Essentials of customary law in light of modern practice and judicial interpretations in India
In practically all communities, custom plays a significant role in regulating
human behaviour. It is, in reality, one of the earliest sources of legal
authority. However, as society progresses, customs fade away, and laws and legal
precedents become the primary source of information. People develop custom by
unconsciously adopting a given code of conduct whenever the same problem arises,
and its authority is founded on nothing more than the people's long-term use and
acceptance of it.
Custom is a type of particular norm that has been followed since the dawn of time. Customary law is a type of law that is founded on custom. Custom, as a source of law, involves the study of a number of its aspects: its origin and nature, its importance, reasons for its recognition, its classification, its various theories, its distinction with prescription and usage, and the essentials of a valid custom.[1]
Definitions of Customs as per different thinkers (Jurists)
According to Salmond:
custom is the exemplification of those standards which have complimented themselves to the national still, small voice as standards of equity and open utility.
According to Austin:
custom is a standard of direct which the sovereign watch suddenly and not in the compatibility of law set by a political superior.
According to Keeton:
Customary law may be defined as those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law, because they are generally followed by the political society as a whole, or by some part of it.
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.[2]
Essentials of a valid legal custom
Certain tests or essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition. Some of the essentials of a valid custom are:
Antiquity:
A custom to be recognized as law must be proved to be in existence from time immemorial. In India it has been said that a custom must be of old nature, but there is no such fixed period for which it must have been in existence as it is in the English law. The reason for not enforcing a modern custom is that otherwise so many of the novel customs would become law. The law adopts sufficient methods of protection against the development of vexatious acceptance of modern customs.
Continuity:
It must have been practised continuously. If a custom is disturbed for a considerable time, a presumption arises against it. t if a custom has not been followed continuously and uninterruptedly for a long time, the presumption is that it never existed at all. It must have been in existence and recognized by the community without any intervening break, for such duration as may, under the circumstances of the case, be recognized as reasonably long. In case of Muhammad Hussainforki v. Syed Mian Saheb[3] ,it was held that unless there is continuity there is no custom.
Reasonableness:
It is necessary for a tradition to be reasonable. It will have to be demonstrated that a custom is plainly adverse to reason in order to declare it inapplicable on the basis of unreasonableness. It cannot be irrational. It must be beneficial and practical to society. If a party challenges a custom, it must show that the custom is irrational to the court.
That is, the individual challenging the custom bears the burden of proof. Our present understanding of suitability should not be used to determine reasonableness. When a custom is not in conflict with a fundamental tenet of morality, the law of the state in which it exists, or principles of justice, equity, and good conscience, it should be considered adequately reasonable.
Conformity with statute law:
A custom, to be valid, must be in conformity with statute law. It is a positive rule in most of the legal systems that a statute can abrogate a custom.
Observance as of right It must have been observed as of right. Mere practice of a voluntarily nature would not make a custom valid. It must have been followed openly not stealthily, and without the necessity for the recourse to force. To use the expression of Salmond, there must be opinio necessitatis , that is, the conviction on the part of those who use a custom that it is obligatory ands not merely optional.[4]
Consistency: Other established customs must not be in conflict with custom. There must be a conflict with the other custom. The only way to tell if a custom is valid is if it complies with the law. It should not be in violation of the law. When a custom disagrees with a statutory law, it must be followed. This rule is regarded as a positive legal concept in England and other nations that follow English law, such as India. [5]
Role Played by Customary law in Modern Hindu Law in India.
Custom plays a significant part in Hindu law and is accepted as part of the Indian legal system. Section 2(2) of the Hindu Marriage Act and the Hindu Succession Act have left the door open for the recognition of tribal customary laws and practices of Scheduled Tribes.
Indian law recognises customary Hindu practises in marriage and divorce that differ from the traditional norm. In a large country like India, with so many castes residing in so many different regions, custom has allowed for a wide range of marriage arrangements. These traditional marital arrangements may be totally legal. Some ceremonies, according to Hindu law, are absolutely necessary.
For example: courts have placed a high value on the performance of Saptapathi, or the seven-step ceremony, which is regarded as the most important of all ceremonies.
