Indian Legal Research PDF

INDIAN LEGAL RESEARCH : AN EVOLUTIONARY
AND PERSPECTIVE ANALYSIS

Rajkumari Agrawala *
I
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.
INDIAN LEGAL RESEARCH' AN EVOI,UTIONARY PERSPECTIVE
139
Legal research and research models

Legal research is not essentially different from other types of research.
This too is search' for authority to verify some hypothesis and is a
continuum. Its issues of enquiry naturally relate to pure law or law in
relation to society. Under the broad theme of enquiry about law, an
analysis is made of the rules, concepts and institutions of the law and of
the legal system itself (inclusive of legal sub-systems). Such an enquiry
tends to be :
(1) Evolutive : To find out how a legal fact (rule, concept, institution
or the legal system itself) came to be what it is. This can be done in two
ways-by preparing a calendar of the successive formal baptismal dates
of the legal fact in question, or by tracing the evolution of a legal fact
by locating various supportive and causal phenomena and events
responsible for shaping the growth of the legal fact under study. It needs
no elaboration to make the point that the second approach has more merit
than the first. Any significant history of law must admit the mutual
dependence of law and other societal events and phenomena. This
method of enquiry naturally takes the legal researcher into non-legal or
extra-legal fields for gathering the required information.
(2) Explicative : To ascertain the nature, scope and source of law
in order to explain what law is, and also to spell out the several
propositions, parts and facts of law and the legal system. Research in
this category aims at expounding the logical coherence of concepts,
elements, facts and interests of legal phenomena individually, of their
relationship inter se and their relationships with the concepts, elements,
facts and interests outside the legal system for determining and defining
the terms and presuppositions used in law. Common tradition refers to
these enquiries as the province of jurisprudence or legal theory. I It is
inevitable that any type of legal research will tend to be a little
jurisprudential and that any jurisprudential enquiry will also be historical;
the nature of jurisprudential enquiry is such that it is bound to trench
upon the territories of social sciences and humanities.
Legal research cannot be rigidly categorised into jurisprudential
studies and non-jurisprudential studies. The question is only of emphasis
upon defining terms, relationships and presuppositions, tends to make a
legal enquiry jurisprudential. With the advent and the growing impact of
the sociological school, legal research is moving in a direction that
lessens the difference between jurisprudential research and other research.
It is somewhat difficult to identify the issues of legal enquiry that belong
entirely to the realm of jurisprudence. Jurisprudential research is a
I. See R. W.M. Dias, Jurisprudence, chs. I and 5 (1976); G. W. Paton, A Text Hook
of Jurisprudence, ch. 1 (3rd ed. 1964).
140
LEGAL RESEARCH AND METHODOLOGY
typical approach (definitive), which is increasingly being resorted to in

any type of legal research. In common parlance among lawyers. it is
called "theorising" or "conceptualising" law. The theory of law helps
explain the facts of law.
(3) ldentificatory : To ascertain for whom (i.e .. for whose benefit)
a legal fact is made and exists. It seeks to answer the question-which
are the parties expected, intended to be benefited by a given rule,
concept, institution or the system of law. Identification of the parties
benefited by a particular legal fact helps ascertain the object of that legal
fact and clarifies the justification for its existence. It further helps
ascertain whether the parties intended to be benefited are actually being
benefited. It serves to assess the utility of a legal fact.
(4) Impact analysis: To analyse the impact of an established or a
newly conceived legal provision, rule or institution. Study of the impact
of laws becomes urgent when legislative action is used for planning. Law
is an integral part of the general social processes and such study is
increasingly resorted to for organising society in an orderly manner, and
the legal system is a very significant part of the larger social system. A
legal fact sets into motion action and inaction in various areas and,
generally, in society; it also affects other co-existing sub-systems and
thereby the social system itself. Similarly other social processes and
sub-systems affect the law and the legal system. Thus, impact analysis
is the study of the effect of law in, and on, the society. Its aim is
primarily to assess the actual working of the legal order in terms of the
satisfaction of the expected object of a given legal provision. As a
constructive review, it helps monitor the success or failure of a given
provision, locate the bottlenecks, if any, and finally revise the provision.
It is a preliminary step to law reform.I
(5) Projective and predictive: To anticipate the effect of a proposed
legal measure. These studies are mainly attitudinal, intended to anticipate
the probable response in terms of rejection or acceptance of a proposed
measure. The purpose is to identify the parties who stand for and against
the measure and locate determinant variables and situations for peoples'
apathy or sympathy. Predictive studies are useful in gauging the
possibilities of misuse of the proposed measure and help minimise the
incidence of undesirable consequences of the proposed measure. Prelegislative studies are quite common in most countries today. In some
systems permanent bodies like standing legislative research bureau or a
law commission outside the legislature are established to conduct research
and help the legislature in deciding in favour of, or against, a proposed
measure. Ascertaining public opinion or sending out questionnaires to
2. See Julius Slone, Social Dimensions ofLaw and Justice 9, 73 ( 1966): Lawrence
M. Friedman and Stewart Macaulay, Law and the Behavioral Sciences vii-xi (1969).
INDIAN LEGAL RESEARCH.- AN EVOLUTIONARY PERSPECT/V/:'
141
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).
142
interpretation drawn from grammar, language and law, common sense

and public policy are the tools that aid this kind of research. It helps
acquire clarity, consistency and uniformity in the meaning of legal
writing.
(8) Collative : To collate legal facts pertaining to a given situation.
It may be by way of preparing a digest of statutory provisions, judicial
decisions and customary law or preparing bibliographies of legal materials
including legal writings. It would be a mistake to regard this type of
research as inferior to other types of legal research mentioned above.
Properly collated legal material which is reliable. reasonably exhasutive
and classified logically, is as much a contribution to legal writing as any
other material. One of the handicaps of legal research is the volume of
legal material which. for all practical purposes, is not accessible owing
to inadequate collation and indexing. Inaccessibility causes ignorance.
confusion and doubt. Also, it leads to waste of time. as most of the
researcher's time is consumed in trying to locate the existing legal
materials on his topic. The result is that even when he draws a blank on
a particular point, he cannot be sure whether he should still pursue the
matter. Well collated material will serve a useful purpose by reducing the
labour of researchers. It may be emphasised that materials relevant: for
legal research include non-legal materials also. for instance. materials
belonging to the humanities and social sciences. Information available in
disciplines like history. sociology, political science. public administration,
economics and psychology and in the area of life sciences may also be
of great use to legal researchers.
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).
INDIAN LEGAL RESEARCH.' AN EVOI.UTIONARt' l'ERSn;cT/Vr
14.~
extra-disciplinary research as not only desirable but also essential."

(2) The object oflegal research is to establish propositions concerning
the law. For this, the researcher may dig up the facts himself when he
intends to unearth something new, or he may attempt only to discover
and pronounce his views upon the relationship between facts already
known." Unearthing new data and discovering the relationship between
facts already known are equally important as research methods. The
latter is in no manner inferior to the former simply because it is based
upon secondary sources of information in contrast with the former
which is based upon primary sources. The merit of research based on
secondary sources of information lies in the interpretation and assimilation
of the borrowed data.
(3) Anyone engaged in research pertaining to law is a legal researcher;
he may be a sociologist, historian. political scientist, or even a layman.
But, as an occupational exercise, legal research is needed for legislators.
judges, lawyers and legal academics (teachers, students and jurists).
Legislators do not legislate at random. Under normal circumstances.
the exercise of legislative power is neither ex tempore nor by accident;
the proposal and formulation of a legislative measure has to be preceded
by deliberate fact-finding relevant to the possible alternative courses of
action and the weighing of each alternative so as to arrive at a tentative
view as to the alternative most suitable in the given circumstances.
Institutionalised forums for guiding legislators are now a common and
established feature of most politico-legal systems. The practice of inviting
expert advice, prior to formulating a new law or amending an existing
law, from interested specialists. groups and forums in the society, is also
in vogue. The collection, collation and weighing of information upon a
legal issue is research-exercise on a scale which an individual researcher
would find difficult to manage. To what extent legislators actually and
fruitfully utilise available research forums, and how far their decision in
law-making is influenced by the advisory findings of these forums, is a
different matter. The legislator's selection ofa particular legal alternative
is determined by various considerations, such as his subjective attitude.
vested interest, political strategy, party commitment, public policy.
pragmatic viability and personal popularity or preservation of self image. 7
In the case of legislators who are elected representatives, the role and
influence of research forums can be somewhat diluted, because such
5. Refer to the Seminar on Law and Social Change (March 1973) organised by the
Indian Council of Social Science Research, New Delhi. The participants were teachers
of law and social sciences. Its proceedings are unpublished.
6. Frederick C. Hicks, Materials and Methods ofLegal Research 24 ( 1942, reprint
1959).
7. John C. Wah Ike and Heinz Eulau, Legislative Behavior (1959).
144
LEGAL RESEARCH AND METHODOLOGr
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
INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE
145
confined to immediate success, i.e., success in the case before him.

