Custom As A Source of Law
Presently, ‘Namaste’ is a form of Indian custom that has gained fame worldwide under COVID-19. Like every citizen, not just the Indian Prime Minister joins hands to greet, but many other nations' prime ministers follow the same greeting style. Custom is the habit, pattern, and behaviour universally accepted and followed in any social system. Therefore, most of the laws defined are based on traditions followed for ages. Everyone abides by the law; hence it maintains the balance and brings peace and harmony.
In the current scenarios, law or rules formed in any institution like court are derived from different sources. Hence sources of law are classified into two categories.
Principal Sources of Law
Secondary Sources of Law
In this article, we will get into details of sources of law.
Principal Sources of Law- Customs
As per the ancient literature, it is found primitive people ran life wholly based on customs. It was when everything was underdeveloped; lack of resources led to life in specific style by everyone again and again. Thus, a particular activity became a custom. Customs have played a significant role in the development of Hindu Law. Legal entities like the Court and Parliament consider the importance of custom as a source of law in India.
Custom as a source of law is further categorized -
Without Sanctions- these are the customs that are not compulsory, however, bound to follow due to social obligations. Custom without sanction example, the nearness of the general public beliefs
With Sanctions- These are the customs imposed by the governing body. Thus, these are the obligatory customs. Sanctioned customs could be either Legal Customs or Conventional Customs.
Legal Customs- There are legal customs with sanctions that act like a strict rule to be followed by everyone. If anybody does not abide by the legal customs, they will be liable to be punished. Custom in jurisprudence is recognized by the various legal entities like the court. There are legal sanctioned customs that apply to a particular specific geography. Henceforth, a custom that becomes part of place culture, is called Local customs. We have communities who continuously move from one place to another carrier such local customs along with them. There are general customs which are not specific to a particular local geography. Every citizen of the country follows customs applicable to the whole nation and is called General Customs.
Conventional Customs - Any agreement in which two involved parties mutually promise and are aware of its notion becomes a conventional custom. The reasonable conventional custom cannot modify any other general rule of the area. Based on the geography, conventional custom are also narrowed down into general and local conventional customs
You must be thinking, at what point a custom becomes a law. Let's answer your query; there are particular prerequisites for a custom to become valid and further convert into law. Let’s see the prerequisites
Essentials of Valid Custom
There are few requisites laid down for the recognition of valid custom. All the customs are not approved in judicial understanding.
Antiquity- a custom that is ancient or immemorial could be considered as a valid custom.
Certainty- A clear definition of custom is compulsory so that the idea behind is not vague
Reasonable- A custom must be rational to support fundamental justice, equality, and good conscience.
Mandatory Adherence- A custom is considered valid if all the people follow it without observing any interruptions since ancient times.
Conformity with Law and public morality- A custom should not be against any law of the country. Law can make any of its customs prohibited, which means it will no longer be a valid custom.
Unanimous view- A valid custom is universally accepted. Each person of the nation should receive the custom, then only it will be considered accurate.
Peace and harmony- Everyone should enjoy following a valid custom. It should always bring peace. Then the only custom is considered valid.
Consistency- There should be consistency and uniformity between the customs. Any two customs that contradict viewpoints should not be considered valid customs.
Fun Facts
Do you know requisites for binding any valid custom was laid down by Alle, Blackstone, Carter, Littleton?
Do you know customs without sanctions backed by public pressure are also termed as positive morality?
FAQs on Principle Sources of Indian Law: Customs Explained
1. What is a custom and how does it become a source of law in India?
A custom is a long-established practice or rule of conduct that has been followed by a community or locality to the extent that it has acquired a binding force. It becomes a source of law when it is consistently followed over a long period and is recognised by courts as legally enforceable. For a custom to be elevated to the status of law, it must be ancient, certain, reasonable, and not in opposition to public policy or existing statutory laws.
2. What are the essential conditions for a custom to be considered a valid source of law?
For a custom to be recognised as a valid law by the courts, it must satisfy several essential conditions:
Antiquity: It must have been in existence for a very long time, often described as 'time immemorial'.
