Customary Law in India

Customary law, deeply rooted in the socio-cultural fabric of Indian communities, has evolved over centuries, shaping and being shaped by the lives of the people it governs. This article delves into the essence, significance and contemporary relevance of customary law in India, illuminating its role in the legal system and the challenges it faces in the modern era.

What is customary law in India?

Customary law in India refers to a body of unwritten rules and practices that have evolved over time within a particular community or society and have gained legal recognition due to their long-standing and widespread acceptance.

These laws govern various aspects of community life, including marriage, inheritance, property rights and dispute resolution. Unlike statutory laws enacted by legislative bodies, customary laws emerge organically from the customs and traditions of a community.

Essentials of a valid custom

For a custom to gain legal recognition, it must meet specific criteria established by the judiciary.

• Historical Longevity: A custom must demonstrate its existence from a very early period, without a defined starting point. The essential factor is its age, indicating that the custom has been part of the community’s traditions for an indeterminate length of time.
• Uninterrupted Practice: To be acknowledged by the judiciary, a custom must have been practised consistently. If a tradition is not continuously observed, it may be considered as having never existed. It should be recognised and deemed reasonable by the community over time, given the specific case circumstances.
• Peaceful Practice: The tradition should have been followed without dispute. A tradition that has been the subject of contention or legal challenge for a considerable period cannot be assumed to have been adopted consensually, as is typical for most customs.
• Clarity and Precision: Only customs that are clear and defined can be recognised. The court must be satisfied with the custom’s existence, either as a factual matter or as a presumed fact.
• Reasonableness: For a custom to be upheld, it must be rational and beneficial to society. Any custom found to be fundamentally unreasonable may be challenged and deemed inapplicable.
• Alignment with Statutory Laws: Customary law must align with existing statutory laws to be considered valid. A custom cannot override a statute; it must be practised as a right and in an open, not covert, manner, free from coercion.

The role of customary law in tribal communities

Customary laws, particularly prevalent among tribal communities, encapsulate fundamental principles and address the challenges these communities face in adapting to modernity. Certain customary laws in India have been constitutionally acknowledged through provisions such as the Sixth Schedule and amendments like Article 371A in Nagaland and 371G in Mizoram.

These legal recognitions create a bridge between the informal customary laws of tribal communities and the formal legislative framework, underscoring the importance of these traditions in the legal landscape.

Importance of customs in modern and present Indian laws

The recognition of customary rights by judicial systems, due to their extensive historical application, has led to the formation of customary laws. Notably, the acknowledgement of these rights was formalised with the enactment of the Indian Evidence Act in 1872.

The Indian Evidence Act, specifically through Section 13, outlines the criteria for establishing the validity of customary laws. Moreover, the Indian Forest Act of 1927, in sections 12 to 16, acknowledges the traditional rights to access pasture and forest resources, essential for communities before the classification of forests as reserved areas, illustrating the acknowledgement of customary practices.

Despite these legal recognitions, the actual application of customary rights on the ground has been limited, often due to a lack of awareness among forest-dependent communities or the reluctance of settlement officers to acknowledge these rights, reflecting a gap between legislation and its implementation. Nonetheless, these early colonial legislations did set a precedent for recognising customary rights, albeit in limited instances.

Furthermore, Article 13 of the Indian Constitution equates customary law with other branches of civil law, establishing that customs, once verified, attain the status of law within this framework. The Indian Evidence Act further empowers courts to recognise and enforce these customary rights under Section 57.

This legal framework allows for the preservation of community-specific traditions and practices, showcasing the cultural values and norms of local populations. Such legal acknowledgement supports communities in maintaining their autonomy and sustainability, highlighting the enduring relevance of customary practices within the modern legal landscape of India.

Courts on validity of customary laws in India

The Supreme Court’s stance on customary laws has been pivotal in shaping their applicability within the Indian legal framework. A landmark ruling in the case of Smt. Ass Kaur (Deceased) By L.Rs vs Kartar Singh (Dead) By L.Rs. & Ors underscored that customary laws would hold precedence in areas where statutory laws are silent, highlighting the nuanced balance between custom and codified law.

