Legal Research in India

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. 725-749
Published by: Wiley on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1096030
Accessed: 08-09-2015 07:44 UTC
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/
info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content
in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship.
For more information about JSTOR, please contact support@jstor.org.
Wiley and Modern Law Review are collaborating with JSTOR to digitize, preserve and extend access to The Modern Law
Review.
http://www.jstor.org
This content downloaded from 93.91.80.6 on Tue, 08 Sep 2015 07:44:21 UTC
All use subject to JSTOR Terms and Conditions
MEANS, MOTIVES AND OPPORTUNITIES:

REFLECTINGON LEGALRESEARCHIN INDIA
NOTSOlong ago, the Ministryof ExternalAffairs issued a piquant,
if sombre, verdicton the importanceof legal studies in India. After
revealing an instrumental bias for scientific and technological
subjects, for which funds and foreign exchangefacilitieswere to be
made available, a gratuitousaddendumemphasisedthat no support
would be availablefor such subjectsas "tailoringand law.''l Such a
verdict indicatesthe kind of researchthat is regardedas "relevant"
for India'sfuture; but the assumptionwhich this makes about legal
researchin India is incompleteand unfair.
Legal researchin India can only be understoodin the context of
the constraintsunderwhichit is produced.With notableexceptions,
Indian academic legal scholars are generally ignored by the legal
profession, the governmentand 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 hierarchicaluniversities,
with their scarce resources, limited space and secretarialassistance
and insubstantial salaries, both their optimism and energy are
depleted as the rigorous demands of every day life compete for
attention. Researchinitiativeson a selected basis are funded by the
Indian Council for Social Sciences Research (I.C.S.S.R.) whose
funding policy remains even more undefinedthan the all-purpose,
eclectic, even if accommodating,programmewritten for it by one
of its consultants.2The University Grants Commission (U.G.C.)
has, in a Canute-likegesture, demandeddoctoraldissertationsas a
prerequisiteto tenured appointments.But the fiat of the U.G.C.,
unmatched by the allocation of supportive resources, has led to
badly structureddoctoralprogrammes,producingwritingof uneven
quality, without establishingany identifiableresearchtraditions.
Founded in the 1950s, the Indian Law Institute (I.L.I.) was part
of an Americaninitiativeto look more closely at the role of public
law in the apparatusof government of the emerging regulatory
State. For some time, the I.L.I. organiseda range of conferences,
l Quotedby S. S. Dhavan:"Therole of the bar and the judiciaryin the democratic
state"in Allahabad HiBh Court CentenaryVolumes (Allahabad,1968)II, 30>4.
2 U.
Baxi: Socio-Legal Research in India: A Programschrift(I.C.S.S.R. Occasional
MonographNo. 12, 1975).The I.C.S.S.R.also conductedtwo surveysof the literature:
V. Das: "Sociologyof Law"in I.C.S.S.R.:A Survey of Researchin Sociology and Social
Anthropology (Bombay,1974)II, 367a00; U. Baxi: "Sociologyof Law"in I.C.S.S.R.:
Survey of Research in Sociology and Social Anthropology 1969-1979(Delhi, 1986)69195,reprintedas U. Baxi, Towardsa Sociology of Law (Delhi, 1986).
725
726
THP, MODERN LAW REVIEW
[vol.
so
pursued an interest in sociological jurisprudenceand did some inhouse research on constitutionallaw, comparativelaw, secularism
and press law, in addition to developing library facilities for
researchscholars.3In time, the money ran out as the I.L.I. became
dependent on governmentfunds and the control of SupremeCourt
judges.4 More recently, some money from the Ford Foundation
has created the possibilityof new initiatives.
The world of law publishing has given limited stimulus to
researchefforts. Servicingthe 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 mechanicallycompend the case law in the digests.
Law publishers also publish major public lectures and occasional
autobiographicalreminiscencesand anthologiesof essays by judges
and lawyers.SThe highly competitive student market has been
capturedby down-marketpublisherswho commissiontertiarycribs
drawn from second-hand sources for an expanding market which
demands examinationoriented rote learningskills in both English
and a variety of vernacularlanguages. 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
movingto other social science and generalpublisherswhose interest
in law is casual. One importantoutlet has been provided by the
proliferationof law journalsfrom variousuniversitiesand 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., influencingappointmcnts,
planning initiatives and getting caught in thc labyrinthof 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(Princeton1986) shows that cost effective law publishingof practitionerand 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-juvenationof Indian law publishingis long overdue.
6 Apart from somc quality student texts (e.g. M. P. Jain, Outlines of Legal History
(Delhi 1972); Jain and Jain, Administr(ltiveLaw (Bombay 1986),) some that double up as
practitioners' texts (e.g. Mulla's Principles of MoUlammedanLaw (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 indifferentlywritten 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.
OCT.
1987]
MEANS, MOTIVESAND OPPORlUNITIES
727
institutes.7The articles in the journals are not "refereed"and are

of uneven quality. Nevertheless, they keep alive a tradition of
writing,scholarship,sharingand exchange.
Alongside indigenous work, foreign scholarshipfrom 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 Universityran 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
transformationby legal institutionsat the behest of the acquisitive
forces of India's urbanisedsociety.8 But lack of resources among
students from the subcontinentand 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
arrangementwhich until 1986 enabled the creation of five wellstocked research centres on India in America) and foreign
foundations(especially Ford), some Americanshave helped to set
the pace for Indian scholarshipin sociology, political science, law
and history. Others have displayed only a passing interest, using
their resources for what can be called "vacationresearch."Initial
7 A lot of law reports carry a journal section (e.g. All India Reporter,Supreme Court
Cases, Madras Law Journal, CalcuttaWeekly Notes, Bombay Law Reporterand 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 CommonwealtSlStudies (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 writingon 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. Introductionto Modern Hindu Law (Delhi, 1963); ibid., Religion, Lasv and
tSteState in India (London, 1968); ibid. Critiqueof Modern Hindu Law (Bombay, 1970);
ibid., Death of a Marriage Law: An Epitaphfor tSleRisSais(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}IUtilitariansand 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
administrationon dosigning an adjudicatorysystem 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,
Iegislaturesand the executive (e.g. M. P. Jain, supra n.6; A. B. Keith, A Constitutional
EIiztoryof India (Allahabad, 1961 reprint)).
728
THE MODERN l AW
REVlEW
American involvement was in

