CBSE Textbook: Sources of Laws | Legal Studies for Class 11 - Humanities/Arts PDF Download

 Page 1


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
 
Sources of Laws
Contents
I. Where does law come from?
II. Custom as a Source of Law
III. Importance of Custom as a Source of Law in India
IV . Judicial Precedent as a Source of Law
V . Legislation as a Source of Law
VI. Exercises 
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Discuss the three main sources of law- Customs, Legislation and Judicial Precedent
• Explain the essential tests laid down by jurists/ courts for customs to be recognized as sources of 
law
• Evaluate the importance of custom as an important source of law in India
• Differentiate between the two parts of judicial decisions- Ratio decidendi and Obiter dicta
• Critically evaluate the importance of different sources of law
• Enumerate and explain different kinds of legislation 
I. Where does law come from?
To have a clear and complete understanding of law, it is essential to understand the sources of law. 
Sources of law mean the sources from where law or the binding rules of human conduct originate. 
In other words, law is derived from sources. Jurists have different views on the origin and sources of 
law, as they have regarding the definition of law. As the term ‘law’ has several meanings, legal experts 
approach the sources of law from various angles. 
For instance, Austin considers Sovereign as the source of law while Savigny and Henry Maine consider 
custom as the most important source of law. Natural law school considers nature and human reason 
as the source of law, while theologians consider the religious scriptures as sources of law. Although 
there are various claims and counter claims regarding the sources of law, it is true that in almost all 
societies, law has been derived from similar sources.
The three major sources of law that can be identified in any modern society are as follows:
i. Custom
CHAPTER
3
Page 2


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
 
Sources of Laws
Contents
I. Where does law come from?
II. Custom as a Source of Law
III. Importance of Custom as a Source of Law in India
IV . Judicial Precedent as a Source of Law
V . Legislation as a Source of Law
VI. Exercises 
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Discuss the three main sources of law- Customs, Legislation and Judicial Precedent
• Explain the essential tests laid down by jurists/ courts for customs to be recognized as sources of 
law
• Evaluate the importance of custom as an important source of law in India
• Differentiate between the two parts of judicial decisions- Ratio decidendi and Obiter dicta
• Critically evaluate the importance of different sources of law
• Enumerate and explain different kinds of legislation 
I. Where does law come from?
To have a clear and complete understanding of law, it is essential to understand the sources of law. 
Sources of law mean the sources from where law or the binding rules of human conduct originate. 
In other words, law is derived from sources. Jurists have different views on the origin and sources of 
law, as they have regarding the definition of law. As the term ‘law’ has several meanings, legal experts 
approach the sources of law from various angles. 
For instance, Austin considers Sovereign as the source of law while Savigny and Henry Maine consider 
custom as the most important source of law. Natural law school considers nature and human reason 
as the source of law, while theologians consider the religious scriptures as sources of law. Although 
there are various claims and counter claims regarding the sources of law, it is true that in almost all 
societies, law has been derived from similar sources.
The three major sources of law that can be identified in any modern society are as follows:
i. Custom
CHAPTER
3
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
ii. Judicial precedent
iii. Legislation
II. Custom as a Source of Law
A custom, to be valid, must be observed continuously for a very long time without any interruption. 
Further, a practice must be supported not only for a very long time, but it must also be supported by 
the opinion of the general public and morality. However, every custom need not become law. For 
example, the Hindu Marriages Act, 1955 prohibits marriages which are within the prohibited degrees 
of relationship. However, the Act still permits marriages within the prohibited degree of relationship if 
there is a proven custom within a certain community. 
Custom can simply be explained as those long established practices or unwritten rules which have 
acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; in fact it was 
considered as the real source of law. With the passage of time and the advent of modern civilization, 
the importance of custom as a source of law diminished and other sources such as judicial precedents 
and legislation gained importance.
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two 
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as 
law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as 
the main source of law. According to him the real source of law is the will of the people and not the 
will of the sovereign. The will of the people has always been reflected in the custom and traditions of 
the society. Custom is hence a main source of law.
Saptapadi is an example of customs as a source of law. It is the most important rite of a Hindu 
marriage ceremony. The word, Saptapadi means ‘Seven steps’. After tying the Mangalsutra,the 
newly-wed couple take seven steps around the holy fire, which is called Saptapadi. The customary 
practice of Saptapadi has been incorporated in Section 7 of the Hindu Marriage Act, 1955. 
