This article has been written by Sahajveer Baweja.

“True freedom requires the Rule of Law and justice, ad a judicial system in which the rights of some are not secured by the denial of right to others.”

–Jonathan Sacks

It is interesting and exhilarating to witness changes in laws which have proved to be catalysts for path-breaking changes in the existing justice system. There has been a paradigm shift from the era of customs to the codified legislature; and the world has enthused towards more empirical and objective approach. Earlier, the society was governed sovereignly by the driving force of customary laws, that later culminated into pervasive social practices.

Even in present day, customs are recognized as a valid source of law. Certainly, past trends show us that customs at one point of time dominated the prevailing law; but with evolving modern jurisprudence, they have boiled down to serve a mere subordinate source to the legal system. This can be attributed to the development of the concept of Rule of law and constitutionalism in the nation[1]; that have eventually led to the streamlining of the system, eliminating arbitrary norms and greater emphasis on the ‘black letter law’. Thus, the incorporation of customary law into our common law is; however, like our other sources of law, subject to the supreme law of the land.

What are Customs and Customary Law?

The present proposition calls for a deeper understanding conflict between customs and the constitutional letter. Customary law can be termed as a few good words of the old retired judges. “The word custom” as defined by Sapir, “is used to apply to the totality of behaviour patterns which are carried by tradition and lodged in the group, as contrasted with mere random personal activities of the individual.” Moreover, in case of Chettiar v. Kumarappa, custom was defined as the particular rule that has existed from the time immemorial and has obtained the force of law in a particular locality.[2] Custom in Chamber’s 20th Century Dictionary connotes, ‘What one is wont to do: what is usually done by others: any of the distinctive practices and conventions of a people or locality, esp., those, of a primitive tribe.[3] Citing Hur Prasad v. Sheo Dayal, Sir Hari Singh Gour states, ‘Custom is an established practice at variance with the general law.’[4]

These definitions give us an insight, that a custom is certainly a dynamic, abstract form of law which that derives itself from the general practices of a community. It derives its legitimacy from the people in that era. It is founded on the convenience of the common folk, in their attempt to regulate their daily activities. What is essential to note is that, they pertain to certain timeline and may not necessarily fit into evolving societies. There’s where the entire debate arises, when the common folk refuse to dispense with such customs due to cultural or sentimental factors, allowing them impinge on the changing and growing needs of certain sects in the society.

Customary Law: An Impediment to The Road To Justice?

One of the features of the customary law, that can be deduced out from its functioning, is that  they have undergone the culture of domination. For instance, the person who held the regime could have acted arbitrarily in forming those rules. Owing to their formulation centuries ago, customs that continue to prevail have a vision of patriarchal ideology underlying within. Women have always been considered inferior to their counterparts, and the same is reflected through such customs. The customs were created by the dominating-class and were imposed on the dominated-class. Even now, in some societies, women need aid from a male relative to bring a case to court. In the 21^st century, the word justice cannot be interpreted in this sense, when most of the countries have guaranteed fundamental right to equality. Any distress to the feminist jurisprudence can shake the whole justice system as the philosophy of equality shall be distorted.[5].Customary rules, like the concept of criminalizing same-sex marriage on the grounds of Victorian Morality has led to the violation of minority opinion. Harmony has to be established and the spirit of natural justice has to be a prudential factor in determining the validity of law.

After the enlightenment period, Auguste Comte focused on the positivist approach. It states that the focus should be given on objectivism and empiricism. Our state in the 21st century has everything in a written and objective form so that no issue can result out. In fact, the orders of the lowest court are written and recorded. At this place, unfortunately, the legal backing of custom falls in a disadvantaged position. Customs are not in a written form and, hence, it can lead to arbitrariness. Ideally, the customs are informal and which affects the principle of natural hearing. The flexibility of the customary law is also a negative factor in providing justice because it may get harder to ensure that the application of the law is similar with every people who have committed wrongs. The rules and its interpretation may differ from society to society and in extreme case, even in the same ethnic group.

An unwritten form of law ensures that there might be a case of monopolization of its knowledge and further, it gives an esoteric and non-transparent aura that runs contrary to basic rule of law tenets such as open, transparent and knowable law. There will be a violation of the principle of natural justice when reliance would have been paid on the law which does not have any codified or written form. Just because of fulfilling the essentials of the custom, the empiricism couldn’t be traced out. In some instances, customary laws and processes for adjudicating or resolving disputes are influenced by beliefs in supernatural forces. If such beliefs are taken into consideration, it would be against the principles of Lady Justitia who treated law as pious and the highest state of justice. Law has to be based on reason and not on beliefs. Aristotle through his teleological approach states that every law has its purpose which it tends to achieve. This form of Custom will hamper the judicial proceedings and will devastate the jurisprudence.