However, it should be noted that the performance of ceremonies other than those referred to above are recognized by the Indian Courts where the ceremonies are allowed by the custom of the community or caste to which the parties belong. Divorce is not recognized by general Hindu law. Traditionally marriage, from the Hindu legal standpoint, creates an indissoluble tie between the husband and the wife.
Neither party, therefore, to a marriage can divorce the other unless divorce is allowed by custom.The Hindu Marriage Act modified this position, however, creating nine grounds for both husband and wife to claim divorce, and some additional grounds available to the wife alone. According to section 29 of the Hindu Marriage Act, dissolution of a Hindu marriage can also be obtained through a valid custom.[6]
Essentiality of Customs in Modern and Present Indian Laws
When the courts in India recognised customary rights based on long usage, they become customary laws. These customary laws were the creation of Indian courts. However, customary rights were recognised as early as 1872, when the Indian Evidence Act was enacted. Section 13 of the act deals with the facts relevant for the proof of customary law. The Indian Forest Act 1927, under Sections 12 to 16 recognises rights to pasture and forest produce at the stage of settling rights before a given area of forest is classified as reserve forest. These rights are, no doubt customary rights. But these rights were seldom transformed into customary rights in the field.
The reasons were twofold. Either the forest dependant communities were ignorant about their rights or the settlement officers, with their narrow and rigid pre-establishment mindset, were not inclined to grant such rights to the people. However, it should be admitted that the early colonial legislations enacted over a century ago did recognise customary rights, though such legislations were very few.
The Constitution of India, under Article 13, treats customary law along with other branches of civil law. A custom or usage if proved would be law in force under this article. These customary rights having the force of law can be taken judicial notice by courts under Section 57 of the Indian Evidence Act 1872. Community level customary laws evolved out of area-specific traditional usage and practice. Hence they reflect the cultural ethos and traditions of the local people. These practices helped the local communities to be self-reliant and self sufficient, since their needs were few.[7]
Courts on validity of customary laws prevailing in India.
In an important judgement on application of customs in the matter of family law, the Supreme Court in the case of Smt. Ass Kaur (Deceased) By L.Rs vs Kartar Singh (Dead) By L.Rs. & Ors[8] has held that the customary law will prevail over the statutory law in cases where the legislation is silent on the issue. "As statutory law did not exclude the applicability of the customary law, the customary law would prevail over the statutory law, Bench comprising Justice S B Sinha and Justice Markandey Katju said in a judgement.
The Bench also brushed aside the contention raised during the argument that validity of customs must be judged on the touchstone of justice, equity and good conscience. It is one thing to say that customary law had no application or the custom had not been proved and quite another to say that despite its acceptence and proof, the same should not be applied on the ground of equity, justice, and good conscience.
The Court said:
If the intention of the makers of the statute in the 1929 Act was to completely exclude the applicability of the customary law, it would have been said so explicitly."[9]
Sabarimala Verdict: A Conflict of Customs and Law
The Supreme Court of India in Indian Young Lawyers' Association v. State of Kerala[10].The judiciary has demonstrated how unregulated customs and traditions can result in grave injustice to a particular social group, and why the rule of law has precedence over such behaviours. As proponents of the rule of law and libertarian principles, we applaud and admire the Court's majority ruling in this case. The ban on women aged 10 to 50 entering the mediaeval shrine of Sabarimala in Kerala was abolished by the Supreme Court.
The times are swiftly changing, and the advancement of civilization and culture, aesthetic sensibility, ethical principles, and humanitarian sympathies cannot be facilitated by relying on customary norms and disregarding the rule of law's sanctity. Customary rules emerged from the haze of ambiguity, mystery, uncertainty, and changeability that had surrounded them for so long. Law serves a critical role in the maintenance of societies and is an integral aspect of the social body.
