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Codification And First Law Commission

Codification: Introduction

The literal meaning of codification is: an act or process of reducing to a code or system. From the fifteenth century onwards, the term came to be applied to a more or less comprehensive, systematic statement in a written form of major bodies of law, such as the Civil law or the Criminal law. The term "codification" was first used by Bentham. Codification is derived from the word, "code".

Now, what is code? Code is a collection of laws or regulations gathered under one whole corpus, containing a more or less complete system of rules on one of several legal matters. However, the word is propounded by Bentham, but the phenomenon began in ancient times. Hammurabi's Code, in Babylon, dates back to about 1700 B.C. and takes its inspiration from the Sumerian and Accadian Codes. We also find the existence of Gregorian code (231), Theodosian code (438), Justinian code (534).

Codification In India: Debate

Bentham was the proponent of codification and was supported by governor general Bentick, Charles grant, James mill and T.B Macaulay. In the beginning of the 19th century, there was a chaos in the application of law. With the existence of Hindu law, Muslim law, charter and letter patents, English common law, circulars of Nizamat and diwani Adalats, decision in a given case was like a lottery. So, there was a dire need of codification.

Following are the views in favor:
  1. Codification would be of the utmost utility, not only to the judges and the legal profession, but also to the people and the Government
  2. It would save labor and thus facilitate the dispatch of business and cheapen the cost of litigation.
  3. It would tend to keep our untrained judges from error.
  4. It would settle disputed questions on which our Superior Courts are unable to agree.
  5. Codification makes the law certain, uniform, accurate and concise, besides bringing about a sort of unity in the legal sphere. Besides this there was a section led by Elphinstone, which was opposed to opposition.

Their point of disagreement are as follows:
  1. Codification does not usher in all that is good and perfect. The first objection to codification is its inherent incompleteness. As criticized, that "A code is a want developed by progressive and unscientific legislation and that it is impossible to have a code which shall be complete and self-sufficing. This idea, however, should not dishearten one from proceeding in the direction of codification.
  2. Accumulation of comments and decisions would overburden codification, it is said, and the code would become useless.
  3. Codification checks the natural growth of law; it stereotypes the law and prevents its elasticity. Against these drawbacks one should not forget that codification brings certainty, a very important factor in law. Elasticity can only be maintained by re-enaction of laws. The legislature, before it enacts a law, will feel the need for advice on the views of economists, social scientists, interested bodies and ordinary citizens as well as lawyers. So, for that purpose, Enactment enables a scientific planning and deigning process, which taps the wisdom and experience of the whole community to be brought to bear on the formation of the law. The Law Commission is an important instrument for ensuring that this planning and consultative process will be available to Parliament.

Charter Act Of 1833:

There were defects in the existing system of Regulation Law, but these alone were not responsible for the reforms which were introduced in 1833. There were other factors which compelled the British Government to introduce reforms.
  1. Supreme court's power and jurisdiction:
    The public servants realized the defect in the existing system. The jurisdiction of the supreme court was uncertain. Veto power of the supreme court relating to legislation was another cause of trouble.
  2. Economic conditions:
    The deteriorating economic condition of the Company was also responsible for the reforms of 1833. Due to deficit budgets the Governor-General, was specially directed by the Directors to reduce the expenditure of the subordinate Presidencies.
  3. Public opinion in England:
    The trend of public opinion in England also influenced the Company's policies in India. It was also having legal and judicial reactions. In order to satisfy English public opinion an English lawyer was appointed as a member of the Governor-General's Council. It ensured Englishmen that due attention was given to their laws, customs and rights in India.
  4. Favor to Christianity:
    An alliance between the British commercial interests and the Evangelicals (Methodists who wanted to spread Catholic faith in India), in which the former wanted a free field for their investment in India and the latter considered it essential for spreading the Christian religion in India, necessitated the passing of a new charter.

Provisions Of The Charter:

The Charter Act of 1833 introduced important changes in the constitution of the Company as well as in the legislative machinery of India. It aimed specially at the centralization of the legislative activity.

