The picture of the system of law prevailing in India near about the beginning of the 19th century is one of confusion and chaos. There was variation of law between the Presidency towns and the mofussil; the law in all the Presidency towns was not uniform as judicial decisions had introduced some differences therein also. The non-Hindu and non-Muslim sections were subject to different laws according as they resided in the mofussil or a Presidency town. Thus, the law was uncertain, incoherent and lacked uniformity.
A need to improve the legal system in India was recognised (Bentham said, ‘to be without a code is to be without justice’)and the process of codification was taken in hand. Codification involves the enunciation of the law in simple, certain and definite language. Only through codification it was possible to achieve homogenity of law in the country. The Charter Act of 1833 started the process of codification’.
When renewal of the Charter came before the English Parliament in 1833, Macaulay made a forceful plea for codification of Indian law stating – “No country ever stood so much in need of codification as India and I believe that there was never a country in which this want might be so easily supplied”. Macaulay further laid the basic principle behind this proposed codification – “uniformity where you can have it-diversity where you must have it – but in all cases certainty”.
The Charter Act 1833
The Charter Act of 1833 was passed by the efforts of James Mill and Macaulay. To achieve the objective of a uniform and codified system of law in India, the Charter Act, 1833, made provisions in three directions:
(i) It established a single omni-potent all-India Legislature having legislative authority throughout the country,
(ii) It created a new office of the Law Member in the Government of India, and,
(iii) It provided for the appointment of a Law Commission in India.
Because of the several significant provisions made by the Charter Act, 1833, Rankin has rightly characterized it as “a watershed in the legal history of India.“
(1) All-India Legislature- The Act created a single Legislative Council for India at Calcutta with Governor-General and four members, one of whom was a law member. The Council was given power to make all laws with respect to Indian territory under the Company. It could repeal, amend or alter any laws or regulations in force in any part of India. It could make laws for all persons, whether British, natives or others.
(2) Law Member With the exit of the Supreme Court from the Bldg legislative field, there entered the law member as a colleague of the Governor-General and Councillors to assist in the process of law-making. The law member however had no veto over legislation. He might not agree to a law, he might be even absent at the time of making a law, and yet the law would not be bad.
(3) Law Commission – Section 53 of the Act provided for the appointment of a Law Commission in India, to advise the newly created Legislative Council on matters of law. The policy indicated in section 53 was that subject to such special arrangement as local circumstances may require, a general system of laws applicable in common to all classes of the inhabitants, should be established with due regard to the rights, feelings and peculiar usages of the people. And that all laws and customs bob having the force of law in India should be ascertained, consolidated and amended. The section authorised the Governor-General-in-Council to appoint a law commission of not more than 5 members at a time.
Section 53 has been characterized as the “legislative mainspring of law reform in India so far as regards policy, though principles and ideas were still to seek.” The main purpose of the law commission was envisaged to be to provide, as far as possible, a common and uniform law for India.
The First Law Commission
It was appointed in 1835 with Lord Macaulay as its chairman. It was asked to do the codification of the criminal law, ascertainment of the position for Anglo-Indians, and to draft a law of procedure and pleadings. The Commission prepared the draft on all these subjects but could not impress the Government to get them passed. There was a misunderstanding between the Government and the Commission. However, one of the recommendations of the Commission was accepted in 1850, viz. The Caste Disabilities Removal Act, 1850.
The Charter Act 1853
The position and composition of the Legislative Council was reformed by the Charter Act of 1853. It made the law member a full member of the Governor-General in Council and the legislative council was expanded by including more members in it. The Act also made provisions for the appointment of a Law Commission in England to consider the various reports of the First Law Commission and to recommend to His Majesty within three years as to how the Indian law was to be codified. The Commission was appointed in England because of the ineffectiveness of the First Law Commission and because there were better jurists available in England.
Second Law Commission
The Second Law Commission which was appointed in England in 1853, consisted of leading lawyers of England and a few persons who had an intimate knowledge of Indian laws, and those who were personally associated with the work of the First Law Commission. The task assigned to the ommission was to examine and consider the recommendations of the First Law Commission for the reform of the judicial establishments, judicial procedure, and laws of India. The Commission submitted two reports. The first report relates to the reforms of judiciary and the second related to the reforms in law. The Commission made the following recommendations for the law reforms –
(i) That a substantive civil law for the whole of India is needed.
(ii) The English law should be made the basis of such law.
(iii) The personal laws of Hindus and Muslims should not be codified.
(iv) Exceptions have to be made from general law for particular classes of persons or for particular districts or places.
Thus, the Commission advocated the idea to have a general and uniform codified law, based on the English law throughout the country subject to certain exceptions. The Commission laid down the principles and policies on which the future work of codification was to be projected in India.
Coming of the Great Codes – On the recommendations of the Second Law Commission the Civil Procedure Code of 1859, Indian Penal Code of 1860, Criminal Procedure Code of 1861 and the Limitation Act, 1859, were enacted. They constituted an enormous advance over the law of procedure which was in force at that time. All these Acts were made applicable to all persons.
Third Law Commission
It was formed in 1861. The Third Commission was a very significant event in the process of codification of Indian law. As Rankin observes, the Third Law Commission “set on foot the work of drafting and may be taken as the end of the discussion on policy and as closing a paragraph of British Indian history entitled ‘The Codes are coming’.”
