Abstract
Clinical legal education has the potential to both utilise law students as agents of social change in India and create future lawyers dedicated to social, economic, political and legal justice. However, to serve these ends, the current system of clinical legal education requires a fundamental transformation. This article advocates legal education in which clinical components involve intense action aimed at positively serving traditionally marginalised segments of society and in which social justice principles permeate the entire law school experience. The article thus hopes to spark a conversation about steps to take towards such a transformation by outlining and discussing multiple alternative models and ideas related to a clinical legal education programme.
Introduction
Legal education institutions and the legal profession often promote themselves as being grounded in the promotion of justice, and indeed have the potential to serve that end. However in practice, a ‘shamefully large part of our profession in fact consists of the opposite of justice—actually taking from the poor and giving to the rich or justifying some injustice like torture or tobacco or mass relocation or commercial exploitation of the weak by the strong’ (Quigley, 2007).
The present article provides a brief overview of the potential redevelopment of a clinical legal education programme in India that aims to further the interests of social, economic, political and legal justice. 1 There is a tremendous ‘need to revisit and revitalize Clinical Legal Education as also the need to renew its focus on constitutionalism, the strengthening of student skills in the area of social justice – legislation and delivery of entitlements on the ground’ (Professor Javed Alam’s inaugural Address at CLE workshop). This article is intended to serve as an initial step to help local law colleges develop a robust pilot clinical legal education programme in line with these views.
Specifically, we will begin by providing some background information on the urgent necessity of developing and indeed reconceptualising clinical legal education in India. We will then explore various overall frameworks for a clinical legal education programme, and provide a brief overview of potential categories of clinical work and projects. From there, we will discuss the importance of developing appropriate guidelines, structure and supervision for clinical placements/projects. Finally, before concluding, we will advocate for the need to not only incorporate clinical components into the law school experience, but also expand the content of the existing curriculum.
Through these various parts, we aim to provide the building blocks of a vision for a transformed law school experience. We hope this article will help provide a launching point for discussion, debate and experimentation that can lead to a more robust legal education aimed at the ends of social, economic, political and legal justice.
Background
Clinical legal education dedicated to social justice has long been promoted by various officials, committees, and experts.
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Taking but one representative example among many, an Expert Committee on Legal Aid in the early 1970s declared:
A public sector in [the] legal profession is a benignant portent and is part of the legal aid movement … It is vital … that we introduce clinical legal education in our law schools with an accent in socio-economic poverty. Such direct student participation in handling the legal problems of the indigent clients is potentially one of mutual benefit to the student, to the legal aid scheme, and to the whole system. The recommendation is to include student legal aid work, including representation in court. This will be done under supervision by practicing lawyers as well as law teachers. (Expert Committee, 1988)
Despite numerous similar proclamations, in practice there has been a failure on the part of law schools, Bar Councils and policy makers to actually translate such principles into action (Bloch & Prasad, 2006: 176). Moreover, even the longstanding progressive recommendations for enhancing clinical legal education fall short of the type of transformative social justice clinics envisioned here. As Bloch and Prasad contend, the value of social justice ‘focuses on making the legal process an instrument of social development and on developing the legal profession as a vehicle for social justice. Socially relevant legal education can meet the constitutional goal of providing socio-economic and political justice by promoting a legal profession that can meet the needs of the common person through the rule of law and a progressive social order’ (Bloch & Prasad, 2006: 191).
Indeed, the goal of clinical legal education is not just to train lawyers, but to help promote—in the words of eminent advocate K.G. Kannabiran at the CLE workshop—an ‘insurgent jurisprudence’ which for instance recognises that the power of public servants only derives from individual citizens’ assertion of their rights:
public servants are people who are appointed and paid from the public’s tax money … [and who] are public servants because of citizens’ freedom of speech in favour of them … An insurgent jurisprudence is what is needed in their country because nobody obeys laws. There is no habit of legality; the government does not obey its own laws. The ride man also evades income tax, he evades sales tax. All the time, they are evading. No body questions it. When [Adivasis] claim rights, you accuse them of extremism. This is the scenario that is going on for the past 60 years.
As such, social justice law school clinics can and should act as a mechanism to not only provide students with useful skills and experiences, but also help (a) serve important legal and quasi-legal needs; (b) forge linkages with and amongst various marginalised communities, human rights groups, social movements and so on; and (c) ultimately create a social justice oriented body of lawyers that can begin to tackle the immense failings of the current legal system and work toward making the legal profession a force for securing social, economic, political and legal justice.
With respect to providing students skills and experiences that can be useful in later careers and advocacy, a law school clinic can give law students their first experience working with clients and preparing cases, understanding legislation and policy choices, interacting with various groups and organisations, becoming part of social movements and so forth. It also offers students the chance to begin with limited caseloads or other work, while having the guidance of a professor and/or placement supervisor.
