The article has been written by Subodh Asthana, a student of Hidayatullah National Law University currently studying in the second year. The author has discussed the custom as source of law.
Ever imagined the situation when there were no codified laws, there can be several questions up to one’s mind like would it result to anarchy or how would you govern and regulate the particular class and sect? In ancient times when there were no laws, the people were governed by the customs prevalent in their particular community. Those customs were taken seriously by the community and were enforced and implemented on each and every community of that particular sect. Customs is a very authentic and binding source of law, because of the historic value they have.
Custom is a significant wellspring of law and it is attractive to characterize the equivalent. Custom has been characterized by different legal advisers according to their idea, getting, theories, views and beliefs. 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 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”.
Usage of Custom as a source of law
Merely attaching the antiquity clause (i.e. a particular has been followed from time immemorial) doesn’t make it binding. Some of the differences between the application of usage and custom are as follows:
- A customary custom or use which does not have outright authority is obviously discernable from a legitimate custom having a power of law.
- A custom shall be binding if it is not proved that a particular sect is out of its scope and have no agreement regarding the same.
- In the event that custom is a local custom, it is limited to a specific area then again, the utilization need not be kept to a specific region because it would be followed locally.
- In that capacity, a ‘legitimate custom’ can’t be comprehended in the feeling of ‘use’ which is additionally founded on time immemorial yet it has not procured authoritative or required character nor a user can be practised starting at right inhering in one individual and official on the other against whom such use is guaranteed.
- Custom to be substantial have been in usage from time immemorial. Use of late inception can be given impact by the courts on the ground that parties had contracted with reference to the use.
- Local custom can undoubtedly criticize from or precedent-based law of the domain, yet not from drafted statute law. Utilization, notwithstanding can do as such to the extent to which it is conceivable to avoid the precedent-based law by explicit and express contract between the gatherings
- In the event that in a specific case, customary law can’t be prohibited by express understanding, it can’t be rejected by use moreover. Be that as it may, custom can supersede the precedent-based law.
- On satisfying the essential conditions, a customs works as a wellspring of law either for the whole network or the regional segment wherein it works. Utilisation just adds a term to its usage.
- A trade use need not build up relic, consistency, and reputation, which are so necessary on account of custom.
- A custom emerges out of its own power, though use does not appear out of its own power but rather is emerging out of an agreement between the gatherings. At the end of the day, a lawful custom has its very own free stand and isn’t an animal of understanding, then again a customary custom or use does not exist or emerge out of any lawful specialist autonomously possessed by it it is formed out of mutual understanding between the people
Types of Custom
Customs can be mainly classified into two types which are as follows.
- Customs without sanction
- Customs with sanctions
Further, these customs relating to sanction can be classified as follows:
- Legal Customs
- Conventional Customs
Legal Customs have been further classified as follows:
- General Custom/ Customs for all
- Particular Custom/ Local Custom
Customs without Sanctions
These are those customs which are merely non- directory. They are altogether seen because of the nearness of the general public beliefs which is contrary to the views expressed by Austin in his positivist theory.
Customs having Sanctions
These are the customs which have been implemented by the State. These customs are upheld by authorization by the different courts in their pronouncements.
Further, these customs have been classified as follows.
The legal customs are those whose legal authority is absolutely unequivocal. These customs work as the coupling rule of law. They have been perceived by the courts and have turned into a piece of the tradition that must be adhered to. They are upheld by the courts in their judicial pronouncements. It is again classified as under.
Local Custom/ Particular Custom
A local custom is that which is practised in some characterized locality, that is, to an area, town or then again a zone. Be that as it may, they don’t infer land locality as it were. Some of the time, certain groups or families take their customs with them wherever they go. They also are called local customs. Consequently, in India local customs might be separated into two classes; Land local custom‘ and individual local custom. These customs are law just for a specific locality, sects or family.
General Customs/Customs for all
A general custom is what wins all through the nation and comprises one of the wellsprings of the rule that everyone must follow. As indicated by Keeton, ‘a general custom should likewise fulfil certain conditions on the off chance that it is to be a wellspring of law’. It must be sensible, pursued and acknowledged as official and ought not to be in contravention with the resolution law of the nation and must be in presence from the time immemorial.
