CHARTER ACT OF 1833

The 1st and 2nd Law Commission

There were many branches of law practically non-existent in the prevailing
systems of Hindu and Mohammedan laws when the British came to India.
There was hardly any law relating to civil and criminal procedure. There was
only a little of the law of torts. Some departments in the law of property,
contracts and crimes were either wanting or in a rudimentary state. There
was no dealing with public and constitutional rights because such rights did
not exist. The rule of warren Hastings, reserving the personal laws in certain
matters, did not remove the uncertainty of law on the matters specified in
the rule because there were different schools of Hindu and Mohammedan
laws having conflicting provisions. Moreover, the Hindu and Mohammedan
law officers scarcely followed a particular method of interpreting them.
Existence of different tribunals independent of each other further increased
the uncertainty.
Then the existence of different statute laws was also a great cause of
uncertainty.
They were –
a. English statute law as it existed in 1726;
b. English statute law as expressly extended to India after
1726;
c. Regulations of the Governor-General-in-Council from 1793 to 1834.
d. Regulations of the Governor-in-Council of Madras from 1802 to 1834.
e. Regulations of the Bombay Code from 1827 to 1834; and
f. The Acts of the Indian Legislature passed under the authority of the
Charter Act of 1833.
Need of Codification:
Codification, that is, the conversion of all law into a written and
systematically arranged code, was the only answer to the vices of, and
problems created by, the existence of the heterogeneous laws in this
Country.
That was the only method –
a. to make the laws cognizable both to the administrators of
justice and the people;
b. to remove uncertainty of law;
c. to check the introduction of the technical rules of English
law ;
d. to avoid the evils of judicial legislation and
e. to preserve the customs suited to the people of the country.
Lord T.B. Macaulay was a great admirer of Jeremy Bentham whose theory of
legislation and principle of utility had profoundly influenced the course of
English legislation in the 19th century, and was a staunch supporter of any
project to apply the principles of Bentham to the heterogeneous laws of
India.
On 10th July, 1833, Macaulay demonstrated the necessity and practicability
of codification during the course of debate on Charter Bill of 1833 and said –
“that no country ever stood so much in need of a code of laws as India, and
that there never was a country in which the want might so easily be
supplied in India, now there was a country in which the want might so easily
be supplied in India, now there are several systems of law widely differing
from each other, but co-existing and co-equal we have now in our Eastern
Empire, Hindu Law partially mingling with each other and disturbing each
other varying with the person, varying with the place.
 Charter Act of 1833 :-
With a view to achieving the object of a comprehensive consolidation and
codification of Indian Laws, the charter Act, 1833, passed by parliament,
established an All India Legislature created the office of Law Member and
provided for the appointment of a Law Commission. In See. 53 recited that it
was expedient that, subject to Such special arrangement as local
circumstance might require, a general system of judicial establishments and
police, to which all persons whatsoever might be subject, should be
established in British India at any early period; that such laws, at might be
applicable in common to all classes of her inhabitants, should be enacted,
due regard being had to the rights, feelings and peculiar usages of the
people; and that all laws and customs having the force of law within the
country should be ascertained and consolidated, and, as occasion might
require, amended.
The Act then directed the Governor-General-in-Council to appoint a
commission, to be styled as “Indian Law commission” for the purpose of
inquiring into the jurisdiction, powers and rules of the existing Courts and
police establishment in British India and all existing forms of judicial
procedure; and into the nature and operation of all laws, civil or criminal,
written or customary prevailing and in force in any 140 part of British India,
to which any inhabitants of this country were then subject.
Sec. 43 of the Charter Act has described as “the legislative mainspring of
law reform in India so far as regards policy though principles and ideas were
still to seek.
 The First Law Commission :-
The First Law commission was appointed in 1834 under the
chairmanship of Lord Macaulay. It consisted of four members
including the chairman. The commission was to function under
the direction and control of the governor-general-in-council.
The commission was directed to prepare a draft of penal code
and also of civil and criminal procedures codes.
• The charter Act, 1833 allowed unrestricted entry to Europeans in
India, consequently there was unprecedented inflow of foreigners and
they settled in different parts of the country. Subsequently, by 1837,
they were also authorized to hold land. But the status of Europeans
including Christians, Anglo-Indians and Parsees residing in mofussil
areas and the applications of law to them remained uncertain for all
these years.
• In presidency towns, these aliens were judged by the English law but
there was obscurity of law applicable to non-Hindus and non-Muslims
in the mofussil. In other words, there was no lex loci i.e. law of the
land for them. Therefore, the attention of the First Law Commission
was drawn to this lacunae by the Govt. in 1837 and it was directed to
make enquiries on this subject and submit its report.
• The Commission submitted its report known as “Lex loci report” to the
Govt. on Oct. 31, 1840 suggesting that substantive law of England should
be declared as lex loci applicable to all excepting Hindus and Muslims
inhabiting in the mofussil areas. The lex loci report was criticized for its
poor draftsmanship as also want of precision as to the extent to which
the law of England was to be introduced.
• Allen Gledhill observed that the Report “was based on expediency rather
than a desire to impose British culture on India.” The commission also
submitted the draft of the penal code to the Govt. on 14th Oct, 1837,
before Macaulay’s departure from India. It did not, however, become
law till 1860.
 The Second Law Commission
The Second Law Commission consisting of 7 members was
appointed on Nov. 9. 1853 for a period of three years under the
chairmanship of Sir John Romilly. The commission held its sitting in
London till the middle of 1856 and submitted four reports after
examining the proposals of the First Law commission thoroughly.
First Report :
The Second Law commission submitted its First Report in 1855 in which
it proposed the amalgamation of the Supreme Court at Fort William
with Sadar Diwani and Sadar Nizamat Adalats and suggested that a
High court be established in place of these three integrated courts.
Besides, the commission also suggested the preparation of uniform
Codes of Civil and criminal procedure applicable to the newly proposed
High Court and to all the inferior courts subordinate to it.
Second Report :
In its Second Report, the Law Commission agreed with the Lex Loci report
of the First Law commission. The commission expressed a view that only so
much portion of English law should be adopted in India which did not
offend the sentiments, customs and traditions of the natives. It further
suggested that the matters not falling under the codified English Law,
should be decided according to the principles of equity, justice and good
conscience.
Third Report : In its third report the commission proposed a plan for
establishing a judicial system and procedure for the courts in
NorthWestern provinces. The judicial system proposed by the Law
commission was similar to that of Bengal with minor changes to meet the
special requirements of the frontier region.
Fourth Report :
This report suggested a judicial plan for the presidencies of Bombay
and Madras on a uniform pattern. The recommendation of the
commission led to the enactment of civil procedure code, Limitation
Act, penal code and criminal procedure code.