Unit –II

Codification of Laws: Charter of 1833 -

The Charter Act of 1833 was passed in the British Parliament on 28 August 1833
and came into force on 23 April 1834. This renewed the East India Company’s
charter for another 20 years. A very important provision was made in section 53
of the Act which has been called the “mainspring of law reform in India” as
regards policy though principles and ideas were still to seek.

The section authorized the Governor General in council to appoint a law

commission of not more than five members at a time, as the Court of Directors
with approbation of the Board of Commissioner though fit. The policy indicated in
section 53 was that subject to subject to such special arrangement as local
circumstances may require, a general system of laws applicable in common to all
classes of the inhabitants, should be established in British India with due regard to
the rights, feelings and peculiar usages of the people. And that laws and customs
having the force of law in India should be ascertained, consolidated and amended

Features 0f the Charter of 1833-

 The company’s commercial activities were closed down. It was made into
an administrative body for British Indian possessions.
 The company’s trade links with China were also closed down.
 This act permitted the English to settle freely in India.
 This act legalized the British colonization of the country.
 The company still possessed the Indian territories but it was held ‘in trust
for his majesty’.

Important Provision of the Charter 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, color, 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 of 1833

 It was the final step in the centralization 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.

First Law Commission-

Introduction: In pursuance of the authority conferred by Section 53 of the Charter
of 1833, the first Law Commission was appointed in India in 1834. The
commission consisted of Lord T.B. Macaulay, as Chairman and Four members
namely, C.H. Cameron, J.M. MacLeod, G.W. Anderson and F. Millet. The first three
members represented Madras, Bombay and Calcutta respectively. The
commission met in India in 1834 for the first time. The said Charter placed the
first Law Commission wholly under the control of the Governor-General-in-
Council which determined from time to time the subjects, upon which the
commission shall proceed to work and submit reports. Accordingly, the
commission was assigned the following tasks

1. Codification of penal law;

2. The law applicable to non-Hindus and non-Muslims in respect of their various

rights (Lex Loci Report);

3. Codification of civil and criminal procedural law etc, etc.

1. Codification of penal law (Draft Penal Code):

As the system of administration of criminal justice was most unsatisfactory, the
local government directed the commission to take its first step to tackle this
branch of law. The members of the commission prepared a draft penal code
which they submitted to lord Auckland, the GovernorGeneral on 2th May, 1837. It
could not be immediately enacted into a code and had to wait up to 1860 due to
the following reasons:

(a) The substantive civil law and the law of procedure were dark and confused;

(b) The illness of two members, threw the work on Macaulay.

This draft of Penal Code was mainly the work of Lord Macaulay and on account of
it; it is called “Macaulay's Code”. Thus the draft code became law in 1860, and the
said code is still continuing in the country for the administration of criminal
justice.

2. Lex Loci Report: Another important subject to which the commission was
required to devote its attention was the problem of uncertainty of the substantive
civil law which was applicable to the Christian's, Anglo-Indian's and Armenian's.
There were 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-
Muslims who inhabited in presidency towns. There was a lot of uncertainty with
regard to the civil law applicable to the Christians, Anglo-Indian's and Armenian's
residing in the Mofussil. Thus, the attention of the first Law commission was
directed to this problem in 1837. The first Law commission after careful study and
consideration submitted its report on 31st Oct. 1840 to the Government. The first
Law commission submitted its report under the chairmanship of Andrew Amos
and recommended that an Act should be passed making the substantive law of
England the lex-loci, the law of the land outside the presidency towns in mofussil
areas and which shall be applicable to all except Hindus and Mohammedans.
While applying the substantive law of England certain restrictions were imposed
and they are:-

 Only those laws were to be applied which were to be suitable to the

conditions prevailing in India
  The English law not to be opposed to any regulation of any presidency
 All questions concerning marriage, divorce and adoption concerning
persons other than Christian's were to be decided by the rules of the sect
to which the parties belonged
 Rules of equity as applied in England were to override the substantive law
of England.

Thus the first Law commission submitted a draft bill on 22th May 1841 to the
Government. The lex-loci report of the first Law commission was sent to all the
presidencies in India for their opinion. But it was first halted by the preoccupation
of Lord Auckland and secondly it received criticism. In the meantime the directors
ordered not to pass any law for declaring lex-loci and the matter remained
pending until 2nd law commission was appointed. However, one portion of the
lex-loci report of the first Law commission was implemented was “The Caste
Disabilities Removal Act, 1850”. This piece of legislation had immense effect on
the Hindus and Muslims who were not to lose now any interest in property
merely by their conversion to other religion.

3. Civil Procedure Code: The commission drafted a code of civil procedure and
suggested various reforms in the procedure of civil suits.

4. Law of Limitation: The First Law commission drafted a valuable report on the
law of Limitation and with a draft bill on it, submitted it to the Government on
26th Feb, 1842.

5. Stamp Law: Another matter referred to the commission was stamp laws which
were in a state of conflict and confusion. The commission submitted its report on
20th Feb, 1837. It was till 1860 that a comprehensive law relating to stamps was
passed for the whole of British India.

6. Other Digests and Guides: While the draft codes prepared by the first Law
commission were being discussed, several Digests and Guides were published in
India. Some of them are:

 A guide to the civil law of the presidency of Fort William;

  Magistrates guide for Bengal
 Campbell's collection of the Regulations of the Madras presidency;
 Beaufort's Digest of criminal law of the presidency of Fort William;
 Bayne's criminal law of the Madras presidency;
 Clark's Regulations of the Government of Fort St. George;
 Fenwick's index to the civil law of the presidency of Fort William;
 Harrison's code of the Bombay Regulations;
 Sutherland's Regulations of the Bengal code.

Contribution of the first Law commission: Although any effective results could
not be obtained from the first Law commission’s report yet it served a very useful
purpose by exposing the uncertainty of law in the country. The commission’s
report successfully attracted the attention of the people in this country of the
complex problems of the legal system.

Second Law Commission:

Under the provisions of the Charter Act of 1853, the second Law commission was
appointed in England on 29th Nov. 1853. The second Law commission was
composed of the following persons - Sir Edward Rayan, Robert Lowe, Lord
Sherbooke, V.H. Cameron, J.M. MacLeod and T.F. Ellis.

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: The second Law commission submitted four reports to the Indian
Government. The first report was submitted in 1855, second, third and fourth
reports were submitted in 1856.

First Report: In the first report, the commission submitted a plan for reforms in
judiciary and in courts procedure.

Second Report: In its Second report the commission agreed with the lex-loci
report of the first Law commission. It suggested that there must be a substantive
civil law for persons in the mofussil who had no law of their own. The second Law
commission expressed the firm view that no attempt should be made to codify
the personal laws of the Hindus and Mohammedans - because any such attempt
“might tend to obstruct rather than promote the gradual process of improvement
in the state of population”.

Third & Fourth Report: In these two 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 recommendations of the commission resulted in important legislation’s e.g.

 The penal code proposed by Macaulay was taken up, revised and finally
passed in the year, 1860;
 Codes of Civil Procedure and Criminal Procedure were passed in the year
1859 and 1861 respectively;
 The draft on the law of Limitation as submitted by the first Law commission
was also taken up and passed into law in1859

In short we can say that Dr.MP Jain rightly said “the commission advocated
the idea to have a general and uniform codified law, based on the English law
throughout the length and the breadth of the country, the extent it was possible
keeping in view the susceptibilities of the people”.