of & Commissions: Legal & Constitutional for LL.B. 2nd Semester

E-Content by Ashok Kumar Sharma Assistant Professor Faculty of Law, Meerut College, Meerut Ch.Charan Singh University, Meerut

Ashok KumarSharma, Assistant Professor 1 Dept of Law, Meerut College, Meerut Codification of Law and the Law Commissions

The word "Codification " was invented by Bentham. It meant "conversion of all law, into a written and systematically arranged code". Every rule according to him, was based on utility that is, "the greatest happiness of the greatest number". This concept had its tremendous impact in England, and, many reforms were made on the basis of this Philosophy. It is this Philosophy that became the basis of the British Administration in India. Both Lord Macaulay and James Mill were the disciples of Bentham. Lord Macaulay strongly demanded in the British Parliament (When the Bill was in progress) that codifications was essential2 in India as the position of law was at a sorry state of affairs. Charter Act 1833 : Water-shed :

The sequence to the Bill was Charter Act of 1833, passed by the Parliament. It provided for i) An All India (Legislative Council) ii) Creation of an office of a law member.

& iii) Appointment of a law commission, This charter Act (1833) is hailed as the watershed in the of India.

Ashok KumarSharma, Assistant Professor 2 Dept of Law, Meerut College, Meerut Codification of Law…

• Legislative Council: The idea of a single legislature in India had been mooted by (1829). Of course, the Charter Act's Legislature was of different nature than what he had envisaged. • The Council established at Calcutta was hailed as a great step forward in the growth of Indian law on judicious lines and the codification there of. It had the powers to make law, to amend, to alter or to repeal any law in India, subject only to a few restrictions. • The Council had the Governor-General, three ordinary Member. This Legislative Council was subordinate to the British Parliament. (Its Acts were to be placed before the Parliament). These Acts were the Acts of the Govt. of India having the same force as Acts of Parliament.

Ashok KumarSharma, Assistant Professor 3 Dept of Law, Meerut College, Meerut Codification of Law…

• Law Member: The Legislative Council had a law member on its panel (Governor General, three ordinary members and one Law Member). He could sit & vote only when the council was sitting and making laws & . He could employ all his knowledge & ability in discharging his functions, and give a shape and coherence to the several laws passed by the council.

Ashok KumarSharma, Assistant Professor 4 Dept of Law, Meerut College, Meerut Codification of Law…

ii)Law Commission ; • With a view to securing uniformity and providing a simple general system through the process of consolidation and codification the Charter Act of 1833 (Sec. 53) provided for the appointment of the Law Commission of India. • The Commission was charged with the duty to ascertain, consolidate amend and prepare a code of laws common to the whole of India & to the 'natives & foreigners'.

Ashok KumarSharma, Assistant Professor 5 Dept of Law, Meerut College, Meerut First Law Commission

• The first law commission was appointed by the Govt. of. India in 1835. Highly qualified legal experts & persons having familiarity with local systems were selected. Lord Macaulay way appointed as its Chairman. It had five members. • Work :- 1.It drafted the Penal Law first. This later became the I.P.C. 2.Next it drafted the Code and 3. The Limitation Act. Later they became Acts.

Ashok KumarSharma, Assistant Professor 6 Dept of Law, Meerut College, Meerut Lex Loci Report

• Lex Loci Report :- • (Lex Loci = Law of the land or place)

• The First law commission was appointed in 1835 under the charter Act of 1833, with Lord Macaulay as the chairman, Among its achievements, one of some significance is the Lex Loci Report (1837). • The Anglo-Indians had complained to the of Directors of the Company that (excepting the places under the of the Supreme Court) the applicable to them in other places in India was not' clear and that there was much confusion. • The Christians, Anglo_Indians, Parsees the Portuguese, the Armenians- had no civil law applicable in the Moffusils in India. The were applying the substantive law of the country of the person or his ancestors. This had led to great difficulty. This was referred to the Commission. • The commission considered the applicable to non- Hindus & non-Muslims and presented a report in 1837, which is called the Lex Loci Report.

• Purpose: One useful purpose was served by it. It showed the utter confusion and uncertainty of the law in India.

Ashok KumarSharma, Assistant Professor 7 Dept of Law, Meerut College, Meerut The Third Law Commission

• The Third Law Commission.

• The third law commission was established on 2nd Dec. 1861 to frame a body of substantive law for India using the law of England as the basis, The Commission had six members and the membership underwent some changes as time rolled by. The Secretary of State, Sir Charles Wood, requested the Commission to go on piece-meal basis. Thus began a new phase in the codification process. • The period of the third law commission was captioned as "The codes are coming" by Rankin. This was the golden era of codes in India. • Sir Henry Maine was one of the members of the commission. His successor was Sir James F. Stephens. These two stalwarts were mainly responsible for the success of this commission. Stephen is remembered as a great legislator.

Ashok KumarSharma, Assistant Professor 8 Dept of Law, Meerut College, Meerut Contd..

• Assessment: i) The Commission submitted 7 Reports. i) The Commission was responsible for drafting in all 211 Acts the notable enactments are • The Indian Succession Act •The Act The Act • General Clauses Act Code (Revised) 1872. The Divorce Act • The Limitation Act etc.

Ashok KumarSharma, Assistant Professor 9 Dept of Law, Meerut College, Meerut Contd..

• iii) The Commission had to meet 'many peculiar & insurmountable difficulties. In many areas there were conflicts, in others there were no rules at all: There were also rules haphazardous, vague and ambiguous. The interpretations by the courts had added much confusion and, as Henry Maine observed "leaving India to be governed by the courts was most disastrous".

• Some felt that there was too much of codification. Hence, the process was slowed down for some years. However, the period 1862-1879 is rightly called as the era of codification. This removed much of the confusion & complexities of the Indian Legal System.

------Thank You------

Ashok KumarSharma, Assistant Professor 10 Dept of Law, Meerut College, Meerut