1

THE NATIONAL UNIVERSITY OF

ADVANCED LEGAL STUDIES

LEGAL HISTORY

TOPIC: ROLE OF THE FIRST LAW COMMISSION IN

CODIFICATION

Akhil Kumar

1124

Semester - III-B
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ACKNOWLEDGEMENT

THIS PROJECT IS NOT THE RESULT OF INDIVIDUAL EFFORT BUT OF

COLLECTIVE WISDOM, HELP AND SUPPORT.

I WOULD LIKE TO THANK OUR PROFESSOR Dr. SHEEBA S DHAR FOR HER
TIMELY SUPPORT AND ASSISTANCE.

I WOULD ALSO LIKE TO THANK THE LIBRARIANS OF NUALS FOR PROVIDING

ME WITH ADEQUATE MATERIAL FOR COMPLETING MY PROJECT.

LASTLY, I THANK THE LORD ALMIGHTY FOR HIS BLESSINGS AND GUIDANCE
FOR THE SUCCESSFUL COMPLETION OF THIS PROJECT.
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Contents
1. Introduction ………………………………………………………………….…….….4
2. Benefits of codification…………………………………………………………..........5
3. Relevant provisions of the Charter Act 1833………………………………….…........6
4. Formation of the First Law Commission……………………………………….….…..7
5. Codification………………………………………………………………….……........7
6. First Law Commission……………………………………………………………….....8
7. Lex loci report……………………………………………………………………........11
8. Reasons of Lex loci……………………………………………………………………………12
9. IPC first draft………………………………………………………………………….12
10. The Charter Act 1853……………………………………………………………….....13
11. Formation of the Second Law Commission………………………………………..….13
12. Elphinston’s code……………………………………………………………………....14
13. Conclusion……………………………………………………………………………...15
14. Bibliography……………………………………………………………………………16
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Contribution of the First Law Commission in Codification of

Laws in India
Introduction
Before analyzing the role of First Law Commission in the codification of laws in India, the first
question arises - what exactly is codification? According to Black’s Law Dictionary,
‘codification’ is the process of compiling, arranging, and systematizing the laws of a given
jurisdiction, or of a discrete branch of the law, into an ordered code. 1 India being a Common Law
nation, follows the common law system as followed in Britain. In England, the idea of
codification was forwarded, propounded and stressed by the great jurist Jeremy Bentham.
Bentham criticized common law system and demanded the real codification of laws in the 1830s.
He had a profound influence on the British Jurists in India at that time including Lord Macaulay.
According to the then existing situation in India, codification was very much required.
Consequently, the idea of codification was borrowed and applied in India.

Law Commission of India is an executive body established by an order of the Government of India.

Its major function is to work for legal reform. Its membership primarily comprises legal experts,
who are entrusted a mandate by the Government. The Commission is established for a fixed
tenure and works as an advisory body to the Ministry of Law and Justice.

In 1834, during the British regime, the Charter Act of 1833 established the first Law
Commission. After that three more Commissions were established in pre-independent India. The
first Law Commission of independent India was established in 1955 for a three-year term. Since
then nineteen more Commissions have been established. The Nineteenth Law Commission was
established on 1 September 2009 under the Chairmanship of a justice P. Venkatarama Reddy. Its
tenure has been fixed till 31 August 2012.The 20th Law Commission was established in 2013
under the Chairmanship of Judge of Supreme Court D.K Jain. Its tenure has been fixed till
2015.The terms of reference of the 20th Law Commission include review/repeal obsolete law,

1
Black’s Law Dictionary, Bryan A Garner, Ninth Edition, p 294
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examine the existing laws, revise Central acts of general importance etc. In November 2013 the
Centre appointed former Chief Justice of Delhi High Court Justice Ajit Prakash Shah as the new
chairman of the 20th Law Commission of India in place of D.K Jain who has taken over as
president National Consumer Disputes Redressal Commission. Shah will have a three-year tenure
and has been saddled with a wide terms of reference including one to examine existing laws from
the gender equality perspective and suggest necessary amendments.