the top-down instrumental the area of public law, supporting
model of development,
students of the post-New Deal
familiar to [vol.
era,
which
argued
that
could identify, and help close,
research
and social effectiveness. A the "gap"between legislativeintent
more mature wave of
research was
inter-disciplinary,focused upon the
modernityof India's tradition.
This was followed by detailed
researchinto judges, lawyers,
dispute
settlement and, more recently,
Americanresearchexports shouldthe activist uses of law."' That
convey Americanintuitionswas
inevitable.But Americanscholarship
tends to locate the relationship
between civil society and the
State
frameworkwhich combines exacting within a liberal pluralist
social analysis with either a
harshcynicism or a naive
optimism.
Large numbers of Indian
scholarswere also influenced
by
studyingin American universities. American scholarsllip through
This may well have
tothwartingtheirinherent
contributed
vitality.
"
In-housegovernmentalresearch
onlaw is housed in a
badly resourced Law
Commissionusually
mannedby retiredjudges to iron
out
plagued
courts and, sometimes, the technicalproblemsthat have
administration.Some
hasalso been done by the
PlanningCommissionwhich hasresearch
lookat the impact of agrarian
tried to
reformlegislation. "Impact
remaills
as popularas it is
analysis"
oversimplified.The government'spresent
preoccupations
are with the litigation
explosion which threatensto
drown
the courts and paralyse
Yet despite this somewhat governmentalprocesses.
depressing range of constraintsand
perspectives,
Indian legal scholarsdisplay a
lively interest in "law"
which
goes well beyond the
instrumental
of
problem-solvingapproach
the PlanningCommission,the
politicians
or the over-simplifiedshort-sightedobsessionsof regime
liberalismof 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
commitment
to evaluating "law" as an a social and research
arena of struggle whose
purpose
and performance(lre to be
judged
from the perspectiveof
wider
notions of justice. Whateverthe
competingintuitionson the
uses
and abuses of the legal
system, Indian law flowers
its
explicitconcern about its
because of
constitutionallyidentified egalitarian
1()
Prominentamongst American
generally
on Indian law (see M. writers on India law is M. Galanter who has written
Galanter, Law and Society in
forthcoming,
with a critical introduction
by R. Dhavan), positiveIndill (Delhi, 1988),
C:ompeting
Equalities: Law and the Backward
discrimination (see
initial
Classes in
public law interest in India
(Berkeley, 1984). The
can be seen in H. C. India
Constitution
L.
Merrillat, Land asid the
(Bombay, 1970). There
police,
(infra n.53, 60, 62, 63, 65) has also been some work on lawyers, judges and
Stronger
than Czste (Buffalo, Ph.D. dispute settiement (see esp. R. Haydon No one
is
1974), Dharmasastraand
l For
l a review of the
influence on American legal government general).
"Borrowed
Ideas: On the impact of
scholarship see R . Dhavan,
A.J.C.L.
505. For the influence of American scholarship on Indian Law" (1985) 33
American constitutional law see
"Perspectives
on the American
P. K. Tripathi,
constitutional influence on the
L.
Beer
(ed.), Constitutionalismin
Asia (Berkeley, 1979) 5S9X. Constitution of India" in
so
OCT.
1987]
MEANS, MOTlVESAND OPPORTUNITIES
729
objectivesand its allegedlyunswervingresolveto achievedistributive

Justice.
II
Indian culture is permeatedby at least two approachesto 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 institutionsreflects
internal institutional and other power struggles. "Law" itself
authoritativelyasserts the power of the ruler over the ruled, an
assertion buttressed by comfortable assurances about the social
acceptabilityof law, and the need for expediency to fulfil certain
economic and politicalobjectives.
An alternativeideological approachtreats law as an expression
of righteousness (dharma)flowing from and imbricated in civil
society.'3The rishis(wise men) who articulatednotions of dharma
obtained consent for a repressivehierarchicalsocial structure.This
more insidious control of the mind was preferred to the more
coercive methods of centralisedstate 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 fundamentalideology.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 BalwarttRaj v. Uniotl of Itidia, A.I.R. 1968 All 14 was independently
developed by the Supreme Court (in Kesava1landaBharati 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 "directiveprinciples"jurisprudence
(see P. Diwan and V. Kumar, Directive PrinciplesJurisprlldetlce(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, Dharttlasastraand 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 boundarybetween brillianceand 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 unqualifiedindulgence: see Kane (supra, n.13)
111,856; Derrett, Afistoryof lndian Law, supra, n.13, 1S26; ibid.; "Law and Custom in
Ancient India: Sources and authority" (1962) 9 Revenue internationaledes droits de
l'Antiquitd 11-32. Derrett rightly observes that "The sastra (not altogeeher blindly)
prepared the way for its own relegation to the backgroundof business and practical life,
without forfeiting a claim the more securely to bind the private and personal aspects of
the individualwhich . . . were always its primarytarget." (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, "Factuttlvalet: The adventuresof a maxim"(1958) 7 I.C.L.Q. 280).
730
THE MODERN LAW REVIEW
[Vol. 50
were maele for geographical differences and changes over time.

Innumerable institutions in civil society (the family, religious
institutions,rulers, guilds) underpinnedthe ideologicalfabricwhich
re-constituted society and conceptualised its determination of
competing claims.
The contrastsbetween these two approachesare important.The
exclusive surrender of law to designated political processes has
proved to be problematic unless forces in civil society award
legitimacyto the designated arrangementitself as well as to what
flows from it. Powerful communication networks can often
manipulatean operationallegitimacy.This ultimatelyprecipitatesa
net loss of meaningful discourse (about what is right) which is
surrenderedto the vagaries of politics. Moral approachesto law
are treated as ancillary,and of persuasivevalue, ratherthan being
central to the enterpriseof law and crucialto an understandingof
its epistemology.
Indian scholarship explicates the tension between these two
approaches.At the very outset the dharmasastra
was approprlated
by the institutionalsystem of the Raj. At one level, the British
were the patronsof the sastra,'6
translatingancienttexts, interpreting
them like codes and classifyingthem into a taxonomyof schools of
thought which was, perhaps, never intended in the exegetical
traditionsto which the originaltexts belonged.'7At another level,
the ideological preoccupationswhich inspired the ancients, and
influencedcivil and political society for centuries, were completely
lost as British and Indian judges became arbitersof the personal
law, fragmentedthe texts into rules and adapted them to suit the
needs of the economy of the Raj.18Scholarlyliteratureat 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 tXteMilleniunt: The C}teckeredLife of
Nathaniel Brassey Halhed 1751-1830 (Delhi, 1985). There is a need to critically review
and evaluate this crucial step in the transformationof personal laws in India.
17 See L. Roeher, "Schools of Hindu Law" in J. Ensink and P. Gaeffice (ed.), India
Major. CongratulatoryVolume Presentedto J. Gonda (Leiden, 1972).
t8 There is a considerable literature on the development of personal laws during
British rule. See Derrett, "The administrationof Hindu Law by the British" (1961) 4
Comparative Studies in Society and ffistory (C.S.S.H.) 10; ibid., "A history of the
juridical frameworkof the joint family" (1962) 6 Contributionsto Indiatl Sociology 17; G.
Sontheimer, The Joint Hindu Family: IJSEvolltion as a Legal Institutiott(Delhi, 1977);
ibid., "The juristic personality of Hindu deities" (1965) 67 Z.V.R. 45; A. A. A. Fyzee,
"MuhammadanLaw 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]
MEANS, MOTIVESAND OPPORTUNITIES
731
tradition in the Indian literature19and commented on the

