Law, Custom and Justice

It is laid down by a recognised authority. In India that is Parliament and the State legislatures under articles 245 and 246, the President and Governors through Ordinances, and, in delegated form, the Government through rules, regulations, orders, bye-laws and notifications. It also includes the law declared by the Supreme Court, which article 141 makes binding on all courts within the territory of India.

It applies generally, not to one named person. A rule directed at one individual is an order, not a law.

It is backed by the force of the State. A rule nobody will enforce is a moral rule or a social convention. The distinguishing mark of a legal rule is that a court will act on it, and behind the court stands the machinery of the State.

Article 13(3)(a), the definition to quote

The Constitution does not define "law" for all purposes. It defines it for Part III, which contains the fundamental rights, and that definition is the one a student should be able to reproduce.

Article 13(3)(a): "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

Three things are worth noticing in that list. It is an inclusive definition, opening with "includes", so it widens rather than closes. It reaches subordinate legislation, so a bye-law of a municipality is "law" and can be struck down for violating a fundamental right just as an Act of Parliament can. And it expressly names custom or usage, which is the bridge to the next concept on MU's list.

Where Indian law actually comes from

The Constitution, which is the supreme law and the source of the power to make all the rest.

Legislation: Acts of Parliament and of the State legislatures. This is the largest source and the one that grows fastest.

Subordinate or delegated legislation: rules, regulations, notifications, orders and bye-laws made under an Act by the authority the Act names. Section 3(51) of the General Clauses Act 1897 defines "rule" as a rule made in exercise of a power conferred by any enactment.

Precedent, the decisions of courts. Article 141 makes the law declared by the Supreme Court binding on all courts in India, so a decision of that Court is a source of law and not merely a record of one.

Custom, where it satisfies the tests set out below.

Personal law, which for a first-year student is best understood as a body of rules derived from religion and custom, much of it now put into statutory form. Article 372 kept all law in force before the Constitution in force after it, until altered, repealed or amended, which is why Acts of 1872 and 1882 are still being applied today.

Custom

What it is

A custom is a practice which a community has followed for so long, and so consistently, that the law will enforce it as a rule even though no legislature ever enacted it.

Custom is the oldest source of law there is. Legislation is a recent invention by comparison. Long before anyone drafted an Act, disputes were settled by asking what had always been done in that place, in that trade or in that family, and the answer was treated as binding.

The statutory test

Note that there is no general Indian statute defining "custom" for all purposes. What exists is a definition inside one Act, and it is the one to quote because it puts the judge-made tests into statutory words.

Section 3(a) of the Hindu Marriage Act 1955: the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. There is a proviso that the rule must be certain and not unreasonable or opposed to public policy, and a second proviso that a family custom must not have been discontinued by the family.

The tests, taken apart

Pull that definition to pieces and you get the conditions a custom must satisfy. This is the list that earns marks.

One, antiquity. It must have been observed "for a long time". How long is not fixed by any number in Indian law; what matters is that it is old enough for people to have regarded it as binding rather than as a recent convenience.

Two, continuity. It must have been observed "continuously". A practice abandoned for a generation and revived is not a custom.

Three, uniformity. It must have been observed "uniformly". If half the community did one thing and half did another, no rule can be extracted.

Four, certainty. The proviso requires the rule to be "certain". A vague practice cannot be enforced, because a court could not say what it required.

Five, reasonableness. The proviso requires that it be "not unreasonable".

Six, not opposed to public policy, and, more generally, not contrary to any statute. A custom cannot override an Act. This is the single most important limit and it is where custom most often fails in modern cases.

Seven, it must be proved. Custom is a question of fact. The party who asserts a custom must prove it by evidence, and a court will not assume it.

Custom and the Constitution

Custom sits inside article 13(3)(a), which means a custom having the force of law is "law" for the purposes of Part III. The consequence is direct: a custom that violates a fundamental right is void to the extent of the violation, exactly as a statute would be.

