Legal Recognition Of Customary Practices - Constitutional Perspectives

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:31:36.874317+00:00

Updated: 2026-08-26T17:10:39.911+00:00

LEGAL RECOGNITION OF CUSTOMARY PRACTICES:

CONSTITUTIONAL PERSPECTIVES

Kashak Agarwala, United World School of Law, Karnavati University, Gandhinagar, Gujarat.

ABSTRACT

This project looks at the importance of customary practices within India’s legal system, specifically focusing on how they protect the rights and cultural heritage of native and local groups. The study starts by looking at how the Indian Constitution recognizes customs as a valid legal source, highlighting their coexistence with laws made by the government. It explores the characteristics of customs, how they are categorized, and the standards for their acceptance, showing how they have developed and become officially recognized rules. The research also points out significant court cases that have influenced the interpretation and use of customary laws, showing how they are in line with the constitution’s principles of justice, equality, and human rights.

CHAPTER 1: INTRODUCTION

Legal recognition of customary practices is essential for preserving the rights and customs of indigenous and local communities. Customary law, which includes customs, beliefs, and practices, is key in shaping their identity and regulating different facets of their lives. Custom is acknowledged as a significant legal source in India’s legal framework. Article 13(1)1 of the Indian Constitution states that any laws conflicting with the Constitution upon its enactment are deemed void. The Constitution’s definition of “law” encompasses “custom or usage that holds legal force within the territory of India. ” The Indian Constitution acknowledges traditions and customary practices, affirming that all pre-existing laws remain valid until they are amended or repealed2. This ensures that the entire legal framework of India prior to the constitution’s enactment is maintained.

In addition to statutory laws, tort laws, Hindu laws, Muslim laws, and customs also hold legal significance. In Article 133 of the Indian Constitution, it states that the definition of “law” encompasses “customs” and “usage” that hold legal weight. Courts are bound by well-established and specific ancient customs just like legislative Acts. Nevertheless, any custom or practice with legal significance must not violate the fundamental rights protected under Part III of the Constitution.

CHAPTER 2: LITERATURE REVIEW

and adequate in respect for empowerment, a changing legal traditional laws cultural environment as of indigenous preservation, and it respects the people, access to justice. rights of native especially within communities changing legal and their legal systems of systems. countries like Papua New Guinea in light of national and global jurisprudence progressions.

02. Research

Legal Systems The paper takes The research gap Study how Paper as cultural a critical look at in this topic is certain laws and rights: A right’s how tribal rights focused on policies are based approach and cultures are finding practical helping tribal to traditional diminishing in solutions within communities in legal systems India, the Indian India protect under the suggesting a constitution to their rights in Indian move towards a guarantee that today’s changing Constitution.5 rights-based tribal society. Look at approach to communities can how these reconcile access justice changes are between state’s and safeguard being seen from development their rights the perspectives agenda and despite the of local indigenous obstacles they communities and people’s rights face to their their own within the Indian cultural identity initiatives.

constitutional and selfframework with governance. an emphasis on the basic right of all tribes to get justice.

03. Report

Traditional This report Need for more Look at how Customary explores the studies to decisions made Laws and varied landscape understand how by indigenous Indigenous of traditional social and courts are being Peoples in legal practices cultural changes, enforced, and Asia.6 among as well as whether or not indigenous government customary communities in attitudes, are personal laws are Asia. It delves affecting the being formally into their legal traditional laws documented or standing, of indigenous written down. decline, and peoples in Asia. interaction with conventional legal frameworks, highlighting the obstacles they encounter in upholding their traditions in the face of societal shifts and government resistance to

acknowledging or honoring them.

04. Research

Customary The article The research gap Conduct Paper International explores the use pertains to the comparative Law in Indian of Customary practical analyses with Courts.7 International implications and other Law principles limitations of jurisdictions to in Indian courts, integrating identify best highlighting Customary practices in their role in International integrating promoting Law principles Customary progressive into Indian International legal thought domestic legal Law principles and upholding discourse, as into domestic fundamental well as the legal systems, rights, while effectiveness of while also also questioning alternative exploring the effectiveness methods to stakeholder of current improve

CIL

perspectives to approaches. utilization in the ensure effective Indian judicial implementation system. in India, contributing to a more inclusive legal framework.