Justice Balbir Singh Chauhan, a former judge of the Supreme Court was appointed Chairman of
the 21st Law Commission on 10 March. This post was lying vacant since September 2015.66-
year old Justice Chauhan is currently heading the Cauvery River Water Disputes Tribunal. One
of the key issues pending before the Law Commission is a call on amending the Indian Penal
Code (IPC) amid allegations of abuse and arbitrary use of the law.

Benefits of codification
It brings about certainty in the minds of the people as well as the jurists. Lawyers know where to
find the laws from if there is a codified statute. It saves the precious time of the courts as the
judges can apply the rules of law and come with the decisions expeditiously. It further avoids
ambiguity which in turn avoids judicial disputes. A codified law can easily be recorded and can
be of great help in the Indian context where we use the doctrine of stare decisis. It further helps
the courts to come out with precedents that are really acceptable and interpretations that are most
appropriate. Codification is a very important tool for the lawyers to analyze the existing law and
present their cases in the most appropriate manner.

Idea for an All India Legislature

The very idea of single Omni-competent legislative body in India had been mooted in 1829 by
Governor General Lord William Bentinck. On July, 14, 1829, in a letter to Judges of the Calcutta
Supreme Court, he expressed his conviction that “It is a matter of the most urgent expediency to
have in this country an authority legally competent to legislate for all classes and all places,
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subject to the political authority of honorable East India Company.” A number of reasons
prompted the Governor General to come to this conclusion. First, the state of law relating to the
jurisdiction of the royal courts was very defective. On several important points, the question of
jurisdiction of these courts was involved in doubt, “productivity of alarm to our native subjects
of embarrassment to the local governments and discredit to our country.” In some instances,
these courts had been compelled, by interpreting the law contrary to the probable intention of the
legislature, to extend their jurisdiction in a degree inconsistent with the public convenience.
Secondly, the state of the law relating to the powers of the governments and courts established in
the interior of the country under their authority was in a defective state. Thirdly, the enactments
made by the parliament whether defining the legislative powers of the governments of the
several presidencies, or for prescribing the course to be pursued by them in the executive
administration. Fourthly, the legislative powers of the several governments with respect of the
cities of Calcutta, Madras and Bombay fell short in several respects of what the exigency of the
case demanded.

What is intriguing about the colonial language of legal chaos and disorder as it applied to India
is that it was a chaos defined by absence and lack rather than by the abundance and multitude
criticized by reformers at home. Whereas Bentham had disparagingly called Blackstone's effort
to consolidate the English common law an effort "to create one large pile of rubbish.”2

Relevant provisions of the Charter Act, 1833

With the creation of the new Legislative Council, the Government at Bombay and Madras were
deprived of their law-making powers. All the legislative power in the country was thus
centralized and concentrated in one legislative council at Calcutta. The Governments at the other
presidencies were, however, authorized to submit to the Governor-General-in Council drafts or
projects of any laws or Regulations which they might think expedient and the Governor-General-
in-council was required to take these drafts and projects into consideration and to communicate
these drafts and projects into consideration and to communicate his decision thereon to the
Government proposing them. Renowned advocate of codification, Jeremy Bentham-along with

2
Quoted in Schofield, "Professing Liberal Opinions," 365
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many of his followers, including Thomas Macaulay and James Mill-openly hoped that the
codification of law in the colonies would have an impact on legal change at home. Calcutta High
Court Judge C. D. Field surmised: "The work that is thus being done in British India will
hereafter form an important page in the history of Great Britain, and its effects will, in all human
probability, re-act upon England herself.3

Formation of the First Law Commission

The first Law Commission was established during the British regime in 1834 by the Charter Act
of 1833. The origin of the first Law Commission of India lies in the diverse and often conflicting
laws prevailing in the local regions and those administered by the East India Company, which
was granted Royal Charters and also conferred powers by the various Indian rulers to administer
and oversee the conduct of the inhabitants in the local areas where the Company exercised
control. During this period of administration by the Company, two sets of laws operated in the
areas; one which applied to and in relation to British citizens and the second which applied to the
local inhabitants and aliens. However, it was for the first time in 1833 that the idea to establish a
Law Commission for a comprehensive examination of the existing legal system prevailing in the
British administered areas and its overhaul was instituted. It was formed in 1834 with Lord
Macaulay as the chairman. The other members of the commission were J M Macleod, G W
Anderson and F Millet.

