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What is research
Research is a continuum
ALL RESEARCH is the gathering of evidence or information for
ascertaining an assumption or verifying some hypothesis. Research is,
therefore, an enquiry for the verification of a fresh theory or for
supplementing prevailing theories by new knowledge. No research can
be purely new, as even original discoveries are an extension of the search
already undertaken, being shaped generally as expressing agreement or
refutation or plain addition. A researcher is thus unavoidably burdened
with the heritage of information already collected in his area of work.
Communicated information, i.e., knowledge is the universal property of
mankind and its sharing is not encumbered by any inherent limits in
terms of time or number. Man-made barriers and devices which obstruct
the free flow and sharing of information do exist in society. The motive
for not sharing knowledge can be pure selfishness or pure public
spiritedness. In the former case, it is for the preservation of some vested
interest, whereas, in the latter case, it is to safeguard the interest of the
society, i.e., to protect its physical or mental health. Non-disclosure of
the scientific know-how of nuclear energy to many nations today, and
prescribing Socratic thought in 300 B.C. may both be read as illustrations
ofthe same protective process. However, the futility of keeping knowledge
secret is obvious. There cannot be a planned suppression of knowledge,
though its communication may, with some effort, be limited or delayed.
Resurrection of buried ideas is implicit in the development of human
society. Like rivers, acquired human knowledge does not flow backwards.
It is not open to any individual or generation to proclaim self disinheritance
from already acquired knowledge. Research is thus a continuum.
Professor, Post-Graduate Department of Law, Poona University, Pune.
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selected citizens is one of the methods adopted for making such prelegislative research. Skilled men are supposed to collect, collate and
interpret data for judging the feasibility of the proposed law and advise
the law-makers accordingly. Non-institutional forums, individuals and
groups also engage themselves in predictive studies. With the persistently
ever-increasing encroachment of the state on all types of societal and
individual action, it is necessary that skilled and objective predictive
studies should precede legislative action. Organised predictive legal
research outside the legislature is a condition precedent for meaningful
law-making today.
(6) Interactive: To study the process of interaction between law and
other relevant forces, factors and institutions operative in society. These
forces are formal or non-formal, obvious or subtle, permanent or transitory; they are spread over an unimaginably vast territory of subjectmatter and include diverse items such as the form of government and
eating or mating habits of people. Not much can be gained by entering
into an argument over the extent of such interaction or by attempting to
put law and other forces in an order of priority with a view to explain
which one comes first in creating an impact. It would be an unending
debate. It is sufficient for the legal researcher to be sensitive to the fact
that various aspects of society form an interacting system and that
change in one part of the system is liable to bring about corresponding
changes in other parts too. Some parts of society can be more autonomous
than others, but no part is wholly autonomous. Law is a part of society;
therefore, it too is covered by the order of mutual interdependence. .1
Legal research in this category will be concerned with the problems
of (a) the relative autonomy of law vis-a-vis the other components of
society (b) the relationship between various components within the legal
system; and (c) the interdependence of one or more components of law
within the legal system. The role effectiveness of law or a particular limb
of law can thus be better understood. In other words, interactive legal
research is a method to gauge limits of law. It can be successfully used
to explain prospectively or retrospectively success or failure of laws and
to indentify additional supportive sources to provide extra inputs required
to ensure/ maximise success of laws.
(7) Interpretative: To interpret an existing formal legal fact. Normally,
it is done by combining the researcher's logic with corroborative evidence
of authoritative opinion on the point. This is the most common kind of
legal research so far undertaken. Fundamentally, it is collative in nature,
though highly annotated. Normally statutes, texts and judicial decisions
are the subject-matter of research in this category. Established tenets of
3. Yehezk1 Dror "Law and Soeial Change", XXXIII Tul. L. Rev. 787-802 (1958
1959).
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Some generalisations
The above gives a general idea of the types of research that can be.
or are, adopted in law. From this. certain general inferences can be
drawn:
(1) Legal research necessarily overflows into non-legal areas in its
search of data. and also in its search of research methods and models
that traditionally do not belong to law. Law as a process of social
engineering, coupled with the increased use of law in development
planning today," makes it imperative for the legal researcher to feed upon
data that is relevant to law. though not necessarily and technically legal.
Oflate, researchers on both the sides, i.e.. in the discipline of law as also
in other disciplines (humanities and social sciences, even earth sciences
and physical sciences) have become aware of the irrefutable
interdisciplinary dependence. Individuals and institutions now recognise
4. International Center for Law in Development (Research Advisory Committee on
Law and Development), Law and Development (report) (1974).
14.~
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legislators function within a given time schedule during their tenure and
have little inclination for taking research forums seriously as they are
very busy or are in great hurry. Their demand is for quick service and
advice to be as per order.