Sui Generis driven by its this knowledge, knowledge on Law in India8 exploitation especially indigenous and through modern indigenous and local technologies local communities, like communities, are and create fair biotechnology, respected within legal measures underscores the both that empower pressing international and knowledge requirement for national legal holders and both global and systems, which encourage local initiatives currently lack sustainable to create legal sufficient development. structures and safeguards. legal precedents that can ensure the protection of the rights of those who hold this knowledge, particularly indigenous and local communities.

customary to significant attempts to affected different codified law.9 changes as it modernize and aspects of Indian seeks to become establish a society. This more secular and system of Hindu could involve structured, law in India, looking at how despite specifically in these reforms resistance from terms of how to have influenced traditionalists. maintain social norms, This reflects the traditional family dynamics, ongoing tension practices while and individual between also striving for rights, with the preserving consistency goal of tradition and through legal developing legal embracing changes. This approaches that modernity in the will help us are more development of grasp the inclusive and Indian legal intricacies of the culturally systems. development of sensitive. Indian law.

07. Journal

Customary The changing One area needing Explore how Law: The Way role of further cultural diversity Things Were, traditional law in exploration is and historical Codified10 Native understanding context influence American tribal how Native the interpretation courts shows American tribal and different ways of courts apply implementation handling cases evidentiary of traditional and standards of standards to laws in different

evidence, determine the Native American emphasizing the validity and use tribal courts. importance of a of customary This study would detailed grasp of law. This specifically its research can examine how characteristics provide insight these factors and application into the factors impact legal in the overall that impact the decisions and the legal system. role of availability of customary law justice for within tribal indigenous legal systems. groups.

CHAPTER 3: CUSTOMS AND CUSTOMARY LAWS

3.1. What are customs?

Initially, it is essential to comprehend the definition of custom in order to comprehend customary rules. It is a practice that has gained legal authority due to its widespread use and long-standing habit. A custom is a usage that grants a class of people from a specific section of the community the right to exercise certain rights against certain other people or things in the same community. 11 There are two sources of law- (a) legal (b) historical, Customs comes under the legal sources of law. They are the oldest and most important sources of law. It means “Uniformity of conduct of people under like circumstances”.

The word ‘custom’ literally, grammatically, or ordinarily means; tradition, practice; usage; observance; way; convention; procedure; ceremony; ritual; ordinance; form; formality; fashion; mode; manner; shibboleth; unwritten rule; way of doing things; formal; praxis; style; etiquette; routine; habit; usual; rite; Solemn; unwritten code; conventional social behaviour; etc. 12 Customs are generally because of Public Faith. Custom has been described by different legal jurists based on their own ideas, interpretation, beliefs, perspectives, and thoughts13. According to Salmond, ‘State Of Bihar & Ors vs Subodh Gopal Bose & Anr on August, 1967’ accessed 22 April 2024.

12 ‘TOPIC: CUSTOM AS A SOURCE OF LAW’.

13 ‘LL.M IInd Sem Jurisprudence II (L-2002) Sources of Law Introduction’.

“Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility”. According to Austin, “Custom is a rule of conduct which the governed observe spontaneously and not in a pursuance of law set by a political superior”. In the case of Harprasad v. Shivdayal14 the judicial committee of the Privy Council observed, “Custom as a rule which in a particular family or in a particular district or in a particular sect, class or tribe, has from long usage obtained the force of a law. ” According to Herbert spencer, it is tradition passing on from one generation to another that originally governed human conduct. Customs played a considerable role in the evolution of early provided material for other law constituting agencies, especially legislation.

