Role of British Governance in India

The project involves analysis of the topic in a historical as well as modern context. The method used is doctrinaire method. Several books on Modern history were perused. The NALSAR library was visited and the library facilities have been duly availed of. The books available have been highly helpful. Due to constraint of space the topic has been briefly dealt with and further scope of research remains. To add to the research internet has been exhaustively searched for relevant materials. The authorities and sources have been properly and adequately cited and acknowledged. This project is the original work of the researcher and no part of it has been plagiarized.

1. INTRODUCTION

On July 10, 1833, an aspiring young English lawyer named Thomas Babington Macaulay stood before the Parliament and presented an impassioned argument about the future role of British governance in India. Whereas in Europe, as Macaulay saw it, “The people are everywhere perfectly competent to hold some share, not in every country an equal share, but some share of political power,” in India, Macaulay asserted, “you cannot have representative institutions.” Thus the role of the British colonizers was “to give good government to a people to whom we cannot give a free government.” [1] At the core of Macaulay’s good but not free government stood what he saw as one of England’s greatest gifts to the people of India: a rule of law.

Later that year, Macaulay set sail for the subcontinent charged with the momentous task of codifying the law of India, creating in his words “one great and entire work symmetrical in all its parts and pervaded by one spirit.” [2] Up until that point, the East India Company had administered a plurality of legal sources, including regional regulations, Acts of Parliament, Hindu and Muslim personal law, Islamic criminal law, and the widely interpreted Roman principle of “justice, equity and good conscience.” It was Macaulay’s aim to bring order to this unwieldy and confusing system. Around the same time that Macaulay set his hand to codify the Indian law, the Royal Commission on the Criminal Law also began its review of the English penal law. Although this is certainly not a historical coincidence, empire is a framework that has eluded the notice of most legal historians. Whereas codification is generally discussed in terms of modern nation-building, it was also an imperial and an international endeavour in which lawmakers in distant geographical locations routinely cited each other’s work. Codifiers in colonial India, for example, worked with Livingston’s Louisiana Code and Field’s New York Code before them and they were acutely aware of the global relevance of their contributions. 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.” [3] So interrelated were the colonial and metropolitan efforts that in 1877, British India’s most prolific codifier James Fitzjames Stephen was invited by the Parliament to bring his Indian experience to bear upon the ongoing efforts to codify the English law. [4]

Despite these connections, there is a dearth of scholarship on the history of codification and empire and even fewer “intertwined” histories that place codification in European metropoles and colonial locales in a unitary field of analysis. [5] The absence of the colonial experience in histories of English codification is particularly noteworthy given that England’s most renowned advocate of codification, Jeremy Bentham along with many of his followers, including Thomas Macaulay and James Mill openly hoped that the codification of law in the colonies would have an impact on legal change at home. [6] Calcutta High Court Judge C. D. Field surmised: “The work that is thus being done in British India will hereafter form an important page in the history of Great Britain, and its effects will, in all human probability, react upon England herself.” [7] What is interesting about the claim that modernity in the colony would “react” upon the metropole is that it inverted colonial claims about history. Whereas the British generally claimed that their mission was to bring ancient Indian civilization forward in time, here we find Calcutta develop mentally ahead of London. In a telling analogy that reversed the political economy of colonialism (in which the essential role of the colony was to provide raw materials for metropolitan industry), Fitzjames Stephen wrote: “The Indian Penal Code is to the English criminal law what a manufactured article ready for use is to the materials out of which it is made”. [8] Macaulay’s ideas about codification creating “one great and entire work symmetrical in all its parts and pervaded by one spirit” reflect the influence of Bentham. [9] A long with many of the Utilitarians in India who molded colonial policy in the early to mid-nineteenth century, [10] Macaulay greatly admired Bentham whom he claimed had found “jurisprudence a gibberish and left it a science.” [11] It is a well-known but little explored fact that whereas the English in England steadfastly opposed codification, the English in India radically transformed the legal landscape in a fashion that has largely outlasted the departure of the colonial masters. [12] By the late nineteenth century, the production of legal codes in India had become so prolific that many administrators questioned its expense and utility. In 1881, a colonial official in the Central Provinces remarked: “codes are like arithmetic books which no one is required to learn.”

2. The Need for Codification

During the period of 1600 to 1833, the Regulations were made specially in the field of procedure and to deal with the current problems of the growing British Empire in India. They were mostly issued to meet the conditions and situations which the British faced in administering India from time to time. Apart from these there were also Regulations dealing with the substantive law. In the sphere of administration of justice the Regulations were issued to establish both Civil and Criminal Courts of the Moffussil area and determined the mode of their proceedings.

The haphazard growth of Regulation Laws was given a proper shape by the reforms of Lord Cornwallis in 1793. “Preamble” was given in the beginning of every Regulation law in order to state reasons for their enactment. They can give us an idea of the social, political and economic conditions and the problems of the country which the Englishmen were tackling in those days. [13]

Codification was necessary to improve the system of Administration of Justice in the country. Without a proper codified law, there couldn’t have been proper and certain enactment of the laws, judgements would have remained arbitrary and uncertain and public administration couldn’t have been simplified and systematic. Codification gave laws a proper and definite shape, it bound them together in a cohesive manner.

