Excerpt from Codification in British India
All attempt has been made in the following pages to point out the great and growing importance of the subject which is not, as supposed in some quarters, merely dry and academic, useful to Jurists and Legislators only. Viewed aright it is interesting and of practical importance to the practising lawyer, the student of history, as well as to the public in general. True, the enumeration of the different enactments in their chronological order forms a part, a minor part of the subject, but this is not the whole subject; it docs not exhaust the subject; it is not even the whole history of codification in this country. Codification is a branch of legislation, and law cannot be properly understood apart from the history and spirit of the nation whose law it is, and hence it has been necessary to deal to a certain extent with the legal and constitutional history of India.
Questions relating to the genesis, essence, principle, form and interpretation of the British Indian Codes have been the subject-matter of discussion in a good many reported cases and arc of the utmost importance to practising lawyers. In this connection reference may he made to the case of Secretary of State for India v. Moment [ (1912) 40 I. A. 48, 53] where it has been held that the Government of India can not by legislation take away the right to proceed against it in a Civil Court in a case involving a right over land, and that any Act which takes away such a right is ultra vires. Besides these important questions there is the question of the feasibility of further codification in this country. The answer to this question depends 011 the answer to another question, viz. whether the present Anglo-Indian Codes have been a success. It has been stated 011 high authority that they have been "triumphantly successful"; but they cannot be, and are not, perfect, nor exhaustive. It should be noted also that great as the advantages of codification arc, it is not the panacea for all the ills human society is heir to. Codes "cannot regulate the time to come, so as to make express provision against all inconveniences, which are infinite in number," and "it is the duty of the Judges to apply the laws not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, which appear to be comprehended within the express sense of the law or within the consequences that may be gathered from it" [Kamini v. Promotho (1911). 13 C. L. J. 609]. Here comes in the maxim of justice, equity and good conscience; a maxim which has played and is still playing an important part in the history of the development of law and of codification.
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