Anishka Sharma is a Law Graduate from the Jaipur National University, Jaipur. She has expressed her views on the customary laws in India.

Introduction

India’s legal system is often described as a unique blend of codified law, judicial precedents, and customary practices. Long before the advent of written statutes and colonial legislation, Indian society was governed by customs—rules of conduct that evolved organically through consistent social usage. Even today, despite the dominance of statutory law, customary laws continue to play a significant role, especially in matters relating to personal law, tribal governance, family relations, and land rights.

Customary law represents the lived reality of law at the grassroots level. Its continued recognition reflects India’s pluralistic legal ethos, which seeks to accommodate diversity while ensuring constitutional supremacy.

Meaning and Nature of Customary Law

Customary law refers to rules that have acquired legal force through long, continuous, and uniform practice, accepted by the community as binding. Unlike statutory law, customary law is not enacted by the legislature but evolves over time through social acceptance.

Essential Characteristics of a Valid Custom

Indian courts have consistently laid down certain tests for the recognition of a custom as law:

1. Antiquity – The custom must be ancient or of long standing.
2. Continuity – It must have been observed continuously without interruption.
3. Certainty – The custom must be clear, definite, and unambiguous.
4. Reasonableness – It should not be arbitrary or opposed to justice, equity, and good conscience.
5. Mandatory Observance – The community must regard it as obligatory, not optional.
6. Consistency with Law – It must not be contrary to statutory law or public policy.

These principles were affirmed in several judgments, including Collector of Madura v. Moottoo Ramalinga Sethupathi and later cases.

Sources and Types of Customary Laws in India

1. Personal Law Customs

Customs form an integral part of India’s personal law system:

• Hindu Law historically recognized customs as a primary source of law, sometimes even overriding textual law.
• Muslim Law allows recognition of local customs (urf) if they are not inconsistent with Islamic principles.
• Certain communities continue to follow customary rules of marriage, inheritance, and adoption, particularly in rural and tribal areas.

2. Tribal and Indigenous Customary Laws

India is home to over 700 Scheduled Tribes, many of whom are governed by distinct customary laws regulating:

• Marriage and divorce
• Succession and inheritance
• Land ownership and community resources
• Dispute resolution through village councils or tribal institutions

The Constitution itself acknowledges this diversity, especially through Fifth and Sixth Schedules, granting autonomy to tribal areas to preserve their customs and traditions.

Constitutional Recognition of Customary Laws

While the Constitution does not explicitly define customary law, it provides several indirect safeguards:

• Article 13 recognizes “custom or usage” as law, subject to fundamental rights.
• Articles 371A to 371G protect customary practices of certain states like Nagaland, Mizoram, and Meghalaya.
• Sixth Schedule grants legislative and judicial powers to Autonomous District Councils in tribal regions.

This framework ensures that customary laws are respected, but not at the cost of constitutional values.

Judicial Approach to Customary Laws

Indian courts have played a pivotal role in balancing tradition with modern constitutionalism.

Recognition by Courts

Courts recognize customary law when it satisfies the legal tests and is adequately proved. The burden of proof lies on the party asserting the custom.

Limitation by Fundamental Rights

Customs that violate equality, dignity, or personal liberty have increasingly come under judicial scrutiny. In cases involving discriminatory practices, courts have held that:

“Custom cannot be elevated to law if it violates constitutional morality.”

This approach aligns with landmark judgments such as Shayara Bano v. Union of India and Indian Young Lawyers Association v. State of Kerala, where harmful religious or customary practices were struck down.

Customary Law vs Codified Law: Areas of Conflict

With increasing codification and social reform, customary laws often come into conflict with statutory enactments:

• Gender justice – Many customs discriminate against women in inheritance and property rights.
• Criminal justice – Informal dispute resolution mechanisms may conflict with procedural safeguards.
• Land rights – Community-based land customs sometimes clash with modern property laws.

Courts generally uphold statutory law over custom, reinforcing the principle that custom must yield to legislation and constitutional mandates.

Contemporary Relevance and Challenges

Despite urbanization and legal reforms, customary laws remain relevant for millions, particularly in rural and tribal India. However, several challenges persist:

• Lack of documentation and clarity
• Possibility of misuse by dominant social groups
• Conflict with human rights standards
• Difficulty in judicial proof

At the same time, customary law offers valuable lessons in restorative justice, community participation, and localized governance.

Conclusion

Customary laws are a living testament to India’s legal pluralism. They reflect the country’s social history, cultural diversity, and indigenous wisdom. While not immune from criticism, they cannot be dismissed outright. The task before Indian jurisprudence is not to eliminate customary law, but to reform, harmonize, and humanize it in accordance with constitutional values.

In a constitutional democracy like India, custom must walk hand in hand with conscience, and tradition must bow to justice.

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