SOURCES OF LAW
What is the definition of law?
Law, according to Justinian’s Digest, is “the norm of what is just and unjust.”
The ancient Hindu belief held that ‘law’ is a command from God, not from any political ruler. It binds everyone, even the monarch, to obey it. As a result, ‘law‘ is a part of ‘Dharma.’ In Hindu law, the concept of ‘justice‘ is always present.
Salmond defined law as “the corpus of ideas recognized and applied by the State in the administration of justice,” according to the major modern natural law scholar.
PRINCIPLE SOURCES OF INDIAN LAW
1. Customs or Customary Law
2. Judicial Decisions or Precedents
3. Statutes or Legislation
4. Personal Law e.g., Hindu and Mohammedan Laws etc.
Customs or Customary Law
Custom is the oldest and most important source of law, even though is influence is declining due to the emergence of legislation and precedent.
When the same activity is done in the same way over and over again, it becomes customary. Customs played a significant influence in the development of ancient Hindu law. The Hindu Marriage Act of 1955 (HMA) has provided numerous examples of customary rules being recognized. Here are a few examples: According to the following: A Hindu marriage may be solemnized in accordance with the customary rituals and ceremonies of either partner, according to Section 7 HMA. Nothing in this Act shall be deemed to prejudice any right recognized by custom. – Section 29(2) HMA
Classification of Customs
The customs may be divided into two classes:
– Customs without sanction.
– Customs having sanction.
The non-obligatory customs that are observed due to public opinion pressure are referred to as customs without sanction. “Positive morality” is the term used to describe this kind of behaviour. The state enforces customs that have been sanctioned. We’re talking about these customs.
There are two types of these: legal and conventional.
1. Legal Customs: These customs have the force of law behind them. They’ve been recognised and enforced by the courts, therefore they’ve formed part of the common law.
Legal customs are again of two kinds: (a) Local Customs (b) General Customs.
(a) Local Customs: Local custom is a type of custom that exists in a specific location and serves as a source of law for that location alone. Certain cults or communities, on the other hand, carry their traditions with them wherever they travel. They are also customs that are unique to the area. As a result, local customs can be split into two categories:
– Personal Local Customs
– Geographical Local Customs
These customs apply specifically to a specific area, sector, or community.
(b) Customs in General: A broad custom is one that is followed throughout the country and is considered one of the sources of law. In England, the common law is associated with the realm’s basic traditions.
2. Conventional Customs: These are also known as “usages”. These customs are binding due to an agreement between the parties, and not due to any legal authority independently possessed by them.
Like legal customs, conventional customs may also be classified as general or local. Local conventional customs are limited either to a particular place or market or to a particular trade or transaction.
Requisites of a Valid Custom
Only if a custom satisfies the following basic elements will it be legally legitimate and binding:
Immemorial (Antiquity): In order for a custom to be valid, it must be immemorial; it must be old.
(i) “A custom, in order to be lawful and binding, must have been employed so long that man’s memory runs not to the opposite, so that if anyone can show the origin of it, it is no good custom,” writes Blackstone. In India, however, the English law on legal memory is not followed. All that needs to be established is that the supposed custom is centuries old.
(ii) Clarity: The custom must be clear and precise, not ambiguous.
(iii) ) Reasonability: A custom must be logical. It must be beneficial and practical to society. If a custom contradicts the ideals of justice, equity, and good conscience, it is considered irrational.
(iv) Obligatory Observance: For a custom to be valid, it must have been followed without fail since the beginning of time, and it must be considered as an obligatory or binding rule of action by those who are impacted by it.
(v) Law and Public Morality Compliance: A custom must not be contrary to morality or public policy, nor must it be in conflict with the law. A custom is inapplicable if it is expressly prohibited by legislation and revoked by a statute.
(vi) Opinion Unanimity: The custom must be widespread or universal.
(vii) Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.
(viii) Consistency: There must be consistency among the customs.
Judicial Decision or Precedents
Judicial precedents are a valuable source of legal guidance. They have always had a position of high authority in all countries. This is especially true in the case of England and other countries whose legal systems have been impacted by English law. The principles of law originally expressed in court rulings become precedents to be adopted as law in deciding similar challenges and cases in the future. The doctrine of stare decisis is the rule that a court decision becomes a precedent to be followed in comparable circumstances.
(i) The decisions of the High Court are binding on all the subordinate courts and tribunals within its jurisdiction.
In case of any conflict between the two decisions of co-equal Benches, generally, the later decision is to be followed.
(ii) The High Courts are the Courts of co-ordinate jurisdiction. Therefore, the decision of one High Court is not binding on the other High Courts and have persuasive value only.
Pre-Constitution (1950) Privy Council decisions are binding on the High Courts unless overruled by the Supreme Court.
(iii) The Supreme Court is the highest court and its decisions are binding on all courts and other judicial tribunals of the country. Article 141 of the Constitution makes it clear that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The words “law declared” includes an obiter dictum provided it is upon a point raised and argued (Bimladevi v. Chaturvedi, AIR 1953 All. 613).
However, it does not mean that every statement in a judgment of the Supreme Court has a binding effect. Only the statement of the ratio of the judgment is having the binding force.
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