SOURCES OF LAW

Module II

11/03/2023

LM 2023

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 Sources of
Law

Material Formal

Legal

Historical

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 Formal
Sources of • From which a rule of Law derives its
force and validity
Law • It is the will of the state
• It is that source from which the
authority of the law proceeds

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LM 2023
 Material sources of Law
From which is derived the matter of the
law
1. Legal : Instruments or organs of the State by
which legal rules are created. Eg. Legislation
2. Historical : Which provides for such rules
that subsequently turn into legal principles. Eg.
religious text.

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 Legal Sources

Legislation

Precedent

Custom

Treaty-convention

Professional opinions

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 Custom : Meaning

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.”

According to Carter “ It is the uniformity of conduct

of all persons under like circumstances.

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 Custom : Meaning

According to Halsbury, a custom is

a particular rule which has existed
either actually or presumptively
from time immemorial and has
obtained force of law in a
particular locality.

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 Origin
When a same thing is
done again and again in
Custom is the oldest
a particular way, it
form of law-making
assumed the form of
custom.

Custom originated in the

Imitation must also have
conscious choice of the
played an important role
people of the more
in the growth of
convenient of the two
customs.
acts.
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 Community/ Divergent
conflicts
Group desires

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 Rule having sanction of custom
raises a presumption that it
deserves sanction of law as well.

Rational expectation of its

Binding continuance.

Force of Custom rests on the popular

Custom conviction that it is in the interest
of the society.

Custom provides material out of

which the law can be fashioned

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 Transformation of custom into law

Historical Theory Analytical Theory

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• According to the historical theory , the growth of law dose
not depend upon the arbitrary will of any individual. It dose
not depend upon any accident. It grows as a result of the
intelligence of the people. Custom is derived form the
common consciousness of the people.
Criticism: According to Paton:
The growth of most of the customs is not the result of any
conscious thought but of tentative practice.
According to Allen:
“All customs cannot be attributed to the common
consciousness of the people. In many cases, customs have
arisen on account of the convenience of the ruling class.”
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• (ii) Analytical theory:
Austin , Holland, and Gray are the advocates of analytical theory.
According to Austin:
Customs is a source of law and not law itself. Customs are not positive
laws until their existence is recognized by the decisions of the Courts.
According to Holland:
Customs are not laws when they arise, but they are largely adopted into
laws by state recognition.

Criticism: By Allen:
Custom grows by conduct and it is therefore a mistake to measure its
validity solely by the elements of express sanction, accorded by Courts
of law or by other determinate authority.

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 Kinds of Customs

Legal

Customs

Conventional

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 • The legal authority
is absolute.
Legal • The parties are
Custom bound by the legal
custom

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 • A conventional custom
is one whose authority
is conditional on its
Conventional acceptance and
Custom incorporation in the
agreement between the
parties to be bound by it

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 Conventional Custom

The customs which are binding not due to any

legal authority independently possessed by
them, but because it has been expressly or
impliedly incorporated in a contract between the
parties, are called conventional custom. The
conventional custom is not operative per se; the
terms of the custom should be accepted and
incorporated by the parties into an agreement

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 Local
Legal
Custom
General

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 Requisites of a valid custom

Immemorial Antiquity

Reasonableness

Continuously observed

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 Requisites of a valid custom

Peaceable enjoyment

Certain and definite

Compulsory observance

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 Requisites of a valid custom

It must be general or universal

Must confirm the principles of

morality and public policy

Conformity with Statute law

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 Reasons For Custom Is Given The Force
Law:
(i) Principles of national conscience:
Custom is the embodiment of those principles which have
commended themselves to the national conscience as
principles of truth, justice and public policy.
According to Salmond: “Custom is to society what laws is to
the state. Each is the expression and realization of the
measure of man , s insight and ability, of the principles of
right and justice.”
(ii) Expectation of continuance:
Another reason for the binding force of custom is the
expectation of its continuance is the future. Justice demands
that this expectation should be fulfilled and not frustrated.
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(i) Observance by a large number of people: Sometimes a
custom is observed by a large number of persons in society
and in course of time the same come to have the force of
law. Example:
In every bill of exchange there is custom of giving three
days of grace
(ii) Interests of Society: Custom rests on the popular conviction
that it is in the interests of society. This conviction is so
strong that it dose not found desirable to go against it
(iii) Useful to the law giver: According to Paton:
Custom is useful to the law-giver and codifier is two ways. It
provides that material out of which the law can be
fashioned. There is a tendency to adopt the maxim
whatever has been authority in the past is a safe guide for
the future.
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 • Case Note: Constitution - Hindu temple -
Appointment of non-brahmin as the priest -
N . Adithayan v. Third respondent having essential
qualifications and training appointed as priest
The Travancore in Siva temple under administration of the
Travancore Devaswom Board - Writ filed by a
Devaswom worshipper on the ground that only a person
Board and Ors . belonging to the Namboodri brahmin caste
could be appointed as priest - Temple in
AIR 2002 SC question being one not belonging to any
denominational category with any specialized
3538 form of worship peculiar to such
denomination and there being no proper plea
or sufficient proof of any specific custom or
usage specially created by the founder of the
temple or those who have the exclusive right
to administer the affairs -

