Legal Research in India

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Means, Motives and Opportunities: Reflecting on Legal Research in India Author(s): Rajeev Dhavan Source: The Modern Law Review, Vol. 50, No. 6 (Oct., 1987), pp. 725-749Published by: on behalf of the Wiley Modern Law ReviewStable URL: http://www.jstor.org/stable/1096030Accessed: 08-09-2015 07:44 UTC

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MEANS, MOTIVES AND OPPORTUNITIES: REFLECTING ON LEGAL RESEARCH IN INDIA

NOT SO long ago, the Ministry of External Affairs issued a piquant, if sombre, verdict on the importance of legal studies in India. After revealing an instrumental bias for scientific and technological subjects, for which funds and foreign exchange facilities were to be made available, a gratuitous addendum emphasised that no support would be available for such subjects as "tailoring and law.''l Such a verdict indicates the kind of research that is regarded as "relevant" for India's future; but the assumption which this makes about legal research in India is incomplete and unfair.

Legal research in India can only be understood in the context of the constraints under which it is produced. With notable exceptions, Indian academic legal scholars are generally ignored by the legal profession, the government and the lay public. Deprived of funds and resources, they struggle for efficiency, style and effect. Undermined by patronage and favouritism, which denies most of them the advantage of status in overtly hierarchical universities, with their scarce resources, limited space and secretarial assistance and insubstantial salaries, both their optimism and energy are depleted as the rigorous demands of every day life compete for attention. Research initiatives on a selected basis are funded by the Indian Council for Social Sciences Research (I.C.S.S.R.) whose funding policy remains even more undefined than the all-purpose, eclectic, even if accommodating, programme written for it by one of its consultants.2 The University Grants Commission (U.G.C.) has, in a Canute-like gesture, demanded doctoral dissertations as a prerequisite to tenured appointments. But the fiat of the U.G.C., unmatched by the allocation of supportive resources, has led to badly structured doctoral programmes, producing writing of uneven quality, without establishing any identifiable research traditions.

Founded in the 1950s, the Indian Law Institute (I.L.I.) was part of an American initiative to look more closely at the role of public law in the apparatus of government of the emerging regulatory State. For some time, the I.L.I. organised a range of conferences,

l Quoted by S. S. Dhavan: "The role of the bar and the judiciary in the democratic state" in Allahabad HiBh Court Centenary Volumes (Allahabad, 1968) II, 30>4.

2 U. Baxi: Socio-Legal Research in India: A Programschrift (I.C.S.S.R. Occasional Monograph No. 12, 1975). The I.C.S.S.R. also conducted two surveys of the literature: V. Das: "Sociology of Law" in I.C.S.S.R.: A Survey of Research in Sociology and Social Anthropology (Bombay, 1974) II, 367a00; U. Baxi: "Sociology of Law" in I.C.S.S.R.: Survey of Research in Sociology and Social Anthropology 1969-1979 (Delhi, 1986) 69- 195, reprinted as U. Baxi, Towards a Sociology of Law (Delhi, 1986).

725



[vol. so 726 THP, MODERN LAW REVIEW

pursued an interest in sociological jurisprudence and did some in- house research on constitutional law, comparative law, secularism and press law, in addition to developing library facilities for research scholars.3 In time, the money ran out as the I.L.I. became dependent on government funds and the control of Supreme Court judges.4 More recently, some money from the Ford Foundation has created the possibility of new initiatives.

The world of law publishing has given limited stimulus to research efforts. Servicing the routine needs of an ever expanding bar, the leading law publishers concentrate on producing law reports, annotated statutes, digests of cases and some treatises, most of which mechanically compend the case law in the digests. Law publishers also publish major public lectures and occasional autobiographical reminiscences and anthologies of essays by judges and lawyers.S The highly competitive student market has been captured by down-market publishers who commission tertiary cribs drawn from second-hand sources for an expanding market which demands examination oriented rote learning skills in both English and a variety of vernacular languages. Outside these areas, law publishers provide some support for academic writing; but, invariably, with reluctance, because the market cannot guarantee the requisite financial return.6 Law researchers find themselves moving to other social science and general publishers whose interest in law is casual. One important outlet has been provided by the proliferation of law journals from various universities and research

3 For a review of its work sec R. Dhavan: "Lcgal research in India: Thc rolc of the Indian Law Institute" (1985) 27 J.I.L.I. 223 reprinted with changes in (1986) 34 A.J.C.L. 527; S. N. Jain: "Somc reflections on thc research programme of thc Indian Law Institute" (1982) 24 J.I.L.I., (1958) 7 A.J.C.L. 219; Merrillat: "The Indian Law Institutc" (1959) 8 A.J.C.L. 519.

4 The Chief Justice of India, who is, ex-offefo, the Prcsident of the I.L.I., and his colleagues have, in thc past, dominated the work of thc I.L.I., influencing appointmcnts, planning initiatives and getting caught in thc labyrinth of its internal politics.

s The major foundation Icctures (likc the Hamlyn Icctures in England) includc the Tagore Law Lectures (since 1870), the Kashinath Trimbak Telang Lectures (since the 1960s), Setalvad Lectures (since the 1970s), Mahajan Lecturcs (since the 1980s), which along with a host of others sustain considerable stimuli to the growtll of ideas and research. A recent privately commissioned survey (sce R. Dhavan: Law Publishing itl India (Princeton 1986) shows that cost effective law publishing of practitioner and student texts is possible only when combined with publishing law reports and annotatcd digests (e.g. Eastern Book (Lucknow), Madras Law Journal, All India Reporter (Nagpur)) or with thc general book sclling tradc (e.g. N. M. Tripathi (Bombay)). Some publishers (especially some from Allahabad) concentrate on annotated texts of statutes. Apart from some new cditions of some well established practitioners' texts from N. M. Tripathi and Eastern Law (Calcutta), most commentaries and annotated texts arc of indiffcrent quality, clumsily drawing together the cvcr expanding and scattcred case law. A reassessment and re-juvenation of Indian law publishing is long overdue.

6 Apart from somc quality student texts (e.g. M. P. Jain, Outlines of Legal History (Delhi 1972); Jain and Jain, Administr(ltive Law (Bombay 1986),) some that double up as practitioners' texts (e.g. Mulla's Principles of MoUlammedan Law (Bombay 1977)) and some which arc abbreviated vcrsions of classic practitioners' volumes (e.g. Pollock and Mulla, Indian Control (Ind Specific Relief Act (Bombay, 1972 ed.)), the general student market is serviced by indifferently written texts and cribs (cspecially from some Allahabad publishers in the Univcrsity area). N. M. Tripathi, Eastern Law and Eastcrn Book have published some academic works.



727 OCT. 1987] MEANS, MOTIVES AND OPPORlUNITIES

institutes.7 The articles in the journals are not "refereed" and are of uneven quality. Nevertheless, they keep alive a tradition of writing, scholarship, sharing and exchange.

Alongside indigenous work, foreign scholarship from England, America and elsewhere supported by better resources but often flawed intuitions has made eventful intrusions into the field of legal research. Since 1950, London University ran Masters' degree courses on Indian Law and supported an undefined doctoral programme. In particular, Duncan Derrett examined classical Hindu ideology and jurisprudence with insight and precision, explained its constitutive effect on society and showed its transformation by legal institutions at the behest of the acquisitive forces of India's urbanised society.8 But lack of resources among students from the subcontinent and in the university diminished the degree of London's involvement A renewed interest in Indian history in Cambridge, Oxford and elsewhere has had some impact on legal studies.9

The American interest is more problematic. Supported by Fullbright, which funded American scholars in India, the Public Law 480 programme (amongst other things, a wheat for books arrangement which until 1986 enabled the creation of five well- stocked research centres on India in America) and foreign foundations (especially Ford), some Americans have helped to set the pace for Indian scholarship in sociology, political science, law and history. Others have displayed only a passing interest, using their resources for what can be called "vacation research." Initial

7 A lot of law reports carry a journal section (e.g. All India Reporter, Supreme Court Cases, Madras Law Journal, Calcutta Weekly Notes, Bombay Law Reporter and others). The first major academic publication after the Indian Law Review (194S52) was the Journal of the Indian Law Institute (J.I.L.I., from 1958), followed by the Journal of Parliamentary and CommonwealtSl Studies (J.C.P.S., from 1967). Most well known faculties are trying to develop their own journals. The Banaras Law Journal and Jaipur Law Journal have suffered some decline after an impressive head start. The Delhi Law Review produces interesting material. Of the foreign journals, the American Journal of Comparative Law (A.J.C.L.), International Comparative Law Quarterly (I.C.L.Q.), Public Law (P.L.) and Law and Society Review have carried some writing on India.

8 For his main writings see: J. D. M. Derrett, Essays in Classical and Modern Hindu Lav (Leiden, 197S78 in 4 volumes); ibid. Hindu Law: Past and Present (Calcutta, 1957); ibid. Introduction to Modern Hindu Law (Delhi, 1963); ibid., Religion, Lasv and tSte State in India (London, 1968); ibid. Critique of Modern Hindu Law (Bombay, 1970); ibid., Death of a Marriage Law: An Epitaph for tSle RisSais (Delhi, 1976). A review of Professor Derrett's writing is long overdue.

9 The rojuvenated interest in history has regenerated a historical interest in Iegal studies (e.g. Eric Stokes, The Englis}I Utilitarians and India (Cambridge, 19S9) on aspects of codification especially the Indian Penal Code; R. Kumar, Western India itl the Nineteent}I Century (London, 1968) 7F83, 15>160, 209-228 on conflicts in the administration on dosigning an adjudicatory system which favoured money Ienders more than cultivators; D. Washbrook, "Law, State and Society in Colonial India" (1981) 15 Modern AsiatI Studies (64W721)). More recently, research, inevitably, has been directed not just to policy making and intentions but to subaltern class and group conflicts, many of which, inevitably, impinge on the "law." See generally R. Guha, Subaltern Studies (Delhi, 1982-87) in 5 volumes. All these might well result in creating a new "critical" Iegal history to replace the usual legal history concerns about the jurisdiction of courts, Iegislatures and the executive (e.g. M. P. Jain, supra n.6; A. B. Keith, A Constitutional EIiztory of India (Allahabad, 1961 reprint)).



