CUSTOM AS A SOURCE OF LAW
Law is a dynamic construct that can be used to regulate society and in order to do so, it must be flexible and should adapt to the changing norms of society. However, certain basic principles of law or at least their essence must be kept intact through generations.
In doing so, customs have been integrated with the legal system in order to increase acceptability in society as well as to maintain social order. Custom can be regarded as the basis or the very foundation upon which modern legal systems arise and they generally include rules of conduct infused with social morality.
According to Austin, “Custom is a rule of conduct which the governed observed spontaneously and in pursuance of law set by a political superior.” According to Halsbury law “A custom is a specific principle which has existed either really or hypothetically from time immemorial and has received the power of law in a specific territory, though in spite of or not steady with the general precedent-based law of the community”.
It acts as a primary source of law because it is born from human traditions and long-standing beliefs. In the case of Shakuntala Bai v. L.V Kulkarni, a custom must contain the following elements in order to be deemed a valid source of law:
- It must be long-standing and should be practiced from time immemorial – In the case of Surajmani Kujur v. Durga Charan Hansdah, The Supreme Court held that in order for a custom to be valid and treated as law, it must not only be ancient, but also certain and reasonable in nature.
- It has to be reasonable – The Bombay High Court, in Narayan v. Living, held that a custom allowing a lady to forsake her better half at her pleasure and marry again without mutual agreement to be shameless and arbitrary on one spouse.
- It must be certain and continuous in nature – In Hampton v. Hono, it was ruled that if a custom is not practised for a significant amount of time, then it would cease to exist as a valid custom.
- It must be accepted and should not go against any existing law – In Buldano vs Fasir, a custom, where a woman was allowed to remarry again during the lifetime of her husband was held to null and void by the court as it was against public policy.
Article 13(3) of the Indian Constitution defines law by stating that Law includes customs, bylaws, rules, legislations etc and hence custom is treated as a primary source of law.
In the case of Baluswami Reddiar v. Balakrishna Reddiar, the brief facts included that the grandfather of a family married his own granddaughter and the Supreme Court held that this was not a valid custom as it violated the element of reasonability. It was also not in conformity with morality and social beliefs.
Further, in N.Adithyam v. Travancore Devaswom Board, the Supreme Court held that a custom, even if it existed in the pre-constitutional period, cannot be accepted as a custom if it violates human rights, human dignity, concept of social equality and the specific mandate of the Constitution and other legislations.
The key reason for following customs as a primary source of law can be summarised in the legal maxim Via trita via tuta which means that the frequented path is the reliable path. This indicates that long-standing, reasonable and moral customs have been directing society for ages and they are the well-established code of conduct followed in society.
Customs are also defined as a habitual code of conduct or a rule of action which the people in a locality voluntarily follow in their daily lives and all customs originate from an inner sense of right or from the human conscience. It is this theory that links custom to the Natural School of Law as well.
The second reason why customs are given importance in the legal system is the legitimate expectation that arises in society with regards to certain social norms. Since customs embody whatever is prevalent in society in the current scenario, it gives people an idea with regards to what to expect from the new laws being sanctioned.
It is pertinent to note that custom cannot abrogate legislation and can never override presiding statutes approved by the Legislature. Any custom that is fundamentally opposite to the existing laws can be invalidated and cannot be used as a basis for further laws.
DECLINE OF CUSTOMARY PRACTICES
Custom has declined in importance for three primary reasons: (1) a strong legislature; (2) a more diverse population; and (3) our everchanging modern society.
If course, customs have provided modern legal systems a base and have acted as a source for many years now but due to the ever-changing nature of society, some customs have indeed been deemed ancient and unapplicable.
An example for the same was the ancient practice of Sati that had been abolished in 1829 itself. Further, the Triple Talaq system has recently been ruled as unconstitutional by the Supreme Court in the famous Shayara Bano case on 22nd August 2017.
Due to some of the traditions becoming dated, i.e they are no longer in line with the modern societal beliefs or trends, many of the age-old customs are being deemed unconstitutional and irrelevant.
Moreover, India is a land of diversity and in order to cater to the beliefs of all the different people of India, many customs have to be refined or even let go of in consideration of the larger interest. India does not affiliate itself with any one particular religion and so it must take extra care and exercise caution while using customs as a source of law. This adds to the complexity in the process of using custom as a source of law because now, the customs being used must also be universally accepted in order for them to be applicable.
Due to all the aforementioned factors, customs are losing their value and importance as a source of law as the Legislature seeks inspiration from other sources now.
Author: Keerthana R,
2nd Year, Christ University