Professional Documents
Culture Documents
LEGAL RESEARCH
s.N. Jain"
I. Doctrinal research and social values
LA W IS a normatiy~ien&J;. that is., a science which lays down norms
situation or situations
and standards for human behaviour in ~.
enforceable throu'&!! tfie-salIs:.tiWl~Lthe- state. What distinguishesIaw
From'othersocial sciences (and law is a social science on account of the
simple fact that it regulates human conduct and relationship) is its
. normative character. This
fact along with
the fact that stability and
I
.-----'certainty of law are desirable goals and social values to be pursued, make
dOctriiuil research to be of primary concern to a legal researcher.
DOe-irana" resear~h,-of c;~rse: involves analysis of~~w...l..arrl!!!ging,
ordenDs and syitem3h.sj.ng Je~alpropositions. and study of legal
i~ions. wt iLdoes .more=-it!,~at~s law and its JnliQI !9.01 (but not
t~!.EI!!y_!ool) t~~ is .!.llr9ygbJ~ea.soniJl&. or rational deduction.
!l.venduring The..period when..analytical.p.QsitiYJ-s!l1_h.eld~ s.~~L!!!g the
~ant legal.pl1ilosqphy was that judges did not create law but merely
declared it, the t!..utj1 wasthat much judicial creativi~ was gOln'g~on~ The
development of common .law by th~_ C0l1'lJll.OIL h;tW j)1des...i.S .,~ar
example of law-making by the judges. has been commented upon the
...
traditional view:
specHieo
It
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courts of justice.
Every
70
------
3. Jd. at 26-28.
4. N.D. Grundstein, "Administrative Law and the Behavioral and Management
Sciences", 17 J. Legal Ed. 121 at 122 (1964-65).
5. Oliver Wendell Holmes, The Common Law I (1881).
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-c
72
to live in an age of laws. The legislative mill has been constantly pouring
out laws. This is not the only factory for producing statutory laws. The
executive made law (delegated legislation) has become much more
important both quantitatively and qualitatively.
Jhe present emphasis of law on achieving the social welfare of the
people along with the fact of great economic and technological advancements have placed great burdens on law ~.e....2!!!1S_Qf.la~. Because
of the necessity to enact Iaw~-Q!l, complex and ~erse...s~~ts it has
become inevliablefor 'the 'iesislature_!~_l~~v~gaps J~. jhe s.tatl,lt.es,-'aridg,e~etlf~-gt~'aiscretion
!llesoUJ:t$tp evolve doctrines, principles.
standards and norms themselves in the process of _a"pp'licati~r:t of the law
from case "to case. Further, the complexity of laws has given scope for
ambiguities Tn llie~~uiorylanguageorscheme. Then a word used ina
statute, which may appear to be fairly clear at the time of enactment of
the statute, may acquire vagueness when the occasion of its application to
a case by the court arises. Similarly, the plain statutory language maYloSe
Its plainness at the time of actual controversy because oTihe human
limitation to foresee all the difficulties and' nuances of the problem. A few
examplesmay be taken from "the Indian statute book to illustrate some of
these points.
"
An example, par excellence, of the legislature conferring discretion
on the courts is that of article 19 of the Constitution which permits the
state to impose reasonable restrictions on the various rights guaranteed
to the citizens by that article. There is no definite test to judge the
reasonableness of a restriction, and the Supreme Court itself has stated:
"'ii
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A few examples may be given here. Use of such phrases as "just and
equitable't.? "public order", 10 "inexpedient'"?" "reasonable opportunity of
being heard" 1I "reasons to believe",12 "undue and unreasonable preference't.!' "acting under colour of office", 14 "reasonable sum".'! "rash
or negligent act",16 "reasonable apprehension";'? "reasonable cause'"!
"oppression and mismanagement't.!? are only a few of the illustrations
amongst the host of statutory provisions. Also even such words or
phrases as "sale" for sales tax purposes, "interstate sale", "annual letting
value", "fraud" for declaring a marriage as "nullity", "industry", "industrial
dispute", "business expenses", "best judgment assessment", "obscenity"
and innumerable such other phrases have presented a wide scope for the
exercise of judicial discretion. It may not be wrong to say that the
amorphous mass of the present day statutory provisions take concrete
shape and form in the great laboratories of the law courts, and this
applies even to those statutory provisions which appeared to be precise,
articulate and clear at the time of their enactment. The fact is that "all
rules have a penumbra of uncertainty where the judge must choose
between alternatives"."?"