Legal research and social science research are not the same and the
compelling evidence of their interdependence does not imply substitution
of one for the other nor the merger of their identities. Each is distinctive
because ofthe scope, goal and nuances pertaining to individual disciplines.
This basic truth should never be lost sight of by the legal researcher. At
the operational level, the legal researcher should be careful in taking help
from other sciences and should not be boggled by them. In legal
research, the legal aspect should consistently remain primary and nc"er
become subordinate to non-legal aspects. As a practical solution, the
legal researcher should initially select and isolate from the general
phenomenon the particular phenomenon which is the primary and essential
concern of enquiry. This will help specify the area of enquiry and limit
it to manageable, realistic and logical proportions. Since the law touches
everything, the scope of legal research is apparently co-extensive with
all human knowledge. But obviously it is impossible to comprehend and
cover all human knowledge. A balance has to be struck between the
demands of exhaustiveness and the limitation of time and space.
Undoubtedly, good legal research has to be multidimensional and it is not
perfect till all the aspects (historical, social, political) of the issue under
enquiry are explored. But to aim at such perfection will be a Quixotic
attempt. To achieve perfection to the maximum, two mutually
complementary techniques are available. In the first place, the legal
researcher should always initially determine particular aspects of the
issue that he plans to explore. The dimensions of his enquiry should be
clearly fixed, and not left vague or open to surmise, suggestion or
accident. This will keep him on a fixed path and save him from getting
lost in the labyrinth of multitudinous paths and furnish information
directly relevant to his enquiry. It will be advantageous for others too,
as it will mean specificity and knowability and they will be able to know
with certainty what to expect in a given research product. Secondly. the
legal researcher need not attempt to explore the non-legal aspects himself;
he can tum to the mass of research findings available on the subject for
supplementing his legal information. This is not difficult; in fact, it is a
perfectly reliable method.
The above method assumes the involvement of the legal researcher
only. The alternative course is to form interdisciplinary teams for doing
legal research. However. operational difficulties might arise in adopting
it. First. the areas in respect of which expertise shall be required for
analysing a given legal issue have to be determined. This itself is an
interdisciplinary task, though this is the least of the difficulties. To
assemble an interdiciplinary team for a particular legal query will require
a lot of planning and decision-making. Second. priorities and interests of
research in different disciplines vary; therefore, the lack of consensus
146
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.
147
II
The Indian scene

Justification for delimiting analysis only up to
the British period
On the historical side, there are some problems peculiar to India.
There is no society without its legal history. Yet political events in a
given society can be responsible for creating an unnatural break in the
continuity of the process of its legal evolution. India has been subjected
precisely to this unusual experience. Accidents and incidents of her
political history have been such that the present law and legal system
originated during the British rule without any link with the past." There
is hardly any continuity in the content, spirit and model of the Indian law
of today with that prior to the advent of the British in the country.
Pockets of personal laws, customary law and the village or community
panchayat system do bear some link with the pre-British period, but
these are not adequate to establish community between the two periods.
Moreover, these areas transformed and reshaped themselves considerably
from their original indigenous form.
During the Muslim rule, there was gradual stifling of the growth of \
Hindu law owing to its neglect. Added to this, there was the political
instability of the times. During the last phase of the Moghul rule there
was stagnation of both Hindu and Muslim law. Next, the multilegal
systems that were operating in the country never got merged into the
mainstreams of either Hindu or Muslim law or into anyone of the
centralised systems of law of a particular region. This feature inhibited
the evolution of a single homogeneous national legal system in the
country 011 indigenous basis.
The absence of a single homogeneous legal system in the country
and the incapacity for self rejuvenation of the two major legal systems
(Hindu and Muslim) coupled with the breakdown and fragmentation of
the central political authority (the Moghul emperor at Delhi) presented a
confusing vacuum in the law and legal system at the time of the advent
of the British. Compelled and tempted by the then circumstances in the
country, the British traders turned into administrators and conquerors.
Faced with the task of administrative governance, they urgently required
a workable model of law and legal system for creating order and stability
essential for encouraging trade-the first concern of the British in India
at that time.? Prompted by the desire to achieve quick results, the British
8. Rajkumari Agrawala, "History of Courts and Legislatures", in S.N. Jain (Ed.),
The Indian Legal System 103 (1978).
9. See G. M. Young (Ed.), Macaulay-i-Prose and Poetry (1952), Lord Clive 306373.
148
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).
149
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
... ,
(1) Non-academic legal education : Legal education, formal and

institutionalised or otherwise, is a condition precedent for legal research.
However, the tradition of legal education in India is of recent origin, for
the simple reason that the lawyer's profession itself was not recognised
as a profession of specialised skill till the preceding century. The study
of law, as a part of general education, ended with the end of Hindu
regimes, and with the end of the tradition of classical shastric education.
It is doubtful whether the concept of legal practitioner as a person
trained for pleading in court existed during the Moghul period. 12 In any
case, legal profession and pleading were not institutionalised, and pleading
was not regarded as a special skill in the eighteenth century in India.
Lord Cornwallis, after reorganising the court system in Bengal, Bihar and
Orissa in 1793, initiated the process of regulating the legal profession too
by Regulation VII of 1793. 13 The pleader was expected by this regulation
to help obtain justice according to rule of law for the people, and was
to be remunerated by the client for his labour. The pleader was, therefore,
required under section V to be of "good character and liberal education"
and trained in the study of Hindu or Mahomedan law. However, neither
any arrangement was made for the imparting of legal knowledge, nor
was it insisted upon in actual practice. Court records show that these
pleaders, i.e., vakils, were mostly petty property holders, preferably
(though not normally) equipped with knowledge of the court language,
viz., Persian. Their legal acumen was nil or marginal, and that too was
acquired not by training but by experience. 14 The Crown courts in the
three presidency towns were manned by Englishmen, trained as barristers
in England. These features did not make any associational impact upon
the model of Indian legal education, as they existed in the exclusive
isolation of English language and within the enclave of presidency
towns. Institutions for legal instruction did not exist. But conflicting
British policy, that was conservative as well as liberal, utilitarian as well
as idealistic, reflecting non-involvement as well as involvement in Indian
issues, resulted in creating an increased demand for the vakil. The
12. See Moreland, India a/the Death of Akbar 33; Philip Calkins, "A Note on
Lawyers in Muslim India" III Law & Soc. Rev. 403 (1968-1969).
13. See Bengal Regulations.
14. Refer to Sudder Dewani Adawlut Proceedings. Bengal (1976); B.S. Cohn,
"From Indian Status to British Contract", Journal ofEconomic History 613 (December
1961); FJ. Shore, Notes on Indian Affairs (1837).
150
conflicting policies of the British created a model of law that was

precipitative of disputes and instituted a legal structure whose mechanism
for dispute settlement was formal and could be approached only through
a paid intermediary, i.e., vakil. Market for the services of the vakil
flourished because of the British policy and the legal structure they
created. The innovations made in the area of agrarian structure and land
revenue, property dealings and civil procedure disturbed the indigenous
set up, thereby giving rise to interpersonal conflict. As a result of this
change, coupled with state-sponsored and 'monopolised formal system
of dispute settlement substituting the less formal dispute settlement
mechanism operating locally, the incidence of litigation 15 got a spurt,
creating a heavy demand for the vakils' services.!?
The structural changes brought about under the early British colonial
rule made the Indian society begin a movement from status to contract
as explained above, and this indirectly helped the vakil to flourish. The
legal profession became a welcome vocation and satisfied the aspirations
of men from a wide variety of socio-economic strata in the country.
However, in the absence of many alternative opportunities of gainful
employment for educated persons, the legal profession soon became
overcrowded. Entrants into the profession came from polarised extremes
of the rich persons and persons of modest means, brilliant persons and
mediocre persons. Legal profession was open to all, a loose garment to
fit all sizes and shapes. To be a lawyer provided respectability; even a
briefless lawyer could view himself and be viewed by others as a part
of the undefinable middle class.
With the demand for lawyers' services, legal instruction gradually
began to get formalised, though in no sense educative. After the initial
stage when legal instruction was supposedly conducted at the Hindu
College in Banaras and Mohamedan Madarsa in Calcutta, it was taken
over first by the High Courts, then by the law colleges and finally it came
to rest within the combined jurisdiction of the universities, law colleges
and the Bar Council of India.
15. For the purpose of this paper, it is enough to note that the incidence of litigation
increased. It will not further the theme of this paper in any way to go into the
respective merits of the two versions on the point-(i) that the disputes increased or
(ii) that the disputes did not increase and only more disputes were brought before the
court for settlement. See, for a discussion on the point, supra note 14; Marc Galanter,
"The Displacement of Traditional Law in Modern India", XXIV Journal of Social
Issues 65-91 (1968); D. Bhanu, History and Administration of the North Western
Provinces, 1803-1858.
16. Stig Toft Madsen, A Study ofIndian Lawyers, Vol. I at 22-36 (1979) (unpublished
dissertation submitted at the Institute of Ethnology and Anthropology, Copenhagen
University); E. Whitcombe, Agrarian Conditions in Northern India, Vol. 1 (The United
Provinces under British Rule, 1860- I 960) (1971).
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.
152
extent to which it has risen in certain other depanments.:"? Dean Carl

