CHAPTER - 2

THE GENERAL CONCEPT OF CUSTOMARY LAW

 CHAPTER -2

THE GENERAL CONCEPT OF CUSTOMARY LAW

In order to understand the present w ork w ith m ore clarity, it is intended to

briefly analyze the conceptual framework on the jurisprudence o f customary law.

It is, also greatly felt that giving a brief general account to that aspect would surely

throw some light in the following chapters where critical examination o f the Tangkhul

( Naga) customary law is made. In this regard, an endeavour is being made to study

and evaluate various opinions o f experts, writings o f Jurists, Judges, legal luminaries

and different court decisions concerning customs and customary laws. Hence, the

universal understanding o f customary laws; its meaning, origin, classification,

essentials (importance), transformation theories, Customary International Law,

jurisprudential test o f Tangkhul customary laws and proving o f a custom in courts

are summarily dealt with in this chapter.

Conceptual Meaning Of Custom

Customary law as defined and opined by different scholars, jurists and authors

are being discussed in brief.

A ccording to Sir John Salmond1, “Custom is frequently the embodiment o f

those principles which have commended themselves to the national conscience as

principles o f justice and public utility.” H e further says that such national concience

may well be accepted by the court as an authoritative guide, and o f this conscience

national custom is the external and visible sign. Custom is the rule o f conduct which

the governed observe spontaneously and not in pursuance o f the law settled by a

1. Fitzgerald, J ( M.A)., Salmond on Jurisprudence, Universal Law Publishing [Link]. Ltd (12th edition) Indian
Economy Reprint, 2002, P. 31.
 28

political superior says John Austin2. According to him, Customary laws as being

the rules o f positive morality arise from the consent o f the governed and not from

the position or establishment o f political superiors. But considered as moral rules

turned into positive laws, customary laws are established by the state... established

by the state directly when the customs are promulgated in its statutes, circuitously

when the customs are adopted by its tribunals3. Carleton Kemp Allen 4 also defines

custom as a legal and social phenomenon that grows up by forces inherent in society,

forces partly o f reasons and necessity and partly o f suggestion and imitation.

According to Prof. T.E Holland, Custom is a generally observed course o f conduct.

The best illustration o f the formation o f such habitual course o f action is the mode

in which a path is formed accross a common;\ One man crosses the common in the

direction which is suggested either by the purpose he has in view or by mere accident.

If others follow in the same tract which they are likely to do after it has once been

trodden - a path is made5. J.C. K arter 6 says that the simplest definition of custom

is that it is the uniformity o f conduct o f all persons under like circumstances.

According to G.W. Keeton7. Customary law may be defined as those rules o f human

action, establishment by usages and regarded as legally binding by those to whom

the rules are applicable, which are adopted by the courts and applied as sources of

law, because they are generally followed by the political society as a whole, or by

some part o f it. In the Tanistry case8, custom was described in these words: it is jus

non scriptum and made by the people in respect o f the place where the custom
2. Tandon, Mahesh Prasad.. Jurisprudence (Legal theory), Allahabad Law A geiic\. (5th Edition) Reprint loss,
R 241.
3. Austin J„ Lectures on Jurisprudence (5th Edition). 1911. P. 101.
4. Allen, C.K., Law in the Making. 7th Edition, Oxford University press, 1964. Universal law publishing ( «>. pw
Ltd. Delhi, First Indian Reprint, 1997, R 111.
5. Holland T.E. (Prot)., The elements o f Jurisprudence, Oxford (1924). Universal Law Publishing Co. P\t. I id
Delhi, First Indian Reprint 2001 pp. 56-63
6. Mahajan, V.D (Dr).. Jurisprudence and Legal Theory (full edition). Eastern Book Company Lucknow, Reprint.
2001, P.254.
7. Ibid.
8. Tanistry case, 30 F.R, 516.
 29

obtains. For where the people find any act agreeable to their nature and disposition,

they used and practised it from tim e to tim e, it is by frequent iteration and

multiplication o f the act that the custom is m ade and being used from time to time

which memory runneth not to the contrary obtains the force o f law. M eaning o f

custom does not confine to singular definition. Imitation also plays an important

role in the growth o f a [Link] imitation may very often be guided purely by

religion or superstitious adherence to a course o f conduct. In early political societies

the king or the head o f the society did not make laws but administered justice

according to the popular notions o f right and wrong, whichever were enshrined in

the course o f conduct pursued by people- in general. W hat was accepted by the

generality o f the people and embodied in their customs was deemed to be right

and which was disapproved by them or not embodied in their customs was deemed

to be wrong.

The sociological view, so far the custom is concerned is different. Ehrlich,

one o f the exponents o f sociological school o f jurisprudence gives a step ahead to

evaluate customs w ith greater emphasis than statute. H e defines custom as the

living law o f the people based on social behaviour rather than the norms o f the

state. Norms observed by the people w hether in m atter o f religious habits, family

life or commercial relations are law, even if they are never recognised or formulated

by the norm o f the state .9 He further says, at present as well as at any other time

the centre o f gravity o f legal developmen lies not in legislation, nor in juristic

science nor injudicial decision but in society its e lf0. A ccording to Ehrlich, the

main defect o f historical school was that it did not draw a distinct line between

9. Friedman, W,, Law in the Changing Society, Universal Book House, Delhi, p 20.
10 Ehrlich, E„ Fundamental Principles of Sociology, p. 488.
 30

legal rules applied by the courts and legal arrangem ent existing in society. Former

one is artificial, a product o f human reason and logic, on the other hand later one

is spontaneous and natural. The rule o f law stands out from the rest in that these are

felt and regarded as the obligation o f one person and the rightful claims o f another.

They are sanctioned not by a definite social machinary o f binding force. The

ceremonial manners in which m ost transactions are carried out which entails

public control and criticism adds m ore to'their binding force.

The anthropological understanding o f custom also refers to the totality o f

socially acquired behaviour patterns which are supported by tradition and generally

exhibited by members o f society. The recent expressions such as culture and tradition

are the indications o f this sense. B ut one area o f anthropology in which the

expression custom still has currency is the comparative analysis o f legal and

political system. Custom is supported only by psychological constraints which

operate when the individual violates the custom and by the social disapproval which

deviation from custom may precipate. In contrast, laws have the additional coercive
„ t

support o f specific individual or groups who have an institutionally vested charge

to enforce conformity.11 In m odem anthropological jurisprudence it is universally

assumed that all customs are laws to the savage and that he has no law but his

customs. Primitive men obey a certain class o f custom for purely social reasons.

Religion, social sanctions, supernatural penalties, group responsibilities and

solidarity, taboo and magic are the main elements o f jurisprudence o f the savage

society.

Hindu ju risp ru d e n c e also acknowledges and accepted custom as a ju st

11. Wilke, Stanley., Custom in Encyclopaedia of Anthropology, 1976, p. 113.

 31

foundation o f many laws in every system o f jurisprudence. During the satra period,

the influence o f custom upon law was recognized by various sutrakars. Guatama,

the most ancient o f the sutrakars, stated - the custom o f countries, caste and families

which are not opposed to the sacred records have also authority12. Section 7 o f the

Hindu Code also defines custom as an established practice at variance w ith the

general law.13 This definition was made on the basis o f the decision o f the Privy

Council in Hurpurshad case14. Privy Council also pointed out that custom must be

ancient, certain and reasonable and being in the derogation o f general rules o f law,

must be strictly constructed. A ccording toM ayne, a b elief in the propriety or the

imperative nature o f a particular course o f conduct produces a uniformity o f

behaviour in following it; and a uniformity o f behaviour in following a particular

course o f conduct produces a belief that it is imperative or proper to do so. When

from either cause or from both causes, a uniform and persistent usage has moulded

the life and regulated the dealing o f a particular class or community, it becomes a

custom15.

Origin of Custom
It is said, custom is virtually as old as human society. It is the oldest form o f

law making. There cannot be any doubt to say that customary laws existed amongst

the people and the society long before nations or states came into being. In primitive

times, there was little organised sanction behind these customs as it is in a

modem state. It was, therefore, the necessity and the force o f public opinion which

ensured their compliance. There are different and divergent views as regard to the

origin o f customs.

12. Muila., Principles of Hindu Law (1982), p.66 (XI, 20 (SBE-Vol. V).
13. Gour, Hari Singh., The Hindu Code (1938), The Central Book Depot, Nagpur, (4th edition), p.88.
14. Hurpurshad v. Shea Dayal, 26 W.R. 55 (70) P.C.
15. Mayne Henry D., The Hindu Law and Usage ( 1950), pp. 63-64.
 32

According to Savigny, the great exponent o f the German Historical School,

custom is originated in Voksgeist which means the genius o f the people or the race

concerned. What the people thought to be good, righteous, just and beneficial,

they observed; their practice became custom16. According to the propounder o f

this school, customs is law yer se. A custom carries its justification in itself provided

it assumes the form o f volksgeist, as aforesaid. He further stated that ‘ law was

found, not made. Only when popular customs in the past articulated by lawyers, had

fully evolved, could and should the legislatures take action.17. Historical jurists,

thus, say that custom originated from the common consciousness o f the people.

However, Savigny’s view that custom springs from an inner sen3e o f right cannot

be substantiated. A s C .K A llen remarks; it is often asked whether conviction

generates practice or practice-conviction. I f emphasis is given too much on the

first alternative, this suggests that the community logically faces it’s problems and

devises self-consciously the best rules. This is a false picture- the growth o f much

custom is not the result o f conscious thought but o f tentative [Link] a

problem arises strife between two members o f the community- then an answer

must be found: but tact, a sense o f the merit, and an appreciation o f the strength o f

each faction play a greater part than any desire to find a rule that is logically

justifiable, but once a rule is adopted, practice generates conviction. To premitive

man as to the child, what has been done is the thing that ought now to be done.18

( Sir) Henry S. Maine, a historical exponent assumed that in the beginning

the judgements o f the Kings under devine inspiration were the sole basis o f customs.

This view shows a mark o f departure from that o f Von Savigny’s historical theory.

16. Sethna. M.J., Jurisprudence, Lakhani Book Depot, Bombay, Third Revised edition, 1973, p.243.
17. Friedman, W. [Link], p. 19.
18. Allen, C.K. [Link], p.83.
 33

According to Maine, the king awarded judgement inspired by the themis as a devine

agent, w hen a king decided a dispute by a sentence, the judgm ent was assumed to

be the result o f the divine inspiration from themis and a breach o f such judgm ent

was punished. Such judgment when came to use took the shape o f customs gradually.

Such judgements are naturally followed by the mass as if the king imposed it. Because

people w ill not impose liability upon themselves by their own will until they are

compelled by some authorities. The earliest notions w ith the conception o f law or

rule o f life are contained in the H om eric w ords as “Themis ’’ and “Themistes

Themis appears in the later Greek pantheon as the goddess o f justice. On the other

hand in the Iliad it is described as assesor o f Zeus. Accordingly, customs developed

on those devine judgm ents19. Ihering 20 supports the same view. H e says that people

will not impose liability upon themselves ( w hich the customs sometimes do) by

their own will until they are compelled by courts. Later on these judgments became

customs. J.C. Gray 21 too says that custom often arises from judicial decisions.

However, customs as a conception posterior to that o f themistes or judgm ents as

assum ed by M aine and others had lately been falsified by anthropological

researchers. As Holland rightly puts, a habitual course o f action once formed gathers
* *

strength and sanctity eveiy year. It is a course o f action which every one is accustomed

to see it followed: it is generally believed to be salutary and any deviation from it

is felt to be abnormal and immoral. It has never been enjoined by the organised

authority o f the state, but it has been unquestioningly obeyed by the individuals o f

which the state is composed. There can, in fact, be no doubt that customary rules

existed among peoples long before nations or states had come into being .22 The
19. Maine, Henry Summer., Ancient law (1948), Beacon Press, Boston PP.3-5.
20. Tripathi, Bijai Narain Mam., Introduction to Jurisprudence ( Legal theory), Allahabad Law Agency, Faridabad
(14th edition), Reprint 2003, p 149.
21. Ibid.
22. Holland T.E. [Link], pp 57-58
 34

generally observed course o f conduct which is the ch ief characteristic o f customs

originated, according to Holland, generally in the conscious choice o f the more

* p

convenient o f the two acts, though sometimes doubtless in the accidental adoption

o f one o f the tw o different alternatives; the choice in either case having been

deliberately or accidentally repeated till it ripened into habit.