Apart from this, while interpreting certain clauses, the judiciary itself
has evolved certain standards which are vague and flexible. Three good
examples in this respect from the area ofconstitutional law are "reasonable
classification" under article 14, "direct and indirect restriction" under
part XIII of the Constitution, and "the basic feature theory" for purposes
of amending the Constitution. A few branches of the law have been more
or less entirely developed by the judiciary. The two modem illustrations
are labour law and administrative law. Taking a leaf from administrative
law, such judicially created phrases as "excessive delegation" (to test the
validity of the delegated legislation) or "ultra vires" (to test the validity
of administrative action) or "no legal evidence rule", or "error of law
apparent on the face of the record" leave an area of wide discretion for
9. Section 433, the Companies Act, 1956.
10. Section 3, the Maintenance of Internal Security Act, 1971.
IDa. Section 7-A, the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
I I. This phrase is used in innumerable statutes, see particularly, article 311 of the
Constitution of India.
12. Section 147, the. Income Tax Act, 1961.
13. Section 28, the Indian Railways Act.
14. Section 99, the Indian Penal Code.
15. Section 74, the Indian Contract Act.
16. Section 304-A, the Indian Penal Code.
17. Section 10, the Hindu Marriage Act, 1955.
18. Ibid.
74
the courts to operate. In doing so they have to draw nice lines between,
and balance, the interests of the individual to protect him from arbitrary
government and administrative effectiveness and public interest. The
application of these phrases in a given situation calls for a great deal of
value judgment and "painful adjustment of conflicting values".20
A brief survey of the statutory provisions leads to one inescapable
conclusion. In modem times, case-law based research is concerned to
a very large extent with considerations of social value, social policy and
the social utility of law and any legal proposition. It is naive to think that
the task of a doctrinal researcher is merely mechanical-a simple
application of a clear precedent or statutory provision to the problem in
hand, or dry deductive logic to solve a new problem. He may look for
his value premises in the statutory provisions, cases, history in his own
rationality and meaning of justice. He knows that there are several
alternative solutions to a problem (even this applies to a lawyer who is
arguing a case before a court or an administrative authority) and that he
has to adopt one which achieves the best interests of the society. The
judges always unconsciously or without admitting think of the social
utility of their decisions, but cases are also not infrequent when the
Indian Supreme Court has consciously and deliberately incorporated
social values in the process of its reasoning. To take a few examples
here, in Bengal Immunity Co. v. State of Bihar. 21 the court, while
overruling State of Bombay v. United Motors,22 stated:
All big traders will have to get themselves registered in each
State, study the Sales Tax Acts of each State. conform to the
requirements of all State laws which are by no means uniform
and, finally, may be simultaneously called upon to produce their
books of account in support of their returns before the officers
of each State. Anybody who has any practical experience of the
working of the sales tax laws of the different States knows how
long books are detained by officers of each State during
assessment proceedings.... The harassment to traders is quite
obvious and needs no exaggeration.P
In Jyoti Pershad v. Union Territory of Delhi,24 the Supreme Co uri
observed:
The criteria for determining the degree of restriction on the right
to hold property which would be considered reasonable, are by
20. Friedmann. Law in a Changing Society 384 (1972).
21. AIR 1955 SC661.
22. AIR 1953 SC 252.
23. Supra note 21 at 687.
24. AIR 1961 SC 1602.
75
Id. at 1613.
AIR 1967 SC 1643.
Id. at 1655.
AIR 1975 SC 308.
76
the benefit of the common good and reach out the benefits of
self government to the common man only if it brings about a
participatory democracy in which every man, however lowly or
humble he may be, should be able to participate on a footing of
equality with others. Individuals with grievances, men and women
with ideas and vision are the sources of any society's power to
improve itself. Government by consent means that such individuals
must eventually be able to find groups that will work with them
and must be able to make their voices heard in these groups and
no group should be insulated from competition and criticism. It
is only by the maintenance of such conditions that democracy
can thrive and prosper and this can be ensured only by limiting
the expenditure which may be incurred in connection with
elections, so that, as far as possible no one single political party
or individual can have unfair advantage over the other by reason
of its larger resources and the resources available for being
utilised in the electoral process are within reasonable bounds and
not unduly disparate and the electoral contest becomes evenly
matched. Then alone the small man will come into his own and
will be able to secure proper representation in our legislative
bodies.
The other objective of limiting expenditure is to eliminate. as far
as possible, the influence of big money in the electoral process.
If there were no limit on expenditure, political parties would go
all out for collecting contributions and obviously the largest
contributions would be from the rich and affluent who constitute
but a fraction of the electorate. The pernicious influences of big
money would then play a decisive role in controlling the
democratic process in the country. This would inevitably lead to
the worst form of political corruption and that in its wake is
bound to produce other vices at all levels.I?
Finally, while considering the judges' role in determining questions
of "public policy", Mathew, J. said in Murlidhar v. State 4 u.P. :2l){/
There is no alternative under our system but to vest this power
with judges. The difficulty of discovering what public policy is at
any given moment certainly does not absolve the judges from the
duty of doing so. In conducting an enquiry...judges are not
hidebound by precedent. The judges must look beyond the narrow
field of past precedents, though this still leaves open the question,
29. /d. at 314-15.
