Report No. 14
2. Historical
1. First Law Commission.-
The system of administration of justice and laws as we have today is the product of well thought out efforts on the part of the British Government. No less than four Law Commissions were appointed during the last century to augment the efforts of the Government in settling its shape. Since then a number of committees have been appointed from time to time to deal with particular aspects so as to modify the system to suit the needs of the community. A brief review of the work of the various commissions and committees is necessary both to take stock of what has been done as also to evaluate the task before us.
The first Law Commission was constituted in 1834 under the Charter Act of 1833, to investigate into the constitution of Courts and the nature of laws. In those years there were being administered in the different parts of British India several systems of law "widely differing from each other but co-existing and coequal" and yet, singularly devoid of completeness, uniformity and certainty.
The origin of the important movement for legal reform and codification which began in 1833 may perhaps be traced to a correspondence which took place in or about 1829 between Sir Charles Metcalfe and the Judges of Bengal, in the course of which a scheme was conceived of giving to British India a complete and definite system of laws to replace the medley of conflicting laws and systems of administration of justice which existed when the East India Company found itself the territorial sovereign of the greater part of the country.1
In the debates which preceded the passing of the Act of 1833, Charles Grant, the President of the Board of Control, called attention to the three leading defects in the frame of the Indian Constitution. "The first was in the nature of Laws; the second was the ill-defined authority and power from which these various Laws and Regulations emanated; and the third was the anomalous and conflicting state of judicature by which the Laws were administered".2 Macaulay who devoted a part of his speech upon the second reading, to the uncertainty of the laws and the need for codification to ensure uniformity and certainty, said:
1. See Whitley Stokes The Anglo-Indian Codes, Vol. I, p. x.
2. Hansard, 1833 XVM, p. 728.
"I believe that no country ever stood so much in need of a Code of law as India, and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this,-uniformity when you can have it; diversity when you must have it; but in all cases, certainty".1
1. Cited by Whitley Stokes The Anglo-Indian Codes, Vol. I, p. x.
2. Its personnel and terms of reference.-
The First Indian Law Commission was composed of T.B. Macaulay, the Law Member, as Chairman, and J.M. Macleod, G.W. Anderson and F. Millett.- civil servants drawn from the presidencies of Calcutta, Madras and Bombay as members. The Commission was 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 to suggest alterations, due regard being had to the distinction of castes, differences of religion, and the manners and opinions prevailing among different races and in different parts of the said territories. The Commissioners were to follow such instructions as they should receive from the Governor-General in Council.1
1. Act of 1833, sections 53-55.
3. Work of the Commission.-
Macaulay expected to finish the work on the Penal Code and the Criminal Procedure Code in 1837 and to enter on the work of framing a Code of Civil Procedure in 1838.1 The task before the Commission was, however not as easy as Macaulay had envisaged. It was of a stupendous and diversified character and required a great deal of time and larger personnel. Moreover, the practice of the Government of making too many references to the Commission even on questions "which might have been settled without any such reference" added to the Commission's difficulties and evoked sharp protests from Macaulay.2 It appears from an undated minute of Macaulay that in order to speed up the work on the Penal Code a fifth member was required.3
1. Macaulay's Legislative Minute of 6th June, 1836. India Legislative Consultations, 3rd April, 1837 No. 28; C.D. Dharkar Lord Macaulay's minutes, pp. 239-240.
2. India Legislative Consultations, No. 3, 2nd Jan., 1837.
3. Ibid.
4. Its end.-
After Macaulay's departure late in 1837, the Commission shrank in size and stature partly on account of the absence of a successor of equal vitality and drive and partly because of extraneous circumstances. As Rankin points out in his 'Background to Indian Law', notwithstanding its strenuous labours under Macaulay and his successors, no results had reached the statute book before the mutiny.1 In the words of Fitzjames Stephen "The Afghan disasters and triumphs, the war in Central India, the war with the Sikhs, Lord Dalhousie's annexations, threw law reform into the background and produced a state of mind not very favourable to it."2 It was felt that the Commission cost more than it was worth and in 1844 its strength was reduced to one member and a secretary in addition to the Law Member who acted as its president. By January 1845 it had to fore go its secretary as well.