With respect to serving legal and quasi-legal needs, social justice clinics can fill in current gaps of the legal profession for serving public interest ends. The focus of the clinics should not only be about learning for the students, but the students and the clinics themselves can serve as important actors fighting for social, economic, political and legal justice. Whether providing direct legal services to indigent clients, helping tribal communities file a public interest litigation (PIL), or engaging in legislative advocacy for the repeal of oppressive laws, such as the Armed Forces Special Powers Act, there is a definite need for additional actors working towards these ends. Students and clinics can play an important role to fill part of that need. For example, current Delhi High Court Justice Muralidhar has written, in the context of direct legal services to individuals accused of a crime, that there are simply not enough lawyers in the country who can provide the necessary legal assistance required to ensure defendants’ fundamental constitutional rights. As Justice Muralidhar specifically claims:
Given the number of criminal cases that have not yet crossed the first stage of trial and the indispensability of a lawyer for defending an accused in a criminal trial, a very large body of lawyers would be required … If indeed the presence of a lawyer at the time of arrest of a person, at the stage of being taken into police custody, at every subsequent stage of the criminal justice process is seen as imperative to ensure the rights of the arrested person to a fair trial, the number of lawyers in the country is far too inadequate. (Muralidhar, 2004)
Clinical legal education can help to fill this and other gaps in services and advocacy for underserved populations. By bringing lawyers-in-training forward to provide legal and quasi-legal services (with supervision) to sections of the population whose access to lawyers is limited, clinics can provide an important source of assistance to those who need it but are not able to get it otherwise.
Regarding linkages with various segments of the population and other advocacy groups and movements, it is imperative for clinics to become tied into ongoing efforts toward social justice in various realms in order to help support these efforts and learn from them. Moreover, a goal of clinical legal education should be to give law students experience with more marginalised sections of the population in order to learn about the needs and requirements of people whose situations might be very different from the people the students might work with in a more traditional legal practice. Professor Javed Alam, during his inaugural address of the CLE Workshop, observed that legal clinics are intended ‘basically to make people, who are doing law, connect with different popular movements of rights’. In a similar vein, clinical legal education can help students understand the real world uses and relevance of the cases they are reading and the doctrines they are learning. It can transform what might otherwise appear to be a rather abstract subject into the actual reality of the law as a living concept whose everyday applications affect millions of lives.
As Meera Velayudhan observed during the CLE Workshop:
It is necessary for a collaboration to happen [for example] between a law teacher who is teaching environmental law and an environment rights groups that is actually working in the city on issues of biodiversity, on issues of sovereignty of indigenous communities over land and resources. That kind of collaboration is necessary whether you are working on violence, you are working on bioethics, you are working on scheduled land rights whatever it is you are working on, for the law teacher to open up the classroom not just for discussion by the students but to open up the classroom to the groups that are working with the laws that she is teaching in the class.
In fact, linkages with various groups, communities and organisations should also inform the content of the clinical legal education itself. 3
Finally with respect to creating a social justice oriented body of lawyers, clinical experiences of the sort just described would hopefully shape students’ values and philosophies. Perhaps these types of experiences could inspire some or many of these students to make working with traditionally under-served sections of society an element of, or the goal of, their own future careers. Just as clinics and students can help fill the immense need for social justice oriented legal services, actual practicing lawyers can serve as a longer term force for meeting that need. Whatever professions students ultimately pursue, it is important that the social justice components shape their understanding and use of the law. Social justice clinical legal education has the potential to promote a conceptualisation of the law and lawyers as forces representing, serving and working with the most vulnerable members of society, rather than the most wealthy and powerful.
Possible Overall Frameworks of Clinical Courses
Given the foregoing discussion, a fundamental transformation in the conceptualisation and implementation of legal education needs to take place. One essential component of this new vision of legal education is a robust clinical component, wherein students will engage in some form of legal or quasi-legal social justice work as part of their curriculum. While the next section will discuss possible substantive areas and types of work, this section will focus on the overall framework, or type of clinical programme, within which the actual placements and assignments will happen. In other words, there are numerous different possible ways of organising a clinical programme, and this part aims to identify several such possibilities. The various schemes discussed here are by no means intended to be an exhaustive list, but rather a point of departure from which to develop a programme. Moreover, there could be any number of different combinations and iterations of the programmes mentioned.