728 THE MODERN l AW REVlEW

American involvement was in the area of public law, supporting [vol. so

the top-down instrumental model of development, familiar to students of the post-New Deal era, which argued that research could identify, and help close, the "gap" between legislative intent and social effectiveness. A more mature wave of research was inter-disciplinary, focused upon the modernity of India's tradition. This was followed by detailed research into judges, lawyers, dispute settlement and, more recently, the activist uses of law. "' That American research exports should convey American intuitions was inevitable. But American scholarship tends to locate the relationship between civil society and the State within a liberal pluralist framework which combines exacting social analysis with either a harsh cynicism or a naive optimism. Large numbers of Indian scholars were also influenced by American scholarsllip through studying in American universities. This may well have contributed to thwarting their inherent vitality. " In-house governmental research on law is housed in a badly resourced Law Commission usually manned by retired judges to iron out technical problems that have plagued courts and, sometimes, the administration. Some research has also been done by the Planning Commission which has tried to look at the impact of agrarian reform legislation. "Impact analysis" remaills as popular as it is oversimplified. The government's present preoccupations are with the litigation explosion which threatens to drown the courts and paralyse governmental processes. Yet despite this somewhat depressing range of constraints and perspectives, Indian legal scholars display a lively interest in "law" which goes well beyond the instrumental problem-solving approach of the Planning Commission, the short-sighted obsessions of regime politicians or the over-simplified liberalism of their equally political detractors. Alongside images of an overwrought system of litigation and the dull, over-formalised publishing programmes of law publishers and government has grown a social and research commitment to evaluating "law" as an arena of struggle whose purpose and performance (lre to be judged from the perspective of wider notions of justice. Whatever the competing intuitions on the uses and abuses of the legal system, Indian law flowers because of its explicit concern about its constitutionally identified egalitarian 1() Prominent amongst American writers on India law is M. Galanter who has written generally on Indian law (see M. Galanter, Law and Society in Indill (Delhi, 1988), forthcoming, with a critical introduction by R. Dhavan), positive discrimination (see C:ompeting Equalities: Law and the Backward Classes in India (Berkeley, 1984). The initial public law interest in India can be seen in H. C. L. Merrillat, Land asid the Constitution (Bombay, 1970). There has also been some work on lawyers, judges and police, (infra n.53, 60, 62, 63, 65) dispute settiement (see esp. R. Haydon No one is Stronger than Czste (Buffalo, Ph.D. 1974), Dharmasastra and government general). l l For a review of the influence on American legal scholarship see R . Dhavan, "Borrowed Ideas: On the impact of American scholarship on Indian Law" (1985) 33 A.J.C.L. 505. For the influence of American constitutional law see P. K. Tripathi, "Perspectives on the American constitutional influence on the Constitution of India" in L. Beer (ed.), Constitutionalism in Asia (Berkeley, 1979) 5S9X.



729 OCT. 1987] MEANS, MOTlVES AND OPPORTUNITIES

objectives and its allegedly unswerving resolve to achieve distributive Justice.

II Indian culture is permeated by at least two approaches to law. The first, though historically subsequent, is the institutional and supposedly modern approach. This-a colonial legacy-treats law as exclusively emanating from, and the property of, designated political institutions. The choice of designated institutions reflects internal institutional and other power struggles. "Law" itself authoritatively asserts the power of the ruler over the ruled, an assertion buttressed by comfortable assurances about the social acceptability of law, and the need for expediency to fulfil certain economic and political objectives.

An alternative ideological approach treats law as an expression of righteousness (dharma) flowing from and imbricated in civil society.'3 The rishis (wise men) who articulated notions of dharma obtained consent for a repressive hierarchical social structure. This more insidious control of the mind was preferred to the more coercive methods of centralised state control. The edicts of rulers expressed the latter's commands, but rights, duties and justice flowed from dharma.l4 It was not enough to obtain the legitimacy of operational support. What was inculcated svas a much more deep rooted acceptance of a fundamental ideology.ls Allowances

12 These explicit concerns contained itl Part IV (Directive Principles of State Policy: Articles 37-SlA) of the Constitution were, at first, not taken seriously. Justice Dhavan's new approach itl Balwartt Raj v. Uniotl of Itidia, A.I.R. 1968 All 14 was independently developed by the Supreme Court (in Kesava1landa Bharati infra, n.39) and the legislatures who amended the Constitution (Constitution Tweniy-fifth Amendment and Forty-second Amendment) Acts in 1971 and 1976 res,vectively) to give primacy to Directive Principles over Fundamental Rights (on their constitutionality see Minerva Mills Ltd. v. Uniotl of Itldia A.l.R. 1980 S.C. 1789). Although there is some literature on the Directive Principles (see K. Markandam, Directive Pri1lciples in tEle lediatl Constitiltion (Delhi. 1960)) the attempt to elaborate a "directive principles" jurisprudence (see P. Diwan and V. Kumar, Directive Principles Jurisprlldetlce (Delhi, 1982)) calls for much more rigorous allalysis).

lz The most authoritative. survey is P. V. Kane, History of the Dharmasastra (Poona, 1932-68 in 5 volumes); see further Derrett, Dharttlasastra and Juridical Literature (Leiden, 1973); ibid. History of Indian Law (Dharmasastra) (Wiesbaden, 1973). Attempts to provide a political context to the development of the dharmasastra (e.g. K. P. Jayaswal, Manll and Yagyavalkya (Calcutta, 1930) have been described by Derrett, Religion . . . (slopra, n.8) as standing "at the boundary between brilliance and guesswork" (p.567).

14 On the distinction between religious and legal commands see Derrett, "The criteria for distinguishing between legal and religious commands in the dharmasastra" A.I.R. 1953 Jourtiol 52-53, 57-62; ibid. "Thc predicament of law in Ancient Indian culture" (London, S.O.A.S., on file).

15 Custom was tolerated with an almost unqualified indulgence: see Kane (supra, n.13) 111, 856; Derrett, Afistory of lndian Law, supra, n.13, 1S26; ibid.; "Law and Custom in Ancient India: Sources and authority" (1962) 9 Revenue internationale des droits de l'Antiquitd 11-32. Derrett rightly observes that "The sastra (not altogeeher blindly) prepared the way for its own relegation to the background of business and practical life, without forfeiting a claim the more securely to bind the private and personal aspects of the individual which . . . were always its primary target." (Keligion, supra} n.8, p.170).The doctrine of Yuga (dharnta changed with each epoch) enabled dhartna (or, least its interpretation, (see Lingat, infra, 183ff.) to adapt to changing times. Finally, a version of the doctrine of factum valet eliabled recognition of eslablished social situations: see further Derrett, "Factuttl valet: The adventures of a maxim" (1958) 7 I.C.L.Q. 280).



730 [Vol. 50 THE MODERN LAW REVIEW

were maele for geographical differences and changes over time. Innumerable institutions in civil society (the family, religious institutions, rulers, guilds) underpinned the ideological fabric which re-constituted society and conceptualised its determination of competing claims.

The contrasts between these two approaches are important. The exclusive surrender of law to designated political processes has proved to be problematic unless forces in civil society award legitimacy to the designated arrangement itself as well as to what flows from it. Powerful communication networks can often manipulate an operational legitimacy. This ultimately precipitates a net loss of meaningful discourse (about what is right) which is surrendered to the vagaries of politics. Moral approaches to law are treated as ancillary, and of persuasive value, rather than being central to the enterprise of law and crucial to an understanding of its epistemology.

Indian scholarship explicates the tension between these two approaches. At the very outset the dharmasastra was approprlated by the institutional system of the Raj. At one level, the British were the patrons of the sastra,'6 translating ancient texts, interpreting them like codes and classifying them into a taxonomy of schools of thought which was, perhaps, never intended in the exegetical traditions to which the original texts belonged.'7 At another level, the ideological preoccupations which inspired the ancients, and influenced civil and political society for centuries, were completely lost as British and Indian judges became arbiters of the personal law, fragmented the texts into rules and adapted them to suit the needs of the economy of the Raj.18 Scholarly literature at the turn of the century drew parallels between Hindu and Muslim law and English and Roman law, showed the existence of the imperative

16 e.g. Oerrett, "Sanskrit treatises compiled at the instance of the British" (1961) 63 Z.V.R. (Zeitsehrift fur vergelichende Rechtswissenschaft) 72. For two recent accounts of colourful characters of that period see R. Rocher, Alexatider Hamiltotl 1762-1824 (New Haven, 1968); ibid., Orientalism, Poetry and tXte Milleniunt: The C}teckered Life of Nathaniel Brassey Halhed 1751-1830 (Delhi, 1985). There is a need to critically review and evaluate this crucial step in the transformation of personal laws in India.

17 See L. Roeher, "Schools of Hindu Law" in J. Ensink and P. Gaeffice (ed.), India Major. Congratulatory Volume Presented to J. Gonda (Leiden, 1972).

t8 There is a considerable literature on the development of personal laws during British rule. See Derrett, "The administration of Hindu Law by the British" (1961) 4 Comparative Studies in Society and ffistory (C.S.S.H.) 10; ibid., "A history of the juridical framework of the joint family" (1962) 6 Contributions to Indiatl Sociology 17; G. Sontheimer, The Joint Hindu Family: IJS Evolltion as a Legal Institutiott (Delhi, 1977); ibid., "The juristic personality of Hindu deities" (1965) 67 Z.V.R. 45; A. A. A. Fyzee, "Muhammadan Law in [ndia" (1963) 5 C.S.S.H. 401; ibid., "The impact of the English law on the shariat in India" (1964) Bom.L.R. (Jnl.) 107.



