JAMIA MILIA ISLAMIA

Name :- Hritikka Kak

Roll Number :- 24
BA.LLB. Hons. ( Regular )
3rd Semester (2nd Year)

Title :- Codification of Indian Laws and the Law

Commissions: The Charter Act of 1833-First Law
Commission- Charter Act of 1853-Second, Third
& Fourth Law Commission

Page 1 of 12
 CODIFICATION OF INDIAN LAWS AND
THE LAW COMMISSIONS
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 to Black'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. 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

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

Page 2 of 12
revision / abolition of ineffective 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.

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

3
Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462

Page 3 of 12
 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.

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 :-
4
https://www.jagranjosh.com/general-knowledge/main-features-of-the-charter-act-of-1833-
1443010387-1
5
Elizabeth Kolsky ‘codification and the Rule of Colonial difference: criminal procedures in British India’
23 Law and History Review 632

Page 4 of 12
  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 Genera6l. 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.
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

6
Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462
7
http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT%20-%204.pdf

Page 5 of 12
 anyone except Hindus and Mohammedans8. Such limits were imposed after
applying the fundamental law of England and they are:
 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.

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.

8
Codification of law,462, 15 outlines of Indian Legal History, MP Jain, p462

Page 6 of 12
 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.
 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

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

Page 7 of 12
 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.

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,

11
https://www.slideshare.net/gagandeep162/second-law-comission-
69491741#:~:text=Introduction%3A%2D%20The%20second%20law,Macleod%20and%20T%20.
12
https://www.slideshare.net/gagandeep162/second-law-comission-69491741

Page 8 of 12
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.

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

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

Page 9 of 12
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. 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

Page 10 of 12
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

Page 11 of 12
 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. 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.

Page 12 of 12