In modern times, discussion of the role and importance of custom as a source of law and explanation of the conditions necessary for a valid custom.
Introduction – custom
custom is the oldest source of law. According to Roscoe Pound, custom is both the source and form of law. In primitive communities, when no law existed, conduct was regulated and controlled only by customs or traditional law.
At that time, it was not possible to create a law for every conduct or behavior of a human being, hence the propriety or inappropriateness of many actions was determined on the basis of tradition or custom.
This is the reason that with time, customs and traditions acquired the force of law and today there are many laws which have been created on the basis of customs and traditions.
Definition of custom
The meaning of custom is very simple, when any work is done continuously and regularly by a person, society, group or community for a long time, then he becomes habitual of doing that work and such work takes the form of custom or practice.
Such custom or tradition gets accepted in the society and the society always expects that work should be done in accordance with such custom or tradition.
Thus it can be said that, “custom is uniformity of human behavior in similar circumstances”.
In this regard, if any tradition is voluntarily followed by the people of a particular community, then with time the same behavior takes the form of a tradition and due to its continuous practice over a long period of time, that tradition eventually acquires the force of law.
Different definitions of custom have been given by jurists from time to time, such as –
According to Samond, “custom is the expression of such principles which have been accepted within the national consciousness as principles of justice and public utility.”
According to Austin, “Custom is a rule of conduct which the governed follow naturally and voluntarily; but not as a law prescribed by the political elite.”
According to Holland, “Routine is the system of conduct which is generally followed. Just as a footpath is formed in a grassy field, in the same way, custom is born by imitation of daily behaviour
According to Allen, “Custom is the legal and social scenario developed by the forces inherent in the society. These forces arise partly from reason and necessity and partly from suggestion and imitation.”
Carter, while giving a simple definition of custom, has said that “custom is the uniformity of actions of all persons in similar circumstances.”
According to Halsbury, “custom is a type of specific rule which has actually or potentially existed since time immemorial and which has received the force of law in a particular area, Even if such rule is contrary or inconsistent with the general law of the country.”
Herbert Spencer considers convention as a tradition that runs from generation to generation and says that “custom is the flow from generation to generation of the conventions that control human conduct.”
In the case of ‘Har Prasad vs. Shivdayal’, the Privy Council has said in relation to custom that, “Custom is that rule which gets the force of law by following it for a long time in a particular family or a particular area.”
Essential Elements of Custom
For recognition of customary law, some important conditions must be fulfilled. These conditions are also called essential elements of valid custom, these elements are as follows –
(i) antiquity
For a custom to be recognized as legal, it must have been in practice since ancient times. In other words, it can be said that continuity and immemorial antiquity is necessary.
What is meant by beyond memory is that the tradition is so ancient that human memory does not know anything contrary or adverse to it. What this means is that for a tradition, mere habitual use is not enough but it is necessary for it to be very ancient.
In India, for legal recognition, it is not necessary for a custom to be beyond memory like in England. Here mere use for a long time is sufficient.
Case – Mus. Subhani vs. Nawab (A.I.R. 1941 P.C. 21)
In this case it has been said that the tradition should be ancient but it is not necessary that it should be beyond memory. It is sufficient to prove that a practice has been in practice for such a long period of time and with such persistence that it can by general consent be considered established in a particular area.
(ii) continuity
The second requirement of a valid custom is its continuity, that is, the custom is expected to be in continuous use because disruption invalidates the cus-tom.
Blackstone says that if any right is disrupted even for a day then that tradition ends. But in the case of ‘Hammerton vs. Honey’ it has been said that an accidental interruption in the use of a convention does not end that convention. [(1873) 24 W. R. 603]
(iii) certainty
Along with continuity of tradition, it is also necessary for it to be certain. If a tradition is not fixed then it cannot be called beyond memory.
In the case of ‘Wilson v. Wills’ [(1806) 7 East 121] it has been said that “however old a cus-tom may be, it should not be unlimited and indefinite.”
Case – Guruswami Raja vs. Pirumal (A.I.R. 1929 Madras 815)
This is a good case on the subject of customary law in which a customary easement was sought regarding the shadow cast by a nearby tree on the fields. The court termed the tradition related to shadow as uncertain, doubtful and changeable and refused to accept it as a tradition.
(iv) reasonableness
It is necessary to be valid, conventional or reasonable. If a custom or practice is in accordance with common logic then it will be called reasonable. Reasonableness means that the tradition should be such that a rational and intelligent person can embrace it and he can accept it.