OCT. 1987] 731 MEANS, MOTIVES AND OPPORTUNITIES

tradition in the Indian literature19 and commented on the development of Anglo-Hindu and Anglo-Muslim law by British Indian courts.20 Much contemporary research on personal laws concentrates on the modern rules declared by post-independence courts, and ignores the ideological basis on which civil society reads, signals and orders its affairs.

The scholarly tradition in dharmasastric studies continues.2l Kane's monumental History of the Dharmasastra provides an indispensable framework.22 Duncan Derrett has examined both the ideological tradition as well as how it was dealt with by courts. Derrett thought that the values underlying the tradition were somehow preserved in the intuitions of judges, though this seemed to carry less and less conviction as, for example, litigants abused legal processes so as to subvert Indian (and especially Hindu) notions of marriage.23 Derrett seems to have underestimated the

l9 On the influence of Roman and continental laws see Derrett, "rthe role ot Koman and-continental laws in India" (1965) 24 Z. f. auslandisches und internationales Privatrecht 657. Indian writers on Hindu law (even the admirable P. Sen, Te General Principles of Hindu Jurisprudence (Calcutta, 1918)) have a tendency to show the modernity of Hindu law by drawing parallels with Roman law. See also K. P. Jayaswal (supra, n.13); N. C. Sen Gupta, Evolution of Ancient ffindu Law (London, 1953); R. B. Pal, The llistory of Hindu Law in the Vedic Age (Calcutta, no date)). Until the 1960s Roman law was a compulsory sub)ect in India even though the dharmasastra was not. The cumulative effect of English and Continental influence was to further entrench Hindu and Muslim law in a positivist black letter law tradition.

20 The best statements of Anglo-Hindu and Anglo-Muhammadan law remain J. D. Mayne's Treatise on Hindu Law and Us(lge (Madras, 1950, 11th ed.); Abdur Rahim, Principles of Muhammadan Jurisprudence (Madras, 1911); S. Amir Ali, Mohammedan Law (Calcutta, 1912); R. K. Wilson, Anglo-Muhammadan Law (London, 1930).

21 Most of modern sastric learning developed initially as an adjunct to the demands of the legal profession about specific areas of the law (see, e.g. R. Sarvadhikari, The Principles of tSle Hindu Law of lnheritance (Madras, 1922); P. N. Saraswat, The llindu Law of Endowments (Calcutta, 1897); G. D. Banerji, The ffindu Law of Marriage and Stridhana (Calcutta, 1923); B. K. Mukerjea, ffindu Law of Religious and Charitable Endowments (Calcutta, 1954, 1962, 1970 and 1984 eds.)) to be transferred into black letter law by judges and writers like Mayne (supra, n.20). However, an independent scholarship on the dharmasastra can be seen in the work of Jayaswal (supra, n.13), Sen, Sen Gupta and Pal (supra, n. 19), U. C. Sarkar, Epochs of ffindu Legal ffistory (Hosiarpur, 1958), G. N. Jha, Hindu Law and its Sources (Allahabad, 1933) and a host of others. Interest in the dharmasastra has inspired foreign interest (see J. Jolly, Outline of a ffistory of the law of Partition, Inheritance and Adoption (Calcutta, 1885). Dharmasastric and Indian law studies stand indebted to Professor Derrett's unrivalled and extensive researches (supra, n.8). Derrett has also uncovered the contributions of Mazzarella and Gonsalves (see Derrett, "Juridical Ethnology: The life and work of Guiseppe Mazzarella 1868-1958" (1969) 71 Z.V.R. 137; ibid., "Luis do Cunha Gonsalves (18791956) jurist comparative lawyer and orientalist", (1972) 74 Z.V.R. 137) and translated the work of Robert Lingat (infra, n.24). The doyon of sastric studies in the United States is L. Rocher. By contrast even though there has been work on the administration of justice by Muslim rulers in the medieval period (see M. B. Ahmad, The Adtninistration of Justice in Mughal lndia (Aligarh, 1941); M. Akhbar, The Administration of Justice by the Mughals (Lahore, 1948); Hussain, Administration of Justice During the Muslim Rule in lndia (Calcutta, 1934)) studies in Islamic jurisprudence seemed to have received less encouragement even though powerful schools of Muslim thought were developed in the nineteenth century.

22 See n.13 above. 23 For his comments on the transformation of Hindu marriage by modern litigation see

Derrett, Death of a Marriage Law (supra, n.8). An incomplete statement of his intuitions on "tradition" in law can be found in Derrett, "Tradition and law in India" in R. J. Moore (ed.), Tradition and Politics in lndia (Delhi, 1979) 32; ibid. "The predicament of law in Indian traditional culture", in Franke-Kohler (ed.), Entsehung und Wadel Rechtlicher Traditionen (1980).



732 THE MODERN LAW REVIEW [Vol. 50

extent to which the modern institutional system was designed to absorb and destroy indigenous values, as has become increasingly clear in the work of scholars who have examined how the emergence of the modern system was designed to serve wider interests in the society. More general research into the dharmasastra continues, especially in India, America and Europe. Of particular significance is Robert Lingat's Classical Law in India, which explains how sastric notions of law rest on wider conceptions of authority than those of modern law.24 But, while such historical studies of dharmasastra and of the transformation of traditional law in modern times continue to be produced, there are no fresh re- statements of ideology. Dharmasastra has become an historical relic rather than a contemporary inspiration. Yet it is precisely a basic re-examination of the ideological basis of authority and mutuality that needs to be articulated with the clarity of the ancients in the context of a vision cf a non-hierarchical society.

The relationship between modern and traditional law has been a central concern of post-independence scholarship. Galanter, while accepting the general argument that India's tradition was lively and adaptive and its modernity flexible and accommodating, put forward the challenging assertion that traditional law had been displaced by modern law with its authoritative rules, courts, bureaucracies and lawyers.25 But what exactly does this mean? We need not be troubled with the limited assertion that governmental attempts to graft certain allegedly traditional forms of dispute settlement on to the apparatus of modern law have proved to be a colossal failure.26 The stronger suggested "displacement" in fact is countered by Galanter's own admission that civil society continues to sustain a plurality of normative and institutional orderings which co-exist with the modern system and are, often, more important.27 There is no doubt that the modern system occupies a space. But exactly how influential is it? First, there is a tendency to exaggerate the influence of the normative messages that the modern system sends out to other plural orderings. At a general level the modern system

24 R. Lingat, T/le Classicnl Lnvv of ltldia (Berkeley, 1973, with additions and an introduction by J. D. M. Derrett).

2S M. Galanter, "The displacoment of traditional law in modern India" ( 1968) 24 Journal of Social Isslles 65. For his definition of "modern law" see his "The modernization of law" in M. Weiner (ed.), Modernizatiotl (New York, 1966) 153. For a critique of Galanter's method see R. Dhavan, "Marc Galanter's Competing Equalities" ( 19Y,6) Y, Law and Policy 365-377.

26 Scc M. Galanter, "lhe aborted restoration of 'indigenous' law in India" (1972) 14 Comp(lr(ltive Studies itl Society and Alistory 53. For a detailed account of these allegedly "neo-traditional" dispute hodies see U. Baxi and M. Galanter, "Panchavati Justice" in M. Cappaletti and B. Garth (ed.) Access to Jlesfice (Milan, 1979) III 341-386; M. Galanter and C. Mescheivitz, "In search for Nyaya Panchayats: The politics of a moribund institution", in R. Ahel (ed.), T/le Politics of Inform(ll Justice (New York, 1982) II, 47.

27 SeC. M. Galanter, "Justice in Many Rooms: Courts, private ordering and indigenous law", (1981) 19 Journal of Legal Pllaralism 1; ibid., "Indian Law as an indigenous conceptual system", (1978) Social Science Research Council, 32 Items 42-46.



733 OCT. 1987| MEANS, MOTIVES AND OPPORTUNITIES

is seen by the bulk of India's poor as a snare in which they are entrapped. Equally, its rhetoric is not convincing. More specifically, while it is the case that the modern system has normatively reconstituted many aspects of their life (property transactions, legality of marriage, etc.), its rules may have infiltrated their lives but have not found emotional or ideological acceptance. The process of infiltration has taken place as powerful classes have used State and non-State power to structure the social system into greater organic solidarity.

Secondly, the institutions of modern law (courts, legal processes, bureaucracies) are overloaded without being popular. At lower levels, title cases inulldate the system, supported by an arbitrary use of the criminal law by the advantaged in conjunction with the police. At higher levels, the pattern is replicated for other sectors, even though a lively anti-government (judicial review) litigation has checked governmental lawlessness on a random basis and made the modern system develop unmanageable polarities and contradictions. No sulestantial rationality guides the use of the modern system, which is experienced by most with a transparent sense of coercion, fatigue, cynicism and despair, rather than with an internal feeling of acceptance.28 To the extent to which the modern system forces people to use its institutions and processes because it is coercive and/or because they have no alternative, it has assimilated them into its fold. But it exists in their lives on an external rather than internal footing.

It seems improper to talk of the displacement of the traditional system or the co-existence of a plurality of orderings without asking more precise questions about the ideological and instrumental uses of the system and the more subtle ways in which parts of it were appropriated to certain class and group interests. Whatever the intention of the reformers in England, studies of the emergence of the system in nineteenth century India show a relationship with the attempt of the Raj to manage the land economy.29 Yet, for all its modernity, the system did not foster a pattern of capitalist growth in Indian agriculture but was used to preserve a non- dynamic redistribution within an overall status quo. 30 To some extent, this state of affairs continues today, with the system being opportunistically used by acquisitive forces in the agrarian and commercial sectors and in undisciplined attacks on the regulatory state. India has all the semblance of a rational system with none of

28 On the undisciplined use of the system see R. Dhavan, Litigatiott Fxplosion itt India (Bombay, 1986).

29 See D. Washbrook (supra, n.9). 30 See U. Patnaik, "Capitalist development in Agriculture: A Note", (1971) Economic and Political Weekly (E.P.W.), Suppioment A 123; E Whitcombe, Agrariasl Conditions isl Northern lndia itt the Late Nineteesith Century (Berkeley, 1972), cf. E. Stokes, TBte

Peasant and the Raj (New York, 1978)-see further T. Metcalf, "Rural Society and British rule in Nineteonth Century India", (1979) 39 Jourttal of Asiatt Studies 111.



