A GLIMMER OF HOPE
– Mr. Subhaprad Mohanty (Research Associate NLUO)
“In God we trust; the rest comes from data”
The above popular phrase is attributed to famous management consultant William Edwards Demming. Demming was the pioneer of economic reconstruction of Japan in the aftermath of World War II devastation. Demmings as the management guru stressed the importance of data collection and data analysis an integral facet of day to day running of business operations. Nowadays the tools of data collection have undergone rapid modifications with the arrival of Big Data analytics and other sophisticated technologies.
If making new laws is considered as a business process then the importance of data cannot be undermined. Before enactment of any law or rendering of any order by courts there is always a necessity to collect and study the data. But what kind of data are we speaking of? The examples are galore: Affidavits, scientific findings, studies, reports, witness testimonies, experts’ opinions and the list is endless. The collection of data and its subsequent analysis can be an arduous task.
Law students must have studied Legal Research Methodology subject in their colleges in pursuance to their undergraduate and post graduate studies. The subject is taken not too seriously (albeit it’s my personal opinion recounting my own experiences) and just seen as a subject to pass more akin to rites of passage. Truth to be told, legal research methodology is not a dry and boring subject. Research in social sciences can be made very interesting and enriching for the young law students out there who believe in higher calling in their lives. Simply put, law students who want to carve out a niche in a field pursuing societal interests then it is rewarding for them to be well equipped with research skills. The modes and methods of collection of data no doubt can be a painstaking process but it is an intrinsic part of lawmaking process.
Let me share an interesting anecdote of Brandeis Brief from the American legal history. In 1907, an American attorney Louis D. Brandeis was hired to represent the state of Oregon in Muller v. Oregon a case before the US Supreme Court that involved the constitutionality of limiting hours for female laundry workers. Louis D. Brandeis took an unusual route when he prepared a brief comprising mostly of non-legal data and restricted his legal arguments to two pages only. The brief became significant in the coming years as it not only helped Brandeis to win the case but gave an impetus to drive the socio-legal research in United States of America. This approach was followed in Roe v. Wade (anti-abortion case) and several other cases where research data became deciding factor in adjudicating cases involving societal interest. There have been calls for an Indian version of Brandeis brief in Supreme Court judgments like Moti Ram v. State of Madhya Pradesh and B.Banerjee v. Anita Pan where the erudite judge V.R Krishna Iyer lamented over the sorry state of affairs that has plagued socio legal research in India. The situation has changed albeit in a slow manner when the PIL movement started taking roots in India. Courts suddenly sprung up to give importance to extraneous evidence in the form of legal and non-legal data measuring various social parameters of life.
Now the moot question is how can current generation of law students contribute this progressive albeit slow movement?
Legal Aid Clinics (hereinafter “LAC”) is the answer.
The concept of LACs in law schools gained prominence following the setup of National Law Universities in India. Universities abroad like Harvard, Stanford boast of robust legal aid clinics witnessing active student participation. In United States of America most of the law schools have affiliation with American Civil Liberties Union (ACLU) organisation which provides legal aid and the latter has a chapter in such law schools. These kinds of clinics mostly undertake counselling work like providing legal aid to marginalised sections of the society through drafting petitions, interviewing undertrials, arranging pro bono legal assistance among others. Students acting as volunteers in such clinics should be used as foot soldiers in carrying out research work. Many of the law college now carry out research work outsourced from external agencies particularly government institutions or they have separate departments carrying out independent research work. NLSIU Bangalore has Centre for Child and Law that undertakes policy research and advocacy work in matters relating to rights of juveniles. The NLU Delhi launched the ambitious Death Penalty project that along with carrying out research work on capital punishment in India also provides legal assistance to death row convicts. The project involves students as volunteers from different states carrying out field research. The research typically involves collecting empirical data on convicts. Recently their report was quoted in the Law Commission report on Death Penalty and Outlook magazine published a cover story on the basis of the findings of the report. Even National Law University, Odisha is not far behind and boasts of active research centre like Centre for Child Rights, Centre for International Trade Law and et al.
The above example of Brandeis Brief is straight out from an American TV show based on a legal drama where the protagonist as a legal maverick with some sort of magic trick up his sleeve swoops in and save the day, thanks to some sort of out of box thinking. The Brandeis Brief incident is a classic illustration of advent of sociological jurisprudence where the court placed reliance on ground realities (read: data) rather than subscribing to only legal formalism (read: legal arguments) of analytical school.
Data has shaken the world. This is the area where LACs should now more emphasis on. Policy advocacy using Data Analytics are the emerging domains of lawmaking process. And one of the important areas that these works entails is conducting empirical research and collection of data. Going for field research, conducting interviews, preparing questionnaires and taking surveys are some of the modes of collection of data. The problem with legal education in India is continuing emphasis on theorising which rarely leaves little scope for any practical use. This is the sole reason Legal Research and Methodology remains a dry and boring subject. LACs should take up this kind of research work as part of expansion of their domain work of providing legal aid. Indian judiciary is yet to see an Indian version of Brandeis Brief and someday I hope there will be one.