CUSTOM AS A SOURCE OF LAW

INTRODUCTION
Custom is a habitual course of conduct observed uniformly and voluntarily by the people. Custom
was regarded as one of the oldest sources of law as in the ancient times it occupied an important
place in regulation of human conduct in almost all the societies. Custom is created by the people, by
their unconscious adoption of a certain rule of conduct and its authority is based on nothing but its
long-continued use and recognition by the people.
MEANING AND CHARACTERISTICS OF CUSTOM
The word ‘custom’ ordinarily means tradition, practice, usage, observance, or a way. The word
‘custom’ generally means the following:
1. It means a usage or practice common to many or to particular place or class habitual
with an individual.
2. It is a tradition passing on from one generation to another.
3. It means repeated practice that regulate social life.
4. It means a long- e s t a b l i s h e d practice, considered as unwritten law, and derives
authority on long consent, usage, and prescription.
5. It means long established habits or traditions of a society.
6. It is a traditional and widely accepted way of behaving or doing something that is -
specific to a particular society, place, or time.

When people find any act to be good, beneficial and agreeable to their nature and disposition, they
use and practice it from time to time, and it is by frequent use and multiplication of this act that the
custom is made. In Sanskrit Sadachara, means ‘the usage of virtuous men’. The word Sadachara,
has been used for custom which means, ‘the handed down in regular succession from times
immemorial among the four chief castes (Varna) and mixed races of the country’. It is a usage that
has by long continuance acquired a legally binding force.
DEFINITIONS OF CUSTOM