734 [Vol. 50 THE MODERN EAW REVIEW

its discipline, virtually none of the institutional morality which should govern its use and none of the ideological acceptance which is necessary to make the system work.

This poses innumerable problems. On the one hand, lawyers and judges strive hard to give greater legitimacy to the system by stressing its commitment to social justice, and encouraging further policy research to create new and more accessible dispute settlement methods. On the other hand there is a considerable amount of pressure from below to show how the diverse orderings are producing their own normative and institutional structures independently of the modern system. Hitherto, anthropological research into dispute settlement has emphasised the social networks without looking at the overall political and economic context. While the modern system + including its informal tributaries, seeks directly and indirectly to encapsulate as much as it can, refusal to accept its sway has led to the transformation of aspects of the modern system and new notions of law and of justice. It has also increased the quest for new, acceptable notions of law and institutions in which the disadvantaged are not repressed but can individually and collectively pursue their struggle for survival and justice.3l Both ideologically and institutionally, the "modern system" hovers on the borderline of transparent oppression and some semblance of operational legitimacy.

III

A great deal of research has concentrated on the Constitution.32 Promulgated in 1950, after four years of deliberations, it incorporated a parliamentary system within a federal structure, with guaranteed fundamental rights, directive principles of State policy declaring the teleological objectives of the Indian people, and the most powerful judiciary that India has ever known. While its general liberal features have caused some to present it as the "cornerstone of the nation" which provides a framework for public life in India,33 pathological practice often evades this framework. The Constitution unleashed, chaotically, a host of opportunities for an unimagined range of aspiring leaders and power brokers. Each

31 Indian legal seholarship tends to be over-optimistic about the conditions under whieh "colleetive justice" can be made part of disadvantaged and poor people's struggle (e.g. Baxi, "Erom Takrar to Karar: The Lok Adalat (Native Court) at Rangpur", (1976) 10 J.C.P.S 53; cf. "Popular Justice, participatory development and power politics: Thc Lok Adalat in Turmoil", (Delhi, 1979 minleo)). Yet, given India's asymmetrical development and desperate seareity conditions, the quest for avenues for collective justiee must eontinue as an aet of necessity and hope.

32 For a preliminary survey of the work on the Constitution see infra, nn.39 and 40. 33 G. Austin, The Indian Constitution: Cornerstone of a Nation (Oxford, 1966) and the

extended review article by U. Baxi, "The little done, the vast undone: Some reflections on reading Granville Austin's TSle lndian Constitution", (1967) 9 J.I.L.I. 323.



735 OCT. 1987] MEANS, MOTIVES AND OPPORTUNITIES

part of the Constitution came to be used and abused ruthlessly. Legislators have crossed the floor to change loyalties, and in so doing have toppled several state governments, and in one famous instance, the central government itself.34 Between 1967-77, Congress suspended democracy in the States whenever it found an opposition government disagreeable.35 A national emergency (1975-77) was declared on a pretext (internal instability) which could hardly even masquerade as a reason.36 Every time the judiciary overturned a major policy of the executive, parliamentary majorities were used to amend the Constitution3' until the judiciary decreed in a brave and remarkable judgment that the "basic structure" of the Constitution was unalterable.38 The increase in anti-government litigation, through applications for judicial review, is disorderly and reflects the diverse ambitions generated by competitive capitalism without succeeding in disciplining the processes of government or checking rampant corruption. In these circumstances, what is the task of legal research? To follow the practitioner's market? To explore doctrine as an end in itself? Or to try to make sense of the socio-political state of affairs and understand the diverse meanings of law with which it operates? Law publishers have followed a very narrow market of demand emanating from the peculiar flow of litigation in India. Much litigation before the higher judiciary consists of quoting precedent or dicta before immensely busy courts to obtain interim injunctive relief to freeze a favourable status quo pending final hearing, often years later even in the Supreme Court. Publishers concentrate on producing annotated statutes, digests of case law and practitioners' texts. The practitioners' texts, modelled on a prototype developed

34 See generally S. C. Kashyap, The Politics of Power: Defections and State Politics in India (Delhi, 1974); P. Diwan, "Aaya Ram Gaya Ram: The Politics of defection", (1979) 21 J.I.L.I. 291-312. On the crisis in the central government in 1979 see M. V. Pylee, Crisis, Conscience and the Nation (Delhi, 1982). Later, the Constitution (Fifty-second Amendment) Act, 1985 sought to curb defections (see Masodkar, Law Relating to Electoral Disqualification (Bombay, 1986)). 35 See generally R. Dhavan, President's Rule in the States (Bombay, 1979); S. Maheshwari, President's Rule in India (Delhi, 1977); B. Dua, President's Rule in India (Delhi, 1984) and the literature cited there. 36 See Shah, Commission of Inquiry Interim Reports, Vols. I and II; Third and Final Reports (Delhi, 1978). Other accounts of the Emergency include K. Nayar, In Jail (Delhi, 1977); J. Thakar, All the Prime Minister's Men (Delhi, 1977). P. Bhushan's The Case that Shook India (Delhi, 1977), is a masterly account of the election case that led to the Emergency. Dhavan, infra, n.44, and M. C. J. Kagzi, The June Emergency and Cosestitutional Amendments (Delhi, 1977) recount discussion of constitutional change during the Emergency; on political censorship of the media see White Paper on the Misuse of the Mass Media during the Natiottal Emergency; S. Sorabjee, The Emergency, Censorship asld the Press in lndia (Delhi, 1977). The Emergency, which was more than a power struggle between the highly differentiated middle class, their political power brokers and others, is a watershed in India's contemporary history. Its significance, no less to perceptions of law and socio-legal studies, merits thorough analysis. 37 For an account of this controversy see R. Dhavan, The Supreme Court and Parliamentary Sovereignty (Delhi, 1976). 38 Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.




in England in the latter part of the last century, vary in quality. Very few retain a doctrinal vigour39; most have become compilations of case law in essay form. But interest in doctrine continues. In particular, academic work has concentrated on how India's Bill of Rights has been interpreted by judges.40 At least one commentator on the Constitution seemed to suggest that doctrine should be the exclusive concern of India's jurists,4l with social, economic and political considerations ruthlessly excised. But where will the doctrine come from? From abroad, as much of it already has done? Or, will it, as one High Court judge suggested, derive theoretical nourishment from an Indian understanding of precisely those matters which have been ruthlessly excised from consideration?42

Publishers are only partly to blame for the lack of systematic research. Combining common learning, native intuition and deeply felt biases, India's judges have prodllced an interesting array of case law which has not only dealt with difficult fact situations, but conceals an understanding of the kind of public framework on which India can realistically be run. Unfortunately, Indian scholarship has not produced a thoughtful and continuing re-assessment of constitutional developments. Even after the Fundamental Rights case, which drew attention to the "basic structure" of the Constitution, it has received very little evaluation.43 During the emergency (197S77) the Forty

39 The earlier literature on the Constitution was comparative in a formal and imitative sense. But, the first critical academic work can be seen in the writings of P. K. Tripathi (e.g. Spotlights on Constitutional Islterprexation (Bombay, 1972); ibid., Some Insights into Fundamental Rights (Bombay, 1972)); see also Justice P. B. Mukharji, Critical Problems of the lndian Constitution (Bombay, 1967); D. D. Basu, Limited Governmeslt aslxl Judicial Review (Calcutta, 1972). For an excellent and critical introduction see M. C. Setalvad, The Indian Cotlstitution l950 65 (Bombay, 1965) by the former Attorney General who had materially influenced the development of constitutional precedent. The first and, perhaps at this stage, only detailed treatise is Seervai (infra, n.41). However, deeper and more incisive socio-legal studies on public affairs are emerging.

40 Five areas of research have bcen earmarked for special attention (i) The right to property (abolished by the Constitution (Forty-Fourth Amendment) Act 197Ffor a survey of the literature see R. Dhavan, infra, n.55, Chap. 111: (ii) preventive detention (for a review of the literature see R. Dhavan, infra, n.55, Chap. IV; and Derrett's cryptic but incisive "Emergency and preventive,detention in India" in P. Robb and D. Taylor (ed.), Rule, Prorest and Identity (Londoil, 1978) 83) and due process (see R. Dhavan, Due Process in India (Indian Law Institute, 1981 mimeo)). This is an important area for the development of constitutional limitations and one which has affected a reconceptualis- ation of the nature of law; (iii) positive discrimination (for a review of the rescarch and literature see M. Galanter, Comperiolg Equalities . . ., supra, n. 15); (iv) freedom of speech (for a review of the literature see R. Dhavan, Only the Cood News: Otl the Law of the Press in India (Delhi, 1987, forthcoming)); (v) freedom of religion (for a review of the research and literature see R. Dhavan, "Religious freedom in India" ( 1986) 35 A . J . C. L. 209-254) .

41 Seervai, Constitutional Law of India (Bombay, 1967; see further editions in 1975 and 1984); and note a review of the angularities in approach in R. Dhavan (1986) P.L. 168- 171.

42 S. S. Dhavan, "The Indian Judicial System", in Allahabad High Court Centenary Volumes (Allahabad, 1968)1, 53.

43 Supra, n.38.



Ocr. 1987] MEANS, MOrIVES AND OPPORrUNITIES 737

Second Amendment of 1976 was supposed to inaugurate a major reassessment of the Constitution.44 But the sole concern of the "amendment" was to give power to the Congress, just as the sole concern of the Forty Fourth Amendment (the next major constitutional discussion) was to take power away from the Congress.45 After the emergency, various academic scholars gathered together to discuss the constitution but failed to grapple with India's problematic quest for a public framework, concentrating instead on formally identifiable problems.46

The need is not just to interpret the formal prescriptions of the written or unwritten47 Constitution but to evaluate the basis on which power should be allocated to various public institutions and private interests. India's theorists need to look more closely at their working constitution, reflect on the strong emerging pattern of elective dictatorship, and re-evaluate the ground-level theory of political participation, social justice and constitutional limitations which should underpin discourse about, and the operation of, public affairs.

