FACULTY OF LAW, JAMIA MILIA ISLAMIA

LEGAL AND CONSTITUTIONAL HISTORY- I

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CODIFICATION
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SUBMITTED BY SUBMITTED TO
MOHAMMAD ARISH Dr.MOHD. KHALID
Semester-III

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 AKNOWLEGEMENT

The success and final outcome of this assignment required a lot of guidance and
assistance from many people and I extremely fortunate to have got this along the
completion of our assignment work. Whatever I have done is only due to such
guidance and assistance and I would not forget to think them. I respect and
thank Dr. Mohd. Khalid for giving me an opportunity to do this assignment on
time. I extremely grateful to him for providing such support and guidance.

I am really grateful because I managed to complete this assignment within the

time given by Dr. Mohd. Khalid . This assignment cannot be completed without
the effort and co- operation from our group members. I would like to express my
gratitude to my friends for support.

Yours sincerely,
Mohammad Arish

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 TABLE OF CONTENTS




1. INTRODUCTION ___________________________________________ [4]


2.PLEA FOR CODIFICATION______________________________________[6]

3. INDIA -SUCCESSFUL FIELD OF CODIFICATION_________________ [6]
4. FIRST LAW COMMISSION _____________________________________ [7]
5. SECOND LAW COMMISSION________________________________ [8]
6. THIRD LAW COMMISSION___________________________________ [9]
7. LEGISLATIVE DEPARTMENT OF MINISTRY OF LAW IN
INDIA___[9]
8. CENTRALIZED AGENCY FOR DRAFTING BILLS IN INDIA________[10]
9. CODIFICATION -INDIA TAKES THE LEAD_______________________[12]
10. USE OF HINDI FOR BILLS AND ACTS __________________________[12]
11. OFFICIAL LANGUAGE (LEGISLATIVE) COMMISSION __________[14]
12. TRANSLATIONS OF LAWS INTO LANGUAGES OTHER THAN
HINDI___________________________________________________________[14]
13. HINDI TRANSLATIONS OF STATE ACTS IN OTHER LANGUAGES_[15]
14. CONCLUSION ________________________________________________[15]
15. BIBLOGRAPHY _______________________________________________[16]

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 Introduction

The Charter Act 1833 which was enacted by the British Parliament provided for the establishment
of a Law Commission for consolidation and codification of Indian Laws. The said Act provided for
the addition of a fourth ordinary Member to the Governor General in Council for India who was to
be a legal expert in the making of laws. Lord Macaulay was appointed as the fourth ordinary
Member and was entitled to participate in the meetings of the Governor General in Council for
making of laws.

In 1835, Lord Macaulay was appointed as Chairman of the First Law Commission. Sir James
Stephen was appointed as a Law Member in place of Lord Macaulay. At that point of time a
separate department known as the Legislative Department was functioning as a sub-division of the
Home Department managed by an Assistant Secretary who prepared the draft Bills needed for
legislations.During 1869, it was felt that so important duty ought to be entrusted to a distinct
department and thus a separate department known as the Legislative Department was constituted.
After the constitution of the Legislative Department, proposals for legislations were initiated by the
concerned Department dealing with the subject matter and thereafter the Legislative Department
used to take charge of the Bill. The Secretary to the Legislative Department was also Secretary to
the Council of the Viceroy for the purpose of making laws. He and the Law Member drafted all the
Bills which were placed before the Council. Due to the labours of the Law Commission many
important Acts were enacted during the latter part of the Nineteenth Century.

To name a few, the Indian Penal Code which is still in force was the product of the original work of
Lord Macaulay. Similarly, the draft contained in the First Report of the Third Law Commission
formed the basis of the Indian Succession Act passed by the Governor General and Council under
the guidance of Sir Henry Maine. It codified the law relating to the effect of death and marriage
upon succession to property and also the law relating to Bills. The Second Report (1866) contained
a draft Contract Bill which became law after revision by Sir James Stephen in 1872.

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Bentham who has been described by Ilbert as the Chief apostle of codification, to whom the word
‘codification’ owes its origin, has in his General View of a Complete Code of Laws explained the
meaning and the object of codification. He says -
(1) A code is a complete digest, such is the first rule, whatever is not in the code of laws ought
not to be the law.
(2) The object of a code is that every one may consult the law which he stands in need, in the
least possible time.
(3) The great utility of the code of laws is to cause the debates of lawyers and bad laws of former
times to be forgotten.
(4) A code framed upon these principles would not require schools for its explanation, would not
require casuists to unravel its subleties. It would speak a language familiar to everybody;
each one might consult it at his need. It would be distinguished from all other books by its
greater simplicity and clearness.

