Codification:

In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas,
usually by subject, forming a legal code, i.e. a codex (book) of law.
Codification is one of the defining features of civil law jurisdictions. In common law systems, such as that
of English law, codification is the process of converting and consolidating judge-made law into statute law.

Ancient Sumer's Code of Ur-Nammu was compiled circa 2050–1230 BC, and is the earliest known

surviving civil code. Three centuries later, the Babylonian king Hammurabi enacted the set of laws named
after him.
Besides religious laws such as the Torah, important codifications were developed in the ancient Roman
Empire, with the compilations of the Lex Duodecim Tabularum and much later the Corpus Juris Civilis.
These codified laws were the exceptions rather than the rule, however, as during much of ancient
times Roman laws were left mostly uncodified.
The first permanent system of codified laws could be found in imperial China , with the compilation of
the Tang Code in AD 624. This formed the basis of the Chinese criminal code, which was eventually
replaced by the Great Qing Legal Code, which was in turn abolished in 1912 following the Xinhai
Revolution and the establishment of the Republic of China. The new laws of the Republic of China were
inspired by the German codified work, the Bürgerliches Gesetzbuch. A very influential example in Europe
was the French Napoleonic code of 1804.
Another early system of laws is Hindu law framed by Manu and called as Manu Smriti, dating back to the
2nd century BC. The use of civil codes in Islamic Sharia law began with the Ottoman Empire in the 16th
century AD.
It means, generally, that the courts have made decisions which have, over time, had the combined effect of
“creating” or “expanding" or “shaping" the legal rights and duties of people. But since each court decision
can “bend" it a little more - further or backward - there is no ability for attorneys to guide their clients, or
figure out if their case is good or bad. So, at that point, the legislature will often step in. The examiner what
the current “rule of law" is as it has evolved by judicial decisions … and they write it up into various
paragraphs of a statute. Often it will be a general substance or few that last or the basic law. Then they create
sub paragraphs that make certain exceptions that some court decisions created along the way, etc.
Ultimately, they pass a statute into laws and it provides a more stable declaration of the law. Now, a statute
(or many of them) are what make up the laws which are often referred to topically as Codes, e.g. the Judicial
Code, the Crimes Code, the Divorce Code, etc. So changing judicial, decisions laws into statutory black and
white laws is referred to as codification.

INTRODUCTION

The Charter Act 1833 which was enacted by the British Parliament provided for the establishment of a Law
Commission for consolidation and codification of Indian Laws. The said Act provided for the addition of a
fourth ordinary Member to the Governor General in Council for India who was to be a legal expert in the
making of laws. Lord Macaulay was appointed as the fourth ordinary Member and was entitled to participate
in the meetings of the Governor General in Council for making of laws.
In 1835, Lord Macaulay was appointed as Chairman of the First Law Commission. Sir James Stephen was
appointed as a Law Member in place of Lord Macaulay. At that point of time a separate department known
as the Legislative Department was functioning as a sub-division of the Home Department managed by an
Assistant Secretary who prepared the draft Bills needed for legislations.
During 1869, it was felt that so important duty ought to be entrusted to a distinct department and thus a
separate department known as the Legislative Department was constituted. After the constitution of the
Legislative Department, proposals for legislations were initiated by the concerned Department dealing with
the subject matter and thereafter the Legislative Department used to take charge of the Bill. The Secretary to
the Legislative Department was also Secretary to the Council of the Viceroy for the purpose of making laws.
He and the Law Member drafted all the Bills which were placed before the Council. Due to the labours of
the Law Commission many important Acts were enacted during the latter part of the Nineteenth Century. To
name a few, the Indian Penal Code which is still in force was the product of the original work of Lord
Macaulay. Similarly, the draft contained in the First Report of the Third Law Commission formed the basis
of the Indian Succession Act passed by the Governor General and Council under the guidance of Sir Henry
Maine. It codified the law relating to the effect of death and marriage upon succession to property and also
the law relating to Bills. The Second Report (1866) contained a draft Contract Bill which became law after
revision by Sir James Stephen in 1872.
Similarly even Ashoka and Akbar developed laws which were to be followed by the subjects but they never
mandated the people to follow these laws unless their customs were such so as to lead to communal
disharmony. Thus, we see that the Indians had complete freedom to practice any norm, practice, custom etc.
that they pleased as long as harmony was maintained.

When the British stayed here as traders they did not interfere into these local customs and practices and were
least concerned about it. When they came to the sub-continent the political power was weak as the power of
the Mughal Empire in the center was crippling, thus making it easier for the British to gain political control
and make a strong foothold in India. The English did gain the central control but their supremacy would only
be recognized by the people if they would resolve disputes, which encouraged the British to develop judicial
system in India. The law provided the British nothing less than a comprehensive ideology through which to
rule. 