This is all the more important because of what has been called the continued "privatisation" of the Indian State. This happens when agencies of the State are either directly corrupted or systematically appropriated to private use. American researchers are very fond of presenting a somewhat depressing picture of an Indian State taken over by neo-traditional groups which have used State processes and patronage in ways that do not embrace public purposes.48 That forces in civil society, inspired by different motivations and normative understandings of societal relations, should attempt to manipulate public affairs is inevitable, unexcep- tional and hardly unique to India. But is the situation in India irredeemably worse?

What has handicapped Indian development has been dishonesty and a want of true belief in the rule of law amongst the people at large. There is no sense of public spirit, except at a xenophobic level. Honesty in its ordinary sense operates only inside groups not across them. This is the negative side of the achievement of India, peaceful co-existence. The profitability of honesty across groups is still being discovered and who knows how long it will take to become a virtue.49

44 See R. Dhavan, The Amendmetit: Conspiracy or Revolution (Allahabad, 1978). 4S See R. Dhavan, Amending the Amendment (Allahabad, 1979) . 46 The papers were collected in R. Dhavan and A. Jacob (eds.), T}le Indian

Constitution: Trends and Issles (Bombay, 1978) . 47 e.g. U. Baxi, Courage, Craft and Contention: The Indian Supreme Court in the

Ei§hties (Bombay, 1986). 8 For a review of this approach to Indian politics see D. Hardiman, "The Indian

'faction': A political theory examined", in R. Guha (ed.), Subaltern Studies (Delhi, 1982) I, 198 and note the literature cited there.

49 J. D. M. Derrett, "A post-Weberian approach to Indian social organisation and reform of law in prcsent day India", in 0. Botto (cd.), Max Weber L'Indi(l (Torino, 1986) 79 at 91.



738 [vol. so IHE MODERN LAW REVIEW

The situation is not quite that bleak. The Indian state is not just a collection of disaggregated institutions of civil society with no reference to principles of public law. But to understand Indian developments one does not have to resort to British, American or Australian examples but rather try to grasp certain basic aspects of Indian lifo. It is this task of reflexive research which has, in varying degrees, eluded Indian scholarship.

It is not surprising that the bulk of Indian people regard western constitutionalism (and India's system of modern law) as opportunistic without being inspired by it. In India's classical dharmasastra tradition, the relationship between the ruler and the ruled followed from a clear understanding that the former was supposed to achieve social justice and enhance prosperity for all in civil society.50 Without a vision of social justice, no public system could have legitimacy. Contemporary India rightly rejects the hierarchical basis which the invocation of the ancients preserved for centuries. India's judges and jurists are charged with the task of developing new notions of "collective co-prosperity''5l in a society marred by unjustifiable differentials. lndia's constitutionalism, indeed its modern law, will continue to display unease and discordance until its public law is demonstrably concerned with, and capable of developing coherent notions of, social justice acceptable to a much larger number of people and groups.

Since judges have appeared as the leading "conceptive ideologists" of law and justice, their writings, judgments and conduct have become a primary focus of research.52 Inevitably the Supreme Court, with its wide ranging powers and successful encounters with

50 In contrast to an allegedly South Asian vicw demanding total fidelity from thc subject (e g. Shaharuddin G. Maruf, Concept of a Hero in Malay Society (Singaporc 1984)), Indian notions of rulership rest fairly and s4uarcly on an expectation of righteousncss (dharma) even though thc King may be called upon to use the sciencc of punishment (danda niti) along with dharma to achieve his cnds, sec gencrally J. D. M. Dcrrett, "Rulers and ruled in India", (1969) XXII, Recueils de la Societe' Jearl Bodin 417 J. W. Spellman, Political Theory in Ancient India (Oxford, 1964); A. S. Altekar, State Governmerlt in Ancient India (Dclhi, 1958); Drekheimor, Kingship atld C'omnllxnity in Early India (Stanford, 1962). It is, however, important to note that thcse dutics included suvfporting hicrarchical arrangemcnts in civil socicty.

A phrase from Derrett, sapra, n.49. 52 Apart from some scholarly literaturc (infra n.5>58) and political controversy over

the governmcnt patronagc of appointing judges, therc is a dearth of systematic information on the judiciary. Somc matcrial can be found in the autobiographical accounts of judges: sec M. C. Mahajan, Looking Back (London, 1963); M. C. Chagla, Roses in December: A11 Autobiography (Bombay, 1973); P. B. GaJendragadkar, To the Best of my Memory (Bombay, 1933); H. R. Khanna, IaJeither Roses IaJor T}lorns (Lucknow, 1985); M. Hidayatullah, My Oovn Boswell (Delhi, 1980); B. P. Sinha, Rerrliniscences and Reflection of a Chief Justice (Delhi, 1985); an(J the autobiography of Attorney General Setalvad, My Life Lasv and Other TSlings (Bombay, 1971). Biographical accounts of judges include V. D. blahajan, Chief Juslice Gajendragadkar: His Life, Ideas Papers and Addresses (Delhi, 1966); ibid, Chief Justice K Subha Rao, Defender svf Civli Liberties (Delhi, 1967); H. Swaroop, For Whom the Lasv is Made Mind and Failh of Justice V R Krzshna Iyer (Seclisburg, 1984), see also U. Baxi's cdition of K. K. Mathew, Democracy, Equality and Freedom (Lucknow, 1978).



OCI. 1987] 739 MEANS, MOTIVES AND OPPORTUNITIES

the government of the day, has invited much attention. An American political scientist set the pattern by examining the internal dynamics of judicial decision-making by means of the acquisition of quantitative data and jurimetric analysis. This has not been correlated with his studies on the social backgrounds of the judges.53 If this approach took a consequentialist look at clusters of individual cases, a more expanded view tried to hypothesise a general class bias, discerned mainly by looking at overall consequences and loosely linking them to the middle class backgrounds of the judges.54 In a detailed work examining how the Court has reacted to about thirty problems, the present writer rejected a consequentialist analysis of the court's work, and concentrated on its discourse and the choice of discourse available to it.55 Concurrently, a political scientist has brilliantly and with insight explicated the complexity of looking at the judiciary as an institution of the State both reflecting and constituting the social form in which relations of productions are reconstructed.56 These aspects are ignored by an ebullient and provocative account of the post-emergency Supreme Court as an emerging political arena.57 Lacking both a theory of State and a theory of power and drawing from an American influenced approach seeing courts as an arena of social and political conflict, this view welcomes the new activism of the Court with an optimism that ignores the structural constraints that govern the Court's use and capacity for self direction. At least this optimism represents an invigorating stirring of the judicial conscience, even if it masks an understanding of what is really possible.

53 George Gadbois lr., "Selection and background characteristics of Indian Supreme Court judges", in S. Schubert and D. Danciski (eds.), Comparative Judicial Behaviour (Oxford, 1969) 221. For his portrait of the judges see "Indian Supreme Judges-A portrait" (196S9) 3 Law and Society Review 317, and for a more general estimate of the court as a political institution see his "The Supreme Court as a political institution", in R. Dhavan, R. Sudarshan and S. Khurshid (cds.), Judges and the Judicial Powers: Essays in honour of justice Krishns lyer (London, 1985) 251-267. For a gencral review of work on the judiciary of this genre see R. V. Chandrasekhara Rao, "Studies in Judicial Behavior and Process: A Trend Report", in I.C.S.S.R. (ed.), Survey of Research itl Political Science (Delhi, 1979) 131-160; Iqbal Narain and Surcsh Rathore, "Studies of the Judicial System in India", in I.C.S.S.R. (ed.) ibid. 161-185; R. Dhavan, R. Sudarshan and S. Khurshid supra remains a representative anthology of writing on the judiciary in India (see Part III).

54 S. Datta Gupta, "Thc Supreme Court and Indian Capitalism 195(S67", in K. Mukhopadhaya (ed.), Society and Politics in Contetnporary India (Calcutta, 1974) 167; ibid., Justice and Political Order itl India (Calcutta, 1978); cf. Baxi's book review (1979) 4 Indian Book Chron.cle 367.

55 R. Dhavan, The Supreme Court of India: A Socio-legal Analysis of its Juristic Techniques (Bombay, 1977). Earlicr, N1. Imam, Tfle Indian Supreme Court and the Constitution: A Study of fSle Process of Construction (Lucknow, 1968) had looked at the influence of the constitution makers and forcign doctrine in the deliberation of judges.

56 R. Sudarshan, "Judges, Statc and Socicty in India", in R. Dhavan, R. Sudarshan and S. Khurshid (cds.), supra, n.53, 268-288.

57 U. B:axi, The Indian Supreme Court and Politics (Lucknow, 1980). For carlier work on thc court as an arcna of social conRict and social justicc see S. R. Sharma, The Supreme Coxlrt in the Itldian Constitution (Delhi, 1959); B. Singh, The Supreme Court as an Instrument of Social Justice (Dclhi, 1976).



[Vol. 50 740 1'HE MODERN LAW REVIEW

Very {ittle work has been done on the lower judiciary. Much thinking on the judiciary as a whole has been overshadowed by the accumulation of intolerable arrears of cases which, even in the case of the Supreme Court, would normally take decades to determine.58 The phenomenon is not new and was recognised in 1925 and by subsequent governmental reports.59 Better management would, of course, eliminate some of the problems. But the difficulties run deeper. The colonial courts successfully used the judiciary as an institution of the State to regulate landholding. Since 1950, land litigation has continued, but we do not know enough about contemporary civil and political uses of courts except from the case law and very badly collected gross data about their docket. It is not enough simply to assert that courts ferment displltes instead of solving them. Rather, what should be stressed is tllat too much research is court-centred; too little sheds light on what is really going on, at whose behest and with what general and specific consequences. The lack of a research programme compounds this situation.

l'here are similar difficulties with work on lawyers. Although research rightly rejects a rigid functional theory of professions,60 portrays how clients interact with touts,6' lawyers and their clerks,62 and examines the patterns of class, caste and gender reproduction within the profession,63 yet the picture is severely incomplete. Research has concentrated on how individual interactions are managed rather thall setting these in the total social context within which they occur.64 We need to know more about how the legal profession organises its work in serving different classes of people. Lawyers in the United Kingdom have been able to evolve a safe,

58 SeC R. Dhavall, TheSupremeCourtullder.Strnill: T/leC'/lnllengeofArrenrs(Bombay, 1978); ibid., I,itigation Explosion, . . . supra n.23.

