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Customary Laws and Its Constitutional Validity

Frist of all, in order to understand the customary laws, we must understand what custom is. It is a practise that has gained legal authority due to its widespread use and long-standing habit[1]. A custom is a usage that grants a class of people from a specific section of the community the right to exercise certain rights against certain other people or things in the same community[2]. Custom has an important role in regulating human behaviour in almost all societies.

In truth, it is one of the oldest sources of judicial means. Customs, on the other hand, fade away as civilization advances, and laws and legal precedents become the dominant source of information. People develop custom by immediately following a particular norm of behaviour whenever the same problems emerge, and the importance of custom is solely dependent on its widespread use and approval by the community.

There are certain tests or essentials which the custom must fulfil to be recognised by the judiciary.

Some of the essentials of customs are:

  • Antiquity:
    A tradition must be proven to have existed since time immemorial for it to be recognised as law in the eyes of law. There is no time period defined for a custom to have existed, the only requirement for the custom to be law is it to be of old nature.
  • Continuity:
    A custom must be continuous in order to be recognised by the judiciary. A custom is presumed to be never existent if it is not practiced over a period of time. A community who are practicing the custom must recognise it over a period of time and it must be reasonable under the given circumstances of the case.
  • Peaceful enjoyment:
    The custom had to be followed in silence. A custom cannot be presumed to have originated by consent, as most conventions do naturally, if it has been contested or litigated for a significant amount of time.
  • Certainty:
    vague and indefinite custom cannot be recognised. The existence of custom as a matter of fact, or as a legal presumption of fact must satisfy the court.
  • Reasonableness:
    A custom must be reasonable in order to exist. To declare a custom inapplicable on the grounds of it being unreasonable, it must be proven that it is clearly opposed to reason. It cannot be unreasonable. It has to be good and useful to society. Custom must be proved to be unreasonable for it to be challenged in the court.
  • Conformity with statute law:
    A custom must be in compliance with the statutory law for it to be valid. In most legal systems, it is a positive rule that a statute can override a custom. Observance as a matter of right has to have been done legally. A custom is not valid if it is only practised willingly. It must have been followed openly rather than covertly, and without the use of force.

The law which has been observed to be certain legal practice, and the ones who are practising it consider it to be law, and which has been accepted by the judiciary, are the customary laws. Most of the customary laws deals with the group of community who is practicing in given locale. Customary laws are more found in the tribal people.

Customary laws are essential to tribal community and have provided some fundamental concepts and difficulties surrounding them in order to comprehend the dynamics of their interaction with modernity. Some of them have been recognised by the Constitution through the Sixth Schedule or constitutional amendments such as Article 371A in Nagaland and 371G in Mizoram. These measures represent an interface between their informal system's customary laws and formal legislation.

Tribal Customary Law In India

The constitution of India guarantees the protection to the Tribal people in order to develop according to their own culture. An ancient custom is not only an adjunct of ordinary law in jurisprudence, but it is also a fundamental component of it. According to this line of thought, unwritten tribal customary laws recognised as binding by their communities interact with the wider corpus of law produced and enforced by the formal State.

This connection frequently misses their importance in maintaining tribal unity and identity. The community feature is unique to most tribal customary laws. This characteristic arose from the area-specific management of the natural resources or environment that provided their subsistence.

 Most of these activities aided their communities' self-sufficiency and were centred on agriculture, particularly jhum, which was their primary source of income. The woodland was another element. Their community ownership arrangement was unique to such sustenance. Because land and woods were so important in their lives, they organised their beliefs, rituals, and activities around them.

Provisions in the Constitution of India that deals with the customs and customary laws in India directly or indirectly:

Constitution Of India

The Indian Constitution recognises customs and customary practises. It states that all laws in effect prior to the commencement of this Constitution must remain in effect until revised, repealed, or amended[3]. This provision has the effect of preserving the complete body of laws that existed in India prior to the implementation of the constitution. Not only do statutory laws have legal effect, but so do tort laws, Hindu laws, Mohammedan laws, and custom.

According to Article 13 of the Indian Constitution, the term "law" includes "customs" and "usages" that have legal effect. A reasonable and definite ancient custom, like a legislative Act, is obligatory on the courts. However, a custom or usage with legal effect cannot infringe any of the basic rights guaranteed by Part III of the Constitution.

Fundamental Rights

The constitution of India does not provide and specific rights related to the rights of the indigenous community for their social and economical development. The indigenous community have the right of not being displaced and disabled by any action which takes away their customary rights so that they can live with their dignity as per conferred by Article 21 of Indian Constitution.