Customary law was by no means a perfect one even in historical times. There were elements of it that were crude, barbaric and unconscionable and they were enforced with the same vigor as the good aspects. The play of Antigone by Sophocles has portrayed us the clash between natural justice and the customary laws. The definition of a just law changes with time but the harmony with the nature of law is an inevitable clause. Lon Fuller has also given the eight points describing the grounds on what laws[6] fails and out of them one talk about the evil nature and the non-acceptance of the law. There is a requirement of more practical approaches to its smooth implementation. Law has to adhere to its sincerity and a rational reason has to be given for every law made unless it is not causing hindrance to the justice system.[7]

Sabarimala Verdict: A Leap towards Constitutionalism

India is considered to be the land of colours, the land of diversity. With a landscape bridled with such diversity, it had become almost impossible for law to percolate into the practices of the local folks everywhere. Consequently, men and women have always conformed to their prevailing customs and practices to regulate their lifestyles. The Judiciary at certain instances has intervened to check the arbitrary imposition of such customs. In pursuance of the same, they have exhibited prowess in evaluating impact of the cultural background and practices of the parties, in order to reach the best decision on the matter.  In doing this, however, the courts always have to consider that the black letter law first as the superior law in our country and then examine customary law and cultural practices so that they can be taken into account as long as they do not unreasonably contradict the law.

An excellent example of the same was the recourse adopted by the Apex Court in the case of Indian Young Lawyers’ Association v. State of Kerala[8] or the Sabarimala Temple case. The Judiciary has showcased how customs and traditions, when left unchecked can lead to severe injustice to a particular class of society, and why the rule of law holds  higher authority than such practices.

As proponents of Rule of Law and libertarian rule, we strongly appreciate and admire the majority opinion of the Court in the instant matter. The Court lifted the ban on the entry of women aged 10-50 years in the historical temple of Sabarimala in Kerala. The Lord Ayyappa Temple at Sabarimala in Kerala thus opened its gates to women of all ages following the verdict on September 28, 2018.[9]

Background

The ban found its origins in a custom that deprived almost half of the population’s right to equality and freedom of practicing religion as mentioned in Part III of our Constitution[10]. For centuries, women were prohibited to enter the Sabarimala shrine based on the biological ground of menstruation. The Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry Rules, 1965 (Rules 1965) which states that “Women at such time during which they are not by custom and usage allowed to enter a place of worship” was the basis of the practice of excluding women of the age group of 10 through to 50 years to enter the temple. These Rules were framed under Section 4 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act,1965 (1965 Act). Age-old religious practices are not expected to conform to a modern constitution, but laws have to be in concordance with its stipulations. The Kerala government’s move to turn the Sabarimala custom into a statutory rule was a thoughtless action that left the court no choice but to judge it on the touchstone of the Constitution

Further, Proviso to Section 4(1) created an exception to the effect that the regulations/rules made under Section 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class. [11]The learned Court adopted a liberal approach and held that the language of both these provisions indicate that custom and usage must make room to the rights of all sections and classes of Hindus to offer prayers at places of public worship.[12]

It was also opined that that a custom that considered a biological process like menstruation as an impure phenomenon cannot be in conformance with the society we breathe in today. Dipak Mishra J. in another judgment remarked that:

‘Constitution is a tool to transform our society and Constitutional morality supersedes any custom or tradition. It is unnecessary that a custom which was moral or just a century ago must be in concordance with the moral standards of the society today, and if it is not, then such custom must be either altered or invalidated in order to meet the dynamism of the society.’

 The role of the Court is to break the shackles of narrow-mindedness that stigmatize and erode the fabric of evolving society. We believe that such strong viewpoints shall go a long way in diluting the prevalent social taboos[13] and ensure greater equality to women, and a better realization of Article 14.

The reasoning offered by Chandrachud J. is the highlight of the judgement, as an ardent guardian of constitutional values. In his words:

“A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality.”

The fledgling Indian State, through its Constitution, visualized a nation built on the trine pillars of equality, liberty and justice, not only for men, but for ―We, the People of India. The Constitution which we ―gave to ourselves on 26th November, 1949 was built on the premise of a Sovereign, Democratic, Republic, guaranteeing Justice- social, economic and political; Liberty of thought, expression, belief, faith and worship; and Equality of status and opportunity. We at the first place, sought to break the oppressive shackles of inequities, injustice, and social hierarchies and entrenched structures that perpetuate discrimination and prejudice.

Thus, such an abominable ‘tradition’ had no place in our prevailing constitutional order. We must keep in mind that the simple act of prohibiting a woman’s entry into a temple, has a far-fetching psychological impact on the greater part of the society. This antique practice had become so ordinary, that for years nobody sought to notice that it impinges upon guaranteed rights of a chunk of population.