In the case of judges, while deciding a case they ascertain the facts
of the case as admissible under the law and identify and apply the
proposition of law relevant to the facts thus established. In some legal
systems, e.g., in the U.S.A., research officers termed as clerks are
attached to the judges of the higher courts. In India, only once a
research officer was appointed in the Supreme Court; the experiment has
not been repeated. Normally, the judges take into account the version of
law as presented by the counsel on both sides and sift out the appropriate
law according to their own knowledge, logic and commonsense. The
judge is free to search the law on his own or to ask the counsel arguing
the case to find out additional corroborative material pertaining to the
law, though, in the former case, he is expected to bring to the notice of
the counsel any new aspects that may not have been argued. The nature
and extent of research resorted to in the judicial process is determined
by the inclination, aptitude, training, systematic tradition and work-load
of the individual judge. Functional structure of modem judicial system
permits little scope for research at the trial court stage; whatever
research is possible and actually done is by the appellate court judges.
Practising lawyers are constantly engaged in searching propositions
of law in a given situation in order to argue favourably on behalf of their
client. This exercise involves not merely locating the applicable provisions
oflaw but also their accommodative interpretation. Aims, objects, policygoals, scope and pragmatic aspects of a particular legal provision or set
of legal provisions have to be explored and expounded by a lawyer while
making his point before the court. For this, he needs to scan statutory
and judicial materials, and also materials comprising the history of the
legal provision. How many lawyers do conduct a painstaking research,
and how many resort to available short-cuts, depends upon the calibre
of the lawyer and the nature of the case to be argued. Most of the
litigation is routine. Therefore, by and large, this area lacks the potential
for research. A few among the top level lawyers do possess an excellent
calibre and equipment for research. When they come across an issue
pregnant with interpretative enquiry, they do the job creditably and add
to the legal knowledge by their brilliant exposition. Well matched
intellectual acumen, policy orientation, social awareness and non-technical
attitude on the part of the court and counsel can result and often results
in a superb contribution to legal research. Unfortunately, however, a
large number of practising lawyers as well as judges neither have the
potential nor the inclination for deep enquiry. Holmes, Sulairnans and
Palkhivalas are few and far in between. Generally, a lawyer's object is
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upon the "issues to be researched" would come in the way and dampen
interdisciplinary cooperative research work. Third, the temperament and
nature of every discipline is unique; because of this the languages of the
respective disciplines vary (here "language" connotes the content
expression). For example, the languages of law and social sciences
differ basically. The language oflaw is essentially directive and normative,
whereas the language of sociology is descriptive, revealing or explanatory.
This is quite an inhibiting barrier for teamwork between lawyers and
non-lawyers. Fourth, research techniques, tools and styles vary from
discipline to discipline; each discipline evolves its own highly specialised
forms of work-models and expressions, which eludes the members of
other disciplines. The tradition of evolving specialised expressions in
each discipline adversely affects interdisciplinary communication, or
even a consensual narration of findings. However, these are not to be
taken as insurmountable hurdles in the path of interdisciplinary research.
ln fact, interdisciplinary co-operative research requires a habit and
atmosphere, the lack of which deters individual researchers from taking
an initiative in this new direction. Even when personal initiative is
present, the projects may tend to peter out, after a while, if the habit of
working outside one's own domain of work has not been formed. The
tradition of unidisciplinary research has been too long and too much with
the Indian academics to be changed without planned encouragement
from institutionalised sources. Till then, the next best alternative is (as
suggested earlier) to supplement legal information with information
available in other disciplines. The fact is that the Indian legal academic,
when moving into fields other than his own discipline, is haunted by a
nagging doubt that he is engaged in research which may be stylish and
modernistic but is not deep enough or sufficiently identifiable as legal
research. It is a simple case of not being weaned off the unidisciplinary
state of academic pursuits. This is responsible for lack of enthusiasm for
interdisciplinary research. A questioning attitude towards the appropriateness of new model and indifference to the learning of new techniques of
a formal institutionalised forum for experimenting the new style result in
diffidence and inertia among individuals for taking up interdisciplinary
research. ]f concrete results are to be achieved in this direction, deliberate
and planned efforts will have to be made both at the level of imparting
legal instruction and at the level of research. This necessarily means a
change in the structure and content of the prescribed courses in legal
education. Evidently, adequacy in legal research is linked with intelligent
use of selected informational inputs belonging to disciplines other than
law.
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II
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were left with little scope and still less inclination or even patience for
reconstructing the indigenous legal model ; instead, they turned to the
known and familiar model, viz., the English legal system. Influenced by
the Austinian-Benthamite object and explanation of law, they found it
convenient and logical to use legislative action to meet the situation. As
is evident from the spate of codification (itself preceded by an era of
regulations) the British determinedly and persistently laboured to institute
a new model of law and legal system in India.!"