That is not theoretical. In the Sabarimala case, worked at length in [Indian Young Lawyers Association v. State of Kerala], the majority tested a temple custom against articles 15 and 25 and held it could not stand. The minority judgment of Indu Malhotra J. took the opposite view of how far a court should test a religious practice at all. Both sides accepted that a custom is examinable; they differed on the standard.

Justice

Why no statute defines it

Justice is the standard by which law is judged, so it cannot be defined by law without circularity. What can be done, and what an examiner is looking for, is a clear account of the senses in which the word is used and of where the Constitution uses it.

The Preamble

The Preamble to the Constitution records that the people of India resolved to secure to all citizens JUSTICE, social, economic and political. Those three adjectives are the syllabus's own vocabulary and each means something distinct.

Social justice means the removal of inequalities of status: caste, sex, religion, place of birth. Articles 15, 16 and 17 are its operative provisions.

Economic justice means the removal of gross inequality of wealth and opportunity. Much of Part IV, the Directive Principles, is directed at it.

Political justice means an equal share in political power: one adult, one vote, of equal value.

Note carefully what the Preamble can and cannot do with this. In In re Berubari Union, AIR 1960 SC 845, it was argued that the Preamble itself prohibited the cession of Indian territory. Facts. The President referred to the Supreme Court under article 143(1) the question whether the Indo-Pakistan Agreement of 1958, dividing Berubari Union and exchanging the Cooch-Behar enclaves, involved a cession of territory and how it could be implemented. Held. Although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution, is not a source of any substantive power, and equally is not a source of any prohibition or limitation. Implementing the agreement needed an amendment under article 368. Why it matters here. The Preamble tells you what justice the Constitution is aiming at; it does not by itself confer a right or impose a bar. The chapter on internal aids, [Internal Aids to the Interpretation of a Statute], returns to this case for the general rule about preambles.

The classical divisions

Two divisions are worth knowing, because they let you answer a question about justice without drifting into opinion.

Distributive justice is about how benefits and burdens are shared out in a society: who gets the reservation, who pays the tax, who receives the subsidy. It is addressed mainly to the legislature.

Corrective justice is about restoring the balance after a wrong: damages, restitution, punishment. It is addressed mainly to the courts.

Procedural justice, sometimes called natural justice, is about how a decision is reached rather than what it is. Two rules make it up: nobody may be a judge in their own cause, and both sides must be heard. A decision can be substantively right and still be set aside for breach of these.

A worked example

Anjali's grandfather dies in a village in Maharashtra. A local practice, which the family says has been followed in their community for as long as anybody can remember, gives the family house to the eldest son alone. Anjali's brother relies on it. Anjali says she is entitled to an equal share.

Step one: is the practice a custom in law? Her brother must prove antiquity, continuity and uniformity by evidence. Assertion is not enough; custom is a question of fact.

Step two: is it certain and reasonable? A rule that says "the eldest son takes the house" is at least certain. Whether it is reasonable is a separate question.

Step three, and this is where it fails: does it conflict with a statute? Since the Hindu Succession (Amendment) Act 2005, a daughter is a coparcener by birth in the same manner as a son. A custom cannot override an Act of Parliament. That is the sixth test, and it is decisive.

Step four: article 13(3)(a). Even without the statute, the custom has the force of law and is therefore "law" for Part III, so it would have to survive article 15's prohibition of discrimination on grounds of sex.

Notice how the analysis ran. Not "this is unfair", which is an appeal to justice in the abstract, but "this fails test six", which is an argument a court can act on. That is the difference the subject exists to teach.

Distinctions table

What these words do NOT mean

Law is not the same as morality. They overlap and they are not identical. Ingratitude is immoral and is not unlawful. Parking on a yellow line is unlawful and is not immoral. A student who defines law as "rules of right conduct" has defined morality.

Custom is not "what people usually do". Most habits are not customs. Without antiquity, continuity, uniformity, certainty and consistency with statute, a practice is a habit, and a court will not enforce it.

