SOURCES OF LAW

INTRODUTION

Source always gives us an understanding of the objective behind the

formation of something. Everything in this universe has a source which
carries its authenticity. Without a source, everything loses its importance.
We all are very well acquainted with the word “LAW” and is used in our
day to day life.

The law prescribes and regulates well-known situations of human

pastime inside the kingdom.

 “law is the command of the sovereign.” “it is the command of the

advanced to an inferior and pressure is the sanction at the back of law.”
—Austin
 “A regulation is a popular rule of outside behaviour enforced with the aid
of a sovereign political authority.” –Holland
 “Law is the body of principles recognized and applied by the State in the
administration of justice.”—Salmond

SOURCES OF LAW

There are many different sources of law in any society. Some laws will
be written in the country’s Constitution; others will be passed by the
legislature (usually a parliament or congress); others will come from long
social tradition.

PRIMARY SOURCES OF LAW

1. LEGISLATION

The term legislation has been derived from the Latin terms legis
meaning law and latum meaning to make. Thus, legislation refers to the
making of a law. Salmond defines legislation as, “Legislation is that
source of law which consists in the declaration of legal rules by a
competent authority.” According to Gray, legislation refers to “the formal
utterances of the legislative organs of the society.”

1. Salmond- “legislation is that source of law which is composed within

the declaration of prison regulations by using an able authority.”
2. Horace Gray- “regulation way the formal utterance of the legislative
organs of the society.”
3. John Austin- “There may be no law without a legislative act.”

The analytical school of jurisprudence believes the law to be a set of

commands issued by a sovereign authority. This command is what is
known as a statute and the process of making of a statute is known as
legislation. The analytical positivists believe legislation to be the only true
source of law and disapprove of judiciary taking up legislative functions.
Furthermore, they do not recognize customs as a valid source of law.

On the other hand, the historical school believes legislation to be the

“least creative” source of law. They believe that legislation only gives a
proper form and structure to the customs that have been developed by
the people. Both the views are the two opposite extremes of regarding
legislation as a source of law. While the analytical school regards
legislation as the only source of law, the historical school disregards it as
a source of the new law.

Salmond has classified legislations into supreme and subordinate

legislation:

1. Supreme Legislation- Supreme legislation refers to the laws made

through the exercise of the sovereign power of the State. The power to
repeal or amend such laws rests only with the legislative body which
has enacted the laws.
2. Subordinate Legislation- Subordinate legislation refers to the laws
made by an authority other than the sovereign power of the State.
Such laws are in constant supervision of the body which enacts
supreme legislations. One of the kinds of subordinate legislation is
delegated legislation, which is quite popular in the contemporary world.
3. Delegated law– that is a sort of subordinate law. it’s miles that the
principal feature of the government is to enforce the law. In case of
Delegated regulation, executive frames the provisions of law. this is
also known as govt legislation. The government makes laws in the
form of orders, by-laws and so forth.

Sub-Delegation of power to make laws is likewise a case in Indian legal

system. In India, the power to make subordinate law is commonly
derived from existing permitting acts. It’s miles essential that the
delegate on whom such power is conferred must act within the limits of
the permitting act.
 The main cause of this kind of regulation is to supplant and no longer to
supplement the law. Its predominant justification is that sometimes
legislature does now not foresee the difficulties that would come after
enacting a regulation. Therefore, Delegated legislation fills in the one’s
gaps that aren’t seen at the same time a method of the allowing act. The
delegated legislation offers flexibility to regulation and there is sufficient
scope for adjustment inside the light of experiences received in the
course of the running of regulation.

 2. CUSTOMS

A Custom is any established mode of social behaviour within the

community. Various dimensions of human behaviour which are
prescribed by the community or society hint at the conceptual frame of
custom. It is considered as one of the mechanisms of social control and
an appropriate direction for humans to live in the community and to allow
the society to perpetuate. Custom in Chamber’s 20th Century Dictionary
means, ‘What one is wont to do: what is usually done by others: any of
the distinctive practices and conventions of a people or locality, esp.,
those, of a primitive tribe’.

Salmond defines custom as an embodiment of principles of justice

which have appealed to the national conscience.

Keeton defines customs as rules of human actions which have been

established by continuous usage and have the force of law and are
applied by the courts.

