B.A.LL.B(H.

Title :- Codification of Indian Laws and the Law Commissions

Submitted to Submitted by
Dr. Nitu Kumari Anshu Roy
Assistant Professor Cusb2313125028
School of Law & Governance Batch 2023-28

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INTRODUCTION

Before examining the functions of First Law Commission in the codification of laws in
India, the first question remains-what exactly is codification? According toBlack's Law
Dictionary1, ‘codification 'is the method of collecting, organizing, and systematizing the
laws of a particular jurisdiction, or of a distinct branch of the law, into an organized code.
As India is a common law country, the common law systems practiced in Britain are
followed. The theory of codification was forwarded, promoted and proposed in England
by the great jurist Jeremy Bentham.Bentham opposed the structure of common law and
advocated for the true codification of laws in the 1830s. At the time, he had a tremendous
impact on British lawyers in India, including Lord Macaulay. Codification was very
much needed, according to the current situation in India at the time. The principle of
codification was then borrowed and introduced in India. The Law Commission of India is
a supreme authority set up by the Government of India by statute. Its primary task is to
operate on legal reform. Its membership consists mostly of legal scholars, who are given
an authorization by the government. The Commission is set up for a fixed term of office
and serves as an advisory body to the Ministry of Law and Justice.

The Charter Act of 18332 created the first Law Commission in 1834, under the British
rule. Three more Commissions had also subsequently been formed in pre- independent
India. In 1955, for a three-year term, the first Law Commission of independent India was
created. Nineteen further Commissions have since been created. On 1 September 2009,
the Nineteenth Law Commission was established under the Chairmanship of Justice P.
Venkatarama Reddy.

1
Black’s Law Dictionary, Bryan A Garner, Ninth Edition, p 294

2 Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462

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Its term was set until 31 August 2012. Under the chairmanship of Supreme Court Judge D.K
Jain, the 20th Law Commission was constituted in 2013. Until 2015, the tenure was set.
The 20th Law Commission's terms of the agreement involve revision / abolition ofineffective
legislation, analysis of the existing legislation, review of relevant actions of general
significance, etc. The Centre elected former Chief Justice of Delhi High Court Justice Ajit
Prakash Shah as the new Chairman of India 's 20th Law Commission in November 2013 in
place of D.K Jain, who took over as President of the Redressal Commission for National
Consumer Disputes. Shah will have a three - year timespan and has been expected to deal
with a large reference concept, including one to study current laws from the viewpoint of
gender equality and propose appropriate reforms. On 10 March, Justice Balbir Singh Chauhan,
a retired Supreme Court judge, was appointed Chairman of the 21st Law Commission. This
place has been vacant since September 2015. The Cauvery River Water Disputes Tribunal is
currently headed by Justice Chauhan. The proposal for changes to the Indian Penal Code (IPC)
despite complaints of violence and unconstitutional use of the law is one of the main concerns
pending before the Law Commission.

CHARTER ACT OF 1833

The 1833 Charter Act3 was the consequence of the Industrial Revolution in
England, which envisages that, on the principle of 'Laissez Faire,' Indians had to
work as a market for English mass manufacturing. In the basis of constitutional
concepts, the Charter Act of 1833 was thereby implemented. This was an Act of
the UK Parliament that gave the East India Company another 20 years to govern
India. The act legalized India's British colonialism and the company's colonial
possessions but was kept "in trust for his majesty" for the service of India's
government.
3 Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462

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Features of Charter Act of 1833

 The Governor-General of Bengal was made Governor-General of India and

all civil and military powers were entrusted in him. Thus, for the first time,
the Act established a government of India with jurisdiction over the entire
geographical territory held in India by the British. The first Governor-
general of India was Lord William Bentick4.
 It denied the Bombay and Madras Governors of their legislative powers.
Exclusive legislative powers for the whole British India were granted to the
Governor-General of India. The laws established under the previous acts
were referred to as legislation, while laws established under this act were
referred to as acts.
 It ended the activities of the East India Company as a commercial body,
which became a purely administrative body. It provided that the company’s
territories in India were held by it ‘in trust for His Majesty, His heirs and
successors’.
 This Act sought to create a fair market mechanism for the allocation of civil
servants and claimed that it was not appropriate to discourage Indians from
having any position, office and jobs under the Company. However, after
resistance from the Court of Directors, this provision was negated.
 This act allowed wider space to the British in the India’s administration. It
ended the British India Company's commercial activities and transformed
into the British Crown’s trustee in administering India.