External Placements with Separate Clinical Teacher/Supervisor
The framework that would probably be the easiest to implement in a quick manner would be to have a separate clinical course that involves assigning students to an external placement. These placements could include such options as working with individual advocates, human rights organisations, policy advocacy groups, local authorities (such as the integrated tribal development authority), government offices, social movement activists, research institutes and so on. Under this option, a clinical course would be one amongst many courses that a student takes. The course would be self-contained without connections to other courses a student is taking. The instructor of the course would have to develop a curriculum for the course. This model essentially corresponds to what appears to be currently taking place in various law schools across the country for clinical courses. However, even under this model, significant changes and steps could be taken to improve the robustness of the clinical experience. For instance:
The selection and development of the organisations or advocates serving as the external placements should be given the utmost priority. Many students and teachers have told stories about students being placed with various organisations and not having a very worthwhile experience. Often organisations with which students are placed are themselves strapped for resources and staff members, and properly supervising a student requires a good deal of time and energy. As such, placement organisations should not just be sites where the law school blindly sends students to work. Rather, significant collaboration and linkages between the law school clinical programme and the external placements should be fostered and developed so that long term relationships, projects and programmes can be carried out and have continuity from semester to semester and student to student. The law school clinical programme should make serious efforts to reach out to individuals and organisations in the areas surrounding the law school in order to begin to form the types of relationships that will allow a clinical programme to thrive. For individual placements, the law school faculty and people at the external placement should collaborate together to (a) understand some of the needs of the organisation and the people they are serving, (b) discuss together some of the ways in which students could help the organisation carry out its work or achieve its objectives and (c) develop a clear programme for students to follow upon working at the placement, including for example research to undertake, briefs or policy papers to write, community mobilisation or education efforts to support, direct services work to provide, legislative advocacy or court appearances to participate in, or any number of other tasks appropriate for the particular placement organisation and the skill set of the students. Significant guidelines and programme objectives, like those that will be discussed later in the article, should be developed in order to give students a proper framework within which to undertake their external placements. Students should not just be sent out to an organisation, but should be participating in a well developed programme. Each clinical course that involves an external placement should be more than just an outsourcing springboard and rather should be a fully developed course. The clinical course should have both the external placement component as well as a classroom component. The faculty in charge of the classroom component of the clinical course should develop an overall curriculum for the students involved in the external placements. The faculty’s role would be that of teacher as well as supervisor. The classroom component of the clinic undertaken in conjunction with the external placement should provide students with the requisite substantive background with which to pursue their placement, and should provide an environment where students are able to reflect on their work and relate it to the lessons learned in the class. As many participants in the CLE workshop suggested, law schools should create an ever expanding list and database of potential placement organisations and there should be continuity from semester to semester in terms of the collaboration between organisations and the law school and in terms of the projects undertaken by students. The law school clinical programme and the placement organisations should ensure that students serve a useful role for the placement organisation, its objectives and the people it serves. Efforts must be made to ensure that students are only placed with organisations that view the students as bringing value to the organisation and where the students do in fact bring value. Ultimately, the student’s participation in the clinical placement must be beneficial to both the placement organisation and the student.
External Placements Integrated into Other Academic Courses
One possible variation on the above framework would for the external placement to be integrated not only with one separate classroom component of a clinical course but rather with all, or several, of the other academic classes that a student is taking. Under this proposed framework, students would still take a clinical course and would still have an external placement and all of the above recommendations would still apply.
In addition, though, the law school would try to interweave other academic courses a student was taking with the external placement. Specifically, given that most if not all courses involve the writing of papers, then the topics that a student writes about for a given paper could apply the substantive law taught in the course in question to some aspect of the clinical placement. The students would still have separate work for their academic classes and their clinical placements, just as in the above external placement approach, and supervision and evaluation of students’ work in each setting would still be done separately by the academic course instructors and clinical course instructors respectively. However, the subject matter of the academic course work would be tied to the subject matter of the external placement. Under this approach, academic course instructors would need to have some degree of flexibility in allowing students to choose topics for course papers that connect to the work of their external placement. There would also have to be some level of coordination between academic course instructors and clinic placements so that the instructors have some level of understanding of the work of the clinic placements.
For example, if a student is taking a tax law class and has an external placement with an organisation fighting for the rights of tribal communities, then the tax paper that the student writes at the end of the semester for her or his tax law class could involve something related to the impact of the revenue code on the land rights of tribal communities. The purpose of such an approach would be to encourage students to write a paper applying the doctrinal lessons learned in their non-clinical academic courses to the subject matter of the work they are doing at their external placement. This method would both help students recognise the real-world impacts of the laws they are learning and provide a broader perspective and background context for their clinical work.
