Research and the Judicial Process
Chapter -Two
Syllabus topic 5, "Research Methods"
Pages 407 to 410 of 543
In one line
Courts use research constantly, in three different ways, and the interesting question is what a court is entitled to look at when the material is not evidence led by a party.
In the wording a student can write in an exam: research enters the judicial process in three ways, namely the legal research done by counsel and by the court itself to ascertain the law, the empirical or social science material used to establish the factual background against which a rule is to be applied or reviewed, and the research produced by law reform bodies whose reports courts refer to; each raises the question of how far a court may act on material which the parties have not proved, and Indian courts have taken a wide view of that question, particularly in public interest litigation.
The three ways research enters
One: legal research to find the law. Counsel research and the court researches. This is doctrinal work, chapter 840, and raises no special question.
Two: material about the world. Facts about how a rule operates, about a population or about a social condition. This is the interesting category and the rest of the chapter is about it.
Three: reports of law reform bodies. A Law Commission report is a secondary source as to the law and a primary source as to what the Commission recommended, chapter 920, and courts refer to them for both.
What a court may look at
The ordinary rule of adversarial procedure is that a court decides on the evidence the parties lead and proves.
But three categories fall outside it.
Judicial notice, where a court accepts a fact without proof because it is notorious.
Legislative facts, that is, general facts about the world relevant to what a rule should be or whether it is valid, as distinct from facts about what these parties did. Courts have always used them, and the distinction is worth naming because it explains why a court may consider a study without it being proved by a witness.
And material the court itself calls for, which is the Indian development.
The Indian practice, from this book's own cases
In Hussainara Khatoon, chapter 700, the Court acted on lists of undertrial prisoners in Bihar showing how long each had been in custody, and then, having acted, called for further information about the location of courts, the number of cases pending and the reasons for delay, so that it could give directions about setting up more courts and appointing additional judges.
Read what that is. A court commissioning empirical research because the remedy it was contemplating required facts nobody had put before it.
In Sheela Barse, chapter 700, a journalist's letter was treated as a writ petition, and the Court directed a field investigation: the Director of the College of Social Work, Nirmala Niketan, was to interview the women prisoners without anyone else being present and ascertain whether the allegations were correct.
Research and the Judicial Process
Read that too. The Court appointed an investigator, prescribed a method, and imposed a methodological condition about privacy which any social scientist would have insisted on.
And in Bonnie Foi Law College, chapter 420, a Constitution Bench considering the All India Bar Examination worked from the submissions of an amicus curiae who had set out the options and their practical consequences, including when an examination could be held and how candidates should be dealt with pending results.
Three different mechanisms: material brought by a petitioner, an investigation commissioned by the court, and analysis supplied by an amicus.
Why courts need it
Because a remedy has to work. A direction that cannot be complied with is worse than none, and knowing whether it can be complied with is a factual question.
Because reviewing a rule requires knowing what it does. A challenge to Chapter VIA of the Legal Services Authorities Act, chapter 620, is partly an argument about what Permanent Lok Adalats actually do to litigants.
Because public interest litigation is about conditions, not about a transaction between two parties, and conditions are established by investigation.
And because the alternative is impression. A court acting on an unexamined assumption about how things work is doing empirical reasoning badly rather than not doing it.
The objections, which a good answer states
The material is untested. A study relied on by a court has not been cross-examined, and its method may be unsound in ways no lawyer in the room can detect, chapter 870.
The parties may not have had a fair chance to answer it, which is a natural justice objection with real force.
Selection. A court chooses which material to look at, and material is not neutral.
Competence. Judges are not trained to evaluate a sampling design, and neither are counsel.
And the institutional objection. A court that commissions investigations and issues directions on the strength of them is doing something close to administration, chapter 750.
What this means for a researcher
Research written for a court has a reader who will act on it, which raises the standard rather than lowering it.
State the method fully, because it is the only thing a judge can use to assess the work.
State the limits, chapter 1280, because a court that over-reads a finding will produce a direction the facts do not support.
Separate the finding from the recommendation. A judge may accept the first and reject the second, and should be able to.
Research and the Judicial Process
And expect to be used partially. A single figure will be quoted and the qualifications will not, which is an argument for putting the qualification in the same sentence as the figure.
A worked example
Suppose the remand study of chapter 690 were placed before a High Court on its administrative side.
What it would supply. A proportion, an operational definition of informed, a period, a court, and a method.
What the Court could do with it. Prescribe a form in the remand file recording whether the information was given, which is administrative, cheap and within its own powers, chapter 750.
What the Court could not properly do with it. Treat one court over six weeks as establishing the position across the State.
And what the researcher owes. The limitation, stated in the same paragraph as the finding, so that the Court is told what it may not conclude at the moment it is told what it may.
That is the honest relationship between research and the judicial process, and it is a better closing answer to this topic than an account of the Brandeis brief.
Quick revision
Three ways research enters: legal research to ascertain the law; material about the world, which raises the special question; and law reform reports.
Outside the ordinary adversarial rule: judicial notice; legislative facts, being general facts about the world relevant to what a rule should be rather than to what these parties did; and material the court calls for.
Indian practice: Hussainara Khatoon, where the Court acted on undertrial lists and then called for information on courts, pendency and delay; Sheela Barse, where it directed a field investigation with a methodological condition that nobody else be present; and Bonnie Foi, where it worked from an amicus curiae's analysis of the options.
Objections: the material is untested and uncross-examined; the parties may not have answered it; selection is not neutral; judges and counsel are not trained to evaluate a design; and commissioning investigations edges into administration.
For the researcher: state the method fully; state the limits; separate finding from recommendation; and expect to be quoted without the qualification, so put the qualification in the same sentence.
Test yourself
1. Name the three ways research enters the judicial process. Legal research by counsel and by the court to ascertain the law; empirical or social science material about the world, used to establish the background against which a rule is applied or reviewed; and the reports of law reform bodies, which courts use both for their account of the law and for their recommendations.
Research and the Judicial Process
2. What is a legislative fact, and why does the category matter? A general fact about the world relevant to what a rule should be or whether it is valid, as distinct from a fact about what the particular parties did. It matters because it explains how a court may properly consider a study or a report without it having been proved by a witness in the ordinary way.
3. Give two Indian examples of a court obtaining empirical material and say what each did. In Hussainara Khatoon the Court acted on lists of undertrial prisoners and then called for information about the location of courts, pendency and the causes of delay, so that it could direct the creation of more courts. In Sheela Barse it directed the Director of a college of social work to interview women prisoners with nobody else present and report whether the allegations were correct.
4. State four objections to a court acting on empirical material. That the material has not been tested by cross-examination and its method may be unsound undetectably; that the parties may not have had a fair opportunity to answer it; that the court selects the material and the selection is not neutral; and that judges and counsel are not trained to evaluate a sampling design or an instrument.
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.