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 • It was unnecessary to pronounce upon
the invalidity of any such practice being
N . Adithayan vs. violative of Articles 14, 17, and 21 of
Constitution - Articles 25 and 26 cannot
The Travancore be pressed into service to challenge the
Devaswom appointment of a person who is duly
qualified to be a priest merely on the
Board and Ors . ground that he is not a brahmin by birth -
AIR 2002 SC Any custom or usage irrespective of even
any proof of their existence in pre-
3538 constitutional days cannot be
countenanced as a source of law to claim
any rights when it is found to violate
human rights dignity, social equality and
the specific mandate of the constitution
and law made by the parliament.
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 ATLURI • The Apex Court allowed
BRAHMANANDAM custom to prevail over law by
v. ANNE SAI BAPUJI permitting adoption of a child
AIR 2011 SC 545 of age greater than fifteen
years because of a customs
prevailing in the community
to such effect.

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 Section 10
10. No person shall be capable of being taken in adoption
unless the following conditions are fulfilled, namely:
(i) ...
(ii) ...
(iii)...
(iv) he or she has not completed the age of fifteen years,
unless there is a custom or usage applicable to the parties
which permits persons who have completed the age of
fifteen years being taken in adoption.

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 In the case of • This Court has held that the ordinary
rule is that all customs general or
Ujagar Singh v. otherwise have to be proved, but
Mst. Jeo, AIR under Section 57 of the Evidence Act,
1872 nothing need to be proved of
1959 SC 1041 which the Court can take judicial
notice.
• It was also held that when a custom
has been repeatedly recognized by
Courts, it is blended into the law of
land and proof of the same would
become unnecessary under Section
57 of Evidence Act, 1872.
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• The aforesaid decision is squarely applicable
to the facts and circumstances of the present
case. The Andhra Pradesh High Court has
recognized such a custom among the
"Kamma" community of Andhra Pradesh of
taking in adoption of a person even above the
age of 15 years of age and has held the same
to be legal and valid.

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 • The Sabarimala case brings forth two issues
which form the core of the debate.
Indian Young • The constitutional morality has to be held
supreme at any cost. In light of this, ban on entry
Lawyers of women, not only corrodes the foundational
principles of the constitution, but also act as a
Association vs barrier to the gradual liberation of women.

The State Of • On the other hand, Indian society is a fabric

comprising hundreds of cultural and religious
Kerala practices that have been passed through
generations. The question then arises that
whether these ancient practices be sacrificed for
achieving constitutional morality or exemptions
for cases like these have to be identified.

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• In a 4-1 majority, the court struck down provisions
of the Kerala Hindu Places of Public Worship
(Authorization of Entry) Rules, 1965.
• The Rules banned women between the age of 10
and 50 from entering the Sabarimala temple, a
practice in place for centuries.
• The judgment came over a clutch of petitions
challenging the ban, which was upheld by the
Kerala High Court.
•
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 Rationale
Religious Rights - The Constitution protects
religious freedom in two ways:

• protects an individual’s right to profess,

practise and propagate a religion
• assures protection to every religious
denomination to manage its own affairs

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The Sabarimala temple case represented a conflict between –

• the group rights of the temple authorities in enforcing the

presiding deity’s strict celibate status
• the individual rights of women in 10-50 age group to offer
worship there
• The Travancore Devaswom Board (TDB) had argued that they
form a denomination and hence be allowed to make rules.
• The court instead ruled that Ayyappa devotees do not
constitute a separate religious denomination.
• It held that prohibition on women is not an essential part of
Hindu religion, and hence the court can intervene.
• The judgement establishes the principle that individual freedom
prevails over professed group rights, even in matters of religion.

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 Dissenting Judge's remark?

Justice Malhotra was the lone woman on the bench who had
a dissenting view.
• She noted that what constitutes essential religious practice
is for the religious community to decide and not the court.
• Notions of rationality cannot be brought into matters of
religions.
• Balance needs to be struck between religious beliefs on
one hand and Constitutional principles of non-
discrimination and equality on the other.
• She also stated that the present judgment would not be
limited to Sabarimala but will have wide ramifications.
• So issues of deep religious sentiments should not be
ordinarily interfered into by the Court.
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 Social notions -
• The judgment relooks at the stigmatization of women
devotees based on a medieval view of menstruation as
symbolizing impurity and pollution.
• So much so, exclusion based on the notion of impurity is
a form of untouchability.
• Also, the argument that women of menstruating age
could not observe the 41-day period of abstinence failed
to make sense.
• The court noted that any rule based on segregation of
women pertaining to biological characteristics is
unconstitutional.
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