Internal Clinic as Separate Course or with Integration of all Courses
As an alternative option to only placing students in external work assignments, the law school clinical programme could develop one or more internal clinics. This internal clinic could be operated and run by law school faculty. It could serve as a quasi-organisation in and of itself. It could create and run its own developed projects, with students and faculty serving as the ‘employees’ of the clinic. The internal clinic could operate as one option among many placements, such that students could choose from amongst various external clinics or the internal clinic. As an example by way of comparison, at Harvard Law School there are several clinical programmes that use external placements (such as child rights, death penalty, education and immigration clinics) and many that are clinics based solely at the law school without any external organisation’s involvement (such as a criminal defense, human rights and various civil legal services clinics) (Harvard Law School, 2012).
The internal clinic(s) could choose to take on a substantive topic or a type of work that is currently not being done in a geographic area. For example, if there is a need in an area for assistance to prisoners to file bail applications or otherwise receive free legal assistance during the pre-trial stages of the criminal process, and there is no organisation successfully taking on such work, the law school could develop its own criminal defense clinic. Filling in a necessary gap in the provision of legal services (or in legislative advocacy, or community mobilisation, or other areas) in this manner would serve the above discussed function of utilising the law school clinical programme as not only a mechanism for developing young lawyers but also seeking itself to bring about social, economic, political or legal justice.
Alternatively, the internal clinic could develop its own projects in collaboration with other organisations that are already taking on a certain type of substantive topic but could use the assistance not only of a few students here and there but of a separate programme that can complement the ongoing work. For example, suppose there is a community group in a tribal area that does a lot of community mobilisation work and could use a solid structure for providing legal assistance for that work. Sending some students via an external placement may be enough to assist that organisation, but perhaps having a separate programme dedicated to a particular aspect, such as doing complementary legal work, could be more valuable in certain circumstances.
Just as with respect to external placements, the internal clinic could be either a separate class or one integrated with the remainder of a student’s classes.
Cluster Approach: Cluster together Different Clinic Opportunities with Different Classes
As a further step toward integration of clinical courses with the remainder of the academic classes students take, a law school clinical programme could utilise a cluster approach. Under this model, the law school could ‘cluster’ several academic courses together with one clinical course and offer students the opportunity to choose amongst various clusters. The cluster would simply be a bundle of courses that were all relevant to the particular subject matter and practice skills of a clinical course. In other words, the law school could identify relevant courses that would help a law student be successful in the practice of the clinical work and offer those courses to students interested in pursuing that clinic. To be involved in the clinical programme, either the student could select to participate in the entire cluster, or the law school could make it mandatory to select the entire cluster. Then, students in a given cluster could be all together in all of their classes, so that all of the classes could be fully integrated into the clinical programme and vice versa. Each cluster would be akin in many respects to the type of programme at the School of Social Work at Tata Institute of Social Sciences, described by Ms. Anjali Dave at the CLE Workshop, wherein a student’s field work placement is integrated with a student’s curriculum and indeed constitutes one third of a student’s credits.
For example, there could be a criminal justice cluster. In this cluster, a student could participate in an in-house criminal defense clinic, like that described in the preceding paragraphs. That cluster could also include several courses that would help a student succeed in the clinic as a student criminal defense attorney, such as criminal law, criminal procedure, constitutional law, human rights law, or whatever classes the law school selected to be most appropriate to fit with the work and goals of the criminal clinic. Thus, if the student chose the criminal justice cluster, s/he would have to take these selected courses: criminal clinic, criminal law, criminal procedure, constitutional law and human rights law. As another example, a tribal land rights cluster could involve: an external placement with a land rights NGO as the clinical component, along with the following academic classes (or whichever courses the law school deemed most appropriate): property law, civil procedure, tax law and research methodologies. As a third example, a law school could have a gender-based violence cluster including: an in-house gender based violence clinical, along with criminal law, family law, property law and gender studies. Or a migrant workers cluster could include: some in-house or external clinic along with employment law, corporate law, labour law and poverty law.
The optional clusters presented here serve as but a few examples. The same cluster approach could be used with any number of different types of clinics. Also, the types of clusters, and the types of courses within each cluster, would have to be discussed and decided upon by the law school. In any event, even more so than the approach described above in which all law school papers would be focused on some aspect of the clinical work being undertaken by a student, the cluster approach aims to fully integrate the doctrinal and practical components of the law school curriculum. Every class that a student takes would be interconnected with the clinical component. Faculty members teaching different courses within the same cluster could even collaborate together to ensure the integration of the overall curriculum.
The cluster approach itself could take on a variety of forms. For instance, for a five year law school, during the third and fourth years it could be mandatory to select a different cluster every semester. That way, the first and second years could be used to allow students to take any required classes. The final year could be used for students to develop their own cluster: students could develop their own clinical project, either in conjunction with an existing clinic or on their own, and decide upon the appropriate classes to fit with their chosen clinical project.