Therefore the process of codification of laws consists in collecting together the laws on several
topics which regulate the rights and liabilities of individuals on various matters into a precise
breif unambiguous, compact and scientific system. It serves the purpose of removing uncertainty
in law arising out of conflicting interpretations given by the Courts. After considering the various
anomalies, incongruities and complicated nature of existing laws, and with a purpose of system
atising and simplifying the laws the process was felt absolutely necessary in the beginning of the
Nineteenth Century.

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 Plea for Codification
When the Charter Bill of 1833 was before the British Parliament, Several members of Parliament
strongly subscribed to the view of Bentham in favour of Codification.. Important among them
being Macaulay. On 13th June 1833, Mr. Charles Grant, while moving a resolution in connection
with the renewal of the charter of the Company quoted the following view expressed by the
Judges of the Supreme Court at Culcutta in their letter to Governor-General of Calcutta about the
State of law in Bengal.

“In this state of circumstances, no one can pronounce an opinion or form a judgement, however
sound, upon any disputed right of persons respecting which doubt and confusion may not be
raised by those who may choose to call it in question; for very few of the public or persons in
office, at home, not even the law officers, can be expected to have so comprehensive and clear a
view of the present Indian system, as to know readily and familiarly the bearing of each part of it
on the rest. There are English Acts of Parliament specially provided for India and others of which
it is doubtful whether they apply to India wholly, or in part, or not at all. There is the English
common law and constitution, of which the application is in many respects still more obscure
and preplexed; Mohammedan Law and usage; Hindu law, usage and scripture; Charters and
Letters Patent of the Crown; Regulations of the

INDIA -SUCCESSFUL FIELD OF CODIFICATION

Ilbert maintains that since India has been the most successful field of English codification, it may
be worth while to trace somewhat fully the methods which have been adopted for carrying out
the work of codification in India, the stages by which it has been advanced, and the results which
have been achieved.
The scheme of giving to British India a complete and definite system of law probably originated
in a correspondence which took place about 1829 between Sir Charles Metealfe and the judges
of Bengal. It was adopted by Parliament on the renewal of the Indian Charter in 1833. The

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Charter Act of 1833 provided for the appointment by the Governor-General in Council and the
establishment of a Law Commission to inquire into the jurisdiction, powers, and rules of the
existing courts of justice and police establishments, and into the nature and operation of all laws
prevailing in any part of British India; and to make reports thereon, and suggest alterations; due
regard being had to the distinction of castes, difference of religion, and the manners and opinions
prevailing among different races and in different parts of the said territories.

First Law Commission

In pursuance of the powers thus conferred, the first Indian Law Commission was appointed in
the year 1834. It consisted originally of Macaulay, who was the first Legislative Councillor, and
of three Civil Servants of the Company - one from each Presidency. After about two years this
Commission published Macaulay's draft of the Indian Penal Code, which was subsequently
revised by Mr. Drinkwater Bethune, Sir Barnes Peacock and others, and did not become law
until 1860, long after the first Indian Law Commission had ceased to exist. The Commission
seems to have lost much of its vitality after Macaulay's departure from India. It lingered on for
many years, published periodically bulky volumes of reports, but did not succeed in effecting, or
in inducing the Government to affect, any measure of codification, and was finally allowed to
expire. The last of the Indian Charter Acts, that of 1853, refers to the labours of the
Commissioners by reciting that they ' have in a series of reports recommended extensive
alterations in the judicial establishment, judicial procedure and laws, established and in force in
India, and have set forth in detail the provisions which they have proposed to be established by
law for giving effect to certain of their recommendations, and such reports have been transmitted
from time to time to the Court of Directors, but on the greater part of such reports and
recommendations no final decision has been had." Accordingly the Act of 1853 provided for the
appointment of a new Commission, which was instructed to make a diligent and full inquiry into
and to examine and consider, the recommendations of the previous Commissioners and the
enactments proposed by them for the reform of the judicial establishments, judicial procedure
and laws of India, and such other matters in relation to the reform of the said judicial
establishments, judicial procedure and laws as might, by or with the sanction of the
Commissioners for the affairs of India, be referred to them for their consideration.’