The mere prohibition was a violation of the charter of Equality, Article 17 that prohibits untouchability of any nature, Article 19 and Article 25 of the Constitution. Art 15. This has been regarded by the Courts as one of the most significant provisions of the Constitution and it has been held that, ―The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth, culturally, socially and economically. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights.[14] A custom that conflicted with some odd 4-5 fundamental rights was liable to be struck down.

The Court in their verdict also overruled S. Mahendran v. Secretary, Travancore Devaswom Board wherein a similar patriarchal approach had coloured the judicial decisions in relation to women‘s entry into temples too. A PIL filed in Kerala High Court against allowing women to trek Sabri Hills and offer prayers at the Sabrimala Shrine as it was contrary to the custom and usage followed in the temple. Here, exclusion of menstruating women between the age of 10 to 50 years from the Sabrimala Temple was in question, and the argument put forward was that this was a matter of religion and right of religious denominations to exclude such women are protected under Article 26(b) of the Constitution which guarantees the right of religious denomination to manages its own affairs in such matters.

It is also pertinent to note that the Hindu Code defines custom and usage as “Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law…in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy.”[15] The final words of this provision substantiates for the fact that the precedence given to law over custom was reasonable and necessary. [16]It is concordance with the glaring feature of ‘open architecture’ in Hinduism, that makes it one of the most accommodating and diverse religion. Striking down a non-essential practice could in no way belittle the sanctity of the Lord, who treats his devotees one and the same. However, such is the power of entrenched patriarchy that women are being intimidated on their way to the shrine.

This progressive outlook of the Judiciary has been observed in a series of pronouncement in the last decade. The Supreme Court adopted a similar approach and imposed a ban on Jallikattu: They expanded the scope of justice not only to humans but also to animals when it banned the use of bulls in Jallikattu.[17] . The famous bull-taming festival required men to tame an agitated bull, injuring themselves, and the animal as well. In fact, custom allowed only upper caste men to participate, discriminating the lower caste section of the society. Many lives, of animals, of people participating in the sport and even the spectators, were lost in this celebration of cruelty in the name of sport and entertainment. 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.

In another celebrated judgement, the Court upheld the constitutional letter by banning the arbitrary and whimsical practice of triple talaq[18]. Thousands of helpless women had been deserted by their husbands on social networking sites like Facebook or through posts and denied the right to maintenance. Amidst uproar by the Muslim community, the Court adopted the bold path and laid the path of redemption for these women, ensuring their right to a dignified life, disregarding pervasive customs.

The noble attempt of the Court in limiting itself to the constitutional mandate has both been appreciated and criticized. We must understand that customs are not always necessarily evil, and have often facilitated the smooth functioning of the intrinsic matters pertaining to the society. [19]One controversial decision of the Rajasthan High Court was when they struck down the antique practice of Santhara followed by the Jain community[20]. The court called the practice of voluntary fast-unto-death as punishable under section 309 of the IPC as an attempt to commit suicide. The court also ordered support to Santhara by any person punishable as abetment under section 306 of the IPC.[21]

Need for Progressive Legislation to Supersede Customs

To Savigny, “law like language stands in organic connection with nature or character of the people and evolves with the people.” Therefore, according to his, the true basis of positive law is its existence, its reality, in the common consciousness of the people. Custom therefore is the badge and not the ground of origin of positive law.

The recent debate on various customs and practices prevailing in the society looks upon the Law as an instrument of social change. In the above cases, it can be clearly observed that the judiciary has given precedence to laws and not customs that are unjust or not fit for the society today. Customs which are in accordance with the law has always found a place in legislation but the customs which serve as a barrier in the deliverance of justice have been carefully dealt with. Hence, even in the above cases, the courts have not adopted an extreme approach by blatantly imposing a ban on the entire practice but have adopted a carefully crafted mean path to take down only that part of the custom which acted as a hindrance in imparting justice.

Ideally, it seems that the above approach is enough to strike a balance between diverse interests. However the Indian legal still has to go a long way to achieve justice in its true sense. This struggle was initiated when gruesome practice of Sati was struck down centuries ago, amid public grievance and protests. [22]Law became the means to destigmatize the society out of such evils, and it shall continue to serve such purpose. The objective and the philosophy of the Constitution is implicit in the concept of Constitutional morality can only be achieved by transforming the society and eliminating the obsolete concepts that obstruct the path towards social development and evolution of the way individuals participate in the society through social practices[23].