B. Spaeth reported in 1960, "Although for many years, high-level
commissions have been reporting the condition of legal education. the
condition seems to get worse, not better. Recommendations of
commissions are endorsed by conferences of teachers, judges and
lawyers. but there has been little action. The political and educational
leaders of the country continue to place a very low priority tag on
proposals for improvement oflegal training. Although, as a constitutional
democracy, India requires well drafted legislation, a carefully conceived
administrative machinery and a smoothly functioning judicial process.
most leaders with the necessary power seem to believe that a dynamic
legal order can be constructed without a strong legal profession consisting
of practising lawyers (in private or public) legislative draftsmen, legal
scholars and judicial statesmen. "20 Dean M. Ramaswamy reiterated in
1963 the Sapru's anguish over the neglect of legal education by Indian
universities.U In the same year, Professor Arthur Von Mehren, after
referring to the overcrowding, poor calibre of students with indifferent
interest, poor library equipment, and mostly under qualified part-time
teachers in Indian law schools, pungently remarked, ...... a superior
scholar or lawyer in India has usually become so in spite of his legal
education," and that "Indian legal education has to date had very few
outstanding scholars, teachers or academic leaders. "22
This is a most discouraging but factually true account of the reality
oflegal education in India, with very little shift since 1885. It is anything
but congenial for academic orientation among the students or teachers
oflaw. The absence ofjuristic thought and writings in India is undoubtedly
due primarily to the farcical system of legal education that fails to regard
and support the study of law as an academic exercise.P The above
opinions confirm the lamentable condition of legal education in the
country, which ipso facto leaves no or little possibility for legal research.
Without an infrastructure of sound legal education, legal research is
unthinkable. The value of good legal training as the basis of societal
planning is yet to be realised in India. The role and contribution of the
lawyer as one who can evolve a balance between private and public
claims and ease the frictions of the increasingly organised and complete
society,24 is yet to be appreciated in the Indian setting. Those in authority
as well as those who have made a mark as lawyers and/or judges. do not
19. Report of U'P. Unemployment Committee, supra note 17, para 158.
20. Supra note 17 at 2.
23. Law Commission, supra note 17 at 52 J.
24. Arthur von Mehren, supra note 17 at I.
153
consider sound legal instruction to be essential for producing excellent

lawyers, legislators, judges and jurists. They look back on their own
experience as law students and are convinced that indifferent legal
education does not do much harm and that there is not much that the law
teaching institution could or should do about improving legal education.P
This obviously is a most discouraging educational base and environment
for developing a tradition of research.
(2) Discouraging politico-legal framework and climate : Another
prerequisite for legal research is a politico-legal framework that is
congenial for critical appraisal and review of the law. As stated earlier,
the prevailing law and legal system in India dates back only to the advent
of British administration. Modem law and legal system in the country
started on the Austinian model, that is to say, the structure and content
of law was laid down as the command of the sovereign through successive
statutory measures. People's participatory or even a consultative role in
law-making was entirely absent and, to top it all, the sovereign was an
alien and a conqueror and so was the law that it imposed or introduced.
It was a perfect politico-legal framework for a non-commentative and
non-questioning attitude towards the law that was being formulated. It
would not be fair to attribute the attitude of silent acceptance exclusively
to the fact that the law was codified and regarded as a command of the
sovereign. There was also an internal respectful awe for the British who
imposed it. Superiority of the British was unequivocally established since
they had succeeded in subjugating every other political power on the
scene/" and proved effective and superior as administrators.
The political anarchy of the seventeenth and eighteenth centuries in
the country had produced administrative chaos and insecurity and brought
down public and private morality to a very low level. The British rule
seemed to provide a respite from the prevailing chaos and anarchy. The
British and their system were, therefore, held in high esteem. Generally,
their system was welcomed and appreciated." In spite of the incidents
of plunder that took place under the early company rule and later under
the rule of the British Crown, the exploitation of the Indian economic
interests, the attitude of racial discrimination, and the absence of an
opportunity to share governmental responsibility, the British system
continued to be admired. British liberalism, administrative ability and
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.
154
methodical approach, and the influence of utilitarianism precipitated the

formulation of laws by the aliens that eliminated many decadent practices
then prevalent in the Indian society,28 and introduced a legal structure
and system based on the rule of law. Constraint upon the people's
freedom to evaluate state sponsored measures and policies is inherent in
foreign rule for any country, but the more important fact is that in this
instance there was an inner acceptance of the policies and measures of
the foreign ruler by the subjects.
Anyway, the attitude of subjected people in assessing public issues
can be of dejection, depression or even frustration, resulting into the
bitter criticism, but not of constructive evaluation. Objectivity of attitude
that is required for academic enquiry does not flourish under foreign rule
wherein reactions are generally influenced by the factors mentioned
above. In areas in which people find even tentative satisfaction with, and
acceptance for, the programmes of foreign rulers, the inspiration for
critical enquiry remains dormant. Modem Indian law is exactly such an
area. After a prolonged spell of decadent indigenous law, the law given
by the British appeared redeeming. In these circumstances, the law in
modem India initially was not, and could not be, put to academic
enquiry. No wonder, therefore, that .....[I]n our country, we have no
internationally known expounders of jurisprudence and legal studies ...
nor has law become an area of profound scholarship and enlightened
researches'S? The politico-legal set up was simply not congenial for legal
research. Imposition, alienation and appreciation were so mixed up in the
set up that courage, facility and inclination for an independent review
were reduced to the minimum.
(3) Lack of research attitude: Individual research may be oriented
towards solution of the immediate problem, but inherently research is an
objective enquiry leading to authoritative explanation. Satisfaction of
queries in a planned manner as a social habit is a luxury of the civilised
and free man. A subject-nation cannot afford this intellectual pleasure.
Being a subject-people for centuries, Indians lost the habit of enquiry for
enquiry's sake. Education, to the average Indian, has for long been, and
28. See, for details, Eric Stokes, The English Utilitarians and India (r 959); K.C.
Vyas, The Social Renaissance in India; C.H. Heimsath, Indian Nationalism and Hindu
Social Reform; S.P. Aiyar, Liberalism and the Modernisation ofIndia; S. Natrajan, A
Century of Social Reform in India; Ramsay Muir, A Short History oj the British
Commonwealth, Vol. II; Percieval Griffiths, The British Impact on India: R.J. Moore,
Liberalism and Indian Politics; B. Kuppuswamy, Social Change ill India; Yogendra
Singh, Modernisation ofIndian Tradition; B.S. Cohen, From Indian Status to British
Contract; M.N. Srinivas, Social Change in Modern India; D.N. Panigrahi, Charles
Metcalfe in India: Ideas and Administration 1806-1835 (1968).
29. Despair of Sri Sarvapalli Radhakrishnan as expressed in the Report oj the
University Education Commission, Vol. I at 257.
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.
156
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
The seventeenth century in India was a period when national political

authority was reduced to nil by dissension, greed and competition, and
law and order was at its lowest ebb Both the state and law ceased to play
any constructive role and lost their credentials for managerial competence
or effectuating welfare. In periods of disturbance, turmoil and political
instability, the authority of the sword gets an ascendancy over the
intellect. Intellectual pursuit recedes into the background. It was an era
in which the administration was tainted with all the vices of decadent
despotism, competing princes of the royal house were engaged in family
wars for the throne, ambitious lieutenants of the sovereign claimed
independence, and independent or semi-independent states were engaged
constantly in battles of offence or defence.)O In this set up, research on
legal issues by Indians was out of question. If some pundits sitting i n
their cloisters engaged themselves in such pursuits, their names are not
known .
During this period, the officers of the East India Company also
joined the local strife and soon got possession of tracts of territory and
found themselves faced with the task of administering them. Trading
managers like Aungier, Clive and Hastings turned into administrators.
This was contrary to their apparent action which shows their interest
i i i trade, not in conquest. But administrative responsibitity, once
accepted, required laws for administrative management. Generally,
exposition of the law was left to native law officers, but their help
neither catered to all situations, nor proved to be satisfactory and
trustworthy. Early colonial administrators then felt the need to locate
Indian law from its original sources. Efforts in this direction resulted
in the publication of the indigenous original legal texts and their
30. Young, supra note 9.
INDIAN LEGAL RESEARCH. AN EVOLUTIONARY PERSPECTIVE
157
.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
158
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
159
Foujdary Adawlut at Bombay for 1827-46 (1849); Morris, Collection of

