Appointment and works of the First Law Commission
In pursuance of S. 53 of the Charter Act, 1833 the First Law Commission was appointed in 1834. Lord Macaulay, under the Chairmanship of law member of the Council of Governor-General. The Commission consisted of Lord Macaulay, J.M. Macleod, C.W. Anderson and EM. Millet. The last three named gentlemen were civil servants of the Presidencies and Lord Macaulay was the Law member of the Executive Council of the Governor-General of India. The commission met in 1834 in India. The Commission was required to codify criminal law, to draft a law of Procedure and Pleadings and to ascertain the position of law for Anglo-Indians. The members of this Commission, under the instruction from the local Governments, took up the first job of preparing a draft of Indian Penal Code. That was obviously due to the fact that the system of administration of criminal justice was considered to be most unsatisfactory. The members of the Commission submitted their draft Penal Code on May 2, 1837.
Report of the First Law Commission
The First Law Commission submitted the following drafts and bills for the codification of uniform law in India
1. Draft of Indian Penal Code – The Law Commission reported to Governor-General on 14th October 1837, as : “It appears to us highly desirable that, if the Code shall be adopted, all those Penal Laws which the Indian Legislature may from time to time find it necessary to pass should be framed in such a manner as to fit into the Code. Their language ought to be that of Code. No words ought to be used in any other sense than in which it is used in the Code. The very part of the Code in which the Law is to be inserted ought to be indicated. If the new law rescinds or modifies any provision of the Code that provision ought to be indicated.”
The First law Commission while framing the draft of the Indian Penal Code, had in view the necessity of giving the correct definitions of the technical terms. The principle of the Commission was, “uniformity where you can have it – Diversity where you must have it; but in all the cases certainty.”
The device which Commission adopted in framing the Code was Macaulay’s invention of adding authoritative illustrations to the enacting test of a code, which is called “the mechanics of lawmaking” which facilitated understanding the law and served the purpose of its defence.
The draft of Penal Code which became the Indian Penal Code was not a digest of any existing system of law. The existing system was not sufficient and correct upon which they could base their foundations. The Commission found that all the penal laws, were of foreign origin introduced by the conquerors. It derived suggestions from French Penal Code and Livingston’s Code Louisiana.
2. Lex Loci Report – Lex Loci means law of the land. There was no lex loci or law of the land for non-Hindus and non-Muslims residing in Mufussil areas. However, there was law for those non-Hindus and non-Muslims who were inhabiting in Presidency towns. There was a lot of uncertainty with regard to the civil law applicable to the Christians, Anglo Indians, and Armenians residing in the Mofussil. The attention of the First Law Commission was directed to this problem in 1837.
In order to solve the problem, the Commission proposed that the substantive law of England should be made the law of the Christians, Anglo-Indians and Armenians living outside the Presidency towns. But certain restrictions were imposed while applying the substantive law of England. Only those laws were to be applied which were to be suitable to the conditions prevailing in India. The English Law was not to be opposed to any Regulation of any Presidency. Restrictions were also to be imposed with regard to the application of the English law in matters of marriage, divorce and adoption. Rules of equity as applied in England were to override the substantive law of England.
3. Draft of Civil Procedure and Limitation Bills – The Commission recommended various changes in the procedure in civil suits and drafted a Code of Civil Procedure in 1842, and prepared a draft Code of the Law of Limitation in British India. Activity of the First Law Commission declined when Lord Macaulay returned to England.
4. Other Digests and Guides – While the draft Codes prepared by the First Law Commission were being discussed, the several Digest and Guides were published in India, some of them are as under
(i) A Guide to the Civil Law of the Presidency of Fort Wiliam;
(ii) Magistrate’s Guide for Bengal;
(iii) Campbell’s Collection of the Regulations of the Madras Presidency;
(iv) Beaufort’s Digest of Criminal Law of the Presidency of Fort William;
(v) Bayne’s Criminal Law of the Madras Presidency;
(vi) Clarke’s Regulations of the Government of Fort St. George;
(vii) Fenwick’s Index to the Civil Law of the Presidency of Fort William;
(viii) Harrison’s Code of the Bombay Regulation;
Contribution of the First Law Commission
The Commission prepared the draft on the above subjects but could not impress the Government to get them passed. It has been rightly said by Kaye that the Commission, “left behind it only an impression that it was a failure as costly as it was complete.” Most of the reasons of the ineffectiveness were related to the misunderstanding between the Government and the Commission
Lex Loci report and its influence on the development of law in India
The most important thing which the Law Commission did was the lex loci report in which it proposed an Act making a declaration that except Hindus and Muslims all others in the 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. On this assumption the Commission submitted a draft of lex loci Act.
The main provisions of the lex loci Act in nut shell are as under –
1. The English law as suited to the Indian conditions and as far as it is not contrary to any Regulations, be made lex loci in Mofussil.
2. Immemorial customs and usages of the people were to be preserved.
3. No law of Parliament of England was to extend to India if passed after 1726.
4. “Equity, justice and good conscience” was to be interpreted in English terms.
5. The English law of Property was to apply to Mofussil.
6. Appeal in all cases coming under lex loci act be made to the Supreme Court instead of to Sadar Diwani Adalat.
7. Status quo was to be maintained in those matters which arose before the lex loci Act.
8. Nothing in lex loci Act was to apply to Hindus and Mohammedans or their property except that so much of those laws which resulted in forfeiture of property by conversion to another religion was to cease as law.
9. Where in case of Hindus and Muslims the provision of forfeiture etc. was likely to outrage the religious feelings the Court could exercise discretion.
10. Nothing in the Act was to apply to non-Christians in matters of marriage divorce or adoption.
Since the conclusions drawn by the Commission that English Law was already the law of the Mofussil itself was wrong, therefore, the entire lex loci report received such a stiff opposition from the Government that no action could be taken on it. The Commission was ready to prepare even a digest of English Law for India yet the Government did not accept its recommendations. The acceptance of the report would have been a far reaching step which was never acceptable to the people nor it was practically possible to follow the recommendations. However, one of the recommendations of the Commission was accepted in 1850. The Caste Disabilities Removal Act was passed in that year which abrogated the Hindu and the Mohammedan law to the extent to which it affected any right of inheritance on the ground that a person had renounced his religion or caste.
Q.:- Discuss the recommendations made by First Law Commission in India and assess its work.
Q.:- Describe the contribution of First Law Commission with specific mention of Lex Loci Report and its influence on the development of law in India.