Law Reform by the Courts, and Its Limits
Chapter Seventy-Eight
Syllabus topic 4, "Clinical Legal Education - Legal aid, Legal Literacy, Legal survey and Law reform"
Pages 292 to 295 of 543
In one line
Indian courts have made a great deal of law reform, and this module has been full of it, but a court can only do four things, and knowing which four is what separates an argument from a wish.
In the wording a student can write in an exam: courts reform law by interpreting a provision so as to give it a content it did not obviously have, by reading a fundamental right expansively so that a directive principle becomes enforceable through it, by issuing directions that operate until the legislature or the executive acts, and by striking down what is invalid; but a court can act only when a case is brought, only on the material the parties put before it, and only through a remedy a judgment can deliver, so it cannot survey, cannot appropriate money, cannot create machinery and cannot legislate.
The four things a court can do
One: interpret so as to reform. The plainest example in this module is the reading of Article 21 in Hoskot, chapter 540, where procedure established by law was held to mean fair and reasonable procedure, which then required free legal services for an indigent prisoner.
Two: make a directive principle enforceable through a fundamental right. Article 39A is in Part IV and is unenforceable by Article 37; Hussainara Khatoon used it to give content to Article 21, chapter 540, so the substance became enforceable without the article being enforced.
Three: issue directions. Khatri required that a magistrate inform the accused of the right at first production and at every remand, chapter 630. Sheela Barse issued directions to the Inspector General of Prisons and the legal aid machinery, chapter 630. Neither is an interpretation of a provision; both are the creation of a practice.
Four: strike down. V. Sudeer struck down the Bar Council's training rules as beyond its rule making power, chapter 420, and Yash Pal quashed notifications establishing universities where a State's power under Entry 32 of List II was used against Parliament's power over standards under Entry 66 of List I, chapter 50.
What courts have actually reformed in this module
The whole of the legal aid right, chapter 630, before any statute delivered it: Hoskot, Hussainara Khatoon, Khatri, Sheela Barse and Suk Das between 1978 and 1986, when the Legal Services Authorities Act did not commence until 9 November 1995.
Access to the profession. Bonnie Foi Law College upheld the All India Bar Examination and held V. Sudeer no longer good law, chapter 420; Gaurav Kumar held that nothing beyond section 24(1)(f) and stamp duty may be demanded at enrolment, chapter 420.
The funding of legal education. Manubhai Pragaji Vashi held that the Article 39A duty requires an adequate number of properly equipped law colleges, chapter 40.
Law Reform by the Courts, and Its Limits
The content of access to justice. Anita Kushwaha identified its four facets, chapter 530.
And the availability of the courts themselves. Harish Uppal held that lawyers have no right to strike and that the litigant has a fundamental right to a speedy trial, chapter 640; Darshana Devi held that the poor shall not be priced out of the justice market by court fee, chapter 530.
That is a very large body of reform, and a candidate should say so before turning to the limits.
The four limits
One: a court needs a case. It cannot take up a subject. Public interest litigation widened who may bring one, but somebody must still come, and the problems nobody brings stay unreformed. The clinic's register of chapter 690 is full of them.
Two: a court sees only what the parties put before it. It has no survey capacity. Hussainara Khatoon worked because somebody brought the lists, chapter 700, and the Court then had to ask for more information about courts, pendency and delay because it had none of its own.
Three: a court cannot appropriate money or build machinery. It can declare a right to free legal services; it cannot fund a District Authority, fix a panel lawyer's fee or open a clinic. Khatri says in terms that the State cannot plead financial inability, which is a statement about the duty and not a source of the money. The machinery came from the Act and the funds from sections 14 to 17, chapter 580.
Four: a court cannot legislate. It can direct that a duty be performed; it cannot write a statute, prescribe a scheme in detail or provide for what happens next year.
And a fifth, which is about legitimacy rather than power. A direction that goes beyond adjudication into administration invites the objection that an unelected body is governing, and the answer to that objection is that the direction is temporary and yields to the legislature.