59 After the Ranking Committet Report otl Civil Jstice (Government of India, 1925), the maJor impetus for study has come from the Law Commission (see its 14th, 44th, 45th, SSth 78th and 79th Reports). The massive backlog of cases before FIigh Courts was also examined by the Shah Committee Report on the Higfl Cotlrt Arrenrs Comnlittee (Delhi, 1972).

60 R. L. Kidder, "Formal litigation and professional insecurity; Legal Enterpreneurship in India", (1974) 9 Lnw nnd Society Review, 11. For a provocative reassessmcnt of Indian lawyers sce U. Baxi, "Thc pathology of the Indian legal profcssion", (1986) 13 lndinll Bnr Review 455 484.

61 J S. Gandlli, Lnwyers as 70uts (Delhi, 1984); see more generally his Sociology of LeEnl Profession, Lnw nlld Legnl System (Delhi, 1987).

2 C, L. Morrison, "Social organisation al the district courts: Colleagut relationships among Indian lawyers", (196S69) 3 Lnw nnd Society Review 251; R. L. Kidder, "Court and conflict ill an Indian city: A study in legal impact", (1973) 11 J.C.P.S. 121.

63 C, L. Morrison, "Munshis and their masters: The organisation of an occupational relationship in the Indian legal system", (1912) 31 Jc)urllnl of Asinn ,Studies 309; ibid., "Kinship in profcssional relations: A study of North Indian district lawyers", (1972) 14 Compnrntive Studies ilt Society nnd Histc)ry 100; ibid., "Clerks and clients: Paraprofessional roles and cultural identities in Indian litigation", (1974) 9 Lnw and Society Review 39.

64 S. P. Sathe, S. Kunchur and S. Kashikar, Legnl Profession: lts Contribution to Social Chnnge: A Survey of the Pulle City Bar (Delhi, I.C.S.S.R., 1982 mimeo), N. R. Madhava Menon, The Legnl Profession: A Preliminary Study of the Tnmil Nndu Bnr (Delhi, Bar Council of India, 1984).



741 OCT. 1987] MEANS, MOTIVES AND OPPORTUNITIES

conservative style, which is now proving to be fragile as worldwide corporate interests and increasing disputes within the domestic economy make sharpening demands on traditiorlal methods of negotiation and litigation. The Indian legal profession has developed to serve different sectors of society in widely different ways.65 Much of the research on lawyers has tended to look at "one- shotter" transactions at the lower end of the market.66 Most lawyers are content wlth monetary gain amidst unsavotlry attempts to tout for clients and arrange for the patronage of government and corporate retainers. Noisy rhetoric on the role of lawyers suggests that some do not want to be seen as just "fix it" folk, yet, like other middle class professionals in India (including journalists and administrators), lawyers are still struggling for a more objective self-definition which could transcend their client relationships and give them a more concrete ideological function. Research on lawyers needs to examine the emerging pattern of organisational arrangements and ideological debates in their social, political and economic contexts, and whether their role will be transformed from crude go-betweens so that they come to occupy a more prestigious role as votaries of "modern law."

General research on courts, judges and lawyers has been supplemented by work on the criminal law,67 police,68 sentencing69 -

65 The literature concontrates on relationships betwoen traditional and neo-traditional groups see R. L. Kidder, "Litigation as a strategy for personal mobility: The case of urban caste associations Ieaders", (1973) 33 Journal of Asian Studies 177; S. W. McKinstry, The Brokerage Role of the Indi(lsr Lawyer: A Lazv and Society Approac/t (University of Mussoorie, Ph. D ., 1974); P. Rowe, "Indian lawvers and Political modernization: Obscrvations in four district towns", (1969) 3 Lnev ntld Society Review 102. For an attempt to locate litigation and lawyers in the context of political economy see O. Mendelsohn, "The pathology of the Indian Iegal system", (1981) 15 Modern Asian Studies 823. Often social forces will koop a problem out of the official adjudicatory system. For a poignant example see R. S. Freed, "The Iegal process in a village in North India: The casc of Maya", (1971) 33 Transactions of tSle New York Academy of Sciences (Second Series) 423.

66 The phrasc is taken from M. Galanter's celobratcd essay "Why the 'Haves' come out ahead: Speculations on the limits of legal change", (1973) 8 Lav and Society Review 95.

67 General works on criminology include M. J. Sethna, KSs)ciety and the Criminal (Bombay, 1971, 3rd ed.); A Siddique, Criminology: Problems and Perspectives (Lucknow, 1976).

68 FOr an exhaustive, even if now dated, account see D. Bayle, Police and Political Development itl Indi(l (Princoton, 1969); for later research see R. G. Reddy and S. Seshadiri (eds.), Developing Society and the Police (Hyderabad, 1972); P. D. Sharma, Indian Police: A DeveZopmental Approach (Delhi, 1977). Only Baxi, Crisis in the Indian Legal System (Delhi, 1982) 8>120 does full jllstice to analysing the controversial and frightening relationship betwoen the police, its masters and supposed beneficiaries. I am grateful to Baxi's bibliographic essay of 1986 (supra n.2) for directing me to some of the literature on the police, sentencing and penology.

69 The Suprome Court's deliberations on the constitutionality of the death penalty (see Anjetldra Prasad v State of U P A.I.R. 1979 S.C. 916; Bachan Singh v State of Punjab A.I.R. 1982 S.C. 1325; and now Machi Singh v. State of Put2jab A.I.R. 1983 S.C. 957) have triggered off a rcnewed intcrcst in sentencing. For a perceptivc analysis of this issue see A. R. Blackshield, "Capital Punishment in India", (1979) 21 J.I.L.I. 137. For studies on the differentiated nature of sentencing see S. Chhabra, Quantum of Punishment in Criminal Law (Chandigarh, 1970) and also R. K. Raizada, Trends in Sentencing: A Study of Important Penal Statutes and Judicial Pronouncements of the High Courts and the Slopreme Court 1950-75 (Jaipur, 1977, unpublished Ph.D. thcsis).



742 [Vol. 50 rHE MODERN LAW REVIEW

and penology.70 Some simply reveals direct and "illegal" uses of the law, inconsistent decision-making and inadequate methods of correction and incarceration. Work of insight is being done into the use of the criminal law to maintain patterns of dominance.7l The way in which the functionaries who run the system the police, prison officials and others are corrupted by forces in the government and civil society is all too transparent, as is the manner in which they frequently discharge their responsibilities with a truculent cruelty which lawyers and courts have been unable to discipline through notions of due process. The absence of an operational due process, the appropriation of the criminal law to protect privileged property interests, and the law's frequent inability to protect life and the person are part of an experiential reality. But legal scholarship, with some notable exceptions, has neither exposed this raw state of affairs nor gathered together a framework of ideas which will both win people's respect for the law and guide the use of the system.

Despite the work discussed above, most Indian research on law is concerned with black letter law. There is very little empirical data on how the system works. If the government houses very little data on the working of the law, it parts with even less. Legal journalists in national newspapers and the growth of legal magazines have led to an investigative journalism which has repaired some of this gap 72 There is an emphasis on research intended to make legal institutions more managerial and efficient; such research is quickly, and often clumsily, done, and has been concerned with easing bottlenecks in the system rather than trying to comprehend the empirical reality that has moulded legal institutions.

At the same time, India is beginning to expect a great deal from the law, even if it devotes few resources to the law and legal research. Yet even if the overall picture is blurred, there is an animated concern about law reform and using law for social change.l3

7(1 SCe gencrally B. K. BhattacharJee, Prisoszs (Calcutta, 1958); H. S. Sandhu, A SXtudy of Prisott Impact (Chandigarh, 196&s); S. P. Srivastava, Tfte Indian Prisott Comstustity (Lucknow, 1977); R. N. Datir, Prisotl as a Social System (Bombay, 197&s).

71 e.g. V. Dhagamwar, La;w Power attd Justice (Bombay, 1974); L. Panigrahi, BritisSt Social Policy attd Female 1Itfatlticide (Delhi, 1972).

72 Therc is an intercsting growth of legal journalism as cvinced by thc writing of S. Sahay in thc Statesmabt, K. NIahajan in the Hindustani Times and A. G. Noorani in various journals. New journals for general consumption (as opposed to specialist law reviews) includc Tfte Lavyer (from the Lawycrs Collectivc) and also Lex et Juris.

73 Unfortunatcly, there has also becn very littlc serious writing of Icgal thcory and Jurisprudence. Sethna's "synthetic Jurisprudence" (sec his Progress in Las1} (Bombay, 1962); Costtributiotts to Systthetic Jurisprudetlce (Bombay, 1962); Essetttials of an Ideal Legal System (Bombay, 1968); Jlxrisprudence (Bombay, 1969)) has becn rightly described as more of an "aggregatc than a synthesis" by Paton, Jlxrisprudence (Oxford, 1964), 3 n.3. However frcsh insights can be secn in C. Singh, Lov Attarchy and Utopia (Dclhi 1985) and various other works.