Custom does not beat a statute. This is the error most often made in an exam answer. Custom is a source of law that yields to legislation, not one that competes with it.

Justice is not the same as law. A rule can be perfectly valid and produce an unjust result; that is why appeals, amendments and the Directive Principles exist. Equally, an answer that treats "unjust" and "illegal" as the same word is wrong.

Limits and criticism

Custom is a shrinking source. As Parliament and the legislatures cover more ground, and as codification proceeds, there is less space where a custom can operate at all. Much of what was once Hindu customary law is now in the Hindu Marriage Act 1955 and the Hindu Succession Act 1956.

Proving a custom is hard and getting harder. Oral evidence of what a community has always done becomes weaker as communities disperse.

"Justice" in the Preamble is not directly enforceable. Berubari settles that the Preamble is not a source of power or of prohibition. Its value is as a guide to construction and as a statement of purpose, and that is the honest way to use it in an answer.

Quick revision

Law: three senses, a body of rules, one enactment, a law of nature. Made by a recognised authority, general in application, backed by the force of the State. Article 13(3)(a) includes Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. Sources: Constitution, legislation, delegated legislation, precedent (article 141), custom, personal law. Article 372 continued pre-Constitution law.

Custom: section 3(a), Hindu Marriage Act 1955. Continuously and uniformly observed for a long time, has obtained the force of law, certain, not unreasonable, not opposed to public policy. Seven tests: antiquity, continuity, uniformity, certainty, reasonableness, not contrary to statute or public policy, and proved as a fact. Inside "law" in article 13(3)(a), so testable against the fundamental rights.

Justice: not statutorily defined. Preamble: social, economic and political. Distributive, corrective and procedural. In re Berubari Union, AIR 1960 SC 845: the Preamble is a key to the mind of the makers, not a source of power or of prohibition.

Test yourself

1. Define "law" as the Constitution defines it, and say for what purpose that definition operates.

Article 13(3)(a) provides that in that article, unless the context otherwise requires, "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. It is an inclusive definition and it operates for Part III, the fundamental rights, so that anything within it can be tested against those rights and is void to the extent of any inconsistency.

2. State the tests a custom must satisfy before a court will enforce it.

Antiquity, that it has been observed for a long time; continuity, that observance has not been broken; uniformity, that it has been observed consistently; certainty, so that a court can say what it requires; reasonableness; that it is not opposed to public policy and not contrary to any statute; and that it is proved by evidence, custom being a question of fact. Section 3(a) of the Hindu Marriage Act 1955 puts the first five into statutory words for that Act.

3. Can a custom prevail over an Act of Parliament?

No. Custom is a source of law that yields to legislation. A custom inconsistent with a statute is unenforceable to the extent of the inconsistency, and a custom having the force of law is also "law" within article 13(3)(a), so it must additionally survive the fundamental rights.

4. What did the Supreme Court hold about the Preamble in the Berubari reference?

That although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution and cannot be regarded as the source of any substantive power, and that the same is true of prohibitions and limitations. The argument that the Preamble by itself prevented the cession of territory was therefore rejected, and the Court held that a constitutional amendment under article 368 was required.

5. Distinguish law from morality with two examples.

Law is enforced by the State through courts; morality is not. The two overlap without coinciding. Ingratitude to a benefactor is immoral and no court will act on it. Parking a car on a yellow line is unlawful and nobody would call it immoral. A definition of law as "rules of right conduct" is a definition of morality and will lose marks.

6. What are the three kinds of justice named in the Preamble, and what does each mean?

Social justice, the removal of inequalities of status such as caste, sex, religion and place of birth, given effect by articles 15, 16 and 17. Economic justice, the reduction of gross inequality of wealth and of opportunity, addressed largely by the Directive Principles in Part IV. Political justice, an equal share in political power, expressed in universal adult suffrage under article 326.