Cases Disposed ofby the Sudder Foujdari Adawlut ofBombay for 185455; W.H. Morley, Analytical Digest of the Decisions of the Courts in
India and of the Judicial Committee of the Privy Council (1849-52) (a
compendium of published and unpublished decisions, with notes referring
to original authorities and with an explanation of doubtful points. In its
introduction, the history and the actual state of administration of justice
in British Indian territories are narrated); J. H. Harrington, Analysis of
Bengal Regulations (1807; revised in 1821); P. M. Wynch, Dayakaram
Sangraha (translation); Sutherland, Hindu Law of Adoption (1921) (a
translation of Dattaka Mimansa and Dattaka Chandrikas); Halhed, Code
of Gentoo Laws (1774) (a translated version of Vivadarmava Setu; a
Hindu law digest prepared upon orders ofHastings); Hakim Maulvi Abdal
Majid, Hedaya (in edited form (1834); Guckin de Slane, Ibn. Khallikan 's
Biographical Dictionary of Muhammadan Law and Jurists (1842-45);
Maulvi Subhan Baksh, Bibliographical History ofMuslim Jurisprudence
and Jurists (1848) (in Hindi); A. Sprenger (Ed.), Muhammadan Law and
Jurisprudence (1849-55); Ellis, Law Books of Hindus; Kieth, History of
the Rise and Progress of the Adawlut System (1822); G. Campbell,
Modern India; Arthur Steele, Law and Customs ofHindoo Castes (1837)
(it deals with the region subject to the Presidency of Bombay); H. H.
Wilson, Civil and Religious Institutions of Sikhs; Francis Macnaghten,
Considerations on the Hindu Law (1824): W. H. Macnaughten, Principles
and Precedents of Hindu Law (1829); Thomas Strange, Hindu Law
(1825); T. L. Strange, A Manual ofHindoo Law (1856); H. T. Colebrooke,
A Treatise on Obligations and Contracts (1818); Digest of Hindu Law.
(1801) and Hindu Law of Inheritance (a translation); W. Jones,
Muhammadan Law of Succession (1783); Baillie, Moohummudan Law
(1805); Galloway, Observations on the Law and Constitution and Present
Government of India (1832); Briggs, Land Tax in India; Raghunandana
Vandyaghatiya, Smriti Tatwa and Sixteenth Century Compendium of
Shastric Laws of the Gauriya School. Besides, there were many other
original Sanskrit and Arabic texts published and translated into Persian,
Hindi, Tamil and English.U
Among this mass of collated legal writings, very few are not purely
collative. Colebrooke's Digest, Harrington's Analysis and Morley's Digest
are edited compilations and Macnaughten's Principles and Precedents of
Hindu Law, Strange's Manual ofHindu Law and Baillie's Moohummudan
Law are descriptive writings attempting to enunciate the law on the basis
of texts and judicial application of the textual prescriptions. These
writings were treated as authority on the topics they dealt with. Their
31. These writings are out of print but most of these are available at the Bhandarkar
Oriental Research Institute, Pune.
160
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,
INDIAN LEGAL RESEARCH: AN EVOL UTIONARY PERSPECTIVE
161
Second phase (later colonial) : Descriptive research

By the third decade of the nineteenth century. the status of the
British power vis-a-vis India was not much under doubt. Transformation
of the company from a trading body, possessing marginal sovereign
prerogatives useful for trade, into a sovereign body with trade as a mere
auxiliary, was well recognised by both the sides. The sovereign power
of the company was admitted by the British in England as absurd and a
political anomaly, but it was recognised as a fact for Indians. The
company's sovereignty was too factual to deny or controvert ItS
legitimacy. Moreover, since 1858, the Crown, by substituting the
company, ended all doubts about British authority in India. Recognition
of the sovereign status of the company in tum led to an assessment and
recognition of the attendant responsibility and areas of action incumbent
upon a sovereign body (i.e., initially the company and later the Crown).
Unification ofthe fragmented Indian empire, establishment of the authority
of the company, providing stability and security. and formation of a well
intentioned government were the credit points of the company. Early
incidents of exploitation by the English nabobs (Clive, Hastings and
others), conflicting and discriminatory laws, absence of one single
authority ti.e., competing executive and judiciary), alien and remote
control over the fate of Indian subjects and back-breaking taxation were
the discredit points of the company and too serious to be ignored. The
Englishmen who knew and understood the situation at the first hand
diagnosed the root of all evil in the absence of an on-the-spot effective
remedial authority. Members of the government of the company in India
and judges of the Supreme Courts pleaded for remedying the situation by
suggesting the creation of a paramount council armed with legislative
authority in India. 32
In their view the proposed body could, through legislative action.
end all confusion about competing laws and conflicting claims to authority,
because this body was to be "the authority" and the law formulated by
it was to be "the law". The British Parliament was convinced and the
Charter Act 1833 was passed. Legislative authority for India was vested
in a local agency, which actually meant firm recognition of the political
sovereign's role and authority of the company in India by the British
Parliament.
The operational framework being ready, the scheme of giving-British
India a complete and definite system of law now received full attention.P
32. W.H. Morley, The Administration of Justice in British India (1858).
33. This was the proposal of Charles Metcalfe, justices of Bengal and Charles
Grant, President of the India Board. See Macaulay's speech of 10 July 1833, discussing
the proposed Act in British Parliament.
162
LEGAL RESEARCH AND METHODOLOGr
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.
163
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.
164
I.-EGAL RESEARCH AND METHODOLOGY
Indians by their superiority. In mercantile transactions, English managerial

skill seemed extraordinary; in political strategy, military power and
administration, they undisputedly proved better than any other at the time
in India; political philosophy of the English liberals and paternal
utilitarianism as the governmental goal certainly appeared more humane
and purposive than the unbridled local despotism to which Indians had
been subjected. Admiration for English planning and ideas was, therefore,
natural, and a gradual adaptation to Western influence was an obvious
consequence. A free press in Indian language, making communication
easy and widespread, helped propagate extensively the comparatively
superior merit of English ideas and experiments. Appreciative approval
and acceptance of Westernisation to a degree by all, especially by the
Indian reformers and the radicals of the nineteenth century is undisputed.
The empiricism of Hume, the utilitarianism of Bentham, the political
humanism of Mill and the romanticism of Shelley, Keats and Byron
tempted and enticed, even captivated, the Indian mind, the degree
varying according to the emotional and intellectual condition of the
recipient.V Change in the law and legal system too, as part of English
planning, received publicity and approval.
Legal certainty, specificity and knowability were ensured by codification. Empirical positivism was bred by the concept of legislative
supremacy. The subject people were impressed by the rulers' superiority.
All this did not offer a cogenial environment for a critical scrutiny of law.
In other words, law, as it was, appeared sound and even when, in any
particular case, it was felt to be otherwise, requisite intellectual calibre,
political courage and motivation were not available to formulate and
articulate criticism- For most persons, response to the British administration and planning was of "felt" BIackstonianism (not reasoned); happy
Blackstonians find no reason fox critical evaluation. For example, the
elite, the nineteenth century reform creeds and movements in India were
concordant, and not discordant, with the transformed legal model.
Brahmo Samaj, Prarthana Samaj and Arya Samaj sought reform through
law, which suggests that they approved of the transformed legal model.
Their thought and policy goals too were closer to Hume, Mill, Bentham
and Austin rather than to Manu and the Hedaya. Of course, there was a
conservative group which was determined to uphold the social and
religious Indian notions, yet this group also accepted English rule and
administration, though resignedly, and many readily cooperated with the
establishment as the rewards for cooperation with the establishment
were many.44 Whereas the reformers tried to reinterpret the indigenous
43. Atulchandra Gupta (Ed.), Studies in the Bengal Renaissance (1958); Amit Sen.
Notes Oil the Bengal Renaissance; Ahmed, supra note 27.
44. See, for the satisfaction of local inhabitants with the British governmental
model, Parliamentary Papers (House of Commons) 1912-13, ix, 264-217.
165
in the light of contemporary Western knowledge, the radicals canvassed

for a total rejection of the indigenous in view of the rational thought of
the West. 45 In this atmosphere of the elite's acceptance and approval of
the English model, any idea of a critical review of the legal model that
had been introduced by the British could not flourish. The argument will
not stand scrutiny that the acceptance being an "elitist attitude" and not
of the people, it should not have hindered critical evaluation because the
legal questioning is not the function of the common man.
Next, during this period the role of administrator and the judge was
highly structured and typical. The judge was to apply the law and the
administrator was to execute the law; and, above all, both were loyal to
the establishment, being part of the empire builders. Moreover, the
judges, trained in the English common law tradition, implicitly believed
in legislative supremacy. Hence critical scrutiny of the formulated law
was not possible from this quarter. (Most of the law was by now
codified, i.e., created by legislative action). Judges as social engineers
or educators were yet to be born. In the circumstances, scrutiny of the
law, directly or indirectly, by judges could not be expected during this
phase.
Legal education, during this phase, was preliminary, certificatory
and imparted by part-time teachers to part-time students. Hence it was
wholly non-serious and entirely non-academic (details have been mentioned
earlier). The nature and goal of legal education neither catered for, nor
produced, legal academics. Instruction in bare provisions of the law,
devoid of any jurisprudential reference or policy context or exposition,
was not meant to, and never did in fact, develop a research orientation
among the students and teachers of law. A situation arose-what was to
be enquired? and who was to enquire? It was a combination of
Blackstonianism and Austinian positivism on the one hand and an
inadequate legal education model on the other. For legal knowledge, mere
acquaintance with the legislative rule along with its judicial interpretation
was deemed to be sufficient. Judicial interpretation was emphasised
because of the technicality of the rule of binding precedent and not
because of any special jurisprudential sensitivity to Salmond's definition
of law.
Apparently, no legal research should have taken place during this
period. This, however, is not the case for three reasons : First, even in
the most inactive periods, some action is bound to occur; second,
occurrences and happenings are not uniformly typical and con formative
45. See Kenneth Ballhatchet, Social Policy and Social Change in Western India.
1817-1830 (I 957, reprint 1961); N.S. Bose,/ndian Awakening and Bengal; Atulchandra
Gupta, supra note 43; Susobhanchandra Sarkar, Note on the Bengal Renaissance
(1946).
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,
167
R.K. Mukherjea, P.B. Gajendragadkar, Radhabinod Pal and Durga Das