The essential reason for the Criminal Procedure Code, in addition to other things, is to guarantee a
reasonable trial where none of the privileges of the denounced are imperiled nor are they outlandishly
supported. Besides, to guarantee that the judge concerned hears all gatherings International Journal of Pure
and Applied Mathematics Volume 120 No. 5 2018, 4495-4504 ISSN: 1314-3395 (on-line version) url:
http://www.acadpubl.eu/hub/ Special Issue http://www.acadpubl.eu/hub/ 4495 who are applicable to the
trial, their quality at the trial is clearly imperative. That is the reason a whole section of the Code worries
about the way toward guaranteeing the participation of any individual worried about the case, including a
blamed or an observer, through different measures, viz. summons, warrant, announcement and connection of
property. The last two are utilized when the previous don't yield agreeable outcomes. Regardless of the vow
of fairness, enactment and the acts of white judges, juries and police put most Europeans exempt from the
rules that everyone else follows, actually enabling them to escape with kill. The inability to control these
raucous whites uncovered how the heaviness of race and the goals of order imbalanced the sizes of pioneer
equity 1 (Elizabeth Kolsky, 2011). Following the birthplaces of the present criminal argument to late
nineteenth and mid twentieth-century discusses about law change, it contends that the frameworks of
individual law in task in India today are the result recently frontier endeavors by Hindu and Muslim male
reformers to adjust their lawful frameworks in ways that served their own particular advantages (Eleanor
Newbigin, 2013). The British Reform abolished the Hindu and Muslim Law Officers in the various Courts
of India. The Codification of Law and consolidation of the Court System was further intensified in the
quarter century after the takeover of India by the British Crown. While the law applied in the courts before
1860 was extremely varied, by 1882, "there was virtually complete codification of all fields of commercial,
criminal and procedural law", accepting the Personal Laws of Hindus and Muslims 2 (Bernard Cohn, 1997).
The East India Company had directed a majority of lawful sources, including provincial controls, Acts of
Parliament, Hindu and Muslim personal law, Islamic criminal law, and the broadly translated Roman
standard of "justice, equity and good conscience ." It was Macaulay's mean to convey request to this clumsy
and befuddling framework. Around a similar time that Macaulay set his hand to classify the Indian law, the
Royal Commission on the Criminal Law likewise started its survey of the English penal law 3 (Elizabeth
Kolsky, 2013). The aim of this paper to analyze and know about the criminal 1 Kolsky, Elizabeth, Colonial
justice in British India, Cambridge university, Vol 17, 2011 2 Cohn, Bernard, British Law and Judiciary,
IBDI Journals, Vol 13(2), 1997. 3 Kolsky, Elizabeth, Procedure in the Criminal courts of British India,
Cambridge university, vol 4(2), 2013. International Journal of Pure and Applied Mathematics Special Issue
4496 procedure in British India ( after 1857) as it is the base for the present criminal procedure.

The Charter Act of 1833

Charter Act of 1833 was the outcome of Industrial Revolution in England which envisages that
Indian’s had to function as market for the English mass production on the basis of ‘Laissez Faire’.
This act replaced the office of Governor-General of Bengal with the Governor-General of India.

Main features of The Charter Act of 1833

Charter Act of 1833 was the outcome of Industrial Revolution in England which envisages that Indian’s had
to function as market for the English mass production on the basis of ‘Laissez Faire’. Thus the Charter act of
1833 was institutionalised on basis of liberal concept. This was an Act of the Parliament of the United
Kingdom that gave East India Company to rule India for another 20 years. The act legalized the British
colonization of India and the territorial possessions of the company but were held “in trust for his majesty”
for the service of Government of India.

Features of Charter Act

1. It made the Governor-General of Bengal as the Governor-General of India and vested in him all civil and
military powers. Thus, the act created, for the first time, a Government of India having authority over the
entire territorial area possessed by the British in India. Lord William Bentick was the first governor-general
of India.

2. It deprived the governor of Bombay and Madras of their legislative powers. The Governor-General of
India was given exclusive legislative powers for the entire British India. The laws made under the previous
acts were called as Regulations while laws made under this act were called as Acts.

3. 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’.

4. This Act attempted to introduce a system of open competition for selection of civil servants, and stated
that the Indians should not be debarred from holding any place, office and employment under the Company.
However, this provision was negated after opposition from the Court of Directors.

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.

Provision of the Charter Act of 1833

India became a British colony

 The Governor-General of Bengal was re-designated as the Governor-General of India. This made
Lord William Bentinck the first Governor-General of India.
 Thus, the country’s administration was unified under one control.
 The Governors of Bombay and Madras lost their legislative powers.
 The Governor-General had legislative powers over entire British India.
 The Governor-General in council had the authority to amend, repeal or alter any law pertaining to all
people and places in British Indian territories whether British, foreign or Indian native.
 The civil and military affairs of the company were controlled by the Governor-General in council.
 The Governor-General’s council was to have four members. The fourth member had limited powers
only.
 For the first time, the Governor-General’s government was called Government of India and the
council was called India Council.