In form, structure and content, the new model was English, with
marginal variations to suit Indian conditions. Its major innovation was
the introduction of a contractual model in non-personal dealings and
transactions and the doctrine of rule of law, both being concepts not
familar to the indigenous legal systems. At the same time the approach
of the judiciary in the earlier period, manned by Englishmen, helped
inculcate the nuances of English common law, while interpreting and
determining legal proposition. The British brought into India not only the
mass of legal rules called the common law (the unwritten law embodying
English customs and traditions, as developed and accepted by English
courts), but also their outlook and techniques in establishing, maintaining
and developing the legal system, particularly the judicial system in
India.'! Between the legislator and the judge, India got a law, legal
system and structure that was and continues to be English. For lack of
a better label, it came to be termed as "modem Indian" and interpreted
by academics as "Anglo-Indian". However it was only "Anglo". A single
glance at the Indian Constitution and various reports of the present Law
Commission of India will corroborate that the advent of Indian Independence has made no difference. There is no shift of direction towards
Indianisation of law. Thus, the present Indian legal system did not evolve
naturally, but was created by imported content and, has therefore, no
link of heritage with its indigenous predecessor. Obviously, any enquiry
aimed at mapping the content and form of legal research in India, can,
for all practical purposes and as a matter of necessity and sound logic,
be traced only up to the British period, and not further down the
corridors of Indian legal history.
Research tradition of the early Hindu jurists, that is to say, of the
smritikars and commentators or of the latter Muslim jurists (irrespective
of its qualitative merit and historical validity) has no bearing upon the
problems of model, form or content of modem Indian legal research. (It
will, however, be of great utility to the legal historian; it is a pity that
10. See reports of the first four law commissions establ ished respectively in 1834,
1853, 186) and 1875 and refer to Whitley Stokes, The Anglo-Indian Codes, Vol. I.
general introduction (1887).
II. M.e. Setalvad, The Common Law in India 3 (1960).
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legal history is the least explored area of research in India. This point will
be taken up later).
lJa~ground and environment of Indian legal research : The prerequisites of good legal research and their absence in India
... ,
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151
Legal education in India in the initial stage was strictly meant for
catering to the legal profession and that too in a technical manner. The
early vakil was not a person of legal acumen who could guide the courts
and help promote the rule of law and justice as expected by Cornwallis
under the Code of 1793. His role was not more than that of a go-between
C1r broker between the client and the court. Anyway the Indian lawyer,
confined within the framework of newly codified law, had little chance
to expound law. He merely peddled in the laws. His training requirements
were accordingly modest. Consequently, legal education was elementary
and almost a formality. Its content was an enumeration of rules without
a prefix of any theoretical explanation or a suffix of impact analysis.
Such enumeration of rules without a theoretical explanation kept the
content of legal education strictly mechanistic. To make matters worse,
legal education even on this pattern was not imparted systematically. It
was a casual affair, a lark. For all practical purposes, law colleges
distributed "lawyer-sanads" (as the High Courts and Sadar Diwani Adalats
had done earlier) upon payment and some tentative 'class attendance.
Law teaching in India had no potential to be academic. Using the past
tense in the above sentences does not imply that the character of legal
education has changed since the universities entered on the scene.!?
Inadequacy of the Indian legal education, in the sense of its being nonacademic and non-goal oriented as well as being a casual though a profitmaking undertaking, has been reiterated time and again at least since the
later half of the nineteenth century and continues to be the despair of .
Indian lawmen even today.
As pointed out by Justice Muthuswami Iyer in 1885 in Madras, "Law
is hitherto studied ...as an art founded on certain arbitrary and technical
rules than as a science which consists of principles laid down for
protecting human interests in various life relations.t'P In 1935 Tej
Bahadur Sapru relented, "... so far as univeristies in these provinces
(United Provinces of Agra and Oudh) are concerned, legal education has
not occupied the place to which its importance entitled it; and we are not
prepared to say that the standard of legal education has risen to the
17. Refer to Justice Muthuswami Iyer's anguish expressed in 1885 as reported in
Law Commission of India, Reform ofJudicial Administration 520 (14th report, 1958);
Report ofU'P. Unemployment Committee (1935); Bombay Legal Education Committee;
Carl B. Spaeth, Draft Memorandum on Indian Legal Education (1960); Arthur von
Mehren, Indian Legal Education: A Possible Program for Its Improvement (1963) and
Proposals Respecting the Delhi Law Faculty (1963); M. Ramaswamy, The Reorganisation ofLegal Education in the University ofDelhi (1963) (unpublished paper
available at the Indian Law Institute and Faculty of Law of Delhi University). See also
S.K. Agrawala (Ed.), Re-organisation of Indian Legal Education 22-27; University
Grants Commission, Status Report on Discipline of Law 43-48 (unpublished).
18. Supra note 17.
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25. This role acceptance is very much accentuated elsewhere. See, e.g .. Maxwell
Cohen "The Condition of Legal Education in Canada", XXVIII Call. B. Rev. 267 at
294 (1950).
26. French, Portuguese, Rohillas, Marathas and the epitome of Indian political
authority-the sultan of Delhi.
27. A.F. Salahuddin Ahmed, Social Ideas and Social Change in Bengal (18181835)
18-19.
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155
still is, a tool for earning a living. In a society afflicted with hunger and
inferiority complex, "education" does not imply pure enlightenment, and
"enquiry" does not mean research. The people in such a situation view
education as a cashable commodity and have no urge for satisfaction of
intellectual curiosity in the midst of immediate worries. Foreign domination breeds debilitative inertia and lack of confidence. It is true that in
every nation and at all times education implies utility, but there is a
difference of degree. In India, the cashable aspect of education overshadows all else.