According to Carter, “The simplest definition of custom is that it is the

uniformity of conduct of all persons under like circumstances.”

Austin, in his disregard for custom as a source of law, defines them as

rules of conduct which are simply observed by the “governed” in a non-
legal sense.

However, Austin said that custom isn’t always a source of law.

Roscoe Pound said that customary regulation comprises:

1. Law formulated via custom of famous motion.

2. Law formulated thru judicial choice.
3. Law formulated with the aid of doctrinal writings and clinical
discussions of legal standards.
 Ingredients of Custom

 Antiquity
 Continuous in nature.
 Peaceful Enjoyment
 Obligatory Force
 Certainty
 Consistency
 Reasonableness

In Subramanian Chettiar v. Kumarappa Chettiar[1] custom has been

defined as, “A particular rule which has existed from the time immemorial
and has obtained the force of the law in a particular locality.” In Hur
Prasad v. Sheo Dayal[2], the custom has been defined as ‘Rule which in
a particular family or in a particular district or in a particular sect, class or
tribe, has from long usage obtained the force of law.’ Citing Hur Prasad
v. Sheo Dayal[3], Sir Hari Singh Gour states that, ‘Custom is an
established practice at variance with the general law.’

Citing the Tanistry Case (1908), Dav. 29, Viner states that, “A custom, in
the intendment of law, is such a usage as hath obtained the force of law
and is in truth a binding law to such a particular place, persons and
things which it concerns. But it is ius non-scriptum and made by the
people only of such places where the custom is.”

In Tanistry Case, the custom is further described in these words “it is jus
non scriptum and made by the people in respect of the place where the
custom obtains. For where the people find any act agreeable to their
nature and disposition, they use and practice it from time to time, it is by
frequent iteration and multification of the act that the custom is made and
being used from time to time which memory runneth not to the contrary
obtained the force of law.”[4]

The Hindu Code defines custom and usage as “Any rule which, having
been continuously and uniformly observed for a long time, has obtained
the force of law…in any local area, tribe, community, group or family, if it
is certain and not unreasonable or opposed to public policy.”[5]

Customs is considered to be the oldest source of law. In ancient times,

there were no codified laws to regulate society. Instead, there existed
customs which comprised of acts which have been done so repeatedly
that they are spontaneously followed by all. The king never made any
laws. The customs made by the people were considered to be the law of
 the land. With the passage of time, it was recognized that the customs
are vague and uncertain. This issue was resolved by formal recognition
of customs by the sovereign. This is how customs got converted into
law.

 CLASSIFICATION OF CUSTOMS

Taking into consideration what has been discussed above, customs are
habits of action or patterns of conduct which are generally observed by
classes or groups of people. Such habits of action or pattern of conduct
(customs) can be classified into–

1) Customs without binding obligation and

2) Customs with definite binding obligation.

a). Customs without Binding Obligation

Customs which are concerned with less important aspects of social life
are covered in this category. Most societies have certain customs with
respect to the kind of dress one is expected to wear on various
occasions. For example, wearing a black dress at a funeral ceremony in
England but, white in India. Well-established customs are observed at
burials and other solemn ceremonies, etc.

A large section of people observes customs of certain kind for the

funeral of their deceased relatives, irrespective of the fact that it may not
be affordable for them. Whatever it may be, none of these customs is
completely obligatory / binding. Their sanction, in many cases though
powerful, is imperfect.

No man is under an absolute compulsion to give a feast at the time of

marriage or after the funeral of the deceased relative, etc. All these
customs are followed due to the fear that non-observance of such
customs may lead them to be socially outcaste. Such customs are non-
binding in the sense that they are not obligatory to follow.

People follow them due to the social pressure of public opinion. When a
custom of this type is violated, society usually reacts by showing social
displeasure or disapproval; but it has no sanction in the strict sense of
the term. Such customs can be called as ‘Social Customs’.

b). Customs with Definite Binding Obligation

 In this category those customs are covered “which in a more definite
and stringent sense are regarded as the specific duties and obligations
of men. Such customs may regulate the obligation of marriage and the
upbringing of children, the transmission of property at death, or the
modes of consummating and fulfilling agreements.

Such customs do not pertain to the sphere of social formalities, outward

decorum, or aesthetics; rather, they are concerned with the serious
business of society, the work that must be accomplished in order to
secure and guarantee satisfactory conditions for collective life.”