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https://www.jagranjosh.com/general-knowledge/main-features-of-the-charter-act-of-1833-
1443010387-1

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FIRST LAW COMMISSION

The first Law commission was established in India in 1834 in accordance with the
provisions of the authority given by Sec. 53 of the Charter of 1833. As secretary,
the commission consisted of Lord T.B. Macually and 4 members, namely, C.H.
Cameron, G.W. Anderson, J.M. MacLeod, and F. Millet. Madras, Bombay and
Calcutta represented the first 3 representatives5, respectively. The commission
appointed for the first time in India in 1834. The Charter of 1833 put the first Law
Commission entirely under the jurisdiction of the Governor-General-in-Council,
who, from time to time, decided the subjects to be operated on and submitted by
the Committee Analysis.

Accordingly, the commission was assigned some of the following tasks :-

 Codification of penal law (Draft Penal Code) :- As the criminal

justice administrative structure was the most insufficient, the city
government instructed the commission to take the first step in fixing this
branch of legislation. A provisional penal code was drafted by the members
of the board, which they sent on 2 May 1837 to Lord Auckland, the
Governor General6.

For the following factors, it could not be enacted into a code automatically and
had to wait until 1860:'
 The substantive civil law and the law of procedure were dark and
confused.
 The illness of two members, threw the work on Macaulay.

5
Elizabeth Kolsky ‘codification and the Rule of Colonial difference: criminal procedures in British India’
23 Law and History Review 632
6
Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462

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This I.P.C draught was largely the work of Lord Macaulay, and on behalf
of that, it is named "The Code of Macaulay." The proposed code therefore
became law in the 1860, and the above code continues for the nation for the
administration of criminal justice.

 The law applicable to non-Hindus and non-Muslims in respect of

their various rights (Lex Loci Report) :- The issue of the ambiguity7
of the substantive civil law applied to Christians, Anglo-Indians and
Armenians was another significant topic to which the Commission was
expected to allocate its attention. There was no lex-loci or ground rule for
non-Hindus and non-Muslims living in areas of mofussil. There was
regulation, therefore, for those non-Hindus and non-Muslims living in
presidential towns. There was a lot of controversy about the constitutional
law applied to the Christians, Anglo-Indian and Mofussil-resident
Armenians. Thus, in 1837, the consideration of the first Law Commission
was concentrated on this issue. After careful research and thought, the first
Law Committee sent its report to the government on 31 October 1840.
Under the leadership of Andrew Amos, the First Law Commission
submitted its report and proposed that an Act should be passed making the
statutory law of England lex-loci, the law of land outside the presidential
towns in mofussil areas, applicable to anyone except Hindus and
Mohammedans8. Such limits were imposed after applying the fundamental
law of England and they are:

7
http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT%20-%204.pdf
8
Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462

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 Only those laws which appeared to be acceptable to the
circumstances existing in India were to be enforced.
 Not just to be opposed to the oversight of any presidency by English
legislation.
 The laws of the sect of which the parties belonged were to settle all
issues surrounding marriage, divorce and adoption concerning
people other than Christians.
 The equity laws as applied in England ought to circumvent
England's substantive statute.

Thus, on 22 May 1841, the first Law Committee sent a proposed legislation
to the Government. The first Law Commission's lex-loci report was
submitted to all the presidencies in India for their views. Yet it was
interrupted first by Lord Auckland's interest and, secondly, it generated
disapproval. In the meantime, the directors directed that no laws should be
passed to announce Lex-loci and the matter remained unresolved until the
2nd Commission of Law was created. Nonetheless, one section of the first
rule of the lex-loci report The Caste Disabilities Removal Act was
introduced as an authority, 1850. This principle of law had a huge influence
on Hindus and Muslims who were not expected to lose any confidence in
property now simply through their conversion to another faith.

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Contribution of the first Law Commission
While it was not possible to achieve any successful outcomes from the report of
the first Law Commission, it served a very useful function by highlighting the
complexity of the law in the region. The Commission's report effectively brought
the complicated challenges of the legal system to the attention of the citizens of
this region.

CHARTER ACT OF 1853

The Charter Act of 18539 empowered the British East India Company to retain the
territories and the revenues in India in trust for the crown not for any specified
period as preceding Charter Acts had provided but only until Parliament should
otherwise direct. This was framed on the basis of reports made by the select
committees of enquiry in 1852. Raja Ram Roy Mohan Roy England visit and
petitions of Bombay Association and Madras Native Association these two events
resulted into the Charter Act of 1853.

