Jaipur National University

Seedling School Of Law And Governance

Sources of law in context with constituion

SESSION:2018-2019

Under The Guidance Of: Submitted By:

Ms. Priyanka ma'am Jatin Tundwal
Asst. Prof. BBA,L.L.B(Hons)
Jurisprudence 2nd semester
 Sources Of Law

Sources of law in context with constituion of India

The word sources of Law have been used differently by the different jurist. According to
some jurist the law which is there at present time is the law and only considered about the
present aspect. According to other jurist , the law is the one which is followed from the long
period of time and only considered about the historical aspect of law. The word sources of
law means from where the law comes and Enacted on the people and what are the legally
recognise body and institution who makes law. In the primitive society laws were created by
the Member of the society to save themself from other and after some time in the monarch
time the person who is the sovereign makes the law through his/her Command, and now at
the present time the legally recognise institution and body makes the law for the smooth
running of the country .

According to Austin1 - There are three different meaning of sources of law , the first one is
the command of the state or the sovereign , second one is the historical aspect of law means
at the past time when the laws were actually laid down and notifies to others eg. human
rights and the last one is the causes which is the reason for the enactment of law.

According to Salmond2 - There are two main sources of law :- A) Formal source of law B)
Material source of law. Formal source of law is the law from which the law making bodies
get their power to make law and validity For eg. Constitution of India. On the other hand
material source of law is the body who make and enact the law in the society for eg.
Legislature , Judiciary etc.

The sources of law played the important role in the making and enactment of the Indian
constitution. The constitution of India is framed and completed on 26 nov. 1949 and came
into existence on 26 feb. 1950. After the India got the independence from the Englishman
through Indian independence act 1947. This document gives the rules , regulation and
framework for the procedure , structure , power and duties of all the Government bodies and
institution . The people of India give themself this constituent which is there and written in
the preamble. The Indian constitution provide different 448 Article , 12 Schedule and 101
Amendments.

There are 3 main sources of law :- A) Legislation , B) Precedent , C) Custom

A) Legislation

According to Salmond3- The legislation the law which is given by the competent authority. In
India, legislation is the law which is given by the legislature which is the parliament. with the
view of analytical school , legislation is recognise as the statue and normal process of law
making. according to the view of jurist of analytical school , the law making function should
be done by the legislature which is parliament in India and should not be done by the
judiciary.

1
page 152 of jurisprudence and legal history by V.D Mahajan
2
page 153 of jurisprudence and legal history by V.D Mahajan
3
page 159 of jurisprudence and legal history by V.D Mahajan

2
 Sources Of Law

In the making of Indian constitution, legislature plays a very important role as the whole and
important part of Indian constitution has been taken from The government of India act 1935.
The government of India act 1935 came because of the failure of The government of India act
1919. The concept of diarchy introduces in India , member of parliament were increased and
more opportunity is given to the Indians. Proper division of power at centre and state. The
concept of Decentralisation started in the Government of India act 1919 without interrupting
the power of central to maintain the integrity of the country

With the help of legislature certain important amendments were introduced in the constitution
and again Power to amend the constitution is given to the parliament in the Article 3684 of
Indian constitution. The word 'Sovereign , Socialist , Secular , Democratic and Republic' and
also the ' unity and integrity of the nation ' is introduced in the preamble of the constitution
by the 42 Amendment act 1973. With the help 77,81,85 Amendment act . Article 165 of
Indian constitution cannot prevent the state from making reservation in matters of promotion
and filling of vacancies.

The word 'and' is inserted in the article 19 (1)(e)6 with the help of 44 amendment act 1978
and clause F(right to property) is also removed from the fundamental right and make it a right
and put it in the 300A with the help of 44 Amendment act 1978. Article 21A 7(right to
education ) was one of the dpsp(directive principles of state policy ) later on with the help of
86 Amendment act 2002 it becomes the fundamental right. and also made changes in the dpsp
(directive principle of state policy) about providing right to education to children and make it
to 1 to 6 age.

The parliament with the help of 42 amendment act imposed some duty on the citizen of India
which is known as the fundamental duty and added in the article 51 A.

By the 73 amendment act panchayat raj. and by 74 amendment act municipality is introduced
in the constitution for the welfare of state and union.

B) Precedent as a source of law

The precedent are the judicial precedent which means the guidelines and judgement which is
given by the judges of court. These precedent act as a source of law because of the high
position and experience of the judges. In India Article 1418 provide the doctrine of
precedent. According to article 141 all the judgement of supreme court is binding on all the
court and the same as all the judgement of high court is binding on all lower court below high
court.