development of Anglo-Hindu and Anglo-Muslim law by British
Indian courts.20Much contemporary research on personal laws
concentrateson 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 dharmasastricstudies continues.2l
Kane's monumental History of the Dharmasastra
provides an
indispensableframework.22Duncan Derrett has examinedboth the
ideological tradition as well as how it was dealt with by courts.
Derrett thought that the values underlying the tradition were
somehow preservedin the intuitionsof 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.23Derrett seems to have underestimatedthe
l9 On the influence of Roman and continental laws see Derrett, "rthe role ot Koman
and-continentallaws in India" (1965) 24 Z. f. auslandisches
undinternationales
Privatrecht
657. Indian writers on Hindu law (even the admirable P. Sen, Te GeneralPrinciplesof
HinduJurisprudence
(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, Evolutionof AncientffinduLaw(London, 1953); R. B. Pal, Thellistoryof
HinduLaw in the VedicAge (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-Muhammadanlaw remain J. D.
Mayne's Treatiseon Hindu Law and Us(lge(Madras, 1950, 11th ed.); Abdur Rahim,
Principlesof 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
Principlesof tSleHinduLaw of lnheritance(Madras,1922); P. N. Saraswat, Thellindu
Law of Endowments
(Calcutta, 1897); G. D. Banerji, Theffindu Law of Marriageand
Stridhana(Calcutta, 1923); B. K. Mukerjea, ffindu Law of Religiousand 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, HinduLawand 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,Inheritanceand 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
administrationof justice by Muslim rulers in the medieval period (see M. B. Ahmad, The
Adtninistration
of Justicein Mughallndia(Aligarh, 1941); M. Akhbar, TheAdministration
of Justiceby the Mughals(Lahore, 1948); Hussain, Administration
of JusticeDuringthe
MuslimRulein lndia (Calcutta, 1934)) studies in Islamic jurisprudenceseemed 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 transformationof Hindu marriageby modern litigation see
Derrett, Deathof 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 Politicsin lndia (Delhi, 1979) 32; ibid. "The predicamentof
law in Indian traditional culture", in Franke-Kohler (ed.), Entsehungund Wadel
Rechtlicher
Traditionen
(1980).
732
[Vol. 50
extent to which the modern institutionalsystem was designed to

absorb and destroy indigenousvalues, 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
interestsin the society. More generalresearchinto 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.24But, while such historical
studies of dharmasastraand of the transformationof traditionallaw
in modern times continue to be produced, there are no fresh restatements of ideology. Dharmasastrahas become an historical
relic rather than a contemporaryinspiration.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
ancientsin the context of a vision cf a non-hierarchicalsociety.
The relationshipbetween modern and traditionallaw has been a
central concern of post-independencescholarship.Galanter, while
acceptingthe general argumentthat India'straditionwas lively and
adaptiveand its modernityflexibleand accommodating,put forward
the challengingassertionthat traditionallaw had been displacedby
modern law with its authoritativerules, courts, bureaucraciesand
lawyers.25But what exactly does this mean? We need not be
troubled with the limited assertion that governmentalattempts to
graft certain allegedly traditionalforms of dispute settlement on to
the apparatusof modern law have proved to be a colossal failure.26
The stronger suggested "displacement"in fact is countered by
Galanter'sown 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
influenceof the normativemessages that the modern system sends
out to other pluralorderings.At a general level the modernsystem
24 R. Lingat, T/le Classicnl Lnvv of ltldia (Berkeley, 1973, with additions and an
introductionby 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 "modernlaw" 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(ltiveStudies itl Society and Alistory53. For a detailed account of these allegedly
"neo-traditional"dispute hodies see U. Baxi and M. Galanter, "PanchavatiJustice" 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.
OCT. 1987|
733
is seen by the bulk of India's poor as a snare in which they are

entrapped.Equally, its rhetoricis not convincing.More specifically,
while it is the case that the modern system has normativelyreconstitutedmany aspectsof their life (propertytransactions,legality
of marriage,etc.), its rules may have infiltratedtheir lives but have
not found emotional or ideological acceptance. The process of
infiltrationhas taken place as powerfulclasses have used State and
non-Statepower to structurethe social system into greaterorganic
solidarity.
Secondly, the institutionsof modernlaw (courts, legal processes,
bureaucracies)are overloaded without being popular. At lower
levels, title cases inulldate the system, supported by an arbitrary
use of the criminallaw by the advantagedin conjunctionwith the
police. At higher levels, the pattern is replicatedfor other sectors,
even though a lively anti-government(judicialreview) litigationhas
checked governmentallawlessnesson a randombasis and made the
modernsystem develop unmanageablepolaritiesand contradictions.
No sulestantialrationality guides the use of the modern system,
which is experiencedby most with a transparentsense of coercion,
fatigue, cynicism and despair, rather than with an internal feeling
of acceptance.28To the extent to which the modern system forces
people to use its institutionsand 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
internalfooting.
It seems improperto talk of the displacementof the traditional
system or the co-existence of a plurality of orderings without
askingmore precisequestionsabout the ideologicaland instrumental
uses of the system and the more subtle ways in which parts of it
were appropriatedto certain class and group interests. Whatever
the intentionof the reformersin England,studiesof the emergence
of the system in nineteenth century India show a relationshipwith
the attempt of the Raj to manage the land economy.29Yet, for all
its modernity, the system did not foster a pattern of capitalist
growth in Indian agriculture but was used to preserve a nondynamic redistributionwithin an overall status quo. 30 To some
extent, this state of affairs continues today, with the system being
opportunisticallyused by acquisitive forces in the agrarian and
commercialsectors and in undisciplinedattacks on the regulatory
state.India has all the semblanceof a rationalsystem with none of
28 On the undisciplineduse of the system see R. Dhavan,
LitigatiottFxplosion itt India
(Bombay,1986).
29 See D. Washbrook (supra, n.9).
30 See U. Patnaik, "Capitalistdevelopment in Agriculture:A
Note", (1971) Economic
andPolitical Weekly (E.P.W.), Suppioment A 123; E Whitcombe, AgrariaslConditions
islNorthern lndia itt the Late NineteesithCentury (Berkeley, 1972), cf. E. Stokes, TBte
Peasantand the Raj (New York, 1978)-see further T. Metcalf, "Rural Society and
Britishrule in Nineteonth Century India", (1979) 39 Jourttalof Asiatt Studies 111.
734
THEMODERN EAW REVIEW
[Vol. 50
its discipline, virtually none of the institutional morality which

