Progress of Legal Research In India:

 

Progress of Legal Research In India:

All research is the gathering of evidence or information for ascertaining an assumption or verifying some hypothesis. Research is, therefore, an enquiry for the verification of a fresh theory or for supplementing prevailing theories by new knowledge. No research can be purely new, as even original discoveries are an extension of the search already undertaken, being shaped generally as expressing agreement.

legal research in India since the British period can be divided into three phases : First. early colonial; second,  later colonial  ;  and third, post-colonial. The model  and  content of legal  research  during each phase is distinctive and bears  the  imprint  of  functional and  intellectual  urges  of  that  phase.

First  phase  (early  colonial)  : Locative  research

The seventeenth century in India was a period when national law and order was at its lowest ebb Both the state and law ceased to play  any constructive  role and lost their credentials  for managerial competence or  effectuating welfare. It  was an  era in  which  the  administration was  ruined  with  the autocracy,  family wars,     claimed  independence, and independent or semi-independent  states were engaged constantly  in  battles of offence or defense. In  this  set  up,  research on legal  issues by  Indians was  out of question.  If  some pundit sitting  in their  cloisters engaged themselves  in  such pursuit,  their names are not  known  .

 During  this  period,  the  officers  of  the  East  India  Company  also joined  in the research as they found  themselves  faced with  the  task  of administering  them. Trading managers like turned into administrators. This was  contrary  to  their apparent action of research which  shows  their  interest in trade. But  administrative  responsibility,  once  accepted,  required  laws  for  administrative  management.  Generally,  exposition  of  the  law  was  left  to  native  law  officers,  but  their  help  neither  catered  to  all  situations,  nor  proved  to  be  satisfactory  and  trust worthy. Early colonial   administrators   then felt  the  need  to  locate.  Indian   law from its  original  sources. Efforts in  this direction  resulted in  the  publication  of  the  indigenous  original  legal  texts  and  their .translations into English and various Indian lanauages,

Gaps in, or non- satisfaction with, indigenous law led to the suitable innovations through formulated law and judicial opinion. In the result, a sizeable bulk of regulation law and case law soon got accumulated in each presidency. Making the corpus of this law readily available and accessible to the courts, officers of company, people and their agents (representing their causes before the courts), was impera- tive for proper administration.

It was a period in which the law was being located and noted as and where it was. Legal writing during this phase was undertaken exclusively by or on the orders of Englishmen holding administrative or judicial positions with the government. The subject-matter of these writings spreads over formulated law, case law and common law naturally lacked the components of proper legal research. Basically, it was non-explanatory, non- interpretative and non-evaluative. Research in the first phase thus remained superficial and unrealistic in its approach and also neutral in regard to values: When law is being merely compiled, a critical approach cannot be expected, nor can law be expected to be narrated in a historical or concepual framework.

 The importance and worth of legal research done during this phase should not be underrated. First, collative material has its own value and collative research is an end in itself. Secondly, collative legal writings of this phase are the most organised, reliable and accessible recorded versions of the law of that period. These are excellent source materials with  great potentiality for legal research today. Legal writings of this phase may not be good researches in themselves, but they are good research material for the legal academic of the present day in many areas besides pure legal history. There is no evidence to show what method was used by Steele to ascertain the customs and conventions of the people. Most probably his methodology was defective and the sources of information he relied upon were secondary and not very reliable.

 

Second phase (later colonial) : Descriptive research

Legal education, during this phase, was preliminary,   imparted by part-time teachers to part-time students. Hence it was wholly non-serious and entirely non-academic .  The nature and goal of legal education neither catered for, nor produced, legal academics. Instruction in bare provisions of the law, jurisprudential reference or policy context or exposition, was not meant to develop a research orientation among the students and teachers of law. A situation arose-what was to be enquired? and who was to enquire.? Apparently, no legal research should have taken place during this period.

 Some excellent legal research also belongs to this very period. An institutionalized forum for encouraging legal research was founded by the Tagores of Calcutta, effective from 1868. The object of the Tagore Law Lectures Endowment was to further legal research by a course of lectures to be delivered annually by an eminent person on a subject "of the kind of law which is to be taught" in the universities. This lecture series has brought forth some excellent legal research. Since the beginning, the Tagore Law Lectures attracted the best of legal talent in India and England.

Another quarter that produced legal research during this period was that of very few top practising lawyers aspiring for academic distinction. They wrote dissertations for LL. M. or LL. D. degree, but all of these put together would make a very small bunch. Their style, method and content was that of the Tagore Law Lectures; in quality these rank above the commentaries and below the lectures.

To recount, one thing in common in all legal research of this phase is its interpretative character, exhibiting that the aim was merely to interpret and present legal provisions. There was no sustained tradition of legal research. Centralized in the hands of professionals-the lawyer and the judge-the topics of research were confmed to law in action, leaving areas of legal history and jurisprudence in utter neglect the researchers were primarily practicing lawyers familiar with, and interested in, the litigation aspect of law alone.

Third phase (current) : Academician researchers

Two environmental changes affected Indian legal research in the post-forties: One, the altered political status and governmental model in the country, and two, face-lift of the infrastructure of Indian legal education. To improve legal education their object was to upgrade legal instruction from non-academic to academic and from certificatory to educative. To achieve this it was necessary to have full-time law teachers. Part-time practicing lawyer-teachers were replaced by qualified full-timers, post-graduate instruction was regularised and course content. Both at the graduate and post-graduate level courses such as legislative principles were introduced, thus constituting the first step in the direction of the sociology of law.

 Fresh full-time law teachers were sent to American law schools for research and doctoral work; they became the first band of full-time academic law teachers in the country. Besides regularising legal instruction, the plan also threw up an infrastructure to encourage, motivate and absorb academic legal researcher, because the appointment, promotion and recognition of the law teacher now got linked with his academic potential and research calibre. Above all, the change established the profession of the academic law teacher.

 

Since Independence, law has come conspicuously in the forefront, owing to its extra-ordinarily increased use by the state in planning and development, which implies a rearranging of interests and claims and a redefinition of the role and jurisdiction of persons, groups, institutions and agencies.

Realisation of the necessity of legal research encouraged the establishment of governmental, semi-governmental and autonomous legal research forums and institutions. The Law Commission of India was constituted for recommending reforms in the law. The Indian Law Institute, the Indian Institute of Constitutional and Parliamentary Studies and the Indian Society of International Law were established for research and other purposes. The University Grants Commission (UGC) and the Indian Council of Social Science Research (ICSSR) (eventually) initiated the funding and encouragement of legal research, its planning and publication. The practice of holding law seminars by universities and other forums was initiated. Institutional framework, and need and motivation for legal research, which were lacking in the early colonial and later colonial phases, now clearly came into existence. As could be expected, legal research increased both at governmental and non- governmental level. As mentioned earlier, the Law Commission is an advisory research body to help the government in the task of law reform and to keep it up to date. Periodical spring-cleaning of law and its institutions is the assigned function of this agency.

This is the phase of the teacher-researcher. Research by Indian law teachers (and by the few non-teacher- scholars) is typical as narrowly based and unidimensional. Neither the topics selected nor the approach adopted can be said to be policy oriented. The topics are limited to constitutional law, administrative law and public international law. The laws relating to crimes, industrial relations and family relations are only marginally researched. Property laws, legal theory, sociology of law, legal history and procedural law are areas that suffer total neglect from Indian academic researchers. Interestingly enough, out of the total number of full professors in the university departments in the country within a span of less than ten years.