As another option, the clusters could start from the very beginning of the first year, with appropriate modifications for the available courses, or could just be used during any number of the years. For example, at the Social Work School at the Tata Institute described by Ms. Anjali Dave as noted above, all students in that programme—upwards of 190 students—receive field work placements beginning in the first year. Alternatively, a ‘cluster’ could simply be an option for those who are interested, meaning that the clustered courses could be issued as recommended courses to take with a particular clinical, or as prerequisites for the clinical that a student has to have taken either before entering the clinical or after.
Furthermore, one possibility for any of the above options would be to have the clusters set for each semester that the cluster approach would be in place. For example, the first semester of the third year could be the criminal justice cluster; the second semester of the third year the tribal land rights cluster; the first semester of the fourth year could be the gender-based violence cluster; and the second semester of the fourth year could be the migrant labour rights cluster.
Alternatively, there could be any iteration or permutation of the above. In whichever form, the main purposes of the cluster approach would be to more fully integrate the practical and theoretical/doctrinal aspects of the law school education, as well as give students the opportunity to survey various types of public interest legal work. Whether the assigned clusters were mandatory for all students, mandatory for those who participate, or optional even for those who participate, the approach would help to ensure the law school curriculum aims to develop an understanding of the practice of law as a means of bringing greater social, economic, political and legal justice.
Alternating Academics and Practice
Another possible alternative framework for a clinical programme would be to alternate every eight or ten weeks between taking academic courses and engaging in practical clinical placements (Northeastern University, 2012). Students would spend eight or ten weeks taking an appropriately designated number of academic classes. Then, students would spend the next eight or ten weeks exclusively working full time at an external placement or an in-house clinic. During the clinical intervals, the students would not take any classes, other than a course component to the clinic and during the academic intervals, the students would only take academic classes. During every eight or ten week interval dedicated to clinical work, the student would have to choose a different clinical placement. The main objectives of this framework would be to provide students with an opportunity to survey a variety of different types of public interest legal or quasi-legal work and to get a fuller sense of those different types by working full time at each placement.
Mandatory vs. Non-Mandatory Participation
For any of the above formats, the law school will have to make a decision as to whether the clinical component of the legal education will be a mandatory or non-mandatory part of each student’s academic undertakings. Each would have its own pros and cons. If the clinical component was mandatory, the law school would ensure that every student who went through the school would be exposed to the kinds of lessons being conveyed through the clinical component. Even if the bulk of these students were not intending to pursue a career doing social justice lawyering work, perhaps the clinical component could help bring more students in that direction or at least impact how these students act in their later professional careers as corporate lawyers, government officials and so on. Making the clinic mandatory would also provide a larger number of individuals who could assist in social justice oriented work through the clinics. On the other hand, the more students involved, the more difficult it is to adequately supervise and teach students. Moreover, making the clinical component a requirement would mean that many of those involved might not be as dedicated to the causes with which the clinic is concerned and in turn might not be as motivated to work hard in the clinic or to pursue social justice lawyering work after graduation.
By contrast, having the clinical component be non-mandatory would mean that there would be smaller class sizes to work with and supervise, which could make the experience easier for teachers and more worthwhile for students. Similarly, those who would choose to participate in the clinic would likely be more motivated to participate in the clinic and to pursue social justice lawyering work upon graduation. On the downsides, the remainder of the students who did not choose to participate in the clinic obviously would not learn the lessons and values espoused by the clinic and there would be fewer students engaged in work that could be beneficial to more marginalised and underserved members of our society.
These various pros and cons would have to be weighed within the particular context of a given law school, in light of the faculty and resources available, the preferences and priorities of the school and so forth.
Content of Clinical Projects/Work
The various frameworks discussed in the previous section represent just a few amongst many possibilities and iterations. For any of these or other frameworks, however, there can be a variety of different a) types of work and b) substantive topics of actual clinical projects.
Types of Work
With regard to types of work, social justice clinics discussed throughout this concept note might be most consistent with clinical courses that engage students in direct, individual legal services. A student, under the supervision of a faculty member and/or an outside supervisor, could be assigned a small number of individual clients in any number of substantive areas of the law to provide direct legal services. The Expert Committee on Legal Aid of the 1970s in fact promoted such direct services work by students by calling for amending the Advocates Act to allow for ‘Statutory adoption of Student Practice Rules enabling law students to appear in court on behalf of indigent clients’ (Expert Committee, 1988). This Committee even suggested that students undertaking clinical work be given a stipend and have the opportunity to become ‘admitted to the collegium of legal aid lawyers’ in order to help them begin a ‘professional career in legal aid work’ (ibid.). 4 Clinics involving direct legal services could undertake such work as representing clients in administrative proceedings, helping individuals obtain government provided benefits, or advocating before quasi-judicial bodies like the National Human Rights Commission. It is also possible that clinical students could, for example, take action to look into why tribal land claims have been rejected; or to support women and children survivors of violence. 5
Similar to direct legal services work, clinics could become involved in public interest litigation (PIL). As the standing requirements for PILs are broad, students could assist in filing such cases without any need for rule changes or special permission. Similarly, students could be assigned to work with lawyers who do appellate or constitutional advocacy before a given High Court or the Supreme Court as another type of clinic. Although the student likely would not be able to appear before such courts, the student could be involved in all stages of preparation.
