LLM Foundation Course Law and Social Transformation of India 2015 Question Paper with Solutions

He described three stages. In the customary stage law lives in the popular consciousness and is practised without being written. In the juristic stage lawyers become its technical custodians and the law acquires a scientific form, which Savigny regarded as necessary but risky. In the legislative stage, which he treated as decay, law is made by a legislature and the connection with the people is lost. Georg Friedrich Puchta took the thesis to its extreme, treating the Volksgeist as the sole source of law.

2. Maine's comparative version

Sir Henry Maine in Ancient Law (1861) traced a progression from themistes, isolated divinely inspired judgments; through custom, in the keeping of a privileged order; to codes, once writing made publication possible. He then distinguished static societies, which stop there, from progressive societies, which develop law further by legal fiction, equity and legislation. His most quoted proposition is that the movement of progressive societies has hitherto been a movement from status to contract, that is from obligations fixed by the group into which a person is born to obligations created by agreement. Maine's method, comparing Roman, Hindu and Irish law, makes him more useful for India than Savigny, whose theory assumed a single organic people.

Codified statutes carry tradition inside them. The Hindu Marriage Act preserved the customary ceremonies as the test of a valid marriage, and in Bhaurao Shankar Lokhande v. State of Maharashtra AIR 1965 SC 1564 a prosecution for bigamy failed because the second marriage had not been solemnised with the ceremonies the custom required. The Hindu Adoptions and Maintenance Act, 1956 preserved the age-gap rule and the bar on adopting a second son of the same sex. The Indian Contract Act recognises usage of trade.

Personal law is tradition given legal effect, and its survival in a modern constitutional State, with different rules of marriage, divorce, guardianship and succession for different communities, is the strongest single illustration of the proposition.

4. The evidence against the proposition

Transplants took root. The Indian Penal Code, 1860, the Indian Contract Act, 1872 and the Indian Evidence Act, 1872 were drafted on English models for a society whose Volksgeist had nothing to do with them, and they governed for more than a century and a half; the Penal Code was replaced only by the Bharatiya Nyaya Sanhita, 2023 with effect from 1 July 2024. Savigny's strong claim, that imported law is inert, is refuted by the most important body of law India possessed.

5. How Indian law reconciles the two: a hierarchy, not a compromise

Tradition supplies the material: custom and personal law remain sources, and a court will apply a custom that satisfies the tests above. The Constitution then decides which parts of that material may survive, through Article 13, Article 15, Article 17 and, most explicitly, Article 25(2)(b), which permits laws for social welfare and reform and for throwing open Hindu religious institutions from inside the guarantee of religious freedom.

One doctrinal complication must be stated. State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84 held that uncodified personal law is not "law in force" under Article 13, so it cannot be tested against fundamental rights. That decision is the reason unequal personal law has survived seventy years of Part III; it has been doubted, by Nariman J in Shayara Bano and by Chandrachud J in Sabarimala, and has not been overruled.

Conclusion. The proposition is true of the origins of law and false of its authority. Indian law is the product of tradition and culture in the sense that custom and personal law are formal sources and that codified statutes carry inherited content; it is not a product of tradition in the sense Savigny meant, because since 1950 the constitutional order has claimed the right to decide which traditions the law will support. The accurate formulation, and the one to end on, is that tradition supplies the material on which the legal order works, and the Constitution supplies the standard by which that material is kept or discarded in the light of what Pound would call the jural postulates of the society India has chosen to become.