Lex Loci Report

The most important thing which the First Law Commission did was the lex loci report in which it proposed an Act making a declaration that except Hindus and Muslims all others (such as Christians, Anglo-Indians, Parsees, etc.) in mofussil should be put under English substantive law as much as it suited to Indian conditions. The Commission asserted that the English substantive law was already the law of the land (lex loci) in mofussil and there was nothing new if it was so declared. It argued that English law had already been introduced in British India as the general law.

The Commission emphasized the need for a lex loci in the country. It stated that in every country there ought to be a law which is prima facie applicable to every person in it. The number of classes which, in any particular country, should be exempted from this law must always depend upon the circumstances of that country. The Commission took the view that the Hindu and Muslim laws were “so interwoven with religion” that these laws could properly be the laws only of the persons belonging to these religions.

The main provisions of the Lex Loci Act are as follows:-

(i) The English law as suited to Indian conditions and as far as it is not contrary to any Regulations, be made lex loci in British India.

(ii) Immemorial customs and usages of the people should be preserved.

(iii) Nothing in the Act was to apply to non-Christians in matters of marriage, divorce or adoption.

(iv)”Justice, equity and good conscience” should be interpreted in terms of English law.

(v) Appeal in all cases coming under lex loci Act be made to the Supreme Court instead of to Sadar Diwani Adalat.

(vi) Status quo was to be maintained in matters which arose before the lex loci Act.

(vii) Nothing in the Act was to apply to a Hindu or a Muslim, or to his property, unless he had renounced or changed his religion. Thus so much of the Hindu and Muslim law as inflicted forfeiture of rights/property on renouncement of religion was to cease to have effect (Caste Disabilities Removal Act, 1850).

(viii) The English law of property was to apply to mofussil.

The lex loci report received such a strong opposition from the Government that no action could be taken on it. As much as the report provided for clearing the doubt and uncertainty which shrouded the law to be applied to non-Hindus/Muslims, the proposals were welcome. However, the line of reasoning adopted by the Commission was incorrect. There was no general introduction of English law in mofussil and whatever English law was administered there, it was under the guise of justice, equity and good conscience. The Commission’s proposals appear to all to change fundamentally the trend that had been going on in mofussil for so long, namely, to keep it immune from the English law as far as possible. Further, the law at the time was personal rather then territorial. There was no lex loci in the sense of a law applying to all irrespective of religion or race.

Leave a Comment