1. Salmond: - According to Salmond, “custom is the embodiment of those principles which have
commended themselves to the national conscience as principles of justice and public utility”.
2. Austin: - According to Austin, “custom is a rule of conduct which the governed observe
spontaneously and not in a pursuance of law set by a political superior”.
3. Holland: - He defined custom as “a generally observed course of conduct.”
4. Harprasad v. Shivdayal – The Privy Council observed, custom as a rule which in a particular
family or district or class or tribe, has due to its long usage obtained the force of a law.
5. In Tanistry case, it was held that custom is jus non scriptum (Unwritten law). When people
find any act to be beneficial and agreeable to their nature and requirement, they start practicing
it from time to time and when it is continued for immemorial time, it obtains force of law.
JUDICIAL TESTS FOR A VALID CUSTOM
Each and every custom cannot be legally enforced. They must be proved before the courts before
they can have the force of law. Custom to be legally recognized must satisfy the following tests:
1. IMMEMORIAL ANTIQUITY
The first test of a valid custom is that it must be immemorial. It must be old or ancient and must
not be of recent created. Allen, Paton, Salmond, and all other jurists believe that in order for custom
to have legal validity, it must be proven to be of ancient origin. Blackstone regards that “A custom,
in order to be legitimate and binding, must have been employed as long as man’s memory runneth
not to the contrary”. In England, time immemorial refers to a period of time so distant that no living
person can recall it or give evidence about it. In ancient Hindu law also, the antiquity was one of the
essentials for the recognition of custom. Manu said, “Immemorial custom is transcendental law”.
In Ambalika Dasi v. Aparna Dasi the court was of the view that either 1773 A.D. or 1793 A.D. is
the date for treating a custom which has been in existence as immemorial. In Venkata SubbaRao v.
Bhujangarrya the court held that a custom being in existence for 40 years is an enforceable custom.
The Supreme Court in Gokul Chand v. Parvin Kumari, decided the mater once for all by laying
down that in India a custom must be of old nature, but there is no such fixed period for which it
must have to been in existence as it is in the English law.
2. REASONABLENESS
The second important judicial test of a valid custom is that it must be reasonable not be
unreasonable. It must be useful and convenient to the society. If any party challenges a custom, it
must satisfy the court that the custom is unreasonable. A custom shall not be valid if it is apparently
repugnant to logic and it is likely to do more mischief than good if enforced. That is why it is said
that the authority of a prevailing custom is never absolute.
Sir Edward Coke pointed out that a custom is contrary to reason if it is opposed to the principles of
justice, equity and good conscience. In Raja Varma v. Ravi Varma the privy council observed that a
custom which is not reasonable is invalid in law and not binding. In case of Lutchmeeput v.
sadaulla, a plaintiff, a zamindar sued to restrain defendants from fishing in certain bhils (ponds)
which formed part of his zamindari and where the defendants contended that they had a prescriptive
right to fish under a custom according to which all the inhabitants of the zamindari have the right of
fishing in the bhils, it was held that the alleged custom was unreasonable the defendants may take
away the entire of fishing in the bhils leaving nothing for the plaintiff who was admittedly the
owner of them.
3. MORALITY
Third test of a valid custom is that a custom, to be valid, must not be immoral. It is a well-
recognized rule that a custom should not be opposed to decency and morality. In Mathura Naikin v.
Esu Naikin, the Court has held that the custom of adoption of girls for immoral purposes, like
dancing is illegal. In case of Balusami v. BalaKishna, the custom permitting marriage with
daughter’s daughter has also been held immoral. In Gopi v. jaggo, the Privy Council allowed a
custom which recognized and sanctioned re marriage of a woman who had been abandoned and
deserted by her husband. The Bombay High Court, in Narayan v. Laving held a custom permitting a
woman to desert her husband at her pleasure and marries again without his consent to be immoral.
 4. CONTINUANCE
The fourth test for a valid custom is that it must have been continuously observed without any
interruption. General rule is that 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, be
recognized as reasonably long. In Muhammad Hussain Forki v. Syed Mian Saheb, it was held that
unless there is continuity there is no custom.
5. PEACEABLE ENJOYMENT
The next important test is that custom must have been enjoyed peaceably. If a custom has been in
dispute for a long time in a court of law or otherwise, it will negate the presumption that originated
by consent.
6. CONSISTENCY
The test for a valid custom is that it must be in conformity with the statute law. It should not be
contrary to the statutory law. In Darshansing v. Naimum Nisa Bibi. it was held that custom cannot
abrogate a newly enacted legislation. For instance, the custom of child marriage and usage of dowry
has no legal force in modern India after the relevant enactments.