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 Second Law Commission

This second Commission was appointed on November 9, 1853. It consisted of eight members,
including Sir John (afterwards Lord) Romilly, Sir John Jervis, Sir Edward Ryan,, and Mr. Robert
Lowe, afterwards Lord Sherbrooke. At the time of their appointment the intention of
amalgamating the Queen's and Company's Courts in the Presidency towns of India (known as.the
Supreme and Sudder Courts) had already been announced to Parliament, and the Commissioners
were instructed to address themselves, in the first instance, to the consideration of the
preliminary measures necessary for this purpose, in particular to the preparation of a simple and
uniform code of procedure.

The Commissioners sat in London till the middle of 1856 and presented four reports, in which
they submitted a plan for the amalgamation of the Supreme and Sudder Courts, and a uniform
Code of Civil and Criminal Procedure, applicable both to the High Courts formed by that
amalgamation, and to the inferior courts of British India. They also adverted to the wants of India
in respect of substantive civil law, and they submitted their views as to the best mode of
supplying those wants.

The recommendations of these Commissioners resulted in important legislation both in

Parliament and in the Legislative Council of India. Macaulay's Penal Code was taken up and
revised, and was passed into law in 1860. A Code of Civil Procedure was passed in 1859 and a
Code of Criminal Procedure in 1861. By the Act of Parliament of 1861, 'for establishing High
Courts of Judicature in India' (24 & 25 Viet. e. 104), the old Supreme and Sudder Courts at
Calcutta, Madras and Bombay were amalgamated into the present Chartered High Courts, and
provision was made for establishing another High Court in the North-West Provinces. Thus by
1861 India had acquired a Penal Code and Codes of Civil and Criminal Procedure. The
Procedure Codes were doubtless rough and capable of much improvement, but they constituted

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an enormous advance on the chaotic and incomplete regulations by which they had been
preceded.

Third Law Commission

On December 2, 1861, a third Indian Law Commission was constituted, consisting in the first
instance of Lord Romilly, Sir William Erie, Sir Edward Ryan, Mr. Robert Lowe (Lord
Sherbrooke), the late Mr. Justice Willes, and Mr. Macleod. On the retirement of Lord Chief
Justice Erle and Mr. Justice Wills their places were taken by Mr. W.M. James (afterwards Lord
Justice James) and Mr. John Henderson, and on the death of Mr. Henderson he was succeeded by
Mr. Lush, afterwards Lord Justice Lush. The instructions of the Commissioners were to prepare,
in accordance with the recommendation of the earlier Commissions, a body of substantive law
for India, and to consider such other matters in relation to the reform of the laws of India as
might be referred to them by the Secretary of State.

LEGISLATIVE DEPARTMENT OF MINISTRY OF LAW IN INDIA

Although a Legislative Law Member was added to the Governor General's Council as early as
1833, there was no separate Legislative Department under the Governor-General-in-Council. The
Secretarial assistance to the Legislative Member was provided in the Home Department itself. A
branch in the then Home Department, which was known as the Legislative Branch, was entrusted
with this job. The duties allotted to the Legislative Branch were then as follows:-
(i) To prepare the drafts of Government Bills under the supervision of the Legislative Member of
the Council.
(ii) to draft or assist in drafting the Bills of the additional members; (iii) to attend the meetings of
the Select Committees and to prepare the
reports;
(iv) to prepare the reports of proceedings of Council for making laws
and regulations.
(v) to superintend the current work of Legislative office which consisted chiefly of keeping the
books and records of the Council and in printing and distributing Bills, Acts and Reports of

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Committees, papers relating to Bills and Reports of the Presidencies of the Council at its
meeting.

CENTRALIZED AGENCY FOR DRAFTING BILLS IN INDIA

If Bills are left to be drafted haphazardly, as and when the need arises, by lawyers, judges,
departmental officials chosen ad hoc for the purpose, as was the case in England many years ago
and seems to be still prevalent in some parts of the world, the Bills are bound to suffer from
many defects, like wide divergence in language, lack of precision and uniformity, conflict of
interests between the various departments of the Government concerned with the implementation
of the Bill, if turned into law. So during 1869, it was felt that so important duty ought to be
entrusted to a distinct department and thus a separate department known as the Legislative
Department was constituted. By a Resolution of the Government of India the Legislative
Department came into existence on the 8th February 1869. And the legislative Secretary was
appointed as the third Secretary to Government of India after the Home and Defence Secretaries.
Mr. Whitley Stokes was appointed as the first as Secretary to the India Legislative Department,
and then as Law Member of the Governor-General's Council, and was marked by the passing of
a large number of consolidating Acts, which materially reduced the bulk and simplified the form
of the Indian Statute Book. With the creation of legislative Department the Legislative Branch of
the Home Department was abolished and additional duties which were imposed upon the
legislative Department were:-
(1) correspondence with local Governments and Administrations and with the Government in
Britain relating to Bills and Acts; and
(2) giving opinions in cases submitted by other departments of the Government of India.
Besides these, the Department itself found it necessary to prepare and publish from time to time
indices to British Statutes relating to or applicable
to India, unrepealed Acts of the Governor General, Acts of the three local Councils and digests of
the whole written law of what was then known as "British India". In addition to the work
connected with legislation, the Legislative Department under the rules for the distribution of
work used to receive a considerable number of unofficial references also from the several
Departments. Finding it necessary to make the rules regulating unofficial references to the

