CUSTOM AS SOURCE OF LAW

 SOURCE - the binding rules that enables any state to

govern its territory. The term “source of law” may
sometimes refers to the sovereign power from which
law derives its validity.

 Custom - those long established practices or unwritten

rules which have acquired binding or obligatory
character. Customs can be described as a cultural idea
that defines a regular pattern of behaviour, which is
considered a characteristic of life in a social system. 

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 Essentials of a Custom

1. Antiquity: A custom must be ancient or immemorial so that it may be considered as

a valid binding custom.

2. Continuance: For a custom to be considered valid, it must have been observed since
ancient times without any interruptions and must be considered by the people
following it as a binding rule of law.

3. Peaceful Enjoyment: When everyone follows and enjoys the custom in a peaceful
manner, only then will it be considered valid.

4. Obligatory Force: There shall be an enforceability of law behind a valid custom.

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5. Certainty: The custom has to clearly defined, it cannot be vague and
confusing.

6. Consistency: There should be consistency between customs. Two customs

that have opposing viewpoints cannot be considered valid.

7. Reasonableness: A custom must be within bounds of reason for it to be

considered legally binding. Therefore, custom would be considered
unreasonable if it opposes principles of justice, equality and good
conscience.

8. Conformity with Statute: A custom must not go against public policy and law
of the land. If the law makes it forbidden, it will not be considered a valid
custom.

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 CUSTOM
With sanction Without Sanction

Convention
Legal
al

General Local

Personal local
customs
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 Classification of Customs
I Customs without sanctions

 Which are not obligatory and are followed due to the

pressure of the society.

 It is referred to as ‘positive morality’

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 II CUSTOMS HAVING SANCTIONS
(1) LEGAL CUSTOMS
Legal Customs act as strict rules that are meant to be followed by everyone and
action is taken against anyone who breaks them. They are recognized by the
courts and are part of the law. 

(a) General Customs: A general custom is a custom that is not specific to a

single locality, but rather it is followed by the whole nation or country. 

(b) Local Customs: It is specific to that place alone. However, when certain
communities migrate, they take their customs with them. (geographical local
customs and personal local customs).

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(2) CONVENTIONAL CUSTOMS
A conventional custom is an established ‘usage’ which is considered legally binding
because it has been incorporated in an expressly stated or implied contract. 
Certain conditions to be fulfilled in a Conventional Custom:
1. It must be shown that the convention is clearly established and also that the
contracting parties are fully aware of it. There is no fixed period before which a
convention must be observed before it is recognized as binding.

2. The convention cannot alter the general law of the land.

3. It must be reasonable.

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When Does A Custom Become Law
Analytical School:

 Austin: Customs & Laws not ‘Law’ unless declared by the sovereign.
 Gray: Customs not law until approved by Judges.

Criticism:
 The society regulates the custom and its conduct in accordance with their

convenience.
 People’s own recognition gives sanctity of law.

 Courts also draw a rough pattern from the customs itself.

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Historical School:
Savigny & Puchta:
Declaration or recognition by the State is not necessary. A custom carries its
justification in itself.

Criticism:
 Customs have not always arisen out of the convenience or the need of the

people.
 State has the power to abrogate custom.

 Judges/Legislators has an important role in making laws.

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 Practices in Custom
(1) Good Customs:
 Annaprasana in Bengalis, Namaste, Cow/ rivers as mother, eating
with hands, Surya Namaskar etc.
(2) Bad Customs:
 Devdasi System in Andhra Pradesh
 Female Genital Mutilation in Bohra Community( a Shia sub-sect)
 Widows in Vrindavan
 Triple Talaq
 Ban in Temple for Menstruating Women
 Dowry system
 Honour killing (Khap panchayats)
 Daughter’s share in ancestral property

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 Judgments

 Jallikattu Judgment (Tamil Nadu) 2014.

 Santhara ritual of Jains 2015

 Haji Ali Dargah (Mumbai) 2016.

 Triple talaq 2017.

 Sabrimala Temple (Pathanamthitta, Kerala) 2018.

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 CUSTOMS CONVERTED INTO LAWS

(1) The Panchayats (Extension to Scheduled Areas) Act, 1996:

for ensuring self governance through traditional Gram
Sabhas for people living in the Scheduled Areas of India.

(2) The Scheduled Tribes and Other Traditional Forest Dwellers

(Recognition of Forest Rights) Act, 2006: Provides for the
recognition, vesting and securing of individual and
community tenure rights to all forest dwelling Scheduled
Tribes and Traditional Forest Dwellers on all forest lands.

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