In the words o f P. Vinogradofi23, the slightest actual investigation o f primitive

communities proves that custom is anterior to kings and courts. According to Paton,

custom is co-eval w ith the very birth o f the community24. H is views on the society

is mostly homogenous. W hen the society tends to become complex, the custom

also becomes less effective and loses its force. The test o f custom is a continued

observance and any custom exhypothesis cannot be suddenly created to meet a new

problem. W hen any problem arose, some solution was found out. Custom is useful

for situation that have already occured. It cannot be put into operation so far the

unforseen and future problems are concerned. H e further says, social customs

themselves obviously did not take their origin from an assembly or tribunal. They

grew up by gradual process in the households and daily relations o f the clans and

the magistrate only came in at a later stage, when the custom was already in operation,

and added to the sanction o f general recognition the express formulation o f judicial

and expert authority25. This m eant that custom originated in the actual practices o f

the people as also in what was imposed upon them by the rulers; and the judges

working on the ( raw ) materials o f customs fashioned them in the form o f laws

through the judicial recognition o f customs. Relating to the origin and development

o f custom, S. Roy also opined that - it is impossible to ascertain the precise

23. Vinogradoff, P., Problem of Customary Law, Collected Papers, ii, 420.
24. Paton, GW., A text Book of Jurisprudence ( 4th edition), Oxford, Clarendon Press (1972) p. 191.
25. Vinogradoff, P., Historical Jurisprudenc, i, 363.
 35

beginning or to discover the rudimentary growth o f an ancient long established

customs. It is o f such high antiquity that neither hum an memory nor historical

research can retrace it. Indeed on its antiquity and immemorial practicing depends

the goodness o f custom. But though w e are unable to trace origin o f a custom which

is enshrouded in the m ist o f ages, yet w e can ascertain the process by which a

certain rule o f conduct is generally established into a custom26.

Classification of Custom
Custom in its w ider sense may be divided into two classes; custom having

sanction and custom without sanction. Custom w ithuot sanction are those customs

which are non-obligatory. They are observed due to constant pressure o f the public

opinion. Austin termed them a s 4social custom’ or rule o f positive morality27. Custom

having sanction are on the other hand those customs which are enforced by the

state and the society. Custom having sanction may be divided into two classes; legal

custom and conventional custom. The researcher is more concerned to this type o f

customs in the present w ork rather than to mere social customs.

•* *

Legal Custom
A ccording to Salmond, a legal custom is one w hose legal authority is

absolute, that is, one which in itself and proprio Vigors posseses the force o f

law 28. It is that custom which is operativeper se as binding rule o f law, independently

o f any agreem ent on the part o f those subject to it. Legal custom may further be

divided as general customs and local customs. General custom is the custom

prevailing throughtout the entire realm and not limited to any locality, In other
26. Roy. S., Custom and Customary Laws in British India (1911), p.8.
27. Austin, I , [Link], p.101.
28. Fitzgerald, P. J. [Link], pp 192-193.
 36

words, it prevails through out the territory o f the state and is observed by all the

members o f a society. There was a time w hen common law was considered to be

the same as the general customs o f the realm followed from ancient time. According

to Salmond,29 general custom prevails throughout England and constitutes one o f

the sources o f the common law o f the land. H e further says that general custom

m ust be o f immemorial antiquity and reasonable. It m ust have existed in England

since 1189 A.D. K eeton30 also shares the above view o f Salmond and says that a

general custom m ust possesses five characteristic if i t i s t o b e t r u l y a source o f

law. Those characteristic a r e : it must b e reasonable, it m ust have been followed

and accepted as binding, it must not conflict w ith statute law and lastly it should not

be in conflict w ith the common law. In order that a general custom law may be

regarded as having force o f law, it is necessary that the custom is an ancient and

immemorial custom o f the realm; a recent practice can only be accepted if embodied

by agreement.31 This view was, however, subsequently altered in Goodwin’s case32

where it was held that even a recent practice can be accepted by the court, so as to

m eet the w ants and requirem ents o f trade in the varying circumstances o f

commerce. This decision was approved in Edelstein’s case33 in 1902 and in an

earlier case in 189434

« *

A local custom is that custom which prevails only in some defined locality

and constitutes a source o f law for that place. It is a custom Proprio Vigors, existing

irrespective o f any agreement. A ccording to Salmond,35 the term custom in its

29. Singh Avtar., Introduction to Jurisprudence, Wadhwa and Company Law Publisher, New Delhi, (First
edition), 2001 pp. 186-187
30. Ibid, p. 187.
31. Crounchv. Credit Frontier oj England, 1873, L,R,8, QB. 374
32. Goodwin v. Roberts, 1875, L. R. 10 Ex. 337; 33L.T. 272.
33. Edehtein v. Schuler, 1902,2KB 114
34. Bechuana!and Exploration Co. v. London Trading Bank, 1898,2 Q.B. 658.
35. Fitzgerald, PJ [Link], pp. 198-203.
 37

narrowest sense means local custom exclusively. In order that a local custom may
„ »

be valid and operative as a source o f law, it m ust conform to certain requirements

laid down by law. The requirements are such as; it must be reasonable, it must be in

conformity w ith statute law, it m ust be observed as o f right and it m ust be o f

immemorial antiquity. Local custom m ust also have a continuity, certainty and

capable o f peaceable enjoyment so as to persist its validity.

The w estern concept o f local customs which apply only to a defined locality

such as a district or a tow n do not similarly fall in Indian situation or for that matter

in the whole South East Asia. Local customs here imply to something more than a

geographical locality. In India, local customs may be devided into two classes.

Geographical (local) custom and personal (local) customs. These customs are law

only for a particular locality, sect or family.36

Section 273 o f the Hindu Code also defined tribal custom as a custom

confined to a particular tribe, caste or community.37Tribal custom, in certain cases,

applies to geographical local custom where the population o f 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.

The condition o f the Tangkhuls lies in the latter case. In England where there are no
«. »

tribe or caste, custom derives its sanctions not from the variable w ill o f a section

but from the conscious fixed will o f the whole community. Local custom exists

also in England but its sanction is the same and it is imposed on tire whole community

and on all to w hom it can apply, who may come w ithin the locality where it is in

36. Tripathi Bijai Narain Mani. [Link], p. 162.

37. Gour Hari Singh, [Link], p. 90.
 38

force .38 Every custom, says Prof. Allen, is in some fundamental respect an exception

from the ordinary law o f the land. Secondly, every custom is limited in its application.

It does not apply to the generality o f citizens but only to a particular class o f persons

or to a particular place .39 Common law, on the other hand, applies to the subjects

generally and is the ordinary law o f the realm.

Coventional Custom
A conventional custom or usage is a practice established by having been

followed for a considerable period o f time, and arising out o f contract between the

parties; it does not arise out o f its own force. A conventional custom is so called

because it is rooted in agreement or well established habits. In the words o f

Salmond40, a conventional custom is one whose authority is conditional on its

acceptance and incorporation in agreement betw een the parties to be bound by it.

In the language o f English law the term custom is more commonly confined to

legal custom which is also referred as custom simpliciter while conventional custom

is distinguished as usage. A usage or conventional custom is, thus, an established

practice which is binding not because o f any legal authority independently possessed

by it but because it has been expressly or impliedly incorporated in a contract

betw een the parties concerned. It is, therefore, an agreem ent or habit that a

conventional custom is based with. A conventional custom is, thus, an established

rule concerning trade, contract, sale o f goods etc. The rules o f sale o f goods,

negotiable instrument, agency and merchantile laws were in the beginning customary

in character which w ere later recognised and adopted by the courts before they

were codified.

38. Ellis, T.P., Notes on Punjab Custom, Civil and Military Gazette Press, Lahore, 1921, second ediction, p.4.
39. Allen C.K. [Link], p. 87. , ,
40. Salmond J., Jurisprudence (10th edition), 1984, p. 213.
 39

The development o f conventional custom essentially involves three stages.

In the first stage, it exists as a fact and its existence has to be proved by cogent

evidence to enable the court to act upon it. The usage may still be in course o f

growth and w ill require evidence for its support in each case. It is enough if it

appears to be so well known and acquisesced in, that it may be reasonably presumed

to have been an ingredient tacitly imported by the parties into their contract. The

second stage is reached when it is recognised by courts so that it’s proof is dispensed

with. In this way, it receives the authority o f precedents. The third stage o f historical

development o f conventional custom is its codification. After it has passed the first

two stages it is embodied in a statute. The law o f bill o f exchange and the law o f

marine insurance furnish examples o f their development through these three stages.

Conventional custom cannot operate as a source o f law in derogation o f the general

law o f the land w here the law is absolute admitting o f no modification by express

agreement to the contrary. But where the law is not absolute and permits o f being
* 9

modified by agreement, conventional law has the same force as agreement to that

effect .41

Conventional customs are o f two types; General and local conventional

customs. Local conventional custom are limited either to a particular place, or to a

particular trade or transaction. Conventional general custom on the other hand is

extensively practised through out the realm. For instance, usages on negotiable

instruments apply through out India. Some o f the conditions which are to be fulfilled

before a court treats the conventional custom as incorporated in a contract are; it

must be shown that custom is clearly established and fully known. Conventions

41. Tandon Mahesh Prasad [Link], p. 247.

 40

cannot alter the general law o f the land. Therefore, they are vafid only within the

area o f their observance. It must be reasonable and need not necessarily be confined

to a particular area. It may relate to any trade or commercial dealing which may be

national or even international.

According to Roscoe Pound42, four types o f so called customary law may be

noted. They are, a customary course o f popular actions, a customary course o f

administrative actions, a customary course o f advice to litigants or to tribunals by

those learned in the law, and a customary course o f judicial action. The second type

may be called administrative custom. It may grow into administrative law as has

tended to happen in some American Administrative agencies. The third type might

be called professional custom. It may develop into a traditional mode o f dogmatic

teaching and doctrinal writing, as at Rome. The fourth type might be called judicial

custom. It is a form o f law in the common law system and has been becoming one in

civil law countries. The three last named may grow up entirely apart from and

independent o f the first. In fact, it often grows up w ith respect to matters as to

which there is and can be no customary course o f popular action. The court in one

case held that judicial or administrative usage may grow up quite apart from popular

usage. B ut they may, on the other hand, recognize and apply such usage where no

applicable legal precept is at hand. Thus,'there may be a progress from custom o f

popular action o f law. The course o f action followed by the public may be a source

o f law. It may be noted, however, that while popular usage seized upon by the courts

as a rule o f decision may get the form o f law, it is no less true that repeated and well

known decision may give rise to popular usages based on and in recognition thereof .43

42. Pound Roscoe., Jurisprudence, Vol III, The Law Book Exchange, Ltd. New Jersey, U.S. Pp.396-397.
43. TysonvSmith 9A&E. 406,423; Mercery Denne (1905) 2 ch 534;Astrabuliav Kiamatulla, AIR 1937,
Cal. 245.
 41

Essentials of a Valid Custom

For a custom to receive legal recognition, it is necessary that it should possess

all the important essentials or requirements o f a valid custom. In this contemporary

society, it is observed that a spontaneous growth o f custom has come to a slow end.

In the m odem context, the society or for that m atter the court accorded recognition

only to those customs which have the essentials o f a valid custom. Custom does not

derive its inherit validity from the authority o f the court, and the sanction o f the

court is declaratory rather than constitutive. B ut in order to m erit recognition the

custom has to satisfy certain test, all o f which tend in one direction, that is, pro o f

o f the actual existence and operation o f the custom44.

It is equally very important to examine some o f the essentials o f a valid

custom so as to operate as a source o f law and law per se.

(a) Custom m ust be ancient

The first requirement o f custom is that it must be ancient. The w ord ancient

denotes that custom m ust be o f some antiquity. A custom to be valid must be

immemorial. A ccording to Blackstone, a custom in order that it may be legal and

binding m ust have been used so long that the memory o f man runneth not to the

contrary. So that if anyone can show the beginning o f it, it is no good custom45.

Salmond 46 also opined that custom in order to have the force o f law must have

existed for so long a tim e that, in the language o f the law, “the memory o f man

runneth not to the contrary.” Recent and modem custom is o f no account. In England,

the idea o f immemorial custom was derived by the law o f England from the canon

44. Allen, C.K. [Link], pp. 129-130.

45. Blackstone, W., Commentaries on the Laws o f England 1 p. 76.
46. Fitzgerald P.T. op cit, p.201.
 42

law, and by the canon law from the civil law. The expression “time immemorial” in

England basically m eant “time so remote that no living man can remember it or give

evidence concerning it” . Custom was immemorial when its origin was so ancient

that the beginning o f it was beyond human memory, so that no testimony was available

as to a time when it did not exist. Both in English and foreign law, however, the time

o f memory was extended by the allowance o f tradition w ithin defined limits. A

witness m ight testify not only to that which he had him self seen, but to that which

he had been told by other who spoke o f their own knowledge. In the course o f the

developm ent o f English law, a singular change took place in the meaning o f this

expression. The limit o f human memory ceased to be a question o f fact and was

determined by a curious rule o f law which still remains in force. Time o f legal

memory became distinguished from time o f human memory. English law has set an

arbitrary but necessary limit to ‘legal memory’ fixing it at 1189 AD, the year o f the

accession o f Richard-I. A custom cannot, therefore, be impugned by showing an

origin prior to 1189 AD. Invalidity o f custom for want o f antiquity can be established

by proving its non-existence at anytime between die present day and the twelve

century (1189) in England.