Kinds of Customs
Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are 
followed because of public opinion.
ii. Customs with sanction: These customs are binding in nature and are enforced by the State. 
These customs may further be divided into the following categories:
 a)  Legal Custom : Legal custom is a custom whose authority is absolute; it possesses the 
force of law. It is recognized and enforced by the courts. Legal custom may be further 
classified into the following two types:
   General Customs : These types of customs prevail throughout the territory of the State.
   Local Customs : Local customs are applicable to a part of the State, or a particular region 
of the country.
 b)  Conventional Customs : Conventional customs are binding on the parties to an 
Page 3


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
 
Sources of Laws
Contents
I. Where does law come from?
II. Custom as a Source of Law
III. Importance of Custom as a Source of Law in India
IV . Judicial Precedent as a Source of Law
V . Legislation as a Source of Law
VI. Exercises 
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Discuss the three main sources of law- Customs, Legislation and Judicial Precedent
• Explain the essential tests laid down by jurists/ courts for customs to be recognized as sources of 
law
• Evaluate the importance of custom as an important source of law in India
• Differentiate between the two parts of judicial decisions- Ratio decidendi and Obiter dicta
• Critically evaluate the importance of different sources of law
• Enumerate and explain different kinds of legislation 
I. Where does law come from?
To have a clear and complete understanding of law, it is essential to understand the sources of law. 
Sources of law mean the sources from where law or the binding rules of human conduct originate. 
In other words, law is derived from sources. Jurists have different views on the origin and sources of 
law, as they have regarding the definition of law. As the term ‘law’ has several meanings, legal experts 
approach the sources of law from various angles. 
For instance, Austin considers Sovereign as the source of law while Savigny and Henry Maine consider 
custom as the most important source of law. Natural law school considers nature and human reason 
as the source of law, while theologians consider the religious scriptures as sources of law. Although 
there are various claims and counter claims regarding the sources of law, it is true that in almost all 
societies, law has been derived from similar sources.
The three major sources of law that can be identified in any modern society are as follows:
i. Custom
CHAPTER
3
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
ii. Judicial precedent
iii. Legislation
II. Custom as a Source of Law
A custom, to be valid, must be observed continuously for a very long time without any interruption. 
Further, a practice must be supported not only for a very long time, but it must also be supported by 
the opinion of the general public and morality. However, every custom need not become law. For 
example, the Hindu Marriages Act, 1955 prohibits marriages which are within the prohibited degrees 
of relationship. However, the Act still permits marriages within the prohibited degree of relationship if 
there is a proven custom within a certain community. 
Custom can simply be explained as those long established practices or unwritten rules which have 
acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; in fact it was 
considered as the real source of law. With the passage of time and the advent of modern civilization, 
the importance of custom as a source of law diminished and other sources such as judicial precedents 
and legislation gained importance.
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two 
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as 
law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as 
the main source of law. According to him the real source of law is the will of the people and not the 
will of the sovereign. The will of the people has always been reflected in the custom and traditions of 
the society. Custom is hence a main source of law.
Saptapadi is an example of customs as a source of law. It is the most important rite of a Hindu 
marriage ceremony. The word, Saptapadi means ‘Seven steps’. After tying the Mangalsutra,the 
newly-wed couple take seven steps around the holy fire, which is called Saptapadi. The customary 
practice of Saptapadi has been incorporated in Section 7 of the Hindu Marriage Act, 1955. 
Kinds of Customs
Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are 
followed because of public opinion.
ii. Customs with sanction: These customs are binding in nature and are enforced by the State. 
These customs may further be divided into the following categories:
 a)  Legal Custom : Legal custom is a custom whose authority is absolute; it possesses the 
force of law. It is recognized and enforced by the courts. Legal custom may be further 
classified into the following two types:
   General Customs : These types of customs prevail throughout the territory of the State.
   Local Customs : Local customs are applicable to a part of the State, or a particular region 
of the country.
 b)  Conventional Customs : Conventional customs are binding on the parties to an 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
85
agreement. When two or more persons enter into an agreement related to a trade, it is 
presumed in law that they make the contract in accordance with established convention or 
usage of that trade. For instance, an agreement between a landlord and tenant regarding the 
payment of rent will be governed by convention prevailing in this regard.