Where the line actually falls
A useful test for an answer. Ask whether the reform requires a decision between competing policies with a budget attached. If it does, it is for the legislature or the executive; if it does not, a court can often deliver it.
Applied to this module. That an accused must be told of the right to legal services is a matter of fair procedure and a court can require it, Khatri. What the panel lawyer is paid is a budgetary allocation and a court cannot fix it.
And applied to the reform of chapter 710. A printed form in the remand file is administrative and cheap, so a High Court on its administrative side can prescribe it; a duty counsel at every remand court has a salary attached, so it is for the Authority and the budget.
Law Reform by the Courts, and Its Limits
The honest closing point of Module II
Judicial reform in this field has been remarkable and it has reached its limit. The rights are declared, the machinery exists, the regulations are made, and the failure now is in operation: awareness, quality, funding and measurement, chapter 640.
None of those four is a problem a judgment can solve. They are problems of administration, money and information.
And information is where a student comes in. A court cannot survey; an Authority does not; a student can. That is the sentence Module II has been building towards, and it is why the next chapter begins the research methodology.
A worked example
One problem, and the four agencies applied to it in turn.
The problem. The four compulsory clinical papers are examined as written theory, chapter 520.
Could a court reform it? Only if somebody brought a case, and the claim would be difficult: a student aggrieved by their own college's examination pattern has no obvious right infringed, since the papers were held and passed.
Could the Law Commission? It could report, and the report would go to a ministry, chapter 730.
Could the regulator? Yes, and immediately. Rule 22 already requires the inspection committee to assess the feasibility of standard clinical education, so the Bar Council could require the clinical assessment records at every inspection without any new power at all.
Could the University? Yes, and immediately. It can prescribe the practical assessment centrally under its own ordinances.
The right answer is the third or the fourth, which is the same conclusion chapter 730 reached about the remand form, by the same reasoning. A student who reaches it has understood what this module was for.
Quick revision
Four things a court can do: interpret so as to reform; make a directive principle enforceable through a fundamental right; issue directions creating a practice; and strike down what is invalid.
What courts reformed in this module: the whole legal aid right between 1978 and 1986, before the Act commenced in 1995; access to the profession, in Bonnie Foi and Gaurav Kumar; the funding of legal education, in Manubhai Pragaji Vashi; the content of access to justice, in Anita Kushwaha; and the availability of the courts, in Harish Uppal and Darshana Devi.
Four limits: a court needs a case; it sees only what the parties bring, so it has no survey capacity; it cannot appropriate money or build machinery; and it cannot legislate. A fifth is legitimacy, answered by the direction being temporary and yielding to the legislature.
Law Reform by the Courts, and Its Limits
The test: does the reform require a decision between competing policies with a budget attached? If yes, it is for the legislature or executive.
And the closing point: the rights are declared and the machinery exists, so the remaining failures are of administration, money and information, and only the last of those is something a student can supply.
Test yourself
1. Name the four things a court can do by way of law reform, with an example of each from this module. Interpret so as to reform, as in Hoskot's reading of procedure established by law; make a directive principle enforceable through a fundamental right, as in Hussainara Khatoon's use of Article 39A to give content to Article 21; issue directions creating a practice, as in Khatri's requirement that the accused be informed at first production and every remand; and strike down what is invalid, as in V. Sudeer and in Yash Pal.
2. State the four limits on judicial law reform. A court needs a case and cannot take up a subject; it sees only what the parties put before it and has no capacity to survey; it cannot appropriate money or create machinery; and it cannot legislate, so it cannot prescribe a scheme in detail or provide for the future.
3. Give the test for whether a reform is available to a court. Whether the reform requires a choice between competing policies with a budget attached. If it does, it belongs to the legislature or the executive; if it does not, a court can often deliver it. Requiring that an accused be informed of the right to legal aid is available to a court; fixing what a panel lawyer is paid is not.
4. Why does Module II end by saying that judicial reform has reached its limit here? Because the rights have been declared, the machinery exists and the regulations are made, so the remaining failures are of awareness, quality, funding and measurement. None of those can be solved by a judgment, and the last of them, information, is the one a student can supply, which is why the research methodology follows.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.