Their major contribution of the law commission were the drafts of the penal code and the Lex
Loci report. These had a great impact on the evolution of many of the statutes like the Indian
Penal Code, Code of Civil procedure and the Indian Evidence Act which were a result of the
effortless work done by the succeeding law commissions in pre independent India.

Codification
3
Elizabeth Kolsky ‘codification and the Rule of Colonial difference: criminal procedures in British India’ 23 Law
and History Review 632
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Codification provided colonial authorities with a fundamentally necessary mechanism of control

over this growing community of diverse and often times criminal Europeans who violated the
existing law with impunity. It may seem odd to characterize the European presence as a "local
concern," but that is only if we equate the "local" with the "indigenous" and adopt a monolithic
vision of empire that divides colonizers from the locals, Europeans from "natives," citizens from
subjects. In fact it is precisely the unstable nature of these distinctions that led the East. India
Company into the legal and political morass for which codification promised a ready resolution. 4
The dismal condition of body of law was presented in India in the early 19 th century. The
defective system of Regulation Law, the doctrine of justice, equity and good conscience, and the
absence of fixity in the rules of law applied to such groups such as Christians, Anglo-Indians,
Jews, Parsis etc., were some of the factors responsible for the unsatisfactory state of affairs.5

First Law Commission

As envisaged by the charter of 1833, the First Law commission was appointed by the
government of India in 1835. On February 19, 1835, the Governor-General-in-council issued the
necessary commission to the following three persons: Charles Hay Cameron, John Macpherson
Macleod and George William Anderson. On May 25, 1835, Macaulay, the first Law member was
appointed as the chairperson of the commission. According to his biographer, Macaulay was
appointed president of the commission “at his own instigation.” 6 In 1837 Millet was appointed
as the fifth member of the commission and thus the commission reached its maximum strength
prescribed by the Act. In course of time, the composition of the commission underwent some
changes. Macaulay left India in 1838, and was succeeded by Amos as the Law Member, who
after some hesitation, accepted the chairmanship of the Law Commission. Amos left India in
1843 and was succeeded by Cameron as law member. The only two members who continuously
associated with the commission were Cameron and Millett. The commission continued to
function in India till 1843 when the Directors decided to wind it up. The new Legislative Council
headed by the "Law Member" was formed to pass all-India laws and an Indian Law Commission