Customs covered in this category are backed by sanction which is more

certain in its operation than any other social customs. Such customs, if
satisfy certain standards or tests, acquire legal character, and their
violation is met by typical sanctions employed by the legal order. Such
customs are enforceable and obligatory.

Such customs can be further divided into Legal Customs and

Conventional Customs. For the purpose of the present study the
researcher is more concerned with Legal Customs than to mere Social
Customs.

Customs with Definite Binding Obligation

1. Legal customs

‘Legal Custom’ occupies a place by itself in that its sanction is more

certain in its operation than that of any other. “The effect of sanction”,
writes Sir C. K. Allen, “is negative rather than positive: if the custom is
not followed, certain desired consequences will not be brought about.”
For example, if a particular custom is not followed, the marriage will not
be treated as valid; the desired consequences of becoming a husband
and wife will not be brought about. Children out of such marriage will not
be treated as legitimate. Law, back by the opinion at the earlier stage
and at later stages by the tribunals of the community, will forbid those
relationships to be affected.

Customary rules are ‘legal’ in the sense that they are binding and
obligatory rules of conduct (not merely of faith and conviction), and the
breach of them is a breach of positive duty. In legal custom no option,
however small, is left to the individual, as in other social customs. Legal
 custom is operative per se as a binding rule of law, independent of any
agreement on the part of those subject to it. According to Salmond, ‘A
legal custom is one whose legal authority is absolute—one which in itself
and proprio vigore possesses the force of law.’ Legal custom may further
be classified as General Custom and Local Custom

1. General customs

General custom is that which prevails throughout the country and

constitutes one of the sources of the law of the land. It prevails
throughout the territory of the state and is observed by all the members
of the society. There was a time when common law was the same as the
general custom of the realm followed from ancient time.

i. 2. Local customs

A local custom is a custom confined to a locality and constitute a source

of law for that locality only. According to Salmond, “The term custom in
its narrower sense means local custom exclusively.

Tribal custom’, says Sir Hari Singh Gour, ‘is a custom confined to a
particular tribe, caste or community.’ Tribal custom, in certain cases,
applies to geographical local custom where the population of a particular
district or town or region is covered by the said tribal community at the
most. However, in other cases it applies both to the geographical locality
and the personal locality.

Customs and the customary laws of the Adivasis, the subject-matter of

the present study, fall in the latter category.

 Conventional customs

According to Salmond, ‘A conventional custom is one whose authority is

conditional on its acceptance and incorporation in agreement between
the parties to be bound by it.’ He further stated that, ‘In the language of
English law the term custom is more commonly confined to legal custom
exclusively, while conventional custom is distinguished as usage.
Usages are not laws ex proprio vigour.’

A conventional custom or usage is a practice established by having

been followed for a considerable period and arising out of a contract
between the parties; it does not arise out of its own force. Thus, a usage
or conventional custom is an established practice which is legally
binding, not because of any legal authority independently possessed by
 it, but because it has been expressly or impliedly incorporated in a
contract between the parties concerned.

Conventional custom may, again, be divided into two types—General

Conventional Customs and Local Conventional Customs. General
Conventional Customs are extensively practiced throughout the realm;
whereas Local Conventional Customs are limited to a place or to a trade
or transaction.

 TRANSFORMATION THEORY OF CUSTOM INTO LAW

The general criterion which distinguishes social customs from legal

custom has already been discussed above. The lines of demarcation
between the two are fluid. While some customs are non-legal, in the
sense that they do not have absolute binding obligation whereas, some
customs have absolute binding obligation. Customs having absolute
binding obligation are legal customs and are elevated to the status of
law if they satisfy certain judicial tests. At this point, it becomes
necessary to consider the conditions under which the transformation of
‘custom’ into ‘law’ takes place. Broadly speaking, there are two theories
regarding the question as to when custom is transformed into law. Those
are the Historical and the Analytical theory of law.

a). Historical School

Edmund Burke, who laid down the foundation of the historical school,
pointed to history, habit and religion as the true guides to social action.
Friedrich Carl Von Savigny and George Friedrich Puchta are the main
exponents of the historical school of law.