shouldgovern its use and none of the ideologicalacceptancewhich
is necessaryto make the system work.
This poses innumerableproblems.On the one hand, lawyersand
judges strive hard to give greater legitimacy to the system by
stressingits commitmentto social justice, and encouragingfurther
policyresearchto create new and more accessibledisputesettlement
methods. On the other hand there is a considerable amount of
pressurefrombelow to show how the diverseorderingsare producing
their own normative and institutionalstructuresindependentlyof
the modern system. Hitherto, anthropologicalresearchinto dispute
settlement has emphasisedthe 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 transformationof aspectsof the modernsystem
and new notions of law and of justice. It has also increased the
quest for new, acceptable notions of law and institutionsin 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 transparentoppression and some semblance of
operational legitimacy.
III
A great deal of research has concentratedon the Constitution.32
Promulgated in 1950, after four years of deliberations, it
incorporated a parliamentarysystem within a federal structure,
with guaranteed fundamentalrights, directive principles of State
policy declaring the teleological objectives of the Indian people,
and the most powerfuljudiciarythat India has ever known. While
its general liberal features have caused some to present it as the
"cornerstoneof the nation"which providesa frameworkfor public
life in India,33pathologicalpractice often evades this framework.
The Constitutionunleashed, chaotically,a host of opportunitiesfor
an unimaginedrange of aspiringleaders and power brokers. Each
the conditions under
31 Indian legal seholarship tends to be over-optimistic about
whieh "colleetive justice" can be made part of disadvantagedand poor people's struggle
(e.g. Baxi, "EromTakrar to Karar:The Lok Adalat (Native Court) at Rangpur", (1976)
10 J.C.P.S 53; cf. "Popular Justice, participatorydevelopment 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.
infra, nn.39 and 40.
32 For a preliminarysurvey of the work on the Constitution see
(Oxford, 1966) and the
33 G. Austin, The Indian Constitution:Cornerstoneof a Nation
extended review article by U. Baxi, "The little done, the vast undone: Some reflections
on reading Granville Austin's TSlelndian Constitution",(1967) 9 J.I.L.I. 323.
OCT.
1987]
735
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 centralgovernmentitself.34Between 1967-77,
Congress
suspendeddemocracyin the States wheneverit found an
opposition
government disagreeable.35A national emergency (1975-77)
was
declaredon a pretext (internalinstability)which could
hardlyeven
masqueradeas a reason.36Every time the judiciary
overturneda
major policy of the executive, parliamentarymajorities
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.38The increase in
anti-government
litigation, throughapplicationsfor judicialreview, is
disorderlyand
reflects the diverse ambitionsgenerated by competitive
capitalism
without succeeding in discipliningthe processes of
governmentor
checkingrampantcorruption.
In these circumstances,what is the task of legal
research?To
follow the practitioner'smarket?To explore doctrineas
an end in
itself?Or to try to make sense of the socio-political
state of affairs
andunderstandthe diverse meaningsof law with
whichit
Law publishers have followed a very narrow market operates?
of demand
emanatingfrom the peculiar flow of litigation in India.
Much
litigationbefore the higher judiciaryconsists of quoting
precedent
ordicta before immenselybusy courts to obtain
interim injunctive
reliefto freeze a favourablestatus quo pending final
hearing,often
yearslater even in the Supreme Court. Publishers
concentrateon
producingannotated 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
India(Delhi, 1974); P. Diwan, "Aaya Ram Gaya Power: Defections and State Politics in
21J.I.L.I. 291-312. On the crisis in the central Ram: The Politics of defection", (1979)
Crisis,Conscience and the Nation (Delhi, 1982).government in 1979 see M. V. Pylee,
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'sRule in India
(Delhi,1984) and the literaturecited 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
theEmergency. Dhavan, infra, n.44, and M. C.account of the election case that led to
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
brokers
and others, is a watershed in India's contemporaryclass, their political power
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 KesavanandaBharati v. State
of Kerala, A.I.R. 1973 S.C. 1461.
736
[Vol. 50
in England in the latter part of the last century, vary in quality.

Very few retaina doctrinalvigour39;most have become compilations
of case law in essay form. But interest in doctrine continues. In
particular,academicwork has concentratedon how India's Bill of
Rights has been interpretedby judges.40At least one commentator
on the Constitutionseemed to suggest that doctrine should be the
exclusive concern of India's jurists,4lwith 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 nourishmentfrom an Indian understandingof precisely
those matters which have been ruthlessly excised from
consideration?42
Publishersare only partly to blame for the lack of systematic

research.Combiningcommon learning,native intuitionand deeply
felt biases, India'sjudges have prodllcedan interestingarrayof case
law whichhas not only dealt with difficultfact situations,but conceals
an understandingof the kind of publicframeworkon whichIndiacan
realistically be run. Unfortunately, Indian scholarship has not
produceda thoughtfuland continuingre-assessmentof constitutional
developments.Even after the FundamentalRightscase, which drew
attentionto the "basicstructure"of the Constitution,it has received
very little evaluation.43During 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 ConstitutionalIslterprexation
(Bombay, 1972); ibid., Some Insights into
FundamentalRights (Bombay, 1972)); see also Justice P. B. Mukharji, CriticalProblems
of the lndian Constitution(Bombay, 1967); D. D. Basu, Limited GovernmesltaslxlJudicial
Review (Calcutta, 1972). For an excellent and critical introduction see M. C. Setalvad,
The Indian Cotlstitutionl950 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 reconceptualisation of the nature of law; (iii) positive discrimination(for a review of the rescarch and
literature see M. Galanter, ComperiolgEqualities . . ., 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, ConstitutionalLaw of India (Bombay, 1967; see furthereditions in 1975 and
1984); and note a review of the angularitiesin approach in R. Dhavan (1986) P.L. 168171.
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 Amendmentof 1976was supposedto inauguratea majorreassessment of the Constitution.44But the sole concern of the
"amendment"was to give power to the Congress, just as the sole
concernof the FortyFourthAmendment(the nextmajorconstitutional
discussion)was to take power away from the Congress.45After the
emergency, various academicscholars gathered together to discuss
the constitutionbut failed to grapplewith India'sproblematicquest
for a publicframework,concentratinginsteadon formallyidentifiable
problems.46
The need is not just to interpretthe formal prescriptionsof the