7. CERTAINTY
Certainty is an indispensable condition of a valid custom. A custom, however, ancient must not be
indefinite and uncertain. In Wilson v. Willes, it was held that a custom must be certain and not
vague.
8. COMPULSORY OBSERVANCE
A custom to be legally recognized as a valid custom must be observed as a right. It means that
custom must have been followed by all concerned without recourse to force and without the
necessity of permission of those who are adversely affected by it. If a practice is left to individual
choice; it cannot be treated as a customary law. In Hamperton v. Hono, it was held that if the
observance of a custom is suspended for a long time, it would be assumed that such a custom was
never in existence.
9. PUBLIC POLICY
Another test for the validity of a custom is that it should not be opposed to public policy. In case of
Budanso v. Faturr, a custom which would enable a woman to marry again during the life time of
her husband without any defined rules by which the marriage with the first husband is dissolved
before the second marriage is contracted, was held to be contrary to public policy.
THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO LAW
1. Historical Theory - The main exponents of this theory are Karl Von Savigny, his disciple
Puchta, Blackstone, and Sir Henry James Summer Maine. According to this theory, the
growth of law does not depend upon the arbitrary will of any individual. Custom is derived
from the common consciousness of the people.
➢ According to Savigny, custom is per se law. He says law is based on custom.
 ➢ According to Puchta, the custom is independent of the law of sovereign. The custom is not
only self-sufficient and independent of legislative authority but is a condition precedent of
all sound legislation.
➢ Sir Henry Maine regards custom as a source of formal law.
Criticism: Paton says that the growth of most of the customs is not the result of any conscious
thought but of tentative practice.
2. Analytical theory - The main exponent of this theory is Austin. According to him, custom
is not law in itself, but it is a source of law. If a custom is not recognized by the legislation
and approved by the judiciary, it will not become a law.
➢ Gray also says that custom is one of the sources of law but it is certainly not the sole source
of law.
➢ According to Holland, customs are not laws when they arise but they are adopted into laws
by State recognition.
Criticism: Allen says that Customs grow by conduct and it is a mistake to measure its validity solely
by the express sanction accorded by courts of law or by other determinate authority.
CLASSIFICATION OF CUSTOM
Custom can be classified into two types:
1. Custom without sanction and
2. Custom having sanction.
Custom Without Sanction: These are those customs which are non-obligatory. They are all
observed due to presence of the public opinion.
Custom Having Sanction: These are those customs which are enforced by the State. These customs
are backed by sanction. These customs have two types which are as follows, Legal custom and
Conventional custom.
LEGAL CUSTOM: The legal customs are those whose legal authority is absolute and
unconditional. These customs operate as a binding rule of law. They have been recognized by the
courts and have become a part of the law of the land. They are enforced by the courts. Legal
customs are of two types, namely, Local custom and General custom
➢ Local Custom: A local custom is that which prevails in some defined locality, that is, to a
district, town or an area. But they do not imply geographical locality only. Sometimes, certain
sects or families take their customs with them wherever they go. They too are called local
customs. Therefore, in India, local customs may be divided into two classes, Geographical
local custom’ and personal local custom.
➢ General Custom: A general custom is that which prevails throughout the country and
constitutes one of the sources of the law of the land. There was a time when common law was
considered to be the same as general custom of the realm followed from ancient time, but
today it is not so. Now only the statute law passed by the British parliament and precedents
are regarded as the sources of common law.
CONVENTIONAL CUSTOM: A conventional custom is also called “usage”. It is an established
practice whose authority is conditional on its acceptance. A conventional custom is binding on the
parties not because of any legal authority, but because of the fact that it has been expressly or
impliedly incorporated in a contract between the parties concerned. A conventional custom may
either be local or national. In Asarabulla v. Kiamtulla, it was held that a conventional custom or
usage which is contrary to any express condition laid down in a contract shall not be enforceable by
law.
CUSTOM AND USAGE
1. A custom is binding irrespective of the consent of the parties, whereas usages are binding only
when they are not expressly excluded by the terms of agreement entered into by the parties.
2. If a custom is local, it is confined to a particular locality, on the other hand, the usage need not
to be confined to a particular locality.
3. Usage which is also based on long practice has not acquired binding or obligatory character.
4. A custom to be valid should have been in existence from time immemorial but it is not so in
case of a usage.