Basu are a few names that may be mentioned from amongst the
galaxy of eminent Tagore law professors. This highly coveted chair
has been adorned by lawyers and judges. Law teachers, except late
Professor Joshi of Banaras Hindu University, are conspicuous by
their absence in this forum. It is noteworthy that the best legal
research series in the country remains without any participation of
the teachers of law. This speaks volumes.
The range of topics of these lectures mainly spreads over the
substantive and procedural law, though a few lectures deal with legal
history, jurisprudence and even customary law. Painstaking effort of the
jurists in the Tagore chair-has resulted in a deep analysis of the law, its
evolution and interpretation through courts, on a given topic.
In style, these lectures are exegetical research studies, comparable
to any exegetical legal research of the highest order. Source materials
explored for these writings are primarily and mostly statutes and
reported case law, marginally including pre-statutory deliberations,
history and comparative legal position as under English law. Usually
these are exhaustive, detailed and very academic. though highly
legalistic and without the context of, or reference to, extra-legal
aspects and materials. To an extent, legalistic isolation of legal research
during this period might have been due to the contemporary imitation
of English legal research model. Or it might have been inspired by the
majesty (as viewed by Indians) of the new legal model, considering
it as self legitimate and so not requiring ancillary explanation. It is
also possible that the unblurred definition of law of the positivists
provided the concept of completeness and independent purity of law
which led to an isolationist approach of the legal researcher. Also, the
experience of sudden and wholesale codification of Indian law and
legal system would have provided a sense of clean self sufficient
symmetry to the laws, emphasising and encouraging legalism in legal
research. Finally. in the undeveloped and unarticulated state of social
sciences (at least in India) at that time, the law would have been
viewed as law without any "vis-a-vis relationship" of influence or
counter influence with extra-legal facts, ideas or materials. The law
could not then be viewed as merely a sub-system in society; so legal
research confined itself to the domain of law alone. Even the best
legal research product during this phase was highly legalistic.
Another quarter that produced legal research during this period was
that of very few top practising lawyers aspiring for academic distinction.
They wrote dissertations for LL. M. or LL. D. degree, but all of these
put together would make a very small bunch. Their style, method and
content was that of the Tagore Law Lectures; in quality these rank above
the commentaries and below the lectures. Dr. K.N. Katju's Essay Oil the
168
Law Relating to Criminal and Actionable Conspiracies (1919) belongs

to this set of legal writing.
To recount, one thing in common in all legal research of this phase
is its interpretative character, exhibiting that the aim was merely to
interpret and present legal provisions. There was no sustained tradition
of legal research; it was non-institutional and sporadic and always
outside the system of legal education. Centralised in the hands of
professionals-the lawyer and the judge-the topics of research were
confmed to law in action, leaving areas oflegal history and jurisprudence
in utter neglect. Research models of Maine, Bentham, Austin and Dicey
were read and appreciated' but not followed in practice. This is not
surprising as the researchers were primarily practising lawyers familiar
with, and interested in, the litigational aspect of law alone. The shift in
this phase (in contrast with the preceding phase) was from collation to
interpretation.
Third phase (current) : Academician researchers
Two environmental changes affected Indian legal research in the
post-forties: One, the altered political status and governmental model in
the country, and two, face-lift of the infrastructure of Indian legal
education (at least in North India). Fortuitously, both the incidents.
occurred in close proximity. For convenience of narration and facility of
explanation, it would help to take up the event of change in legal
education first.
A little before the close of the colonial period. sometime in the early
forties, the non-academic, unrealistic and mere certificatory nature of
legal education caught the attention of Sir Maurice Gwyer, the then Chief
Justice of India and ex-officio Vice-Chancellor of the Delhi University,
and he met an excellent ally in Dr R.U. Singh (who was then at the Delhi
Law Faculty and later became and remained the Head and Dean of the
Faculty of Law at Lucknow for about two decades) They planned to
improve legal education. Their object was to upgrade legal instruction
from non-academic to academic and from certificatory to educative. To
achieve this. it was necessary to have full-time law teachers. Thanks to
the untiring efforts of Dean R.U. Singh that within less than a decade,
the Delhi and Lucknow law faculties witnessed the change to a large
extent. Part-time practising lawyer-teachers were replaced by qualified
full-timers, post-graduate instruction was regularised and course content.
both at the graduate and post-graduate level, was stripped of its archaic
components like study of Roman law, and courses such as legislative
principles were introduced, thus constituting the first step in the direction
of the sociology of law. Fresh full-time law teachers were sent to
American law schools for research and doctoral work; they became the
169
first band of full-time academic law teachers in the country. The

experiment soon spread to other law faculties in the vicinity and, in
course of time, wherever teachers trained in this tradition went, they
attempted to establish it there also. Besides regularising legal instruction,
the plan also threw up an infrastructure to encourage, motivate and
absorb academic legal researcher, because the appointment, promotion
and recognition of the law teacher now got linked with his academic
potential and research calibre. Above all, the change established the
profession of the academic law teacher.
This was the time when India obtained Independence and opted for
democratic representative model of government. The role and importance
of law ipso facto got heavily accentuated because a democratic representative regime recognises only consensual authority and regulation. In this
model of government all forms, versions and expressions of authority
(particularly of governmental authority) require authenticity, and all
governmental action, regulatory or otherwise, seeks legitimacy. In
representative democracies, the law, being the formal and knowable
expression of "consensus", becomes the most obvious touchstone for
ensuring authenticity and legitimacy. Interaction in society among individuals inter se or between the individuals and the state is similarly defined,
determined and adjudged according to law (which supposedly is the
expression of "consensus") under such a model. In the case of a
developing democracy, where socio-economic change has to be
precipitated and directed deliberately by governmental action, the role of
law becomes still more pronounced, and also more open to examination
and analysis. So it happened in India.
Since Independence, law has come conspicuously in the forefront,
owing to its extra-ordinarily increased use by the state in planning and
development, which implies a rearranging of interests and claims and a
redefinition of the role and jurisdiction of persons, groups, institutions
and agencies. Anyway, by this time, the Indian elite by reasoned conviction
and others for convenience admitted the priority of reason over "religion"
or "individual will" in matters of regulation and sanction. It helped
elevate deliberate and consensual formal law into a priority position. This
change of attitude was' (besides other things) due to contact with
Western thought and ideology. Be that as it may, the situation immediately
threw up so many enquiries at so many levels about law, ranging from
fundamental jurisprudential questions about the scope and capacity of
law to pragmatic particular queries about some specific legal provisions
or institutions, their role and efficacy. Legal enquiry thus became
imperative-a circumstance congenial to legal research.
Realisation of the necessity of legal research encouraged the
establishment of governmental, semi-governmental and autonomous legal
research forums and institutions. The Law Commission of India was
170
constituted for recommending reforms in the law. The Indian Law

