- Vaishnavi G Nair, a student at the National University of Advanced Legal Studies
ABSTRACT
The article gives an extensive examination of the legal developments relating to the codification process in the 19th & 20th centuries,starting from the appointment and working of the First Law Commission of India and all other Law Commissions that followed, along with the role played by Macaulay in the drafting of the Indian Penal Code. The article brings out the intertwined nature of the codification processes in India and in England, throughout the 19th & 20th centuries
INTRODUCTION
Significant developments towards codification were made in the 19th and 20th centuries, particularly in India and England. The efforts to consolidate the bulk of laws into extensive statutes took place in both these places, which ultimately led to drastic changes in their legal atmosphere.
The necessity of legal reform became more evident in the colonial period, in the case of India. This was because of the difficulty that the British officials faced in the administration of justice, which was a problem that stemmed from the multiplicity of the sources of law that existed in colonial India. These included personal laws of religious communities like that of the Hindus and Muslims and the interpreted principles of the Roman law. A uniform code that would facilitate easy administration of justice became the need of the hour.
THE LONG DRAWN PROCESS OF CODIFICATION IN INDIA
In 1831, a motion was placed before the House of Commons for the appointment of a Select Committee to look into the operations of the East India Company in India. Matters of particular concern were the then existing laws and the administration of justice by the Company. The reports that were subsequently submitted by the Committee revealed the necessity of reform in the laws of India. The hitherto existing system of legal administration of the English East India Company was based on multiple sources of law, like the personal laws of Hindus and Muslims and the Roman principle of “justice, equity and good conscience”. Thus, there was a need to codify these bulk of laws.
The Charter Act of 1833, led to the creation of an All India Legislative Council, which was headed by a ‘Law Member’. The Law Member was vested with the responsibility of passing laws for the whole of India. Moreover, an Indian Law Commission was also established for the creation of a uniform set of laws and courts, suitable for all the people. Thomas Macaulay was appointed as the head of this Law Commission. He also became the first Law Member of India
About a year after the presentation of his argument regarding the future of the governance of the British in India, before the English Parliament, Thomas Babbington Macaulay travelled all the way to India, charged with the responsibility of working towards the process of codification of laws in India.
The most significant contribution of the First Law Commission of India was the draft of the Indian Penal Code of 1860. This Penal Code was enacted on 1 January 1862. Around this time, the complete codification of the procedural, commercial and criminal law of India had already happened. While constructing the Code, the drafters relied heavily on the French Code and the decisions of the French Courts of Justice, and also on the Code of Louisiana, prepared by Livingston. The Draft Penal Code, prepared by the Indian Law Commission, was printed and submitted to the Government of India on 14th October 1837. This Draft consisted of 488 clauses. Out of these 488 clauses, 233 of them, were reviewed in the First Report on the Indian penal Code. This Report was submitted on 23rd July 1846. The First Report was also accompanied by a Postscript dated 5th November 1846. This Postscript included the findings of Commissioners like C.H. Cameron and D.Elliott. The Second and final Report on the Indian Penal Code was also submitted by C.H.Cameron and D.Eliott. This Report examined those chapters of offences that were not previously examined. After the two Law Commissioners arrived at the conclusion that the Draft Penal Code was almost complete, the revised edition of the Code was forwarded to the Judges of the Supreme Court, on 30th May 1851, for seeking necessary suggestions. On 9 August 1851, the revised edition of the Indian Penal Code along with the minutes on the subject, prepared by the Governor General and other government officials were sent to the Company in London. The Penal Code was referred to a Committee composed of U.I.Moffatt Willis, J.P.Grant, Sir James William Colevile, D. Eliott and B.P. Peacock. This Committee held many meetings and deliberated upon the Penal Code, thereby coming to the conclusion that the Penal Code drafted and proposed by the Indian Law Commissioner, presided over by Macaulay should be the foundation of the penal law in India. The revised Penal Code prepared by Sir James William Colevile, Sir Arthur Buller, Barnes P. Peacock, J.P.Grant and D.Elliott, was read for thr first time on 3rd January 1857. This revised version was further referred to a Select Committee. The Indian Penal Code was published in the Supplement to the Calcutta Gazette after its second reading. The Legislative Council of India finally passed the Indian Penal Code and the Code received the assent of the Governor-General on 6th October, 1860.
A major trigger for the process of codification in general is believed to have been the Revolt of 1857 as can be seen from the fact that the British introduced a series of codes in the decade that followed the Rebellion. As far as the Penal Code is concerned, it reflects the developments that happened in English law at that period of time. The long period that it took for the PenalCode to finally come into force, is well explained through these developments . The codification process of India was not just influenced by the decisions of the Company. The English intellectuals of the time, for instance, the Utilitarians, also had an influence on the same. As suggested by Eric Stokes in his work, The English Utilitarians and India, the codification principles and drafting techniques of Bentham and Mill were adopted by Macaulay during his process of creating a criminal code for India. This Utilitarian influence in the Penal Code of India has been recognised by various scholars and barristers over time.
The Second Law Commission was appointed through the Charter Act of 1853. The activities of this Commission led to the passing of the Code of Civil Procedure in 1859. In the same year, the first Limitation Act of India was also passed. The period 1860-61 marked two milestones in the field of criminal law in India. Both the Indian Penal Code (as seen earlier) and the Criminal Procedure Code, were enacted during this period. The activities of the Third Law Commission, which was appointed in 1861, led to the enactment of the law of evidence and law of contract. Sir James Fitzjames Stephen is credited with the successful authorisation of the law of evidence. A law of specific relief was also enacted in 1877. The Fourth Law Commission was responsible for enacting the Negotiable Instruments Act in 1881. Three other Acts were also enacted in 1882 as a result of the activities of this Commission, which was appointed in 1879. These three acts include, the Easements Act, the Trusts Act and the Transfer of Property Act.