743 OCT. 1987] MEANS, MOTIVES AND OPPORTUNITIPS

IV

India's most recent attempts at law reform and social change have had a chequered history. Armed with a positivist conception of law, the British Raj concentrated its legal efforts upon insulating "law" within a structure of neatly defined rules, cases and (ioctrines.74 Its various Law Commissions used India as an experiment to codify equity and common law in an effort to create legal institutions, processes and rules which would encapsulate the social and political economy and attempt to limit public discussion on a range of issues to a narrow and esoteric legal discourse.75 To some extent, independent India has sustained this approach but less systematically, and with a diminished insight into the nature of its objectives. Since 1956, succeeding Law Commissions have examined the working of the courts and, over an expanse of almost a hundred reports, suggested changes in a number of statutes.76 The Law Commission, a low-key in-house government department manned by retired judges and concerned with technical legal reform, has come to occupy an important space which prevents the development of alternative conceptions and initiatives for change, and takes the edge off many of the proposals that are referred to it. But this was not consciously contrived. Successive governments themselves accepted and were taken in by the Imperial legacy that law was non-problematic, above politics and separated from morals. When the Constituent Assembly was drafting India's Constitution, Nehru was nonchalant about the qualities of a good judge.77 Later, he attacked the judges bitterly, complaining that India's lawyers had "purloined the Constitution."78 Mrs. Gandhi, even during the

74 On the nature of law and Juristic science developed by the British see J. D. M. Derrett, "Legal Science during the last century", in M. Rotondi (ed.), Istchieste di diritto comparato (Padua, Cedam, 1976) 413-435. For the influence of the black letter law tradition sec M. C. Sctalvad, Commotl Lalv isl ltldia (London, Hamlyn Lectures, 1960); note book reviews by Derrett (1960) 10 I.C.L.Q. 206; Galanter (1961) 10 A.J.C.L. 292); ibid, T/le Role of EsgglisSl Lav isl Isldia (Jerusalem, 1966). The juristic art form in which Indian law was developed was treatises and annotated texts of the kind written by D. F. Mulla. These (Ire still in vogue, with revised editions, being published by N. M. Tripathi.

75 For a review (:nd anthology of this Iegislation see Whitley Stokes, T/le Aslglo ltldiatl Codes (Oxford I SX7, in 2 volumes); B . K. Acharya, Codification isl Britis}t India (Calcutta, 1914); C. Ilbert, "Indian Codification" (18039) 5 L.Q.R. 352-369; ibid, "Sir James Stephen as a Iegislator" (1894) 10 L.Q.R. 222; D. S. Desika Char, Cetltralized l,egislatiosl A History of tSle Legislative Systetn itl BritisSl I ldia from 1834 to 1861 (London, 1963) 167-225 (on the Law Commission) and 27(F321 (on the Iegislation); R. C. Maujamdar and K. Datta, "Legislation and Justicc" in R. C. Maujamdar et al. (ed.), T/le History asld Culture of tSle Indiatl People: Voltstle 9 BritisSl Parattlousltcy asld tSte ltldiatl Reslaissatzoe (Bombay, 1963) 33W353.

76 For a brief descriptive view of the working of Independent India's Law Commission see U. Baxi, slopra n.623 244-294. 77 J. L. Nehru, Speech reported in the Cfoslstitzxeslt Assesslbly Debate VII, 247 (May 24,

1949). 7# J. L. Nehru, "Somehow we have found that this magnificent Constitution that we

have framed was later kidnapped and purloined by lawyers" (1951) XII-XIII Parl Debates (Pt. 11) col. 030332 (May 17, 1951).



744 [Vol. sO rH [ MODERN LAW REVIEW

Emergency of 1'975-77, continued to support Nehru's view that the "law" was not intrinsicllly controversial, but became a threat in the hands of atypical maverick judges and lawyers.7" This has led to the demand for the appointment of "safe" and "committed" judges.8" The refusal to view law as something more than a neutral weapoll in the hands of troulrlemakers gave the government leew(ly to do what it liked while claiming legitimacy in that it followed the "rule of law." But the "rule of law" followed by the government was an exhortation to obey its instructions rather than (l promise of fairness. The Law Commission was supposed to tidy up the laW and help create a fair and just society. The failure of the I aw Commission to do this has highlighted how its research effotts ale subservient to the narrow perspectives of government and has alienated it from both ordinary people (who have greater expectations and identify law with righteousness) and from those practitioners and commentators who regard the "rule of law" as representing a discourse about values.

The government's research into llw and development betrays an inner rhetoric which objectifies the State as a public institution benevolently standing above civil society. The rhetoric is even less convincing for India where attempts to corrupt the State have not been wholly set-off by efforts to sustain the distinction between "public" and "private" power. The State stands partly deconstructed in terms of the pathology of its use as powerl ul forces in ciil society have "privatised" the State, or parts of it, and appropriated it to its own use. The State and law are seen as malleable rather than concrete realities. Evidence from the experiences of everyday life supports the results of research which portray tlle arbitrary manner in which State institutions alld legal processes are manipulated to become instrutllents of class and group dominatioll. But although the State has become i'lawless" by subverting many of the rules which it lays down for itself, it has not beell wholly "privatised." Nevertheless, there is a disillusionment with the governments approach to law and developmellt.

India is now left in a quandary about the relationship between State, law and justice. One possibility has been to treat State law as an instrument of oppression and to create other arenas in which alternative conceptions and strategies can be tieveloped by the

79 Indira Gandhi, Speech on thc Constitution (Forty-secolid Amendincnt) Act 1()76 during its passage through Parliament: see (1976) R(ljyu 5(abII(J Deb(lte 21S217.

81) The notion of a "committed" judge was developed by M. KumarXtinangltm (itlfroJ) and seems to demand not just cominitment to certtin ideals ttit to the regime that protests its fidelity to these ideals. The bulk of the response to literature w.ls the controverslal appointment of Ray, C.J. over his senior colleagues see esp. M. Kumaramanglam, Jdicial Appoililmelits (Delhi, 1973); A. R.. Antulay, Appoitlttetlt l)f (J Chief Justice (Bombay, 1973); K. Nayar, Supersessiotl of Judges (Delhi, 1973); K. S. Hegde, Crisis ill lhe Judicioty (Delhi, 1973). For an account of a Iess drainsttic controvelsy see R. Dhavan and A. Jacob, Selecliotl sIlld Appoitllmelll o} 5upretJIe (ourt Jllbtges: A Case Study (Bombtly, 1973). At present, the executive is putting pressure on High Court Judges by threatening to transfer them from one State to another (see Seerv.li (slxl)ra, n.41), 1984 ed.) II, 22792461.




disadvantaged. But this may be possible in only marginal areas. State law would have to remain a site of struggle because it cannot be ignored, given the complex nature of modern society which has been encompassed and reconstituted by law. A more optimistic approach, undeterred by the dismal reality of State oppression, argues that as long as the legal machinery retains some autonomy of standards and decision-making, State law is up for grabs in the hands of those, including the disadvantaged, who acquire the skills to use it. And so, in the course of time, a new public interest or social action law movement has developed, led, essentially, by middle class judges, academics, newspapermen and social activists who feel that law can be "turned around" to provide solutions for the poor.8l Supreme Court judges tour the country declaring the new movement82 and have set up a procedure whereby their jurisdiction can be invoked simply by a letter to a judge explaining the exploitation or atrocity complained about.83 Various lawyers, individuals and groups have begun to devise ways and means in which a greater and more socially just use can be made of the law. The preliminary results are exciting but not sufficiently concrete to inspire unreserved acclaim. Public interest law may prevent some exploitation, redress the horrifying effect of some atrocity, and prevent Indian society from regressing into uncontrolled oppression; but it cannot be expected to achieve distributive justice or alter the power structure.

This movement throws up some interesting questions. At one level, activists wish to obtain results from the law even though they have no faith in it. But in order to get the system to yield dividends, a range of bargaining endowments have to be built into the system. The entire system has to be sensitised. New ideological, institutional and processual elements have to be introduced. At a deeper level, some judges and jurists see the present situation as an opportunity to replace both the positivist and the instrumental theory of law and development84 with a new epistemological

81 On the public interest/social action movement see R. Dhavan, Public Interest Litigation in India: An Investigative Report (Delhi, 1982FConsultant's report of the national Committee for the Implementation of Legal Aid Schemes; see further Galanter "New patterns in legal services in India" in his Law and Society . . . (supra n.10) Chap. 12. Much of the earlier literature has been edited in R. Dhavan infra n.88 and the papers presented to conferences at Ahmedabad and Lucknow (infra, n.88j. Criticisms of this development can be seen in S. K. Agrawala, Public Interest Litigation in India: A Critique (Bombay, 1985); D. C. Jain, "The Phantom of Public Interest," A.I.R. 1986 Journal 85.

82 See especially Justice P. N. Bhagwati, "Judicial activism and public interest litigation", (1985) 23 Columbia Journal of Transnational Law 561-577, his judgment in Bandhua Mukti Morcha v. lJnion of India, A.I.R. 1984 S.C. 802; Justice O. Chinnappa Reddy, "Socialism, Constitutionalism and Legal Aid Movement in India" A.I.R. 1986 Journal 1-8.

83 The growth of this "epistolary" jurisdiction is traced by Baxi in "Taking suffering seriously: Social Action litigation in the Supreme Court of India", in Dhavan, Sudarshan & Khurshid (eds.), supra n.53 above; see further R. Dhavan infra, n.85.

84 e.g. P. N. Bhagwati supra, n.82 and numerous other unpublished writings and speeches.



understanding of law. Such an understanding would be less dependent on the vagaries of politics and more attuned to the expectations of those who belong to what have been called the "exploited" and "genocide" sectors of society.85

Drawing on the untidy power struggles between the Supreme Court and the Executive, India's social action law thus challenges older assumptions about law. In the first place, there is an explicit rejection of positivist notions of law which surrender law to designated political elites. India does not just need to draw a line between acceptable and unacceptable levels of atrocity and exploitation, but to think more fundamentally about distributive justice. It can no longer fall back on a conservative concern for protecting life, liberty, property and religious freedom. Rather, it needs to think about those social welfare, social justice and civil and political rights which might give its vast millions a real chance both to withstand the pressures of India's unruly acquisitive capitalism and to fight for their individual and collective entitlements as full citizens and not just beneficiaries of welfare.