writtenor unwritten47
Constitutionbut to evaluatethe basison which
power should be allocatedto variouspublic institutionsand private
interests.India'stheoristsneed 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,socialjusticeand constitutionallimitationswhichshould
underpindiscourseabout, and the operationof, publicaffairs.
This is all the more importantbecause of what has been called
the continued "privatisation"of the Indian State. This happens
when agencies of the State are either directly corrupted or
systematicallyappropriatedto private use. American researchers
are very fond of presenting a somewhat depressingpicture of an
Indian State taken over by neo-traditionalgroups which have used
State processes and patronage in ways that do not embrace public
purposes.48That forces in civil society, inspired by different
motivations and normative understandingsof societal relations,
should attempt to manipulatepublic affairs is inevitable, unexceptional and hardly unique to India. But is the situation in India
irredeemablyworse?
What has handicappedIndiandevelopmenthas been dishonesty
and a want of true belief in the rule of law amongstthe people
at large. There is no sense of public spirit, except at a
xenophobic level. Honesty in its ordinarysense 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
See R. Dhavan, The Amendmetit:Conspiracyor Revolution (Allahabad, 1978).
See R. Dhavan, Amending the Amendment (Allahabad, 1979).
46 The papers were collected in R. Dhavan and A. Jacob (eds.), T}le Indian
Constitution:Trendsand Issles (Bombay, 1978).
47 e.g. U. Baxi, Courage, Craft and Contention: The Indian Supreme Court in the
Eihties (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.), SubalternStudies (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.
44
4S
738
IHE MODERN LAW REVIEW
[vol.
so
The situationis 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 understandIndian
developmentsone does not have to resort to British, Americanor
Australianexamples but rathertry to graspcertain basic aspects of
Indian lifo. It is this task of reflexiveresearchwhich has, in varying
degrees, eluded Indianscholarship.
It is not surprisingthat the bulk of Indian people regardwestern
constitutionalism(and India'ssystemof modernlaw) as opportunistic
without being inspired by it. In India's classical dharmasastra
tradition,the relationshipbetween the ruler and the ruled followed
from a clear understandingthat the former was supposed to
achieve social justice and enhance prosperity for all in civil
society.50Without a vision of social justice, no public system could
have legitimacy.ContemporaryIndia rightlyrejects the hierarchical
basis which the invocationof the ancients preservedfor centuries.
India's judges and jurists are charged with the task of developing
new notions of "collectiveco-prosperity''5lin a society marredby
unjustifiable differentials. lndia's constitutionalism, indeed its
modern law, will continue to display unease and discordanceuntil
its public law is demonstrablyconcerned with, and capable of
developingcoherent notions of, social justice acceptableto a much
largernumberof people and groups.
Since judgeshave appearedas the leading"conceptiveideologists"
of law and justice, their writings, judgments and conduct have
become a primary focus of research.52Inevitably the Supreme
Court, with its wide rangingpowers and successfulencounterswith
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
Governmerltin Ancient India (Dclhi, 1958); Drekheimor, Kingship atld C'omnllxnityin
Early India (Stanford, 1962). It is, however, important to note that thcse dutics included
suvfportinghicrarchicalarrangemcntsin 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: A11Autobiography (Bombay, 1973); P. B. GaJendragadkar,To the
Best of my Memory (Bombay, 1933); H. R. Khanna, IaJeitherRoses IaJorT}lorns
(Lucknow, 1985); M. Hidayatullah, My Oovn Boswell (Delhi, 1980); B. P. Sinha,
Rerrliniscencesand Reflection of a Chief Justice (Delhi, 1985); an(Jthe autobiographyof
Attorney General Setalvad, My Life Lasvand 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 svfCivli
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
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 backgroundsof
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
backgroundsof the judges.54In a detailed work examininghow the
Court has reacted to about thirty problems, the present writer
rejected a consequentialist analysis of the court's work, and
concentratedon its discourse and the choice of discourseavailable
to it.55 Concurrently,a political scientist has brilliantlyand with
insight explicated the complexity of looking at the judiciaryas an
institution of the State both reflecting and constitutingthe social
form in which relations of productionsare reconstructed.56These
aspects are ignored by an ebullient and provocativeaccount of the
post-emergencySupreme Court as an emerging political arena.57
Lackingboth a theory of State and a theory of power and drawing
from an American influenced approachseeing courts as an arena
of social and political conflict, this view welcomes the new activism
of the Court with an optimismthat ignoresthe structuralconstraints
that govern the Court's use and capacityfor self direction. At least
this optimism represents an invigorating stirring of the judicial
conscience, even if it masks an understandingof what is really
possible.
53 George Gadbois lr., "Selection and background characteristicsof Indian Supreme
Court judges", in S. Schubert and D. Danciski (eds.), ComparativeJudicial 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. Sudarshanand 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. Khurshidsupra 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 ContetnporaryIndia (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 fSleProcess 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 Coxlrtin the Itldian Constitution(Delhi, 1959); B. Singh, The Supreme Court as
an Instrumentof Social Justice (Dclhi, 1976).
740
1'HE MODERN LAW REVIEW
[Vol. 50
Very {ittle work has been done on the lower judiciary. Much
thinkingon the judiciaryas a whole has been overshadowedby the
accumulationof intolerablearrearsof caseswhich,even in the case of
the SupremeCourt,would normallytake decadesto determine.58
The
phenomenon is not new and was recognised in 1925 and by
subsequent governmentalreports.59Better managementwould, of
course, eliminate some of the problems. But the difficultiesrun
deeper. The colonial courts successfullyused the judiciaryas an
institution of the State to regulate landholding.Since 1950, land
litigation has continued, but we do not know enough about
contemporarycivil and politicaluses of courts except from the case
law and very badly collectedgross data about their docket. It is not
enoughsimplyto assertthatcourtsfermentdisplltesinsteadof solving
them. Rather, what should be stressedis tllat too much researchis
court-centred;too little sheds light on what is really going on, at
whose behest and with what generaland specificconsequences.The
lack of a researchprogrammecompoundsthis situation.
l'here are similar difficulties with work on lawyers. Although
research rightly rejects a rigid functional theory of professions,60
portrayshow clients interactwith touts,6'lawyersand their clerks,62
and examines the patternsof class, caste and gender reproduction
within the profession,63yet the picture is severely incomplete.
Research has concentrated on how individual interactions are
managedratherthall setting these in the total social context within
which they occur.64We need to know more about how the legal
professionorganises its work in serving differentclasses of people.
Lawyersin the United Kingdom have been able to evolve a safe,
58 SeC
R. Dhavall, TheSupremeCourtullder.Strnill:T/leC'/lnllengeofArrenrs(Bombay,
1978);ibid., I,itigationExplosion, . . . supra n.23.
59 After the RankingCommittet Reportotl CivilJstice (Governmentof India, 1925), the
maJorimpetus for study has come from the Law Commission(see its 14th, 44th, 45th, SSth
78th and 79th Reports). The massivebacklogof cases before FIighCourtswas also examined
by the Shah Committee Reporton the Higfl CotlrtArrenrsComnlittee(Delhi, 1972).
60 R. L. Kidder, "Formallitigationand professionalinsecurity;Legal Enterpreneurshipin
India", (1974) 9 Lnw nnd Society Review, 11. For a provocative reassessmcntof Indian
lawyers sce U. Baxi, "Thc pathology of the Indian legal profcssion",(1986) 13 lndinll Bnr
Review455 484.
61 J
S. Gandlli, Lnwyers as 70uts (Delhi, 1984); see more generally his Sociology of
LeEnlProfession,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 SocietyReview251; R. L. Kidder, "Courtand
conflictill an Indiancity: 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)urllnlof Asinn ,Studies309; ibid.,
"Kinship in profcssional relations: A study of North Indian district lawyers", (1972) 14
CompnrntiveStudiesilt Society nnd Histc)ry100; ibid., "Clerksand clients: Paraprofessional
roles and culturalidentitiesin Indianlitigation",(1974) 9 Lnw and SocietyReview39.
64 S. P. Sathe, S. Kunchurand S. Kashikar,Legnl Profession:lts Contributionto 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 PreliminaryStudy of the Tnmil Nndu Bnr (Delhi, Bar
Councilof India, 1984).
OCT.
1987]
741
conservativestyle, which is now provingto be fragile as worldwide