Institute, the Indian Institute of Constitutional and Parliamentary Studies
and the Indian Society of International Law were established for research
and other purposes. The University Grants Commission (UGC) and the
Indian Council of Social Science Research (ICSSR) (eventually) initiated
the funding and encouragement of legal research, its planning and
publication. The practice of holding law seminars by universities and
other forums was initiated. Institutional framework, and need and
motivation for legal research, which were lacking in the early colonial
and later colonial phases, now clearly came into existence. As could be
expected, legal research increased both at governmental and nongovernmental level. As mentioned earlier, the Law Commission is an
advisory research body to help the government in the task of law reform
and to keep it up to date. 46 Periodical spring-cleaning of law and its
institutions is the assigned function of this agency. The birth of a new
nation and the desire for renovation and revision of law in the Indian
Republic was the motivation behind setting up the Law Commission.f?
(Some states also followed suit and set up state law commissions for
suggesting legal reform).
So far the Law Commission has prepared 155 reports. Since 1956
this is a good work score for the commission and apparently expressive
of governmental tendency to welcome the commission's advice in lawmaking. But factual evidence of acceptance of the commission's
recommendations or even consideration of the recommendations, does
not stand established. Belying the legitimate expectation that once issues
are referred to the commission, the government would implement its
reports, many reports are relegated into cold storage for "consideration"
by the related ministry or department. For instance, the first report on
the liability of the state in tort (May 1956), the tenth report on the law
of acquisition and requisitioning of land (August 1956), the eleventh
report on the Negotiable Instruments Act 1882 (September 1958) and
the fifteenth report on the law relating to marriage and divorce amongst
Christians in India (August 1969), followed by the twenty-second report
which dealt with the bill on the subject, are gathering dust either owing
to "departmental consideration" or because of the related bill having
lapsed by dissolution of the House of the People. Alike is the position of
154th report on the Code of Criminal Procedure, 1973. In spite of
governmental neglect of recommendations of the commission, the fact
46. See Lok Sabha Debates (19 November and 3 December 1954); statement by the
Law Minister in the Lok Sabha, 25 February 1959; P.M. Bakshi, "Methods of Law
Reform" 7-10 (paper read at a conference of the British Institute of International and
Comparative Law, held in London in March 1971).
47. Bakshi, supra note 46 at 5.
INDIAN LEGAL RESEARCH AN EVOLUTIONARY PF.R sPECTIV
171
remains that the Law Commission of India is the only institutionalised

governmental advisory agency at the centre for conducting legal research
and its existence is without doubt justified if adjudged quantitatively by
its output which is very impressive. Terms of reference of individual
governmental references made to the Law Commission might, though
not necessarily, have put a constraint upon the choice of topics taken up
for research by the commission, but there is no visible constraint to
restrict initiative, originality and theorisation in examining the topic
referred to it for consideration. Entrusted with the task 'of "bringing law
up to date" by suggesting "revision", "renovation" and "reconstruction"
of laws and required "to suggest a general policy in revising the laws"
and also enjoying general freedom to take up any subject it considered
fit for enquiry, the commission could be much more expansive and
expressive of policy and idea formulation than it has so far proved to be.
Non-inclusion of academic lawyers in general in the commission might
be one of the explanations for non jurisprudential approach of the
commission. Segregation of academic lawyers from professional lawyers
in India is acute and determines the distinctive research approach of
each.
As yet. the Law Commission has not taken up a single theory topic
or a fundamental issue for investigation, e.g., "limits of legislative action
in planning change" or "obligations and jurisdiction of the legislatures/
courts in a developing democracy" which would have been most relevant
in view of the commission's obligation "to suggest a general policy in
revising the laws."48 While exploring specific statutory reforms also (as
evidenced by the commission's reports), theory building is not attempted,
and whenever theoretical explanation of arguments and suggestions
comes up, it is wholly imitative of the Anglo-American models. For
example, in cases of state liability in tort (first report), reform of judicial
administration (fourteenth report), proposal to include certain social and
economic offences in the Indian Penal Code (twenty-ninth report),
capital punishment (thirty-fifth report) and amendment of the Hindu
Marriage Act 1955 and Special Marriage Act 1954 (fifty-ninth report),
there was ample scope for theory building and independence of attitude
in the evaluation of issues, which is missing. Problems of marital
relations and white collar crime in India have been viewed and logicised,
and legal solutions suggested by referring to English and American
writings.
It is true that the commission has been kept busy conducting
research at the behest of the government, working on a tight time
schedule and within the specific framework of enquiry made by the
48. This general objective was added when the Law Commission was reconstituted
in 1958.
172
government. These factors probably are, to a large extent, responsible

for determining the kind of research produced by the commission, but
fundamentally it is expressive of an attitudinal limitation.
The other focal point of legal research activity, as mentioned earlier,
is located outside the governmental system, i.e., in the university
departments of law and a couple of autonomous research institutes. With
the elevation of law as an academic discipline, the responsibility for legal
research has rightly come to the academic lawyer. An Indian law teacher
of a university department'? is no more expected merely to teach, but
also to be a researcher. Professional recognition and promotion in
university departments, being linked with the candidate's scholarship,
provide natural impetus to university law teachers to take interest in legal
research. In addition, exposed to the Anglo-American model, the law
teacher in India is sensitivised to his assigned role in the socio-political
setting of the country. He is aware that it is the responsibility of the legal
academics to be ever vigilant evaluators of legislative, executive and
judicial action or inaction and policies so as to ensure a proper balance
between the competing claims of the individual, the state and the society.
Whether the Indian law teacher is adequately equipped to perform or
actually performs this expected role satisfactorily is an issue in itself, but
he certainly has become aware of this role, and so have others, e.g.
social scientists and judges.
Practising lawyers and judges in India, attitudinally, are still unidirectional and view their respective roles in a highly stratified manner so that
normally they do not engage in research, though a few have richly
contributed to legal research.P Lately, the courts in India have been
under heavy workload with the result that judges get little time for
looking beyond their routine assignment or taking interest in general
research. They hardly get sufficient time even for research directly
pertaining to the issues brought to them for decision. Further, the system
of judicial appointments in India is such that at no level it draws upon
the academic legal expertise. The junior judicial positions are filled by
direct selection from among law graduates/practitioners of law, and
49. Law departments and colleges still function with part-time practising lawyers
as teachers who are neither interested in, nor have the time or training for. legal
research.
50. See, for some major works by judges and practising lawyers in modern India.
Radhabinod Pal, The History of Hindu Law in the Vedic Age and POSI- Vedic Times
down 10 the Institutes of Man II and Crimes in International Relations ( 1955); D. D.
Basu, Limited Government and Judicial Review (1972); M. Hidayatullah, The Relations
Between the Union and the States in the Indian Constitution and the Role of English
Law in India; H.M. Seervai, Constitutional Law of India. (Vol. I, 2nd ed. 1975; Vol.
2. 2nd ed. 1976; Vol. 3, 1979); K. Subba Rao, The Indian Federation; P.B.
Gajendragadkar, Law. Liberty and Social Justice (1965).
173
senior positions are filled by promotion of junior judicial officers or by

direct appointment of senior practitioners. Thus, the training and
background of judicial personnel do not offer any opportunity for
research as an experience and habit or even as an enviornment. It would,
therefore, be illogical to expect them to have an aptitude for, or skill in,
research. It is also arguable that a legal system with predominance of
statute law thwarts judicial initiative and inclination for research or for
elaborate explanation as legislation pre-empts authority by reason of its
specificity and formality. The Indian law, let it be noted, is primarily
codified law.
By process oflogical elimination, legal research becomes exclusively
the interest, profession and responsibility of academic lawyers in India.
As mentioned earlier, it is only recently that the legal academic profession
has come to be on its own (say, since the sixties), and that too in the
university departments. The law colleges, with rare exceptions, continue
to be as non-academic and part-time as they ever were. Legal research
in this phase is thereupon located at the post-graduate level of legal
instruction at the universities, though a couple of legal research institutes
outside the university system also exist.
This is the phase of the teacher-researcher.
Research by Indian law teachers (and by the few non-teacherscholars) is typical as narrowly based and unidimensional. Neither the
topics selected nor the approach adopted can be said to be policy
oriented. The topics are limited to constitutional law, administrative law
and public international law. The laws relating to crimes, industrial
relations and family relations are only marginally researched. Property
laws, legal theory, sociology of law, legal history and procedural law are
areas that suffer total neglect from Indian academic researchers.
Interestingly enough, out of the total number of full professors in the
university departments in the country within a span of less than ten
years, three Indian law teachers took Ph. D. on the topic of delegated
legislation in India from the same university. Overaccent on constitutional
law is now an institutionalised habit among Indian legal academics.
Research methodology currently used by legal researchers in India
is the same as was employed by their predecessors-the two Macnaghtens
in the 1820s, viz., Sir Francis Macnaghten's Considerations on the
Hindoo Law (1824) and Sir William Hay Macnaghten's Principles and
Precedents of Hindu Law (1829). The same old tools, viz., recorded
legal provisions, that is, legislation and reported decisions and their
review as the research techniques are still in vogue. Approach wise the
research is obviously exegetical as it consists of an analytical review of
recorded legal materials recording to some logical hypothesis. Further
corroboration by factual evidence analysed methodically or by verification
according to any established theory of societal action, is not attempted.
174
LEGAL RESEARCH AND METI-IODOLOG)
Not surprisingly. therefore. current Indian legal research is unreasonably