They are absolute, it is not necessary for the court to recognize them, they are not binding. Ex- Wearing black on funerals. Whereas, certain customs are binding. Ex- a Hindu Marriage should be solemnized with performance of Saptapadi15 to it to be legally valid.

3.1.1. Reasons for recognition of Customs:

i. Conviction on Faith ii. Constant use iii. Sanction of the society

3.2. Types of Customs

There are two categories for Custom: • Custom with no sanction; and • Custom with sanction. o Legal Custom § General custom § Local Custom ü Geographical ü Personal o Conventional Custom § Local Custom

14 Harprasad v Shivdayal.

15 ‘Hindu Marriage Act, 1955’ accessed 22 April 2024.

§ General Custom Custom Without Sanction: These refer to the optional customs. All of them are observed because public opinion is there. Positive morality is the Austinian word for them. Custom Having Sanction: These are the traditions that the government upholds. There is sanction behind these customs. These further divided two sorts of customs are as follows: • Legal Custom: The customs that hold total and unconditional legal power are known as legal customs. These traditions function as enforceable laws. They are now a part of the national legislation after being acknowledged by the courts. The judiciary upholds them. 16 • Conventional Custom- A conventional custom also known as “usage,” is an established practice that is binding on parties only if they accept and incorporate it into their agreement. They should be proved before the court as a question of fact.

The court takes judicial notice on them to establish as precedent. The custom is embodied in a statute and takes its final shape. A conventional custom or usage which does not possess absolute authority is clearly distinguishable from a legal custom having a force of law. The division is further of two types: o Local customs - that apply to a specific locality, such as a district, town, or area. They can be geographical or personal, and can be valid for a specific locality, set, or family. Local customs are defined by Hasbury as rules that have existed since time immemorial and have the force of law in that locality, even if they contradict or are inconsistent with the common law. o General customs - laws that prevail throughout the country and constitute one of the sources of the land’s law.

They must be reasonable, followed, accepted as binding, not conflict with the country’s statute law, and have existed since ancient times. Keeton argues that a general custom must satisfy certain conditions to be a source of law.

3.3. Tests for valid custom

Legal customs must reflect principles of justice and public utility endorsed by national conscience. It provides a basic for rational expectation of continuity.

16 ‘TOPIC: CUSTOM AS A SOURCE OF LAW’ (n 12).

Antiquity: A legitimate custom must be prevalent from time immemorial and not of ongoing origin. Manu argued that immemorial custom is supernatural law, and days of ancient times are inferred in civil law in England. In England, a valid custom must be at the time of Richard I King’s rule, which was 1189 AD. However, the English principle of ‘immemorial inception’ is not followed in India. In Gokul Chand v. Parvin Kumari17, the Supreme Court denied measuring the validity of a custom from 1189 AD but explicitly stated that it must be of ancient and historical times. • Reasonability: In legal trials, a legitimate custom must be reasonable and not unreasonable. It should benefit the general public and anyone challenging a custom must prove to the court that it is unreasonable.

The burden of proof lies on the challenger, and the history of the custom must be considered to determine its reasonableness. An unreasonable custom must cause more harm than good in order to be deemed invalid. The Bombay High Court ruled in Narayan v. Living18 that a custom allowing a woman to marry again without mutual agreement was shameless and arbitrary. The court’s standard for reasonability is characterized by the Divisional Court of the King’s Bench in Produce Brokers co. vs Olympia oil and coke co. , which considered grounds of valid customs as reasonable, legitimate, and impartial. • Continuity, Certain and Precise: A tradition must be consistently followed from the beginning without any breaks. If a community fails to follow a tradition continuously, a court may have the authority to nullify it. Therefore, traditions must be followed consistently and continuously.

In the case of Hampton v. Hono, it was determined that if a tradition is not practiced for a significant period of time, it will no longer be considered a valid tradition. A valid and essential custom must be specific and less ambiguous, as it can be declared null and void by the court if it is unclear and incomprehensible by the parties, as ruled by the Privy Council in Wilson vs. Wilson. • Conformity with Statutory Laws: A custom must have a legal basis and pertain to legal

which takes into account public policy. In the case of Buldano vs Fasir19, a custom that permitted a woman to remarry while her husband was still alive was deemed invalid by the court because it went against public policy.