This school maintains that, law was primarily the expression of the legal
convictions and practices of the community. According to this school,
custom carries its own justification, because it would not exist at all
unless some deep-seated needs of the people or some native quality of
temperament give rise to it. The growth of law does not depend upon the
arbitrary will of any individual. It grows as a result of the intelligence of
the people. Custom is derived from the common consciousness of the
people. It springs from an inner sense of right. Law has its existence in
the general will of the people. Savigny calls it Volkgeist.

According to Savigny, ‘Law was not something that should be made

arbitrarily and deliberately by a lawmaker’. It was a product of “internal,
silently-operating forces.” It was deeply rooted in the past of a nation,
and its true sources were popular faith, custom and the common
consciousness of the people. Like language, the constitution, and the
manners of a people, law was determined above all by the peculiar
character of a nation, by its national spirit (Volkgeist). To him, “law like
language stands in organic connection with nature or character of the
people and evolves with the people.”

Therefore, according to Savigny, the true basis of positive law is its

existence, its reality, in the common consciousness of the people.
Custom therefore is the badge and not the ground of origin of positive
law.

According to Sir Henry Maine, “Custom is conception posterior to that of

Themistes or judgments.” Themistes were judicial awards which were
dictated to the King by the Greek goddess of justice. He explained,
“Themistes, Themises, the plural of Themis, are the awards themselves,
divinely dictated to the judges.” Brown also maintains that, “Custom is
often posterior to judicial decisio. Under the pretence of declaring
custom, judges frequently give rise to it.”

The Historical theory of law has been criticized by many scholars and
jurists. Without disrespect to the scholarly genius of Savigny and his
followers, Allen criticizes their view as, ‘Many customs which have taken
deep root in society do not appear to be based on any general
conviction of their rightness or necessity, or upon any real or voluntary
consensus utentium.’

Slavery, for example, was almost the universal practice of the ancient
world. Slavery is frankly admitted being ‘contra naturam’, whereas liberty
is a ‘naturalis facultas eius quod caique facere libet.’ The truth is that
slavery was a custom based upon the needs not of a popular majority
but of a ruling minority. Many customs, again, says Allen, are so
essentially local in origin that they cannot be said to arise from any
widespread conviction. The reason and utility on which (such) customs
rest often arise from purely local conditions, and not from any
widespread Geist. In cosmopolitanism of commercial customs and many
other customs the Volkgeist loses much of its meaning.

b). Analytical School

Austin, one of the main priests of the Analytical school, denies customs
the force of law until they have been expressly recognized by the
sovereign. This is consistent with his general doctrine of sovereignty, for,
without the cachet of supreme authority, custom cannot be conceived as
a command. To him a customary practice is to be regarded as a rule of
positive morality unless and until the legislature or a judge has given it
the force of law.

According to this view, habitual observance of a custom, even though

accompanied by a firm conviction of its legally binding character, does
not suffice to convert the custom into law; it is the recognition and
sanction of the sovereign which impress upon the custom the dignity of
law. The sovereign may abrogate custom. A custom is law only because
the sovereign allows it to be so. Custom is a source of law and not law
itself.

According to Austin, “A customary law may take the quality of legal rule
in two ways: It may be adopted by a sovereign or subordinate legislature
and turned into a law in the direct mode (statute law) or it may be taken
as a ground of judicial decision, which afterwards obtains as a precedent
and in this case it is converted into a law after judicial fashion. In
whichever of these ways it becomes a legal rule, the law into which it is
turned emanates from the sovereign.”

Analytical theory has also been criticized by many scholars and jurists.
According to Allen, “custom grows up by conduct, and it is therefore a
mistake to measure its validity solely by the element of express sanction
accorded by courts of law or by any other determinate authority. The
characteristic feature of the great majority of customs is that they are
essentially non-litigious in origin.

They arise not from any conflict of rights adjusted by a supreme arbiter,
nor from any claim of meum against tuum, but from practices prompted
by the convenience of society and of the individual, so far as they are
prompted by any conscious purpose at all.”

He further stated that, the starting-point of all custom is convention

rather than conflict, just as the starting-point of all society is cooperation
rather than [Link] conclude, both the theories contain some
element of truth but that is only partial and not the whole truth. Austin
denies customs the force of law.