290. AIR 1974 SC 1924.
77
in which direction he (sic) must cast his (sic) gaze. The judges are
to base their decision on the opinions of men of the world, as
distinguished from opinions based on legal learning. In other
words, the judges will have to look beyond the jurisprudence and
that in so doing, they must consult not their own personal standards
or predilections but those of the dominant opinion at a given
moment, or what has been termed customary morality. The
judges must consider the social consequences of the rule
propounded, especially in the light of the factual evidence available
as to its probable results. 29b
~hu~tQ~.object~ve and philosophy of doctrinal re,~Earcher has to be
the same as that of sociological jurisprudence; that is, social engineering
tlirough law. In this sense he is a sociological jurist, thoug!!.J! is_~~~at
his liberty of op-eratlon 'is' -res'fiicled' to some extent by the statutory
language, existing doctrines and also the consciousness thaLL.sound
f~~_s!,st~m_shoufd move towards certainty and stability of law which
are social values to be desired. But, as seen above, the law in modern
ti'ilieSleaveSa-iarge'scope,a tinge leeway, and the-leeway'may'be more
i'!.~tEe me'S aniness inothers but it is there, for moulding anQ aE~jHing
it to the society and to social change. This has been additionally fac!liJilted
iii"Tndiilby the Supreme Courtexpressly agreeing as a principle...t.o.r.eview
Its own decisions.' and a number of instances can be cited where: the
c~~,~ _d~~e~ .. !~~ ~process began with the court .Qv~I'J!lILqg jhe
United Motors cas~o in the Bengal Immunity case" and its high watermark
was reached when in the famous Golak Nath case,32 it overruled its
consistent holding in the two earlier cases-Shankari Prasad 33 and
Sajjan Singh. 34 A few other instances of such overruling are: Director
of Rationing v. Corporation of Calcutta'? by Superintendent and
Remembrancer of Legal Affairs v. Corporation of Calcutta/" Indian
Airlines Corporotion v. Sukhdeo Rai 37 by Sukhdev Singh v. Blwgatram,J8
Sardarilal v. Union of India'? by Samsher Singh v. State of Punjab.t"
30.
3 I.
32.
33.
34.
35.
36.
37,
38.
39.
40.
AIR
AIR
AIR
AIR
AIR
AIR
1960
1967
1971
1975
1971
1974
SC
SC
SC
SC
SC
SC
1355.
997.
1828.
1331.
1547.
2192.
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Any number of cases can be cited when the court without expressly
overrulmg Its earlier decIsions a~artea from tnemor weaKened their
..~,_.. ,--~.~- ---- '-'-'-~--'-'''' .. _.
illthoflty' or modified the principles laid down (sometimes in t ie garo of
aevelopmg them iuriherrSuch cases are demonstrative of tht: fact that
the language of the statute1S-riot petr1f1ed..for a[1 fhhes- to come alief i IS
ineaning and impact c~a.n&eIn. th~ .c,!ts:lytic ha~ds OC~!;<O:l~e~~
The.jjIJb w is WJll,lnwjndfl.lUU.Jbe .fact that sometimes a doctrinal
rese;cher mi)' Jack ~. uliJitC\{!.an, ~m2[Qa.h....alld,'hijQiecoiiC'ern maY}~
te~t__th~.J()i.i~~, co~si~!encL~l!5! t.t~hnif&.s()!.11!4J}~s.s ,g1...~_~~~.r a
legal proposition by analysing it with reference to the precedential
symmetry and' on the anvil of strjcJ.l!t~JaLQ!~a,ningllD'..Ke_ep!ng:gramu1ar
and d!ct~Qnary in (me hand and the statutory lang,uage in~h.e.-2!h.c:.r).
Technical soundness of the law is not unimportant "bliilt shol.!lq .1].ot
o~rafe m v~~_uum-andought"to be balanced, wherever there is scope.
against social policy and motes' of-the'-society:,
,
"".-----.--
rc:
7')
41. International Legal Center, Law and Development, 10, (New York. 1(74).
42. Vilhelm Aubert (Ed.), Sociololy of Law 9 (1969).
43. K.C. Davis, "Behavioral Science and Administrative Law", 17.J. l.egu! F.cI 137
at 151-52 (1964-65).
44. Upendra Bax i, Sacio-Legal Research ill India : A Programschrijt 7 (ICSSR.
1975).