Faulty Drafting

The system of Regulation Law became an unsystematic mass which was highly complicated. It was also due to the fact that the Government framed, modified and abrogated laws to meet the peculiar circumstances from time to time. The law was only to be found in the wilderness of enactments and circular order of courts.

Lack of Uniformity

The Regulation Laws were “frequently ill-drawn, for they had been drafted by inexperienced persons with little skilled advice, frequently conflicting. In some cases as a result of varying conditions but in others merely by accident; and in all cases enforceable only in the Company’s courts because they had never been submitted to and registered by the King’s Courts”. [14] A little improvement was made only after Lord Cornwallis’ reforms and though they were given a better shape yet it was not satisfactory.

The Parallel Legislations

As stated earlier three parallel Legislatures in each Province were established in India and while working in their law making process they did not have any consideration for the laws made by each other. At times it also gave rise to confusion resulting in serious conflicts amongst them. Even on the same topics, the Regulations passed at Bombay, Madras and Calcutta greatly differed. [15] It is rightly said, “The Anglo-Indian Regulations made by these different Legislatures contained widely different provisions many of which were amazingly unwise”.

Uncertainty

“Uncertainty” was another grave defect of the system of Regulation Law. As the records show, these Regulations were changed, amended, abrogated or cancelled so often that it was very difficult even to recollect and decide about the proper existence of a particular Regulation Law. [16]

3. The Charter Act, 1833

“The Charter Act of 1833 forms a watershed in the legal History of India” [17]

The industrial revolution had a great impact in England. The Industrial revolution ushered a period of Machine Age which induced a revolutionary change in the method of production. Cheap products of the new machine and their massive exports to the foreign countries widened the prospects and also changed the perspective of the traders. The flowing of moneys dues to the open trade induced a spirit of Independence. Moreover the Marxist Concepts class-consciousness gave a new color to the British idea of politics. A new enlightened class came into existence. In this new age intelligent writers emerged and echoed the significance of the New Age.

In the year 1830, when the Whigs came into power in the political scenario of England, it opened a way of the triumph of the liberal principles. The Rights of Men was emphasized. Consequently the great Reform Act was passed in the year 1832. The concepts of laissez faire were duly emphasized.

The liberal Whigs controlled the Parliament and it upheld the triumph of the liberal ideas. Though there were many supporters of the Company who did not advocate the transference of powers to the Crown, majority considered that the company should cease to be functioning as the political body. Macaulay the secretary of the Boards of Control and James Mill occupied a high position in the India House. Henceforth their influence was clearly evident in the Charters Acts of 1833

The Charter Act of 1833 therefore came into existence after massive socio-political changes in England. The Act gave another lease of life to the Company for twenty years to administer the Indians territories. However their power was subjected to the trust of His Majesty, his heirs and successors. The company lost its monopoly of China Trade. The company was also asked to stop the commercial transactions as early as possible. However the interests of the shareholders were safeguarded by granting them a dividend of 10.5 % per annum till the company`s stock was purchased. Henceforth all the restrictions on European immigration into India and acquisitions of land and property by them was removed. This clause removed the legal obstruction on the European colonization of India.

The Charter Act of 1833 made many important reforms in the legislative set-up of India. It created, for the first time in history, an all-India Legislature at Calcutta having authority to make laws and regulations for all territories under the Government of the Company at that time. The Governments of Madras and Bombay were deprived of their legislative powers. The Legislative Power was thus centralised and vested in the Governor General-in-Council at Calcutta. Steps were also taken in the direction of achieving uniformity and certainty in the legislation. Since then the laws passed by the Governor general were called “Acts”. The charter Act of 1833 enlarged the Executive council by the addition of fourth member (Law Member) for legislative purposes. The fourth member was entrusted with the charge to give professional advice regarding the procedure of law making. Theoretically he was entitled to sit and vote at meetings of the Council only for the purpose of making law. The Boards of directors nominated Macaulay as the first Law Member of the Council. Also a Law Commission was constituted, following the recommendations of the Charter Act. The Law Commission looked after consolidating, codifying and improving Indian Laws.

Factors leading to Reforms of 1833

Supreme Court’s power and jurisdiction

The deteriorating economic conditions of the Company [18]

Public Opinion in England

Favour to Christianity/ Promotion of Christianity in India [19]

Provisions of the Charter Act, 1833

Many provisions were there in the Charter Act of 1833 as discussed above, but the provisions which concern the topic of Codification have been discussed below.

The Act increased the members of the Council from three to four. The fourth member was the Law Member specially appointed to fulfil the legislative duties of the Governor General. His presence was made essential at the time of passing of any legislation. He had no power to sit and vote for other matters. Lord Macaulay, as a matter of fact, was the first Law Member.

