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Sources of Indian Laws
“Society cannot exist without law. Law is the bond of society: that which makes it, that which preserves it and keeps it together. It is, in fact, the essence of civil society.”- Joseph P. Bradley
The expression "law" has various definitions; in layman’s language, "law" means the set of rules which a particular country recognizes as regulating the actions of its individuals and which it may enforce by the imposition of penalties or some other punishments. Salmond defines law as "the body of principles recognized and applied by the state in the administration of justice."
It is necessary to understand the different sources of law, as it is originated from various sources. It is very important to recognize that the law of every land is derived from some sources, so it is necessary that first understand the sources of law in India before getting into any other concept of law.
Some jurists argue that prima facie, the source of law is the society itself, while for others, the will of the sovereign is considered the exclusive source of law. The eminent jurist Austin puts sole reliance on one point, viz., that the sovereign is the only source of law. According to him, the legislation is most appropriate because it is the most direct expression of the sovereign’s will. Legal sources of law are those sources which are recognized as such by the law itself, for example, the statute laws, customs, precedents, etc.
Major Sources of Indian Laws
Various sources of Indian law are −
Customs, or "customary laws," are the usages and practices that date back to ancient times. "Custom" is a habitual course of conduct observed uniformly and voluntarily by the people concerned. It is one of the oldest forms of lawmaking. In primitive societies, human conduct was regulated by practices that grew up spontaneously and were later adopted by the people.
According to the Savigny custom, which is an authoritative source of law in and of itself. According to them, the present cannot be understood without reference to the past.
In India, though legislation is an important source of law, customs still hold a very important place, and their importance has been recognized by law as valuable in the administration of law and justice.
Essentials of valid customs are −
Customs must be centuries old.
It must be reasonable and still practiced by society at large.
It must not be contrary to justice and equity.
It must be continuous.
The various examples of customary laws in India are −
The Hindu Marriage Act and the Hindu Succession Act have left the door open for the recognition of tribal customary laws and practices of Scheduled Tribes under Section 2(2).
Under Indian Evidence Act, Section 13 deals with the facts relevant for the proof of customary law.
Judicial precedent, pretty common in a common law system country, is an independent source of law. It is an essential feature of English law and also known as common law. "Precedent" means a previous instance or case decision that is or may be taken as an example or rule for subsequent cases. Keeton says that a judicial precedent is a decision to which authority has, in some measure, been attached. They are also known as judicial pronouncements. When judicial pronouncements are cited, they should be Indian; if they are foreign, it should be ensured that the foreign country follows the same legal system as Indians.
Precedents are based on the Latin maxim "stare decisis," which means adhering to and relying on previous decisions and pronouncements made by the court of law. For example, the Supreme Court’s judgement is binding upon all other courts of India in similar circumstances. This is because the supreme court has set a precedent for the lower courts, and the lower courts are bound to follow it. In fact, it is constitutional provision, as Article 141 states that the Law declared by the Supreme Court of India shall be binding on all courts within the territory of India.
Examples of precedents in India are −
D.K. Basu vs State of West Bengal AIR 1997 SC 610, is a case related to the increase in number of custodial deaths in India. Supreme Court gave detailed guidelines on the procedure of arrest. Hence, Section 41 of the Criminal Code of Procedure, 1973 was amended.
In modern times, legislation is considered to be the most essential source of law in India. The expression "legislation" is derived from the Latin words ‘legis’ meaning law, and "latum," which means to make or set. In fact, legislation is relatively new. Most of the early statutes are no more than the formal promulgation of well-established customs. According to Salmond, legislation is the source of law, which consists of the declaration of rules by a component authority.
In India, the Parliament, which consists of the Lok Sabha and the Rajya Sabha, is responsible for making laws.
Personal laws are the laws legislated on the basis of the socio-religious practices of a specified community. The various subject matters governed by the personal laws are principles relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession, etc. In India, the two major Personal laws are Hindu Law and Muslim Law.
Sources of Hindu Laws
Major sources of Hindu laws are −
Srutis − It literally translates as "what was heard.” It is the primary and most important source of Hindu law, containing the Vedas, which are considered to be the words of God.
Smritis − It means that what is remembered and believed to be based on the last text of the Vedas, is not in the exact language of the revelation.
Nibandhas − All the smritis did not agree with one another in all respects, and this conflict led to several interpretations being put upon them, which gave rise to commentaries called Nibandhas.
Puranas − They are codes that illustrate the laws through instances of their application.
Customs − Customs are the traditions and practices that a particular community has been practicing for hundreds of years.
Besides, in the modern legal system (as discussed above), the major sources of Hindu law are legislation and judicial decisions.
Sources of Muslim Laws
Major sources of Hindu laws are −
Quran − It is the primary source of Muslim law. The Quran, which is also spelled as Qur'an or Koran, is the main religious text of Islam, as it is believed by Muslims to be a revelation from God.
Ahadis and Sunna − They mean the traditions of the Prophet. Whatever the Prophet said or did without reference to God is treated as his traditions and is the second source of Muslim law.
Ijma − When the Quran and Ahadis could not supply any rule of law for a new problem, the jurists used to agree unanimously and give their common opinion on that point
Qiyas − When the law in one of the three sources does not directly apply to a specific case, qiyas is an analogical deduction derived from a comparison with the law in the other two sources.
Examples of Hindu laws in India are−
The Hindu Marriage Act, 1955
The Hindu succession act, 1956
The Hindu Minority and Guardianship Act, 1956
The Hindu Adoption and Maintenance Act, 1956
Examples of Muslim laws in India are −
The Muslim Women (Protection of Rights on Divorce) Act,1986
The Kazis Act,1880
The Dissolution of Muslim Marriages Act, 1939
Foreign Decisions & Treaties
For the purpose of constructing Indian statutes, the decisions of foreign courts that follow the legal system are taken into account. These foreign decisions have persuasive value only and are not binding on the Indian courts.
International conventions are generally not resorted to for the purpose of interpretation, but only serve as the basis of any law.
In the modern era, the main source of law is legislation, but that does not mean that judicial decisions, and customs are ignored; in fact, these are also equally important sources of Indian law. Every source of law finds its expression in a language. Moreover, all of the sources of law mentioned above have played an important role in constructing law and answering the question of what are the sources of law or different sources of law. All these sources of law play a very important role in different changes and decisions made for justice.
Frequently Asked Questions
Q1. What is the oldest source of law?
Ans. Customs are the oldest source of law. Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned for many years.
Q2. What are the major types of laws?
Ans. The major types of laws are: Civil Law, Criminal law, and Administrative Law.
Q3. What are the major sources of Muslim law?
Ans. There are 4 formal sources of Muslim law namely- Quran, Hadiths, Ijma and Qiyas.
Q4.Which one is the first written law?
Ans. The Code of Hammurabi is believed to be the earliest written legal code and was proclaimed by the Babylonian king Hammurabi. Hammurabi ruled the city-state of Babylon from 1792 to 1750 B.C.
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