Features of Charter Act of 1853

 It divided10 the governor-general's council's legislative and executive duties
for the first time. It allowed for the addition of six additional members to
the legislature, called the legislative councillors. In other words, a separate
legislative council of the Governor-General was established, which became
known as the Indian (Central) Legislative Council. This council's legislative
wing acted as a mini-Parliament, following the same procedures as the
British Parliament. Therefore, law was regarded as a special function of the
government for the first time, involving special equipment and special
procedures.
9
https://www.jagranjosh.com/general-knowledge/charter-act-of-1853-main-features-1443010549-1
10
Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462

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 It implemented a transparent method of training and recruiting of civil
servants for competition. The Covenant civil service was thereby therefore
given up to the Indians. Consequently, in 1854, the Macaulay Committee
(the Indian Civil Service Committee) was appointed.
 It extended the Company’s rule and allowed it to retain the possession of
Indian territories on trust for the British Crown. But, it did not specify any
particular period, unlike the previous Charters. This was a clear indication
that the Company’s rule could be terminated at any time the Parliament
liked.
 It implemented local representation in the Indian (Central) Legislative
Council for the first time. The state (provincial) governments of Madras,
Bombay, Bengal and Agra named four members of the six new legislative
members of the Governor-General's Council.

SECOND LAW COMMISSION

The second law, under the terms of the Charter Act of 1853, on 29 November
1853, a committee was established in England. The second category the law
committee consisted of the following persons: Sir Edward Rayan, Robert Lowe,
Lord Sherbooke, J.M. MacLeod, V.H. Cameron, and T.F. Ellis11. The Commission
held its sessions in London until the middle of 1856 and presented four reports, the
second one presented in February 1855, which was the most relevant as it dealt
with the causes for India's codification of substantive legislation.

https://www.slideshare.net/gagandeep162/second-law-comission-69491741#:~:text=Introduction%3A
11

%2D%20The%20second%20law,Macleod%20and%20T%20.

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Task Assigned to second Law commission
The task entrusted to the commission was to examine and consider the
recommendations of the first Law commission and enactments proposed by it, for
the reform of the judicial establishment's, judicial procedure and laws of India.
The life of the second Law commission was fixed for three years, which was to
expire in 1856. Section 28 of the Charter Act, 1853 authorized Her Majesty to
direct the commission to submit reports on these Matters and every such report
was to be submitted within a period of three years after the passing of this Act.

Reports submitted during Second Law Commission

The second Law commission submitted four reports to the Indian Government12.
The first report was submitted in 1855, second, third and fourth reports were
submitted in 1856. In the first report, the Commission proposed a reform
framework for the courts and court hearings. In its second report , the Commission
complied with the first Law Committee's lex-loci report. It proposed that for
people in the mofussil who had no law of their own, there must be a substantive
civil law. The Second Law Commission expressed the strong opinion that no
effort should be made to codify the Hindus and Mohammedans' personal laws
because any such effort "would appear to hinder rather than facilitate the gradual
improvement of the population state." In third and fourth reports, the commission
submitted a plan for the amalgamation of the Supreme Court and Sadar courts and
a uniform civil code of civil and criminal procedure applicable both to the High
Court's to be formed by that amalgamation.

12
https://www.slideshare.net/gagandeep162/second-law-comission-69491741

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Achievements of the Second Law Commission
The Commission's proposals concluded in major laws such as the penal code
suggested by Macaulay was taken up, amended and eventually enacted in the year
1860, codes of civil procedure and criminal procedure were enacted in 1859 and
1861, respectively, and the draught of the Restriction Statute as submitted by the
first Law Commission was also taken up and passed into law in 1859.

THIRD LAW COMMISSION

The Third Law Commission was formed on 2 December 1861 under the
Chairmanship of Lord Romilly's13 presidency. The Chairman of this commission
was Mr. Justice J. L. Kapur. The commission was made up of six individuals- Sir
W. Erle, Lord Sherbooke, Sir Edward Rayan, Robert Lowe, J.M. MacLeod and J.
Wills. Later on, Erle and Wills retired to their place in W.M. took over the
commission. John Henderson and James and on Lord Lush succeeded him after
the death of Henderson. This phase became a period of "The Golden Age of
Codification."

Task Fixed for Third Law Commission

Firstly, the third Law Commission14 was appointed with the purpose “to prepare
for India a body of substantive law and in preparing the same law of England
should be used as a basis, but which once enacted should itself be the law of India
on the subject it embraced”. Secondly, the third commission of law was also
responsible for the task of Consideration and publication of all matters relating to
the reforms of the India's laws as the Secy might apply to them by the state.