When custom is considered as an evolutionary phenomenon, the first question

is why it came to be accepted by courts as a law constitutive medium in the first

place. According to Dias,47there are two answers; before the common law had filled

out, the itinerant justices had to find the law somehow. In the absence o f a code,

local customs usually were the only available guides and the justices were glad to

avail themselves o f these. By doing this they also helped to win local confidence in

47. Dias, RWM,, Jurisprudence, Fifth edition, Aditya Books Private Ltd. New Delhi, First Indian Reprint, 1994,
p. 188.
 43

the royal system o f justice. For local people had built up expectations based on

local practices and to have ignored these, would have caused injustice. The only

question with which the judges o f old were concerned was whether a practice exerted

sufficient local pressure to be acceptable to them. A t that date, necessary conditions

which had to be fulfilled were obvious. The custom had to possess a sufficient

measures o f antiquity. Sufficient means that it m ust have existed since before

1189AD but this was by no means the. original interpretation. For instance, Prof.

Plucknett quotes A zo (d, 1230) who said “A custom can be called long if it was

introduced w ithin ten or twenty years, very long if it dates from thirty years, and

ancient if it dates from forty year.”48 The way this requirem ent works now is that

the onus o f proving antiquity is upon the person who sets up the custom, but his task

is helped by a presumption o f existence since before 1189 on proof o f the existence

o f the custom for a substantial period. The burden o f rebutting it, then, lies on the

other party.49

However, this law o f customary recognition in England is different from the

Indian law and others in South East Asia including that o f the Tangkhuls. In India too,

a custom to be valid should be ancient. Yet, the technical rule o f English law as to

legal memory, has no application to India. M eaning, the Indian precept o f time

immemorial o f custom need not be put in line with that o f the English. The courts

have time and again expressed an opinion that if a custom is established to be 100

years old or more, it is o f sufficient antiquity to be called ancient. Derrett thinks

that if it is 40 years old it is enough. Section 3(a) o f the H indu M arriage Act, 1955

lays down that custom to be valid must have been observed for a long time. Justice

48. Plucknett., A Concise History of Common Law, p. 308.

49. Simpson v. Wells (1872) LR 7 QB 214.
 44

Jayakar, delivering the judgem ent o f the Judicial Committee o f the Privy Council

in Mussammat Subham v. Nawab,50 observed thus : It is undoubted that a custom

observed in a particular district derives its force from the fact that it has, from long

usage, obtained in that district, the force o f law. It m ust be ancient but it is not the

essence o f the rule that its antiquity m ust in every case be carried back to a period

beyond the memory o f m an - still less that it is ancient in the English technical

sense. It will depend upon the circumstances o f each case. W hat antiquity must be

established before the custom can be accepted. W hat is necessary to be proved is

that the usage has been acted upon in practice for such a long period and with such

invariability as to show that it has by common consent, been submitted to as the

established governing rule o f the particular district. In a later case51, Sir George

Raukin said : In India, while a custom need not be immemorial, the requirement o f

long usage is essential since it is from this that custom derives its force as governing

the parties’ rights in the place o f the general law. In M adhavrao case 52 Justice

Kania held that the meaning o f the term ‘ancient’ in English law is not applicable to

custom in this countiy. The necessary p ro o f in each case w ill depend on the nature

o f the custom alledged, and the want o f instances or paucity thereof does not prevent

the court from upholding the custom if there is a general concensus opinion o f

person who are likely to know o f its existence, particularly when the evidence is all

in one direction. Justice Gajendragadkar said, [ I f ] in a particular case the party

pleading a custom has produced general evidence o f a respectable and reliable

character showing that the particular custom prevails in the community to which
. *

the witnesses belong and that the observance o f the custom is well known for a

fairly long period o f time, that evidence can be accepted in support o f the custom

50. ILR(1941)Lah. I54(P.C ).

51 BabaNarayan v. Saboosa (1943), 2 Mad. Lj. 186,189.
52. 1946,48 Bom. L.R. 196.
 45

pleaded. There is ho uniform rule in India regarding the time factor for which a

custom must have been in operation before it is legally recognised. All that the law

requires is that the custom must have been in existence from time immemorial,

that is, for a tim e as far back as one can remember, which again in England it has

been held to be as short as 20 years53 a period which the Privy Council regarded as

sufficient even for this country (India) upon which the Jury would, and indeed, should
. 9

presume its immemorial existence, provided there is no evidence to the contrary.

The period o f 20 years in England was fixed by the statute known as Lord Tenterden’s

Act.

The reason for not enforcing a m odem custom is that otherwise so many o f

the novel customs w ould become law. O f w hat use then would the value o f such

custom be? The law adopts sufficient methods o f protection against the development

o f vexatious acceptance o f m odem customs. W hat otherwise the value o f Judge

made laws have been? To keep the force and power o f precedent the law sees that

m odem or unreasonable custom should not be accepted.54 In the( words o f Allen, a

mere habit, practice or fashion which has for a number o f years nobody supposes to

be ipsofacto an obligatory custom, antiquity is the only reliable proof o f resistence

to the changing conditions o f different ages.55

(b) A Custom m ust be reasonable

Reasonableness is one essential o f a valid custom. Any party challenging a

custom m ust convincingly satisfy the court that the custom is unreasonable.

Nevertheless, it cannot be said that custom is always founded on reasons. No amount

53. Maharaja Mahtab v Government, 4 MiA, 466 (499), Brock lebank v. Thompson (1903), 2 ch. 344 (350).
54. Simpson v Wells 1872 L.R..7 QB. 214
55. Allen, CK. [Link], p. 128. „ ,
 46

o f reason can make a custom. W hat is reasonable or unreasonable is a matter o f

social values. It may differ from time to time, place to place and society to society.

Therefore, w hether or not a custom is reasonable is also determ ined by the

contemporary values o f every society, although there are certain rules or practices

which are considered unreasonable in all times and in all societies. The law courts

would not enforce unreasonable customs, for law will not allow what is unreasonable

or inequitable inspite o f the fact that the people or a class o f people in a locality

have given their long acquiescence to a particular practice, the court may disallow

that local custom if it finds that to allow it w ould do m ore harm than what might

result by its disallowance. The appropriate tim e to decide the reasonableness o f a

custom is the tim e o f its origin. Any custom that is opposed to the rule o f natural

justice, equity and good conscience should be regarded as unreasonable. A custom

allow ing sale o f a religious office w as held u n reasonable and, therefore,

unenforceable .56 Justice Parker observed in Johnson v. Clark57 that for a custom to

be good it must be reasonable or at any rate, not unreasonable. The words ‘reasonable

or unreasonable’ imply an appeal to some criteria higher than the mere rules or

maxims embodied in the common law, for it is no objection to a custom that it is

not in accordance with those rules or maxims. A custom should not then be repugnant

to reason. This reason, however, as Sir Edward Coke Points out, is not to be

understood o f every unlearned m an’s reason but o f artificial and legal reason

warranted by authority o f law, lex est summa ratio.58 The reasonableness o f a custom

should be judged with reference to the general principles which are at the root o f

the legal system. Thus, a custom is contrary to reason if it is oposed to the principles

o f justice, equity and good conscience, as aforesaid. A custom can be refused

56. Walstanton Ltd. v Newcastle under Lyme Corporation, 1940, A.C. 860.
57. (1908) I ch 303.
58. Co. Litt. 62 A
 47

recognition only w hen it is opposed to public policy and is manifestly repugnant to

right and reason. A s Salmond points out, before a custom is denied legal efficacy, it

must be found that the m ischief resulting from its enforcem ent outweighs the

detriment that w ould result from a nullification o f the natural expectation that an

established usage w ould have continuance in the future .59 In other words, the

unreasonableness o f a custom m ust be so great that its enforcement results in greater

harm than if there were no custom at all. Certain standards have been established on

w hich th e c o u rts p ro c e ed w ith re a so n a b le n ess o f a custom . D efin itely ,

reasonableness will not be judged w ith every change in social conditons. The time

o f its origin is the time to decide its reasonableness.

Prof. Allen 60 says that the rule regarding reasonableness is not that a custom

will be admitted if reasonable but that it w ill be admitted unless it is unreasonable.

The party who has proved the existence o f a custom is not under further necessity

o f proving its reasonableness; it is for the party disputing the custom to satisfy the

court o f its unreasonableness. Custom must be useful and convenient to the society.

It must be fair, ju st and w ithout prejudice to any one under like circumstances.

It is well settled that the time to decide the reasonableness o f a custom is

the time o f its origin .61 Now, it is said that if a custom has no rational basis, but has

resulted from accident or indulgence and not from any right conferred in ancient

times upon the party setting up the custom, there is then strong evidence that the

custom is unreasonable and unenforceable. It is not clear, according to Allen, what

59. Subbharao, GC. Venkata., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 8th edition, 1975,
P. 116.
60. Allen C.K. [Link], p. 140.
61. Tysonv. Smith (1838), 9A & F. 406,423; Astrabulla v. Kiamatulla, AIR 1937, Cal. 245.
 48

is meant by indulgence in this connection nor w hat is the relevance o f conferring a

right which arises by custom. As for accident, this cannot be considered a fatal

objection to custom, for, as w e have seen, it is impossible to find a specific and

rational cause for every custom. Those, therefore, do not seem to be valid grounds

for rejecting a custom as unreasonable. The fact is that in the great majority o f

cases in which an ancient custom has been held to be unreasonable in its origin, it

will be found that the real reason for rejecting it is that it was originally, or is now

(or both), contrary to a well established rule o f law. In the famous Tanistry case ,62

English Judges, accustomed to the rule o f Primogeniture, had to consider the validity

o f the Irish Brehon law o f succession, they were faced with the apparently barbarous

rule that the property descended not to the eldest bom but to the senior et

dignissimus o f the blood and surname o f the last owner. There was no doubt o f the

existence o f the custom, the origin and purport o f which as M aine has shown in his

“Early History o f Institution, Lect. VH”, the English Judges did not folly understand.

One o f the chief reasons which they assigned for rejecting the custom as ‘encounter

to the common w ealth’ was that in practice it destined the property not to the senior

et dignissimus but to the most potent - a moral argument against the triumph o f

m ight over right. B ut no m odem reader can fail to detect in the case a deep seated

prejudice against a custom which outraged feudal law by admitting a gap in the
« »

seisin, and by excluding daughters from the inheritance on the failure o f male heir,

indeed, as M aine observe, the Judges thoroughly knew that they were making a

revolution, and they probably thought that they w ere substituting a civilized

institution for a set o f mischievous usages proper only for barbarians.

62. Tanistry Case (1608), Dav. 29 as quoted m Allen CK., The Law in the making, Oxford University Press, Reprint
1975, p. 144.
 49

Among the older precedents, the ease ju st cited is the m ost authoritative

and is indeed, the source o f the chief learning in English law on the subject o f

custom. In Johnson v. Clark, a married woman, in order to secure a debt due upon

a promissory note, purported to convey by way o f m ortgage to the creditor o f the

promissory note certain property in which she had a life interest under her father’s

will. The conveyance was made with her'husband’s concurrence but w ithout any

separate examination o f the wife. The wife sought to have the mortgage set aside on

the ground that w ithout separate examination it was void in law. Against her, it was

contended that her estate was held in burgage tenure and that a local custom existed

under which real property so held by a married wom an could be disposed o f by her

w ith th e c o n se n t o f h e r husb an d w ith o u t h er sep a ra te ex am in atio n and

acknowledgement. Justice Parker held that such a custom was repugnant to a

principle o f the common law vital at the time when die mortgage was made (though

since abolished). Dealing with the question o f reasonableness, he said that looking

at the matter apart from express authority, it is quite clear that for a custom to be
« »

good it must be reasonble or at any rate, not unreasonable. Littleton says o f customs;

whatsoever is not against reason may well be admitted and allowed, and on this as

aforesaid Sir Edw ard Coke comments that this is not to be understood o f every

unlearned m an’s reason but o f artificial and legal reason warranted by authority o f

law. I f this be so, it appears to follow that a custom to be valid must be such that, in

the opinion o f a trained lawyer, it is consistent or at any rate not inconsistent with

those general principles which, quite apart from particular rules or maxims, lie at

the root o f our legal system.

 50

In a m atter o f reasonableness, the courts may reserve to themselves a right

to discountenance or abrogate a pernicious custom. It is very rarely indeed that a

court rejects a custom on the ground that itw as unreasonable in its origin. In holding

the origin to have been unreasonable, the court always doubts or denies the actual

origin and continuance o f the custom in fact. Further, the unreasonableness o f a

custom in modern circumstances will not affect its validity if the court is satisfied

o f a reasonable origin. A custom once reasonable and tolerable, if after it becomes

grievous, and not answerable to the reason where upon it was grounded, yet it is to

be taken away by A ct o f Parliament or any other appropriate statute. B ut where the

court finds a custom in existence which, either by abberration or by a change in law

since its origin, not merely differs from but directly conflicts with an essential

legal principle (public policy), it has power in modem communities to put an end to
* ►

the custom. In short, custom once indisputably proved is law, but the courts are

empowered on sufficient reason to change the law which it embodies.