3.4. Customary Laws

In India, customary law is a set of traditions and practices that have developed over time within specific communities and have been officially acknowledged due to their widespread acceptance20. These laws cover a range of community matters such as marriage, inheritance, property rights, and conflict resolution. Unlike laws passed by government bodies, customary laws arise naturally from the customs and traditions of a community. They are mainly applicable to specific groups within a community, especially in tribal areas21.

3.4.1. Customary laws in tribal areas

Customary laws are crucial for tribal communities and provide fundamental concepts and challenges to understand their interaction with modernity. They are recognized by the Constitution through the Sixth Schedule or constitutional amendments like Article 371A22 in Nagaland and 371G23 in Mizoram, acting as an interface between their informal system and formal legislation.

3.5. Recognition of Customary Laws

The acknowledgment and formalization of customary rights by judicial systems, with their long history of application, have given rise to customary laws. In 1872, the Indian Evidence Act officially recognized these rights, specifically addressed in Section 13 regarding the proof of customary law. The Indian Constitution, in Article 13, treats customary law on par with other civil laws, affirming that verified customs hold legal status. Additionally, the Indian Evidence Act grants courts the authority to acknowledge and uphold these customary rights under Section 5724.This legal framework recognizes and protects the unique traditions and practices of local communities, reflecting their cultural values and norms. This acknowledgment helps communities preserve their independence and longevity, emphasizing the significance of customary practices in India’s contemporary legal system.

19 Buldano vs Fasir.

20 ‘Research Guide: Customary Law in India’ accessed 22 April 2024. 21 ‘Customary Laws and Its Constitutional Validity’ accessed 22 April 2024.

22 The Indian Constitution.

23 The Indian Constitution.

24 The Indian Evidence Act 1872.

3.6. Theories regarding transformation of Custom into Law

i. Analytical Theory - It says custom gains legal validity through state recognition via statute law or precedent.25Custom is seen as historical material source of law. Austin sees it as judiciary law build upon preceding customs. Holland and Salmond supported it by saying Custom becomes law when recognized by a law and meets legal validity. There was a critique by Allen which says customs are recognized due to community acceptance and not solely cause of legislative decree. ii. Historical Theory – Given by many jurists such as Savigny, Puchta, Blackstone, Maine, etc. It says law originates from common consciousness of People. Savigny notes that customary laws can override statutes and create new laws. Maine regards it as formal legal source. It is fundamental in traditional and tribal settings but may adapt in changing situations.

CHAPTER 4: CASES GIVING VALIDITY TO CUSTOMARY LAWS

i. The manner in which the Indian legal system views customary laws has been greatly influenced by the Supreme Court’s decision on them. A landmark decision in the matter of Smt. Ass Kaur (Deceased) By L. Rs. vs. Kartar Singh (Dead) By L. Rs. & Ors26 highlighted the delicate balance between custom and codified law by emphasizing that customary laws would take priority in situations where statutory laws are silent. In addressing concerns about the legality of customs, the court emphasized that those principles should be in line with justice, equality, and good conscience. It distinguished, therefore, between a custom’s ethical basis and its pure application, implying that traditions devoid of these core principles might not be upheld even in spite of their longstanding commitment.