As the policy set out by the Second Law Commission had already accepted by the government, the Third Law Commission prepared the drafts of several codes in its seven reports. Before it resigned in 1870, because of differences with the Government, the following Acts were passed – The Companies Act, 1866, The General Clauses Act, 1868, The Indian Succession Act, 1865, The Divorce Act, 1869, The Indian Contract Act, 1872, and The Indian Evidence Act, 1872.
Fourth Law Commission
It was appointed in 1879 to carry on the codification work further. The Fourth Commission was in favour of codification suited to Indian conditions. Although the entire scheme suggested by the Commission could not be carried out yet under Dr. Whitley Stokes much of codification and revision of existing codes took place. In the year 1881 the Negotiable Instruments Act and in 1882 the Transfer of Property Act, the Easement Act, the Trust Act, and later on the revised Civil and Criminal Procedure Codes were enacted.
With the Fourth Law Commission came to an end the phase of law commissions and of formal codification of law in British India. No more law commissions were appointed thereafter during the British period. The Codes worked very well, therefore most of the later work of legislation
consisted of revision, consolidation, repeal and reenactment of the Codes already enacted.
On the whole, codification has been very beneficial to the people in the country. Through codification, law has become certain, coherent and definite to a very great extent. Gaps in the law have been filled in. Law has become understandable to the people. Uncertainty of law promotes unnecessary litigation. Codification of law made the law uniform throughout the country and thus fostered a kind of legal unity of the country in fundamental laws.
It was not the whole sphere of substantive law which could be codified during the British period. An important branch left uncodified is the law of torts. Lastly, it needs to be said that through codification English law was firmly rooted in the Indian soil. As Rankin rightly puts it, the English Common law was transferred to India not so much by reception as by codification. According to Stokes, the Indian codes are rationalised digests of English law and practice. From the very beginning, Law Commissions advocated adoption of the English law as the staple law for drafting of codes. No Indian was ever a member of the Law Commissions. Thus, English law got assimilated with the fabric of Indian law.”
Law Reforms since Independence
Law is never static. Since human society constantly undergoes changes because of socio-economic pressure, law must also change keeping pace with the social changes. As Maine points out, the sign of a progressive human society is whether law keeps on growing after its codification. A country with codified law needs to look into the statutes from time to time, revise them and re-enact them in order to bring them up-to-date.
The First Law Commission was appointed in 1956. It consisted of seven members with M.C. Setalvad as its Chairman. The Commission was asked firstly to review the system of judicial administration in all its aspects and suggest ways and means for improving it and making it speedy, effective, and less expensive; secondly to examine the Central Acts and recommend the line on which they should be amended, revised, consolidated or otherwise updated.
With regard to the first term of reference, the Commission was asked to inquire into the matters like the operation of laws with a view to eliminating unnecessary litigation, delays and expenses, the organisation of courts, recruitment of the judiciary, and the level of the bar and of legal education. With regard to the second, the principal objectives were to be: simplification of the laws, ascertainment of provisions inconsistent with the Constitution and suggestion of alterations or ommission, removal of ambiguities created by conflicting High Court’s decisions, consolidation of Acts, and suggestion or modification for implementing the directive principles of State policy.
The Commission submitted 14 reports in all, the first thirteen relates to statute revision on such subjects as tortious liability of the government, limitation, Registration, Income-tax, Contract Acts, etc., the famous 14th report relates to reform of judicial administration. The Commission came to the conclusion that we have to improve upon the existing legal system inherited from the British to suit our needs. The Commission recommended that Hindi should be the common language for all legal work throughout the country and regional languages at district and lower courts level.
The Second Commission was appointed in 1958 for a term of 3 years. It submitted eight reports (15th to 22nd). The Third and Fourth Commissions submitted sixteen reports (23rd-38th) of which 26th (Insolvency laws), 27th (C.P.C., 1908), and, 35th (capital punishment) are more notable. The Fifth Commission submitted six reports (39th-44th), the 43rd report (offences against the national security) was important. The Sixth and Seventh Commissions gave 26 reports (45th-70th), the 47th (trial and punishment of socio-economic offences), 58th (Suppression of Immoral Traffic in Women and Girls Act), and 67th (Indian Stamp Act, 1899) were important. Thirteen Law Commissions have been set up so far which have submitted more than 125 reports. The 14th Law Commission is currently working whose term is to expire on 31st August, 1997.
Though the Law Commission is not yet a constitutional or statutory body and is appointed by the Government every three years, its continuity so far has given it an almost permanent character. Many reports of the various Commissions have been legislatively implemented and some reports have been taken note of by the Supreme Court in its decisions.
There are some defects in the working of the Law Commissions. They are dominated by the retired judges and does not properly represent all sections of the legal community. Political considerations play their part at many times. The Commission rarely employs the objective research method for making its recommendations and most of the time they are based on the subjective assessment of its members. Further, in the task of law reform, wide public consultation is very important. There is a need to consult the community which is going to be affected by the proposals being made for law reform. Because of the above named factors, many of the quite important reports of the commission have not been accepted by the Government.