1. P. 21.
2. Cited in Ranking; Op. Cit., p.21.
5. Estimate of its work.-
In spite of difficulties in its way the first Commission, did remarkable pioneering work. It had to work against the background of the English system which had not then been pruned of its manifold technicalities and the Indian system, full of diversity and incongruities. Without the aid of a perfect model it had to evolve a consistent system of Courts and laws from a conflicting and ill-defined system of judicature on the one hand, and a bewildering variety of ascertained, unascertained or unascertainable rules of law of doubtful origin and vague application, on the other hand.
Its Chief contributions 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. Besides these, the Commission also reported on diverse subjects, e.g., Judicial Establishments of the Presidencies of Bengal, Madras and Bombay. Special Appeals, Review of Judgments framed by Sadar Courts, Report on Slavery, and Remuneration of officers of the Courts of Judicature. It thus laid down the foundations on which other legislators were to work.1
1. Cambridge History of India, Vol. VI, 1932, p. 8.
6. The Second Law Commission.-
The next Charter Act1provided for the appointment of the Second Law Commission to examine and consider the recommendations of the First Indian Law Commission and the enactments proposed by them for the reform of the judicial establishments, judicial procedure and the laws of India and other matters. This Commission was composed of Sir John Romilly, Sir John Jervis, Sir Edward Ryan and Messrs C.H. Cameron, J.M. Macleod, J.A.F. Hawkins, T.F. Ellis and R. Lowe. The Commission was directed to address itself in the first instance to the problem of amalgamation of the Supreme and Sadar Courts of each of the presidencies and to devise a simple system of pleading and practice, "uniform as far as possible throughout the whole jurisdiction".
1. 16 & 17 Vict., c. 95, section 28.
7. The First, Third and Fourth Reports of this Commission (2nd Report: LexLoci).-
In its First Report the Commission submitted a plan for the amalgamation of the Supreme Court at Fort William with Sudder Dewanny and Nizamut Adawlat as well as simple and uniform codes of Civil and Criminal Procedure, applicable to all the courts in the Presidency. The Commission submitted plans and codes of procedure on somewhat similar lines for the North Western Provinces in their Third Report and for Madras and Bombay in their Fourth Report. The Commission's proposals for the amalgamation of the Saddar Courts and the Supreme Courts were given effect to by the Indian High Courts Act of 1861. In 1859, the Indian Legislature enacted the Code of Civil Procedure (VIII of 1859) and the Limitation Act (X of 1859).
The Penal Code and the Code of Criminal Procedure were passed respectively in 1860 and 1861. In 1862 a greater part of the Civil Procedure Code was extended to the High Courts by Letters Patent.1 In their Second Report the Commission examined the problems of Lex Loci and codification and came to the conclusion 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 on the subject it embraced. And such a body of law, prepared as it ought to be with a constant regard to the condition and institutions of India, and the character, religions, and usages of the population, would, we are convinced, be of great benefit to that country".2
1. The Civil Procedure Code of 1859 was amended four times during the next four years. Further amendments were made in 1877 and 1879 and the original Code was revised and replaced by the Codes of 1882 and 1908. The Criminal Procedure Code of 1861 was revised and replaced by the Codes of 1872, 1882 and 1898.
2. The Commission also recommended that codification should not extend to matters like the personal laws of the Hindus and the Mohammedans which derived their authority from their respective religions.
8. The work of the Third and Fourth Law Commissions.-
The Third and the Fourth Commissions were constituted respectively in 1861 and 1879. The Third Commission was at the outset composed of Lord Romilly, Sir William Erle, Sir Edward Ryan, Robert Lowe (later Lord Sherbrooke), Mr. Justice Willes and Mr. J.M. Macleod and sat in England.1 The Fourth Commission sat in India and was composed of Mr. Whitley Stokes, Mr. Justice Turner of Allahabad (later Sir Charles Turner, Chief Justice of Madras) and Mr. Justice West of Bombay. Those two Commissions were entrusted with the task of codification of substantive law on the lines laid down by the Second Law Commission in its Second Report.