He calls it a ‘positive morality’. But, according to Allen, Austin ‘failed to

explain satisfactorily why the body of rules which he classified as
‘positive morality’ lacked the true characteristic of law.’ This is true,
 especially when customs grow up by conduct and are derived from the
common consciousness of the people.

Therefore, it is a mistake to measure its validity solely by the elements of

express sanction accorded by courts of law or by any other determinate
authority. But it is also true that many customs do not appear to be
based on general conviction of their rightness or necessity, or upon any
real or voluntary consensus lutetium.

It also appears that the historical school has undermined the creative
role of the judges in molding and shaping the customs. In India,
especially, in order that a custom may have the force of law, it is
necessary that it should satisfy all the essentials or requirements of a
valid custom.

 CASE LAW OF CUSTOMARY LAW

In State of Bihar v. Subodh Gopal (AIR 1968), the Supreme Court held
that a customary right in the exercise of which the residents of a locality
were entitled to excavate stones for purposes of trade (and not for
domestic or agricultural purposes) would ex facie be unreasonable,
because the exercise of such a right ordinarily tends to the complete
destruction of the subject matter of the right. The custom was therefore
unreasonable.

The Supreme Court in M.C. Mehta v. Kamal Nath and others (1997-
ISCC 388) had ruled that the ‘doctrine of public trust’ applies to natural
ecosystems and the government as public trustee should protect the
same for the benefit of the society at large and that private commercial
and industrial establishments should not be allowed to misappropriate
them. The judgement is a reassurance of people right to their commons.
The common-land case of Karnataka represents another case of
people’s resistance to the take-over of common property resources by
the state for the benefit of commercial corporations.

DIFFERENCE BETWEEN LEGISLATION AND CUSTOMARY LAW

1. Legislation has its source in theory whereas customary law grows out
of practice.
2. The existence of Legislation is essentially de Jure whereas existence
of customary law is essentially de Facto.
3. Legislation is the latest development in the Law-making tendency
whereas customary law is the oldest form of law.
 4. Legislation is a mark of an advanced society and a mature legal
system whereas absolute reliance on customary law is a mark of
primitive society and under-developed legal system.
5. Legislation expresses relationship between man and state whereas
customary law expresses relationship between man and man.
6. Legislation is precise, complete and easily accessible but the same
cannot be said about customary law. Legislation is jus scriptum.
7. Legislation is the result of a deliberate positive process. But customary
law is the outcome of necessity, utility and imitation

 3 JUDICIAL PRECEDENTS

In almost all legal systems, the judges take guidance from the previous
decisions on the point and rely upon them. But the authority of such
decisions is not the same in all the legal systems. In most of the
countries including India, acquire their knowledge of the law through
decisions of higher tribunals than from anything else. Such decisions are
compiled and published in reports. These reports are very valuable from
the legal literature perspective. These decisions are very efficient in
deciding cases of subsequent cases of similar nature. They are called
judicial precedents or precedents.

Definition of Precedent

In general English, the term precedent means, ‘a previous instance or

case which is, or may be taken as an example of rule for subsequent
cases, or by which some similar act or circumstances may be supported
or justified.’

 According to Gray, ‘precedent covers everything said or done, which

furnishes a rule for subsequent practice.’
 According to Keeton, ‘a judicial precedent is judicial to which authority
has in some measure been attached.’
 According to Salmond, ‘in a loose sense, it includes merely reported
case law which may be cited & followed by courts.’

In a strict sense, that case law which not only has a great binding
authority but must also be followed.

 According to Bentham precedents are ‘Judge made Law.’

 According to Austin precedents are ‘Judiciary’s Law.’

In general, in the judicial field, it means the guidance or authority of past

decisions for future cases. Only such decisions as lay down some new
 rule or principle are called judicial precedents. The application of such
judicial decisions is governed by different principles in different legal
systems. These principles are called ‘Doctrine of Precedent’. For this
case to be held, first such precedents must be reported, maybe cited
and may probably be followed by courts. Secondly, the precedent under
certain circumstances must be followed.

Thus, it can be inferred that precedents are:

 Guidance or authority of past decisions for future cases.

 Precedents must be reported, maybe cited and may probably be
followed by courts.
 Precedents must have opinio-juris.
 These must be followed widely for a long time and must not violate any
existing statue law.