In addition to these traditional forms of legal assistance, clinics could partake in legislative advocacy. Working with existing organisations or independently, such clinics could support students to undertake research on current, pending, or needed legislation and write up advocacy reports to be circulated to members of state assemblies or Parliament, submit editorials or articles to various media publications, file petitions, or undertake any number of forms of relevant civic engagement. Participants at the CLE Workshop, such as SAMA public health activist Anjali Shenoi, discussed the usefulness of the participation of law students and legal clinics in policy advocacy in such areas as bioethics regulation, women’s rights legislation, farmers’ rights and so forth.
Similarly, clinics could pursue field research and advocacy related to any number of topics. Again working with existing organisations or independently, students could undertake short or longer term visits to designated sites such as prisons, individual communities, slum areas and tribal villages, among others. Students could conduct interviews with individuals affected by whatever topic they are focused on, government officials, advocates, activists and so forth. For instance, a clinical project could involve conducting research on the provision (or lack thereof) of electricity in neighbourhoods on the outskirts of the Old City in Hyderabad and students could thus interview people living in those neighbourhoods, representatives of the Greater Hyderabad Municipal Corporation, MLAs and so on.
Broadening out, students in clinics could be involved in community action/empowerment projects. For instance, students could work with traditionally marginalised individuals or groups and undertake such activities as awareness raising, legal education, know-your-rights campaigns, developing or supporting community organisations, promoting livelihood activities, and so on. Clinics could also make connections with more activist pursuits, or work with broader social movements. In the words of Adivasi leader, Sidam Shambu:
Many Adivasis have sacrificed their lives in the struggle for the community … firing by the cops on people claiming land rights are responsible for many lives … Many laws for the protection of forest rights have come up but are not implemented and we are still struggling for the rights … There are no schools, roads, or reserved forests for the tribals. Where is the Constitution and where is the justice for us? … I am requesting all the intellectual body, lawyers fraternity, these groups to be in support of their struggle and agitation.
As another Adivasi leader, Krishna Rao, stated: resistance to bauxite mining ‘is seen as Maoism and the Adivasi resisters are slapped with cases as dubbed Maoists’. As another Adivasi leader, Padala Bhudevei, related:
Mahatma Gandhi said that ‘freedom is achieved only when a woman can walk without fear at night’ but we can’t even walk in the morning. Sexual humiliation of young women is high and they cannot even question or go to a police station. Non tribals are able to access justice but not tribals … We are happy to ... present our issues before young and budding lawyers to attempt to influence the young minds as they are learning law.
Given such struggles and such openness to student legal help, students could take measures to join in movements, for example, fighting for forest rights, rights of those displaced by dam projects, rights of tribal woman against abuse, or rights of all to be free from the use of fake encounter killings, arbitrary detention and other harsh security measures by the government. Students could pursue or participate in various activities in this regard, such as people’s tribunals, media advocacy, marches, rallies, protests, public hearings, visual art, street theater, or other methods (Bloch & Prasad, 2006). In Telugu writer Volga’s words, ‘I was exposed to court when I was 20 years old, in Visakhapatnam where the Parvatipuram conspiracy case was going and there the criminals were having lot of fun, all the revolutionaries like Choudary Tejaswarao were singing songs, slogans and we got all inspired by those songs’ (Volga during CLE Conference).
Substantive Topics
Turning from the types of work to the substantive topics with which clinics could engage, students could pursue work in any number of practice areas, some of which have already been mentioned in different parts of this concept note. As a representative sample, substantive topics could include: criminal defense, tribal rights, gender-based violence, LGBTQI (lesbian, gay, bisexual, trangender, queer and/or questioning, and intersex) rights, child rights, land rights, communal violence, government benefits, housing law, civil rights, prisoner rights, labour law, employment law, negotiation, human rights, refugee law, migrant rights, education law, right to information, family law, health law, environmental law and so forth. For instance, a student in a criminal law clinic could help to file bail applications for undertrial prisoners. Someone involved in a civil rights clinic could engage in impact litigation related to provisions within the Unlawful Activities Prevention Act that place undue restrictions on the freedom of speech. Someone involved in the migrant workers clinic could undertake research and advocacy related to individuals who seasonally migrate from Chhattisgarh to Andhra Pradesh to harvest chilies. A person involved in the gender-based violence clinic could represent individuals who have been abused in order to obtain counseling and other services. A person involved in a refugee clinic could undertake legislative advocacy to pressure the government to adopt a progressive national law protecting refugees. The possibilities are infinite.