Conclusion

With the progress of culture and advancement of civilization, humanitarian feelings developed individually and collectively, and many social welfare legislations have been also enacted. The time has been changing rapidly and this growth of civilization and culture, aesthetic sense, ethical values and humanitarian feelings cannot be promoted by depending on customary laws and violating the sanctity of rule of law.[24] Dependency on The spoken law had sometimes been all things to all men but now the written law is the one that puts everyone on a same platform irrespective of any classification or categorization. Customary laws were those law emerged from the aura of vagueness, mystery, uncertainty, and liability to change which had enveloped them for so long, and stood forth stark and bare to public scrutiny and with the plethora of transformation in our society, their arbitrary functionality contrasts the aroma of justice which shall be tasted by every citizen.[25]  Law performs certain functions essential to the maintenance of societies and it is a vital part of social organism. Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. [26]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, this takes me to the conclusive statement that customary law should have only persuasive value and shall not prevail as a law of land.

Endnotes

[1] Fitzgerald, P.J., M.A., “Salmond on Jurisprudence”, (1997), N. M. Tripathi Pvt. Ltd., Bombay, at p 190

[2] Chettiar v. Kumarappa, AIR 955 Mad 144

[3] “Customary Law in india: jurisprudential and legal aspects”, Chapter 3, http://shodhganga.inflibnet.ac.in/bitstream/10603/74298/9/09_chapter%203.pdf

[4] Gour, Sir Hari Singh, the hindu code, (1973), Law Publishers, Allahabad, Vol. I, at p 156.

[5] Kane Minnie, Onyango, J. Oloka, Tejan-Cole Abdul, Reassessing Customary Law Systems as a vehicle for providing equitable access to Justice for the poor, NEW FRONTIERS OF SOCIAL POLICY, December 12-15, 2005.

[6] Customary Law, MY DEMOCRACY NAMIBIA, Law in Namibia Factsheet Series No. 5 of 6, Hanns Siedel Foundation, http://www.lac.org.na/projects/grap/Pdf/Law_5-Customary_Law.pdf

[7] Mahajan, Dr. V.D., “Jurisprudence and Legal Theory”, (2007), Eastern Book Company, Lucknow, at p 254

[8] Indian Young Lawyers Association v. The State of Kerala, 2018 S.C.C. OnLine S.C. 1690.

[9] Constitutional and Legal Bases of Sabarimala Verdict, Financial Express, October 17, 2018 https://www.financialexpress.com/india-news/the-constitutional-and-legal-bases-of-the-sabarimala-verdict-october-17-2018/1352605/( last accessed on 12^th February 2018).

[10] INDIA CONST. a. 25

[11] Nair, TKA. The Sabarimala Verdict Establishes the Supremacy of Constitutional Morality.  Hindustan Times, 8 Nov. 2018,  

[12] Sabarimala Temple Issue – Customs Vs Constitution, IAS Express, (Jan. 24 2019 10:05 AM), iasexpress.net/sabarimala-temple-issue-upsc-ias-gk.

[13] John Austin, 1885. Lectures on Jurisprudence or the Philosophy of Positive Law, Vol. I, ed. R. Campbell. London: John Murray (5th Edition). P. 316-7

[14]C. Masilamani Mudaliar & Ors vs The Idol of Swaminathaswamiswaminathaswami Thirukoil, SC 1996 AIR 1697, JT 1996 (3) 98, judgment by K. Ramaswamy, J., retrieved from http://indiankanoon.org/doc/1999938/ accessed on 5th July, 2014.

[15]The Hindu Marriage Act, 1955, Sec 3(a).

[16] Mahmood, Tahir. Custom v. Law. , The Indian Express, 25 Oct. 2018, indianexpress.com/article/opinion/custom-vs-law-5418862/.

[17] Animal Welfare Board of India v. A. Nagaraja, (2014) 7 S.C.C. 547.

[18] Shayara Bano v. Union of India, 2017 S.C.C. OnLine S.C. 963.

[19] Allen, Sir Carleton Kemp, Law in the Making, (1964), Oxford University Press, Ely House, London W.I., at p. 111.

[20] Nikhil Soni v. Union of India & Ors, 2015 SCC OnLine Raj 2042 .

[21] Joychen, PJ. Jain Practice of Santhara Illegal: Rajasthan HC – Times of India. TOI, Business, 10 Aug. 2015, https://timesofindia.indiatimes.com/india/Jain-practice-of-Santhara-illegal-Rajasthan-HC/articleshow/48430004.cms.

[22] Bodenheimer, Edgar, Jurisprudence: The Philosophy and the Method of Law, First Indian Reprint (1996), Harvard University Press, U.S.A., at p. 300.

[23] T. W. Bennett and T. Vermeulen, 1980. Codification of Customary Law, Journal of African Law, Vo1.24, No.2, p.213.

[24] dias, r m w, Jurisprudence, First Indian Reprint (1994), Aditya Books Private Limited, New Delhi, at pp. 192.

[25] William A. Robson ,Civilization and the growth of law, the McMillan Co., 1935, pp. 10–11

[26] Lloyd’s introduction to jurisprudence, 5th Ed., pp. 868–69.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.