A Key principle of Judicial Precedent

 Consistency
 Hierarchy
 Bound by its own decision

 IMPORATANCE OF PRECEDENT

a). In the Ancient Legal System:

The importance of the decisions as a source of law was recognized even

in very early times. In the past, there have been numerous instances of
this. Sir Edward Coke, in the preface of the sixth part of his report, has
been written that Moses was the first law reporter. ‘In the case of the
daughters of Zelophehad, narrated at the beginning of the twenty-
seventh chapter of the book of numbers, the facts are stated with the
great clearness and expressly as a precedent which ought to be
followed.’

Even in the Mahabharata, it has been stated that ‘The path is the right
one which has been followed by virtuous men.’ This may be interpreted
as giving a theory of precedent. In ancient legal systems of Babylonia
and China, the judicial decisions were a great authority, and later, they
were embodied in code law.

b). In the Modern Legal System:

 Among the modern legal systems, the Anglo – American law is judge
made law. It is called ‘Common Law’. It developed mainly through
judicial decisions. Most of the branches of law, such as torts, have been
created exclusively by judges. The Constitutional Law of England,
especially the freedom of the citizens, developed through judicial
decisions.

According to Tennyson, “where freedom slowly broadness down, from

precedent to precedent.”

Not only in the municipal law but in international law also, the precedents
have their importance. The decisions of the International Court of Justice
are an important source of International law. These precedents have
been recognized by the International Court of Justice by Article 38(2)(d)
of the Statue of the International Court of Justice. Further, Article 59 of
the same holds that the decisions of the court only have persuasive
value for future cases and hence the International Court of Justice is not
bound by its own decisions in deciding similar cases in future. It holds
that the decision is only binding the parties to the case.

The above brief discussion indicates the role and importance of

decisions on precedents in the development of law and their importance
as a source of law at the municipal as well as the international level.

1. Persuasive precedents

Persuasive precedent (also persuasive authority) is precedent or other

legal writing that is related to the case at hand but is not a binding
precedent on the court under common law legal systems such as
English law. However, a persuasive authority may guide the judge in
making the decision in the instant case. Persuasive precedent may
come from a number of sources such as lower courts, “horizontal”
courts, foreign courts, statements made in dicta, treatises or law reviews.
In Civil law and pluralist systems, as under Scots law, precedent is not
binding but case law is taken into account by the courts.

 Lower Courts

A lower court’s opinion may be considered as persuasive authority if the

judge believes they have applied the correct legal principle and
reasoning.

 Higher Courts in other Circuits

 A court may consider the ruling of a higher court that is not binding. For
example, a district court in the United States First Circuit could consider
a ruling made by the United States Court of Appeals for the Ninth Circuit
as persuasive authority.

 Horizontal Courts

Courts may consider rulings made in other courts that are of equivalent
authority in the legal system. For example, an appellate court for one
district could consider a ruling issued by an appeals court in another
district.

 Statements made in obiter dicta

Courts may consider obiter dicta in opinions of higher courts. Dicta of a

higher court, though not binding, will often be persuasive to lower courts.

The obiter dicta are usually, as its translation “other things said”, but due
to the high number of judges and several personal decisions, it is often
hard to distinguish from the ratio decidendi (reason for the decision). For
this reason, the obiter dicta may usually be taken into consideration.

 Courts in other countries

An English court might cite judgments from countries that share the
English common law tradition. These include other commonwealth
states (for example Canada, Australia, or New Zealand) and, to some
extent, the United States.

It is controversial whether it is appropriate for a U.S. court to consider

foreign law or precedents. The Supreme Court splits on this issue. In
Atkins v. Virginia, for example, the majority cited the fact that the
European Union forbid death penalty as part of their reasoning, while
Chief Justice Rehnquist denounced the “Court’s decision to place weight
on foreign laws.” The House of Representatives passed a nonbinding
resolution criticizing the citing of foreign law and “reaffirming American
independence.”

 General Principle of Doctrine of Judicial Precedent

There are two rules that apply to the doctrine of judicial precedents:

1. The first rule says that a court which is lower in a hierarchy is

completely bound by the decisions of courts which are above it.
 2. The second rule states that higher courts are bound by their own
decision in general in matters of related to precedence

High Court

 The decisions of the high court are binding on all subordinate courts. In
case of a conflict between two benches of similar authority, the latter
decision is to be followed.
 The more the number of judges on a bench, the higher their authority.
 The decision of one high court is not binding on other high courts.
 The Supreme court is the highest authority and its decisions are binding
on all other courts. Article 141 of the constitution says that any law
decided by the supreme court shall be binding on all courts of the
country.