An educational model oriented towards remuneration does not make
a base for research, particularly when there is superimposed the lack of
confidence in one's ability. That is why, in social sciences and humanities
or, for that matter, in all branches of knowledge other than natural
sciences, the quality of research, to say the least, is not enviable. Since
the law is the latest entrant on the educational scene, legal research
tradition is the least enviable. In short, the climate for research has been
wanting in the country. Above all, research requires an unfettered mind
that can dare to be independent and objective. Courage to differ is
difficult for any subjugated people. In the Indian context it was all the
more difficult owing to the educational model introduced by the British,
which completely brainwashed the people in favour of the Western
intellectual and academic stand. The educational model also was defective
in the sense that its end-product was a mere storage of information and
not true education. It was not thought-provoking. The research attitude
thus did not develop in India. Indian research, whatever it is, is imitative
of Western models and non-original; its content is mediocre. Excellent
researches brought out by some Indians are exceptions and this is so in
spite of the non-congenial climate of the country.
To recount, the three pre-requisites for legal research are: A good
legal education; a politico-legal framework congenial to a critical evaluation
of the legal phenomena; and a tradition of academic enquiry in the
society. It is not surprising that in the absence of these pre-requisites,
the tradition of Indian legal research could not develop. Absence of
tradition or climate of legal research does not, of course, imply that no
legal research was done; evidence of research partaining to law and legal
issues is available since the early colonial era, but it was sporadic and
non-institutionalised.
III
Tbe three pbases of legal research in India
Without resorting to a rigid scale of measurement, legal research in
India since the British period can be divided into three phases : First.
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early colonial; second, later colonial ;and third, post-colonial. The model
and content of legal research during each phase is distinctive and bears
the imprint of functional and intellectual urges of that phase. The role
and status of both the state and the law, as understood and accepted
during the respective phases, determined the type and quality of research
in each phase. A phasewise classification of .societal or intellectual trends
cannot, of course, be very exact because a trend does not begin or end;
rather it evolves and wanes while another trend overlaps and only
gradually replaces it totally. Therefore, it would be futile to place the
first, second and third phase into the straight jacket of specific dates.
Each phase represents certain main tendencies of an era, though the
tendencies and tones are carried over to other phases as well.
First phase (early colonial) : Locative research
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.translations into English and various Indian lanauages, Gaps in, or nonsatisfaction with, indigenous law led to the superimposition of suitable
innovations through formulated law and judicial opinion, the former as
regulation law and the latter as equity-based judicial opinion. In the
result, a sizeable bulk of regulation law and case law soon got
accumulated in each presidency. Making the corpus of this law readily
available and accessible to the courts, officers of company, people and
their agents (representing their causes before the courts), was imperative for proper administation. A compilation of laws was badly needed,
and this is exactly what actually happened. Compilations of regulation
law, judicial decisions, orders relating to court procedure, orders of the
governors and Governor-General, regional customs and conventions
and Shastric and Koranic injunctions appeared profusely.
It was a period in which the law was being located and noted as and
where it was. Legal writing during this phase was undertaken exclusively
by or on the orders of Englishmen holding administrative or judicial
positions with the government. The subject-matter of these writings
spreads over formulated law, case law and common law; its content
consists of legal prescriptions; its method is collative. Legal writing by
aliens and persons associated with the government, concentrating only
on rules and aimed at inventory-making, naturally lacked the components
of proper legal research. Basically, it was non-explanatory, noninterpretative and non-evaluative, and it did not attain the status of
historical or philosophical legal exposition. Research in the first phase
thus remained superficial and unrealistic in its approach and also neutral
in regard to values: When law is being merely compiled, a critical
approach cannot be expected, nor can law be expected to be narrated in
a historical or concepual framework.
However, the importance and worth of legal research done during this
phase should not be underrated. First, collative material has its own value
and collative research is an end in itself. Secondly, collative legal writings
of this phase are the most organised, reliable and accessible recorded
versions of the law of that period. These are excellent source materials with
great potentiality for legal research today. This material, for example, can
be used to determine the kind and quality of the law of that period and
thereby reveal the purpose as well as assist identify the areas of legislative
action under an alien and purely administrative government. An account of
judicial decisions during this phase would reveal a variety of facts about the
nature of disputes, the forms of dispute resolution and its strategies, the
types of litigant parties and the role of the judge under a system that was
not indigenous but was formal and imposed by an authority whose legitimacy
was dubious and whose interest in the administration of justice was strictly
managerial. For tracing the growth of the modem Indian legal system, these
writings do serve as the starting point. Legal writings of this phase may not
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be good researches in themselves, but they are good research material for
the legal academic of the present day in many areas besides pure legal
history.
The following is a specimen account of legal writings of this phase:
Richard Clarke, Rules and Orders ofthe Supreme Court ofJudicature at
Fort William in Bengal; Smoult and Ryan. Rules and Orders of the
Supreme Court of Judicature at Fort William in Bengal (1819); Elijah
Impey, Regulations for the Civil Courts (1781), translated into Persian
by W. Chambers (1781) and into Bengali by Duncan (1785); James E.