Following are its provisions:
  1. The Governor-General of Bengal became the Governor-General of India with exclusive legislative powers.
  2. The Governor-General of India was given civil and military powers. The Government of India was created for the first time having the authority over the entire territorial area possessed by the British in India.
  3. The members of the Governor General's council were reduced by the Pitt's India act 1784 was again increased to 4. The fourth member had very limited powers, he was a law officer.
  4. The Governor General Council had the authority to amend, repeal or alter any law in the entire length and breadth of India for any British, Foreigner or Indian.
  5. The activities of East India Company as a commercial body came to an end. The company purely became an administrative body. The company's territories in India were to be held by it "in trust for his Majesty, his heirs and successors''.
  6. The Act permitted the English to settle freely in India. It effectively legalized British Colonization of India.
  7. Section 53 of the Act of 1933 empowered the Governor-General-in Council to appoint a Law Commission from time to lime. The Commission was to enquire fully "into the jurisdiction, powers and rules of the existing courts of justice and police establishments in the said territories and all existing forms of judicial procedure and into the nature and operation of all laws, whether civil or criminal, prevailing in any part of the said territories in India".

The First Law Commission

As per the provisions of Section 53 of the Charter Act of 1833, the First Law Commission was appointed in India in 1834 with the fullest powers to inquire and report. It was composed of T.B. Macaulay (as Chairman) and four-members, namely, C.H. Cameron, J.M. Macleod, G.W. Anderson and F. Millett. The last three members represented Madras, Bombay and Calcutta respectively.

Following were the areas of work for the commission:
  1. The penal code:
    The state of criminal law prevailing in the country was very chaotic. In the three presidency towns, the supreme court administered the English common law, which has been altered as per the needs of the local government. So the law was artificial and complicated that too framed in a foreign country that too without any reference to India.

    Moreover, in Bengal and madras, mohhamedan law of crime was the law of the land was applied to all, which was way more primitive and unsuitable for a civilized country. The Anglo-Indian regulations dealing with the criminal law enacted by different bodies had no coordination among them.

    Therefore, criminal law became a patchwork of enactments so confused that it was the first subject that invited codification. Thus, under the guidance of lord Macaulay, the work of drafting the Indian penal code started and the draft was submitted to the government in 1837 however enacted in 1860.
  2. Lex loci report:
    Lex loci in literal sense refers to "the law of the land". There was a great deal of chaos engulfed with the question of the civil law which determined the rights of Christians, Anglo- Indians, Armenians residing in mofussil area. There was no lex loci or law of the land for persons other than Hindus and Mohhamedans in the Mofussil. In this regard the main recommendations of the commission were as follows:
    1. Such laws of England as were applicable to the conditions of the people of India and not inconsistent with the Regulations and Acts in force in the country were to be extended over the whole of British India outside the Presidency towns and all persons other than Hindus and Muslims were to be subject to them.
    2. All questions concerning marriage, divorce and adoption concerning persons other than Christians were to be decided by the rules of the sect to which the parties belonged.
    3. There was to be a College of Justice at each of the Presidencies with the Judges of the Supreme Court and Sadar Courts as members. In all appeals filed the decisions of the mofussil courts, the appellate court was to consist of one Judge of the Supreme Court, with or without associates.
  3. Code of Civil Procedure:
    The Commission drafted a Code of Civil Procedure and suggested various reforms in the procedure of civil suits.
  4. Law of Limitation:
    The Law Commission prepared a valuable report on the Law of Limitation and with a draft Bill on it, submitted it to the Government on 26th February, 1842.
  5. Stamp Law:
    Another matter referred to the Commission was Stamp Laws which were in a state of conflict and confusion. The Commission submitted its report on 21st February, 1837.
The First Law Commission of India made unique contribution to Indian Law. Though the drafts of various codes, were not immediately passed by the Legislature as codified law, the basic foundation of future codification was laid down by it. The greatest credit goes to Macaulay for his initiative in preparing a draft code of Penal Law in India.

In fact, subsequent Law Commissions were built on the foundations laid by the First Commission. The Commission made a unique contribution by submitting the Lex Loci Report. It was a major step towards the Rule of Law.

  1. VD Kulsheshtra, landmarks in Indian legal and constitutional history, eastern book company, 7th edition.
  2. Jean louis Bergel, principal features and methods of codification, volume48(5), May 1988.
  3. Drishti IAS essay on charter act of 1833.
  4. M.P Jain, Outlines of Indian legal history,458, 1st edition (1952).

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