Supreme Court

Article 141 states all courts are legally bound to the Supreme Court
judicial decisions except for Supreme Court itself. The Supreme Court is
not bound by its own decisions.

However, the Supreme Court recognises that its earlier decisions cannot
be deviated from, except in case of extenuating circumstances. If an
earlier decision is found to be incorrect, the Supreme Court will deviate
from it.

3.3 TYPES OF PRECEDENTS

1. Declaratory and Original Precedents

As John William Salmon explained, a declaratory precedent is one

where there is only application of an already existing rule in a legal
matter.

Whereas, an original precedent is one where a new law is created and

applied in a legal matter. Original precedents are responsible for the
creation of new laws.

 Persuasive Precedents

A persuasive precedent is a type of precedent where the judge is not

required to follow the precedent in a legal matter but will take the
precedent heavily into consideration.
 So a persuasive precedent is not a direct source of law but is considered
a historical source of law. In India, the decisions of one high court can
act as persuasive precedents in other high courts.

 Absolutely Authoritative Precedents

In an absolutely authoritative precedent, the judges have to compulsorily

follow the judicial decision of the precedent in a case of law.

In other words, even if the judge finds the precedent to be a wrong

judgment, he is legally bound to give the same judicial decision.

For e.g. – Every court in India is absolutely bound by decisions of courts

superior to itself because of hierarchy.

 Conditionally Authoritative Precedents

A conditionally authoritative precedent is one where generally the

precedent is authoritative but in certain special circumstances, like a
supreme court decision, it can be disregarded. The court can disregard
the decision if it is a wrong decision or goes against the law and reason.

3.4 CASE LAW OF JUDICIAL PRECEDENT

In the case of Commissioner of Income Tax vsM/s Sun Engineering

Works Private Limited AIR 1993, SC 43, the Hon’ble Apex Court held
that “while applying the decision to a later case, the court must
carefully try to ascertain the true principle laid down by the decision of
the Supreme Court and not to pick out words or sentences from the
Judgment divorced from the context of the question under
consideration by the court to support their reasoning.”

It is very clear that only those statements in an earlier decision which

may be said to constitute the ratio decidendi of that case are binding.
Statements which are not essential or necessary for deciding the later
cases, such non-authoritative statements are called as obiter dicta.

The Hon’ble Apex Court in Megh Singh v. State of Punjab [AIR 2003 SC
3184] has held that, “circumstantial flexibility, one additional or
different fact may make a world of difference between conclusion in two
cases or between two accused in the same case. Each case depends
on its own facts and a close similarity between one case and
another is not enough because a single significant detail may alter
the entire aspect.”
 In this regard the FiveJudges Constitution Bench of Honourable
Supreme Court in case of Central Board of Dawoodi Bohra Community
v. State of Maharashtra, (2005) 2 SCC 673 has observed that, “The law
laid down by this Court in a decision delivered by a Bench of larger
strength is binding on any subsequent Bench of lesser or coequal
strength”.

SECONDARY SOURCES OF INDIAN LAW

Secondary sources of Indian law are English Law, Common law, Equity,
Law merchant, Statute law, Justice, equity, and good conscience. In the
case of absence of statutory or personal law, the Indian courts follow the
decision of a case known as ‘Justice, Equity and Good Conscience.

1. English Law

The chief sources of English Law include

 Common Law

Common law, in this case, refers to the principles of law that have been
evolved by judges through their case judgements. These statements
have been made and improved over a number of years to better perfect
them.

Thus, common law consists of a body of rules, which have been defined
by customs, judicial decisions and old scholarly works in the law.
Common law is the unwritten law of English which applies to everyone in
the country

 Law Merchant

Law Merchant is the main source of Mercantile law. It refers to those

customs and rules that apply to traders and businessmen on their
dealings and tradings with each other.