Overall, then, there are innumerable different types of work and substantive topics that law school clinics could adopt and carry out, within any of the various frameworks outlined in the previous section. It should be noted that in designing any of these types of work and substantive topics options, the various goals of a social justice clinical legal education, outlined in an earlier section of the article, must be remembered. Clinical placements are not only for student learning or even for the benefit of the organisation with which students are working, but also for the intended beneficiaries of legal and quasi-legal services. In other words, the clinics should not simply be designed to have students doing a project for the sake of a project. Rather, as noted above, in an era with a lack of quality lawyers engaging in social justice legal and quasi-legal work, law students (and faculty) can play an instrumental role in providing important legal services and bringing about greater social justice.
Developing Guidelines, Structure, and Supervision for External or Internal Clinical Placements
Regardless of the particular form that a clinic takes (internal or external, direct services or legislative advocacy, criminal defense or tribal rights), for many students a good clinical experience will be tied to the amount of structure and supervision offered. One hears countless stories of relatively pointless internships in which students were not given substantive work, often did not have anything to do and spent time at the placement on the internet or in other unrelated endeavors. It is not uncommon to find that students viewed participating in internships with rights practitioners as ‘soft’ internships completed during the early years of school before moving to the ‘hard options’ of judicial clerkships and corporate internships. At the same time, experience hosting interns indicates that providing a quality internship or clinical experience that is helpful to the student, the host organisation and the intended beneficiaries of the clinical project requires significant work on the part of those organising and supervising.
At an initial level, there should be general instructions/guidelines for all clinical students (as well as teachers and administrators). While the specifics of such guidelines are beyond the scope of this article, they should include such topics as expectations of students, reporting, supervision, evaluation, methods of communication, use of materials, methods of citation, helpful resources, calendar of assignments/meetings/events, overview of the general purpose and goals of the clinic and so forth.
More significantly, the clinical faculty should develop in conjunction with any external placements the specific programme for each student or group of students participating at that placement. Together with students, faculty and placement supervisors should develop specific goals, tasks and assignments for the semester long clinical placement that are possible to be achieved in the designated time. The goals, tasks and assignments developed should be selected based on such criteria as: the interests and abilities of the student, the educational value for the student, the benefit to and integration with the placement organisation’s ongoing work, the benefit to the intended people served by the project, the need for such services and so on. Moreover, there should be some form of ongoing supervision both by the placement supervisor and the clinical faculty.
In addition to these basic requirements, the clinical faculty should develop a system of ongoing collaboration, feedback and direction with and amongst students to help ensure that the students’ experiences continue to progress positively during the course of a clinical. This system should help to improve the skills of students in the types of work they are undertaking, create a positive atmosphere in which to provide feedback and encouragement, help students deal with potentially negative impacts of vicarious trauma or other stresses that might arise from experiences with difficult situations and circumstances of clients or communities with whom the students are working and so forth. There are several different types of activities that could be used by the clinical course that could work separately or in conjunction with each other to improve the clinical experience for students. Some suggestions include using the following over the course of a semester of clinical work:
The classroom component of the clinical could involve a skills building programme, which could include such skills as: how to conduct research (via various research methodologies and types of research), conduct interviews, build-interpersonal relationships with clients, co-workers and community members, undertake negotiations, argue before a court, testify before the legislature, draft legal documents and so forth. Again, it is beyond the scope of this note to outline how to carry out such skills training sessions. A system of case rounds could be used to allow students in the clinical to share their work experiences, obtain feedback and suggestions from fellow students and the clinical faculty and learn about the work experiences of other students. Under this type of model, perhaps two or three students could each week share some aspect of the work they had thus far engaged in. The students presenting could speak for several minutes about a particular case they were working on (if involved in direct services), some problem they had recently encountered, for instance, and then the other students in the class and supervising faculty could participate in a discussion with the student about what the student had shared. Students could be required to write a weekly reflective journal of around two to four pages in which they describe the work they have undertaken over the course of the week, any challenges they faced and so on. The faculty member of the clinical course and the supervisor at the placement should read these journals and provide feedback in writing or in person. Given that faculty members themselves will have limited time with which to interact with each student, the clinical programme could establish peer-to-peer support groups. Each student in the clinical could be matched up with either a student currently taking the same clinical or better yet a student who had taken the clinical in the past. If possible, it would be best for former students at a particular placement to be matched with students at that same placement. These elder students could act as quasi-mentors for the newer students, help with background information prior to the start of the clinical and provide various forms of assistance along the way. All students at a given placement could have a weekly or bi-weekly group meeting at that placement with their placement supervisor to discuss the ongoing work of the organisation and the students and allow the students the opportunity to raise any questions or concerns regarding their work. Evaluation of students in the clinical component of their coursework could be done in collaboration between clinical faculty and placement supervisors and could be based on the degree of active participation in the above listed elements, including work at a clinic placement, classroom skills building programmes, reflective journals, peer-to-peer support groups and group meetings.