4
The term "non-official" refers to Europeans who did not work in an official capacity for the East India Company
or, after 1857, for the Crown Government.
5
Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462
6
Trevelyan, Life and Letters of Lord Macaulay, 299 (1959)
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was created to establish one set of laws and law courts suitable for all. In 1833, Thomas
Macaulay was appointed as India's first Law Member and head of its first Law Commission. The
legal system he inherited was complex, pluralistic, and in some respects unmanageable as it
suffered from what James Fitz James Stephen would later call "vices of vagueness." On
December 10, 1834, the Court of Directors sent a long letter to the Government of India with
explicit instructions about how to proceed in accordance with the Charter Act's sweeping new
legislative provisions. They stressed that while Macaulay and the Indian Law Commissioners
were working on a complete code of laws for India, the impending entry of Englishmen in India
required immediate legislation: "the local Government should have full means of dealing with
them, not merely in extreme cases, and by a transcendental act of authority, but in the current and
ordinary exercise of its functions, and through the medium of laws carefully made and promptly
and impartially administered. On no other condition could the experiment of a free ingress of
Europeans be safely tried." The Court of Directors urged the Government of India to frame laws
according to "the just and humane design of protecting the Natives from ill treatment"
The Court of Directors explicitly instructed that British subjects should come under the
jurisdiction of the Company's civil and criminal courts in all cases except those involving capital
punishment. They emphasized the connection between European settlement and legal equality,
reasoning that since Europeans in the interior "are to become inhabitants of India, they must
share in the judicial liabilities as well as in the civil rights pertaining to that capacity." Their
conclusion would echo in debates for years to come: "There can be no equality of protection
where justice is not equally and on equal terms accessible to all. Macaulay was convinced that a
code of laws was a critical instrument in the transformation of Indian society. In his speech
before the Parliament, he boldly proclaimed: "I believe that no country ever stood so much in
need of a code of laws as India." Liberals in India argued that codification would bring order to
sub continental chaos by replacing the arbitrary and personal will of the Oriental despot with the
rational and reliable objectivity of a universal law. Rather than repeat the oppression, Macaulay
urged the British to demonstrate to the Indian how to rise up against injustice so he too, could
eventually become free: "We know that India cannot have a free Government. But she may have
the next best thing, a firm and impartial despotism.
The worst state in which she can possibly be placed is that in which the memorialists would
place her. They call on us to recognize them as a privileged order of freemen in the midst of
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slaves." Uncertainty and chaos, which were central tropes in the discourse of legal reform in
England, were also dominant motifs in discussions in India. Henry Maine declared that India was
empty of laws before the British came: "Nobody who has inquired into the matter can doubt that,
before the British Government began to legislate, India was, regard being to its moral and
material needs, a country singularly empty of law. When it came to actually doing the laborious
work of codification, colonial legislators faced a double challenge: first was the monumental task
of creating "one great and entire work symmetrical in all its parts and pervaded by one spirit."
Second was the problem of convincing their fellow Englishmen in India to subject themselves to
laws framed for a subject population, "for the conqueror to submit himself to the conquered."
The most intense phase of codification in India lasted for roughly fifty years-from the passage of
the Charter Act of 1833 to the reenactment of the Code of Criminal Procedure in 1882.
Throughout this period, there were active debates and conflicts around how codification fit in
with broader colonial priorities and practices.
The first major confrontation between European settlers and the colonial government
surrounded the attempt to extend local jurisdiction in civil matters. On February 1, 1836,
Macaulay introduced a bill into the Legislative Council that proposed to divest Europeans in the
mofussil of their exclusive appeal to the Supreme Court in civil matters. 7 The first of the so-
called "Black Acts" sought to abolish this privilege by giving European British subjects appeal to
the Sadar Diwani Adalat- the Company's chief civil court-just as other subjects in the mofussil
had. The ill was severely criticized.
Referring to the same problem, G. F. Cockburn, the officiating magistrate in Howrah, argued
that the absence of legislation regarding Europeans on European crime in the interior was a
source of great distress that amounted to "a total denial of justice" 8 The most intense phase of
codification in India lasted for roughly fifty years from the passage of the Charter Act of 1833 to
the reenactment of the Code of Criminal Procedure in 1882.72 Throughout this period, there
were active debates and conflicts around how codification fit in with broader colonial priorities
and practices. The assumption of the liberals and utilitarian was that good government could be
achieved through the implementation of good laws. As a testimony to the many ideological
contradictions that could emerge in the context of colonialism, Macaulay, whose unbridled sense

77
See the Legislative Consultations of February 1, 1836, No. 20 (IOR P/206/81).
8
See Cockburn's Letter No. 322, dated May 23, 1844,
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of English cultural superiority was infamously expressed in his "Minute on Indian Education"
here stood as a champion for racial equality. 9 Despite being severely criticized for the different
inadequacies the contributions of Lord Macaulay stands unmatched. The Indian Penal Code is
still considered to be one of the best legislations ever enacted. It still holds its ground today.

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 mofussil areas. However, there was law for those non- Hindus and
non- Mulsims, 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
Mof'ussil.

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 Lunitation in British India.
Activity of the First Law Commission declined when Lord Macaulay returned to England.

After the retirement of Macaulay from the law Membership, the Commission lost much of its
validity. There were two main reasons for its facture.

Firstly, there were too frequent changes in the supreme Govt. of the Country. There was a
general lack of direction and leadership in the Govt. of India and uncertainly regarding the
policies to be followed.

