Legal Services Authority Act, 1987. However, there have been only fifteen million beneficiaries under the legislation, and as of December 2021, only 1% cases are under the belt of State-provided legal aid.
To fill this gap, an alternative to a legal aid centre could be found in a pro bono clinic. Pro bono comes from the Latin phrase pro bono publico meaning ‘For the public good; for the welfare of the whole’. Pro bono involves provision of free legal services on part of a lawyer to a client just as the lawyer would provide the same services to the client who is paying. All rules of professional conduct that usually apply are applicable to pro bono cases also. However, the State is not a party to this process.
Lack of understanding regarding the distinction between the two can cause an identity crisis for a legal services clinic not knowing whether it wants to work within the legal aid system or work parallel to it. Law schools should carefully study both models and make an informed choice as to whether they want support the system through a pro bono clinic or be part of it by actively oiling the machinery of the State.
Lack of full-time, specialised staff
The need for legal assistance is perennial and a legal services clinic (LSC) is bound to fail if it works as per the university calendar, which includes several breaks during the year. Further, LSCs are mostly student-driven and lack of guidance from experts makes legal aid a perfunctory activity in most law schools. It is important to recognize there is only a limited amount of contribution that students can make in cases where the stakes are high, including cases where personal liberty is in question. Students, in their formative years, need to work and learn with full-time staff funded by the university to provide effective legal assistance.
Integrating legal aid with law school curriculum
In India, law professors are not allowed to practice. Therefore, by design, academics are expected to limit their exposure to the domain of theory. In this situation, unless a professor has been a practitioner before joining academia, it is difficult to bring practice and theory together in the classroom. To make clinical education meaningful, there needs to be greater dialogue between practice and academia, as both can learn a lot from each other. Clinical courses should have active involvement of motivated practitioners with an academic bent of mind, so that such courses are taught in a meaningful way.
Elite law school culture
The claims of leading law schools in India harbouring an elite culture are not unfounded. In such law schools, education is provided almost exclusively in English, though they have students from across the country. The entrance examination for admission to leading law schools is written in English. However, to provide effective legal assistance to the impoverished and marginalized, localized efforts are needed which require robust understanding of culture and language of the surroundings in which the law school is located. It becomes a struggle for students to relate to the community around the law school and concerted efforts are needed so that the students embrace the grassroots. LSCs require greater participation from students from the communities which are the targeted beneficiaries.
The legal clinics run by VM Salgaocar College of Law are an interesting case study on this point. The clinics are purposively located in residential vicinities and members of the cells are chosen from students living in those localities, because they have a better understanding of the local problems. Instead of conducting legal awareness programmes at the college, they are conducted in public places for easy access to the intended beneficiaries. The college collaborates with NGOs and visits anganwadis, mahila mandals, schools etc.
To conclude, the Bar, Bench and academia need to work collaboratively to ensure continuous dialogue towards finding concrete ways to make legal aid effective. Law schools have the capacity to make meaningful contributions, provided their potential and their limitations are recognized and worked upon. Most importantly, any initiative to provide legal services should be backed by strong research and a full-time team of motivated individuals.
Anubhav Raj Shekhar is an Assistant Professor of Law at BML Munjal University. His twitter handle is @anubhavraj92.