Again, these examples represent some possible mechanisms by which students could have ongoing interaction and feedback related to their clinical work. Of course such mechanisms could take a variety of forms other than those outlined here. The important aspect is that there are continuous mechanisms of feedback and discussion about the work that students are undertaking.
Modifying Curriculum of Individual Courses Outside of Clinical Work
As noted earlier, there is a need for a fundamental transformation in the conceptualisation and implementation of legal education. The idea behind this article is not simply to add a clinical component into an already existing law school curriculum. Rather, there is need to bring about a re-orientation of the entire law school curriculum in a direction geared toward the promotion of social, economic, political and legal justice. In this vein, modifying the existing curriculum for academic courses currently outside of the clinical aspects of the law school will be very important for achieving this broader objective. While the curriculum for each course would have to be developed on a course-by-course basis, this section aims to outline a small number of important guidelines for partaking in such curriculum modifications. 6
At a basic level, courses should be infused with, and start from, a social justice perspective. Any cases, codes and commentaries studied should be read and critiqued with consideration of the impacts of the law on more marginalised members of society. It is particularly important that a gender perspective figure prominently throughout the law school’s course curriculum. There is a need to incorporate the long history of the law’s failure to protect women as bearers of rights operating in the public realm through a lens of social justice and the struggles by feminist activists and scholars to push these frontiers. Given the historical and present patriarchal nature of the law and legal institutions, it is important that again the law is read in light of the impacts on different genders, the historical circumstances within which the law has been written and critiques from various segments of feminist and gender studies scholars.
At a minimum, it is essential that the curriculum in currently available courses be expanded to include legislation and judgments that have a greater impact on more marginalised members of society, such as the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, or the National Rural Employment Guarantee Act. Where possible, creating additional courses focused specifically on social justice oriented topics would also help promote the proposed re-orientation.
In addition, as with the inclusion of various acts and judgments, curricula could include a list of academic readings related to social justice, which could be included in various courses. Moreover, it is important that non-law courses are added or modified to help support the social justice orientation of the clinical legal education promoted here. For example, particularly for those students who will be involved in any type of research for their clinics, whether it be an actual research project or even research for an individual case, it would be very important to include within the curriculum a course on social science research methodologies.
Further, similar to increasing social justice oriented books, essays and articles, it would be useful to have as part of the curriculum such separate courses as literature, history, economics, sociology and political science that also incorporate the same type of social justice, gender and other perspectives of traditionally marginalised groups. Literature can foster new and broader thinking about the law, and the society within which law has developed and operates. In Telugu writer Volga’s view, an important part of clinical legal education should include literature ‘because a reader and also a writer of literature can influence and open the doors to the world’(Volga during the CLE conference).
Conclusion
In the context of India’s legal, social and political systems—where there are numerous progressive laws and court judgments, often improper or incomplete implementation of such legal protections, a large number of poor and poorly educated marginalised individuals and communities and where, as one CLE Workshop participant said, ‘everything is a racket’—there is a great need for lawyers who can take up social justice oriented legal and quasi-legal work. However, there is currently a considerable dearth in quality education aimed at producing such lawyers dedicated to serving the public interest. Clinical legal education holds out the potential to serve as this necessary bridge between the tremendous need for quality legal services and advocacy on the one hand and the lack of quality lawyers helping to fill that need on the other. Both in the immediate term of having students and faculty themselves pursuing social justice lawyering through the clinics and in the longer term by producing the next generation of social justice lawyers and by sensitising a broader swath of future members of the legal bar, clinical legal education can be a powerful force for social, economic, political and legal justice.
However, in order to fulfill this important role, a fundamental transformation in the current conceptualisation and implementation of clinical legal education must take place. Clinics in law schools can not simply be a separate ‘soft’ course that students take as a break from the rigor of their academic courses. Rather, the clinical components must involve intense action aimed at positively serving marginalised individuals or groups; and the social justice principles underlying the clinics must permeate throughout the law school curriculum. This article attempted to outline some elements of a vision toward such a programme and hopefully debate, discussion and experimentation will follow to figure out new ways for providing social justice clinical legal education.