(c) Custom m ust be in conformity with statute law

A valid custom m ust not be in conflict with the statute law o f the country. A

statute can sometime abrogate a custom and not vice-versa. A custom must not be

contrary to an A ct o f Parliament. In the words o f Sir Edw ard Coke63, no custom or

prescription can take away the force o f an A ct o f Parliam ent William Blackstone

stated that by no length o f desuetude can a statute become obsolete and inoperative

in law, and by no length o f contrary usage can its provisions be modified in the

smallest particular. The common law will yield to immemorial local custom, but

the enacted law stands for ever. This means that custom must yield where it conflicts

63. Mahajan V.D (Dr), [Link], pp. 271-272.

 51

with statute. In England, this rule is observed as a positive principle o f law .64

On the other hand, under the Roman law and the various continental systems

o f law derived Rom the Roman law, customary law o f a later date can override even

a statutory enactment o f a prior date, the maxim being; lexposterior derogate priori-

a later law derogates from an earlier one, and even overrides it. Justinian in his

corpus juris has m entioned several statutes which have fallen into disuse by a

posterior contrary custom .65 I f an enacted law comes first, it can be repealed or

modified by a later custom and vice versa. Savigny has pointed out that customs and

statutes are put on the same level with respect to their legal efficacy and customary

law may complete, modify or repeal a statute, it may create a new rule and substitute

it for a statutory rule which it has abolished .66 W indscheid (Scottish) opines, the

power o f customary law is equal to that o f statutory law. It may, therefore, not

merely supplement, but also derogate from the existing law. And this is true, not

merely o f rules o f customary law interse, but also o f the relations o f customary to

statute law .67

(d) Custom m ust be in continuity

A custom to be valid should have been in existence from time immemorial.

The continuous existence o f a custom must have been recognised by the community

without any interruption or break for such a period as may be considered by the

court as being reasonably long to be recognised as a custom . I f a custom has not

been followed continously and uninterruptedly for a long time, the presumption is

64. Blackstone. W [Link] p.76.

65. Lex Posterior Derogat Priori.. Justinian Digest D. 1,3.32,
66. Singh, Avtar. [Link], p. 189.
67. Windscheid, Pandaktenrecht, Vol I, sect. 18.
 52

that it never existed at all. Unless there is a continuity, there is no custom.68

Suppose, it is established that custom existed since one hundred years back.

It is shown that there has never been single instance of following or practising that

custom. The inevitable inference under such circumstances is that people had

abandoned it or that it had become obsolete. The onus of proving its discontinuance

is on that who alleges its discontinuance or abandonment.

(e) Certainly

A custom must be certain and the courts must be satisfied by clear and

unambiguous proof that the custom exists as a matter of fact or legal presumption

of fact. Willes, the Chief Justice observed in Broadbent v. Vilkes69 a custom must

be certain, because, if it be not certain it cannot be proved to have been time out of

mind for how can anything be said to have been time out of mind when it is not

certain what it is? And to this effect Jessel M.R. Observes; When we are told that

custom must be certain that relates to the evidence of a custom. There is no such

thing as law which is uncertain - the notion of law means a certain rule of some

kind.70 As aforesaid, custom should be established to be so by clear and unambiguous

* •

evidence. It is only by means of such evidence that the court can be assured of their

existence and that they posses the conditions of antiguity and certainty on which

alone their legal title to recognition depend. Custom gradually changes with the

passages of time. A new custom cannot be created by the mere assertion of the

various tribes at a subsequent settlement.

68. Allen C.K. [Link], p. 128.

69. (1742) Willes, 360.
70. Hammerlon v. Honey (1876), 24 W.R. 603.
 53

A custom in order to be valid and enforceable must be proved to be uniform

and certain in its nature and as to the people or locality whom it is affected. Mere

allegation as to the existence of custom does not suffice to ascertain its existence.

It is necessary to prove with reasonable amount of certainty that the custom as

alleged exists, and further that it is applicable to the parties on the matter at issue.

(f) Observance as of right

The third requisite of the operation of a valid custom is that it must have

been observed as of right. Mere practice of a voluntary nature would not make a

custom valid. It must have an obligatory force. It must have been followed openly

without the necessity for recourse to force' and without the permission of those

adversely affected by the custom being regarded as necessary. These requisites are

expressed in the form of the rule that the user must be ‘necvinec clam nec precario

- not by force, nor by stealth, nor at will (Salmond). In other words, custom must

not have been the result of coercion; it must have been the result of open and free

act. It must have ultimately become a rule of conduct. Blackstone says, a custom

that all the inhabitants shall be rated towards the maintenance of a bridge will be

good but a custom that everyman is to contribute thereto at his own pleasure is idle

and absurd and indeed no custom at all.71 According to Salmond,72 there must be

opinio necessitatis, that is, the conviction on the part of those who use a custom

that it is obligatory and not merely optional.

(g) Consistency

Custom must be consistent with each other; a custom cannot be set up in

71. Mahajan V. D. (Dr), [Link], p. 271.

72. Tandon, Mahesh Prasad [Link], p. 248.
 54

opposition to another. For if both are really customs then both are o f equal antiquity,

and both established by mutual co n se n t: w hich to say o f contradictory customs is

absurd. Therefore, if one man prescribes that by custom he has a right to have windows

looking into another’s garden, the other cannot claim a right by custom to stop up

or obstruct those w indows. For these contradictory customs cannot both be good

nor both stand together. H e ought rather to deny the existence o f the former custom.

(h) Peaceable enjoyment

The custom m ust have been enjoyed peaceably. I f a custom is in dispute for

a long time in a law court, or otherwise, it negatives the presumption that it originated

by consent as m ost o f the customs naturally might have originated.

(i) Custom m ust not be immoral

A custom, to be valid, must not be immoral. There is, however, no fixed test

to judge the morality o f a custom. W hether or not a custom is immoral is to be

judged by the sense o f the whole community.73 In Mathura Naiki v. Eru Naikin,74

the court held the custom to be immoral since the profession o f dancing girls was

immoral and adoption by them o f girls was designed to perpetuate this profession.

A custom by w hich the marriage tie could be dissolved by either husband or wife

against the w ish o f the divorced party on paym ent o f a sum o f money is also

immoral.75

Under Section 23 o f the Indian contract Act, 1872, it is provided that if the

consideration or object o f an agreement is regarded by the court as immoral or

73. Kane P.V. (Dr)., Hindu Customs and Modern Law, (1st ediction), 1950, p 52
74 (1880) ILR 4 Bom 545
75. Keshav Hargovan v. Baigundi (1915) ILR 39, Bom 538
 55

opposed to public policy, then the consideration or object of the agreement would

be unlawful and the agreement would be void.

(j) Custom must not be contrary to justice, equity or good conscience or opposed

to public policy: Opinions differ as to how far public policy should guide in legal

decisions based on customs. The doctrine of public policy should only be invoked

in clear cases in which the harm to the public is substantially incontestable and

does not depend upon the idiosyncratic inferences of a few judicial minds.76

A custom which would enable a woman to marry again during the life time of

her first husband without any defined rules by which the marriage with the first

•husband is dissolved before the second marriage is contracted, was held to be

contrary to Public Policy.77

Transformation theories o f Custom into Customary Law

It would be of great help to ponder the varied definitions of law given by

< *

different imminent jurist/scholars before the transformation theory of custom into

(customary) law is being dealt with. This will certainly give a clear understanding

about law which has relative importance in the following analysis of the theories of

the two schools as regard to the legal efficacy of custom. For this purpose some

representative definitions of concrete sense under five broad classes are quoted

below78:

i. Idealistic Definition

(a) Salmond defines law as the body of principles recognized and applied
76. Richardson v. Mallish, 2 Bingham, 229, p. 252, Quoted by Lord Bramwell in (1892) AC 25 at p. 45.
77 Budanso v. Faturr, AIR 1914. Mad. 192.
78 Myneni, S.R. (Dr) , Jurisprudence (Legal Theoiy), Asia Law House, Hyderabad, 1st edition, 2001, pp 48-49.
 56

by the state in the administration o f justice. In other words, the law

consists o f rules recognised and acted on by the court o f justice.

(b) A ccording to Gray, the law o f the state or o f any organised body o f

m en is composed o f the rules w hich the court, that is, the judicial

organ o f the body lays down for the determination o f legal rights and

duties.

ii. Positivistic D efinition

A ccording to Austin, a law, in the strict sense, is a general command o f the

sovereign individual or sovereign body issued to those in subjectivity and enforced

by the physical pow er o f the state.

iii. Sociological Definition

D uguit defines law as essentially and exclusively as social fact. It is in no

sense a body o f rules laying down rights. The foundation o f law is in the essential

requirements o f the community life. It can exist only w hen men live together.

Therefore, the m ost important fact o f social life is the interdependence o f man

(which D uguit calls as social solidarity). The aim o f the social institution is to

safeguard and further it. Only those rules can be called law which further this end.

The basis o f the validity o f law is the popular acceptance and not the will o f sovereign.

The sovereign is not above the law but is bound by it. The law should be based on

social realities. Ihering defines law as the form o f the guarantee o f the conditions

o f life o f society, assured by state’s pow er o f constrain.

 57

Ehrlich, another great sociological Jurist includes in his definition all the

norms which govern social life within a given society. Roscoe Pound defines law as

‘a social institution to satisfy social w ants’. This approach is very valuable. It is

directed tow ards new fields o f study and lays down a constructive scheme for the

study o f law in the context o f social problem. A ccording to Pound; law is the body

o f principles recognised or enforced by public and regular tribunals in the

administration o f justice. According to Dias, it is the aggregate o f rules set by men

as politically superior or sovereign to men as political subject. In other words, law

is a command w hich obliges a person(s) to a course o f conduct or imposes a duty

and is backed by a sanction. Thus, the command duty and sanction are the three

elements o f law and a law having such characteristics is called positive law. This is

also known as law properly so called as if comes directly from the sovereign. The

other law improperly so called and which does not come directly from the sovereign

are, according to him, positive morality. John Erskine says, law is the command o f

a sovereign containing a common rule o f life for his subjects and obliging them to

obedience. H olland defines law as a general rule o f external human action, taking

cognizance only o f external acts enforced by a determinate authority, which authority

is human, and among human authority is that which is paramount in apolitical society.

H istorical D efinition

Savigny, the father o f historical school says that law is not the product o f
« »

direct legislation but is due to the silent growth o f custom or the outcome o f

unformulated public or a professional opinion. H e says that law is not a body o f

rules set by a determinate authority but rules consisting partly o f social habit and
 58

partly o f experience. Law consists largely o f ‘ought’ (normative) propositions

prescribing how people ought to behave. The ‘oughts’ o f laws are variously dictated

by social, m oral, economic, political and other purposes.

R ealist D efinition

Realist movement, which is considered to be a part o f the sociological

approach defines law in terms o f judicial process. Justice Holmes, the realist

considered the law to be an art o f the judicial process. H e said that; the prophesies

o f what the courts will do, in fact, and nothing more pretentions, are what I mean by

law. A ccording to Realists, die formal law is simply a guess as to w hat the courts

would decide and the law is that w hat the court actually decides. They consider law

as a social institution.

It is quite clear from the above difinitions that different jurists o f different

schools have defined the term law differently. And it is not correct to say that any

particular definition is absolutely correct and is applicable to all societies. The

purpose and functions o f law has been different in different times, that is why one

finds variation in definitions. The term law is a dynamic one which changes with

changed conditions. Hence, it is not possible to give an exact definition o f the term

law.

W hether or not a custom is already law and can be regarded as such

independently o f judicial recognition is a controversial issue. I f it is not already a

law, when does it become law? There are mainly two theories as regard to this

question.
 59

A nalytical T heory

The basic argument o f this theory is that custom are not law until so declared

by the sovereign. Austin, one o f the main priests o f Analytical School, defined law

as a command o f sovereign. A ccording to him laws properly so called also known

as positive law is that which comes directly from the sovereign or from an agency

which has been permitted by the sovereign to lay down a rale o f la w : A ustin’s vision

was, therefore, conditional by the conceptual framework. Consequently, he excludes

all unwritten laws including customs from the category o f law.79>

A ccording to Austin, custom has only a pursuasive efficacy and is not law

until pronounced upon by a court as applied in a particular case. To Austin, custom

is not a positive law as it is not a command o f sovereign, it is only a source o f law

and not law itself. Custom, accordingly cannot be law o f itself but only by virtue o f

sovereign command, which m ight be expressed, as in the form o f a statute, or tacit

which can be seen w hen a judicial decision recognising a custom is carried out . 80

H e says, custom at its origin is a rule o f conduct which the governed observed

spontaneously and not in pursuance o f a law set by a political superior. Custom is

transmitted into positive law w hen it is adopted as such by the courts o f justice and

by state recognition. But before it is adopted by the courts and clothed with legal

sanction, it is merely a rale o f positive morality or a rale generally observed by the

citizens o f subjects, but deriving the force only from the general disapprobation

falling on those who transgress it. This view o f Austin is based on two propositions.

Firstly, it is not every custom that is binding but only those w hich are valid-the

validity being determined by judicial recognition. A recognised custom becomes

79. Aggarwal Nomita., Jurisprudence (Legal theory) Central Law Publication, Allahabad, Fourth ediction, 2003,
p. 94
80. Austin J., Lecture on Jurisprudence, 1, pp. 101-103.
 60

the customary law (legal custom). The other unrecognised customs are social custom

or rule o f positiye morality. A sovereign or a legislature very often abolishes customs

and is, therefore, superior to them. A custom is law only because a sovereign allows

it to be so. Therefore, the answer to the question w hen does custom become law,

according to Austin, would be when it is declared so by the sovereign.