Law develops with the rise of the people, strengthens with their strength, and then fades away as the nation loses its nationality.. So, any unfair law like customs shall stand on the defective part and will drive the nation to the state of losing its individuality and will suffocate itself unless it dies in the hands of confiscated judiciary. Hence, it is a conclusive statement that customary law should have only persuasive value and shall not prevail as a law of land.[11]
The Landmark Decision in Jallikattu Sports Case
The Supreme Court in Animal Welfare Board of India v. A. Nagaraja[12], adopted a similar approach and imposed a ban on Jallikattu: When they prohibited the use of bulls in Jallikattu, they broadened the concept of justice to include not just humans but also animals.
Men were expected to tame an agitated bull, harming themselves as well as the animal, in the famed bull-taming festival. In fact, by custom, only upper caste men were allowed to participate, discriminating against the lower castes. Many lives were lost in this celebration of brutality in the name of sport and entertainment, including those of animals, participants, and even spectators.
The court ruled that this custom resulted in severe violations of the constitutional rights of the animals mentioned in Article 51-A (g)(vii) and (h)(viii), which form a part of the Fundamental Duties to be fulfilled by the citizens. They held the view the view that such customs promoted cruelty and other unjust practices in the name of sports.[13]
Conclusion
The customs were the most important, and in some cases, the only source of law, during the early times of the general public. The customs are based on the construction of a completely legal and acceptable framework. They appear when the general public is present. In terms of primitive society, custom is a continuous activity. A custom is a standard or practise that has been followed by the general public from the dawn of time. Customs are encouraged, merged, and exemplified in legal standards. In any lawful and legal system, the effects of custom can be observed. Custom is a valid and authoritative source of law but the only condition is that it must be valid and a lawful custom. However, with the advent of colonial rule and introduction of formal legislative laws, customary regulations gradually receded to the background.
End-Notes:
Custom is a type of particular norm that has been followed since the dawn of time. Customary law is a type of law that is founded on custom. Custom, as a source of law, involves the study of a number of its aspects: its origin and nature, its importance, reasons for its recognition, its classification, its various theories, its distinction with prescription and usage, and the essentials of a valid custom.[1]
Definitions of Customs as per different thinkers (Jurists)
According to Salmond:
custom is the exemplification of those standards which have complimented themselves to the national still, small voice as standards of equity and open utility.
According to Austin:
custom is a standard of direct which the sovereign watch suddenly and not in the compatibility of law set by a political superior.
According to Keeton:
Customary law may be defined as those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law, because they are generally followed by the political society as a whole, or by some part of it.
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.[2]
Essentials of a valid legal custom
Certain tests or essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition. Some of the essentials of a valid custom are:
Antiquity:
A custom to be recognized as law must be proved to be in existence from time immemorial. In India it has been said that a custom must be of old nature, but there is no such fixed period for which it must have been in existence as it is in the English law. The reason for not enforcing a modern custom is that otherwise so many of the novel customs would become law. The law adopts sufficient methods of protection against the development of vexatious acceptance of modern customs.
Continuity:
It must have been practised continuously. If a custom is disturbed for a considerable time, a presumption arises against it. t if a custom has not been followed continuously and uninterruptedly for a long time, the presumption is that it never existed at all. It must have been in existence and recognized by the community without any intervening break, for such duration as may, under the circumstances of the case, be recognized as reasonably long. In case of Muhammad Hussainforki v. Syed Mian Saheb[3] ,it was held that unless there is continuity there is no custom.
Reasonableness:
It is necessary for a tradition to be reasonable. It will have to be demonstrated that a custom is plainly adverse to reason in order to declare it inapplicable on the basis of unreasonableness. It cannot be irrational. It must be beneficial and practical to society. If a party challenges a custom, it must show that the custom is irrational to the court.
That is, the individual challenging the custom bears the burden of proof. Our present understanding of suitability should not be used to determine reasonableness. When a custom is not in conflict with a fundamental tenet of morality, the law of the state in which it exists, or principles of justice, equity, and good conscience, it should be considered adequately reasonable.
Conformity with statute law:
A custom, to be valid, must be in conformity with statute law. It is a positive rule in most of the legal systems that a statute can abrogate a custom.