Continuity: The custom must have been followed continuously and without interruption.
Certainty: The custom must be clear and unambiguous in its practice and application.
Reasonableness: It must not be unreasonable, unjust, or against public morality.
Obligatory Force: The custom must have been observed as a matter of right and not just as an optional practice.
Consistency: It must not conflict with other established customs or the statutory law of the land.
3. Can you provide some examples of customs that are recognised as law in India?
A prominent example of a custom recognised in Indian law is the Saptapadi (the seven steps around a sacred fire) in Hindu marriages, which is a customary practice required to solemnise the marriage under the Hindu Marriage Act, 1955. Another example includes certain trade and commercial usages that have been followed for so long that they are treated as implied terms in business contracts within that trade.
4. What are the main classifications of customs recognised in the Indian legal system?
Customs in the Indian legal system are primarily classified into two main categories:
Customs without sanction: These are non-binding customs followed due to social pressure or public opinion.
Customs with sanction: These are binding and enforced by the state. They are further divided into:
Legal Customs: These operate as binding rules of law, independent of any agreement. They can be either General Customs (applicable throughout the nation) or Local Customs (applicable to a specific region, community, or family).
Conventional Customs: Also known as usages, these become binding due to their incorporation into contracts. Their authority comes from the implicit agreement between parties.
5. What are the main theories that explain the authority of custom as law?
There are two primary theories on why customs hold legal authority:
Historical Theory: Advocated by jurists like Savigny, this theory suggests that law originates from the common consciousness or will of the people (the 'Volksgeist'). Custom is the direct expression of this collective will, and therefore, it is a primary and superior source of law, not dependent on the state's recognition.
Analytical Theory: Proposed by jurists like Austin, this theory argues that a custom is not law until it is recognised and enforced by the sovereign (the state). According to this view, customs are merely rules of positive morality. They only transform into 'real law' when a court or a statute gives them legal sanction.
6. Why is custom still an important source of law in a modern democracy like India?
Custom remains a vital source of law in India because it reflects the social values and needs of its diverse communities. It helps in filling the gaps where statutory law does not exist and provides rules that are already accepted and followed by the people, lending legitimacy and practicality to the legal system. In areas like personal law (marriage, inheritance), many practices are still governed by customs specific to various communities.
7. How do courts in India decide if a particular custom is legally valid and enforceable?
When a custom is presented before a court, the judiciary acts as the final arbiter of its validity. The court examines whether the custom meets all the essential requirements, such as being ancient, certain, continuous, and reasonable. It also scrutinises the custom to ensure it is not contrary to public policy, morality, or any express provision of statutory law. The party claiming the custom's existence must provide sufficient evidence to prove it.
8. Can a legally recognised custom be abolished or invalidated?
Yes, a legally recognised custom can be abolished or invalidated in two primary ways. Firstly, the legislature can pass a specific statute that explicitly overrides or abolishes the custom. Statutory law always prevails over customary law. Secondly, a higher court can declare a custom invalid if it is found to be unreasonable, immoral, or against the fundamental principles of the Constitution of India, thereby setting a judicial precedent against its enforcement.
9. What is the difference between a 'custom' and a 'convention' in a legal sense?
The key difference between a custom and a convention lies in their binding force and enforceability. A custom, once it satisfies the legal requirements, is considered a source of law and is legally binding and enforceable by courts. In contrast, a convention is a practice or understanding that is followed out of tradition or convenience but is not legally enforceable. For example, many political practices in a parliamentary system are conventions, not laws.
10. What are the main advantages and disadvantages of custom as a source of law?
Custom as a source of law has both advantages and disadvantages.
Advantages: It is often rooted in the will of the people, making it easy to follow. It is also flexible and can adapt to changing social conditions over time. It helps regulate matters in communities where formal law has not yet reached.
Disadvantages: Customs can be uncertain and difficult to prove in a court. They can sometimes be rigid and may perpetuate practices that are outdated or discriminatory. A significant disadvantage is the potential for local customs to conflict with national laws and principles of justice and equality.