Essentials of a valid custom
All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by 
the courts. The jurists and courts have laid down some essential tests for customs to be recognized as 
valid sources of law. These tests are summarized as follows:
Antiquity : In order to be legally valid, customs should have been in existence for a longtime, even 
beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has 
been fixed for the determination of validity of customs. However, in India there is no such time 
limit for deciding the antiquity of the customs. The only condition is that those should have been in 
practice since time immemorial.
Continuous : A custom to be valid should have been in continuous practice. It must have been 
enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise 
doubts about the validity of the same.
Exercised as a matter of right : Custom must be enjoyed openly and with the knowledge of the 
community. It should not have been practised secretly. A custom must be proved to be a matter of 
right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness : A custom must conform to the norms of justice and public utility. A custom, to 
be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience 
and mischief than convenience, such a custom will not be valid.
Morality : A custom which is immoral or opposed to public policy cannot be a valid custom. Courts 
have declared many customs as invalid as they were practised for immoral purpose or were opposed 
to public policy. Bombay High Court in the case of Mathura Naikon v. EsuNaekin, ((1880) ILR 4 Bom 
545) held that, the custom of adopting a girl for immoral purposes is illegal.
Status of Custom with regard to Legislation : In any modern State, when a new legislation 
is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not 
be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the 
legislative bodies in India. For instance, the customary practice of child marriage has been declared 
as an offence. Similarly, adoption laws have been changed by legislation in India.
III. Importance of custom as a Source of Law in India
Custom was the most important source of law in ancient India. Even the British initially adopted the 
policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in particular, 
the Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim (AIR 1922 PC59) observed 
and underlined the importance of custom in moulding the law. At the same time, it is important to 
note that customs were not uniform or universal throughout the country. Some regions of the country 
had their own customs and usages.
These variances in customs were also considered a hindrance in the integration of various communities 
of the country. During our freedom struggle, there were parallel movements for social reform in 
the country. Social reformers raised many issues related to women and children such as widow 
re-marriage and child marriage. After independence and with the enactment of the Constitution, 
the Indian Parliament took many steps and abrogated many old customary practices with some 
progressive legislation. Hindu personal laws were codified and the Hindu Marriage Act, 1955 and the 
Page 4


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
 
Sources of Laws
Contents
I. Where does law come from?
II. Custom as a Source of Law
III. Importance of Custom as a Source of Law in India
IV . Judicial Precedent as a Source of Law
V . Legislation as a Source of Law
VI. Exercises 
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Discuss the three main sources of law- Customs, Legislation and Judicial Precedent
• Explain the essential tests laid down by jurists/ courts for customs to be recognized as sources of 
law
• Evaluate the importance of custom as an important source of law in India
• Differentiate between the two parts of judicial decisions- Ratio decidendi and Obiter dicta
• Critically evaluate the importance of different sources of law
• Enumerate and explain different kinds of legislation 
I. Where does law come from?
To have a clear and complete understanding of law, it is essential to understand the sources of law. 
Sources of law mean the sources from where law or the binding rules of human conduct originate. 
In other words, law is derived from sources. Jurists have different views on the origin and sources of 
law, as they have regarding the definition of law. As the term ‘law’ has several meanings, legal experts 
approach the sources of law from various angles. 
For instance, Austin considers Sovereign as the source of law while Savigny and Henry Maine consider 
custom as the most important source of law. Natural law school considers nature and human reason 
as the source of law, while theologians consider the religious scriptures as sources of law. Although 
there are various claims and counter claims regarding the sources of law, it is true that in almost all 
societies, law has been derived from similar sources.
The three major sources of law that can be identified in any modern society are as follows:
i. Custom
CHAPTER
3
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
ii. Judicial precedent
iii. Legislation
II. Custom as a Source of Law
A custom, to be valid, must be observed continuously for a very long time without any interruption. 
Further, a practice must be supported not only for a very long time, but it must also be supported by 
the opinion of the general public and morality. However, every custom need not become law. For 
example, the Hindu Marriages Act, 1955 prohibits marriages which are within the prohibited degrees 
of relationship. However, the Act still permits marriages within the prohibited degree of relationship if 
there is a proven custom within a certain community. 
