Codification, the Law Commissions and Law Reform

• Certainty. A written code can be read; custom and case law scattered across reports cannot be read by the person who must obey them.
• Uniformity. One rule for the whole country on the subjects where one rule is possible, and an honest exception where it is not.
• Accessibility. A code makes law findable, which is a precondition of everything else, including the law reporting of the last chapter.

Section 53 of the Charter Act of 1833

The power came from section 53 of the Charter Act 1833, which chapter 580 sets out. It provided for the appointment of a Law Commission to inquire into the jurisdiction, powers and rules of the existing courts and police establishments, and into the nature and operation of all laws prevailing in any part of India, and to report on them.

The Law Commission of India's own account of its early beginnings puts the two halves of the 1833 Act together: the Act "vested for the first-time legislative power in a single authority, namely, the Governor-General in Council", and it enabled that authority to appoint a commission to be called the Indian Law Commission for enquiring into the nature and operation of all laws prevailing in any part of British India, to prepare a report and advise the Legislative Council on matters of law.

That pairing is the point, and it is worth a sentence in any answer about 1833. A commission that reports is useless without a legislature that can enact, and a legislature is useless without somebody to prepare the material. The Charter Act of 1833 created both at once.

The four Law Commissions of the British period

The First Law Commission, 1834

Appointed under the Charter Act 1833. Lord Thomas Babington Macaulay was the first Law Member of the Governor-General's Council under section 45 of that Act, and led the Commission with three other members.

Its chief contributions, in the words of the Law Commission's own Report No. 14, were:

• the draft Penal Code of 1837;
• the draft law of Limitation and Prescription of 1842;
• the scheme of pleading and procedure with forms of criminal indictments of 1848; and
• the Lex Loci proposals of 1841.

It also reported on the judicial establishments of the Presidencies of Bengal, Madras and Bombay.

That draft Penal Code is the single most important thing any of these Commissions did. It was not enacted until 1860, twenty-three years after it was drafted and after Macaulay was dead, and it governed the criminal law of India until it was replaced by the Bharatiya Nyaya Sanhita.

Lex loci: what the expression means and what the proposals were

Lex loci is Latin for the law of the place, and in this context it means the law of the land: the general body of law that applies in a territory to a person who is not governed by some special personal law.

The problem was a real one and it followed from everything in Modules I and II. In the mofussil, Hindus were governed in personal matters by Hindu law and Muslims by Muslim law. For everybody else in the mofussil there was no body of substantive civil law at all. Christians, Anglo-Indians, Armenians, Parsis and Jews living outside the Presidency Towns had no lex loci: no ascertainable law of the land to determine their rights.

The First Law Commission's Lex Loci proposals of 1841 addressed that gap, and the Second Law Commission, in its Second Report, examined the problems of lex loci and codification and reached the conclusion that Report No. 14 quotes:

"what India wants is a body of substantive civil law, in preparing which the law of England should be used as a basis, but which, once enacted, should itself be the law of India on the subject it embraced."

Read that sentence carefully, because it is the whole philosophy of Indian codification in one line, and it has two halves that pull against each other. English law as the material, because it was the material to hand and the draftsmen knew it; and an Indian enactment as the authority, so that once passed, the code was the law of India, not English law applied in India. That is why an Indian court construing the Indian Contract Act is construing an Indian statute and not the English law of contract.

On the date. Textbooks commonly speak of "the Lex Loci Report of 1837". The Law Commission of India's own Report No. 14 lists the First Commission's contributions as the Penal Code of 1837, the Limitation law of 1842, the pleading scheme of 1848 and the Lex Loci proposals of 1841. This book gives the Commission's own date and records the disagreement rather than hiding it.

The Second Law Commission, 1853

Appointed after the Charter Act of 1853, and it did two things that matter to this paper.

It examined the First Commission's recommendations and made its own, including the conclusion on lex loci quoted above.

And its proposals for the amalgamation of the Sadar Courts and the Supreme Courts were given effect to by the Indian High Courts Act of 1861. That is the connection a good answer makes: the merger that the whole of Module II is about was recommended by a Law Commission. Cowell records that the members of the Indian Law Commission, though they approved of the proposed union of the courts, thought it would be useless to attempt it until the Codes of Procedure were established, and that a Royal Commission was issued to obtain the basis on which the forms of procedure could be framed.

