Sources of Law
As we know there is not definite and particular definition of law. Different Jurists defined law on different aspects and points of view like According to Jurist Salmond ‘Law can be defined as the body of principles recognized and applied by state in the administration of justice’. So ordinarily in simple language we can define law as a system of rules and regulations based on principle of justice, fair play and convenience for a country so as to bind them on the citizens which the authorities can enforce whose violations give rise to punishment and necessary action.
As law, sources of law also doesn’t have any single approach i.e. there are different jurists having different points of view about sources of law. The term ‘sources of law’ basically means ‘origin of law’. The origin from where the rules of conduct comes into existence and acquires the binding character. The sources of law from where India derives its laws are:
Legislation as a source of law
The term ‘Legislation’ is derived from two latin words Legis and Latum which means ‘Law’ and ‘to set or make’ i.e. setting or making of Laws. Legislation is the most important and primary source of law in India. Only Legislation has all the powers from enacting a new law to repealing old one and amending the laws. Legislation is of two types:
- Supreme Legislation: When a superior authority itself lays down any law than it is Supreme Legislation.
- Subordinate Legislation: When a superior authority gives authority to an subordinate body to make such laws then that subordinate body is called Subordinate Legislation. The subordinate legislation comes in existence and becomes valid only when supreme legislation authorizes it. In India, Parliament is the superior authority of legislation i.e. it makes the new laws, acts and repeal of old.
Custom as a source of law:
- Customs are one of the oldest sources of law making. Custom is a habitual course of conduct which can be seen uniformly and voluntarily by the concerned people. In primitive societies, customs which were developed and made according to the circumstances regulated the lives of people. Law which are based on customs are known as Customary law. A custom is a continuing course of conduct which after the acceptance of the community observing it has came to be considered as a norm to fix the conduct of members for society.
Requisites for a valid custom are:
- Immemorial antiquity
- Compulsory and not opposed to public policy
- Peaceful enjoyment
Justice, equity and good conscience:
- This principle can be applied only where any judge feel that the law is inadequate according to the facts. In these cases the judges makes decision on the basis of justice, equity and good conscience with fairness as the Article of the Indian Constitution ensures equality before all and justice on the basis of equal opportunity.
- The literary meaning of precedent is ‘to precede’ i.e. an event which happened earlier which can be considered as for guidance in subsequent same situations. In Law precedent is also a source of law as the judgements which were delivered by the judges in past cases becomes guide for the new cases which have similar nature or facts. Those judgements are known as precedents.
- The judgments of law which were made in a judicial decision of a superior court which have to be followed by the subordinate courts is called precedent. The lower courts have to follow the judgement of higher court. Article 141 of the Indian Constitution tells that Law declared by the Supreme court shall be binding on all the courts within the territory of India. The basis of Doctrine of Precedents is ‘Stare decisis’ which means ‘to stand by decided cases’. The main objective of the doctrine is that the law of the land must be clear, certain and consistent to ensure that the Courts will follow them without any problem.
- These sources of law are already recognized by the law itself and are authoritative. The modes through which the new principle can be introduced in law are:
- Enacted law
- Case Law
- Conventional Law
These are the sources of law from where the Laws in India are deprived. of these sources plays a serious role in several changes and decisions which are made for justice. The source of law often provides us a fear of the rationale or the aim that the law is formed . This makes it vital for us to understand the sources of law. The source of law bring its authenticity and thus , should be determined deliberately .
The source of law also becomes important within the application of the law in several areas. The term globalization of law means the entire world is bound by one set of law. India is one among the members of the United Nation has got to abide by its statutes and rules and consequently frame the laws in conformity with such rules. Therefore, International treaties and conventions play a really significant role in framing new laws and acts together of the sources of law. The legislation is additionally one among the first sources of law in India.
Legislation features a very wide ambit and is employed to manage , authorize, to enable, to supply funds, to prescribe, to sanction, grant, declare, or to limit . The legislation is framed by parliamentary actions within the sort of Acts, new laws and amendment and repeals of the old law. The procedure by which the parliament frames legislation is prescribed within the Constitution . There are numerous other sources of law like religion, caste, regional practices, etc.
The Parliament scrutinize various aspects while making new laws. These are the sources of law from where the Laws in India are disadvantaged. These sources plays a serious role in several changes and decisions which are made for justice.
Author: Ananya Kashyap,
Symbiosis Law School, Nagpur/ 1 year