A conventional custom is likewise called “use”. It is a setup whose authority is contingent on its acknowledgement and the organization in the agreement between the gatherings bound by it. In basic words, a conventional custom is a contingent and condition is that it will tie on the parties just, on the off chance that it has been acknowledged and consolidated by them in their agreement.
A conventional custom is authoritative on the parties not in light of any legitimate specialist, but since of the way that it has been explicitly or impliedly incorporated in an agreement between the parties so concerned. In the case of Asarabulla v. Kiamtulla, the Privy Council ruled that where the terms of the agreement are in contravention to the formed contract or agreement enforceable by law then, the same shall not be enforced by the law.
Essentials of Valid Custom
In order to enforce a valid, there are some essentials and grounds which will qualify as a valid custom and therefore could be recognized by judiciary and legislature. The grounds of valid custom as follows.
The primary trial of a legitimate custom is that it must be prevalent from time immemorial. It must be old or old and must not be of the ongoing source. Manu stated, “Immemorial custom is supernatural law”. Days of ancient times imply in the Civil law in the frameworks inferred consequently and initially implied in England and additional time is so remote that no living man can recollect it or give proof concerning it.
In England, a custom must be at the time of the rule of Richard I King of England”. That is in England the time period for a valid custom is 1189, for a custom to be viewed as substantial. The year 1189, was the main year of the rule of Richard I. In any case, the English principle of ‘immemorial inception‘ is not followed in India. In Gokul Chand v. Parvin Kumari, the Supreme Court ruled and denied to measure the validity of Custom from 1189 AD but stated explicitly that it must be of ancient and historical times.
The second significant legal trial of a legitimate custom is that it must be reasonable. It must not be unreasonable. It must be helpful and advantageous to the general public. On the off chance that any parties face difficulties in a custom, the parties must fulfil and convince the court that a particular custom is unreasonable. This means the weight of evidence lies upon the individual who challenges the custom. To find out the reasonableness of custom it must be followed back to the season of its inception. The unreasonableness of custom must be great to the point that its authorization results in more prominent damage than if there were no custom by any means.
A custom ought to be viewed as adequately reasonable when it isn’t against the fundamental guideline of profound quality of the law of the state wherein it exists, standards of equity, morality and arbitrariness. It must not be generally rash, unforgiving or poorly arranged.
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. The topic of reasonability is one of law for the court. The standard which the courts apply has been characterized by the Divisional Court of the King’s Bench in Produce Brokers co. vs Olympia oil and coke co., considered grounds of valid customs as “reasonable and legitimate and for example, sensible, genuine and impartial men”.
A custom must be followed with consistency and in continuity from its inception. If it is proved otherwise that there were a break and a pause by a particular community in the following the custom in a court of law, then the court may have the discretion to get the custom annulled. Therefore a custom must be followed in consistency and continuity. 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.
The most important test of a valid and essential custom is that a particular custom must be specific and less from ambiguity. If a particular custom is ambiguous, vague and not understandable by the parties then the particular custom will be declared as null and void by the court, the same was ruled by Privy Council in Wilson vs. Wilson.
Not opposed to Public Policy
Another test for the legitimacy of custom is that it ought not to be against public policy. This test might be incorporated into the trial of reasonability, as it is extensive term and it might incorporate public policy also. 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.
A custom must be of a juridical nature. A custom must refer to legal relations. A mere voluntary practice not conceived of as being based on any rule of right or obligation does not amount to a legal custom.
No analogical deductions
Custom can’t be stretched out by analogy. It must be set up inductively, not deductively and it can’t be built up by earlier techniques. It can’t involve hypothesis yet should dependably involve reality. In like manner, one custom can’t be inferred and deduced from another custom. Custom in contravention to fundamental rights will be declared as null and void.
In the beginning periods of the general public, the customs were the most significant, and in some cases, the sole wellspring of law. The customs lie in the establishment of the entirely legitimate and lawful framework. They appear with the presence of the general public. Custom is the continuous practice with regards to the primitive society.
Custom is a standard or practice which is trailed by the general population from time immemorial. Customs are supported and are fused and exemplified in legitimate standards. The impact of custom can be followed in any legitimate and legal framework. Custom is a valid and authoritative source of law but the only condition is that it must be valid and a lawful custom.