It also submitted plans and codes of procedure for the North Western Provinces in its Third Report and for Madras and Bombay in its Fourth.

The Third Law Commission, 1861

It produced draft Bills on succession, contracts and negotiable instruments. Of those, only the succession Bill became law, in 1865, as the Indian Succession Act.

The Fourth Law Commission, 1879

It completed its work in ten months, and from it came enactments on negotiable instruments in 1881 and the transfer of property in 1882.

What the four produced, together

Over roughly fifty years the Commissions adapted English legal principles to Indian conditions and produced the statutes that are still the frame of Indian private and criminal law: the Indian Penal Code, the Code of Civil Procedure, the Code of Criminal Procedure, the Indian Contract Act, the Indian Evidence Act, the Indian Succession Act, the Negotiable Instruments Act, the Limitation Act and the Transfer of Property Act.

A student who is asked for the contribution of the first Law Commission should give the four items in the list above and then this sentence: it began the codification of Indian law, and the codes it and its successors produced are the reason India has a statutory civil and criminal law at all.

The Law Commission of India, from 1955

The Commissions of the British period were appointed for particular tasks and dissolved. Independence changed the question, and the Law Commission's own account states why: the Constitution gave "a new perspective to law reform to fulfil the aspirations of the people and the needs of a democratic legal order in a plural society", and both Parliament and the public called for "establishing a Central Law Commission to recommend revision and updating of the inherited laws".

The word inherited is the key. In 1950 India had a body of law made for a colonial government by a legislature in which Indians had had at most a minority voice, and a new Constitution with fundamental rights that a great deal of that law did not fit.

The Central Government established the First Law Commission in 1955 with the then Attorney-General of India, Mr M. C. Setalvad, as its Chairman. He is the same M. C. Setalvad who had sat on the All-India Bar Committee two years before, which is a useful thing to notice: the same handful of people built the profession and the machinery of law reform in the same decade.

Since then twenty-two Law Commissions have been appointed, each with a three-year term and with a definite term of reference.

The Fifth Law Commission sat from 1968 to 1971 under the chairmanship of Mr K. V. K. Sundaram. MU has asked about it by number, and that is the answer to give, together with the general point that every Commission is appointed for a fixed term with a stated terms of reference, so that the purpose of appointing the fifth was the purpose stated in its own terms of reference and its work is in the reports it submitted.

What kind of body it is

This is the point most students get wrong, and it is easy marks.

The Law Commission of India is a non-statutory body constituted by notification of the Government of India. There is no Law Commission Act. It is not a court, it is not a tribunal, and it cannot make law or compel anybody. It is an executive advisory body, reconstituted from time to time, whose function is to conduct legal research and submit reports on subjects referred to it by the Government, or taken up by it of its own motion.

Compare that with the bodies this book has described. The High Court is created by letters patent under an Act. The Bar Council of India is created by section 4 of the Advocates Act. The Law Commission is created by a notification, and its whole authority is the quality of its reasoning.

What it does

• It examines existing laws in the light of the Constitution, and recommends repeal of obsolete laws, revision of laws that need amendment, and consolidation where the law on a subject is scattered.
• It takes up subjects on a reference from the Department of Legal Affairs, from the Supreme Court or a High Court, or suo motu, that is, on its own motion, as it did with legal education in Report No. 184.
• It submits reports, usually with a draft Bill attached, and more than two hundred and seventy reports have been submitted.
• It has no power to enact anything. A report becomes law only if the Government introduces a Bill and Parliament passes it, and many reports never do.

That last point is the honest answer to a question about the Commission's contribution to law reform: its record is a record of recommendations, some of which became great statutes and some of which are still sitting in a file.

A worked example

MU asks: "Describe the role of Law Commission in modern India and explain its contributions towards law reforms." Here is the shape of a thirteen-mark answer.