Custom can simply be explained as those long established practices or unwritten rules which have 
acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; in fact it was 
considered as the real source of law. With the passage of time and the advent of modern civilization, 
the importance of custom as a source of law diminished and other sources such as judicial precedents 
and legislation gained importance.
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two 
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as 
law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as 
the main source of law. According to him the real source of law is the will of the people and not the 
will of the sovereign. The will of the people has always been reflected in the custom and traditions of 
the society. Custom is hence a main source of law.
Saptapadi is an example of customs as a source of law. It is the most important rite of a Hindu 
marriage ceremony. The word, Saptapadi means ‘Seven steps’. After tying the Mangalsutra,the 
newly-wed couple take seven steps around the holy fire, which is called Saptapadi. The customary 
practice of Saptapadi has been incorporated in Section 7 of the Hindu Marriage Act, 1955. 
Kinds of Customs
Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are 
followed because of public opinion.
ii. Customs with sanction: These customs are binding in nature and are enforced by the State. 
These customs may further be divided into the following categories:
 a)  Legal Custom : Legal custom is a custom whose authority is absolute; it possesses the 
force of law. It is recognized and enforced by the courts. Legal custom may be further 
classified into the following two types:
   General Customs : These types of customs prevail throughout the territory of the State.
   Local Customs : Local customs are applicable to a part of the State, or a particular region 
of the country.
 b)  Conventional Customs : Conventional customs are binding on the parties to an 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
85
agreement. When two or more persons enter into an agreement related to a trade, it is 
presumed in law that they make the contract in accordance with established convention or 
usage of that trade. For instance, an agreement between a landlord and tenant regarding the 
payment of rent will be governed by convention prevailing in this regard.
Essentials of a valid custom
All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by 
the courts. The jurists and courts have laid down some essential tests for customs to be recognized as 
valid sources of law. These tests are summarized as follows:
Antiquity : In order to be legally valid, customs should have been in existence for a longtime, even 
beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has 
been fixed for the determination of validity of customs. However, in India there is no such time 
limit for deciding the antiquity of the customs. The only condition is that those should have been in 
practice since time immemorial.
Continuous : A custom to be valid should have been in continuous practice. It must have been 
enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise 
doubts about the validity of the same.
Exercised as a matter of right : Custom must be enjoyed openly and with the knowledge of the 
community. It should not have been practised secretly. A custom must be proved to be a matter of 
right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness : A custom must conform to the norms of justice and public utility. A custom, to 
be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience 
and mischief than convenience, such a custom will not be valid.
Morality : A custom which is immoral or opposed to public policy cannot be a valid custom. Courts 
have declared many customs as invalid as they were practised for immoral purpose or were opposed 
to public policy. Bombay High Court in the case of Mathura Naikon v. EsuNaekin, ((1880) ILR 4 Bom 
545) held that, the custom of adopting a girl for immoral purposes is illegal.
Status of Custom with regard to Legislation : In any modern State, when a new legislation 
is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not 
be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the 
legislative bodies in India. For instance, the customary practice of child marriage has been declared 
as an offence. Similarly, adoption laws have been changed by legislation in India.
III. Importance of custom as a Source of Law in India
Custom was the most important source of law in ancient India. Even the British initially adopted the 
policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in particular, 
the Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim (AIR 1922 PC59) observed 
and underlined the importance of custom in moulding the law. At the same time, it is important to 
note that customs were not uniform or universal throughout the country. Some regions of the country 
had their own customs and usages.
These variances in customs were also considered a hindrance in the integration of various communities 
of the country. During our freedom struggle, there were parallel movements for social reform in 
the country. Social reformers raised many issues related to women and children such as widow 
re-marriage and child marriage. After independence and with the enactment of the Constitution, 
the Indian Parliament took many steps and abrogated many old customary practices with some 
progressive legislation. Hindu personal laws were codified and the Hindu Marriage Act, 1955 and the 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
86
Hindu Adoption Act, 1955, were adopted. The Constitution of India provided a positive environment 
for these social changes. After independence, the importance of custom has definitely diminished as a 
source of law and judicial precedent, and legislation has gained a more significant place. A large part 
of Indian law, especially personal laws, however, are still governed by customs.