Indian Law Commission

 The act mandated that any law made in India was to be put before the British Parliament and was to
be called ‘Act’.
 As per the act, an Indian Law Commission was established.
 The first Law Commission had Lord Macaulay as its chairman.
 It sought to codify all Indian law.

Split in Bengal Presidency

 The act provided for the Presidency of Bengal to be divided into the Presidencies of Agra and Fort
William.
 But this never came into effect.

Indians in Government service

 This was the first act that gave permission for Indians to have a share in the country’s administration.
 It stated that merit should be the basis of employment to government service and not birth, colour,
religion or race.

Slavery

 The act provided for the mitigation of slavery existing in India at that time.
 The British Parliament abolished slavery in Britain and all its possessions in 1833.
Tilt towards Christianity

 Since the number of British residents in the country was increasing, the act allowed for having three
Bishops in India.
 It also sought to regulate the establishment of Christian institutions in India.

Significance of the Charter Act of 1833:

 It was the first step in the centralisation of India’s administration.

 The ending of the East India Company’s commercial activities and making it into the British
Crown’s trustee in administering India.
 Codification of laws under Macaulay.
 Provision for Indians in government service.
 Separation of the executive and the legislative functions of the council.

Disadvantages of Codification in Law

 It enables intending criminals to find a way out of law because of its defects.
 It makes the law rigid and prevents its further growth.
 Codes are inadequate, as they are not capable of dealing with all perspective cases.
 It raises difficulties of interpretation and give rise to several meanings

What Is Codified Law?

You are probably familiar with the concept of laws. For example, you know that if you drive your car down
the wrong side of the highway, you are breaking the law. This makes sense, because it is very dangerous to
drive the wrong way down the highway. But, how does a common sense idea or rule become a formal law
that everyone is expected to follow? And, who decides what rules should become laws?
Codified laws refer to the rules and regulations that have been collected, restated, and written down for the
purpose of providing civil order to a society. This process of collecting, restating, and writing down laws is
known as codification. Codified laws are sometimes referred to as statutes, codes, acts, bills, or simply laws.

Entry of British in India

When the British came to India in 1600s they saw a society which was not governed by any formal laws like
the Bible (which was considered to be a divine source of power, law and rules for them) which governed the
English; but a heterogeneous society where every individual followed his or her own custom and tradition
which were varied. There was no uniformity in the practices that were followed by the people. The concept
of formal law like being governed by a uniform system of law or a constitution was an alien concept to the
Indians. Kautilya in Arthashastra recognizes existence of four sources of law which are ‘dharma’
(scriptures), ‘vyavahara’ (mutual agreement), ‘charitra’ (local custom) and ‘rajashasana’ (state
decree). Kautilya says that these were in ascending order and that the state order prevailed above all the
scriptures and customary practices, when a conflict would arise. Similarly even Ashoka and Akbar
developed laws which were to be followed by the subjects but they never mandated the people to follow
these laws unless their customs were such so as to lead to communal disharmony. Thus, we see that the
Indians had complete freedom to practice any norm, practice, custom etc. that they pleased as long as
harmony was maintained.

When the British stayed here as traders they did not interfere into these local customs and practices and were
least concerned about it. When they came to the sub-continent the political power was weak as the power of
the Mughal Empire in the centre was crippling, thus making it easier for the British to gain political control
and make a strong foothold in India. The English did gain the central control but their supremacy would only
be recognized by the people if they would resolve disputes, which encouraged the British to develop judicial
system in India. The law provided the British nothing less than a comprehensive ideology through which to
rule. 

The ideology which was used by the British was as Edward Said talks about in his path breaking book
“Orientalism”. They made the Indians believe that they were barbaric, uncivilized, in darkness and backward
and it was their (British) duty to make the Indians civilized, modern, and progressive and bring them
enlightenment. There was cultural hegemony which existed and the British believed that they could improve
the Indian situation. The image of the cruel and superstitious natives who needed Christian salvation was
deliberately constructed by the Evangelists.  

Informal Institutions in early India and path dependence

Initially the British tried administering the practices, norms, culture and traditions that were prevalent in the
Indian society, but as there was lack of uniformity as everyone followed different customs and traditions the
British found the administration to be difficult. James Mill and Thomas Babington Macaulay wanted to
codify the laws in India and wanted to conduct an experiment and see how codified laws worked. They
wanted to make the laws based on the principal of ‘utilitarianism’ and wanted a code which was “symmetric
in all parts”  and which would bring in uniformity. Thus, began India’s shift from an informal institution
where interactions between parties were based on social norms and customs to formal institutions like
codified laws.