Secondly, the Governor General and Council were mostly busy with the political and military
affairs in the country and so could not find enough time to devote to the problems of legislation
and law reforms .A great uncertainty and ambiguity prevailed in civil law which determined the

9
Thomas Babington Macaulay, "Minute of 2 February 1835 on Indian Education," Macaulay,
Prose and Poetry, ed. G. M. Young (Cambridge: Harvard University Press, 1957).
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rights of Christians, Anglo- Indians and Armenians residing in the Mofussil areas of the Company's
settlements. The East India Company was already seized of the problem. So, when the First Law
Commission was established in India, this work was assigned to the Commission to frame laws
for non-Hindus and non- Muslims living in the Mofussil areas of the Country.
But the most formidable criticisms of the commission’s proposals was that the moffusils adalats,
manned by the Indian judges, were not conversant fully with the English law; nor did they have
any means to attain knowledge of it. The system of English law was vast; it was mostly
unwritten and embodied in massive judicial precedents which made the system difficult to
ascertain.

Reasons of Lex Loci

In this field, justice, equity and good conscience was to be their only guide. In Bombay some
exceptions, viz. "custom of the country" or "law of the defendant" were however, granted
remedies.
The First Law Commission was made aware of the situation in 1837. To solve this situation the
Commission proposed that an Act should be passed on the basis of the substantive law of
England, the law of the land, i.e. Lex Loci outside the Presidency Towns. This report was called
the Lex Loci report. But it was subject to certain restrictions and safeguards as follows:-

(1)It must be in conformity with Regulations of any Presidency and so much only as it suited to
the place.
(2)It was not to apply to any person professing any religion other than the Christian religion in
matters of marriage, divorce or adoption.
(3)Law and usage immemorially observed by any race etc. were to be preserved.
(4)No Act of Parliament passed since 1726 was to be applied unless the Act was especially
extended to India.
(5)Rules of Equity were to prevail over the rules of English law.
(6)Nothing in the above proposition was to apply to any Hindu or Muslims.
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IPC First Draft

The Charter of 1833 made the Governor General of Bengal the Governor General of British
India and all financial and administrative powers were centralized in the hands of Governor
General-in-Council. Lord William Benetick became the “First Governor General of British
India”. The number of the members of the Governor General’s council was again fixed to 4,
which had been reduced by the Pitt’s India Act. However, certain limits were imposed on the
functioning of the 4th member. The 4th member was NOT entitled to act as a member of the
council except for legislative purposes. The first fourth person to be appointed as the member of
the Council was Lord Thomas Macaulay.

The British parliament by charter of 1833 directed the Governor-General-in-Council to establish

a Law commission for India.
The objectives of the law commission was to inquire into the Jurisdiction, powers and rules of
the courts of justice, police establishments, existing forms of judicial procedure, nature and
operation of all kinds of laws. It was directed that the law Commission shall submit its report to
the Governor General-in-council and this report was to be placed in the British parliament.

During the process, Lord Macaulay decided that India needs a penal code and started drafting the
penal laws taking inspiration from English law, French Penal Code and American laws primarily
the Louisiana Code. It took more than 2 years to prepare the Draft Code and it was submitted to
the Governor General-in-council on October 14, 1837 and a final report on the same on
December 31, 1837.

This draft and report, however, was not accepted by the Government since civil servants
questioned the "wisdom of enacting a law which declined to draw exclusively upon one system
of law, choosing instead to borrow either from several or to rely on abstract theories of
jurisprudence........” In his "Notes on the Indian Penal Code," Macaulay spoke at great length
about "how desirable it is that our national character should stand high in the estimation of the
inhabitants of India, and how much that character would be lowered by the frequent exhibition of
Englishmen of the worst description, placed in the most degrading situations, stigmatized by
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courts of justice .." Lord Macaulay resigned in 1838 and the draft kept on minutely changing
with change in administrative officers and Indian Law Commission members.

