INTRODUCTION
Customs or traditions lay the foundation for various communities and societies. They act as a guiding principle that people in a certain community follow concerning how they behave or how they live their regular lives. When something is done in a certain way for a long time and has been generally accepted, it becomes a custom.[1] The people respect their traditions and always tend to act according to them. For example, it is a Hindu custom to always touch the feet of elder people. These customs often have some sort of historical value, which influences people to follow them diligently. In this blog, we are going to discuss some laws that are derived from customs and traditions.
BACKGROUND
Customary laws existed in India long before the existence of written laws. They emerged from the daily practices and beliefs of various communities, which were passed down through generations. In ancient India, the concept of law was closely linked with Dharma (righteousness). It was not only a religious duty but also a set of ethical and moral principles that helped guide social behaviour.
The British colonial period brought a significant transformation to India’s legal system. It introduced us to formal codified laws that were based on English common law, which led to the marginalization of customary laws. However, the British administration recognized the importance of customs in governing the lives of the people and brought several customary practices as formal laws, particularly in areas such as marriage, inheritance, and property rights.
NATURE AND SCOPE OF CUSTOMARY LAWS
Customary laws can vary widely all across India because of the country’s immense cultural diversity. The customary laws are not static; they evolve with the changing social and cultural circumstances of the communities that follow them.
Some of the areas that are governed by customary laws include:[2]
Marriage and Family Laws: Most of the communities in India adhere to their customary practices in matters of marriage and family. For instance, many tribal communities often follow their customs in matters of marriage, separation, and divorce. These may include traditional marriage ceremonies, rules regarding succession, etc.
Inheritance Rights: Customary laws often dictate the inheritance rights of individuals. These laws can differ from the statutory laws made in modern times. It describes the unique social structures of the various communities.
Land and Property Rights: Land ownership and usage can also be influenced by customary laws. Several rural and tribal communities dictate communal ownership and collective rights of land and property over individual ownership.
Dispute Resolution: The customary laws of our country also influence the dispute resolution mechanisms within different communities. The traditional panchayats (village councils) and tribal councils often help in resolving conflicts based on customs. This provides a culturally relevant and accessible form of justice.
RECOGNITION AND ENFORCEMENT
The Indian legal system recognizes all the various customary laws on the condition that they do not conflict with statutory laws or with the principles of justice, equity, and good conscience. The Constitution of India highlights the importance of preserving the customs and traditions of all the communities present in India, particularly in Schedule V and Schedule VI, which provide for the administration of tribal areas.[3] Several landmark judicial decisions have strengthened the significance of customary laws. For example, in the case of Madhu Kishwar vs. the State of Bihar (1996)[4], the Supreme Court upheld the customary inheritance rights of tribal women, which recognized the importance of customary practices in ensuring social justice.
However, enforcing the customary laws comes with some challenges. The unwritten nature of these laws means that they can be interpreted differently according to different circumstances, which may lead to inconsistencies. Moreover, proving the existence or validity of certain customs in a court of law can sometimes be difficult due to a lack of documentation.
IMPORTANCE OF CUSTOMARY LAWS IN MODERN INDIA
Despite the dominance of statutory laws, customary laws continue to hold significant importance in modern India. They provide a sense of continuity and identity for communities, preserving traditions that have been passed down through generations. Customary laws also offer practical solutions to local issues, often being more accessible and understandable to the people they govern than formal legal codes.[5]
Moreover, customary laws can complement statutory laws by filling gaps in the legal system. For example, in areas where statutory laws are silent or ambiguous, customary laws can provide guidance and clarity. This complementarity can enhance the overall effectiveness of the legal system, ensuring that it is more responsive to the needs of diverse communities.[6]
CHALLENGES AND CRITICISMS
The customary laws, despite their cultural significance, face criticism due to concerns about social inequalities and discrimination. Some customary practices may encourage gender discrimination by denying women their rightful share of property or restricting their rights in marriage and divorce.[7] Another significant challenge present is the conflict between the customary laws and the formal statutory laws. As India is modernizing and adopting more uniform laws, the conflict between customary and formal laws may create legal uncertainties. This can be clearly shown by the example of marriage. While the formal laws aim to provide uniformity and protect individual rights, some customary laws may lead to gender discrimination, resulting in a clash with traditional practices. Combining the customary laws with the formal legal statutes can be complex too, because as the courts recognize the importance of customs, they also understand the importance of aligning them with the principles of justice and equality. To implement this, a deep and proper understanding of the cultural context of customary practices is required.
While customary laws have their strengths, they also face several challenges in the modern era. One of the primary challenges is the potential for conflict with statutory laws. As India continues to modernize and its legal system evolves, there can be tensions between traditional practices and contemporary legal principles. This is particularly evident in cases where customary laws are perceived to violate fundamental rights or principles of justice.[8]
Another challenge is the potential for customary laws to perpetuate social inequalities. In some cases, customary practices may discriminate against certain groups, such as women or lower castes. Ensuring that customary laws evolve to reflect contemporary values of equality and justice is a critical task for the legal system.[9]
CONCLUSION AND THE WAY FORWARD
To address these challenges and preserve the positive aspects of customary laws, there is a need for a multidisciplinary approach. Some of them are:
Documentation and Codification: Detailed documentation and codification of customary laws can provide clarity and help in combining them with the statutory laws. In this way, it would also help preserve the customs and traditions for future generations.
Reformation Practices: Some reforms are required to remove discriminatory customs, particularly those that support gender inequality. Initiatives from all the communities and their people play a crucial role as they can help in ensuring such reforms.
In conclusion, I would like to say that the customary laws in India are a complex system of social conventions and traditions. Even though they present some difficulties, we should not forget their importance in the lives of several communities and their people. It is a challenging but important responsibility to maintain a balance between the demands of modern legal statutes and our historical culture and traditions. By recognizing the value of customary laws and addressing their shortcomings, India can ensure that its legal system reflects the diversity and dynamism of its society.
Author(s) Name: Aashish Gupta (Christ University, Bangalore)
References-
[1] ‘Custom – Definition, Meaning & Synonyms’ (Vocabulary) <https://www.vocabulary.com/dictionary/custom> accessed 16 July 2024
[2] ‘Customary Law in India’ (Law Bhoomi, 12 February 2024) <https://lawbhoomi.com/customary-law-in-india/#What_is_customary_law_in_India> accessed 17 July 2024
[3] Ibid
[4] Madhu Kishwar v State of Bihar (1996) 5 SCC 125 (SC)
[5] ‘Tribal Customary Law – Tribal Cultures of India’ (Tribal Cultures of India) <https://ebooks.inflibnet.ac.in/antp05/chapter/tribal-customary-law/> accessed 17 July 2024
[6] Ibid
[7] Customary Law in India (n 2)
[8] MAITRAYEE CHAUDHURI, ‘Indian “Modernity” and “Tradition”: A Gender Analysis’ (2012) 178 Polish Sociological Review <https://www.jstor.org/stable/41969445> accessed 17 July 2024
[9] Ibid