The natives in India for centuries had been following their own local “customs and usages”.  The Indians had
been travelling on a path where they were not mandated to follow a particular law or text and were free to
choose the norm or custom that they wanted to follow. Since there were no restrictions on them the Indians
had complete freedom. The Indians had been on this path for a long time and thus there was “path
dependency”. This means that since the Indians had been traversing this path for a long time taking an
alternative path would be difficult and there would be a high price for changing the path. Another definition
of path dependency is that which states that history matters and this affects the possible outcomes in
future.  The change in path in future becomes difficult because of the “increasing returns” or “positive
feedback” that is received because it has been being followed for a long period of time by large number of
people.

With the idea of the British to bring in formal rules and to codify laws there was a shift in the institution
from informal to formal. Shift in the criminal sphere was not difficult as criminal law was universal and was
to be applied universally on everyone. Warren Hastings agreed with this codification, but objected to the
codification of the personal laws of the Indians as he knew it was dangerous and wanted to stay away from
it. Since the British could not impose their ideology  Hastings decided that there would be Indian officials
like pandits and maulvis who would help the English judges take decision. Since, the English judges were
unaware of the Indian jurisprudence, this help by the officials was essential for them to decide upon cases.

Reasons leading to shift in institution from informal to formal

The court wanted specific solutions to complex issues. The colonizers did not pay any importance to the
existing diversity and would ask questions of general rule and the pandits would answer keeping dharma in
mind.  The answers which the British got were never in tandem with the questions asked, as the pandits and
maulvis had never faced such a situation before and the answers differed from one pandit to the other; and
these answers were then accepted as ‘general rule of law’ and were imposed upon the people. Different
pandits came to different conclusions even when the circumstances were same because they would refer to
different texts or scriptures as there was complete freedom to choose the custom that people wanted to. For
example if an Englishman would ask how to turn into a Hindu, the method or the procedure told by different
pandits would be different as there was no one particular way of doing it. Thus, there was no uniformity.

The pandits in India were not an organization like the Pope of the church. The pandits did not interfere in the
political sphere at all; unlike the church where the Pope would coronate the King and then only could he
rule. There were varied customs prevailing and every pandit would interpret the text in a different way as
there was no single interpretation like there was of the Bible. A well – trained pandit would be in a position
to cite numerous versus on particular topics or only those that made a particular point useful to a specific
scenario or indeed he might express his own opinion on the matter  but these differed greatly from each
other. The customs would change from place to place and the British were baffled at this dissimilar existence
of customs. Thus, there was no uniformity and certainty in the decisions given by the pandits and the
maulvis. This led to a mistrust of them by the British and hence they decided to codify the law. Another
reason for codification of the laws were that they believed that there was popular demand for such changes;
and the popular demand according to them consisted of group of elite Hindus who were a part of the British
administrative structure itself. 

Law Commission of 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
The first Law Commission was established during the British Raj era in 1834 by the Charter Act of 1833.It
was presided by Lord Macaulay 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, twenty one more Commissions have been established. The 20th Law Commission was established in
2013 under the Chairmanship of Supreme Court Judge, D.K Jain. Its tenure was fixed till 2015. The 21st
Law Commission under Justice B.S. Chauhan(retd.) was established in 2015, and had tenure to August 31st
2018. The terms of reference of the Law Commission include the review and repeal of obsolete laws, the
examination of existing laws & the revision of central Acts of general importance. 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 has 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.
Evolution of Law Commission of India
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.[1] 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. This was considered as a major stumbling block
for proper administration by the British Government during the times which is now known as the British
Raj. In order to improve the law and order situation and also to ensure uniformity of legal administration,
various options were looked for. Until then the British Government had been passing various enactments to
deal with particular situations, such as the Prohibition of Sati in (1829) by Lord William Bentinck under the
influence of Raja Ram Mohan Roy. 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.

Law Commission in Independent India

The tradition of pursuing law reform through the medium of a Law Commission was continued in post-
independent India. The first law commission in Independent India was established in 1955 and since then
twenty more law commissions have been established. Each of these Commissions have been chaired by a
prominent legal personality in India and has made a significant contribution to the legal diaspora of India.
The contribution of each of these Commissions has been enumerated below.

Working of the Law Commission:

The Law Commission works in close co-ordination and under the general instruction of Ministry of Law and
Justice. It generally acts as the initiation point for law reform in the country. Internally, the Law Commission
works in a research-oriented manner. Employing a number of research analysts (and even law students from
2007), the Commission works upon the assigned agenda and primarily comes up with research based reports,
often conclusive and with recommendations. The permanent members of the Commission generally are
responsible for framing the exact topic and reference to work upon and often takes the services of eminent
law experts and jurists who are familiar with the matter under review. These experts may either work part-
time with the Commission or may have been requested to contribute to specific reports or issues under
review.
According to the Commission's website, the Commission's regular staff consists of about a dozen research
personnel of different ranks and varied experiences with a small group of secretarial staff looks after the
administration side of the Commission's operations[22] and the internal functioning of the Commission can be
described as a process with the following stages;