LEGISLATION AS A SOURCE OF LAW

The term 'legislation' is derived from Latin words, "Legis" meaning law and "Latum" which means
"to make" or "set". Thus, the word 'legislation' means 'making of law'. Legislation is that source of
law which is declared by a competent authority. The most powerful method of enacting laws is
through legislation as it is regarded as the only source of law which has the authority to pass new
laws, repeal old ones, and amend existing laws.
The term "legislation" is only used to refer to a specific type of law-making, i.e., when a competent
authority declares legal principles in statutory form. It means that the State's legislature has
passed/promulgated a law. The law that has its source in legislation is called the enacted law or
statute law.
DEFINITIONS OF LEGISLATION
According to Salmond: "Legislation is that source of law which comprises in the in the declaration of
legal rules by a competent authority". According to Salmond, there are three different meanings to
the term legislation:
According To Austin: “Legislation is the command of the sovereign or the superior authority which
must be followed by the common masses backed by sanctions”.
According to Gray: "Legislation implies the formal expression of the legislative organs of the
society".
As per the analytical school, 'typical law' is a 'statute' and 'legislation'. The historical school holds
that among all the sources of law, legislation is the least creative. The historical school and the
analytical school both go to extremes. The analytical school makes the error of seeing legislation as
the exclusive source of law and it gives precedent and custom little weight. The historical school
makes the error of not seeing legislation as a source of new law. In Nidhi Kaim v. State of Madhya
Pradesh the court held that the legislation is enacted, only with the object of social good, and only in
support of societal causes. Legislation flows from reason and logic.
CLASSIFICATION OF LEGISLATION
Salmond divides legislation into two types:
1. Supreme Legislation: When a law is passed by a supreme authority or a sovereign law-making
body (legislature of an independent and sovereign state), it is referred to as supreme legislation. It
is supreme because no other authority has the power to revoke, alter, or regulate it.
2. Subordinate legislation: Subordinate legislation on the other hand, is that which comes from
any authority other than the sovereign power. It is dependent on a higher power for its validity
and continued existence.
Validity of Subordinate Legislation
i. There should be a valid parent Act, i.e., the Act which provides for power to make
subordinate legislation.
ii. The Parent Act should expressly provide for a delegation clause (provision giving the
authority to make subordinate legislation) and such clause must be valid.
KINDS OF SUBORDINATE LEGISLATION
1. Colonial Legislation – The law made by the British Parliament is called as Imperial
legislature. Imperial legislation granted certain degree of autonomy to the British colonies.
With the use of this power, the colonies were able to make laws for the governance of their
jurisdiction. The laws so made by the colonies were called as colonial legislation. But the
Imperial legislature had the authority to repeal, amend, or replace the laws created by the
colonial administrations.
2. Executive Legislation - The Legislature may delegate its rule-making power to certain
departments of the Executive. The rules made in pursuance of this delegated power have the
force of law. They may, however, be repealed or superseded by the legislature as and when
deemed necessary to do so.
3. Judicial Legislation - In certain cases, rule-making power is delegated to the judiciary and
the superior courts are allowed to make rules for the regulation of their own procedure. This
is also known as judicial legislation and it should not be mistaken with judicial precedents.
The Constitution of India has conferred the power of rule-making to the Supreme Court and
the High Court under Articles 145 and 227 respectively. Article 145 empowers the Supreme
Court to make rules relating to the following matters:
1. for setting up norms for practicing lawyers
2. for the procedure of appeals and time-limit for such appeals
3. for making rules relating to costs and fees, etc.
4. Municipal Legislation - The municipal authorities have the power to make rules for the areas
under their jurisdiction concerning water, land, urban cess, house tax, etc. Accordingly, when
they make rules for the same it is called as Municipal legislation. This power has been
granted by virtue of the 73rd and 74th Constitutional Amendment Acts.
5. Autonomous Legislation - The State may occasionally allow private entities or bodies, such
as universities, companies, corporations, etc. to make bye-laws for controlling the conduct of
their business. These bye-laws are known as autonomous legislation.
DELEGATED LEGISLATION
The expression ‘delegation of authority’ means transfer of power by a superior to its subordinate.
Accordingly, delegation of legislation means conferring the law-making power to another. In
Agricultural Marketing Society v. Shalimar Chemical Works Ltd., it was held that delegated
legislation is a legislation which proceeds from any authority other than the sovereign authority and
it depends on the sovereign authority for its continued existence.
Article 123 of Constitution – Ordinance making power of the President.
CAUSES FOR GROWTH OF DELEGATED LEGISLATION
1. A welfare state has extensive legislative activity and so it does not have sufficient time to
discuss minor details. Consequently, it transfers its law-making power to the executive or
other subordinate agency to make laws.
2. Sometimes, it may happen that owing to the technicality of the subject-matter, expert
knowledge may be required. In such cases, it becomes necessary to delegate the authority.
3. Sometimes the law is required to be applied with some modifications, according to the needs
and conditions of a specific locality. In these situations, the legislature will lay down the
broad principles and leave the details to be filled by the authority who are to apply the law.
4. Delegated legislation is more flexible than ordinary legislation.
5. delegated legislation becomes very useful during the times of economic and national
emergencies to take quick actions.
CLASSIFICATION OF DELEGATED LEGISLATION
1. Title based classification – It includes rules, regulations, By-laws, etc.
2. Purpose based classification – It includes the power to bring an Act into operation, to extend
the scope of an Act, to exclude persons or objects form the ambit of an Act, etc.
CONTROL OVER DELEGATED LEGISLATION
The need to have a control over delegated legislation arises because if it is not controlled it will lead
to development of ‘new despotism’. It may lead to arbitrary exercise of executive power.
1. Legislative (Parliamentary) control
2. Judicial Control
3. Procedural Control.
ADVANTAGES
1. It saves time of the Parliament.
2. It enables to obtain technical opinion wherever required.
3. It comes very handy during emergencies.
DISADVANTGES
If not properly controlled:
1. It will lead to exercise of arbitrary power.
2. It might ignore public interests.
3. The executive can become stronger with delegated legislation, it can easily encroach the rules
and regulation of legislation by making rules. This concept opposes the rule of Separation of
Power.
 PRECEDENT AS A SOURCE OF LAW
Judicial precedent refers to previously decided judgments of the superior courts, such as the High
Courts and the Supreme Court, which judges are bound to follow. This binding character of the
previously decided cases is important, considering the hierarchy of the courts established by the legal
systems of a particular country. In the case of India, this hierarchy has been established by the
Constitution of India.
Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as
old as custom. It is an important feature of the English legal system as well as of other common law
countries which follow the English legal system. In most of the developed legal systems, the
judiciary is considered to be an important organ of the State.
In modern societies, rights are generally conferred on the citizens by legislation and the main
function of the judiciary is to adjudicate upon these rights. The judges decide matters on the basis of
the legislations and prevailing custom but while doing so, they also play a creative role by
interpreting the law. By this exercise, they lay down new principles and rules which are generally
binding on lower courts within a legal system.
DEFINITION
Salmond - A precedent is a judicial decision which contains in it a principle.
Keeton – A judicial precedent is a judicial decision to which authority has in some measure been
attached. In his understanding, precedent is a decision by a competent court of justice upon a
disputed point of law, becomes not merely a guide but binding duty to be followed by all courts of
inferior jurisdiction administering the same system until it has been over-ruled by a superior court of
justice of by a statute.