Section 53 of the Act of 1833 empowered the Governor General-in-Council to appoint a Law Commission from time to time. The Commission to enquire fully “into the jurisdiction, powers and rules of the existing forms of judicial procedure and into the nature and operation of all laws, whether civil or criminal, prevailing in any part of the said territories in India”.

Lord Macaulay, in his speech of 10th July, 1833, emphasises the necessity and the underlying principle of codification of Indian Law before the House of Commons thus:

“As i believe that India stands more in need of a code than any other country in the world, I believe also that there is no country on which that great benefit can more easily be conferred. A code is almost the only blessing- perhaps it is the only blessing- which absolute Government are better fitted to confer on a nation than popular government. We do not mean that all the people of India should live under the sam law: far from it we know how desirable that object is but we also know that it is unattainable. Our principle is simply this- Uniformity where you can have it- Diversity where you must have it- but in all cases Certainty.” [20]

4. Thomas Babington Macaulay: The Man Who Made it Happen

Macaulay was Secretary to the Board of Control under Lord Grey from 1832 until 1833. After the passing of the Charter Act 1833, he was appointed as the first Law Member of the Governor-General’s Council.

He went to India in 1834. 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. [21]

Serving on the Supreme Council of India between 1834 and 1838 he was instrumental in creating the foundations of bilingual colonial India, by convincing the Governor-General to adopt English as the medium of instruction in higher education, from the sixth year of schooling onwards, rather than Sanskrit or Persian then used in the institutions supported by the East India Company. His final years in India were devoted to the creation of a Penal Code, as the leading member of the Law Commission.

In the aftermath of the Indian Mutiny of 1857, Macaulay’s criminal law proposal was enacted. The Indian Penal Code (1860) was followed by the Criminal Procedure Code, 1872 and the Civil Procedure Code, 1909. The Indian Penal Code was later reproduced in most other British colonies – and to date many of these laws are still in effect in places as far apart as Pakistan, Singapore, Bangladesh, Sri Lanka, Nigeria and Zimbabwe as well as in India.

The seed of codification was sown by him and can be said that he was the person who laid the foundation for future legislations like the Indian Contract Act, Indian Evidence Act etc. He gave the laws of the country a definite shape and brought certainty to the system of administration of justice.

5. Codification and its Merits & Demerits

The Meaning of Codification

Courtenay Ilbert described Bentham as the Chief Apostle of codification and to him, the word “codification” owes its origin. From the fifteenth century onwards the term came to be applied to a more or less comprehensive, systematic statement in a written form of major bodies of law, such as the civil law or the criminal law of a particular country, superseding the mixture of customs, decisions and bits of legislation which had previously applied. [22] A code is thus a species of enacted law which purports to formulate the law so that it becomes the authoritative, comprehensive and exclusive source of law in the area. Totally certain.

As quoted by Ilbert, [23]

A code is a complete digest. Such is the first rule. Whatever is not in the code of the laws ought not to be the law;

The object of the code is that everyone may consult the law which he stands in need of, in the least possible time;

The great utility of the code of laws is to cause the debate of lawyers and bad laws of the former time to be forgotten;

A code framed upon these principles would not require schools for its explanation, would not require canonists to unravel its subtleties. 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 clarity.”

Merits of Codification [24]

Codification would be of utmost utility, not only to the judges and the legal profession, but also to the people and the Government;

It would save labour and thus facilitate the despatch of business and cheapen the cost of litigation;

It would tend to keep our untrained judges from error as there not be much left at their discretion;

It would settle disputed questions on which our superior courts are unable to agree;

It would preclude the introduction of technicalities and doctrines unsuited to this country;

Codification makes the law certain, uniform, accurate and concise, besides bringing about a sort of unity in the legal sphere;

It would combat the arbitrariness of the judges in the best possible manner.

Demerits of Codification

Codification does not usher in all that is good and perfect. The first objection to codification is its inherent incompleteness. As criticised that, “A code is a want developed by progressive and unscientific legislation and that is impossible to have a code which shall be complete and self sufficing”. This idea, however, should not dishearten one from proceeding in the direction of codification.

Accumulation of comments and decisions would overburden codification, it is said, and the code would become useless. However, this drawback can be removed by re-enacting the code.

Codification checks the natural growth of Law, it stereotypes the law and prevents its elasticity. Against this drawback one should not forget that codification brings certainty, a very important factor in law. Elasticity can only be maintained by re-enaction of laws.

It is also said that codification makes the defects of the law more clear and thus it encourages knaves in the evil designs but there are infact more chances to deceive others when the law is not codified than when its codified. This objection has also raised in India when the first Law Commission began its work and subsequently when the Indian Easement Act was passed. It is also noteworthy in this respect that the long, smooth and satisfactory working of the act has by this time proved that this objection is baseless. The codes may prove a bit a failure due to their faulty construction but it can be improved subsequently.