 Initiation of projects at the Commission's meetings;

 Discussion of priorities; identification of topics and assignment of preparatory work to Members;
 Adoption of methodologies for collection of data and research;
 Outlining of problems and determination of areas for reform;
 Consultations with public, professional bodies and academic institutions;
 Evaluation of responses and preparation of draft of report;
 Discussion and scrutiny of report, leading to its finalization; and
 Forwarding of report to the Ministry of Law and Justice.
Once the Report is submitted to the Ministry of Law and Justice, the task of the Commission ends unless it is
required to rework upon identified areas of provide clarifications by the Government on the report
submitted. Upon receipt of the Report, it is the responsible for follow-up action on the recommendations
made by the Commission in the Report. Generally the Ministry of Law and Justice forwards the Report with
its remarks to other relevant Ministries in the Government of India and seeks from them their opinion on the
relevance of the recommendation and finalizes with them the manner of implementation of these
recommendations. When the proposals are cleared by the various Ministries and approved by the Cabinet,
the Ministry of Law and Justice goes for drafting of the implementing legislation or follows the draft
submitted by the Law Commission (which usually is the case) and presents the same for approval before
the Parliament.

Role of Law Commission in legal reform in India:

The Law Commission of India, though an ad hoc body, has been key to law reform in India. Its role has been
both advisory and critical of the government's policies] The Supreme Court of India and academia have
recognized the commission as pioneering and prospective. In a number of decisions, the Supreme Court has
referred to the work done by the commission and followed its recommendations. The fact that the chairman
of the commission is generally a retired judge of the Supreme Court has helped the prominence of the
commission.
The Commission reviews judicial administration to ensure that it is responsive so that delays are eliminated,
arrears are cleared and disposal of cases is quick and cost-effective without sacrificing the cardinal principle
that they are just and fair. The Commission seeks to simplify procedure to curb delays and improve
standards of justice. It also strives to promote an accountable and citizen-friendly government which is
transparent and ensures the people's right to information.
The recommendations of the commission are not binding on the government. "They are recommendations.
They may be accepted or rejected. Action on the said recommendations depends on the
ministries/departments, which are concerned with the subject matter of the recommendations." This has
resulted in a number of important and critical recommendations not being implemented. The commission,
however, has continued to work upon its assigned tasks.
The power vested in the commission to suo motu take up matters for discussion and submit
recommendations has also worked well to the advantage of India's legal system. The history of the
commission is replete with such recommendations which have been made in the wake of the hour and where
the law has needed change. Further, the commission has been often returned to review its earlier reports in
the wake of changed scenarios and the aptness of law in such situations. Euthanasia and related issues, in
particular, has been one such area where the commission has been relook the situation at least three times,
with the latest being its 196th report on the topic.
Besides the Law Ministry, the commission has also been requested to work upon specific issues and submit
its views by the Supreme Court on various occasions. The latest in regard has been the 205th report of the
commission which has been prepared in view of the Supreme Court's request for assistance in determination
of "certain legal issues relating to child marriage, and the different ages at which a person is defined as a
child in different laws." The report stirred a public debate in India for recommending inter alia, a reduction
in marriage age of boys to be at par with girls at 18, instead of the long continuing 21 and 18 respectively.
With all its past and present works being continuously provided on the internet, the commission has also
provided a firm assistance to legal research in the country. The fact that a number of its reports have been
taken receptively by the various ministries and have been worked upon to change the legal scenario, is itself
an indicator sufficient enough of the role of the commission in furtherance of law reform in India.

First Law Commission

The first Law Commission of independent India was established in 1955. The Chairman of this Commission
was Mr. M. C. Setalvad, who was also the First Attorney General of India. The term of this Commission was
established as three years (which by convention has been followed till date) and this Commission submitted
its last report on 16 September 1958. The reports submitted by the First Law Commission of India are as
under

Report Date of
Title of Report
No. Presentation

1 11 May 1956 Liability of the State in Tort

2 2 July 1956 Parliamentary Legislation relating to Sales Tax

3 21 July 1956 Limitation Act, 1908

On the proposal that High Courts should sit in Benches at different

4 1 August 1956
places in a State

5 11 May 1957 British Statutes Applicable to India

6 13 July 1957 Registration Act, 1908

7 13 July 1957 Partnership Act, 1932

8 1 March 1958 Sale of Goods Act, 1930

9 19 July 1958 Specific Relief Act, 1877

10 26 September 1958 Law of Acquisition and Requisitioning of Law

11 26 September 1958 Negotiable Instruments Act, 1881

12 26 September 1958 Income Tax Act, 1922

 13 26 September 1958 Contract Act, 1872

14 16 September 1958 Reform of Judicial Administration

Second Law Commission

The Second Law Commission was established in 1958 under the Chairmanship of Justice T. V. Venkatarama
Aiyar. It stayed in office till 1961. It presented the following reports