1. Say what it is. A non-statutory executive body constituted by notification of the Government of India, first constituted in 1955 under M. C. Setalvad, since when twenty-two Commissions have been appointed, each for a three-year term with a definite terms of reference.
2. Say where it comes from. Its ancestor is the Indian Law Commission of section 53 of the Charter Act 1833, and the four British-period Commissions of 1834, 1853, 1861 and 1879.
3. Say what it does. Reviews inherited and existing law against the Constitution; recommends repeal, amendment and consolidation; works on references from the Government and the courts and suo motu; and submits reports, over two hundred and seventy of them, usually with a draft Bill.
4. Say what it cannot do. It cannot legislate. Its reports bind nobody, and a report becomes law only when Parliament enacts it.
5. Give the contribution, in two halves. Before independence: the Penal Code, the two Procedure Codes, the Contract, Evidence, Succession, Negotiable Instruments, Limitation and Transfer of Property Acts. After: the systematic review of inherited law, beginning with Report No. 14 on the Reform of Judicial Administration in 1958, which is also the source for what this book says about legal education in the next chapter.
6. Finish with the limitation. The Commission is only as effective as the Government that refers subjects to it and the Parliament that acts on its reports; its influence is persuasive, not legal.

The other engine: judicial precedent

MU asks for a short note on judicial precedents, and it belongs here because reform of the law happens by two routes and this is the second.

A precedent is a decided case treated as authority for the rule it decided. The binding part is the ratio decidendi, the reason for the decision: the rule of law necessary to the result on the facts found. What a judge says in passing, not necessary to the decision, is obiter dictum and is persuasive only.

The doctrine that a court is bound to follow the ratio of an earlier decision is called stare decisis, from stare decisis et non quieta movere, to stand by decided matters and not disturb what is settled. Its object is certainty, which is the same object as codification's; the difference is that a code fixes the rule in advance and precedent settles it after the event.

In India its statutory and constitutional footing has been traced through this book: appeals to the King in Council from 1726, the Privy Council whose decisions bound all Indian courts until 1949, section 212 of the Government of India Act 1935, which made the Federal Court's decisions binding on all courts in British India, and now article 141, by which the law declared by the Supreme Court is binding on all courts within the territory of India. And the machinery that makes it usable is the subject of the previous chapter: law reports.

What beginners get wrong

"The Law Commission of India was set up by an Act." It is a non-statutory body constituted by a notification of the Government of India. There is no Law Commission Act.

"The Law Commission makes laws." It recommends. It submits reports, usually with a draft Bill, and nothing happens unless the Government introduces the Bill and Parliament passes it.

"Lex loci is a Latin term for local custom." It means the law of the place, that is, the general law of the land; and in this subject it names the problem that persons in the mofussil who were neither Hindus nor Muslims had no body of substantive civil law governing them.

"The first Law Commission gave India the Indian Penal Code in 1837." It gave India the draft Penal Code in 1837. The Code was enacted in 1860.

"There has been one Law Commission since 1955." There have been twenty-two, each appointed afresh for a three-year term with its own terms of reference.

Limits and criticism

Codification was done to India, not by it. The men who drafted the codes were English lawyers using English law as their material, and the Second Commission said so openly: English law as the basis, an Indian enactment as the authority. That produced statutes of a very high technical quality and it also produced a private law whose categories are English, which is a criticism that Indian legal scholarship has been making ever since.

And the codes were slow. The draft Penal Code took twenty-three years to become law; the Third Commission's three Bills produced one Act; the Fourth Commission finished in ten months and its Bills waited two and three years more. A commission cannot enact, and the delay between recommendation and enactment is the standing weakness of the whole method, before and after independence.

What can be said for it is very large. In fifty years, four commissions turned a mass of charters, regulations, personal laws and English rules into a set of codes that a lawyer could learn and a litigant could be told about; and the permanent Commission since 1955 has kept that body of law under continuous review in a way that no legislature with an ordinary business could. Report No. 14, the Reform of Judicial Administration, is the ancestor of most modern thinking about the Indian courts, and this book has used it as a source twice.

