VIDHIGYATA VYAKHYA ON ​LIVING TRADITIONS, LIVING LAW: CUSTOMARY PRACTICES IN INDIAN JURISPRUDENCE

A Deep Dive into Customary Laws in India

​India’s legal architecture is a sophisticated mosaic. While the nation operates under a robust codified system of statutes and judicial precedents, its foundation remains deeply rooted in customary law. These are the "unwritten" rules of conduct that emerged from centuries of social usage, predating colonial influence and legislative bodies. In the modern era, customary law represents the intersection of social tradition and constitutional governance, serving as the primary legal reality for millions, particularly within tribal and rural communities.

​ I. The Juridical Nature of Customary Law

​Customary law is fundamentally organic. Unlike statutory law, which is "made" by a sovereign authority, customary law "grows" through the collective consciousness of a community. It is a reflection of opinio juris—the belief that a particular practice is not just a social habit, but a legally binding obligation.

​★Essential Criteria for Legal Validity

​For a social custom to transition into a legally enforceable right, Indian jurisprudence (drawing from common law traditions) requires it to pass a rigorous "litmus test":

• ​Antiquity (The Rule of Immemoriality): The custom must be ancient. While no specific "date" is fixed in India (unlike the English standard of 1189 AD), it must be shown to have existed for a long duration.

• ​Continuity and Peaceable Enjoyment: The practice must be uninterrupted. Any significant break in the usage suggests the community no longer views it as binding.

• ​Certainty and Objectivity: Vague or shifting practices cannot be recognized. The custom must be clear and specific in its application.

• ​ The Moral Bar (Reasonableness): A custom must not be "repugnant" to justice, equity, or good conscience.

• ​ Legal Conformity: Under Article 13 of the Constitution, any custom that contravenes Fundamental Rights is void.

​ II. The Typology of Customs in the Indian Context

​ Customary laws in India are generally categorized based on their application and the communities they govern:

​1. Personal Laws and Religious Customs

​In India, personal matters such as marriage, divorce, and succession are governed by religious affiliation.

​Hindu Law: Historically, the Smaritis and Shrutis acknowledged that "clear proof of usage will outweigh the written text of the law." Even after the Hindu Marriage Act (1955), specific customs (like Saptapadi) are legally protected.

​Muslim Law: Known as Urf or Adaat, customs are recognized as long as they do not contradict the primary sources of Shariat.

​2. Tribal and Indigenous Governance

​The most potent application of customary law is found among India’s 700+ Scheduled Tribes. Here, customs regulate not just family life but also communal land rights and restorative justice.

​Fifth and Sixth Schedules: These constitutional provisions grant tribal areas a degree of legal autonomy, allowing "Village Councils" to adjudicate disputes based on traditional norms rather than the Code of Civil Procedure (CPC).

​ III. The Constitutional Architecture: Protection vs. Progress

​The Indian Constitution does not merely tolerate custom; it actively integrates it, provided it aligns with the modern democratic project.

​Article 13: Explicitly includes "custom or usage" within the definition of "law," meaning customs can be challenged in court if they violate human rights.

​Special Protections (Articles 371A-G): States like Nagaland and Mizoram have "special status" where Acts of Parliament regarding social/religious practices or customary land law do not apply unless the State Legislative Assembly approves them.

​ IV. The Judicial Balancing Act: Tradition vs. Constitutional Morality

​The judiciary acts as the gatekeeper of customary law. In the landmark Collector of Madura v. Moottoo Ramalinga, the court established that custom is a valid source of law. However, the 21st-century judiciary has pivoted toward Constitutional Morality.

​Case Study: The Gender Justice Shift

​Historically, many customary laws were patriarchal (e.g., denying women inheritance).

​Shayara Bano v. Union of India: Struck down practices like Triple Talaq, emphasizing that religious custom cannot override the right to equality.

​Sabarimala Case: The Supreme Court ruled that a custom (excluding women of a certain age) must yield to the fundamental right to worship and dignity.

​​ V. Contemporary Challenges:

The Friction Between Tradition and Modernity

​The survival of customary law in a 21st-century constitutional democracy is fraught with tension. While these laws provide cultural identity, they face four critical hurdles:

​1. The Burden of Proof and Lack of Documentation

​Unlike statutes, which are printed in gazettes, customary laws are largely unwritten and oral. In a court of law, this creates a significant evidentiary challenge.

​ The "Fact" Status: Under Indian law, a custom must be proven as a fact before it can be accepted as law.

​ Reliability: Relying on the memory of village elders or oral traditions can lead to inconsistencies, making it difficult for judges to determine the exact scope of a practice.

​2. The Conflict with Universal Human Rights

​Perhaps the most significant challenge is the Gender Gap. Many customary regimes—especially those involving inheritance, property ownership, and succession—are inherently patrilineal.

​Discriminatory Practices: Customs that exclude women from owning ancestral land or participating in community governance are increasingly being struck down for violating the Right to Equality (Article 14).

​The Morality Shift: Practices once accepted as "tradition" are now often viewed through the lens of Constitutional Morality, which prioritizes individual dignity over collective tribal or religious norms.

​3. Misuse by Informal Power Structures

​In some regions, informal bodies like Khap Panchayats or caste-based councils claim to be the guardians of customary law.

​Extra-Judicial Overreach: These bodies sometimes issue "decrees" that infringe on personal liberties, such as punishing inter-caste marriages.

​Legitimacy Issues: There is a thin line between a genuine community custom and the arbitrary exercise of power by dominant social groups to maintain a status quo.

​4. Legislative Displacement and Urbanization

​As India moves toward a more "Unified" legal framework, customary laws are being squeezed out:

​Codification: When the state passes a law (like the Hindu Succession Act), it often explicitly overrides any conflicting custom.

​Migration: As people move from rural, kinship-based societies to urban centers, the social fabric that sustains customary law unravels. In cities, the "social sanction" (fear of ostracization) that makes custom effective loses its power.