technical. formalistic and unrelated to reality.
Legalistic isolation of Indian legal research is unfortunate but can be
expleieedrFtrstly, the legal education model in India is extremely technical;
it is based strictly upon formal legal provisions and carried on exclusively
by the aid of legal materials. Secondly, legal research in India is a recent
development; it has yet to mature. Thirdly, interdisciplinary communication
does not exist in India. Fourthly. the predominance of statutory law. the
rule of binding precedent and the unspoken superiority of the legislature
(as borrowed from the English pattern) to an extent instil a tendency to
read law as it is without going behind and beyond, or before and after.
the law. Law through codes is, in fact, an ancient experience in India.
and the first model of legal research was "comment upon the texts of
the ancient codes" by tikakars, i.e., jurists. These are some of the causal
features emerging from within the systems that are responsible for the
unenviable state of the present legal resear.ch in India. Sporadic individual
endeavours to rise above the system do not appear to have much chance
of success. Apart from anything else, there is lack of basic facilities. To
elaborate:
(l) The researcher's task begins with problem formulation which
requires introductory readings about/around the topic selected for
research. But there is no system among Indian libraries of providing
bibliographic readings upon request by research scholars. Consequently.
the Indian researcher has to expend lot of time and energy in reaching
the required materials. Here again, he has to proceed by guess work.
Poor documentation is the primary and crucial hurdle in the way of
Indian legal research becoming broad-based.
(2) Irrespective of the model, type, goal and quality distinguishing
one research exercise from another, all research needs data-data being
the compulsory and fundamental base of all research. In India. however.
the procurement of data is an uphill task. First, the practice of maintaining information (facts and records) in a methodical manner is not
common; sensitivity for historicity is on a very low key in the Indian
temperament. Lack of records and unsystematic preservation of records
in private and governmental institutions is typical of our country. Second.
public institutions and agencies (governmental or otheirwise) are not
habituated to cooperate in giving information even when it exists. Third.
more often than not, much information is unreasonably withheld. labelling
it as "privileged and secret". Thus. non-availability. scantiness and
incompleteness of data and its being not up to date are the most
discouraging factors for Indian researcher.
Even in the case of published and circulated materials like reports.
articles. speeches. proceedings of seminars and books. the materials
remain uncommunicated due to lack of documentation service. Marginal
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.
176
facility for imparting instruction in legal research methods. The Indian

legal researcher is thus entirely on his own without any training in
research methodology. In the absence of any methodical initiation in the
techniques of research, the researcher depends upon trial and error
method and calculated hunch; more than anything else, he relies upon the
existing legal research exercises as model. This continues to be the
prototype of the legal research style of a century ago. The lack of a
training programme and facility for learning the skills (that is, the
techniques, tools and know-how of legal research) discourages initiation
and causes delay in the completion of legal research projects; it is also
responsible for inhibiting change in the outdated method oflegal research.
(4) Funding facilities for supporting legal research are most
inadequate in India. Till recently, they did not exist at all. Lately, the
UGC and the ICSSR have begun to finance legal research projects.
But it is only a beginning and the incidence of financial aid is
sporadic. Moreover, the ICSSR is interested in only one type of legal
research, viz., impact studies or futuristic enquiries, and it has
preference for empirical research. In fact, it means that a legal
research project will rarely qualify for funding approval by the ICSSR
because Indian legal scholars are as yet not used to any other research
methods except the traditional exegetical method of collecting legal
provisions on a given topic and offering logical comments on them
with the help of related ,judicial pronouncements. The UGC as a
funding forum ought to prove as a very suitable facility. However, for
various reasons, it remains as yet little utilised by the law researcher
in the country. Probably it needs to be more advertised and special
efforts have to be made to ensure its access to a larger number of
researchers.
(5) Facilities for the publication of legal research in the country are
very limited, There is a vicious circle. The number of Indian legal
periodicals of some standard is unbelievably small s2 because legal research
output in the country is low; legal research writings languish for lack of
suitable and standard journals to accommodate them. Legal periodicals
of stature catering for specialities other than constitutional law,
administrative law and public international law have not developed in the
country. The Journal of the Indian Law Institute is the only standard
Indian publication which accepts writings in all areas of law. But a single
journal can hardly cater to the requirement of the entire research
community.
52, Journal ofthe indian Law Institute: lndian Journal ofInternational Law; Indian
Year Book of international Affairs and Journal of Constitutional and Parliamentary
Studies are Indian periodicals of good standard. Criminal Law Journal, Bombay Law
Reporter and Supreme Court Journal too are fairly standard periodicals but these are
primarily case reports marginally catering to legal writings.
177
Limitations inherent in the system, as stated earlier, as well as the

factors, narrated in the preceding para, are responsible for the mediocrity,
lacunae and limitations of current Indian legal research.
Lacunae
Some major lacunae in Indian legal research are :

(1) Absence ofinstitutional and behavioural analyses: Legal enquiry
restricted to the analysis of laws without extending to the institutions
which formulate or operate the laws, tends to be incomplete. Institutions
concerned with law should be regarded as coming within the legitimate
ambit of legal enquiry and, therefore, the structure and functions of legal
institutions as well as the behaviour pattern of the persons manning these
institutions, can be properly regarded as part of legal research. Laws
(legislative, judicial, administrative) are actually choices made by the
legislators, judges and administrators in the course of the performance
of their respective institutional roles. Legal .research generally is the
study of these "choices". Such a study cannot be satisfactorily penetrating
till the framework within which the institutional function of making a
choice as also the pattern of conduct of the choice makers is analysed.
The former helps indicate the theoretical focus, while the latter helps
explain the actualities of choice making. Legal research that ignores
institutional and behavioural analyses remains speculative and inadequate.
It is a glaring lacuna in Indian legal research that institutional and
behavioural studies in law have particularly not been taken up at all by
Indians, though some foreigners, for instance, G.H. Gadboist! and Marc
Galanter of the U.S.A., have applied themselves to this area. A very
important area of information thus remains untapped in the country and
ignorance on this count leads to much confusion, misunderstanding and
incorrect conclusions in legal research. However, a shift of approach in
a couple of recent Indian legal writings raises some hope that institutional
and behavioural studies in law might begin in this country too. These
studies shall require learning of social science research methods.
(2) Lack of impact and/or futuristic studies : One of the most
striking, though often ignored, aspects of the Indian legal system today
53. George H. Gadbois, Jr., "Selection, Background Characteristics and Voting
Behaviorof Indian Supreme Court Judges, 1950-1959", in Glendon Schubert and David
J. Danelski (Eds.), Comparative Judicial Behavior 221 (1969); "The Supreme Court
of India: A Preliminary Report ofan Empirical Study", IV JCPS 33-58 (1970); "Indian
Judicial Behaviour", V EPW 149-166 (Annual Number, January 1970); "Indian Supreme
Court Judges; A Portrait", III Law & Soc. Rev. 317-336 (1968-1969); Keshav Singh.
"Contemptuous Judges and Contumacious Legislators", in Theodore & Backer (Eds.),
Political Trials 34-38 (1971); "Supreme Court Decision Making" 10 Ban L.J. I at IS (1974).
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.
179
society. Even in the case of alien and "imposed law", it is merely an

instance of an unexpected form of the legal system. That does not affect
its status as a sub-system of the social system. Sub-systems form a
mutuaIly interrelated and interdependent group of stimuli, shaping and
reshaping each other and cumulatively shaping the totality, viz., the
social system. Indigenous trait is thus inherent in any social sub-system,
the legal system being no exception. Legal analysis, accordingly, has to
be built up with the help of local materials for facts, definitions and
explanations; otherwise the analysis would be unrealistic and alienated
from its natural setting. Indian legal research suffers from this defect of
alienation. Research scholars in India depend for definition, interpretation
and validation of their conclusions upon Anglo-American references.
The habit of reliance upon, and reference to, foreign authority is so
deeply ingrained in us that we view legal and non-legal facts, issues and
ideas and also illustrations as per foreign authority. Even a cursory
glance at the footnotes in any Indian legal writing will substantiate this
comment. Besides the fact that this inhibits initiative, maturity and
independence in Indian legal research, which, in itself is a serious
consideration, it is susceptible of misleading findings and unsound
conclusions. Facts, issues and concepts do not invariably have a uniform
meaning. Their identity varies with the milieu in which they happen to
be. In view of this simple fact, the analysis of legal phenomena with the
help of non-indigenous aids is defective and risky. Indiscriminate and too
much reliance upon foreign references in our legal research boggles the
mind. We badly need to wean ourselves off this dependence. It might do
some good if one generation of legal researchers in India could think and
write without compulsive verification from Austin, Salmond, Dicey,
Wade, Latey, May, the House of Lords and the Law Commission of
England. Independent legal thinking, even if modest, would be much
more meaningful than the prevailing research scholarship which rests
upon fundamentals that are not native but borrowed. Reliance on English
decisions while defining or interpreting "marital cruelty" in Indian context
is the limit to which our minds are dwarfed. Indian legal research has to
be built upon Indian legal facts with indigenous legal and other related
materials. Till this is accomplished, legal research in India will continue
to be imitative, superficial and lacking in in-depth analysis.
IV
Remedial strategy alternatives