Quick revision

• Codification is reducing the law on a subject to a systematic enacted written statement. Its objects are certainty, uniformity and accessibility. Macaulay: "uniformity when you can have it; diversity when you must have it; but in all cases, certainty."
• s.53 of the Charter Act 1833: an Indian Law Commission to inquire into the courts, the police establishments and the nature and operation of all laws prevailing in any part of British India, and to report.
• First Law Commission, 1834, Lord Macaulay the first Law Member, with three other members. Contributions: draft Penal Code 1837, draft law of Limitation and Prescription 1842, scheme of pleading and procedure with forms of criminal indictments 1848, and the Lex Loci proposals of 1841.
• Lex loci = the law of the place, the law of the land. The problem: no body of substantive civil law for persons in the mofussil who were neither Hindus nor Muslims.
• Second Law Commission, 1853: examined lex loci and codification and concluded that "what India wants is a body of substantive civil law, in preparing which the law of England should be used as a basis, but which, once enacted, should itself be the law of India"; and its proposals for the amalgamation of the Sadar and Supreme Courts were given effect by the Indian High Courts Act 1861.
• Third, 1861: Bills on succession, contracts and negotiable instruments; only succession passed, in 1865. Fourth, 1879: finished in ten months; negotiable instruments 1881 and transfer of property 1882.
• Law Commission of India: non-statutory, constituted by notification; First, 1955, chairman M. C. Setalvad, Attorney-General; twenty-two Commissions since, each three years with a definite terms of reference; Fifth, 1968 to 1971, K. V. K. Sundaram; more than two hundred and seventy reports; works on references and suo motu; cannot legislate.
• Precedent: the binding part is the ratio decidendi; obiter dictum persuades only; the doctrine is stare decisis; and in India it rests now on article 141.

Test yourself

1. Why is codification essential? Give three reasons. Certainty, because a written code can be read by the person bound by it while scattered custom and case law cannot; uniformity, because one rule can then govern the whole country on the subjects where one rule is possible; and accessibility, because a code makes the law findable. Macaulay put the object as uniformity where you can have it, diversity where you must, but in all cases certainty.

2. What is lex loci, and why was it a problem in British India? Lex loci means the law of the place, that is, the general law of the land applying to a person not governed by a special personal law. It was a problem because in the mofussil Hindus were governed by Hindu law and Muslims by Muslim law in personal matters, and there was no body of substantive civil law at all for persons who were neither, such as Christians, Anglo-Indians, Armenians, Parsis and Jews. The First Law Commission made Lex Loci proposals in 1841 and the Second Law Commission, in its Second Report, concluded that what India wanted was a body of substantive civil law prepared on the basis of English law but which, once enacted, should itself be the law of India.

3. What was the contribution of the first Law Commission? The draft Penal Code of 1837, the draft law of Limitation and Prescription of 1842, the scheme of pleading and procedure with forms of criminal indictments of 1848, and the Lex Loci proposals of 1841, together with reports on the judicial establishments of the three Presidencies. Its Penal Code, enacted in 1860, governed the criminal law of India for more than a century and a half.

4. What kind of body is the Law Commission of India, and what does it do? A non-statutory body constituted by notification of the Government of India, first constituted in 1955 with the Attorney-General M. C. Setalvad as chairman, and reconstituted since as twenty-two Commissions, each with a three-year term and a definite terms of reference. It examines existing and inherited laws against the Constitution, recommends repeal, amendment and consolidation, works on references from the Government and the courts and on its own motion, and submits reports, of which more than two hundred and seventy have been made. It cannot legislate; a report becomes law only if the Government introduces a Bill and Parliament passes it.

5. What connects the Law Commissions to the Indian High Courts Act 1861? The Second Law Commission's proposals for the amalgamation of the Sadar Courts and the Supreme Courts were given effect to by that Act. The Commissioners approved the union of the courts but thought it useless to attempt it until the Codes of Procedure were established, and a Royal Commission was issued to obtain the basis on which the forms of procedure could be framed.

6. Distinguish ratio decidendi from obiter dictum, and name the doctrine that makes precedent binding. The ratio decidendi is the rule of law necessary to the decision on the facts found, and it is the part that binds. An obiter dictum is something said in passing and not necessary to the decision, and it is persuasive only. The doctrine that a court must follow the ratio of a previous decision is stare decisis, and in India the binding force of the Supreme Court's decisions on all courts comes from article 141 of the Constitution.