 Principle of Equity

The principle of Equity refers to a set of rules, which neither originated

from customs nor statutory law. Equity rules were formed on the basis of
dictates of conscience which had been decided in the Courts of
Chancery.
 In cases, where Common Law was not applicable, the Chancellor
presided over such cases in special courts called ‘Equity Courts’. Equity
courts had a separate existence from the Common Law Courts in
England. These ‘Equity Courts’ acted on a number of customs like :

 He who seeks equity must do equity.

 He who comes to equity must come with clean hands.

 Statute Law

Statute law is that law that has been created by the legislation. A statute
is a formal act of the legislature in written form. It has also become an
important source of Mercantile Law.

A statute or written overrides any unwritten laws, which are Common

Law and Equity. Statutory laws are the basic framework of the modern
legal system.

 Other source of English Law is Justice, Equity, and Good

Conscience

The theme of justice, equity, and good conscience first came into being
through Impey’s Regulation of 1781. In the case of absence of statutory
or personal law, the Indian courts follow the decision of a case known as
‘Justice, Equity and Good Conscience’, which in this case refers to
English law as far as it is applicable to the Indian context.

Ancient Hindu law had their own concept of ‘Justice, Equity and Good
Conscience’. In its modern version counterpart in the Indian legal
system, it owes its origins to the British rule in India.

The High Courts established by the British by the British administration

stated that when the law was unclear or silent on an issue, the issue
would be decided in accordance with the principles of ‘Justice, Equity
and Good Conscience’.

Justice, equity and good conscience have generally been interpreted as

English laws and rules that are applied when any written law is not
applicable to a legal matter. The court also uses ‘Justice, Equity and
Good Conscience’ in the absence of Hindu law in matters relating to
personal laws.

CONCLUSION
“It is odd, when one thinks of it, that there are people in the world who,
having renounced all the laws of god and nature, have themselves made
laws which they rigorously obey”- Pascal

In order to interpret any law, it is important to understand the source of

the law. Therefore, the topic of sources of law has received much
attention from several jurists, thinkers and legal theorists. The most
widely accepted source of law is legislation. The position of customs, the
most important source of law in ancient times, has been reduced to a
traditional one in the modern times. With the growing popularity of the
idea of constitutionalism, legislations and precedents occupy the centre
position amongst all the various sources of law.

It is quite natural that laws which derives its source from rituals, believes
and also from particular social system are subject to change. But the
main issue which is to be noted is that whether the reforms are timely or
keeping pace with the social change. If it is not so that it result in
hindering social progress. Law Reforms simply aiming at the practicality
is very easy.

But ignoring sociological and philosophical background of society will do

little benefit to the people. Every legislation affecting the social life
influences our value system. This will take place directly or indirectly. If
the law-making authority is not considering this fact it may affect the
future social set up. Therefore, analysis of the legal system with the help
of philosophical tools has its relevance. Major laws existing in India
came into force during the period of British rule. No important
reformations except some meagre changes took place. Certain laws
turned irrelevant now. There are also laws which were enacted in a
particular social set up of our country. Now these laws were also
becoming impractical. One cannot analyse all these facts in a brief
study. Constitution is the major guideline of Indian legal system.

Though there are laws enacted before the commencement of the

constitution, they also come under the purview of the constitution. So,
the relevance of constitution in our legal system is very important.
Constitution is a declaration for the people by the constituent assembly
representing the people. It is more than a declaration. Former Prime
minister Jawaharlal Nehru viewed it as a “declaration, a firm resolve, a
pledge, an undertaking and for all of us a dedication”. For the same
reason the reformation of legal system is depended on the flexibility of
the Constitution also. So, every discussion regarding Indian legal system
start from the nature and scope of constitution. Likewise, penal laws,
family laws, human rights issues etc. should be analysed.

Sources of law must not construe as the authority sanctioning or

enforcing a law. It should mean the agency from which the law
originates, so say from where the rule of the action has come into
existence. That is why Giorgio Del Vecchio regards the nature of the
man as the sources of law.

In the contemporary world, a law is made by legislation, the decisions of

apex courts are also law, custom play a vital role too. In the absence of
these, courts take opinions of renowned personalities on a issue, foreign
decision, morals, principles of equality are also taken into consideration
where there exists no direct authority. Mainly there belong two classes of
source i.e binding and persuasive. Binding includes legislation,
precedent and custom while rest source is percussive. Once binding
source are discussed and referred to, once binding source are
exhausted.

BIBLIOGRAPHY

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