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Codified Laws (Evolution & Transition)

For understanding concept of codified laws first let us understand "What is meant by codification?"

Codification : the action or process of arranging laws or rules according to a system or plan.

Or

A systematic organization of methods, rules, etc

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The collection into one body of the principles of a system of law

Or

The process of codifying existing statutes or an existing body of law into a code.

Code: Book of Law

Or

In legal parlance codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.

Codification is one of the defining features of civil law jurisdictions. In common law systems, such as that of English law, codification is the process of converting and consolidating judge-made law into statute law.

Ancient History:

Early system of laws is Hindu law framed by Manu and called as Manu Smriti, dating back to the 2nd century BC. The use of civil codes in Islamic Sharia law began with the Ottoman Empire in the 16th century AD.

The history of codification of modern criminal law in India generally begins from the advent of the British rule. However, its roots date back to the Vedic age and the rule of various Hindu and Muslim dynasties. The modern criminal justice system is based on English laws and practices. These practices are practical as well as contemporary. As a result, a major chunk of criminal laws that exist today still rely on the British-era laws.

In ancient India, Hindu religious laws contained many provisions for governing criminal as well as civil matters. The Vedas, Shrutis, Smritis and even other documents like Manusmriti contain provisions regulating criminal law. The practice of codifying criminal offences existed in this period as well. These laws also contained detailed procedural rules and regulations for trials. There are some records which also show the existence of principles of evidence to govern these trials.

With the advent of Islamic rule in India, criminal laws in several parts of the country saw major changes. Even prior to the Mughal rule, the Delhi sultanates had already introduced offences based on Islamic laws of Shariat. The main influence of these laws was Islamic religious texts like the Quran, Sunna, Hadis, Ijma, Qiya, etc. During the Mughal period, the codification of criminal law became more sophisticated. Muslim criminal law came under three broad categories: crimes against God, crimes against sovereignty, and crimes against individuals. The law during Mughal period even divided modes of punishments into categories. These included death, dismembering of limbs, stoning, levy of fines, confiscation of property, the punishment of exile, etc.

After the British arrived in India, they initially decided not to interfere much with existing Muslim criminal laws. They made the changes in a phased manner so as to not upset the locals and their already existing social structure. Warren Hastings introduced his Judicial Plan of 1772, he didn't made any severe changes to substantive criminal law. In 1773, he slowly started bringing about changes in rules of procedure and evidence in existing criminal laws. For example, he abolished the practice of allowing male relatives of victims to pardon their killers. During this time, serious offences like homicide became crimes against the state instead of being private or offences against an individual. This laid the foundation of the modern practice of the state prosecuting people who commit public offences. From 1790 onwards, Lord Cornwallis extended the process of codifying criminal law. Major changes took place in the subject of sentencing and the process of levying punishments such as physically harming and dismembering convicts slowly started fading.

Lord Wellesley made even more changes to the offences of murder and homicide in the early 1800s. For example, the law now made distinctions between intentional and unintentional killing and the law relating to evidence became stricter and the threshold of proof to indicate guilt increased to next level. In presidency towns like Madras, Bombay and Calcutta, the British made many changes keeping in mind the local prevailing conditions in the area.

According to the Charter Act, 1833, India's first law commission in 1834 recommended drafting of the Indian Penal Code. Lord Macaulay was designated as the chairman of that law commission, and spearheaded its drafting. The Code was basically a comprehensive enactment describing all major crimes in existence at that time and their respective punishments and only came into existence after a rebellion took place in the year 1852.

Indian Penal Code has seen several amendments since it first came into existence. Although it largely relied on British laws and practices, many of its provisions are still the same.

Even the Indian Evidence Act came into existence in 1872 under the guidance of Lord Macaulay. Its foundation was largely the British law of evidence, but it has seen many changes since then.

After Independence, the Law Commission made many recommendations to update CrPC. Some of these changes were the abolition of jury trials. The most important reason for these changes was to make the criminal procedure quick and effective. CrPC was finally enacted again by the Parliament in 1973, and it has been amended many times since then.

What is the need for codifying the law?

The law is codified to develop an effective and efficient organ of legislation and for bringing about one uniform law in a political community, whose various sub-divisions had developed or received divergent local laws. It helps in laying down a specific normative instruction with the objective of either innovating a legal norm, where previously none existed or for varying or amending an existing legal norm.

Advantages of codified laws:

To make laws simple and accessible to everyone, so as to enable the people to know their respective rights and duties.

It brings certainty to the laws.

It generates confidence of the citizens in law and gives them confidence about the application of the law.

Codified laws are arranged in a better and cohesive manner, so as to wipe out or minimize the chances of conflict among various provisions of law.

It brings about uniformity for its wider acceptance among people of divergent strata of society, who are governed by the same law.

Disadvantages of codified laws:

Difficulty in keeping pace with the changing conditions in the society, since bringing about a change in codified law is only by an amendment, which is a very time consuming process.

Codified law sometimes fails to foresee or anticipate certain future problems, thus causing difficulties to people and the courts as well.

Can cause hardship in its application as the application of law is very rarely based on the customs or habits of a particular area or individual.

There are so many kinds of laws applicable in India, however in order to enhance our understanding in a simple manner, we can classify them primarily into four categories, viz Common Law, Criminal Law, Civil Law & Statutory Law:

Common Law:

It has its roots or origin in England and travelled to India with the infiltration of the East India Company. The uniform consent and practice of the people for these laws since ages formed the basis of Common Law. This form of law mainly flowed from judicial precedents and case laws.

Criminal Law:

Criminal Laws are mainly dealt by Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872. The State police have a very vital role to play in this category of law.

Civil Law:

These laws deal with those actions which are not crimes, Civil Procedure Code regulates the functioning of the Civil courts which hear and deal with civil matters.

Civil Procedure Code as its name signifies in the literal sense, lays down the procedure for filing of the Civil cases and deciding of the same, also provides for the procedure and remedies of filing appeal and revisions, reviews and references and also for execution of the Civil decrees passed by the Civil courts.

Civil laws can be further divided into Contract Laws, Family Laws, Property Laws and Law of Torts, which are further subdivided into various subcategories.

Statutory Law:

As the name itself signifies in its literal sense connotes "a law flowing through a statute", which is the creation of the legislation declaring its will and also known as Legislative Law. The Statutory Law comes into existence by codification. The latest example is the Insolvency and Bankruptcy Code, 2016, a modern day codified law, made in sync with the present day scenario.

Views are personal only :-

(The author of this article is a practising lawyer at Punjab & Haryana High Court, Chandigarh)

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