In addition, the court explained cases dealing with legal statutes, like the Child Marriage Restraint Act of 192927, stating that there needs to be clear legislative intent to override traditional customs. ii. The Supreme Court’s ruling in the case of Indian Young Lawyers’ Association v. State of Kerala28 also called the Sabrimala Verdict, a conflict of custom and law, demonstrates the intricate balance between customary practices and statutory laws. By invalidating a traditional restriction prohibiting women of a certain age from entering the Sabarimala

25 The Constitution Of India.

26 Smt Ass Kaur (Deceased) By LRs vs Kartar Singh (Dead) By LRs & Ors (2007) SUPREME COURT 2369.

27 Child Marriage Restraint Act 1929.

28 Young Lawyers’ Association of India v State of Kerala.

temple, the Court affirmed the importance of constitutional rights over discriminatory customs. This decision has been praised for upholding the rule of law and promoting fairness in society. iii. Furthermore, the Supreme Court’s ruling in the Jallikattu case29 expanded the conversation on justice to include animal rights by banning the traditional Jallikattu sport due to its cruelty. This decision was a significant advancement in promoting justice for all living beings, challenging practices that put animals and humans at risk. The court determined that this ritual went against the constitutional rights of animals outlined in Article 51-A (g)(vii) and (h)(viii)30, which are part of the Fundamental Duties that citizens are required to adhere to. It was believed that these norms promoted cruelty and unethical behaviour under the guise of sports. iv. In the case of Sarla Mudgal v.

Union of India31, the Supreme Court of India discussed the legality of traditional divorces in Hindu personal law. The court determined that practices like triple talaq, which disadvantage women, go against the constitutional values of fairness and equal treatment. v. In the Kesavananda Bharati v. State of Kerala32 case of 1973, a significant doctrine known as the basic structure of the Indian Constitution was established. This ruling ensures that all laws, including traditional customs, must align with the core principles outlined in the Constitution, even if they are not directly connected to customary laws.

CHAPTER 5: CONCLUSION

justice within the legal framework, ensuring that traditional practices are respected, protected, and upheld in the ever-changing landscape of law and society. The goal is to ensure that customary practices are valued and maintained in the evolving world of law and society.

BIBLIOGRAPHY

Alfred P. Minei and Sam O. Kaipu, ‘Indigenous Customary Law in Context’ (2022) 19 US- China Law Review Article

51A:

Fundamental Duties - Constitution of India’ accessed 22 April 2024 College W and Rosser E, ‘2009-15 CUSTOMARY LAW: THE WAY THINGS WERE,

CODIFIED

TRIBAL

L’

(2008)

J

accessed 22 April 2024 ‘CONSTITUTION Shubhankar Dam’ Cuskelly K, ‘Customs and Constitutions: State Recognition of Customary Law around the World’ ‘Customary Laws and Its Constitutional Validity’ accessed 22 April 2024 Gopalakrishnan NS, ‘Protection of Traditional Knowledge: The Need for a Sui Generis Law in India’ (2002) 5 Journal of World Intellectual Property accessed 22 April 2024 ‘Hindu Marriage Act, 1955’ accessed 22 April 2024 ‘Law Journal Library - HeinOnline.Org’ accessed 22 April 2024 ‘LL.M IInd Sem Jurisprudence II (L-2002) Sources of Law Introduction’ ‘(PDF) Customary International Law in Indian Courts’ accessed 22 April 2024 Raja Devasish Roy B, ‘Report Traditional Customary Laws and Indigenous Peoples in Asia’

‘Research Guide: Customary Law in India’ accessed 22 April 2024 ‘State Of Bihar & Ors vs Subodh Gopal Bose & Anr on 22 August, 1967’ accessed 22 April 2024

‘TOPIC: CUSTOM AS A SOURCE OF LAW’

Animal Welfare Board Of India vs A Nagaraja & Ors Buldano vs Fasir Gokul Chand v Parvin Kumari Harprasad v Shivdayal Kesavananda Bharati v State of Kerala Narayan Bharthi vs Laving Bharthi And Ors Sarla Mudgal v Union of India Smt Ass Kaur (Deceased) By LRs vs Kartar Singh (Dead) By LRs & Ors (2007) SUPREME

COURT 2369

Young Lawyers’ Association of India v State of Kerala Child Marriage Restraint Act 1929 The Constitution Of India The Indian Constitution, Art. 13 The Indian Constitution, Art. 13(1) The Indian Constitution, Art. 371(A) The Indian Constitution, Art. 371(G) The Indian Evidence Act 1872