Gray says; customs are not law untill approved by Judges. Gray puts the

courts in the centre o f the legal system. A ccording to him, in deciding cases, the

Judges are guided mostly by statutes or precedents. There are only very few branches

o f law w here customs have some influence. The adjective law is independent o f

customs. The customs often arise from judicial decisions. Thus, according to Gray,

customs are not law until they commend themselves to the reason o f the Judge and

he recognises and embodies them in judgem ent .81

According to Holland, customs are not laws when they arise but that they are

largely adopted into law by state recognition. H e holds that the authority o f customs

arises not because it has been recognised by the courts but because it will be so

recognised in accordance w ith predetermined rules o f law, if the occasion arises

custom is thus a legal material source o f law .82 Holland amply remarks that the rule

that a court shall give binding force to certain kinds o f custom is a well established

rule o f law. He says, the state through its delegates, the Judges, undoubtedly grants

recognition as law to such customs as to come up to a certain standard o f general

recep tio n and u sefulness. To these, the courts give operation no t m erely

prospectively from the date o f such recognition but also retrospectively; so far

81. Tripathi. Bijai Narain Mani, [Link], p. 165.

82. Myneni, S.R. (Dr), op cit, p. 134.
 61

im plying that the custom w as law before it received the stam p o f judicial

authentication .83 It varies w ith A ustin’s notion in this regard though they belonged

to the same school. H e continued to say that, binding authority has thus been

conceded to custom provided it fulfils certain requirements, the nature o f which

has also long since been settled and provided it is not superseded by law o f a higher

authority .84 H e further says that when a given set o f circumstances is brought into

court and the court decides upon diem by bringing them w ithin the operation o f a
*, „ * »

custom, the court appeals to that custom as it might to any other pre-existent law. It

does not proprio motu then for the first tim e make that custom a law; it merely

decides as a fact, that there exist a legal custom about which others might upto that

moment have been some question, as there m ight be about the interpretation o f an

A ct o f Parliament. It then applies the custom to the circumstances ju st as it might

have applied an A ct o f Parliam ent to them .85

In short, H olland view s that customary law is not because it has been

recognised by the courts or received the stamp o f judicial authentication but because

the Judges have invoked as the ratio o f their decisions not only equity but also

custom established among and by the people at large, as presumably embodying the

rules w hich the people have found suitable to the circumstances o f their lives .86

Holland w ho has practically adopted A ustin’s definition o f law differs from him as

regards to his opinion that a custom becomes a law only w hen it receives judicial

recognition. A ccording to Holland, custom was law before it received judicial

recognition and both customs and statutes are principles or rules which govern and

regualate the life and conduct o f human societies. The former have their foimdation
83. Holland, T E . [Link], p.60
84. Ibid, p.61
85. Ibid p. 62
86. Holland, T.E. [Link], p 61.
 62

in the collective w ill or common consent o f the people ju st as much as the latter

have on the will or pleasure o f a sovereign or a state. The objects and functions o f

both are alike, though the procedure is different. Custom and usages which have all

the force o f law, may sometimes even have greater force than statutory law s .87

Prof. Allen criticised Austin’s view when he says; the fallacy o f the Austinian

doctrine is in supposing that custom is riot law until it has been pronounced upon by

a court. The exact reverse is the truth. Custom is the first and m ost essential law .88

He further observes ancient cusotms are still an integral part o f modern law and the

courts frequently have to deal with them. D o they deal with them as law or as

something which, existing defacto, may be turned into law by excathedra sanction?

He conceive the form er proposition to state the true principle .89 M ost o f the

cusotms are recognised not because the courts or legislature gives them sanctity o f

law but because they are treated as such law by the community as a whole and people

feel themselves bound by them. H e further says custom grows by conduct and it is,

therefore, a mistake to measure its validity solely by the elements o f express sanction

accorded by courts o f law or by other detenninate authority. V inogradoff also

criticised by saying that; it is not conflicts that initiate rules o f legal observance but

the practices o f everyday directed by the give and take considerations o f reasonable

intercourse and social co-operation. Neither succession nor property, nor possession

nor contract started from direct legislation or from direct conflict. Succession has

its roots in the necessary arrangements o f the household on the death o f its manager,

property began with occupation; possession is reducible to defacto detentions;

origins o f contract go back to the customs o f barter .90

87. Rustomji K.J., A Treaties on Customary Law in the Punjab, 15th edition, p,3.
88. Allen C.K., [Link], p.84
89. Ibid, p.87.
90. Mahajan V.D (Dr), [Link], p.262
 63

H istorical T heory

The historical school holds ju st a contrary view to the earlier view o f the

analytical school. This theory emphasises that law has its existence because o f the

common consciousness o f the people and customary observance is not the cause

o f law but the evidence o f its existence. In their view, custom is the prim aiy source

from which all law derives its legal efficacy and authority, it is to be regarded as the

formal source o f law. They rejected the view o f the other school which necessitates

the declaration or recognition o f a custom by the state in order to transform it into

a binding custom ary law. James Carter writes w hat has governed the conduct o f

men from the beginning o f time will continue to govern it to the end o f time. “Human

nature is not likely to undergo a radical change and, therefore, that to which we give

the name o f law always has been, still is, and will forever continue to be custom .” 91

According to Savigny92, the founder o f this school, custom per se is law. It

does not require the state recognition to become law. H e says that law has its

existence in the general will; customary observance is not the cause o f law but the

evidence o f its existence .93 A custom carries its justification in itself. The very

existence o f custom indicates that it must have arisen due to the strong need and by

the approval o f the people .94 According to Savigny; law like language stands in

organic connection with nature or character o f the people and evolves with the

people .95 According to him, custom is the sole source o f law. H e says, the foundation

o f the law has its existence, its reality in the common consciousness o f the people.

We become acquainted w ith it as it manifests itself in external acts, as it appears in

91. Carter James., Law, its origin, growth and function (1907) p. 120.
92. Aggarwal, Nomita. op cit, p.95
93. Savigny., System, [Link].35,168,
94. Tripathi Bijai Narain, Mani. [Link], pp.165-166.
95. Mahajan V.D. [Link], p.259.
 64

practice, manners and customs. Custom is the sign or badge o f positive law and not

its foundation or a ground o f origin .96 A ccording to him, customary law may

complete, modify or repeal a statute; it may create a new rule and substitue it for

the statutory rule which it has abolished .97 The view o f Savigny is that custom is the

type o f all law and law is valid and just only in so far as it makes known and objectifies

in concrete forms the true legal instinct o f the community which it purports to

govern. Puchta, the worthy desciple o f Savigny even carried the principle further by

saying, custom is not only self-sufficient and independent o f legislative authority

but is a condition precedent o f all sound legislation .98 Thus, according to the view

o f historical school, custom is law independent o f any declaration or recognition

by the state. The historical theory has been criticised by many writers. According to

Paton, the grow th o f m ost o f the customs is not the result o f any conscious thought

but o f tentative practice .99 Custom is coeval w ith the very birth o f the community.

A ccording to Gray not only does custom-play a small part at the present day as a

source o f non-contractual law, but it is doubtful if it ever did, doubtful whether at

all stages o f legal history, rules laid down by Judges have not generated custom,

rather than customs generated legal rules. It has often been assumed, almost as a

matter o f course, that legal customs preceded judicial decisions and that the latter

have served to give expression to the form er but o f this there appears to be little

proof. It seems at least as probable that custom arose from legal decision . 100

A ccording to Jethrow Brown; that custom is often posterior to judicial decision is

another fact about w hich no difference o f opinion is possible. Under the pretence

o f declaring custom, Judges frequently give rise to it . 101 According to Allen, all
96. Singh, Avtar. [Link], p. 192.
97, Ibid.
98 Mahajan V.D (Dr), [Link], p 259
99. Paton, GW. [Link], p. 145.
100. Mahajan V,D (Dr), op cit, p 260.
101. Ibid.
 65

customs cannot be attributed to the common consciousness o f the people. In many

cases, customs have arisen on account o f the convenience or interest o f a ruling

class which imposes its will on the majority society . 102 A ccording to Henry Maine,

custom is a conception posterior to that o f Themijstes or Judgements. Themistes

were the awards which were dictated to the king by the G reek goddess o f justice. It

is later on that customary law came into existence . 103 Vinogradoff and Sir Frederick

Pollock do not agree with the principle that social custom grew up by gradual process

in the household and daily relations o f the clans and the Judge only came in at a

later stage when the custom was already in operation and added to the sanction o f

general recognition the express formulation o f judicial and expert authority. The

latter, after referring to a good deal o f customary law in Greek society refers to a

contradiction in the statement o f M aine with regard to the origin o f royal Themistes

in early law and custom w herein he says that they are doubtlessly drawn from pre­

existing custom or usage . 104

S h o rtco m in g s o f th e tw o A p p ro ach es

The view o f analytical school that customs are not laws until recognised by

the sovereign certainly contains some truth but not the whole truth. Because, the

bulk o f custom is non-litigious and hence it does not come before the court but the

society regulates its conduct according to its needs. In m ost cases customs are

recognised not w ith the assumption that this recognition gives them the sanctity o f

law but with the assumption that they are law, and they have been treated so. The

other reason is that though the court plays a creative role in rationalizing and shaping

them, it draws its raw materials from customs. As such, this view is not fully correct.

102. Allen C.K. [Link], p. 148

103. Maine Henry Summer, [Link], pp.5-6
104. Vinogradoof., collected papers, ii, 420.
 66

Similarly, the view o f the historical school is also not balanced. Customs

have not always arisen out o f convenience or the need o f the people. Sometimes

they have been imposed upon the people by the ruling class. Secondly, although

there are some rules o f law which are, undoubtedly, based on the common conviction

o f the people, the majority o f the rules are so complicated and technical that the

common conviction m ight never have thought o f it. Thirdly, the historical jurists

did not pay proper heed to the fact that the state has the pow er o f abrogating a

custom. Lastly, they underestim ated the creative roles o f the Judges and o f the

legislators which are so imminent in m odem times.

It may be noted that the correct position lies in a synthesis o f the tw o views

given above and adopting a socio-legal point o f view. The customs lie in the

foundation o f all legal system. It came into existence w ith the existence o f the

society. The conduct embodied in customs is the corporated action. Sometimes we

can trace some reasons, need or convenience behind sound customs but to say that

every custom has always some reason behind it is to go far from the truth. To say

that they are always o f local origin or it arises out o f the conviction o f the people is

also incorrect. As it has been observed earlier, foreign customs, such as the custom

o f the railing class and sometimes international customs such as commercial

customs are adopted and observed. W ith the developm ent o f society, many other

forces such as the jurists, codifiers, law givers and others come to exercise their

influence on custom s. Now, it is also found that m ost customs o f developed nations

are being rationalized and are incorporated and embodied in legal rules. In Roman

law, the creative role o f the M agistrates, in English Iaw-that o f equity Judges (great
 67

law writers from Bracton to Blackstone) and in Hindu law that o f the Smritikars.

the commentators and Privy Council decisions have materially affected the form

as well as the substance o f customs.

Customary International Law

The topic, Customary International Law requires a separate research work.

Nevertheless, it is important to reflect something in this area so as to precisely

comprehend the composite meaning o f customary law in a nut shell. Customary

>
International Lawjbased on general and consistent practice o f states accepted by

them as legally binding. It is also said, customaiy law is the product o f general

consensus and not o f the m eeting o f w ills o f individual states. C ustom an

International Law has general application, because it binds all states with the

exceptions o f persistent objectors. General customary' law admits derogation in

the form o f special customary rules that bind only a limited number o f states. Special

customary rules are formed, they apply to the relations o f the groups of states

bound by them interse.

“Fenwick” defines Customary International Law as established usages which

have come to be regarded as having an obligatory character.105 Schwarzenberger

also defines Customaiy International Law as the rules followed by states in their

actions when they admit a legal obligation to act in such a manner.106 Openheim

opines it as a custom when a clear and continuous habit o f doing certain actions has

grown up under the aegis o f the conviction that these actions are. according 10

international law, obligator}' or right.107 Manley O. Hudson in a study o f Article 24

105. Berber, F.J., Rivers in International Law, Stevens & Sons Limited, London (1959), Oceana Publication'.. Inc
New York, p. 46
106. Ibid.
107. Ibid.
 68

o f the statute o f International Law Commission w rites that the emergence o f

principle or rule o f Customary International Law would seem to require the presence

o f the following elem ents.108

a) Concordant practice by a number o f states with reference to a type o f situation

falling w ithin the domain o f international relations;

b) Continuation or repetition o f the practice over a considerable period o f time;

c) Conception that the practice is required by or consistent with, prevailing

international law;

d) General acquiescence in the practice by other state.

