Codification of Law in India, Part 1

The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign.

• Justice Oliver Wendell Holmes, Southern Pacific Co v Jenson 1916: 222.

This article is part of a series on the codification of law in India which explores the colonial-imperial project of the codification of law, and its effect and continuing relevance, especially in light of the recent decolonisation narrative surrounding the recent enactment of the three revised criminal codes. It is through law that the dispossession and disenfranchisement of colonized peoples takes place, and it is through law and its various institutions by which colonial, imperial programs and policies continue to be reinforced and sustained. In the same vein, law has the potential to ‘decolonize’ the state and society.

In our quest to understand what it means to decolonise law, we must first examine the manner by which English law was imposed and the indigenous law it replaced. The present article summarizes the history of codification, its impact and the internal power dynamic between the colonial state and subject. The next article in this series shall explore the codification of personal law, with a special focus on Hindu law and Dharmaśāstra.

Codification of law is the process by which rules and laws are compiled and organized into a formal code. It is generally regarded as a form of modernisation and nation-building, but in the case of India, it was an imperial project and an endeavor towards uniformisation of law. Codification was used as a tool by the British to shape Indian society in their image. Macaulay was especially convinced that a code of laws was a critical instrument in the transformation of Indian society. He proclaimed in his speech before the Parliament: “I believe that no country ever stood so much in need of a code of laws as India.” Codified laws are vital examples of the lasting power of colonial institutions — most of them remain in force today; therefore, the history of codification in colonial India holds critical contemporary relevance.

History and Method of Codification of Law

The preamble of Regulation XLI of the Cornwallis Code of 1793, passed in 1797 expressed the need for the codification of law, both substantive and procedural (which Bentham styles as ‘adjective law”), in India. “It is essential to the future prosperity of the British territories in Bengal, that all Regulations which may be passed by the Government affecting in any respect the rights, persons or property of their subjects, should be formed into a regular Code, and printed with translations in the country languages.. A Code of Regulations framed upon the above principles will enable individuals to render themselves acquainted with the laws upon which the security of the many inestimable privileges and immunities granted to them by the British Government .. and the causes of the future decline or prosperity of these Provinces will always be traceable in the Code to their source”.1 These 1793 provisions, originally made for the compilation of Regulation Codes in Bengal were subsequently extended to apply to Bombay and Madras, and, instead of removing the confusion and uncertainty of law, worse confusion ensued. The local colonial courts in India often administered via a variety of laws, with some that overlapped and were even contradictory both in principle and practice. Judicial officers were not only untrained and inefficient, but also found difficulty in ascertaining which law to apply, due to this plurality of sources. There was also a glaring inconsistency among judgements due to a lack of documentation of existing statutes and precedent. Thus, too much was left to the whims of the judges, leading to what Macaulay disparagingly called “judge-made law”, which he viewed as a “curse and a scandal”.

Subsequently, in 1833, Thomas Macaulay in an impassioned speech in the British parliament proclaiming that England’s greatest gift to India was one of a rule of law. He stated that the duty of the British was “to give good government to a people to whom we cannot give a free government”2. In pointing out the administrative issues faced by the East India Company in India, Macaulay presented his ideas about codification, to create “one great and entire work symmetrical in all its parts and pervaded by one spirit” — which reflected the influence of Jeremy Bentham, who echoed the belief that the process of codification, if accelerated in India, would bring about the same in England, in a sort of a reverse influence3. Due to political and public opposition back at home in England, codification had not been taking root there as quickly as it was in India, through a thoroughly undemocratic imposition. Macaulay himself iterated this when he proposed to Parliament the necessity for the colonial government’s “enlightened and paternal despotism,” being best suited to codify Indian law:

A code is almost the only blessing-perhaps it is the only blessing which absolute governments are better fitted to confer on a nation than popular governments. The work of digesting a vast and artificial system of unwritten jurisprudence is far more easily performed, and better performed, by few minds than by many. … A quiet knot of two or three veteran jurists is an infinitely better machinery for such a purpose than a large popular assembly, divided, as such assemblies almost always are, into adverse factions. This seems to me, therefore, to be precisely that point of time at which the advantage of a complete and written code of laws may most easily be conferred on India. It is a work, which cannot be well performed in an age of barbarism. It is a work which especially belongs to a government like that of India — to an enlightened and paternal despotism.4

Codifiers in colonial India drew from Livingston’s Louisiana Code and Field’s New York Code; Whitley Stokes, who held the high post of Law Member of India, dedicated his book, The Anglo-Indian Codes: Substantive Law, to “all who take an interest in the efforts of English statesmen to confer on India the blessings of a wise, clear, and ascertainable law, and especially to those who are interested in what is still, in London and New York, the burning question of Codification.” Codofiction was a project whose pressing need was recognised across the world.

History of Civil Procedure Code

Prior to the 1st of July, 1859, there were no less than nine different systems of civil procedure simultaneously in force in Bengal: four in the Supreme Court, for its common-law, equity, ecclesiastical and admiralty jurisdictions respectively; one for the Court of Small Causes at Calcutta; one in the military Courts of Requests; and three in the Courts of the East India Company, one each for regular and summary suits, and a third applicable to the jurisdiction of the Deputy Collector in what were called resumption-suits (or lá-khiráj suits)5.

The outcome of Macaulay’s speech was the constitution of a codification commission in England and in Section 53 of the Charter Act of 1833, a provision for the appointment of a Law Commission to enquire into “the jurisdiction, powers, and rules of the existing courts of justice and police establishments in the said territories, and all existing forms of judicial procedure, and into the nature and operation of all laws whether civil or criminal, written or customary”6. The Law Commissioners so appointed drafted a code of civil procedure, and an act regarding the law of limitations. Thereafter, a second Law Commission constituted by virtue of the Charter of 1853 to analyze and make recommendations based on the work of the previous commission. The combined output of the two commissions was the enactment of a Code of Civil Procedure (Act No. VIII of 1859), the Limitations Law, a Penal Code and a Code of Criminal Procedure.

The 1859 code was intended to apply to ordinary civil courts of the provinces of Bengal, the amalgamated courts of Presidencies of Madras and Bombay (called the High Courts) as well as to the ordinary courts of the North-Western Provinces, however, it was drafted to exclude the Supreme Courts in the Presidency Towns and to the Presidency Small Cause Courts. It was thereafter extended, to the whole of British India, to the High Courts in all their civil matters. The 1859 code was soon found to be “ill-drawn, ill-arranged and incomplete”7, and it was replaced by the 1877 code which once again required several amendments and therefore was re-cast as the 1882 code. The 1908 code was the result of a couple decades of experience with the operation of the 1882 code, and improved upon it, laying to rest certain discrepancies and conflicts regarding the interpretation of certain provisions. The Committee constituted, presided over by Sir Earle Richards, made no radical changes but rather, made certain modifications and rearranged the provisions of the code into sections8. This Code of Civil Procedure continues to be in force today, and was last amended in 2018.

Authored by Sai Priya Chodavarapu. Published by Brhat.