Apart from this, the convention should be fair and reasonable so that rational, honest and impartial minded people can accept it. Reasonableness is determined according to time and circumstances. Some matters are important in this regard –
(a) The custom of depriving daughters of inheritance in the Hindu community is not considered unreasonable.
(b) The cus-tom relating to the right of a particular caste to use the temple and worship in it has not been considered unreasonable.
(c) The tradition of cow sacrifice is not considered rational in the Muslim community.
(v) Conformity
It is necessary for the custom to be consistent with the enacted law. If any custom is contrary to written or enacted law then it will not be considered valid. No convention can diminish or nullify the law made by the Parliament or the Legislature.
There are many such cus-toms in India which have been made invalid and prohibited by law, such as –
(a) Sati practice
(b) child marriage
(c) Dowry system
(d) female feticide
(e) Slavery
(f) Devdasi system, etc.
Case – Suryanarayan Chaudhary vs. State vs. Rajasthan (A.I.R. 1989 Rajasthan 99) –
In this case, the practice of purification of Harijans with Ganga water before entering the temple of Shrinathji in Nathdwara was declared illegal considering it against human rights.
(vi) Use peacefully and as a matter of right –
For any custom to be legally recognized, two things are necessary in it, firstly it is being enjoyed peacefully and secondly it is being enjoyed as a right.
The exercise of rights based on tradition is expected to be clear, unconditional and undisputed. The use of tradition should not be based on any permission or license.
According to Allen, a tradition which is snatched away from the public by powerful hands cannot be valid.
According to Samond, “The convention should be such that those who use the convention should have the feeling that the convention is binding on them, not optional.
In other words, it can be said that for a valid custom it is necessary that it should be followed by all persons and whether or not to believe it does not depend on the individual’s will.
(vii) binding force
Obligatory force in a tradition is its important element, that is, following the tradition should be binding on everyone and not as an alternative. In this context, two things are necessary for a valid custom –
(a) such cus-tom should be followed by all persons; And
(b) Believing it or not should not depend on the person’s will.
(viii) Not being against public policy and immoral
It is also necessary that a valid cus-tom should not be against public policy or unethical, that is, the tradition or custom is expected to have equality, justice and pure conscience and be compatible with public policy.
The tradition should not be immoral either. Whether a practice is unethical or not will be determined based on the sentiments of the community.
In the case of Rex vs. Carson, a practice under which any married woman could leave her husband and remarry any man without his consent was considered void or ineffective due to being immoral.
Thus, it is necessary for a legally valid convention to be ancient, continuous, definite, reasonable, immutable and compatible with public policy.
Importance of custom as a source of law
Cus-tom has an important place as a source of law. In ancient times, when the law was not written down, tradition was the source of law. In England it was called ‘Common law’ or ‘Customary law’.
It is a different matter that the traditional law was also unwritten, yet it was well established in the society as a determinant of appropriate conduct. Even in the administration of justice, traditional rules were given legal recognition.
The importance of tradition is also reflected in the religious scriptures of India. According to Narada, ‘Vivayayon hi balvan dharmastenvahiyate’ i.e. conventions are powerful and can destroy even the sacred law.
In the case of Collector of Madura vs. Motu Ramalingam (13 M.I.A. 397), the Privy Council has given precedence to written law.
According to Salmond, tradition has the same importance for the society as law has for the state. On the other hand, Coke has said that custom is one of the triangle of laws of England and St. Germain in his work ‘Doctor and Student’ has called Common Law a law based on cus-tom.
The following are the reasons or basis for the importance of custom as a source of law –
(i) There is a place in tradition for those principles or rules which are just, public useful and compatible with national consciousness. These rules are also followed by the courts in their decisions because those rules become authorized and established due to being in practice for a long time.
(ii) Stereotypes get the support of public opinion, hence the conventions prevalent in the society are accepted as law in the administration of justice.
(iii) Stereotypes are applicable at all times. Salmond has even said that conventions should be acceptable even if they are not justified and reasonable.
(iv) Conventions provide content for law making, conventions play an important role in the creation of new laws.
(v) Stereotypes can provide safe guidelines for the future, because due to long-term observance they become well established in the society.
Case – Gaurishankar Prasad Singh vs. Vaidnath Prasad Singh (A.I.R. 2007 Patna 78) –
In this case, it has been said by the Patna High Court that, where the existence of a custom in a family has been pleaded, there is no need to prove such cus-tom, if it has not been opposed or refuted in the pleadings. .
Thus the importance of conventions as a source of law cannot be ignored.
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