„ t

Article 3 8 ,1(b) o f the statute o f International Court o f Justice (ICJ) requires

for the formation o f customary law not only as a “general practice but also that it

must be accepted as law.” The structuralisation and a certain deliberation o f effort

in the formative stage o f customary law are additional major features o f the United

Nations Organisation (UNO) framework. The analysis permits the conclusion that

while parliamentary diplomacy may well have had its effects w ithin the single

requirem ents o f custom ary law, the source o f custom ary law as a whole has

accommodated these developments w ithout altering its structure in principle.109

The interference that customary law is constantly m odem in that it corresponds

with the interest o f states lead us to the further conclusion that no customary rule

arises against the will o f a state. I f it is correct that consensus lies at the heart o f

custom ary law it w ould indeed be a co n trad ictio n in adjecto to speak o f

superimposed customary law. All states participate as equals in the formative process

108. U.N. Documents, A/C - W, 4/16 (March 3, 1950) p 5.

109. Villiger, Mark, E., Customary International Law and Treaties, Kluwer Law International, The Hague, 1977,
2nd edition, p 61.
 69

o f customary law, and die conditions for the formations o f a customary rule are

such that even a state’s passive conduct has to be qualified to be o f any significance.

I f a slate opposes a customary rule from the early stages onwards, the state will not

be bound quo persistent objector. A nd if many states object, the rule will never

arise . 110 A ccording to M ichael Akehurst, Customary International Law is created

by state practice. State practice means any act or statement by a state from which

views about cutom ary law can be inferred; it includes physical acts, claims,

declaration in abstracto (such as General Assembly Resolution), national laws,

national judgem ent and ommissions. Customary International Law also be created

by the practice o f international organization and (in theory at least) by practice o f

individuals . 111 A state is not bound by a customary rule if it has consistently opposed

that rule from its inception. However, a new state is bound by rules which were well

established before it became independent. The law o f w ar is to be found not only in

treaties but in the customs and practices o f states which gradually obtained universal

recognition and from the general Principles o f justice applied by jurist and practiced

by military courts. This law is not static but by continual adaptation follows the

need o f a changing w orld . 112 It can, therefore, be said that such customary laws o f

states are found very effective and relevant in the absence o f treaties made between

the states.

The five-pow er proposal, introduced by the representative o f Sweden,

preserved the operation o f the rule o f Customary International Law codified in the

Vienna Convention. In introducing the proposal, the representative o f Sweden stated;

it was generally agreed that m ost o f the contents o f the present Convention were

merely expressive o f rules which existed under customary intemnational law. Those
110. Villiger, Mark E, op. cit, p 62,
111. Jennings R.Y, & Brownlie 1 an., The British Year Book of Intematonal Law (1974-1975), Clarendon Press,
Oxford, 1997, 47th Year of issue, p 53.
112. Miller, Richard 1., The Laws of war, Lexington Books, D.C. Health and company Lexington, Massachusetts,
Toronto, London, p. 10.
 70

rules obviously could be invoked as custom w ithout any reference to the present

Convention. B ut to the limited extent that the Convention laid down rules that were

not rales o f Customary International Law, those rales could not be so invoked. The

position could be regarded as general rale contained in Article 24 o f the Convention.

It might nevertheless be safer to make the point explicit in one o f the final clauses.113

According to J.B. Moor, there are two modes in w hich international law may be

developed. The first is the general and gradual transform ation o f international

opinion and practice, the second is the specific adoption o f a rule o f action by an

act in its legislative nature. The operation o f the former mode is often different to

follow in its details but its effects are potent and undeniable.114
- >

A customary rale o f international law grows out o f international parties.

Practice o f states may be that o f taking actions in certain circum stances or

taking no actions at all. O f course, it is m uch easier to ascertain the existence o f a

customary rule in a case o f positive acts, but there is no reason w hatsoever to

deny the possibility o f creating a customary rale by way o f negative practice.

The continued habit o f not taking action in certain situations may certainly lead to

the form ation o f a rule o f conduct w hich may be a legal rule. A nd it goes

w ithout saying that all that has been said before concerning the elements o f

repetition and tim e applies as well to the negative practice.115 •

The study o f bilateral custom aiy relationship leads into a realm different

from that governed by the notion o f general rales o f international custom and by

~"r~' • " 1 "n-'—m -. .....""■■■■ ■ I"- .......—................................... ........ t ................... . ............... ..... ....... — ..... —....... .............. .... ....- ....... .......... ................ ..............

113. Sinclair 1 an., The Vienna Convention on the Law ofTreaties, Manchester University Press, Manchester, U.K.,
2nd edition, 1984, pp. 7-8.
114. Berber, F.J [Link], p.45.
115. Tunkin, GL, Co-existence and International Law (1958) pp. 11-12
 71

the traditional requirem ent for the establishm ent o f such rules, namely, the

generality and consistency o f state practice, its duration and the attendant opinio

juris siv necessitatis. These elements do not disappear in a bilaterally oriented

study; only their meaning becomes much more specific and particular.116 A n attempt

has recently been m ade to produce a com plete reform ation o f the theory o f

customary law which would not be subject to the theoretical objections and practical

difficulties encountered by the traditionally accepted views; Professor D ’ Amato,

in his book, The Concept o f Custom in International Law, (1971), has proposed the

abandonment o f the concepts or opinionjuris and usage as the constituent elements

o f a rule o f customary law, and the substitution o f “articulation” and an “act or

commitment o f a state to take their places.

The United N ations Charter and the w ork o f the organisation have greatly

contributed to the generation o f the Customary International Law o f human rights.

Through its different organs, the United Nations has played an important role not

only in the formulation o f human rights standards through the adoption o f multiple

conventions, declaration, and resolution but also in their implementation. The 1948

Universal D eclaration o f Human Rights contains a list o f rights; but as a General

Assemly resolution, the instrument was not binding as such. Nontheless, it has been

considered as an authoritative guide to the interpretation o f the provisions in the

charter, and there is no doubt that some o f its provisions can be deemed to constitute

customary law and general principles o f law.117

116 Slouka Zdenek J., International Custom and the Continental Shelf, Martinus Nijhoff, the Hague, Netherland,
1968, p. 171.
117. Oraa Jaime., Human Rights in the state of emergency in International Law, Clarendon Press, Oxford, Reprint
1996, pp. 214-215
 72

The U.S. third restatement o f the foreign relations law considers a state be

in violation o f Customary International Law if, as a matter o f state policy, it practices,

encourages or condones genocide, slavery or slave trade, the murder or causing the

disappearance o f individuals, torture or any other cruel, inhuman or degrading

treatm ent or punishm ent, prolonged arbitrary detention, system atic racial

discrimination or a consisted pattern o f gross violation o f internally recognized

human rights . " 8

Although these rights are considered as non-derogable in states o f emergency,

at least tw o o f them present some problem. Firstly, prolonged detention is not

considered to be arbitrary and is, therefore, legitimate in emergencies when it fulfils

the main conditions o f the derogation clause. Secondly, in a situation o f emergency,

state may also need to derogate from some o f the internationally recognized human

rights. The aspect o f human rights is a branch o f international law and, therefore,

subject to its general rules, which, in the case o f the information o f customary law

require the existence o f the two traditional elements, a general practice and opinio

juris.

The generally held view o f Customary International Law, which has been

endorsed by the International Court o f Justice , 119 is that the creation o f a rule o f cil

postulates tw o constitutive elements, a general practice o f states and the acceptance

by states o f the general practice as law . 120 A ccording to Thirl way, to appreciate the

role o f custom in the present and future international community, one m ust form a

clear idea o f w hat custom is and how it is formed. In particular, the existence o f the

118. Restatement of the Law., Third Restatement of the Foreign Relations Law of the USA (1998) p 161
119. Continental self cases, 2 CJ Reports 1969, p 3, p 44
120. Schwai zenberger, A Manual of International Law, 1967, p.32.
 73

two classic elements in its formation, the m aterial elements o f usage and the

psychological elements o f the opinio juris, m ust be insisted on as a precondition

for recognition o f any rule or principle w hich presents itself under the banner o f

international custom . 121 In short, Customary International Law which, therefore,

basically imbibes either state or general practice or opinio juris (a sense o f legal

obligation) or both was then found to be an effective instrument in the affairs o f the

international relations betw een states or kingdom s in the days o f yore. The

International Court o f Justice (ICJ) in one Asylum case pointed out that, in order

for a practice to become a rule o f Customary International Law, the practice must

be constant and uniform. Therefore, a need to standardize this determination has

been greatly felt to make Customary International Law more viable.

The rapid globalization process o f economy, trade and commerce, science

and technology, law and politics have virtually brought the human society much

closer to each other like never before. This act o f globalization has also enhanced

the need for more international proactiveness that leads to the making o f numerous

treaties betw een states. The logical question under such situation is, have the

increasing num ber o f international treaties m ade the relevance o f Customary

International Law redundant in our today’s society? The answer is definitely negative.

Because Customary International Law has been playing vital role in national and

international affairs and relations which, in fact, could not be totally substituted by

even treaties and /or agreements whatsoever. Customary law traditionally has a

central part to play in any decentralized society. D espite the growing globalization

process and the establishment o f the United Nations Organization (UNO) and other

121. Thirhvay, H.W.A., International Customary Law and Codification, A.W. Sijthaoff-Leiden Int. Publishing
Company, N.V. (1972) p. 145.
 74

related world institutions, it is very much true that our international community is

presently decentralized, and will most likely remain so in the near future and,

therefore, Customary International Law will not only continue to be an important

source of international law but an international law per se. Thus, the relevance of

Customary International Law is still significant.

A custom will become a binding rule in international law where there is

sufficiently widespread or general practice adopted by states and where the practice

is adopted out of a sense of legal obligation to do so. India recognises Customary

International Law. Vishaka case122 can be cited as a judicial legislation wherein the

judgment relies on the Principles of Convention on Elimination of Discrimination

Against Woman (CEDAW) and customary law. Technically speaking, mechanism

for interstate co-operation is needed. Often this can take the form of treaties but

treaties typically are long in coming, and there may be a need for interim rules to

guide behaviour until affected states find it to their mutual advantage to enter into

actual pacts. The conventional and traditional account of Customary International

Law hold that these interim rules become law once a large enough number of states

act in accordance with these rules so as to create binding custom. Such rules are

said to be rooted in nearly universal practice by drawing an inference from the

silence of dissenting states. Unless the dissenting state is a ‘consistent objector,’ it

is deemed to consent to the rule by its silence.

In an increasingly interdependent world there is already an international law

system that mixes elements of state sovereignty and multistate pacts like the United

122. Vishaka v State o f Rajasthan, AIR 1997 SC 3011.

 75

Nations Charter and World Trade Organisation, where states agreed in advance to

delegate some o f their sovereign authority to the institutions established by those

agreements. Such a w orld is not the same anymore. In such a scenario, the role o f

treaty making is seemingly enhanced. Customary International Law at least plays a

useful role in providing background or default rules in such treaty making. Two

aspects o f default rules seem central; (1) They define the expectation o fth e parties

against the background o f which the treaty is drafted, (2) they provide rule o f decision

for areas o f conduct that the treaty, properly interpreted, does not reach (rule o f

decision” role). A nother aspect is the educative effect o f Customary International

Law. Two related arguments might be offered in this regard. The first claim is that

widespread recognition o f binding Customary International Law promotes adherence

to ‘rule o f law ’ norms, thus lessening the prospect o f unilateral state action and the

inevitable cycle o f reactions by other states. The second is that such a world requires

more interstate rulemaking than is possible under a treaty regime and the making o f

such interm ediate rules can be the province o f Customary International Law.

Customary International Law also promotes a form o f Taw speak’ for international

law yers, non governm ental org an izatio n (N G O s), and oth er elite groups.

Mr. Weeramantary, former Judge o f International Court o f Justice expressed the

view that though it is popularly believed that treaty law has precedence over

customary law he believed otherwise. This, he added, is because o fth e reason that

the very strength o f treaty law stems from custom ary law and rule o f treaty law

emerge from custom ary law in the first place.123 India is not a party to the

International Refugee Convention, nevertheless, she is strongly obliged to safeguard

and protect the rights and interest o f the refugees which principle is imbibed in the

Customary International Law.

123. AACO Quarterly Bulletin Vol. I No. 4 (2005) p. 116.

 76

To sum up, Customary International Law understood either as state practice

or opinio juris or in both ways is considered to have been in existence in human

society since time immemorial or otherwise too. Customary International Law also

means and includes a continuous habit o f doing certain acts by states or societies

w ith a sense o f recognition, obligation and rights. Custom aiy International Law

further means and stresss on ‘general practice’ and necessarily universal practice.

Court judgem ents, Publicists, N GOs and other internationalist elites are obviously

considered to be causing the so called new (contemporary) Customary International

Law. In the past, the varied nature o f polity, culture and aspiration o f the human

societies in various part o f the world made it difficult to determine uniformity,

certainty and reasonableness o f Customary International Law. But this has not been

the case since the dawn o f modernity and more particularly after the first and second

world wars. A pursuit to comprehensively address common interest and common

importance o f global human society and the environment is being made with more

proactive way than ever before, in this changing scenario o f the world community.