Observance as of right It must have been observed as of right. Mere practice of a voluntarily nature would not make a custom valid. It must have been followed openly not stealthily, and without the necessity for the recourse to force. To use the expression of Salmond, there must be opinio necessitatis , that is, the conviction on the part of those who use a custom that it is obligatory ands not merely optional.[4]
Consistency: Other established customs must not be in conflict with custom. There must be a conflict with the other custom. The only way to tell if a custom is valid is if it complies with the law. It should not be in violation of the law. When a custom disagrees with a statutory law, it must be followed. This rule is regarded as a positive legal concept in England and other nations that follow English law, such as India. [5]
Role Played by Customary law in Modern Hindu Law in India.
Custom plays a significant part in Hindu law and is accepted as part of the Indian legal system. Section 2(2) of the Hindu Marriage Act and the Hindu Succession Act have left the door open for the recognition of tribal customary laws and practices of Scheduled Tribes.
Indian law recognises customary Hindu practises in marriage and divorce that differ from the traditional norm. In a large country like India, with so many castes residing in so many different regions, custom has allowed for a wide range of marriage arrangements. These traditional marital arrangements may be totally legal. Some ceremonies, according to Hindu law, are absolutely necessary.
For example: courts have placed a high value on the performance of Saptapathi, or the seven-step ceremony, which is regarded as the most important of all ceremonies.
However, it should be noted that the performance of ceremonies other than those referred to above are recognized by the Indian Courts where the ceremonies are allowed by the custom of the community or caste to which the parties belong. Divorce is not recognized by general Hindu law. Traditionally marriage, from the Hindu legal standpoint, creates an indissoluble tie between the husband and the wife.
Neither party, therefore, to a marriage can divorce the other unless divorce is allowed by custom.The Hindu Marriage Act modified this position, however, creating nine grounds for both husband and wife to claim divorce, and some additional grounds available to the wife alone. According to section 29 of the Hindu Marriage Act, dissolution of a Hindu marriage can also be obtained through a valid custom.[6]
Essentiality of Customs in Modern and Present Indian Laws
When the courts in India recognised customary rights based on long usage, they become customary laws. These customary laws were the creation of Indian courts. However, customary rights were recognised as early as 1872, when the Indian Evidence Act was enacted. Section 13 of the act deals with the facts relevant for the proof of customary law. The Indian Forest Act 1927, under Sections 12 to 16 recognises rights to pasture and forest produce at the stage of settling rights before a given area of forest is classified as reserve forest. These rights are, no doubt customary rights. But these rights were seldom transformed into customary rights in the field.
The reasons were twofold. Either the forest dependant communities were ignorant about their rights or the settlement officers, with their narrow and rigid pre-establishment mindset, were not inclined to grant such rights to the people. However, it should be admitted that the early colonial legislations enacted over a century ago did recognise customary rights, though such legislations were very few.
The Constitution of India, under Article 13, treats customary law along with other branches of civil law. A custom or usage if proved would be law in force under this article. These customary rights having the force of law can be taken judicial notice by courts under Section 57 of the Indian Evidence Act 1872. Community level customary laws evolved out of area-specific traditional usage and practice. Hence they reflect the cultural ethos and traditions of the local people. These practices helped the local communities to be self-reliant and self sufficient, since their needs were few.[7]
Courts on validity of customary laws prevailing in India.
In an important judgement on application of customs in the matter of family law, the Supreme Court in the case of Smt. Ass Kaur (Deceased) By L.Rs vs Kartar Singh (Dead) By L.Rs. & Ors[8] has held that the customary law will prevail over the statutory law in cases where the legislation is silent on the issue. "As statutory law did not exclude the applicability of the customary law, the customary law would prevail over the statutory law, Bench comprising Justice S B Sinha and Justice Markandey Katju said in a judgement.
The Bench also brushed aside the contention raised during the argument that validity of customs must be judged on the touchstone of justice, equity and good conscience. It is one thing to say that customary law had no application or the custom had not been proved and quite another to say that despite its acceptence and proof, the same should not be applied on the ground of equity, justice, and good conscience.