Colebrooke, Digest ofthe Civil Regulations ofthe Presidency ofBengal
(1793-J806); Blunt and Shakesphear, Abstract of the Regulations for
Bengal. Bihar and Orissa (/824-1828); Dale's Indexes to the Regulations
of Government for the Territories under the Presidency of Bengal;
Richard Clarke.Abstract ofthe Bengal Regulations from J 793 to J83 J
(1832) and Bengal Regulations Respecting Zamindari and Lakhiraj
Property; Augustus Princep, Abstract of Bengal Civil Regulations,
translated into Hindi (1843); A. D, Campbell, Regulations ofthe Madras
Presidency since J802 with Notes (1840); Fulwar Skipwith. Magistrate's
Guide (Abridgement ofCriminal Regulations, Acts, Circular Orders and
Constructions of the Court of the Nizamut Adawlut in Bengal up to
J843); Marshman, Guide to the Civil Law of the Presidency of Fort
William (1840), translated into Hindi (1843) and The Daroghas Manual
(1850); Beaufort, A Digest of the Criminal Law of the Presidency of
Fort William (1846); J. J. Moore, Acts of the Supreme Government of
J834-1836, edited in English and Urdu; William Macpherson, The
Procedure ofthe East India Company in the Presidency of Fort William
(1850); Moore's Indian Appeals; Bignell, Cases Determined in the Supreme
Court at Calcutta (1831); Smoult, Collection ofOrders on the Pleas Side
of the Supreme Court at Calcutta from 1774 to J8J3 (1834); Morton,
Supreme Court Decisions at Calcutta (1841); Fulton, Supreme Court
Decisions at Calcutta between J842-44 (1845); Montriou, Supreme Court
Decisions at Calcutta ofthe Year J846; Taylor, Supreme Court Decisions
at Calcutta of J847-48; T. S. Strange, Supreme Court Decisions at
Madras (1816); W. H. Macnaghten, Cases Determined at the Sudder
Dewanny Adawlut at Calcutta (from 1827 continued by Dorin, Udney
and Sutherland, also known as Select Reports; index to these reports
was brought out in 1849); Carrau, Reports of Summary Cases in the
Sudder Dewanny Adawlut of Calcutta between J834-J853; Sevestres,
Reports of Summary Appeals Decided in the Sudder Dewanny Adawlut
at Calcutta; Reports of Selected Cases of Sudder Dewanny Adawlut at
Bombay by Officers of the Court since J820 (Bellasis, Babington and
Morris are the most well known authors of this series); W. Macnaghten,
Collection of the Sentences oj the Nizamut Adawlut at Calcutta (later
continued by others); Bellasis, Collection of the Decisions of the Sudder
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prestige was more due to the lack of competition than to their intrinsic
merit. For the judges, these were ready law referencers and a boon. The
original law texts were numerous and were in Sanskrit or Arabic. Being
interpolated with regulationallaw, regional variations, customs and judicial
opinions, these were impossible to be tackled. To dive into this sea of
information and scoop out the appropriate provisions of law was an
unenviable Herculean task for the English judge. In Macnaghten and
Strange, the harassed judge found the law made easy. Therefore, these
were most welcome and treated as authoritative by the courts. Recognition once given became a perpetuated legitimacy for succeeding
generations of judges, habituated as they were to the rule of precedent.
Gradually these writings became the most quotable authority, superseding
even the original texts which very shortly got by-passed by these, even
as Boswell superseded Johnson. Indigenous law either got eradicated by
innovative legislation (in the case of crime, property transactions,
contractual dealings and procedure etc.) or became second-hand (in the
case of family relations among Hindus and Muslims), i.e., it remained
alive only as narrated by the English authors mentioned above. This is
the starting point of English law in India.
Amongst the authors mentioned above, however, Steele stands a
little apart in the sense that even though his work too is narrativecollective, it concerns the living law of the people. There is no evidence
to show what method was used by Steele to ascertain the customs and
conventions of the people. Most probably his methodology was defective
and the sources of information he relied upon were secondary and not
very reliable. Credit to Steele goes not for the quality of his work but for
its pioneering nature. His readiness to recognise the living law of the
people is admirable for his times. Steele's work is limited in form, but
contentwise it is startlingly different and fresh for that period and
remains quite unrepeated even by modem legal researchers in India.
Modem legal researchers have kept themselves restricted to the study of
formal law-legislative, judicial and administrative. Indiananthropologists
and sociologists, as a part of their culture study of a given group, do.
at times, search for the regulatory processes in operation in that group.