13
http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT%20-%204.pdf
14
http://www.lawcommissionofindia.nic.in/main.htm

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Thirdly, the Commission was asked to report on the results of its work on one
branch of civil law prior to the start of its deliberations on another branch, as the
proposal for a successive report on the different departments of law would
significantly encourage the required steps to be taken in India to give effect to the
Commission's recommendations.

Achievement of Third Law Commission

In a brief period of nine years, the Third Law Commission submitted a report of
six significant pieces of legislation, which was a remarkable accomplishment. But
because of the tense relationship between the commission and the Government of
India, the commission sadly came to an end on a miserable note in 1870

FOURTH LAW COMMISSION

While several major branches of law have been codified to date, some were left
un-codified. Thus, in 1875 Secy, Lord Salisbury15 in State for India drew the
Government of India's attention to the question of India. The appointment of a law
commission is desperately required. Subsequently, in 1877, the Government of
India, though approving Lord Salisbury's recommendations, Dr. Whitely Strokes
was commissioned to draught bills dealing with Lord and Servant, Private Trusts,
Easement, Alluvium and Dilution, Act on Negotiable Instruments and Land
Transfer. Thus, on Feb 11th, these bills were forwarded to the Fourth Law
Commission in 1879 for reference to report and consideration. On the 15th
November 1879, the commission submitted its report.

15
https://www.drishtiias.com/important-institutions/drishti-specials-important-institutions-national-
institutions/law-commission-of-india-1

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Reports submitted during Fourth Law Commission

In its only report, the Fourth Law Commission16 made the some of following
recommendations which are the mechanism of substantive law codification should
proceed. The English law in India should be made the basis for future codes and
the content should be recast. It is important to bear in mind the eventual
combination of such divisions as part of a single and general code. It is worth
codifying the statute of actionable wrongs. Legislative uniformity should be
targeted, but local and special customs should be handled with great regard. Native
patterns and modes of thinking should be given due attention in re-casting English
content. Codes should be broad, simple and readily intelligible in terms of form
and proposal. The legislature could then comply with property legislation in its
entirety. At present, the current statute of persons cannot be expanded by
codification, so where it is appropriate to expand the operation of the European
British Minors Act, 1874. For a systematic section on perception, planning should
be made. The legislation relating to the Private Trusts, Easement, Alluvion and
Dilution, Master and Servant, Negotiable Instruments and Land Transfer Act
should be codified and, according to proposed improvements, bills already drafted
should be signed into law. The rules of Insurance, Carries and Lien should be
codified at the same time.

Thus, on the advice of the constitution, the legislative council of India in 1881 and
1881, the Commission passed codes relating to negotiable devices and those on
Trusts, Land Sale and Easement in 1882. Though Indian civil Wrongs Bill, civil
wrong law (Torts) was not codified. This region has been planned and remains un-
codified and largely protected until today by Torts' English Statute. Thus, with
fourth law commission came to an end the phase of law commission's and no more
law commissions were appointed thereafter during British period.

16
http://www.commonlii.org/in/journals/NLUDLRS/2010/5.pdf

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CONCLUSION

The Law Commission of India is neither a legislative agency nor a

regulatory agency; it is an administrative body set up by order of the
Government of India. Its primary task is to operate on legal reforms. As
India is a common law country, the common law systems practiced in
Britain are followed. The theory of codification was forwarded, promoted
and proposed in England by the great jurist Jeremy Bentham. Bentham
opposed the structure of common law and advocated for the true
codification of laws in the 1830s. The Commission is set up for a fixed term
of office and serves as an advisory body to the Ministry of Law and Justice.
Its membership mostly includes legal professionals. The Law Commission
recognizes legislation that are not in accordance with the modern
environment and legislation that need reform in an age of globalisation and
continuously changing cultures. It recommends adequate initiatives in the
field of law for the rapid resolution of citizens' complaints and takes all
possible action to allow the disadvantaged benefit from the judicial process.
In recent years, its presence has become much more important.

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BIBLIOGRAPHY

 Codification of law, 462, 15 outlines of Indian Legal History, MP Jain

 Black’s Law Dictionary, Bryan A Garner, Ninth Edition
 https://www.jagranjosh.com/general-knowledge/main-features-of-the-
charter-act-of-1833-1443010387-1
 Elizabeth Kolsky ‘codification and the Rule of Colonial difference:
criminal procedures in British India’ 23 Law and History Review 632
 https://www.slideshare.net/gagandeep162/second-law-comission-69491741.

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