The Court said:
If the intention of the makers of the statute in the 1929 Act was to completely exclude the applicability of the customary law, it would have been said so explicitly."[9]
Sabarimala Verdict: A Conflict of Customs and Law
The Supreme Court of India in Indian Young Lawyers' Association v. State of Kerala[10].The judiciary has demonstrated how unregulated customs and traditions can result in grave injustice to a particular social group, and why the rule of law has precedence over such behaviours. As proponents of the rule of law and libertarian principles, we applaud and admire the Court's majority ruling in this case. The ban on women aged 10 to 50 entering the mediaeval shrine of Sabarimala in Kerala was abolished by the Supreme Court.
The times are swiftly changing, and the advancement of civilization and culture, aesthetic sensibility, ethical principles, and humanitarian sympathies cannot be facilitated by relying on customary norms and disregarding the rule of law's sanctity. Customary rules emerged from the haze of ambiguity, mystery, uncertainty, and changeability that had surrounded them for so long. Law serves a critical role in the maintenance of societies and is an integral aspect of the social body.
Law develops with the rise of the people, strengthens with their strength, and then fades away as the nation loses its nationality.. So, any unfair law like customs shall stand on the defective part and will drive the nation to the state of losing its individuality and will suffocate itself unless it dies in the hands of confiscated judiciary. Hence, it is a conclusive statement that customary law should have only persuasive value and shall not prevail as a law of land.[11]
The Landmark Decision in Jallikattu Sports Case
The Supreme Court in Animal Welfare Board of India v. A. Nagaraja[12], adopted a similar approach and imposed a ban on Jallikattu: When they prohibited the use of bulls in Jallikattu, they broadened the concept of justice to include not just humans but also animals.
Men were expected to tame an agitated bull, harming themselves as well as the animal, in the famed bull-taming festival. In fact, by custom, only upper caste men were allowed to participate, discriminating against the lower castes. Many lives were lost in this celebration of brutality in the name of sport and entertainment, including those of animals, participants, and even spectators.
The court ruled that this custom resulted in severe violations of the constitutional rights of the animals mentioned in Article 51-A (g)(vii) and (h)(viii), which form a part of the Fundamental Duties to be fulfilled by the citizens. They held the view the view that such customs promoted cruelty and other unjust practices in the name of sports.[13]
Conclusion
The customs were the most important, and in some cases, the only source of law, during the early times of the general public. The customs are based on the construction of a completely legal and acceptable framework. They appear when the general public is present. In terms of primitive society, custom is a continuous activity. A custom is a standard or practise that has been followed by the general public from the dawn of time. Customs are encouraged, merged, and exemplified in legal standards. In any lawful and legal system, the effects of custom can be observed. Custom is a valid and authoritative source of law but the only condition is that it must be valid and a lawful custom. However, with the advent of colonial rule and introduction of formal legislative laws, customary regulations gradually receded to the background.
End-Notes:
- http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/Uni-5.pdf (Visited on June 8, 2021)
- https://blog.ipleaders.in/customs-source-law/amp/ (Visited on June 8, 2021
- (1942) 1 MLJ 564
- https://www.srdlawnotes.com/2017/01/constituents-of-valid-custom.html (Visited on June 8, 2021)
- https://www.gktoday.in/topic/custom-in-jurisprudence/ (Visited on June 8, 2021)
- https://www.loc.gov/law/help/customary-law/india.php (Visited on June 8, 2021)
- https://www.india-seminar.com/2000/492/492%20b.%20j.%20krishnan.htm (Visited on June 8, 2021
- Appeal (civil) 12395 of 1996
- https://www.outlookindia.com/newswire/story/customary-law-prevails-over-statutory-law-sc/480438 (Visited on June 8, 2021)
- 2018 S.C.C. OnLine S.C. 1690.
- https://blog.ipleaders.in/remembering-sabarimala-verdict-conflict-customs-law-prevail/#_ftnref8 (Visited on June 8, 2021)
- (2014) 7 S.C.C. 547.
- https://blog.ipleaders.in/remembering-sabarimala-verdict-conflict-customs-law-prevail/#_ftnref8 (Visited on June 8, 2021)
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