IV. Judicial Precedent as a Source of Law
In simple words, judicial precedent refers to previously decided judgments of the superior courts, such 
as the High Courts and the Supreme Court, which judges are bound to follow. This binding character 
of the previously decided cases is important, considering the hierarchy of the courts established by the 
legal systems of a particular country. In India, this hierarchy has been established by the Constitution 
of India.
Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as 
old as custom. It is an important feature of the English legal system as well as of other common law 
countries which follow the English legal system.
In most of the developed legal systems, judiciary is considered to be an important organ of the State. 
In modern societies, rights are generally conferred on the citizens by legislation and the main function 
of the judiciary is to adjudicate upon these rights. The judges decide those matters on the basis of the 
legislations and prevailing custom but while doing so, they also play a creative role by interpreting the 
law. By this exercise, they lay down new principles and rules which are generally binding on lower 
courts within a legal system.
Given this background, it is important to understand the extent to which the courts are guided by 
precedents. It is equally important to understand what really constitutes the judicial decision in a case 
and which part of the decision is actually binding on the lower courts.
DOCTRINE OF PRECEDENT IN INDIA - A BRITISH LEGACY
Pre-Independence:
According to Section 212 of the Government of India Act, 1919, the law laid down by Federal Court 
and any judgment of the Privy Council was binding on all courts of British India. Hence,Privy Council 
was supreme judicial authority - (AIR 1925 PC 272).
Post-Independence:
Supreme Court (SC) became the supreme judicial authority and a streamlined system of courts was 
established.
1)  Supreme Court:
	 •	 Binding	on	all	cour ts	in	India
	 •	 Not	 bound	 by	 its	 own	 decisions,	 or	 decisions	 of	 P rivy	 Council	 or	 F ederal	 Cour t	 -	 (AIR	 1991	
SC 2176)
2)  High Courts:
	 •	 Binding	on	all	cour ts	within	its	own	jurisdiction
	 •	 Only	persuasive	value	for	cour ts	outside	its	own	jurisdiction
	 •	 In	 case	 of	 conflict	 with	 decision	 of	 same	 cour t	 and	 bench	 of	 equal	 str ength,	 r efer r ed	 to	 a	
higher bench
3)  Lower Courts:
	 •	 Boun d	 to	 follow	 decisions	 of	 higher	 cour ts	 in	 its	 own	 state,	 in	 pr efer ence	 to	 High	 Cour ts	 of	
other states
Page 5


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
 
Sources of Laws
Contents
I. Where does law come from?
II. Custom as a Source of Law
III. Importance of Custom as a Source of Law in India
IV . Judicial Precedent as a Source of Law
V . Legislation as a Source of Law
VI. Exercises 
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Discuss the three main sources of law- Customs, Legislation and Judicial Precedent
• Explain the essential tests laid down by jurists/ courts for customs to be recognized as sources of 
law
• Evaluate the importance of custom as an important source of law in India
• Differentiate between the two parts of judicial decisions- Ratio decidendi and Obiter dicta
• Critically evaluate the importance of different sources of law
• Enumerate and explain different kinds of legislation 
I. Where does law come from?
To have a clear and complete understanding of law, it is essential to understand the sources of law. 
Sources of law mean the sources from where law or the binding rules of human conduct originate. 
In other words, law is derived from sources. Jurists have different views on the origin and sources of 
law, as they have regarding the definition of law. As the term ‘law’ has several meanings, legal experts 
approach the sources of law from various angles. 
For instance, Austin considers Sovereign as the source of law while Savigny and Henry Maine consider 
custom as the most important source of law. Natural law school considers nature and human reason 
as the source of law, while theologians consider the religious scriptures as sources of law. Although 
there are various claims and counter claims regarding the sources of law, it is true that in almost all 
societies, law has been derived from similar sources.
The three major sources of law that can be identified in any modern society are as follows:
i. Custom
CHAPTER
3
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
ii. Judicial precedent
iii. Legislation
II. Custom as a Source of Law
A custom, to be valid, must be observed continuously for a very long time without any interruption. 
Further, a practice must be supported not only for a very long time, but it must also be supported by 
the opinion of the general public and morality. However, every custom need not become law. For 
example, the Hindu Marriages Act, 1955 prohibits marriages which are within the prohibited degrees 
of relationship. However, the Act still permits marriages within the prohibited degree of relationship if 
there is a proven custom within a certain community. 