Report Presented
Title of Report
No. in

15 1960 Law relating to Marriage and Divorce amongst Christians in India

16 1960 Official Trustees Act, 1913

17 1961 Report on Trusts Act, 1882

18 1961 Converts’ Marriage Dissolution Act, 1866

19 1961 The Administrator-General's Act, 1913

20 1961 The Law of Hire-Purchase

21 1961 Marine Insurance

22 1961 Christian Marriage and Matrimonial Causes Bill,1961

Third Law Commission

The Third Law Commission was established in 1961 under the Chairmanship of Justice J. L. Kapur. It stayed in
office till 1964. It presented the following reports

Report Presented
Title of Report
No. in
23 1962 Law of Foreign Marriages

24 1962 The Commission of Inquiry Act, 1952

Evidence of Officers about forged stamps, currency notes, etc. Section 509-A
25 1963
Cr.P.C. as proposed

26 1964 Insolvency Laws

27 1964 The Code of Civil Procedure, 1908

28 1964 The Indian Oaths Act, 1873

Fourth Law Commission

The Fourth Law Commission was established in 1964 and was again under the Chairmanship of Justice J. L.
Kapur. It stayed in office till 1968. It presented the following reports

Report Presented
Title of Report
No. in

Proposal to include certain Social and Economic Offences in the Indian Penal
29 1967
Code, 1860

Section 5 of the Central Sales Tax Act, 1956, taxation by the States in the course
30 1967
of import

31 1967 Section 30(2) of the Indian Registration Act, 1908 - Extension to Delhi

32 1967 Section 9 of the Code of Criminal Procedure, 1898

33 1967 Section 44 of the Code of Criminal Procedure, 1898

34 1967 Indian Registration Act, 1908

35 1967 Capital Punishment

 36 1967 Section 497, 498 and 499 of the Code of Criminal Procedure, 1898

37 1967 The Code of Criminal Procedure, 1898

38 1968 Indian Post Office Act, 1898

Change from informal to formal institution has a cost – Transaction Cost

Now this institutional change from informal to formal could not be without any cost. There was a cost which
the society had to bear, but this cost was not taken into consideration when the organization was taking the
decision of altering the institutions according to its own benefit. The cost borne was the change of many
customs that were existing, loss of many customs as they were not codified, freezing of identities, creeping
in of foreign ideologies and biasness and death of plurality of customs, traditions and indigenous practices.
This cost is known as transaction cost as it is the cost of changing the path upon which one has been
travelling for a long period of time (non-codified laws) to a new path (codified laws). Transaction cost is a
result of the institutional change, but this transaction cost also could have brought in Indians a feeling of
unity which had not existed before within a group and also led to the abolishment of many evil practices that
were being practiced by the people.

Codification of ‘Hindu law’ was a humongous task because there was no existence of anything called the
‘Hindu law’ (its existence was presumed by the British keeping in mind the bible which was their source of
law) prior to the colonial era, and secondly because what the British mistook to be the source of ‘Hindu law’
was so vast that they were unable to codify everything as there were various norms being followed in the
society which did not come from some ancient scriptures or religious texts. In England there existed a
homogenous society with everyone following what the church told them and as already mentioned above the
church was an organization and hence their interpretations of the bible (which was the divine source of their
law) were also same. So when the English came to India they came with a framework in their mind that,
there would be a homogenous society and that this homogenous society would have a divine source of law.
But, the British were in for a surprise when they came to India. They realized that a heterogeneous society
with various different practices existed in India and they failed to find a ‘divine source of law’; but were
adamant on finding a source of law something which was akin to the cannon law and hence in their
desperate attempt to find a source, William Jones who was to then translate the “sources of law” in to
English considered ‘Manusmriti’ which were the ‘Memories of Manu’ to be the source of law and the
translation came to be known as the “Institutes of Hindu Law”.India does not have a cannon law which
legitimizes a uniform code for all the diverse groups of the community; but, because of this arbitrariness the
British started patronizing education and interpretation of the shastras for their own.

The British thought that they would derive the law from the texts and scriptures but this task was
cumbersome and impractical. They were influenced a lot by the legal theory especially that of Jeremy
Bentham.  Bentham believed in the principle of utilitarianism. Utilitarianism means greatest good for the
maximum number of people. In such a scenario it is the minority that is left out and their needs are not taken
into consideration; but while codifying these laws the opposite happened. Codification of these laws was
done by few pandits who had their own interpretation of the texts and it was done on the demand of a few
people with whom the British interacted. Thus, what got codified were just a few traditions and customs and
a large number of them were left out and hence got lost.

