India

India and the Common Law

The Charter Act 1833 enacted by the British Parliament provided for the addition of a fourth ordinary member who would be a legal expert engaged solely in the making of the laws. The said Act also provided for the appointment of a Law Commission for consolidation and codification of Indian laws.

Lord Macaulay was appointed as the fourth ordinary member and was not entitled to participate in the meetings of the Governor General in Council except for making of laws. In 1935 Lord Macaulay was appointed as the Chairman of the First Law Commission. Subsequently Sir James Stephen was appointed as the Law Member of the Governor General In Council. At that point of time a separate Department viz Legislative Department was functioning as a sub-division of the Home Department managed by an Assistant Secretary who prepared the draft Bills needed for legislation.

During 1872 when Sir Henry Maine was a Law member it was felt that so important a duty ought to be entrusted to a distinct Department and a separate Legislative Department was constituted. After the constitution of the Legislative Department proposal for legislation were initiated by the Department which was directly concerned with the matter and the Legislative Department then took charge.

The Secretary to Legislative Department was also Secretary to the Council of the Viceroy for the purposes of making Laws. He and the then Law Member drafted all the Bills which were placed before the Council. Subsequently this Secretary developed into a full-fledged Secretary to the Government of India in the Legislative Department.

Due to the labours of Law Commissions many important Act were enacted during the later part of the Nineteenth century.

The Indian Penal Code which is still in force,was due to the original work of Lord Macualay which was subsequently revised by two Law Members before its enactment in 1860.

Similarly the draft contained first report of the Third law Commission formed the basis of the Indian Succession Act passed by the Governor General in Council under the guidance of Sir Henry Maine. It codified the law relating to the effect of death and marriage upon succession to property as also the law relating to wills.

The second Report (1866) contained a draft Contract Bill which became law after revision by Sir James Stephen in 1872.

The draft contained in the third report was enacted the Negotiable Instruments Act.

The fifth Report contained a draft Evidence Bill which became law in 1872.

These laws were generally based on the Anglo-Saxon System. Macualay`s draft Penal Code was influenced by the Napoleonic Code and the Louisiana Code. The Contract Act reproduced important provisions of the draft New York Code. Despite these extraneous elements the foundation throughout was the English Common Law adapted as necessity required to Indian conditions and divested as far as possible of technicalities.

Background information taken from : The Constitution of India