corporate interests and increasing disputes within the domestic
economy make sharpening demands on traditiorlalmethods of
negotiationand litigation.The Indianlegal professionhas developed
to serve different sectors of society in widely different ways.65
Much of the research on lawyers has tended to look at "oneshotter" transactions at the lower end of the market.66Most
lawyers are content wlth monetarygain amidst unsavotlryattempts
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 professionalsin India (includingjournalists
and administrators),lawyersare still strugglingfor a more objective
self-definitionwhich could transcendtheir client relationshipsand
give them a more concrete ideological function. Research on
lawyers needs to examine the emerging pattern of organisational
arrangementsand 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
prestigiousrole as votaries of "modernlaw."
General research on courts, judges and lawyers has been
supplementedby work on the criminallaw,67police,68sentencing69
-
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(lsrLawyer: 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 Transactionsof tSleNew 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 DeveZopmentalApproach (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 bibliographicessay 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 constitutionalityof the death penalty (see
AnjetldraPrasad 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
CriminalLaw (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
SlopremeCourt 1950-75 (Jaipur, 1977, unpublished Ph.D. thcsis).
742
rHE MODERN LAW REVIEW
[Vol. 50
and penology.70Some simply reveals direct and "illegal"uses of

the law, inconsistent decision-makingand inadequate methods of
correctionand incarceration.Work of insightis being done into the
use of the criminal law to maintainpatterns of dominance.7lThe
way in which the functionarieswho run the system the police,
prison officials and others are corrupted by forces in the
governmentand civil society is all too transparent,as is the manner
in which they frequently discharge their responsibilitieswith 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 appropriationof the criminallaw to
protectprivilegedpropertyinterests,and the law's frequentinability
to protect life and the person are part of an experientialreality.
But legal scholarship, with some notable exceptions, has neither
exposed this raw state of affairsnor gatheredtogether 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 researchon law
is concerned with black letter law. There is very little empirical
data on how the system works. If the governmenthouses very little
data on the working of the law, it parts with even less. Legal
journalistsin nationalnewspapersand the growthof legal magazines
have led to an investigativejournalismwhich has repairedsome of
this gap 72There is an emphasison researchintendedto make legal
institutionsmore managerialand efficient;such researchis quickly,
and often clumsily, done, and has been concerned with easing
bottlenecks in the system rather than trying to comprehend the
empiricalreality that has moulded legal institutions.
At the same time, India is beginningto 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); Costtributiottsto SysttheticJurisprudetlce(Bombay, 1962); Essetttialsof 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.
OCT.
1987]
MEANS, MOTIVESAND OPPORTUNITIPS
743
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 concentratedits legal efforts upon insulating
"law" within a structure of neatly defined rules, cases and
(ioctrines.74 Its various Law Commissions used India as an
experimentto codify equity and common law in an effort to create
legal institutions, processes and rules which would encapsulatethe
social and political economy and attempt to limit public discussion
on a range of issues to a narrowand esoteric legal discourse.75To
some extent, independent India has sustained this approach but
less systematically,and with a diminishedinsight into the natureof
its objectives. Since 1956, succeeding Law Commissions have
examinedthe workingof 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 governmentdepartment
manned by retired judges and concerned with technical legal
reform, has come to occupy an importantspace which preventsthe
development of alternativeconceptions and initiativesfor change,
and takes the edge off many of the proposalsthat are referredto
it. But this was not consciously contrived. Successivegovernments
themselves accepted and were taken in by the Imperiallegacy that
law was non-problematic,above politics and separatedfrom morals.
When the ConstituentAssembly was draftingIndia's Constitution,
Nehru was nonchalantabout the qualitiesof a good judge.77Later,
he attacked the judges bitterly, complaining that India's lawyers
had "purloinedthe Constitution."78Mrs. 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.), Istchiestedi diritto
comparato (Padua, Cedam, 1976) 413-435. For the influence of the black letter law
traditionsec 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 EsgglisSlLav isl Isldia (Jerusalem, 1966). The juristic art form in which
Indianlaw was developed was treatises and annotated texts of the kind written by D. F.
Mulla.These (Irestill 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 ISX7, 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 BritisSlI ldia from 1834 to 1861
(London, 1963) 167-225 (on the Law Commission) and 27(F321 (on the Iegislation); R.
C. Maujamdarand K. Datta, "Legislation and Justicc" in R. C. Maujamdaret al. (ed.),
T/le History asld Culture of tSle Indiatl People: Voltstle 9 BritisSlParattlousltcyasld tSte
ltldiatlReslaissatzoe(Bombay, 1963) 33W353.
76 For a brief descriptive view of the working of Independent
India's Law Commission
see U. Baxi, slopran.623244-294.
77 J. L. Nehru, Speech reported in the Cfoslstitzxeslt
AssesslblyDebate 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
rH[ MODERN LAW REVIEW
[Vol. sO
Emergencyof 1'975-77,continuedto supportNehru'sview that the