Some Western scholars like Marc Galanter have also lately shown
interest in the area of living law. Study of the dispute resolution process
among the Nandiwallahs of South India was one of his major research
projects. In India, living law as an area of research is covered not under
law but under social anthropology. It is a virgin and fertile area awaiting
the academic lawyer's attention. With extreme culture variations and
stratifications in Indian society (due to the sheer size of the country and
religious pluralism), one finds divergent legal acceptations. Study of a
legal acceptation (i.e., the legal culture of these units) will be very
revealing and rewarding exercise in research,
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The change in the status of the company had determined its role and
responsibility in fresh light. Instead of somehow administering Indian
territories within its jurisdiction, the company now realised the responsibility of governing them with proper planning. Review and revision of
the prevailing law and legal system was taken up with zest. The declared
object now was to establish a general system of law and institutions for
applying and executing law in the country.l" The directive was first to
assimilate, ascertain and digest the prevailing law and customs and then
to formulate. It was hoped that the consolidation of Indian laws would
provide the base for evolving a common system of law in India. Rash
innovation was not in the plan. The guiding principle simply was.
"uniformity where you can have it ; diversity where you must have it;
but in all cases certainty."35 As digesting a vast system of jurisprudence
was not a task meant for large assemblies, a few select veteren jurists
were entrusted with the same. Hence the setting up of the First Indian
Law Commission, followed by three more commissions. Exploration of
the situation revealed the absence of a general law commonly applicable
to all irrespective of religious and/or regional affiliation of persons. Jb The
expected indigenous base was just not there.
Fragmented Indian law, in other words, the absence of an Indian lex
loci eliminated the possibility of codification of laws on the basis of
consolidated indigenous law. The next best alternative seemed to treat
English law with reservations as the lex loci of India. Recommendation
of this alternative was not as queer as it may appear; moreover it was'
a choice of expediency and not a design to impose English legal culture
upon India.'? By now English law was not "alien." It prevailed in the
presidency towns and was familiar and acceptable in commercial dealings.
Litigants vied with each other for the application of the masters' law in
their contractual dealings (in which legally they were allowed application
of their own law),38 and indigenous criminal law had to a large extent
already been transformed through regulations into a shape close to.
though not identical with, the English law. Also the mofussil adalats,
manned by English judges, administered justice under the spell and in the
spirit of their own legal background. In this way the mofussil areas too
came indirectly to be governed by English law. Yet, the attendant
inequity, operational difficulties, apparent unreality and ethical debatability
of importing wholesale a foreign law into the country were obvious.
Aware of these complexities, the authorities deemed it prudent to delimit
34. Section 53. Charter Act 1833.
35. Macaulay's speech, supra note 33.
36. Lex Loci Report (1840); G.c. Rankin, Background to Indian Law (11)46).
37. See Alan Gledhill, The Republic of India 155 (1951); Rankin, supra note 36,
ch. I.
38. Rankin. supra note 36. ch. I.
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the content and stagger the process of such importation, and speci fy, by
declaration, each item of importation. Accordingly. the introduction of
English law into India was to be portioned and piecemeal, and each
incidence of importation was to be legitimised by specific legislative
action of the Indian Government. The legislative sanction was for the
importation of a given item of English law after modifying the English
version to suit Indian conditions and to declare its Indianised form.
Thus, codification in India is actually the transplantation of English law
and jurisprudence on the Indian soil; labours of the four law commissions.
spread over half a century. initiated and more or less completed the
process of anglicisation of the Indian law and legal system.l?
Codification and anglicisation oflndian law was enforced transformation of the then existing system. It was an imposed action of an alien
authority without any participatory involvement of those whom it
concerned, that is, the Indians. Yet, the transformation was welcome
then and is appreciated with gratitude even now. 40 Reasons for accepting
the legal transformation are obvious and are part of the general acceptance
by Indians of most that was English. Establishment of the English rule
in India, since its very beginning, meant much more than the creation of
a new political power. It meant new and refreshing ideas and models
from the West, producing a deep appreciative response from Indians.
The English never became part of the Indian society as neither side
desired or encouraged familiarity. Yet the two did not remain in separate
sealed mental worlds. There were numerous areas of contact. For
example, commercial and administrative intercourse at close quarters
was inevitable. Next. the initiation of English education. the motivation
for which is a little debatable, gave to Indians access to the Western
thought. intellect and mind."! The establishment of Indian language
newspapers and the abolition of censorship on the press in 1818 were
a major factor in promoting the communication of ideas and. in turn. an
important stage in the growth of public opinion.f At each point of
contact during the early period, the English scored better and impressed
39. See B.K. Acharyya Codification ;/1 British India (Tagore Law Lectures) ( II)14):
Stokes, supra note 10; F.D. Pollock. The Expansion ofthe Common l.aw: Setalvad,
supra note 1I.
40. Ibid.
41, See the nature of impact upon different kinds of people as narrated in detail
by Ahmed, supra note 27, ch. II. Till today, the dispute about the motive of the British
in initiating English education in India is not over. One view is thaI the British wanted
to prepare a cadre of English-knowing Indians 10 be used as beasts of burden. i.(' preclerks for running the administration; the other view is that introduction of English
language was aimed at improving the level of information of the people of India.
42. Macaulay's mmute on Indian education, addressed to Lord Bcntinek, GovernorGeneral of India, urging promotion of European literature and science among Indians.