The Third Commission submitted six draft Bills on Succession, Contracts, Negotiable Instruments, Evidence, Transfer of Property and Insurance besides making suggestions for revision of the Criminal Procedure Code of 1861. Of these drafts only the first became law in 1865. The Third Commission felt dissatisfied with the apathy of the Government of India in taking no action on their reports and the acquiescence of the Home authorities in this attitude of the Government. They resigned in 1870 partly for these reasons and partly as a result of a controversy between the Secretary of State and the Commissioners on the one hand and the Home and Indian authorities on the other, as to certain proposals of the Commission in the draft on the Law of Contract.
The Fourth Commission was directed to report on certain Bills which had already been prepared for codifying the laws relating to Negotiable Instruments, Transfer of Property, Easements and certain other subjects and to make suggestions for future codification of the remaining branches of the substantive law of India. The Commissioners completed their work in about ten months and submitted their report in 1879. In accordance with their recommendations the Bill relating to Negotiable Instruments was enacted in 1881 and the Bills relating to Trusts, Transfer of Property and Easements etc. were enacted in 1882.
1. Sir W.M. James, L.J. succeeded Sir Willliam Erle; Mr. John Henderson succeeded Mr. Justice Wiles; and Mr. Justice Lush succeeded Mr. Henderson.
9. Other subsequent inquired.-
The system of laws and judicial organisation established in the last century on the basis of the earlier Law Commissions' recommendations has continued with minor modifications down to the present day. The scope and need for improvement particularly in the sphere of judicial administration and procedural laws has been felt throughout this long period but it was only in the years following the first World War that systematic efforts were made in the direction of reform.
10. Statute Law Revision Committee.-
The earliest of these efforts was the creation of the Statute Law Revision Committee of 1921 under, the chairmanship of the President of the Council of State. This Committee was entrusted with the task of preparing for the consideration of the Government such measures of consolidation and clarification as might be necessary to secure the highest attainable standards of formal perfection in the statute law of the country. The Committee did some work in the sphere of consolidation of some branches of substantive law, e.g. Succession and Merchant Shipping. With the retirement of its second President in 1932 the Committee ceased to function.
11. Civil Justice Committee.-
In 1923, mainly through the efforts of Sir Tej Bahadur Sapru, then Law Member of the Viceroy's Executive Council, a committee was appointed to deal with the problem of delay in civil courts and the defects in the constitution of the Judiciary and the substantive and procedural laws of the country.
This Committee with Mr. Justice Rankin as Chairman was "to enquire into the operation and effects of the substantive and adjective law, whether enacted or otherwise, followed by the courts in India in the disposal of civil suits, appeals, applications for revision and other civil litigation (including the execution of decrees and orders),with a view to ascertaining and reporting whether any and what changes and improvements should be made so as to provide for the more speedy, economical and satisfactory dispatch of the business transacted in the courts and for the more speedy, economical and satisfactory execution of the process issued by the courts".
The Committee was expressly directed not to inquire into the strength of judicial establishments maintained in the provinces. After a thorough and careful inquiry into the various problems the Committee submitted an exhaustive report in 1925. We shall have occasion to refer from time to time to its recommendations and the extent to which they were implemented.
12. Committee on special topics.-
In the years preceding independence other Committees were set up both by the Central and Provincial Governments to inquire into particular problems. Amongst the Central Committees must be mentioned the Indian Bar Committee of 1923 to examine the conditions of the Bar in India. The report of this Committee led to the passing of the Indian Bar Councils Act of 1926. Earlier in 1921 the States of Bengal, Bihar, Punjab and United Provinces had appointed special committees to inquire into the problem of the separation of the Judiciary from the Executive. In Madras two committees were appointed for the same purpose, the first in 1923 with Mr. Justice Coleridge and the second in 1946 with Shri K. Rajah Aiyar as Chairman.