The Charter Act, 1853

The charter Act made the law member a full-fledged member of the Governor General’s council.
He was now given the right to sit and vote at executive meetings of the council as well. It was
also realized that a small group consisting of the Governor General and the four law members
was not in a position to cope with the legislative needs of a vast territory. Thus the membership
of the council was expanded to give the council “the assistance of local knowledge and legal
experience in framing laws. As a result of this the differentiation between the Legislative
Council and Executive Council became more pronounced and marked.
The charter act of 1853 again made provisions for the appointment of a law commission.

Formation of the Second Law Commission

Second Indian Law Commission was constituted which again examined the draft IPC. This
commission presented its report in two parts, one in 1846 and the second one in 1847. Draft
Code was again revised and presented to Governor General-in-council in 1856 by John Elliot
Drinkwater Bethune and Barnes Peacock.

Even after 20 years of scrutiny and editing, the legislative council was reluctant to pass the draft
law but Indian mutiny of 1857 forced the council to finally pass it in 1860.
Finally, IPC was passed into law on October 6, 1860 and came into operation on January 1, 1862

Elphinstone Code.

This was the predecessor of Indian Penal Code. In 1827, Mountstuart Elphinstone, Governor of
Bombay enacted a series of Regulations which came to be known as the Elphinstone Code.
The Regulation had only 41 sections which defined and classified the acts and omissions which
constituted punishable offences along with the scale of punishment for each offence. The merit
of this Regulation was that it was the first attempt to codify and digest criminal law in India.
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This code was used for 30 years until the introduction of Indian Penal code 1860. In 1855, the
second Indian Law Commission submitted draft codes of Civil and Criminal Procedure, in which
they reaffirmed the principle that the special privileges enjoyed by British subjects should be
abolished: "In the system which we propose, all classes of the community will be equally
amenable to the Criminal Courts of the country." J. M. Macleod argued that as alien rulers, the
British colonizers were "free from the partial interests and passions by which they would
otherwise of necessity be swayed." He claimed that placing a native on the highest appellate
court would deprive Indians of what they have "always regarded" as a "great advantage," namely
"the benefit of the integrity and intelligence of the gentlemen sent from England to rule over
them." Macleod asserted the right of colonial rule not only in terms of racial superiority but also
in terms of the benefits of British justice.

Macleod's Minute provides an excellent example of the limits of a rule of law in a colonial
context. For while Macleod theoretically supported the effort to construct a system of legal
equality, he (and two of his colleagues) still held that Indians, steeped in their culture and
prejudices, had not yet evolved to the position of universal man and could not be trusted to
administer the law in the country's highest tribunal. This code was also shelved.
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Conclusion
Through this project I understood the need of codification of laws. It was through this project
that I understood how lucky we are with codified laws. I further analyzed the pros and cons of
Codification. The various advantages of codification are:-

a) It brings greater certainty of laws in a legal system.

b) Code of law is precise in form and therefore easier to learn.
c) Statute law is impersonal in codification.
The various disadvantages of codification are:-

1. İt enables the intending criminals to find a way out of law because of its defects.

2. İt makes the law rigid and prevents its further growth.

3. İt raises difficulties of interpretation and give rise to several meanings.

Along with these I also learnt about the contribution of the first law commission. The kind of
effort it took and the first draft of the IPC. Getting a chance to explore on the life of great jurists
like Lord Macaulay and James Fitz Stephen was a great experience.
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Bibliography
1. www.jstor.org
2. www.heinonline.org
3. M P Jain, Outlines if Indian Legal History (5th edn)
4. V. Fitzgerald, ‘Bentham and the Indian Codes’, in G. W. Keeton & G. Schwarzenberger
(eds.) Jeremy Bentham and the Law, (Steve & Sons 1949)
5. George Claus Rankin, Background to Indian Law (Cambridge University Press, 1946)
6. Lord Bryce, Studies in History and Jurisprudence,
7. Knox-Mawer, “The Indian Penal Code – a Reappraisal and Re-enactment”, (1955) 4 The
International and Comparative Law Quarterly, 548
8. Black’s Law Dictionary; Ninth edition