The court addressed arguments regarding the validity of customs, emphasising that their legitimacy should align with principles of justice, equity and good conscience. However, it differentiated between the mere applicability of a custom and its ethical justification, suggesting that customs lacking in these fundamental values might not be enforced, despite their traditional observance.

Further, the court clarified situations involving statutory laws, such as the Child Marriage Restraint Act of 1929, indicating that explicit legislative intent is required to displace customary practices.

Sabrimala verdict: a conflict of custom and law

The Sabarimala Verdict further illustrates the complex interplay between custom and statutory law. In this decision, the Supreme Court invalidated a customary practice that barred women of a certain age group from entering the Sabarimala temple, underscoring the supremacy of constitutional rights over traditional customs that discriminate against specific social groups. This verdict is celebrated for affirming the primacy of rule of law and equitable principles.

Jallikattu sports case

Moreover, the Supreme Court’s judgment in the Jallikattu case (Animal Welfare Board of India v. A. Nagaraja) extended the discourse on justice to encompass animal rights, prohibiting the traditional sport of Jallikattu on grounds of cruelty. This decision marked a significant step towards broadening the scope of justice to include all sentient beings, challenging customs that jeopardise the safety and dignity of animals and humans alike.

The court decided that this ritual violated the constitutional rights of animals listed in Article 51-A (g)(vii) and (h)(viii), which are part of the Fundamental Duties that citizens must fulfil. They believed that such norms encouraged cruelty and other unethical behaviours in the name of sports.

What is the relation between customary and statutory law?

The relationship between customary law and statutory law in India reflects a complex interplay between tradition and codified legal systems. Customary law comprises practices and norms that have evolved over time within specific communities, gaining legal recognition due to their long-standing and widespread acceptance.

These practices govern various aspects of life, including family relations, property rights and dispute resolution, particularly in tribal and rural communities. Statutory law, on the other hand, consists of laws enacted by the legislative bodies at the state and national levels, providing a codified and standardised legal framework applicable across the entire country.

The relationship between these two types of law can be characterised by both complementarity and conflict:

Complementarity

In areas where statutory law is silent or ambiguous, customary law can fill the gaps by providing guidance based on long-established community practices. This is particularly relevant in matters related to personal law, such as marriage, divorce and inheritance among indigenous and tribal communities, where customs can vary significantly from the general law of the land.

The Indian legal system, recognising the importance of these customs allows for their application in specific circumstances, provided they fulfil certain criteria such as antiquity, continuity and conformity with public policy.

Conflict resolution

Customary laws often play a critical role in local dispute resolution mechanisms, offering culturally sensitive and accessible means of settling disputes.

These traditional systems can be more effective in achieving reconciliation within communities than formal judicial processes, fostering social cohesion.

Conflict

While customary law can complement statutory law, conflicts arise when customary practices contravene constitutional principles or statutory rights. The Indian Constitution and statutory laws prioritise rights such as equality, non-discrimination and freedom from exploitation.

When customary practices violate these principles, statutory law takes precedence. Courts in India, including the Supreme Court, have adjudicated cases where customary laws were found to be in conflict with statutory laws or constitutional rights, often ruling in favour of the latter to uphold fundamental rights and justice.

Legal recognition and reform

The Indian legal system has recognised the validity of customary law in various instances, provided it does not contravene constitutional mandates or statutory law. This recognition is evident in legislation like the Indian Evidence Act, which allows courts to consider customs and usages in deciding cases.

However, there has also been a push for reforming customary laws that are deemed discriminatory or harmful, reflecting a dynamic balance between respecting cultural traditions and ensuring justice and equality under the law.

Conclusion

Customary law in India represents the traditional rules and practices that have been followed by specific communities or tribes for generations, gaining legal recognition due to their longstanding and widespread acceptance. These laws govern various aspects of daily life, including marriage, inheritance and property rights, tailored to the cultural, social and religious contexts of the communities.

Although not codified like statutory laws, customary laws are acknowledged by Indian courts provided they satisfy criteria such as antiquity, continuity and compatibility with public morals and statutory laws. Customary law plays a crucial role in India’s pluralistic legal system, reflecting the country’s diverse cultural heritage and accommodating the unique legal needs of its many communities.