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166
to the framework in which they occur; and third, the need for a
particular kind of legal writing was created by the newly established
system itself, which, in other respects, was not congenial for inspiring
legal research. This aspect is more fully dealt with in the next paragraph.
Acceptance of the new legal model meant accepting the determination
of people's rights and obligations and the regulation of inter-personal
dealings according to the new laws as applied and administered by the
judicial and executive institutions under the new model. Not being
indigenous and not being part of the societal psyche, these laws needed
to be described for the benefit of those who dealt with them in their
professional capacity, such as lawyers, judges and administrators. As
mentioned earlier, the rule of binding precedent emphasised the need for
a knowledge of the authoritative interpretation of the statutory provisions.
Therefore, legislative materials, created as a result of codification, and
their judicial interpretation were required in consolidated and
comprehensible forms. This was the functional need of the day.
Consequently, there was a spate of commentaries upon specific statutes.
Mulla and Mayne are the first to be mentioned in this tradition of legal
writing. There is hardly any area of the "lawyer's law" left uncovered
by Mulla's commentaries. These commentaries simply described the
existing law in a narrative style and would not rank very high as pure
research writing today. Yet their utility and importance lies in catering
to the need of the time and in filling the vacuum of weak communication
around the newly introduced law. Without these commentaries, lawyers,
judges, administrators and anyone dealing with law would have felt lost
in the labyrinth of new laws. These served as excellent guides for
practising lawyers, judges and law teachers; student editions of Mulla
have immensely benefited the law students. (It would be overoptimistic
and mere wishful thinking to assume that the present day lawyer, judge
or law teacher has really weaned himself off Mulla). These commentaries
served and continue to serve a specific role, viz., narration of the law.
The commentary writers were mostly practising lawyers.
Along with the law narrating commentaries that were marginally
research oriented, some excellent legal research also belongs to this
very period. An institutionalised forum for encouraging legal research
was founded by the Tagores of Calcutta, effective from 1868. The
object of the Tagore Law Lectures Endowment was to further legal
research by a course of lectures to be delivered annually by an
eminent person on a subject "of the kind of law which is to be taught"
in the universities. This lecture series has brought forth some excellent
legal research. Since the beginning, the Tagore Law Lectures attracted
the best of legal talent in India and England. William Holdsworth,
Frederic Pollock, Westel Willoughby, Rashbehary Ghose, Gooru Das
Banerjee, D.K. Mitter, H. Cowell, G.C. Rankin, Rattigan, Sen, Jolly,
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169
170
171
172
173
174
175
documentation services available in Delhi do not help even touch the tip
of the iceberg of the problems of non-communication. To find materials.
basic or referential, even from such well established institutions like
Parliament and the Supreme Court or from'"the respective government
departments is a Herculean task. For example. a simple query as to how
many times the power of executive pardon was invoked and granted or
refused in case of capital sentence between 1945 and 1950. was made
to the home department in each state and as a cross check, also to the
respective High Courts. Most of the home departments replied that the
required information was not with them but could be had from the High
Courts, and most of the High Courts in turn replied that the same was
not with them. but with the home departments. The two sources having
been exhausted, the prison authorities were contacted in each state.
Among these. only one furnished the needed information; two pleaded
inability to provide the information owing to skeleton staff they were
functioning with; and the rest stated that their records did not contain the
required information as the same was maintained by the High Courts.
This becomes a regular game of hide and seek leaving the researcher as
a helpless spectator. Another equally revealing experience concerns the
Controller of Publications. Government of India. Even after publication.
the Law Commission reports are not always available with the controller.
In fact, once a seminars 1 on a specific report of the commission had to
be conducted without its copies being available to most.of the participants.
It must, however, be mentioned that a couple of participants had obtained
copies of the report through personal contact with the Member Secretary
of the Law Commission. Attempt to procure copy of an unreported
judgment of a High Court or the Supreme Court is more than an ordeal.
No wonder the Indian law researcher restricts himself to published laws
and reported cases.
The problem of collection of data becomes still more acute when an
analysis of a legal issue is attempted in a multi-dimensional manner and
the perspective of enquiry is extended over disciplines other than law.
Absolute lack of interdisciplinary communication makes it impossible for
the legal researcher to be aware of non-legal materials, research findings
or theory formulations, relevant and related to his topic of research. The
volumes on survey of research in social sciences brought out by the
ICSSR does help identify materials available in the areas of anthropology.
and sociology; it is also well indexed and easy to consult.
(3) Within the scheme of Indian legal education. there is no provision
for learning research techniques; nor is there any outside forum or
51, All India Law Teachers' Seminar on Law Commission Report upon the
Amendment of Hindu Marriage Act, 1955. and the Special Marriage Act. 1954.
organised by the Indian Law Institute in 1974.