There was strong impact when colonial law encountered the personal law. It led to customs like property
rights which are important for the development of any society being substantially altered in Bengal and
rights of women to hold property was also substantially changed.There were two schools of thought that
existed in India ‘Mitakshara’ and ‘Dayabhag’ with regards to property rights. Mitakshara was followed
everywhere except in Bengal where Dayabhag school of thought was followed. When codification was done
by William Jones he was influenced by the Dayabhag School and hence, most of their beliefs got codified
and beliefs of the other school were left out leading to the death of many customs. The loss of customs was
not only because they were not codified, but also because the judges refused to recognize the existing norms
if they did not have any spiritual authority. Customs that the people followed were something which had
been developed by the community on their own and had no spiritual backing and hence they were considered
invalid by the courts. When there was a conflict between customary law and the official law, then the
customary law had to be established and then only would the customary law prevail. But the standard set for
proving customary law was so high that hardly any law could meet the requirements and slowly all of them
withered away. The judges also had the power to strike down the law on the basis that they considered it to
be against public policy. There was no definition given as to what was against public policy and this gave
unfettered power in the hands of the judge to decide which laws were valid and which were against public
policy. 

There was freezing of identities as Hindus were now considered to be a larger group of people and were
considered to be a ‘community’ while on the other hand the Muslims were considered ‘outsiders’. This also
happened because in courts the judges had to apply Hindu law to the Hindus and the Muslim laws to the
Muslims; so now the people had to decide which religious community they belonged to, whereas initially
there was no such pressure on them to identify themselves with a particular religion and were free to choose
any custom of any religion they wanted to follow. The translation of the code was done by English jurists
who were trained in English laws and customs. So when they translated the law they could not keep aside
their biasness and facets of English law crept in. Thus, the new law which came into being comprised of
first, the interpretation of the laws by the judges, in the form of case laws acting as precedents and secondly,
through codification of the scriptures. They also used the principles of justice, equity and good conscience
while deciding the cases. This led to the emergence of Anglo Hindu law. 

As Anderson in ‘Islamic Law’ says :

“the construction of Hindu law in India by the British colonial government [and] the British effort to “find”
Hindu law…assumed that the Hindu law would be found though…deduction from precedent and a focus on
cases. Hindu law gradually came to be based on previous judges’ decisions, not on Hindu sacred texts. These
texts themselves were mistranslated and selected according to the conceptions of English civil law, so that
Hindu law was ultimately defined in terms of European conceptions of Hindu law.”

But the transaction cost borne also helped as this death of plurality led to removal of many practices that
were evil and were rampantly practiced in the society. Various acts were passed which made the social
condition better, like the Sati regulation of 1829, the Caste Disabilities Removal Act 1850, the Hindu
Women Remarriage Act 1856, and Child Marriage Restraint Act of 1929. Removal of Sati was an important
step as this practice was highly followed in Bengal. Sati was so prevalent in Bengal because they followed
the Dayabhag School of thought which gave property rights even to women. These acts helped improve the
social conditions in the society at least on paper if not reality, as there is evidence to show that sati was more
widely practiced after the regulation that came into being. There were retentionists as well who were
unhappy with such codes, and in many areas the customs were not changed in accordance to the code and
they still continued; as a stroke of pen cannot completely do away with or abolish customs that had been
being followed for centuries. This could have brought in more unity as now the Indians had something to
identify themselves with, which were common to all the people.

North says in his book that the resultant path of institutional change is shaped by: 

The lock – in that comes from the symbiotic relationship between institutions and the organizations that have
evolved as a consequence of the incentive structure provided by those institutions – the new path of codified
laws that India started walking on after codification was traversed on for a long time and the path became
locked in history and thus, gave India codified laws which exist even today. This codification could only
take place because the existing institutions did not provide for the political unity of India which gave British
the incentive to codify the laws using their political power; and

The feedback process by which human being perceive and react to change in the opportunity set – keeping
aside the costs borne because of codification, from British point of view this process of institutional change
was beneficial as it helped in smoother governance of the country and better control over the people.

Bengal as an illustration

Now let’s look at the existence of this framework through example of Bengal. During this time Bengal
comprised of Bihar as well and was named Bengal presidency. The populace of Bihar consisted of Muslims
as well and not only Hindus. As already mentioned above there were two schools of thoughts that existed.
One was called the Mitakshara which was followed in all parts of India and the second being Dayabhaga
which was followed in Bengal only. There was difference in the two Schools because they had different
rules which governed them. for example: in Mitakshara the son had an interest in the property as soon as he
was born, while in Dayabhaga School the son got the property after the death of the father.

According to the Dayabhag School the women had substantial property rights. In some cases they managed
the property on behalf of the male members and on other occasions they would hold property in their own
name after the death of the husband. During the British era in the 19th century the amount of property that
would be held by the women substantially reduced than what is was earlier. Their property was vulnerable to
competing claims of the local powerful men. This change also happened because in England the British
women did not have property rights and when the British saw this new scene in India while codifying the
laws they brought this change and the right of women to hold property was substantially taken away.