Custom can simply be explained as those long established practices or unwritten rules which have 
acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; in fact it was 
considered as the real source of law. With the passage of time and the advent of modern civilization, 
the importance of custom as a source of law diminished and other sources such as judicial precedents 
and legislation gained importance.
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two 
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as 
law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as 
the main source of law. According to him the real source of law is the will of the people and not the 
will of the sovereign. The will of the people has always been reflected in the custom and traditions of 
the society. Custom is hence a main source of law.
Saptapadi is an example of customs as a source of law. It is the most important rite of a Hindu 
marriage ceremony. The word, Saptapadi means ‘Seven steps’. After tying the Mangalsutra,the 
newly-wed couple take seven steps around the holy fire, which is called Saptapadi. The customary 
practice of Saptapadi has been incorporated in Section 7 of the Hindu Marriage Act, 1955. 
Kinds of Customs
Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are 
followed because of public opinion.
ii. Customs with sanction: These customs are binding in nature and are enforced by the State. 
These customs may further be divided into the following categories:
 a)  Legal Custom : Legal custom is a custom whose authority is absolute; it possesses the 
force of law. It is recognized and enforced by the courts. Legal custom may be further 
classified into the following two types:
   General Customs : These types of customs prevail throughout the territory of the State.
   Local Customs : Local customs are applicable to a part of the State, or a particular region 
of the country.
 b)  Conventional Customs : Conventional customs are binding on the parties to an 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
85
agreement. When two or more persons enter into an agreement related to a trade, it is 
presumed in law that they make the contract in accordance with established convention or 
usage of that trade. For instance, an agreement between a landlord and tenant regarding the 
payment of rent will be governed by convention prevailing in this regard.
Essentials of a valid custom
All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by 
the courts. The jurists and courts have laid down some essential tests for customs to be recognized as 
valid sources of law. These tests are summarized as follows:
Antiquity : In order to be legally valid, customs should have been in existence for a longtime, even 
beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has 
been fixed for the determination of validity of customs. However, in India there is no such time 
limit for deciding the antiquity of the customs. The only condition is that those should have been in 
practice since time immemorial.
Continuous : A custom to be valid should have been in continuous practice. It must have been 
enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise 
doubts about the validity of the same.
Exercised as a matter of right : Custom must be enjoyed openly and with the knowledge of the 
community. It should not have been practised secretly. A custom must be proved to be a matter of 
right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness : A custom must conform to the norms of justice and public utility. A custom, to 
be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience 
and mischief than convenience, such a custom will not be valid.
Morality : A custom which is immoral or opposed to public policy cannot be a valid custom. Courts 
have declared many customs as invalid as they were practised for immoral purpose or were opposed 
to public policy. Bombay High Court in the case of Mathura Naikon v. EsuNaekin, ((1880) ILR 4 Bom 
545) held that, the custom of adopting a girl for immoral purposes is illegal.
Status of Custom with regard to Legislation : In any modern State, when a new legislation 
is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not 
be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the 
legislative bodies in India. For instance, the customary practice of child marriage has been declared 
as an offence. Similarly, adoption laws have been changed by legislation in India.
III. Importance of custom as a Source of Law in India
Custom was the most important source of law in ancient India. Even the British initially adopted the 
policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in particular, 
the Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim (AIR 1922 PC59) observed 
and underlined the importance of custom in moulding the law. At the same time, it is important to 
note that customs were not uniform or universal throughout the country. Some regions of the country 
had their own customs and usages.
These variances in customs were also considered a hindrance in the integration of various communities 
of the country. During our freedom struggle, there were parallel movements for social reform in 
the country. Social reformers raised many issues related to women and children such as widow 
re-marriage and child marriage. After independence and with the enactment of the Constitution, 
the Indian Parliament took many steps and abrogated many old customary practices with some 
progressive legislation. Hindu personal laws were codified and the Hindu Marriage Act, 1955 and the 
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Hindu Adoption Act, 1955, were adopted. The Constitution of India provided a positive environment 
for these social changes. After independence, the importance of custom has definitely diminished as a 
source of law and judicial precedent, and legislation has gained a more significant place. A large part 
of Indian law, especially personal laws, however, are still governed by customs.