Today, for a custom to be valid, there has to be a recognition o f the general principles

o f law in that custom. There has to be an ‘evidence o f the acceptance o f a general

practice as law ’ in order to give cognizance to that custom aiy law as such . 124

The national territorial courts m ust treat all binding rules o f Customary

International Law except only w hen such international law is inconsistent and/or

incompatible to the constitutional provisions o f a state or an A ct o f Parliament

whatsoever. This legitimacy theory o f automatic absorption will certainly continue

to be applied even though there are problems and difficulties that arise due to a

124, As incorporated in Article 38(I)(b) of International Court of Justice Statute.

 77

gradually changing concept o f Customary International Law in this changing global

era. In a new world order o f globalization, customary interantional law plays a vital
/

role in treaty making. Meaning, almost all the world treaties or treaties made between

two or more member-states are basically incorporated with certain basic structures

o f good cil or some national customary laws having international importance. It is

also equally true that despite the rapid growth o f treaty making business around the

world, it is not immediately foreseen,to have a centralized world body where uniform

law can be applied effectively. In such a situation, international customary law shall

remain relevant and viable for years to come. Another important aspect o f Customary

International Law is that since a (customary) law is dynamic in nature codification

and developm ent o f customary law has become accordingly exigent to meet the
« *

need o f today’s international community. However, a judicious handling o f the matter

is important so that any codification o f Customary International Law may not be

one sided. International Law Commissions effort to codify cil must ensure fairness

while essentially incorporating certain basic structures o f customary laws to such a

new code.

It is also found that there is an epistemic difficulty to identify Customary

International Law. It is however observed that this difficulty can be removed to

certain extent w ith the new dimensional approach to Customary International Law.

Customary laws are needed to be ascertained and digested before they can be codified.
.. »

M ost importantly, there is an absence o f general mechanism to ensure the effective

enforcement o f international customary law. It is suggested that such mechanism is

vital in today’s world. The relevance o f Customary International Law will continue

to subsist amidst this ever increasingly interdependent world.

 78

Jurisprudential test of Tangkhul Customary Laws

Custom ary law, as understood by the Tangkhuls, always have a strong

connectivity w ith their ancient religion, that is, ameoyan. Tangkhuls believe that

custom ary law are d eriv ed from th e d ev in e law s o f G od. A c co rd in g to

Ng. N gareophung , 125 a native writer, particular conduct o f norms and practices

enforced in the personal and societal lives since time immemorial is called customary

law, Khangachayan in native. The Tangkhul customary law is very rigid though

not static. Law dealing with violation o f customary laws and its punishment are

called shiyan chikan. T. Luikham opines that Tangkhuls strongly believe customary

law as the devine law o f Ameoa since the days o f yore. They feared and paid great

honour to Ameoa and accordingly obeyed devine laws in different aspects o f life

thereby keeping their relationship with Ameo in tact. Such customary laws are known

as mayonza in native term . 126 The Tangkhuls have been governed by their customary

laws since time immemorial. Customary law for them is not simply a source o f law

but law in itself w ith binding force. Tangkhuls perception and understanding o f

customary law is that, when a number o f person have been doing a thing regularly

over a substantial period o f time it is usual to say that they have become habituated

to it or accustomed to it. A compatible course o f human conduct reflecting the

hopes, aspirations and ideals o f the people and its outlook on life once fonned and

later followed by the people through generations gathers strength every year and in

due course o f time assumes some kind o f sanctity m aking it meticulous. This gave

rise to a conviction that the said course o f hum an conduct is best suited for them

and the said practice should continue to be observed. The people sincerely believe

that the said course o f conduct is salutary and they call for strict compliance thereof

125. Ngareophung Ng,, Wung Rampan Kliangacha Yan (Tangkhul customary law) published by authoi, 1998,
Imphal, p.8
126. Luikham, T., Wung (Tangkhul) Okthot Mayonza, Published by Author, 1961, Imphal, pp 21-23.
 79

by all persons o f the group and any departure from them is considered to be immoral

or a taboo. Such a violation is taken as an insult or offence against the group whose

outlook on life, its hope and aspirations are reflected on the said course o f conduct.

The violation is considered by the Tangkhuls not only as a crime but also a challenge

to the society calling for its interference. The legal efficacy o f custom aiy law must

be found w hen it comes to application. D espite some o f customary laws o f the

Tangkhuls having become obsolete as o f now, many other such laws are still effective

and relevant in the contemporary society. According to Keeton, customary law may

be defined as those rule o f human action, established by usage and regarded as

legally binding on those to whom the rules are applicable, which are adopted by the

courts and applied as sources o f law because they are generally followed by the

political society as a whole or by some part o f it. It is very important to determine

the validity o f Tangkhul customary laws on the basis o f the following jurisprudential

test upon some o f the aforesaid essentials o f the customary laws.

« >

1. Antiquity test

The Tangkhul customary laws whether it be criminal, civil, constitutional

and administrative laws are customaiy laws o f ancient origin. It is said that custom

is as old as hum an society. The Tangkhuls came to this present habitate more than

two thousand years before.127 The Tangkhul traditional religion is called ameoyan.

Ameoa, the super natural being, was their God. There were believed to be certain

doctrinal commandments o f Am eoa called Sakharan (dos) and Sakashar (don’ts

or taboo). From the dharma o f ammeoyan, ancient Tangkhul elders particularly the

high priest called Sharwo created various doctrinal norms and practices which the

127. Shimray, R.R., Origin and Culture o f N agas, Aruna Printing Press, New Delhi, 1989 p. 13; Hutton
J .H., The Angami Nagas, Oxford University Press, Oxford, 1969, pp. 1-10.
 80

people followed and practiced. It gradually became customary laws o f the Tangkhuls.

The time immemorial customary laws had made rapid growth in the course o f history.

The bad customary laws are abolished by desuetude. A radical change was brought

in Tangkhul society with the advent o f Christianity in 1896 AD. The Tangkhul society

was governed by their own customary laws even during the British regime. They are

dominantly governed and bound by customary laws especially in civil and personal

matters even after the independence o f India. Hence, it is established beyond doubt

that the customary laws on constitutional matters, administrative matters, civil and

criminal matters are not o f recent origin. These laws have been followed since time

immemorial. Therefore, these customary laws are valid on this ground.

The customary law on village ruichumnao (citizenship), the village hanga

system, village kalangshim, shangzan-ramzan, the heriditary village awunga system

are some o f the custom aiy laws on village constitutional matters (riyan). The

customary law on pam marriage, clan exogamy, paym ent o f manho, vashum kasa,

ngalakakham, shatngathan etc are customary law on marriage. Customary law o f

shimluikat kaka on prim oginiture basis and non transferable o f land to outsiders

are also customary laws o f inheritance and land. All these customary laws among

others are o f immemoriable ones. These are considered to be still relevant.

2 Test o f Reasonableness

I f any party challenges a custom, it m ust satisfy the court that such custom

is unreasonable. To ascertain the reasonableness o f a custom, it should be traced

back to the time o f its origin. According to Prof. Allen, the unreasonableness o f the
 81

custom m ust be proved rather than that o f reasonableness . 128 However, it cannot be

said that custom is always founded on reason. N o am ount o f reason can make a

custom. W hat is reasonable or unreasonble is a matter o f social values. It may differ

from time to time and from society to society. Therefore, w hether a custom is

reasonable or not is determined by the contemporary values o f every society, though

there are certain rules or practices which are considered unreasonable in all times

and in all societies . 129 Custom m ust be useful and w ithout prejudice to any one

under like circumstances.

It is well settled that the time to decide the reasonableness o f a custom is

the time o f its origin. Now, it is said that if a custom has no rational basis, but has

resulted from accident or indulgence and not from any right conferred in ancient

times upon the party setting up the custom, there is then strong evidence that the

custom is unreasonable and unenforceable. The reasonableness o f a custom must

be so great that its enforcement results in greater harm than if there were no custom

at all. In a particular m atter o f reasonableness, the courts reserve to themselves a

right to discontinuance or abrogate a pernicious custom. In holding the origin to

« »

have been unreasonable, the court always doubts or denies the actual origin and

continuance o f the custom in fact. Further, the unreasonableness o f a custom in

m odem circumstances w ill not affect its validity if the courts are satisfied o f a

reasonable origin. The prevailing customary laws o f the Tangkhuls like that oipam

marriage, clan exogamy, vashum kasa payment o f manho, ruikakhui etc. are still

considered reasonable and tenable by the society. However, some o f the customary

laws w hich w ere considered reasonable in its origin have now turned to be

128. Allen C.K. [Link], p. 140.

129. Diwan Paras, Dr., Modem Hindu Law, 13th edition, 2000, p.42.
 82

unreasonable w ith the more developed and changed notion o f life. The irrelevant

and unreasonable customary laws had been abolished by desuetude in the pace o f

time. Some o f the bad and unreasonable customary laws, if any, are to be identified,

under this investigation and necessary measures be taken for abolishing it.

3. Test o f conformity with general principles o f law

The customary law o f the Tangkhuls had been the dominant laws that governed

the society since time immemorial. After the independence o f India, the constitution

o f India has been extended in Manipur that includes the Tangkhul region. The Indian

constitution recognises customary laws. The Tangkhul customary laws are in

conformity with the provisions o f the constitution. The Code o f Criminal Procedure

and the Indian Penal Code are extended in the hill (tribal) areas o f M anipur only in

spirit and not in letter. All other civil matters; family and personal matters are still

governed by the customary laws.

4. Continuity test

A custom to be valid m ust have been in continuous existence. M ere non­

existence o f custom for some temporary period o f time does not necessarily mean

that custom has been abandoned. N on existence o f custom for a long time leads to

the inference o f its abandonment provided conclusive evidence o f its abandonment

is established. Once it is established that a custom exists, then the rule is that it

would be presumed to have continued to exist. The Tangkhul customary law on pam

m arriage, clan exogam y, vashum kasa, ngalakakham, paym ent o f manho,

ruikakhui, shimhdkat kaka on prim ogeniture basis etc are on continuous practice.
 83

5. Certainty test
< #

A custom in order to be valid and enforceable m ust be proved to be certain.

Mere allegation as to the existence o f custom is not suffice to ascertain its existence.

As observed by Justice Chatterji, customary law is in a fluid state and changes with

the times and, therefore, the custom being set up need not be absolutely invariable,

though no doubt the latter is the conception o f what custom is. The change o f custom

would have to be gradual, and a new custom cannot be created by the mere assertion

o f the various tribes at a subsequent settlm ent.130 The changes should not affect to

the underlying essence o f the custom. Despite some o f the Tangkhul customary

laws being blended with Christian (Canon) laws after the advent o f Christianity, the

Tangkhuls still are dominantly following and practising the customary laws o f

antiquity.

6. M orality test

A custom that is immoral stands invalid. There is no fixed test for the morality

o f a custom. A s aforesaid, the morality or immorality o f a custom is to be judged by

the sense o f the whole community and/or tribe who actually practise that custom.

In the context o f the Tangkhuls, the practice o f clan endogamy is within the degree

o f prohibition o f marriage on immoral, unethical and unscientific grounds. Such

marriage is a void marriage. The practice o f clan exogamy on the other hand is
< *

accepted by the Tangkhuls as morally, ethicaly and scientifically approved. It is a

valid marriage. A Tangkhul man or wom an during satngathan cannot enter into

another marriage. I f any marriage o f such type is entered into by either o f the parties,

such marriage are considered by the Tangkhuls as immoral. Marriage by elopement

130. Rattigan W.H., A Digest o f Civil Law for the Punjab (14th edition), 1966, University Book Agency,
Allahabad, p.85.
 84

will be considered immoral if the parties are from the prohibited relations. No

ceremony of vashum kasa (socio-legal recognition) will be performed under such

circumstances. Payment of manho by the bridegroom to the parents of the bride is

considered to be reasonable and bears high moral value. The Tangkhuls do not

consider payment of manho as a bride price or dowry as such, but as an act ot

gratitude and valuable acknowledgement given to the parents of the bride by the

bridegroom for their valuable upbringing and contribution towards the welfare of

the bride. The customary law of the Tangkhuls that makes the obtaining of parental

approval to the marriage is also a high moral responsibility of the parlies in a

marriage. In such a manner, Tangkhul customary laws do not suffer from required

moral value.

Proving of a Custom in Court

Under the Indian law, custom is a question of fact and the .burden of proof is

on the party who relies on the custom. 131 There are some customs which the court

takes judicial notice of when a custom is repeatedly brought to the notice of the

court, the court may treat the custom proved without any necessity of fresh proof,

otherwise all customs are to be proved without any other fact. 133 When a custom is

recognised by the courts for a long time, it is not necessary' to prove it. the court

can take judicial notice of the same. 133 Custom is not a matter of theory' but of fact.