The right to a living is an integral part of the right to life outlined in Article 21 of Indian Constitution. It can put a stop to activities that dislocate or disrupt poor people's lives. The state may not be compelled to provide for means of living through affirmative action, but any individual who is deprived of his right to livelihood, except through due process of law, may challenge the deprivation as violating the right to life provided by Article 21 of Indian Constitution[4].

Panchayats (Extension To Scheduled Areas) Act, 1996 (PESA)

The institutions of governance at the local level must be strong enough so as to empower them for their recognition and revival of customary laws. Article 40 of the Constitution requires the state to take the appropriate steps to delegate authority to the Panchayats. The Constitution further stipulates that a Gram Sabha may exercise the powers and execute the functions that the state legislature may establish by legislation[5].

The provisions of the Panchayat have been extended to the Scheduled Areas with the implementation of The Provisions of the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA), subject to the exceptions and alterations outlined in the Extension Act.

One of the key aspects of PESA is that it recognises Gram Sabha as having the authority to "safeguard and preserve the traditions and customs of the people, their cultural identity, community resources, and the customary mode of dispute resolutions." Gram Sabha is the official representation of a gram panchayat[6]. Gram Sabha has a higher status in the system of self-government under PESA because of this part. Because the members of Gram Sabha are the same people they are elected to serve, this provision has gained the support of the public.

In accordance with the new Act, the State and its organs are not released from their constitutional duties, but the community, which up until now had not been publicly acknowledged, is given the authority to organise the Gram Sabha and take on both internal and external challenges.

According to the Act, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed with special powers such as ownership of minor forest produce, the power to prevent alienation of land in Scheduled Areas and to take action to restore any unlawfully alienated land of a Scheduled Tribe, the power to manage village markets, the power to control over local plans and resources, and so on[7].

It was expected that the most significant effect of this PESA would be the "elimination of dissonance between tribal tradition of self-governance and modern legal institutions." However, despite being a positive step, this Act has not been fully utilised. The efforts made by the states for the purposes of this Act have failed to strengthen the concept of self-governance as envisioned by this legislation. As a result, the potential of PESA has not been put to use in terms of recognising customary practises and laws through the Gram Sabha institution.

Role Of Customary Law In Hindu Law

Custom plays an important role in the Hindu Law and is recognised as a part of the Indian Legal System. Section 2 (2) of the Hindu Marriage Act and the Hindu Succession Act have recognised the tribal customary laws and practices of the scheduled tribe. Customary Hindu rituals in marriage and divorce that vary from the traditional norm are recognized by Indian law.

Custom has allowed for a diverse range of marriage arrangements in a huge country like India, with so many castes dwelling in so many distinct places. Traditional marital arrangements may be perfectly legal. According to Hindu law, some ceremonies are absolutely obligatory.

For example; courts have given more importance to saptapati, seven-steps around the fire, for the Hindu Marriage to be complete properly and considers it as the most important ceremonies of all.

It should be emphasised, however, that Indian Courts acknowledge the conduct of rites other than those mentioned above where the ceremonies are permitted by the custom of the group or caste to which the parties belong. Divorce is not permitted under Hindu law. Marriage, according to Hindu law, creates an irreversible bond between the husband and the wife. As a result, unless divorce is permitted by custom, neither partner to a marriage can divorce the other.

The Hindu Marriage Act, on the other hand, changed this status by establishing nine reasons for divorce as mentioned in Section 13 of the Hindu Marriage Act, 1955, for both husband and wife, as well as certain additional grounds for the wife alone. According to Section 29 of the Hindu Marriage Act, a legitimate custom can also be used to dissolve a Hindu marriage.

Importance Of Customs In Modern And Present Indian Laws

Customary rights recognized by the court on the basis of long usage, becomes the customary laws. These customary laws are created by the courts itself. However, Customary rights were recognized as early as 1872, with the passage of the Indian Evidence Act.

Section 13 of the Indian Evidence Act deals with the facts necessary to prove customary law. Sections 12 to 16 of the Indian Forest Act of 1927 recognise rights to pasture and forest produce at the stage of settling rights before a certain area of forest is categorised as reserve forest. These are, without a doubt, customary rights.

However, these rights were rarely translated into customary rights in the field because either the forest dependant community were unaware of their rights or the settlement officer, with their narrow and rigid pr-conceived mindset, were not ready to grant such rights to these tribal people. However, such customary rights are recognised by the early colonial legislature which has been drafted over a century ago, though such legislations very few.