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Legislative Department more exact, the Government of India defined the duties of the
Legislative Department in July, 1897 as follows: -

The Executive Department may consult the Legislative Department on the following subjects: -
(a) construction of statutes, Acts Regulations.
(b) questions on general legal principles arising out of any case.
(c) proposed amendments of the law.
(d) notifications to be issued under the enactment.
Provided that the Legislative Department shall not be asked to advise on: -
(e) cases which are connected with legal proceedings commenced or pending or which are likely
to involve any claim against the Government, or questions connected with the practice and
procedure of the courts;
(f) cases on which the Advocate General has advised; or
(g) cases in which any Advocate-General or Government Advocate could advise in the ordinary
course of his duties and as to which there is no special reason for referring to the Legislative
Department.

After the constitution of the Legislative Department, proposals for legislations were initiated by
the concerned Department. dealing with the subject matter and thereafter the Legislative
Department used to take charge of the Bill. The Secretary to the Legislative Department was also
Secretary to the Council of the Viceroy for the purpose of making laws. He and the Law Member
drafted all the Bills which were placed before the Council. During this period Mr. Whidey Stokes
was Secretary to the Legislative Department of the Government of India, as he had been during
part of Sir James Stephen's office and almost the whole of Sir Henry Maine's term of office. It is
impossible to exaggerate the debt of gratitude which is due from India to Mr. Stokes for his
labours as Legislative Secretary. He was the draftsman of several of the most important measures
passed by his chiefs, and, above all, it is owing to the unflagging zeal and energy with which he
carried on, through a large series of years, the laborious and wearisome, task of consolidation,
that the Indian Statute Law has been reduced to a compact and convenient form.

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CODIFICATION -INDIA TAKES THE LEAD
According to Ilbert in codification, as distinguished from the less ambitious work of
consolidation, British India, takes the lead. To justify this statement he refers to the laws
commonly known as the Indian Codes namely the Indian Penal Code, the Codes of Criminal and
Civil Procedure, the Evidence Act, the Contract Act, the Succession Act, the Specific Relief Act,
the Negotiable Act, the Indian Trusts Act, the Transfer of Property Act, and the Councils Act. He
furthet maintains that none of the self-governing or Crown Colonies can approach this record.
The Government of India Act, 1919 and die Government of India Act, 1935 did not involve
many changes except for the increase in the volume of work on account of increase of activities
of the Government Departments and the emergency legislative measures like the Defence of
India Act and the rules thereunder, the Legislative Department functioned with more or less the
same duties under the charge of a Member of the Governor General's
Executive Council until the 14th August, 1947.

USE OF HINDI FOR BILLS AND ACTS

As the Constitution has specified Hindi as the official language of the Union, a word may be said
here about Bills and Acts in Hindi. The Constitution, after prescribing Hindi in Devanagari script
as the Official language of the Union, (art.343), provides for the continued use of the English
language, pending the switch over to Hindi. Thus, article 348 (l)(b) states that until Parliament by
law otherwise provides, the authoritative texts
(i) of the Bills to be introduced or amendments thereto to be moved in either House of
Parliament or in the House or either House of the Legislature of a State.
(ii) Of the Acts passed by Parliament or the Legislature of a State and of all Ordinances
promulgated by the President or the Governor of a State, shall be in the English language.
It is however, open to the Legislature of any State to prescribe any language other than English
for use in Bills introduced in or Acts passed by the Legislature or in Ordinances promulgated by

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the Governor, and, where it so does a translation of the same in the English language published
under the authority of the Governor in the Official Gazette shall be deemed to be the
authoritative text thereof in the English language.
The Constitution makers felt that the switch over to Hindi could be affected in fifteen years and
it was therefore provided in the Constitution that Commissioners might be appointed in the
meantime who will report on the progressive use of Hindi and the restrictions which may be
placed on the English language. Their recommendations would be examined by Committees of
Parliament specially constituted for the purpose, and based on the reports of these Parliamentary
Committees suitable directions would be issued by the President.