IV. Judicial Precedent as a Source of Law
In simple words, judicial precedent refers to previously decided judgments of the superior courts, such 
as the High Courts and the Supreme Court, which judges are bound to follow. This binding character 
of the previously decided cases is important, considering the hierarchy of the courts established by the 
legal systems of a particular country. In India, this hierarchy has been established by the Constitution 
of India.
Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as 
old as custom. It is an important feature of the English legal system as well as of other common law 
countries which follow the English legal system.
In most of the developed legal systems, judiciary is considered to be an important organ of the State. 
In modern societies, rights are generally conferred on the citizens by legislation and the main function 
of the judiciary is to adjudicate upon these rights. The judges decide those matters on the basis of the 
legislations and prevailing custom but while doing so, they also play a creative role by interpreting the 
law. By this exercise, they lay down new principles and rules which are generally binding on lower 
courts within a legal system.
Given this background, it is important to understand the extent to which the courts are guided by 
precedents. It is equally important to understand what really constitutes the judicial decision in a case 
and which part of the decision is actually binding on the lower courts.
DOCTRINE OF PRECEDENT IN INDIA - A BRITISH LEGACY
Pre-Independence:
According to Section 212 of the Government of India Act, 1919, the law laid down by Federal Court 
and any judgment of the Privy Council was binding on all courts of British India. Hence,Privy Council 
was supreme judicial authority - (AIR 1925 PC 272).
Post-Independence:
Supreme Court (SC) became the supreme judicial authority and a streamlined system of courts was 
established.
1)  Supreme Court:
	 •	 Binding	on	all	cour ts	in	India
	 •	 Not	 bound	 by	 its	 own	 decisions,	 or	 decisions	 of	 P rivy	 Council	 or	 F ederal	 Cour t	 -	 (AIR	 1991	
SC 2176)
2)  High Courts:
	 •	 Binding	on	all	cour ts	within	its	own	jurisdiction
	 •	 Only	persuasive	value	for	cour ts	outside	its	own	jurisdiction
	 •	 In	 case	 of	 conflict	 with	 decision	 of	 same	 cour t	 and	 bench	 of	 equal	 str ength,	 r efer r ed	 to	 a	
higher bench
3)  Lower Courts:
	 •	 Boun d	 to	 follow	 decisions	 of	 higher	 cour ts	 in	 its	 own	 state,	 in	 pr efer ence	 to	 High	 Cour ts	 of	
other states
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Judicial decisions can be divided into following two parts:
(i)  Ratio decidendi (Reason of Decision): ‘Ratio decidendi’ refers to the binding part of a 
judgment. ‘Ratio decidendi’ literally means reasons for the decision. It is considered as the 
general principle which is deduced by the courts from the facts of a particular case. It becomes 
generally binding on the lower courts in future cases involving similar questions of law.
(ii)  Obiter dicta (Said by the way): An ‘obiter dictum’ refers to parts of judicial decisions which 
are general observations of the judge and do not have any binding authority. However, obiter of 
a higher judiciary is given due consideration by lower courts and has persuasive value.
Having considered the various aspects of the precedent i.e. ratio and obiter, it is clear that the system 
of precedent is based on the hierarchy of courts. Therefore, it becomes important to understand the 
hierarchy of courts in order to understand precedent.
Every legal system has its own distinct features. Therefore, the doctrine of precedent is applied 
differently in different countries. In India, the doctrine of precedent is based on the concept of 
hierarchy of courts.
The modern system of precedent developed in India during the British rule. It was the British who 
introduced the system of courts in India. 
However, post-independence, India adopted its own Constitution, which provided for a hierarchical 
judicial system that is pyramidal in nature. Under the Constitution of India, a single monolithic unified 
command of the judiciary has been established. The Supreme Court of India,which was established 
by the Constitution of India, came into existence on 28 January, 1950 under Article 124(1) of the 
Constitution of India.
The Supreme Court replaced the Federal Court established by the Government of India Act,1935. 
The Supreme Court of India is the Apex Court in the hierarchy of courts, followed by the High 
Courts at the State level. Below them are the District Courts and Sessions Court. The structure of the 
judiciary in all states is almost similar, with little variation in nomenclature of designations.