80
81
82
83
84
suggested by him may be valuable for its own sake. Taking at random
three projects suggested by Baxi, comments may be made on them. He
says:
We do not have organised information on turnover, in number
and type, of legislative enactments in different states; of timelags between initiation of bills, their passage through the House,
the intervening work of joint select committees, and the timelags between passage and the gubernatorial or the Presidential
assent to the bills. Much less do we have any information on the
quantity of amending and repealing legislation, or of the private
member's bills. 52
It is not understood where Baxi wishes to lead a legal researcher or
a law reformer from the kind of information that he would like to be
collected, that is, what are the goals of such a research ? It may also be
said that with regard to the turnover of legislation it would not be
difficult to find out the same from the annual reports of the Ministries
of Law of the states, the state gazettes, and various other private
publications. Similarly, with regard to private member's bills, the facts
are common knowledge, though we may not have complete and accurate
information (and it seems to be a futile task to obtain this kind of
"accurate" information). With regard to the question of time taken and
the intervening works of the joint select committees, it is not clear as to
what he wants. Does he want quick passage of Bills, excluding the joint
select committees from consideration of Bills or does he want that there
should be greater democratisation in the sense of greater public
participation of the affected interests through the joint select committees'!
Here, perhaps, fruitful results may come out if one were to examine Bills
from the latter aspect and concentrate on why in some cases Bills were
referred to the joint select committees but not in others, since consultation
of affected interests in enacting a statute is a social goal to be achieved.
Further, Baxi points out: "Nor do we have (although useful beginnings
have been made in this direction by political scientists) much data on the
social profiles of national and state legislators".53 Here again one is left
without any idea as to how this kind of information will be of qualitative
value to law researchers or law makers or how it will help in improving
the character and composition of the legislature. Does he want some
kind of educational or professional test to be laid down for the legislators?
With the emergence of the party system and the situation where party
discipline counts more than "intelligence", and the reality of the executive
52. Baxi, supra note 44 at 25.
53. Id. at 26.
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86
records or data already gathered for purposes other than one's own
research."56 The author is not trained in scientific methods of collecting
data and whatever little is said is based on common knowledge. A sociolegal researcher can get much valuable information by his own observations
and by studying existing records, (here the problem lies in getting access
to the records, since the government is extremely chary of permitting
anyone to see its records), but a note of warning may be sounded against
the method of collecting data by interview. Two broad types of data
collected through personal interviews are factual information and opinions
and views about a particular matter. About the limits of this method it
has been stated :
One of the limitations of the interview is the involvement of the
individual in the data he is reporting and the consequent likelihood
of bias. Even if we assume the individual to be in possession of
certain facts, he may withhold or distort them because to communicate them is threatening or in some manner destructive to
his ego. Thus, extremely deviant opinions and behavior, as well
as highly personal data, have long been suspect when obtained
by personal interviews....Another limitation on the scope of the
interview is the inability of the respondent to provide certain
types of information ....Memory bias is another factor which
renders the respondent unable to provide accurate information. 57
A few other limitations are the problems of communication process,
motivation of the respondent and his general ability, expertise of the
interviewer, the clarity of research goals, etc. Comparatively speaking,
an interviewer may be able to get information of much greater utility
when it relates to facts (but not relating to the respondent) than opinions
and views. We have to be extremely cautious with opinionated data
collecting. "Opinion" may mean the opinion of one ignorant individual
multiplied by a certain multiplier of the same quality. This is very aptly
demonstrated by an empirical study of the Indian Law Institute on
"Assessing the Degree and Depth of Acceptance of the System of Law
in India in terms of (i) Awareness, (ii) Value Compatibility, and (iii)
Pattern of Adaptation".58 Thus, one of the conclusions of the study is:
It is significant that those categories which have a lower level of
awareness also show a lower degree of acceptance of values
inherent in the present legal system. Their views regarding
56. Festinger and Katz (Ed.), Research Methods in the Behavioral Sciences 241
(1953).
57. Cannel and Kahn, "The Collection of Data by Interviewing", Id. at 330-31.
58. Unpublished (1967).
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88
89
the Institute identified the issues requiring solution through law and also
the real reasons for failure to settle these disputes through methods other
than adjudication. (4) Interstate Trade Barriers and Sales Tax Laws in
India ": This study is based on economic data collected through a
questionnaire from the agencies concerned regarding the impact of the
present sales tax laws on interstate commerce. With the help of economic
data it found economic justification for a few of the provisions in the
Central Sales Tax Act. The study also recommended the creation of an
Interstate Taxation Co-ordination Council. This suggestion was
implemented to some extent by the government when in 1968 the Central
Government created four regional councils to discharge practically the
same functions as were suggested in case of the Interstate Taxation Coordination Council. (5) Presidential Assent to State Bil/s - A Case
Study: This study (published as articles in the Journal ofthe Indian Law
Institutes is based on a study of about 300 state Bills sent by the states
to the centre for presidential assent during the years 1956 to 1965. (6)
Assessing the Degree of Acceptance of the System of Law in India in
terms of (i) Awareness. (if) Value Compatibility. and (iii) Pattern of
Adaptation. Reference has already been made to this work in the earlier
pages.