Surveys That Changed the Law

Notice the last of those. Having acted on one set of data, the Court asked for more, which is a court commissioning a legal survey.

The lesson. No new legal argument was needed. What changed the law was a list, and the list was made by somebody who went and looked.

Sheela Barse: a survey by interview and by directed investigation

What was done. A journalist interviewed fifteen women prisoners in Bombay Central Jail, chapter 630. Five said they had been assaulted by the police in the lock up. Her letter was treated as a writ petition.

And then the Court commissioned a field investigation. The Director of the College of Social Work, Nirmala Niketan, was directed to interview the women prisoners without anyone else being present and to ascertain whether the allegations were correct.

Read that condition. Interviewing prisoners in the presence of their custodians produces nothing, and the direction that nobody else be present is a methodological decision of exactly the kind chapter 960 teaches.

What the investigation found, among other things, was that there was no adequate arrangement for providing legal assistance to women prisoners, and that two foreign national prisoners said a lawyer had defrauded them.

What it produced. The holding that legal assistance to a poor or indigent accused is a constitutional imperative under Articles 14, 21 and 39A, that a prisoner may not know to whom to turn and that legal assistance must therefore be made available to prisoners in jails whether undertrials or convicts, together with directions to the Inspector General of Prisons and to the legal aid machinery.

The lesson. The finding that mattered, the absence of legal assistance for women prisoners, was not what the petition was originally about. Field investigation produces what nobody asked for, which is one of its strongest arguments.

Legal surveys that changed the law: what the three have in common

None of them began with a legal argument. Each began with somebody finding out what was happening.

Each used a different method, and the method fitted the question: a questionnaire and witnesses for a national inquiry into institutions; counting records for a question about custody; and confidential interviews for a question about what happens inside a jail.

Each produced a finding the law had not anticipated. The Fourteenth Report found the teaching, not the courts, to be part of the problem; the Bihar lists found people forgotten rather than wrongly convicted; and Sheela Barse's investigation found a legal aid failure while investigating an assault.

And in each the finding preceded the remedy. Nobody could have drafted the remedy first, because nobody knew what was wrong.

What a student can take from this

These are not historical curiosities; they are templates.

The Fourteenth Report's template: ask a defined population a defined set of questions about an institution.

Hussainara Khatoon's template: count what the records already contain. Chapter 680 makes the same point about a clinic's register under regulation 20.

Sheela Barse's template: interview the people the system acts on, privately, and expect to find something you were not looking for.

Every one of the three is within a student's reach, and the third is what chapter 670's camp already produces in miniature.

A worked example

Apply the Hussainara Khatoon template to something a student can actually do.

The records. The register a legal services clinic must keep under regulation 20 of the 2011 Regulations, for one year.

The count. How many people came; with what problem, sorted; how many were within section 12 and on which clause; how many were referred to a panel lawyer; and how many came back.

The finding. Suppose forty per cent of the entries are one kind of problem, and suppose that of those referred onward, very few appear again in the register.

What that supports. Two propositions, one about what the area needs and one about whether referral works, and neither could have been guessed.

And what it costs. Reading a register. Which is why chapter 680 calls the register a survey already conducted, waiting for somebody to read it.

Quick revision

The Fourteenth Report, 1958: built on a questionnaire and evidence from witnesses across the country; its findings on legal education still frame the subject.

Hussainara Khatoon, 1979: built on lists of undertrials in Bihar and the time each had spent in custody; produced speedy trial as part of Article 21, (1980) 1 SCC 81, and free legal services as implicit in Article 21, (1980) 1 SCC 98; and the Court then asked for more data on courts, pendency and delay.

Sheela Barse, 1983: built on a journalist's interviews and a court-directed field investigation conducted with nobody else present; found no adequate arrangement for legal assistance to women prisoners; produced directions and the holding that legal assistance is a constitutional imperative under Articles 14, 21 and 39A.

Common features: none began with a legal argument; each method fitted its question; each produced an unanticipated finding; and in each the finding preceded the remedy.

Three templates a student can copy: ask a defined population; count what the records already contain; interview the people the system acts on, privately.

Test yourself

1. How was the Fourteenth Report's evidence gathered, and why does that matter for this topic? By a long published questionnaire and oral evidence from a large number of witnesses across the country. It matters because the most influential document on this syllabus is itself an empirical study, so the findings a candidate cites about legal education were obtained by asking rather than by reasoning.

2. What data lay behind the Hussainara Khatoon litigation, and what did the Court do after acting on it? Lists of undertrial prisoners in Bihar showing the offences alleged and the time already spent in custody, which established that people had been detained longer than the maximum sentence they could have received. After acting on it the Court called for further information on the location of courts, the number of cases pending and the reasons for delay, which is a court commissioning a legal survey.

3. Which methodological condition did the Court impose in Sheela Barse, and why was it necessary? That the Director of the College of Social Work interview the women prisoners without anyone else being present. It was necessary because interviewing prisoners in the presence of their custodians produces nothing usable, so the condition protected the validity of the data as well as the safety of the respondents.

4. What do all three examples have in common? None began with a legal argument; each used a method fitted to its question; each produced a finding nobody had anticipated; and in each the finding came before the remedy, because nobody could have drafted the remedy without first knowing what was wrong.