Legal History
First Law Commission

First Law Commission

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An All India Legislature was established in India by the Charter Act of 1833 which forms a watershed in the legal history of India. Lord Macaulay was appointed as the Law Member of the Governor- General-in- Council under this Act. The laws passed by the All India Legislature were called as ‘Acts’ an not Regulations. The Council was authorized to make laws for whole of the British territory in India and it could repeal, amend or alter any law or regulation in force in any part of India.

First Law Commission

Lord Macaulay in 1833 had emphasized the urgency of codification of Indian laws by arranging them in a
systematically written code.

The First Law Commission was appointed in 1834 under the Chairmanship of Lord Macaulay. It consisted
of four members including the chairman. The other three members were J.M. Macleod, G.W. Anderson and
C.H. Cameron who represented the Presidencies of Calcutta, Madras and Bombay respectively. The Law
Commission was also to suggest improvements over the existing legal system in their reports keeping in
view the religious sentiments and customs of the different communities residing in India.

The reason for top priority to draft Penal Code was that the existing criminal law was full of uncertainties and confusion throughout the country.

Draft Penal Code

Since the Draft Penal Code which was submitted by the Law Commission to the Government on May 2,
1937, could not be immediately enacted into a law, the Council instructed the Law Commission to prepare
a scheme of pleading and procedure with forms of indictment appended to the provisions of the draft Penal
Code. Two members of the Commission, namely, Cameron and Elliott prepared the scheme with several
forms and submitted it with their report to the Government on February 1, 1848.

In 1842, the Law Commission also prepared a draft Code of Law of Limitation in British India. However,
after the return of Lord Macaulay to England the activities of the First Law Commission declined

Lex Loci Report

The Charter Act of 1833, allowed unrestricted entry to Europeans in India, consequently there was
unprecedented inflow of foreigners and they settled in different parts of the country. The Law Commission
suggested that an Act should be passed incorporating the recommendation of the lex loci report subject to
following safeguards and restrictions :—

(i) Only that much of the English substantive law was to he declared lex loci which suited the Indian
conditions. The procedural law of England was not to be declared lex loci.

(ii) No Act of the British Parliament passed after 1726 was to be extended to mofussil areas unless there
was an express provision in the Act for extending it to India.

(iii) The English law relating to marriage, divorce and adoption was to be applied only to persons professing
Christianity and non-Christians were to be governed by the rules of the sect to which the parties belonged.
The personal laws of Hindus and Mohammedans were not affected in any way, by the introduction of lex
loci law.

(iv) The mofussil courts were to follow the rules of equity law in preference to English law, whenever there
was a conflict between the two.

(v) The appeals from mofussil courts in matters decided by them under the Lex Loci Act, were to be decided
by the Supreme Court.

(vi) The English law relating to convincing, land tenures and inheritance of land were not to apply as lex
loci in India. In matters of inheritance of immovable property, the law of the place where the property was
situate was to be followed while in case of movables, the law of the domicile of the parties was the rule.

The lex loci Report submitted by Andrew Amos, the Chairman of the First Law Commission to the
Government was published in 1845. It was considered as a unique contribution made by the First Law Commission, since it brought to an end the diversities in the laws applicable to non-Hindus and non-muslims, prevailing in mofussil areas.

Criticism of Lex Loci Report

The lex loci Report was criticised for its poor draftsmanship as also for want of precision as to the extent
to which the law of England was to be introduced.  The Report ‘was based on expediency rather than a desire to impose British culture on India’.

The general criticism against lex loci proposals was that through this report, the British Government made
an attempt to introduce the general law of England as a law of the land in India. There were practical
difficulties in implementing the lex loci Report in India since English legal system was highly technical and
voluminous. Moreover, the Judges in India were not well conversant with the complexities of the British
common law and, therefore, they experienced practical difficulties in following it in India. Further, in order
to give effect to lex loci law, it was necessary to prepare a Digest containing various portions of the common
law which were intended to be introduced in India for the guidance of the Courts and the judges. The
compilation of such a Digest was by no means an easy task as it involved considerable labour and time.

The Charter Act of 1853

In view of the extensive modifications suggested by the First Law Commission in the administration of law
and justice in India. It became necessary to enhance the law making powers of the Legislative Council. This
purpose was achieved by the Charter Act of 1853 which raised the status of the Law Member of the Council
to that of the full-fledged member of the Governor General-in-Council with power to sit and vote in the
Council on all occasions as a regular member. The Act also defined the functions of the Executive and
Legislative Councils more elaborately so as to enable these two organs of the Government to function more
efficiently and independently.

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