"law"was not intrinsiclllycontroversial,but became a threat in the
hands of atypical maverickjudges and lawyers.7"This has led to
the demand for the appointment of "safe" and "committed"
judges.8"The refusal to view law as somethingmore than a neutral
weapoll in the handsof troulrlemakersgave the governmentleew(ly
to do what it liked while claiminglegitimacyin that it followed the
"rule of law." But the "rule of law" followed by the government
was an exhortationto obey its instructionsratherthan (l promiseof
fairness. The Law Commissionwas supposed to tidy up the laW
and help create a fair and just society. The failure of the I aw
Commissionto do this has highlightedhow its researcheffotts 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
practitionersand commentatorswho regard the "rule of law" as
representinga discourseabout values.
The government'sresearchinto llw and developmentbetraysan
inner rhetoric which objectifies the State as a public institution
benevolentlystanding above civil society. The rhetoricis even less
convincingfor India where attempts to corruptthe State have not
been wholly set-off by efforts to sustain the distinction between
"public"and "private"power. The State standspartlydeconstructed
in terms of the pathology of its use as powerlul forces in ciil
society have "privatised"the State, or partsof it, and appropriated
it to its own use. The State and law are seen as malleable rather
than concrete realities. Evidence from the experiencesof everyday
life supports the results of research which portray tlle arbitrary
manner in which State institutions alld legal processes are
manipulatedto become instrutllentsof class and group dominatioll.
But although the State has become i'lawless"by subvertingmany
of the rules which it lays down for itself, it has not beell wholly
"privatised." Nevertheless, there is a disillusionment with the
governments approachto law and developmellt.
India is now left in a quandaryabout the relationshipbetween
State, law and justice. One possibilityhas been to treat State law
as an instrumentof oppressionand 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(ljyu5(abII(J
Deb(lte21S217.
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, Supersessiotlof Judges (Delhi, 1973); K. S.
Hegde, Crisis ill lhe Judicioty (Delhi, 1973). For an account of a Iess drainstticcontrovelsy
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.
OCT.
1987]
745
disadvantaged. But this may be possible in only marginal areas.

State law would have to remain a site of strugglebecause 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 machineryretains some autonomy
of standardsand decision-making,State law is up for grabs in the
hands of those, includingthe disadvantaged,who acquirethe 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, newspapermenand social activists
who feel that law can be "turnedaround"to provide solutions for
the poor.8l Supreme Court judges tour the country declaring the
new movement82and have set up a procedure whereby their
jurisdictioncan be invoked simply by a letter to a judge explaining
the exploitation or atrocity complained about.83Various 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 preliminaryresults are exciting but not sufficientlyconcrete to
inspire unreserved acclaim. Public interest law may prevent some
exploitation, redress the horrifying effect of some atrocity, and
prevent Indiansociety from regressinginto uncontrolledoppression;
but it cannot be expected to achieve distributivejustice or alter the
power structure.
This movement throws up some interesting questions. At one
level, activistswish to obtain resultsfrom the law even though they
have no faith in it. But in order to get the system to yield
dividends, a range of bargainingendowmentshave to be built into
the system. The entire system has to be sensitised. New ideological,
institutionaland processual elements have to be introduced.At a
deeper level, some judges and jurists see the present situation as
an opportunityto replace both the positivist and the instrumental
theory of law and development84with a new epistemological
81 On the public interest/social action movement see R.
Dhavan, Public Interest
Litigationin 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. . . (supran.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. Criticismsof
this development can be seen in S. K. Agrawala, PublicInterestLitigationin 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 ColumbiaJournalof Transnational
Law 561-577, his judgment in
BandhuaMuktiMorchav. lJnionof India,A.I.R. 1984 S.C. 802; Justice O. Chinnappa
Reddy, "Socialism, Constitutionalism and Legal Aid Movement in India" A.I.R. 1986
Journal1-8.
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.), supran.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.
746
[Vol. 50
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 assumptionsabout 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 fundamentallyabout distributive
justice. It can no longer fall back on a conservativeconcern for
protectinglife, 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
capitalismand to fightfor theirindividualand collectiveentitlements
as full citizens and not just beneficiariesof welfare.
Secondly, Indian law is being forced to reassess the theory of
plural accommodationwhich has sustainedits orderingof affairsin
civil society and allowed its social political leaders to juggle
together temporary live-and-let-live compromises. The peaceful
coexistence of hierarchicalarrangements,amidst vast differentials
and exploitativepracticeswithout reference to justice, is no longer
possible or desirable. Tremendous strains on Indian federalism
require India to look at more participatoryforms of devolved
government. Again, judges are under considerablepressureto reevaluate fundamentally the dispensation that allowed various
religious practices to coexist without reference to the immediate
and long term injusticethey might perpetuate.This must, perforce,
provoke a reassessment of how the law should review relations
between people inter se in civil society.
Thirdly,the centralityof the State legal system to law and justice
has been seriouslyquestioned. It has been arguedthat even though
the pressures of a technologicallycomplex 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 hermeneutictradition
developed by judges, as indeed the deliberationsof politiciansand
bureaucrats,is being treated as arbitraryand in need of urgent
85 These terms are taken from R. Dhavan, "ManagingLegal Activism: Reflections on
India's Legal Aid Programme",(1987) 15 Anglo-AmericanL.R. (forthcoming)contrasting
those sectors of the economy where people are 'Sexploited''(not given their fair share)
from those "genocide" sectors where their economic redundancyto the economy makes
them totally vulnerable but for the exercise of political will by or on their behalf.
OCT.
1987]
747
reassessment.86There is also a movement away from the State

system of law and justice not just to "bargainin the shadow of the
law" but to design alternativestructures,processes and normative
understandings.This has led to the converse pressureof the State
system strivingto assimilateas 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, administratorsand
politicians)and an emerging range of social and legal activistswho
are not just using the law in a different way to explicate different
concerns but seeking to alter fundamentalunderstandingsof 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 struggleis 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 articulationof
. . . (a) role far in excess of their potentialities(in a mannerthat is
not) only narcissisticbut also predatoryon 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 independentmomentumand 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 influenceof the latter'scustodians.
All this opens up a potential for researchwhich is expected not
just to emanate from government or to consist of watching the
activities of government and quasi-governmentalinstitutions. It
points to a greater critical and communicativeunderstandingof
how legal values and legal ideology are created. There is already
an impressiveemergingscholarshipamongstindividualsandpressure
groups about the working of the legal system and peoples'
understandingof 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, "Marginalmen" (1983) VIII Book Review (No. 3)
14>146 (reviewing
A. Shourie, TEleSecond Reign of Mrs. Gandhi (Delhi, 1983).
88 For an anthology of the preliminaryreaction to social action law see R. Dhavan (ed.),
Public Interest Law in India: Some IntroductoryReadings (Delhi, Committee for the
Implementationof Legal Aid Schemes 1982, mimeo); InternationalCommissionof Jurists,
Conclusionsand Recommendationsof the Seminaron Rllral Developmentand Human Rights
inSouth Asia (Geneva, 1982). Unfortunately,an interestingset of papers to an International
Workshopon the Effective Uses of Law by Social Action Groups (Ahmedabad, 1982) are
not available in a presentablcform. There is an interestinglitcratureon environmentallaw
e.g. J. Bandhopadhyaya,et al., India's Environment:Crises and Responses (Dclhi, 1985),
andnew jurisprudentialideas developed by ChattrapatiSingh and his colleagues on the use
of forests and wastelands in India: see C. Singh, Common Propertyand 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.
Followingcontroversiesover dowry deaths, rape in prison and the maintenanceof Muslim
wives, there is also a basic revaluationof the rights of women in Indian society. The vast
literatureon this area is difficultto summarise.
748
THE MODERN I AW REVIEW
[Vol. .SO
There are, however, many problemsahead. Lack of financeand

resourcescauses dependenceon charitablefoundations.The effect of
this has stillto be determined.At the sametime, both the government
as well as the normalmiddleclass custodiansof law and justice are,
at present, ambivalentand bemused about these new pressureson
law Many of them see it as a passingphase and a new affectationof
some of theircolleagues.89
But as activistunderstandings
makegreater
demands,achieve better collaborativenetworks,and find better and
more effective alternatives,they might pose a greaterthreat and be
subjectedto pressures,threatsand takeovers.
V
Whether or not the social sciences are capable of discoveringthe