The post-independence period witnessed a powerful demand for a complete re-orientation of the legal and judicial systems of the country. Not much, however, could be done in the years immediately following 1947 on account of the Central Government's preoccupation with other problems of a more pressing nature. Mention must, however, be made of the High Court Arrears Committee of 1949 and the All India Bar Committee of 1951. The High Court Arrears Committee, presided over by Mr. Justice Sudhi Ranjan Das was appointed to inquire into and report on the advisability of curtailing the right of appeal and revision, the extent and method of such curtailment, and any other measures that might be adopted to reduce arrears in the High Courts. In view of the restricted character of its terms of reference the Committee contented itself by making a few concrete proposals.
The All India Bar Committee was appointed in December 1951 again under the chairmanship of Mr. Justice Das. Some of the problems referred to it were the desirability and feasibility of a unified Bar for India, the continuance or abolition of different classes of legal practitioners, the continuance or abolition of the dual system of counsel and attorney, and the desirability of a single Bar Council. The Committee recommended the creation of a unified All India Bar and the continuance of the dual system in the Bombay and Calcutta High Courts. In regard to its latter recommendation two of its members expressed dissent.
13. West Bengal and Uttar Pradesh Judicial Reforms Committees.-
Meanwhile the States of West Bengal and Uttar Pradesh appointed separate committees in their respective States to report on several problems relating to the administration of justice. The West Bengal Committee appointed in 1949 under Sir Arthur Trevor Harries, then Chief Justice of Calcutta, was asked to report on four specified matters-(a) reform in the system of administration of justice in Calcutta, (b) reform in the administration of justice in the rural areas, (c) reform of the legal profession and (d) the question of State aid to indigent litigants. The Committee submitted its report in 1951 recommending inter nlin, the setting up of a City Civil and Sessions Court and made several other recommendations.
The Uttar Pradesh Committee was set up in April 1950 with one of us, Mr. Justice K.N. Wanchoo, as Chairman for considering the question of reform in the system of administration of justice in that Statewith a view to simplifying the process of law and making justice cheap and expeditious. Its terms of reference were fairly comprehensive. The Committee submitted its report in 1951 making a series of recommendations, some of which required changes in the law for their implementation.
14. Other Committees of Enquiry.-
Amongst the other committees constituted in the States to inquire into particular problems, special mention may be made of the Separation Committee of 1947 in Bombay under the chairmanship of Mr. Justice Lokur, and the Jury Committee of Bihar in 1950 with Mr. Justice S.K. Das as its chairman.
15. Conclusion: task before the present Law Commission.-
As we have seen, the work of the four Law Commissions of the last century formed an integrated whole and together they accomplished the task with which the First Law Commission was entrusted but which; for reasons already explained, it could not accomplish. Their work was directed towards the creation of a co-ordinated system of Courts of law and a well-defined and as far as possible a unified system of rules of law. Their emphasis all along was on Indian conditions and Indian needs and their endeavour, in the words of the Third Law Commission was, to create a system which would be "alike honourable to the English Government and beneficial to the people of India".
Their personnel consisted of some of the leading jurists of England. Their task was essentially of a pioneering nature; it lay principally in delineating the broad outlines of a system suited to Indian conditions. The subsequent inquired into the diverse problems affecting the legal and judicial systems in the present century were all considerably restricted in scope and character.
In contrast, our task is more in the nature of improving and reforming our present structure of judicial administration in all its aspects of revising and modifying the statute law. In fact, ours may well be described as the first comprehensive inquiry into our legal system. We are thus faced with a task of greater complexity and responsibility than that which confronted our predecessors. Its complexity is increased by the need for adjusting the machinery of law and justice to the changed ideologies embodied in our Constitution and our rapidly changing conditions.
Back