OFFICIAL LANGUAGES ACT, 1963

The position as it obtains, after the expiradon of fifteen years from the commencement of the
Constitution, can be traced from the Official Languages Act, 1963, (19 of 1963) which took
effect on the 26lh January 1965 with the exception of section 5 which came into force on the
10lh January 1965.

H I N D I TRANSLATIONS OF BILLS AND ACTS

Section 3(1) provides that notwithstanding the expiration of the period of fifteen years specified
in the Constitution, the English language may (the use of the word "may" is significant) continue
to be used, in addition to Hindi, for the transaction of business in Parliament, among other
matters. Bills therefore continue to be drafted in the English language and Acts passed are also in
the same language. Section 5, however, provides that a translation in Hindi published under the
authority of the President in the Official Gazette on or after the 10th January 1965, of any
Central Act or of any ordinance promulgated by the President shall be deemed to be the
authoritative text in Hindi. It is also provided that the authoritative texts of all Bills to be

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introduced or amendments to be moved in either House of Parliament after the 1st October 1976
shall be accompanied by a translation thereof in Hindi authorized in the prescribed manner.

OFFICIAL LANGUAGE (LEGISLATIVE) COMMISSION

An Official Language (Legislative) Commission was constituted by the Central Government in
1961, one of whose duties it was to have all the important Central Acts, Ordinances and
Regulations translated into Hindi. The Official Language (legislative) Commission was
abolished in 1976 and its functions have been taken over by the Official Languages Wing of the
Legislative Department of the Ministry of Law. Its functions are: -
(i) to prepare and publish a standard legal terminology for use, as far as possible, in all official
languages;
(ii) to prepare authoritative texts in Hindi of all Central Acts and Ordinances and Regulations
promulgated by the President;
(iii) to prepare authoritative texts in Hindi of all rules, regulations and orders made by the
Central Government under any Central Act or any Ordinance or Regulation promulgated by the
President;
(iv) to arrange for the translation of Central Acts, Ordinances and Regulations promulgated by
the President in the respective official languages of the States and for the translation of all Acts
passed and Ordinances promulgated in any State into Hindi, if the texts of such Acts or
Ordinances are in a language other than Hindi; and
(v) to perform such other duties as may be assigned to it by the Government of India from time
to time.
In addition it has to undertake the translation of all Bills to be introduced in Parliament. This
wing has a number of draftsmen trained in drafting Bills in Hindi and these officers work in
close collaboration with the Ministry of Law where the English versions of Bills are prepared.

TRANSLATIONS OF LAWS INTO LANGUAGES OTHER THAN

HINDI
The Authorised Translations (Central Laws) Act, 1973 (50 of 1973) further provides that a
translation in any language (other than Hindi) specified in the Eighth Schedule to the
Constitution, published under the authority of the President in the Official Gazette (a) of any

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Central Act or any Ordinance promulgated by the President or (b) of any order, rule, regulation
or bye law issued under the Constitution or under any Central Act, shall be deemed to be the
authorized translation thereof in such language. This Act is still to come into force.

HINDI TRANSLATIONS OF STATE ACTS IN OTHER LANGUAGES

Where the Legislature of a State has prescribed a language other than Hindi for use in Acts
passed by it or in Ordinances promulgated by the Governor and if a translation of the same in
Hindi, in addition to a translation thereof in the English language, is published under the
authority of the Governor in the Official Gazette of the State, the Hindi translation will be
deemed to be the authoritative text of the Act or Ordinance.

Conclusion

Though codification took place in several important branches of law, the whole area of
substantive law could not be covered during the British Period. One of the important branch of
law which was not covered was the Law of Civil Wrong or Torts. Inspite of efforts made by the
Fourth Law Commission in this direction the Government of India did not take any further
steps. Another goal which remained unfulfilled was the proposal to prepare a Civil Code in
which all the Acts should form chapters. Whatever that may be, codification of laws on several
important substantive and procedural branches of law, brought into being an uniform set of laws

for the whole country. 


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 Bibliography

1.) M.P. Singh : Outlines of Indian Legal and Constitutional History, Universal Law
Publishing Co. Pvt. Ltd, New Delhi.

2.) Legal and Constitutional History of India

3.) wikipedia.org

4.) http://14.139.60.114:8080/jspui/bitstream/123456789/714/10/.
Influence%20of%20codification%20of%20Law.pdf

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