"truth,"or whether knowledge is organised around paradigmatic
belief systems, it is necessaryto ask why social science researchis
done at all. To some extent, such researchis a middle and upper
class game played at university. It is also a restrictivepractice
controllingaccessto jobs, especiallyin the higherechelons.The rules
of the game make it very elaborate and often very exhausting.It
generates its caste system and deifies its pulldits. As academiahas
expanded,it has constituteditself into a captivemarketof students,
colleagues and competitors. The game is sustained, and thereby
reconstitutedinto a new framework,by publisherswho now design
the structural constraints within which communicationbetween
researcherswill take place. Publisherslink in with and supportthe
researchcastesystem,sometimesplayinga decisiverole in determining
caste mobility.
As universitiesbecome places of mass learningwhichclassifyand
grade students for the employment market, there has been some
serious rethinkingabout research.90The 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 UniversityEducation
Commission(1948) I, 257; Reportof tSleLegal EducatiotlC'ommittee
(Bombay, 1949);Report
of the Commission on the Re-organisatiotlof Legal Education in tSle Universilyof Delhi
(Delhi, 1964). For comments on legal educationsee Anandji, "Dcan's Report: Response to
the BanarasScheme", (1965) 1 BanarasL.J.; T. Von Mehren, "Lawand Legal Educationin
India: Some Observations",(1965) 78 HarvardL.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 empiricalstudent of student perspectivesat three law
colleges", (1970) 12 J.I.L.I. 39; U. Baxi, 'iTowardsa socially reievant Iegal education",
(Delhi, U.G.C. 1979); S. K. Agrawala, "Legaleducation and its reievanceto contemporary
Indian society", (1978) Cochin (J.L.R. 34; S. P. Sathe, "Legal education in Maharashtra",
(1983) 10 lndian Bar Review 186, and generallyS. P. Sathe "Accessto Legal Education/Legal
Professionin India", (Paper for CommonwealthLegal EducationAssociation, 1987 mimeo)
which exhaustively reviews the literature. The Bar Council of India has started a 5 year
inter-disciplinaryundergraduatecourse to replace the existing 3 year post-graduatecourse.
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 curricularevision in 1987. The future of legal research depends very greatly on
improvingthe qualityand rcducingthe numbersin law schools.
Ocr. 1987]
749
from governmentand powerful business and other institutionswho

have demanded and backed research relevant to their work and
operations.9}The story of the Ministryof ExternalAffairs in India
stating that tailoring and law were not importantareas of relevant
research reflects on the government'spreference for instrumental
problem-and issue-solvingresearch. 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 comprehensiveaccountsof what is going on.
The results of research are constantly appropriated and
transformedfor use in power strugglesin civil and politicalsociety.
New developments in informationand commullicationtechnology
have expanded the diverse ways in which the "truth"is presented
to society. Researchersthemselves, consciouslyand unconsciously,
become ideologistsfor diverse purposesand groups.These gameswhich are strugglesfor the masteryof ideology and interpretationare much more difficult and elaborate and not always easy to
interpret.
The canvass of Indian legal researchaffirmsthis general picture.
With notable exceptions, much of the work being done at
universitiesis 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 epistemologicalframeworkof legal thought
linking law with social justice. This transformationin thinking
about law has been accelerated by spokesmen for India's poor
making demands on the legal system and insistingthat the system
should be denied legitimacyand supportunless it exhibits a greater
capacity to offer a much more wide-rangingjustice 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 righteousnessdesigned 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
providinga provocativereassessmentof the role of law in modern
society.
*
DHAVAN
RAJEEV
9' For cxampic, much of thc Planning Commission's work has conccntrated on a lawin-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.

Legal Research in India

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Research in India

Uploaded by

Copyright:

Available Formats

Means, Motives and Opportunities: Reflecting on Legal Research in India

Author(s): Rajeev Dhavan

MEANS, MOTIVES AND OPPORTUNITIES:

THP, MODERN LAW REVIEW

MEANS, MOTIVESAND OPPORlUNITIES

institutes.7The articles in the journals are not "refereed"and are

American involvement was in

MEANS, MOTlVESAND OPPORTUNITIES

objectivesand its allegedlyunswervingresolveto achievedistributive

THE MODERN LAW REVIEW

were maele for geographical differences and changes over time.

MEANS, MOTIVESAND OPPORTUNITIES

tradition in the Indian literature19and commented on the

THE MODERN LAW REVIEW

extent to which the modern institutionalsystem was designed to

MEANS, MOTIVESAND OPPORTUNITIES

is seen by the bulk of India's poor as a snare in which they are

THEMODERN EAW REVIEW

its discipline, virtually none of the institutional morality which

MEANS, MOTIVESAND OPPORTUNITIES

part of the Constitution came to be used and

THE MODERN LAW REVIEW

in England in the latter part of the last century, vary in quality.

Publishersare only partly to blame for the lack of systematic

MEANS, MOrIVES AND OPPORrUNITIES

The need is not just to interpretthe formal prescriptionsof the

IHE MODERN LAW REVIEW

MEANS, MOTIVESAND OPPORTUNITIES

the government of the day, has invited much attention. An

1'HE MODERN LAW REVIEW

MEANS, MOTIVESAND OPPORTUNITIES

conservativestyle, which is now provingto be fragile as worldwide

65 The literature concontrates on relationships betwoen traditional and neo-traditional

rHE MODERN LAW REVIEW

and penology.70Some simply reveals direct and "illegal"uses of

MEANS, MOTIVESAND OPPORTUNITIPS

rH[ MODERN LAW REVIEW

Emergencyof 1'975-77,continuedto supportNehru'sview that the

MEANS, MOTIVESAND OPPORTUNITIES

disadvantaged. But this may be possible in only marginal areas.

THE MODERN LAW REVIEW

understanding of law. Such an understanding would be less

MEANS, MOTIVESAND OPPORTUNITIES

reassessment.86There is also a movement away from the State

THE MODERN I AW REVIEW

There are, however, many problemsahead. Lack of financeand

Whether or not the social sciences are capable of discoveringthe

90 There has been a considerabie amount of writing on Iegal education: sec S. K.

MEANS, MOTIVESAND OPPORTUNITIES

from governmentand powerful business and other institutionswho

You might also like