It is not always logical and cannot be deducted by inferences. In dealing with cases

in which the question involved relates to the existence of a particular custom it is

not permissible for the court to extend custom by logical process. In the absence

of any authoritative statement of a custom it can only be established by instances

131. M st. K ir p a l S in g h v. B a c h h a n S in g h , AIR 1958, SC 199.
132. U ja g a r v J e o ,A \ R1959SC 1041.
133. A m a rS in g h v. Tej Ram (1982) 84 PLR237.
 85

and not by a priori method. The courts should take cognizance of actual facts instead

of being swayed by theories, even though they may be strictly logical or by

consideration affecting the symmetry of the customary system. While enforcing

custom or while considering the question whether a custom has been proved, the

court should not draw any analogy nor guess what the custom is or should be, it

should go by evidence and see what the Custom really is and whether it had been

proved. Custom must be proved by evidence and courts are not permitted to deduce

the existence of one custom from another. It is not the function of the Judge to

surmise what custom ought to be; its duty is to see whether, as alleged, custom has

been established by evidence.134

According to Rattigan’s Digest, a custom may be proved in the court by any

one of the following modes.135

(a) Proof of custom by opinion

The existence of custom can be proved by the opinion of person likely to

know of its existence, or having special means of knowledge thereon as provided

under section 48 and 49 of Indian Evidence Act, 1872. The proof of custom should

consist on those delibrate and well considered opinion of the people living under,

and governed by the custom in question. The opinion must relate to “What custom

is” and not to “What custom ought to be”. Justice Rossignol, however, remarked

that ‘as to this argument it is sufficient for us to say that the only adequate proof of

a custom is clear evidence that such a custom is followed and not merely opinions

however numerous that such a custom ought to be followed.136 Though judicial

134. Observed in MaharamAli v. BarkarAli, IL R (1931) 12 Lah. 286, quoted in Dr. Paras Diwan, Customary
Law o f Punjab & Haryana (2nd edition 1984) p p .30-31.
135. Rattigan W.H., [Link], p94.
136. Dalip v. RaniSuraj Kaur, 48 PR 1916, as pointed out in W.H. Rattigan, [Link] p.99.
 86

decisions are not indispensable, the acts required for the establishment o f customary

law ought to be plural, uniform and constant,137 It is admissible evidence for a

living witness to state his opinion in the existence o f a family custom and to state as
«, *

to the grounds o f that opinion or information derived from deceased persons and

the weight o f the evidence w ould depend on the position and the character o f the

witness and o f the persons on w hose statements he has formed his opinion. B ut it

must be the expression o f independent opinion based on hearsay and not mere

repetition o f hearsay. In the Chunni Lai v. Jai Gopal, 138 it was observed by Justice

Bhinde that it is true that opinions o f persons belonging to the same tribe on the

question o f custom are relevant in case o f this kind, but m ere opinions unsupported

by instances have to be taken w ith caution. Hence, oral evidence must be supported

by instances to prove the existence o f a valid custom.

(b) P roof by statement o f persons w ho are dead

Section 32 clause 4 o f the Indian Evidence Act, 1872 provides that the

existence o f customs can be proved by statements o f persons w ho are dead, or

whose attendance cannot be procured without reasonable delay or expense, if such

statements w ere m ade before any controversy to such customs arose.139 It further

provides that the said statements m ust have been made only by persons who would

have been likely to be aware o f the existence o f such custom if at all it existed.

These statements m ust relate to the existence o f any public right or custom or

matter o f public or general interest. Such statements are know n as a declaration as

« p

to public and general right. Public rights are those rights found common to all

members o f the state, example, right o f highway and ferry or o f fishery in tidal
137. 1926,98 Ind. cas. 43 (Calcutta) as pointed in W.H. Rattigan, [Link] p.99.
138. AIR 1936Lali. 551.
139. Section 32(4) o f the Indian Evidence Act, 1872.
 87

rivers. General rights are those affecting any considerable section o f the community.

The declarations are to be made before the actual dispute had arisen in regard to

which they are tendered as evidence. T he reason why the statements o f deceased

persons are admitted upon the public right or custom made ante-litem mortem

(where there was no existing dispute respecting them) is that those declarations are

considered as disinterested and dispassionate and m ade w ithout any intention to

serve a particular cause or mislead the posterity.140

(c) P roof o f custom by transaction

Transactions will be relevant for the p ro o f o f custom in which the custom in

question has been created, claimed, asserted etc. and not the transaction in which a

casual reference to such a custom is made. Section 13(a) o f the Indian Evidence

Act, 1872 lays down that if in a transaction in w hich a custom was involved, such

custom was taken notice of, claimed, modified, relied, asserted, demanded or its

very existence was contrary to the very transaction and the terms thereof, then the

existence or non-existence o f such a custom may be proved by that transaction.

(d) P roof o f custom by instances

The p ro o f o f custom by instances is probably the largest aspect o f p ro o f o f

custom. Instances should be in which a custom is claimed, recognized, or exercised

or in which its exercise was disputed, asserted or departed from section 13(b) o f

the Indian Evidence Act, 1872. Instances-of custom can be o f various types. They

may be oral instances, instances recorded in documents or judgm ents in which

instances were asserted and accepted or rejected. The term instances denotes on

140. BatakLai., The LawofEvidence,(14thedition), 1999p.l71.

 88

something which has once occured. Therefore, instances in which the right or custom

was claimed, recognized, exercised etc. must be instances prior to the suit in

question.

In customary law it is a repeated adage that custom grows out of the instances

and acquired the force and sanctity on their multiplication. These instances may be

in some record or document or they may be in the memory ot people. 1he non

contest o f a right or custom may raise a presumption that custom was so well

recognized that one thought o f contesting it. The uncontested cases are a very good

proof of an alleged custom, for greater the strength o f the custom, the less probability

is there for anybody attempting to controvert it. In the words ofJustice R obertson.41

the very best possible evidence o f a custom is the one which shows that it has been

followed consistently in anumber o f instances without dispute. An instance which

itself is ambiguous cannot be proved by further instances in which it might have

been noticed or discarded.142 The evidence o f instances is very important to prove

a custom but absence o f evidence o f instances is not fatal to the proof o f custom.

The instances, though an important evidence o f custom, are not absolutely essential

to its establishment. The Privy Council in Ahmed Khan v. Channi Bibi.u:' observed

that a court cannot disregard the large body o f general evidence before it in proof

o f customs merely on the ground that specific instances had not been proved, certain

customs may be proved by general evidence as to its existence by members o f the

tribe or family who would naturally be cognizant o f its existence and its exercise

without controversy. However, when a custom is sought to be proved by general

141. Saddan v. Khemi 15 PR 1906 quoted in Dr. Paras Diwan, [Link]. p.35.
142. Diwan (Dr). Customary Law (Punjab and Haryana) 2nd edition, 1984, Publication Bureau. Punjab
University, p.36.
143. AIR 1925 PC 267.
 89

evidence, the general evidence should be such that there is practical unanimity on a

point o f custom in village after village and among a large number o f w itnessess . 144

(e) P ro o f by village oral traditions

It is an accepted position that the village oral traditions have been considered

to be a good evidence o f custom. The delibrate and well considered opinion o f the

people living under and governed by custom is a recognized mode o f proof o f custom.

The question w hether or not a particular custom does prevail in any particular tribe

is a matter on which tribesman themselves are in the best position to pronounce an

opinion. W henever questions as regard to tribal customs are to be determined, the

parties try to secure the evidence o f the members o f that tribe and even people

living in the neighbourhood, as regards the existence and non-existence o f the custom.

The people o f a particular community are the best and the m ost trustworthy

repositories o f the traditions which go to constitute a particular custom prevailing

in that community and their evidence, therefore, is o f a great value . 145 A rule o f

custom may be established and held to be o f binding force even where no instances

is forthcoming if there is an overwhelming preponderance o f oral testimony o f

those governed by it and likely to know o f its existence in its favour or if it is fairly

deducible from the analogy o f other well known principles o f customary law. It was

held by their Lordships o f the Privy Council in Ahmed Jahan v. Channi Bibi, 146

that custom could properly be proved by general evidence given by the members o f

the family or tribe w ithout p ro o f o f specific instances. In the present case, there

was overwhelming oral testimony that in this locality amongst jats unmarried sisters

144. SiharKaurv. Raja Singh (1911) 12 PLR378,cited in Dr. Paras Diwan, [Link] p.37.
145. Rustomji Kaikhrosru., A Treatis on customary law in the Punjab (4th edition) 1942, Published by
Univesity Book Agency p. 79.
146. A1R1925P.C. 267.
 90

succeed for life or till their marriage to the land o f their deceased brother which

was not ancestral quo reversinoners. It was the m ost important consideration that

not less than fourteen lambardars had deposed to this custom. Thus, oral tradition

o f the village is a very important evidence to establish the existence o f a custom.

(f) P ro o f o f custom by written memorials

R ecords o f rights or customs prepared by public officers (Settlem ent

Officers) are important piece o f evidence. Written memorials such as the wajib-ul-

arz or the Riw aj-i-am are also good evidences for proving the existence o f a valid

custom (section 35 o f Indian Evidence Act, 1872).

(g) P ro o f by judicial decisions

A decision in a case o f custom is not a judgem ent in rem. It is only relevant

under section 13 o f the Indian Evidence Act, 1872 as judicial instance o f the custom

being recognized.147 The reason for the relevancy o f a judgm ent in a case o f a

custom under section 13 o f the Indian Evidence A ct, 1872 as judicial instance o f

the custom may be arrived at betw een certain parties w hile there may be another

decision in a suit arising between other person.148 A s per section 13, where the

question is as to the existence o f any right or custom, the relevant facts are to be

ascertained from any transaction by which the right or custom in question was

created, claim ed, m odified, recognised, asserted or denied, or w hich was

inconsistent w ith its existence. It can be also ascertained from particular instances

in which the right or custom was claimed, recognised, or exercised or in which its

exercise was disputed asserted or departed from.

147. RustomjiKaikhrosru,[Link],p.69,
148. AIR 1934 Lah. 861, observed in Rustomji, [Link] /69.
 91

In Sher Mohammad v. Jawahr Khqtun, 149 it has been held that a judgm ent

on a question o f custom is relevant not merely as an instance under section 13 o f

the Indian Evidence Act, 1872 but also under section 42 o f the same A c t as evidence

o f the custom. W hen a custom is repeatedly ascertained and acted upon judicially,

the production o f such judicial decision is sufficient to prove the custom. It was

observed:

It was argued that the judicial decision counts only as an instance but a

judgm ent on a point o f custom is also relevant under section 42, Evidence Act.

Besides, the value o f the decision depends upon the nature o f the enquiry and

evidence produced. It may happen at times that the riwaj-i-am is held to be conclusive

merely because no evidence has been produced to rebut it; as for instance was the

case in A IR 1925 Lah. 842. On the other hand there was a very elaborate enquiry

made in the case reported in 13 Lah. 276. The two decisions, therefore, cannot

obviously be placed on the same footing. A lthough an initial presum ption o f

correctness attaches to an entry in the riwaj-i-am, the presumption is a rebuttal one,

and there is no good reason why that presumption should not be held to be rebutted

by a finding arrived at after an exhaustive enquiry, as it was in 13 Lah. 276. It is

indeed difficult to say how the presumption attaching to the entry in the riwaj-i-am

can be rebutted in any other way.

The general opinion thus seems to be in favour o f the view that a decision on

custom only becomes a relevant instances under section 13 o f the Indian Evidence

Act, that such a right has been asserted and recognized. It is always necessary to

assert and prove what the custom is. However, to the general rule that all the customs

149. AIR 1938Lah.309,[Link],p.70.

 92

have to be proved, section 57 o f the Indian Evidence Act provides an exception. In

Ujagar Singh v. Mst. Jeo, 1S0 the Supreme Court observed that when a custom has

been recognized by the courts, it passes into the law o f the land and the pro o f o f it

then becomes unnecessary under section 57(1) o f the Evidence Act. The Lahore

High Court and the Punjab High Court have consistently expressed this view. They
„ »

observed that where a custom has been repeatedly brought to the notice o f the court

and has been recognized regularly in a series o f judgm ents extending over a long

period o f time, such custom attains the force o f law and is no longer necessary to

prove it in each individual case.

(h) P roof by authoritative manuals o f customary laws

Authoritative manuals o f customary law are sometimes considered as valuable

evidence for p ro o f o f customs. Certain private manuals and books prepared on

customary law by great exponents o f custom are o f great evidentiary value. For

instance, Rattigans D igest on customary law o f Punjab throws a good deal o f light

on Punjab customs and may be used for the purpose o f proving custom. Such manuals

and digest as evidence o f p ro o f o f custom have to be used w ith caution,151 the

Supreme Court said that although R attigan’s D igest is o f the highest authority on

questions o f custom o f the Punjab, the judicial notice o f the custom stated therein

can be taken only if it has .been well recognized by the decisions o f the courts o f

law. In a series o f cases the Supreme Court has held that whatever there is a conflict

between an entry as to custom in riwaj-i-am and in Rattigan’s Digest, the presumption

is the entries in riw aj-i-am are correct.152 From all these judicial decisions, it can

be conclusively said that official records and/or manuals are also important evidence

to establish not only the existence o f custom but its legal efficacy as well.
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150. AIR 1959 SC 1041.

151. DiwanParas,[Link],4 4 In U jagarvJeoA IR 1959SC 1041.
152. JedKaur v. Sher Singh (1960) 3 SCR 975.