Article 13 of the Indian Constitution treats customary law alongside other departments of civil law. If proven, a custom or practises becomes law under this provision. Courts can take cognisance of these legally binding customary rights under Section 57 of the Indian Evidence Act of 1872. Area-specific traditional usage and practise gave rise to community-level customary laws. As a result, they represent the local people's cultural mindset and customs. Because their demands were modest, these techniques assisted local communities in becoming self-reliant and self-sufficient.

Courts On Validity Of Customary Laws Prevailing In India

The Supreme Court gave an important judgement on the applicability of custom in the matter of family in the case of Smt. Ass Kaur (Deceased) By L.Rs vs Kartar Singh (Dead) By L.Rs. & Ors[8], saying that the customary law will prevail over the statutory law where the legislation is silent on the issue in question.

Contentions raised during the argument presented that the validity of custom must be determined on the basis of justice, equity and good conscious were set aside by the Bench. No applicability of custom and its proof is different, and despite its applicability and its proof, the custom has not been applied on the ground of justice, equity, and good conscious is different.

The court said that it would be said explicitly if the intention of makers of the statute of the Child Marriage Restraint Act, 1929, was to completely remove the applicability of customary laws.

Sabrimala Verdict: A Conflict of Custom and Law
The Supreme Court in the case of Indian Young Lawyers' Association v. State of Kerala[9], has proven how unchecked practises and traditions can cause great injustice to a certain social group, and why the rule of law takes precedence over such actions. We appreciate and admire the Court's majority decision in this case as supporters of the rule of law and libertarian ideas. The Supreme Court overturned the restriction on women aged 10 to 50 from attending the medieval shrine of Sabarimala in Kerala.

Law emerges with the rising of the people, grows in power with their rise, and eventually goes away when the nation loses its nationality. As a result, any unjust law, such as customs, would stand on the defective component and force the nation to the point of losing its personality and suffocating itself unless it falls in the hands of a repossessed judiciary. As a result, it is a decisive assertion that customary law should only have persuasive value and should not be regarded as a law of land.

Jallikattu Sports Case:
In Animal Welfare Board of India v. A. Nagaraja[10], the Supreme Court used a similar approach and banned Jallikattu: By prohibiting the use of bulls in Jallikattu, they expanded the concept of justice to include not only humans but also animals.

In the famous bull-taming festival, men were supposed to calm a furious bull, endangering themselves as well as the animal. In fact, the lower castes were discriminated against because only upper caste men were allowed to participate. Many lives, including those of animals, participants, and even spectators, were sacrificed in this occasion of brutality in the name of sport and enjoyment.

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 fulfill. They believed that such norms encouraged cruelty and other unethical behaviours in the name of sports.

During the early days of the general public, customs were the most important, and in some cases, the sole source of law. The customs system is founded on the development of a fully legal and acceptable foundation. They occur when there is a large crowd present. In modern Indian society, a tribe is a group of primitive people who live in the hills and jungles and have their own language and culture. Tribal societies of India, in particular, remained somewhat separated from the majority of national life until independence.

The passage of PESA in 1996 indicated the Indian Parliament's resolve to forgo command-and-control in favour of "modern governance" in tribal areas. In other words, about one hundred million indigenous people have "freedom within the law."

This is undoubtedly feasible, and the legal reform would be "a highly successful technique of altering ideology in order to generate a sense of entitlement among the tribes." The Fifth Schedule, as part of the Constitution, applies to tribal areas distributed over a broad country's peninsular regions. Incorporating these topics into a single work risk trivialising the tribes' distinct problems.

Considering tribes' socio-economic backwardness, the founders of the Indian constitution granted particular advantages for their growth in independent India. Gradually, various laws have been passed and a separate administrative system has been established in order to bring the tribes into the forefront of our ideal democratic society.

  1. Garner, B.A. (Ed)., 2004, "Black's Law Dictionary, Eighth Edition", West Publishing Company
  2. State of Bihar v. Subodh Gopal Bose (A.I.R. 1968 SC 281)
  3. Article 372, Constitution of India
  4. Olga Tellis v. Union of India A.I.R.1986 SC 180
  5. Article 243 A, Constitution of India
  6. Section 4 (d) of PESA
  7. Section 4 (m) of PESA
  8. Smt.Ass Kaur (Deceased) By L.Rs vs Kartar Singh (Dead) By L.Rs. & Ors , Appeal (civil) 12395 of 1996
  9. 2018 S.C.C. OnLine S.C. 1690.
  10. Animal Welfare Board of India v. A. Nagaraja , (2014) 7 S.C.C. 547

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