CODIFICATION IN ENGLAND
England follows the tradition of common law or judge-made law. The legal principles that were laid down by English judges continue to be cited by common law jurisdictions even today. Thus, common law in itself is an integral part of the national heritage of the English. The debate of codification in England is an ongoing one. However, the origins of the same can be traced back to Jeremy Bentham. His attacks on the common law sparked the debate of codification in the early 19th century. In the latter half of the 19the century James Fitzjames Stephen came to be known as the ‘champion of codification’.
The state of English law in the 19th century can be determined through the reports of the English Law Commissions. Two Royal Law Commissions were appointed, of which the first Commission sat from 1832 to 1845 and the second Commission, had a five year tenure from 1845 onwards. The former published eight reports and the latter published five. The first as well as the Second Commissions created a criminal code each, completing them in 1843 and 1848 respectively. In 1847 and 1848, two reports were published in relation to the Indian Penal Code. It compared the 1843 English Code with the Penal Code of India in terms of length.
In the first half of the 19th century, criminal law was the main focus of English law reform. The Bloody Code was heavily criticised. This Code comprised about 200 statutes with death penalty as the punishment for practically all criminal acts. Sir Samuel Romilly and James Mackintosh, the pioneers of law reform during the Victorian period, attacked this body of law that was both inefficient and harsh. There were active attempts to bring down the number of capital statutes. In the Bloody Code, even minor offences, such as stealing a tree for instance, were punished with death. It is to be noted that the disapproval of this Code, stemmed not just from its harsh and cruel nature but also from its inefficiency. The 1819 Select Committee was appointed to suggest reformation of the criminal justice system of England. The recommendation of the said committee was to reduce the number of capital statutes. The Select Committee was of the opinion that there should be alternative punishments to the death penalty. The Committee also wanted to alleviate the severity of the law. Between 1826 and 1830, the Bloody Code faced many criticisms, also due to the increasing crime rates. This coincided with the passing of the Peel Acts. This comprised about 8 statutes . These Acts amended over 200 statutes, reduced the number of capital statutes and introduced a new set of secondary punishments. The Peel Acts can be considered as the first legislative attempt to depart from the primitive nature of the Bloody Code and also to reform the flawed criminal justice system that existed in England in the 19th century. But despite these attempts at reforming the criminal justice system, it was far from being modern. Even after the enactment of the Peel Acts, the Utilitarians continued their demand for further reforms.
The first Royal Commission, appointed in 1832, came out with its first report in 1834. This report provided a critique of the criminal law of England. In another report that was published in 1836, the Commissioners commented that the punishments given for different crimes did not fit those crimes. The following year, in 1837, the Parliament passed eight Acts in order to make the criminal law of England more methodical and regular. These Acts further brought down the number of capital statutes. They also amended the Peel Acts and repealed certain sections of the same. Even though by 1848, two criminal codes were published by the Royal Law Commissioners, the Parliament showed little interest in turning these codes into laws of England. In the 1850s, another Royal Law Commission was formed for the examination of the statute books of England. This Statute Law Commission tried to fix the issues that were present in the Peel Acts and also the set of Acts that were passed in 1837. Furthermore, the Commission also drafted about eight criminal bills in furtherance of the said objective. On the basis of these eight bills, the Criminal Law Consolidation and Amendment Act was passed in February 1861. Despite all these efforts, various parts of the criminal law of England still remained unconsolidated. But the plurality of Acts passed by the Parliament throughout the nineteenth century did consolidate and organise many areas of criminal law. These areas include the 5 classes of offences that were covered by the 1861 Acts and the 24 areas of criminal law which were organised by the 1848 Code.
The role of James Fitzjames Stephen in the codification process of England becomes evident towards the latter half of the nineteenth century. An advocate of the universal nature of the merits of codification, Stephen authored an extensive code of evidence for England in 1873. This code is often referred to as the Stephen’s Code. The Stephen’s Code was an attempt at replacing the complex rules of evidence of the common law with a code of simple rules. But these efforts never saw the light of the day as the Parliament refused to pass the Bill. The invitation to draft such a code did not come from the legislature in the first place. This invitation was initiated by the then Attorney General, Sir John Coleridge. He was unable to introduce the Bill in the Parliament, as a result of which no real discussion was held on the Stephen’s Bill.
The unwritten core of common law was still evident even towards the end of the 20th century, despite all the efforts toward codification. The state of the common law during this time was such that its broad scope and complex scope promoted specialisation. There were no more generalist judges, Lord Denning being the last.
CONCLUSION
The codification processes in India and in England in the nineteenth and twentieth centuries, was thus a landmark moment in the legal history of not just these countries but in the history of common law as well. The contributions made by important figures like Thomas Babbington Macaulay, James Fritzjames Stephen in the evolution of the legal landscape of India and England respectively, are to be recognised.
The process of codification was a challenging one – be it in India, or in England. In England it was in the form of resistance to the very movement of codification. In India, it was in the form of difficulties in the creation of an exhaustive code suitable for administration of the people of huge diversities.
The parallels between the codification processes of both these nations are quite striking, considering the interconnectedness of the legal developments in both these countries. It is indeed a fact that these legal developments that took place in both these countries during the nineteenth and twentieth centuries is what shaped the legal landscape of these countries as it exists today.