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178
is its sheer bulk. Without entering into the unending debate about the
exact relationship between law and development, i.e.. the limits.
effectiveness or ethics oflaw as an instrument in developmental planning.
it can be safely said that the law is deliberately and most commonly used
to achieve planned goals by the modem state. 54 India is no exception to
this general position. Since Independence, the goals and media of action
chosen and specified by the state for societal development show that the
stated goals are humanitarian and socialistic and the accepted medium of
their implementation is democratic legislative action. This plan oflegitimate
revolution through law invloves the uprooting ofexisting vested interests,
habitual attitudes and perpetuated values on the one hand. and the
rearranging of interests. shifting the location of power centres. directing
and refashioning people's response attitudes and establishing new value
goals on the other. In short, there emerged a programme that crucially
disturbs and upsets the status quo; this initiates conflict and opposition
in many quarters. The success or failure of planned change through law.
therefore, depends upon the ability to identify bottlenecks of opposition
and the capacity to plan strategies to plug, evade or confront them in
time. Accordingly, import studies and futuristic projects ought to be the
first priority in Indian legal research today; without it, mere analysis of
laws is inadequate, superficial and not very meaningful. Legal research
as advance scouting for. and also as a subsequent review of. laws is
urgently needed in the country. Lately, the need for this kind of research
enquiry has been repeatedly articulated, but the take off stage is yet to
come. Some social scientists have taken up impact studies of reform
legislafion.P but they are too few and they lack legal insight. The legal
researcher has to step in this area of investigation.
. (3) Reliance on non-indigenous sources, materials and concepts : In
any society, in spite of unusual and contrary situation or influence, its
legal system remains as one of the various sub-systems that form that
54. Cf Rajeev Dhavan, The Supreme Court and Parliamentary Sovereignty: II
Critique ofIts Approach to the Recent Constitutional Crisis (1976); Upcndra Baxi, The
Indian Supreme Court and Politics ( 1980).
55. Bishwa B. Chatterjee, Impact a/Social Legislation all Social Change (1971);
Rovanker, The Indian Constitution: II Case Study a/Backward Classes: Daniel Thorner,
Agrarian Project in India; Rajkumari Agarwala, Attitude ofSocial Groups to Uniform
Civil Code (unpublished); K. Pillai, "A Sociological Approach of Raising Age at
Marriage", 6 Bulletin ofthe GUll digram Institute ofRural Health and Family Planning
235 (1976); Yogendra Singh, "Law Reform and Social Tension in Villages", iJourual
ofSocial Sciences 89 (1958); H.C.L. Merillat. Land and the Constitution 11/ India
( 1970); P.e. Joshi, Land Reforms ill India: Trends and Perspectives (1975); Land
Reforms and Social Change in India and Pakistan: Andre Beteille, The FUII/re of the
Buckward Classes: The Competing Demands of States and Power; "Elites. Status
Groups and Caste in Modern India and Ceylon", in Philip Mason (Ed.}, lndia and
Ccvlon ('III/I and Diversity 83. 223.
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ISO
about the quality and model of Indian legal research. There is little
argument over the facts of the problem, though there seems to be a
division of opinion about the choice of remedial strategies.
Two things should be borne in mind before dealing with the issue of
strategy alternatives. First, remedial strategy alternatives need not be
understood as mutually exclusive and contradictory. Instead, these should
be viewed as complementary propositions, capable of enriching Indian
legal research. Basic misunderstanding about the claimed role of respective proposals has created unnecessary confusion hindering a dispassionate
appraisal, and the merit of each proposal is blurred by unnecessary debate.
Responsibility for this confusion may be attributed to exaggerated
fervour of the protagonists to promote and to illogical reluctance of
others to admit a proposal to which they are not habituated. Between the
zeal of one and the lethargy of other, the merit of the respective
proposals rarely gets a chance of fair evaluation. Take for instance. the
suggestion for adopting empirical research method in legal research. Its
advocates seem to believe that legal research in the country is not up to
the mark due to the use of exegetical method, and that a switch over to
empirical method is the only solution. Others, put off by the strangeness
of the new method, reject it without logically analysing its pros and
cons. Very few on both the sides exhibit the patience and openmindedness
needed for a dispassionate examination of the issues and make an
assessment. What inputs in terms of time, energy. money, training
programmes etc., will be required in going empirical? What will be the
net research output quantitatively and qualitatively after adopting empirical
method? To what extent can Indian legal scholars and legal scholarship
institutions bear the strain of this shift? Is the alternative of "semiempirical" a feasible alternative (not personally collecting data but using
related empirical data collected or findings reached at by social scientists)'!
What exactly will be remedied by going empirical? This is by way of
showing that the reaction to the choice of remedial alternatives is largely
general. vague and sensitive rather than meticulous, specific and sensible.
Second, the limitations and lacunae of Indian legal research
(methodological, substantive or qualitative) are part of the temperament
of the larger system of which law is a sub-system. The larger system
has emerged out of a particular set of events. forces and pressures of
Indian history. politics and economics, which also determined the content.
Therefore, questions concerning the legal system cannot be dealt with in
isolation and without reference to the larger system and its evolutionary
context. The problem of the stature of Indian legal research does not
relate purely to "legal" or "research". Instead, the issue is much broader
and multidimensional, requiring multi strategy treatment and multilevel
approach. Unidimensional plans to treat the anaemic state of Indian legal
research are bound to prove abortive. No single proposal referring to the
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18.'