Warren Hastings had been the governor general of Bengal but towards the end due to financial instability he
was replaced by Lord Cornwallis. One central aim of this project was to restore the landlord and property
rights that existed a generation before.  Lord Cornwallis planned to give a constitution which would protect
the personal property of the individual and thus help in the prosperity of the state. Thus, he created new
offices and courts to collect more revenue which was the aim of the British. When the British came to India
they came with their English notions of how property was related to politics. So when they came to India
lord Cornwallis could not disassociate this notion and believed that there would be the existence of same
relation even in Bengal. 

Using their pre-colonial notion of the existing offices and without bothering to understand the existing social
institutions they removed Indian officials from important posts and made them mere informants or agents.
During Warren Hastings stay he gave importance to the customs and usage of the local area, but when Lord
Cornwallis came he thought that the information about the customs could be gained from the inhabitants of
the place and thus abolished the office qanungu  who was the district officer and would be a ready source of
information regarding the existing customs. But Lord Cornwallis removed the office thinking that the post
had deep rooted immersion in the historical continuities of a particular society made them easily corrupt and
there were chances of them defrauding the Company with the landlords. 

This essentially happened because the British wanted to maintain their supremacy and did not want to lose
their political power in India, but while being insecure about the hold of power politically they forgot to give
due importance to the existing social institutions which would have made their rule easy. The constitution
given by Lord Cornwallis had a paradox.  It was based on the Burkean philosophies of trust and customary
practice, but sadly, when it came to Bengal both were nonexistent as there was severance and a distance
existed between the world of government and the relations it governed. 

The judges in the court had officials that would assist them, but then the British started mistrusting these
officials who were either pandits or maulvis. Thus William Jones wanted a text which could help the judges
decide cases and their dependence on these officials reduced. The book was a translation of Sanskrit
commentaries on contracts, property and inheritance laws written by Jagannatha Tarkapanchanam who was
the most respected jurist in India in the 18th century. This Digest was not to codify the laws but to compile
all the usage so that administration would be easy and not an attempt to codify laws. The text was meant to
supplement the decision taken by th

Organizations acting as change agents

North in his book also talks about the existence of organizations which are group of individuals bound
together for purpose to achieve objectives  and are created to take advantage of the opportunities that the
existing institution provides them and then either work within the existing institutions or change and alter the
existing institutions, depending on the objective to be achieved; and hence the organizations which are
created out of the existing choice set act as major agents of institutional change. 

When the British realized that administration in India was difficult because of the non-existence of any
certain law they finally took the bold step of codifying the personal laws as well. Hastings had wanted to
stay away from personal laws as he realized that marriage in India was tied to religion and they had decided
on staying neutral towards the native religious affairs and secondly because they thought that there
interference might lead to communal violence.  But the assistance of the pandits and maulvis was now
looked at with mistrust and thus, Hastings selected 11 pandits to codify laws which would then be followed
by everyone.

The pandits came up with ‘Vivadarnavasetu’ which literally means ‘a bridge on the ocean of disputes’ was
the original Sanskrit version. Later on these were translated in English (with which also there were problems
which will be dealt ahead) under the name of “A Code of Gentoo Laws”. The meaning was totally
transformed and words like ‘code’ and ‘law’ which were never a part of the original text were now
legitimized. Then again William Jones appointed Jagannath Tarkapanchanan, the legendary scholar on all
branches of the Dharmasastras to compile ‘Vivadabhangarnava’ which literally means ‘a break wave on the
oceans of disputes’ and it was later translated into English under the title “A Digest of Hindu Law”. Again
the importation of British concepts of ‘digest’ and ‘law’ were used to legitimize the transformation of the
prescriptive guidelines in the ‘Sastras’ as legal rules to be administered by the court. 

Initially the British gave regard to the customs that were ubiquitous while codifying the laws, but even then
they realized that there were uncertainties and they could not trust the Indian officials as there was a
possibility of them defrauding the company for their own benefits. Thus, many English jurists like William
Jones, Colebrooke decided to translate the texts into English so that the judges could use it. But the
translations were done by European scholars. When translations were done the essential meanings got lost
and the entire meaning and its essence could not be understood and translated, as there are certain words the
exact word for which might not exist in the other language. For example the word ‘dharma’ which means
‘the all en-compassing duty to do the right thing at the right time, at any point of one’s life’, was simply
translated as ‘law’. 

The English jurists who translated the texts into English were the organization which objected to the existing
informal institution. This organization had the common objective (having political control over India) was
the ease of administering laws. The goal which the organization sought to achieve of uniformity and stability
could not be achieved with the existing institution of informal norms, code of conduct and behavior; they
had to get in something more concrete like formal laws so that there could be certainty and uniformity. This
organization emerged because of the existing choice set which was available to them because of the informal
rules in place and they took advantage of the position that they had attained and acted as change agents or as
North would call them entrepreneurs in economic terms and gave India codified laws.