4
Power of Parliament to amend the Constitution and procedure therefore
5
Equality of Opportunity in matters of public employment
6
protection of certain right regard freedom of speech
7
Right to education - the state shall provide free and compulsory education to all children of the age of 6 to 14
in such a manner as the state may , by law , determine.
8
 Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be
binding on all courts within the territory of India

3
 Sources Of Law

In the making as well as strengthening the constitution of India the Precedent plays the
important role. In the landmark case of Kesavananda bharti v. state of Kerala9 , the court
talks about the basic structure or framework of the constitution. and also held that the
preamble is a part of constitution but any changes made by the legislature is subject to
judicial review.

In the case of s.r bommai v. union of india 10 The court held that's the secularism is an
unamendable basic feature of the constitution. In the case of state of w.b v. union of india 11
The court held that's the Indian constitution cannot be called as a federal state and is quasi
federal in nature.

in the case of kesavananda bharti v. state of kerala the court held thats the thou dpsp in
expressly made unenforceable but still it is a part of Indian constitution.

AS some DPSP (directive principle of state policy) cannot be enforce as they are
unenforceable but with the help of judiciary or the judges , they are now enforceable and
these DPSP are:-

1)Legal aid12

2)Free and compulsory education13

3)protection for weaker section and provision for just and humane condition of work14

AS regard with the separation of power of executive , legislature and judiciary , in the case of
chandra mohan v. state of UP 15 The court held that's although the constitution does not
provide strict separation of power but still judiciary is independent. and it was held that's the
independent judiciary is the basic feature of constitution in the case of state of bihar v. bal
mukund sah .16

The power of judicial review is was firstly established in the case of A.K. Gopalan vs The
State Of Madras.Union 17 and given to the supreme court.

c) Custom as a source of law

According to salmond, custom is the mixture of those principles which have been followed
by the people of society as principle of justice and public utility. coustom are the those law
which were existed a long time back and they are now not easily traceable. as per the

9
1973 4 scc 225
10
1994 3 scc 1 AIR 1994 SC 1918
11
AIR 1963 SC 1241 , 1251
12
M.h.hoskot v. state of maharashtra 1978 3 SCC 544: AIR 1978 SC 1548
13
Unmi krishnan v. state of karnataka 1993 1 SCC 645
14
Bnadhua mukti morcha v. union of india 1984 3 SCC 161: AIR 1984 SC 802
15
AIR 1966 SC 1987 , 1993
16
2000 4 SCC640, 685
17
1950 AIR 27, 1950 SCR 88

4
 Sources Of Law

historical school , laws are not made by judges or the legislature, laws are already made and
followed from a long period of time , legislature and judges only enhance the already existed
law and then enact that law on the society.

In the constitution as per Article 1318 many customary laws were removed and become
unlawful . as the sati was one of the old custom which was followed in the state of Rajasthan
and nearby state but in the year 1987 it was recognise as against the article 13 and sati
prevention act introduced in India.

In the primitive society everyone is equal and equal work is divided between the individual as
per their skills and talent , in their society everyone is treated equally and there is no
discrimination between them and the same principle is followed in the constitution in the
article 14 , 15, 16 , 17 ,18 where everyone is equal and equal opportunity is given to every
individual.

every human being have some right which are natural right , these right are the basic need of
the individual and without which no one can survive , before the enactment of constitution
there were still the presence of some fundamental right which is given to all the people and
the same is describe in the Magna Carta. Magna Carta is the charter of right given to the
people and the same can be now seen in the constitution from article 12 to 35. These
fundamental or natural right were enjoyment by the people from a long period of time.

The language was one of the customary laws which is now given in the constitution as a
source of law . In the primitive society , for the proper communication and without any error
in the communication people uses same gesture and later on they started using language
which now becomes a law . The Article 343 of Indian constitution provides official language
of union shall be the Hindi in devanagari script. Hindi is one of the customary laws which is
used in India from time immemorial.

Before the enactment of constitution there were still some duty which is imposed on the
people by the society or by the ruler and if the person does not follow the duty some
punishment or sanction is given to them , as the same after the making of law , the duties
which is a customary law recognised and added in the constitution as the article 51A19 which
talks about the fundamental duty

18
Laws inconsistent with or in derogation of the fundamental rights
19
51A. Fundamental duties It shall be the duty of every citizen of India (a) to abide by the Constitution and
respect its ideals and institutions, the national Flag and the National Anthem;