ARTICLE 141 of the Constitution of India - The law declared by the Supreme Court shall be binding
on all courts within the territory of India.

THEORIES
DECLARATORY THEORY - This theory was propounded by Sir Mathew Hale as early as in
1713 when he said: “…the decision of courts of justice…do not make a law properly so called, for
that only the king and parliament can do; yet they have a great weight and authority in expounding,
declaring, and publishing what the law of this kingdom is.” However, it was Blackstone who
formally enunciated this theory. According to this theory, judges do not discover law, they just
declare it. Coke says judicial decisions are not a source of law but the best proof of law is. In Willis
v. Baddeley, the court held that here is no such thing as judge-made law.
CONSTITUTIVE THEORY – According to this theory judges make law. Law made by a judge is
as real and effective as any statute. Prof. Dicey who says; “A large part and the best part of the law of
England is judge made law –that is to say, consists of rule to be collected from the judgements of the
courts. This portion of the law has not been created by acts of parliament and is not recorded in the
statute book. It is the work of the courts and it is, in short, the fruit of judicial legislation.”
Prof. Gray has however taken an extreme view contending that judges alone are makers of law. He
says, ‘Whoever hath an absolute authority to interpret any written, it is he who is truly the law giver’.
However, this theory is criticized on the ground that the judges have no power to ignore or override
the provision of a statute. he is duty bound to enforce the statutory provisions.
KINDS OF PRECEDENT
1. Authoritative precedents: authoritative precedents are bound to be followed by a lower
court or other equivalent court once a judgment is made whether they approve it or not.
1. Absolutely authoritative: In these cases, the verdict that has been earlier must
mandatorily be followed by the judge.
2. Conditional authoritative: Conditional precedents are those that have the authority
to bind the court’s decision, but under certain exceptions or special cases, they can be
disregarded. This happens when certain legal decisions are inconsistent with law and
reason and are not well-settled; hence, the judges are at liberty to dissent from or
overrule them and make a new law.
2. Persuasive precedent: persuasive precedents include decisions taken by an inferior court
that a higher court or any other court is not obliged to follow. It depends on the court to
decide whether to consider it or not.
3. Original precedent: An original precedent arises when the court has never taken a decision
in a case and it has to use its own discretion to reach a conclusion. It helps to create new law.
4. Declaratory precedents: A declaratory precedent is application of existing precedent in a
particular case. A declaratory precedent involves declaring an existing law and putting into
practice; hence it does not help in creating new law.

Vishakha v. State of Rajasthan - It is regarded as one of the landmark cases in India because this
case was the first of its kind to provide safety for women at their work places. The judges in this case
identified the need for protection of women at workplace and laid down the vishakha guidelines to
protect women against sexual harassment at work place. Later in 2013 it was transformed into the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013.

PUCL v. Union of India - This case made India the first nation to protect right to food under its
constitution. The judgment introduced various acts like mid-day meals, integrated child development
system, annapurna scheme and many more to protect the people below poverty line and provide food
to them at subsidized rates.

ADVANTAGES OF JUDICIAL PRECEDENT

1. It acts as guidelines to decide future cases.
2. Precedents saves time and increases convenience as a question once decided is settled and it
saves the time and labour of judges and lawyers.
3. Precedents help to prepare new statutory laws and adjust according to the changing
conditions of the society.
DISADVANTAGES OF PRECEDENT
1. A precedent makes a lower court bound to follow it which sometimes forces it to take lesser
or harsher decisions then actually required.
2. It is rigid to change a precedent once followed.
3. There are many precedents regarding many cases and hence it makes it difficult to implement
the right precedent in the right case.