SOURCES OF INDIAN LAWS

Meta Description-The term source of law means the origin form which rules of human conduct came into existence and derived legal force or binding character.

SOURCES OF INDIAN LAWS

“Society cannot exist without law. Law is the bond of society: that which makes it, that which preserves it and keeps it together. It is, in fact, the essence of civil society.”- Joseph P. Bradley

The expression “law” has various definitions; in layman’s language, law means the system of rules which a particular country recognises as regulating the actions of its individuals and which it may enforce by the imposition of penalties. Salmond defines law as “Law is the body of principles recognized and applied by the state in the administration of justice”. 

It is necessary to understand the various sources of law and on which of the sources one can rely upon for justice. It is very essential to recognize that the law of every land is derived from the sources so one has to know what are the sources of law in India before getting into any concept of law.

According to some jurists, source of law is the society itself while for others will of the sovereign is considered to be exclusive source of law. The eminent jurist Austin puts sole reliance on one point viz., sovereign is the only source of law. According to him the legislation is most appropriate because it is most direct expression of sovereign’s will. Legal sources of law are those sources which are recognised by the law as such by the law itself for example, the statute laws, customs, precedent etc.

Various sources of Indian Laws are :-

Customs

Legislation

Precedent

Personal Law

Foreign Decisions

CUSTOMS

Customs, or the “customary laws” are the usages and practices that date back to  ancient times. Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned. It is one of the the oldest forms of law making. In primitive societies, human conduct was regulated by practices that grew up spontaneously and were later adopted by the people.

According to the Savigny custom, itself is an authoritative source of law. According to them the present cannot be understood without reference of past.

In India, though legislation is an important source of law, customs still hold a very important place and, their importance has been recognised by law as valuable in administration of law and justice.

Essentials of valid customs are-

·         Customs must be ancient.

·         It must be reasonable.

·         It must not be contrary to justice and equity.

·         It must be continuous.

 The various examples of customary laws in India are:

·         The Hindu Marriage Act and the Hindu Succession Act have left the door open for the recognition of tribal customary laws and practices of Scheduled Tribes under Section 2(2).

·         Under Indian Evidence Act, Section 13 deals with the facts relevant for the proof of customary law

 PRECEDNT

Judicial precedent is an independent source of law. It is an essential feature of English law also known as Common Law Countries. “Precedent” means a previous instance or case which is or may be taken as an example or rule for subsequent cases. According to Keeton, a judicial precedent is a decision to which authority has, in some measure been attached. They are also known as judicial pronouncements. When the judicial pronouncements are been taken as reference it should be Indian; if they are foreign, it should be ensured that such a foreign country follows the same system of law as ours.

Precedents are based on the Latin maxim- ‘stare decisis’, which means adhering to and relying on previous decisions and pronouncements made by the court of law. For example, if High Court gives a decision on any particular case and a case of similar subject matter comes to the lower court then the lower court will treat the case alike and pass the judgement same as done by the High Court. This is because the high court has set a precedent for the lower court and the lower courts are bound to follow it. (Article 225 of the Indian Constitution). Similarly, according to Article 141 of the Indian Constitution – the Law declared by the Supreme Court of India shall be binding on all courts within the territory of India.

Examples of precedents in India are-

·      D.K. Basu vs State of West Bengal AIR 1997 SC 610, is a case related to the increase in number of custodial deaths in India. Supreme Court gave detailed guidelines on the procedure of arrest. Hence Section 41 of the Criminal Code of Procedure,1973 was amended.

Legislation

In the modern times, legislation is considered to be the most essential source of law in India. The expression legislation is derived from the Latin word ‘legis’ meaning law and ‘latum’ which means to make or set. In fact, legislation is comparatively of recent growth. Most of the early statutes are no more than the formal promulgation of the well-established customs. As per Salmond- legislation is the source of law which consists in declaration of rules by a component authority.

In India, the Parliament which consists of Lok Sabha and Rajya Sabha are responsible for making laws.

Personal Laws

Personal laws are the laws based on the religion of an Individual. The various subject matters governed by the personal laws are- principles relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession, etc. In India, the two major Personal laws are Hindu Law and Muslim Law.

Sources of Hindu Law and Muslim Law are-

Examples of Hindu laws in India are-

·      The Hindu Marriage Act, 1955

·      The Hindu succession act, 1956

·      The Hindu Minority and Guardianship Act, 1956

·      The Hindu Adoption and Maintenance Act, 1956

Examples of Muslim laws in India are-

·      The Muslim Women (Protection of Rights on Divorce) Act,1986

·      The Kazis Act,1880

·      The Dissolution of Muslim Marriages Act, 1939

Foreign Decisions

For the purpose of construction of Indian statutes, the decisions of foreign courts which are following the legal system are taken into accordance. These foreign decisions have persuasive value only and are not binding on the Indian courts.

International conventions are generally not resorted to for the purpose of interpretation, but only helps in serving as the basis of any law.

Conclusion

The chief source of law is the legislation, though there are other sources of law such as precedents, customs etc. Every source of law finds its expression in a language. All the above-mentioned sources of law have played a very important role in building law and answer the question as to what are the sources of law or different sources of law. All these sources of law play a very important role in different changes and decisions made for justice.  

Frequently Asked Questions

Q1. What is the oldest form of source of law?

Ans. Customs are the oldest source of law. Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned.

Q2. What are the 3 types of laws ?

Ans. The 3 types of laws are- Civil Law, Criminal law and Administrative Law.

Q3. How many are the formal sources of Muslim law ?

Ans. There are 4 formal sources of Muslim law namely- Quran, Hadiths, Ijma and Qiyas

References

·      https://en.wikipedia.org/wiki/Sources_of_law

·      https://taxguru.in/chartered-accountant/sources-law.html

·      M.N. Tripathi- Jurisprudence