Saturday 30 April 2016

News updated at 8:28 AM IST

A legal system in crisis without empirical data

G S Bajpai April 30, 2016,

Much about legal issues in India is not known through empirical data. Even in the policy circles, the
statements pertaining to the functioning of criminal justice system are devoid of any experimental or
observational basis. Crucial matters relating to the working of legal system is largely understood in
terms of popular beliefs and prevalent notions.
The traditions of generating hardcore primary data on the crucial issues of legal concerns remain almost
non-existent. Non-reliance on empirical research has resulted in drastic fallout. We do not know our
system and institutions though evidence and data which in turn give a picture of vagueness promoting
speculation.
Laws in India have never been subjected to an impact analysis. It is therefore not known empirically as
to what kind of impact a law causes to its stakeholders. If a provision of law does not produce the
desired result, the proposals are mooted to amend the same. Section 482 of the IPC is a case in point. It
took more than a decade to realise that this is becoming counter-productive and causing illegal arrests.
As we do not have arrangement of a pre-legislative research so as to do a pilot checking of the efficacy
of a particular legal provision. Nor do we have a post- enforcement assessment of law impact enabling
us to assess if a law or a provision is working in the manner in which it was conceived. It is quite
surprising that the state or Central ministries of law and legislative affairs or Law Commission of India
have hardly ventured into the exercise of law impact assessment.
No database in India is available to inform us as to who the litigants are and what their profile is. No
state department collects any data on this issue. It therefore cannot provide for devising any policy or
institutional framework to alleviate their problems. The need to have a national survey on the various
aspects of litigant is highly desirable. The Ministry of Law & Justice has been tasked with to design a
National Litigation Policy.
According to the ministry website, this policy is in the making. However, no effort seems to have been
made to undertake a broad-based empirical research in different states to suggest the patterns,
dimensions and direction of litigation when the state is a party. Current efforts in this direction do not
seem to fulfill the requirement of a sound empirical policy research.

Lack of competence in empirical research skill has taken a toll of the legal system. The publication of
reports of Law Commission particularly demonstrates this fact. The instance of Report 262 on death
penalty (2015) could be a case in point. The Supreme Court asked the Commission to empirically test if
the death penalty is any deterrence or not and how does the state decide about the commutation of
sentence.
Methodological logic
A close examination of this report clearly shows that these questions could not be handled precisely for
want of the application of a systematic empirical methodology. The conclusions reached by the law
panel and material relied did not match on a strict methodological logic. The empirical evidence
reported in other countries were utilised to support or contradict the deterrent effects of death penalty.
This methodological fallacy is a common story in case of many more reports of the Commission.
This report also shows the state of official legal research in India. A huge part of this report is either the
reproduction of the panels old reports or other published material elsewhere. The issue remains, whats
stopping us to indulge in serious business of empirical legal research. In such kind of reports,
consultation as method of research is often seen. This approach is fundamentally flawed and cannot
generate a set of primary data required to answer the research questions. This situation has discouraged
the development of empirical legal research.
The same findings are also applicable in the case of other reports of the panel on the subjects of
witness, speedy justice, judicial reforms, investigation in the cases of influential people where the
collection of primary data was an absolute methodological requirement.
Lack of empirical data pertaining to crime, victims, witness, decision making, bail, probation, juvenile,
after care, correction, rehabilitation etc is a major issue. Even at the level of decision making by the
criminal justice officials, their reliance is mainly on their experience. Take for example at the stage of
sentencing, the judicial officers need to make decision as to quantum of punishment, relevant factor is
mitigation or aggravation, possibility of probation or assessment of rehabilitation prospects of the
prisoner. All such decisions in the West are now assisted by the software. In order to bring in the
objectives of the Indian criminal justice system, we need to infuse a sense of data-driven decisionmaking.
Empirical research is generally not the part of legal education. Even the elitist national law universities
do not have any clear focus on empirical legal research (ELR) where the students could be taught of data
driven enquiries in the subjects of law. As most teachers in the law schools also do not have any formal
training or expertise in ELR, they invariably lead the arguments that the contents of law subjects may
not be empirically testable. This logic is highly flawed in the light of works done by Eisenberg, Nick
Rabbision and Lee Epistein in the US and Kritzer in the UK who have shown the promise of ELR in
analysing the most abstract legal subjects on an empirical plane.
(The writer is Professor and Chairperson, Centre for Criminology and Victimology, National Law
University, Delhi)