Secondly, Indian law is being forced to reassess the theory of plural accommodation which has sustained its ordering of affairs in civil society and allowed its social political leaders to juggle together temporary live-and-let-live compromises. The peaceful coexistence of hierarchical arrangements, amidst vast differentials and exploitative practices without reference to justice, is no longer possible or desirable. Tremendous strains on Indian federalism require India to look at more participatory forms of devolved government. Again, judges are under considerable pressure to re- evaluate fundamentally the dispensation that allowed various religious practices to coexist without reference to the immediate and long term injustice they might perpetuate. This must, perforce, provoke a reassessment of how the law should review relations between people inter se in civil society.

Thirdly, the centrality of the State legal system to law and justice has been seriously questioned. It has been argued that even though the pressures of a technologically complex society demand some normative centralisation, society's understanding, rather than political declarations, of what is just should also structure its perception of, and expectations from, law. This puts far greater pressure on politicians, lawyers and judges. They cannot just get away with what they want. Indeed, the whole hermeneutic tradition developed by judges, as indeed the deliberations of politicians and bureaucrats, is being treated as arbitrary and in need of urgent

85 These terms are taken from R. Dhavan, "Managing Legal Activism: Reflections on India's Legal Aid Programme", (1987) 15 Anglo-American L.R. (forthcoming) contrasting those sectors of the economy where people are 'Sexploited'' (not given their fair share) from those "genocide" sectors where their economic redundancy to the economy makes them totally vulnerable but for the exercise of political will by or on their behalf.





reassessment.86 There is also a movement away from the State system of law and justice not just to "bargain in the shadow of the law" but to design alternative structures, processes and normative understandings. This has led to the converse pressure of the State system striving to assimilate as much as it can within its fold. But while its coercive tactics may succeed, as brute force often does, it will need to show a far greater proximity to notions of law and justice in civil society.

Fourthly, there is a struggle taking place between the normal custodians of law and justice (lawyers, judges, administrators and politicians) and an emerging range of social and legal activists who are not just using the law in a different way to explicate different concerns but seeking to alter fundamental understandings of law both within the State system and outside it. Since many of these so-called "socio-legal entrepreneurs" are themselves drawn from the middle class, this struggle is seen as a middle class affair. It has been argued that the new activists are generating a false consciousness because they feel the need "for an articulation of . . . (a) role far in excess of their potentialities (in a manner that is not) only narcissistic but also predatory on the rest of society."87 But while the relationship between different varieties of activist needs to be worked out, this new debate may elaborate ideas which could gather independent momentum and support. There is no doubt that an activist approach to law is challenging the assumptions behind positivist conceptions of the rule of law and the power and influence of the latter's custodians.

All this opens up a potential for research which is expected not just to emanate from government or to consist of watching the activities of government and quasi-governmental institutions. It points to a greater critical and communicative understanding of how legal values and legal ideology are created. There is already an impressive emerging scholarship amongst individuals and pressure groups about the working of the legal system and peoples' understanding of law and justice.88

86 For a brief account of how judicial interpretation has developed in India see R. Dhavan, Justice on Trial: The Supreme Court Today (Allahabad, 1980), Chap. IV.

87 C. Alvarez, "Marginal men" (1983) VIII Book Review (No. 3) 14>146 (reviewing A. Shourie, TEle Second Reign of Mrs. Gandhi (Delhi, 1983). 88 For an anthology of the preliminary reaction to social action law see R. Dhavan (ed.),

Public Interest Law in India: Some Introductory Readings (Delhi, Committee for the Implementation of Legal Aid Schemes 1982, mimeo); International Commission of Jurists, Conclusions and Recommendations of the Seminar on Rllral Development and Human Rights in South Asia (Geneva, 1982). Unfortunately, an interesting set of papers to an International Workshop on the Effective Uses of Law by Social Action Groups (Ahmedabad, 1982) are not available in a presentablc form. There is an interesting litcrature on environmental law e.g. J. Bandhopadhyaya, et al., India's Environment: Crises and Responses (Dclhi, 1985), and new jurisprudential ideas developed by Chattrapati Singh and his colleagues on the use of forests and wastelands in India: see C. Singh, Common Property and Common Poverty: lndia's Forests, Forest Dwellers and the Law (Delhi, 1986) and an interesting set of six reports summarised in C. Singh, "On Survival ..." (1987) 5 Lokayan Bulletin S17. Following controversies over dowry deaths, rape in prison and the maintenance of Muslim wives, there is also a basic revaluation of the rights of women in Indian society. The vast literature on this area is difficult to summarise.



748 [Vol. .SO THE MODERN I AW REVIEW

There are, however, many problems ahead. Lack of finance and resources causes dependence on charitable foundations. The effect of this has still to be determined. At the same time, both the government as well as the normal middle class custodians of law and justice are, at present, ambivalent and bemused about these new pressures on law Many of them see it as a passing phase and a new affectation of some of their colleagues.89 But as activist understandings make greater demands, achieve better collaborative networks, and find better and more effective alternatives, they might pose a greater threat and be subjected to pressures, threats and takeovers.

V

Whether or not the social sciences are capable of discovering the "truth," or whether knowledge is organised around paradigmatic belief systems, it is necessary to ask why social science research is done at all. To some extent, such research is a middle and upper class game played at university. It is also a restrictive practice controlling access to jobs, especially in the higher echelons. The rules of the game make it very elaborate and often very exhausting. It generates its caste system and deifies its pulldits. As academia has expanded, it has constituted itself into a captive market of students, colleagues and competitors. The game is sustained, and thereby reconstituted into a new framework, by publishers who now design the structural constraints within which communication between researchers will take place. Publishers link in with and support the research caste system, sometimes playing a decisive role in determining caste mobility.

As universities become places of mass learning which classify and grade students for the employment market, there has been some serious rethinking about research.90 The main pressure has come

89 Scc S. K. Agrawala and D. C. Jain (.sapr(l, n.81). 90 There has been a considerabie amount of writing on Iegal education: sec S. K.

Agrawala, Legal Education in India (Bombay, 1973); Reportof the University Education Commission (1948) I, 257; Report of tSle Legal Educatiotl C'ommittee (Bombay, 1949); Report of the Commission on the Re-organisatiotl of Legal Education in tSle Universily of Delhi (Delhi, 1964). For comments on legal education see Anandji, "Dcan's Report: Response to the Banaras Scheme", (1965) 1 Banaras L.J.; T. Von Mehren, "Law and Legal Education in India: Some Observations", (1965) 78 Harvard L.R. 1180; T. G. Bastedo, "Law Colleges and law students in Bihar", (1968) 3 Law and Society Review 269; P. K. Tripathi, "In the quest for a better legal education", (1968) 10 J.I.L.I. 469; R. B. Sunshinc and Arthur L. Berney, "Basic legal education An empirical student of student perspectives at three law colleges", (1970) 12 J.I.L.I. 39; U. Baxi, 'iTowards a socially reievant Iegal education", (Delhi, U.G.C. 1979); S. K. Agrawala, "Legal education and its reievance to contemporary Indian society", (1978) Cochin (J.L.R. 34; S. P. Sathe, "Legal education in Maharashtra", (1983) 10 lndian Bar Review 186, and generally S. P. Sathe "Access to Legal Education/Legal Profession in India", (Paper for Commonwealth Legal Education Association, 1987 mimeo) which exhaustively reviews the literature. The Bar Council of India has started a 5 year inter-disciplinary undergraduate course to replace the existing 3 year post-graduate course. This is more an effort to restrain numbers than improve the quality of Iegal education. It also plans an elite law school for the better class of students. The U.G.C. has initiated extensive curricula revision in 1987. The future of legal research depends very greatly on improving the quality and rcducing the numbers in law schools.



from government and powerful business and other institutions who have demanded and backed research relevant to their work and operations.9} The story of the Ministry of External Affairs in India stating that tailoring and law were not important areas of relevant research reflects on the government's preference for instrumental problem-and issue-solving research. In law this has meant doing research which identifies "gaps" between rules and enforcement and then suggests how they can be filled. In the long run, such research has not been helpful to even its sponsors, who need to have more comprehensive accounts of what is going on.

The results of research are constantly appropriated and transformed for use in power struggles in civil and political society. New developments in information and commullication technology have expanded the diverse ways in which the "truth" is presented to society. Researchers themselves, consciously and unconsciously, become ideologists for diverse purposes and groups. These games- which are struggles for the mastery of ideology and interpretation- are much more difficult and elaborate and not always easy to interpret.

The canvass of Indian legal research affirms this general picture. With notable exceptions, much of the work being done at universities is to secure tenure, appear busy or acquire publishing status. But, as this has gone on, "law" itself has come to be regarded as a problematic weapon of social control. There has been an intense middle class power struggle over the meaning of law and the potential use of legal institutions. This has resulted in a movement away from positivist notions of law to reinforce a much more elaborate epistemological framework of legal thought linking law with social justice. This transformation in thinking about law has been accelerated by spokesmen for India's poor making demands on the legal system and insisting that the system should be denied legitimacy and support unless it exhibits a greater capacity to offer a much more wide-ranging justice to a much wider class of people. This may itself be a ploy, but it has generated a renewed discussion about the nature of law. India cannot fudge questions of justice which continually surface for resolution. It also has a rich tradition of looking at law as an expression of righteousness designed to enhance the co-prosperity of all, even if its past solutions are now an embarrassment. To that extent, India is eminently suited to taking on the challenge of providing a provocative reassessment of the role of law in modern society.

RAJEEV DHAVAN *

9' For cxampic, much of thc Planning Commission's work has conccntrated on a law- in-context approach to thc "impact" of agrarian reform legislation. For a dcscriptive cvaluation sce P. C. Joshi: Land Reforms in ltldia (Delhi, 1975).

* Rcader in Law, Bruncl University.

749 Ocr. 1987] MEANS, MOTIVES AND OPPORTUNITIES



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Legal Research in India