All that has been discussed in the foregoing pages is common
knowledge and has been the concern of most Indian legal academics. It
represents no new discovery. All are agreed that much needs to be done
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
INDIAN LEGAL. RESEARCH. AN EVOLUTIONARY PERSPECTIVE
181
methodology, type or subject-matter can be the panacea for the ills of

legal research. Cumulative and sustained impact of different approaches
at different levels alone would help make it mature, realistic and
constructive.
To elaborate. the modem Indian social system has emerged out of
the historical-political processes that have been operating since the
seventeenth century. The law, being one of the sub-systems within this
system, is also influenced by the same processes. Our legal culture and
legal system on the one hand and the status of our law and lawyers (in
the societal framework) on the other have been determined in the same
manner. Change at any point in the field of law including legal academics
must, therefore, be contemplated in terms of various points of contact
of law in the larger system.
Now coming to the role of legal researcher, it is to be remembered
that it is like any other role in society.-the parameters of any given role
and the limits of that role performance are largely determined by societal
factors and forces, structural and cultural. Interplay between institutional
arrangements, division of power, authority and command over resources
and fundamental values, policy goals and priority of justice in the
prevailing set of values decide the contours and potential of any role. It
is naive to plan the remodelling of legal research without exploring the
aforementioned interplay affecting the role of legal researcher in Indian
society.
Among the institutional factors, legal education, and among attitudinal
(cultural) factors, legitimacy of legal scholarship, are most intimately
linked with the role of a legal researcher. The first qualification of a legal
research scholar is to possess legal knowledge; so, in a way, legal
research is an extended product of legal education. The composition of
Indian legal education, as discussed earlier, is quite inadequate; besides
other limitations, it is devoid of interdisciplinary components, theoretical
orientation and indigenous teaching materials. Law graduates trained
under this model carry their training-culture in their subsequent extended
role of the research scholar in which they cannot be expected to act
differently from what they were initially trained for. Training in legal
technicalities cannot produce legal theoreticians or sociologists of law.
If the trends of legal research in India are to be redirected, the first step
needed is to restructure legal education. Course content, teaching materials
and teacher component of Indian legal education will have to be
reorganised, so as to be set upon a broad and firm base of legal and
extra-legal aspects and information, and supported by indigenous verifications. Revision of the education model will ipso facto improve the calibre
of research. It has to be admitted that hostile vested interests, ingrained
habits, temperamental lethargy and absence of enthusiasm owing to lack
of motivation might come in the way of the proposed change in the
182
model of legal education. But there is no other choice. Hence the

opposing forces must be confronted and won over to effect the desired
change in legal education, which could in its turn redirect legal research
in the country. All other suggestions for improving Indian legal research
have to be preceded by this basic change.
Another institutional structural defect is that the organisation of state
sponsored institutions dealing with law and legal issues does not offer
opportunities for participation to the professional legal researcher. viz.,
the academic lawyer, nor does it provide for inclusion of research talent
in the personnel manning these institutions. In short, the researchers are
not planners and the planners are not researchers. This keeps academic
research exercise delinked from the actual problems of planning and
operation of law. Besides, the research activity in the state-sponsored
institutions in untrained hands remains sub-standard and, therefore. not
of much use to the academic researchers. Opportunity of participation
by professional research scholars in state-sponsored institutions by
inviting opinion, or offering term appointments or contract jobs to legal
research scholars, is common in Western countries. The arrangement of
intercommunication between state administration and planning on the
one hand and academic researchers on the other makes legal research
realistic and also provides role fulfillment to the law researcher.
Remodelling of this inhibitive institutional arrangement in order to provide
academic legal researcher a participatory role in the scheme of state
planning does not involve anything except attitudinal change on the part
of the government and bureaucracy. At present, by and large, the Indian
governmental structure does not recognise the role of legal research
scholar. Recognition of the Indian law researcher will be a very potent
role incentive to activise him to live up to his assigned role. As for the
cultural factor, apparently there is nothing particularly uncongenial for
the role of the legal researcher to prosper. After Independence. the
fundamental values, policy goals and position of justice in the list of
value priorities as prescribed in the Constitution and also as claimed by
the people, ought to be helpful in supporting the role ofthe law researcher.
As a post-script, it may be added that the time is yet to come for
dealing with controversial issues like priority areas in which research
ought to be undertaken, selecting the best research method. making a
choice about the use of the computer or deciding upon the type of legal
research best suited to India. These are the issues that will arise and
require to be settled later-a bridge to be crossed when we reach it,
certainly not before Indian legal research attains the status of established
tradition. The immediate problem is baffingly elementary, viz., the absence
of a "tradition of legal research". Individual and sporadic incidence of
research (even excellent research) does not indicate a tradition. To meet
this problem, the "first things first" formula needs to be applied and the
INDIAN LEGAL RESEARCH' AN EVOLUTIONARY PERSPECmT
18.'
quality and quantity of legal research in the country should be improved.

At this stage, reservations about type, method, tool and technique are
uncalled for. Comparative claims of one form as against the other are
refinements that can be debated later at leisure.
This paper was not planned to present a detailed plan of strategies
and proposals for improving Indian legal research; the object was to
describe some basic facts of Indian legal research, identify its causative
factors and processes, i.e .. the background, specify some of its major
limitations and emphasise that the desired change will not be feasible by
piecemeal short term inputs. Structural reorganisation at different levels
alone can help provide the required incentive and attitude for good legal
research. This, coupled with methodical training in social research skills.
will achieve a reorientation of Indian legal research. Finally, excellence
in research is a tradition of academic attitude and skill ; it grows; it is
not a commodity to be obtained as per order in any currency. Miracles
should not, therefore, be expected.

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INDIAN LEGAL RESEARCH : AN EVOLUTIONARY

AND PERSPECTIVE ANALYSIS

INDIAN LEGAL RESEARCH' AN EVOI,UTIONARY PERSPECTIVE

Legal research and research models

LEGAL RESEARCH AND METHODOLOGY

typical approach (definitive), which is increasingly being resorted to in

INDIAN LEGAL RESEARCH.- AN EVOLUTIONARY PERSPECT/V/:'

LEGAL RESEARCH AND METHODOLOGY

interpretation drawn from grammar, language and law, common sense

INDIAN LEGAL RESEARCH.' AN EVOI.UTIONARt' l'ERSn;cT/Vr

extra-disciplinary research as not only desirable but also essential."

LEGAL RESEARCH AND METHODOLOGr

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

confined to immediate success, i.e., success in the case before him.

LEGAL RESEARCH AND METHODOLOGY

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

The Indian scene

LEGAL RESEARCH AND METHODOLOGY

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

(1) Non-academic legal education : Legal education, formal and

LEGAL RESEARCH AND METHODOLOGY

conflicting policies of the British created a model of law that was

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

LEGAL RESEARCH AND METHODOLOGY

extent to which it has risen in certain other depanments.:"? Dean Carl

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

consider sound legal instruction to be essential for producing excellent

LEGAL RESEARCH AND METHODOLOGY

methodical approach, and the influence of utilitarianism precipitated the

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

LEGAL RESEARCH AND METHODOLOGY

The seventeenth century in India was a period when national political

INDIAN LEGAL RESEARCH. AN EVOLUTIONARY PERSPECTIVE

LEGAL RESEARCH AND METHODOLOGY

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

Foujdary Adawlut at Bombay for 1827-46 (1849); Morris, Collection of

LEGAL RESEARCH AND METHODOLOGY

INDIAN LEGAL RESEARCH: AN EVOL UTIONARY PERSPECTIVE

Second phase (later colonial) : Descriptive research

LEGAL RESEARCH AND METHODOLOGr

INDIAN LEGAL RESEARCH. AN EVOLUTIONARY PERSPECTIVE

I.-EGAL RESEARCH AND METHODOLOGY

Indians by their superiority. In mercantile transactions, English managerial

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

in the light of contemporary Western knowledge, the radicals canvassed

LEGAL RESEARCH AND METHODOLOGY

INDIAN LEGAL RESEARCH. AN EVOLUTIONARY PERSPECTIVE

R.K. Mukherjea, P.B. Gajendragadkar, Radhabinod Pal and Durga Das

LEGAL RESEARCH AND METHODOLOGY

Law Relating to Criminal and Actionable Conspiracies (1919) belongs

INDIAN LEGAL RESEARCH. AN EVOLUTIONARY PERSPECTIVE

first band of full-time academic law teachers in the country. The

LEGAL RESEARCH AND METHODOLOGY

constituted for recommending reforms in the law. The Indian Law

INDIAN LEGAL RESEARCH AN EVOLUTIONARY PF.R sPECTIV

remains that the Law Commission of India is the only institutionalised

LEGAL RESEARCH AND METHODOLOGY

government. These factors probably are, to a large extent, responsible

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE

senior positions are filled by promotion of junior judicial officers or by

LEGAL RESEARCH AND METI-IODOLOG)

Not surprisingly. therefore. current Indian legal research is unreasonably

INDIAN LEGAL RESEARCH: AN EVOLUTIONARY PERSPECTIVE