Sources of Law

The law and legal system plays a very important role in any civilization. In the modern times, where the term equality plays a very important role in the society we can never imagine a society without law and legal system. Law is not only important for an orderly social life but is also essential for the very exitance of mankind.

In common language law is usually described as a system of rules and regulations which a country or society recognizes as binding on its citizen, which the authorities may enforce, and violation of which may attract to punitive actions. Some jurists consider law as a ‘ divinely ordered rule’ or as ‘a reflection of divine reason.’

The main sources of law in India are –

  1. Customary law

Customs is the oldest law and one of the main sources of law in India.

Customs can in simple words be explained as the long practices or unwritten rules which have acquired a binding character in the past. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance.

In ancient India customs were the most important source, and during the British rule even the Britishers did not interrupt in the prosomal matters of Hindus and Muslims.

In the case of Mohammad Ibrahim Vs. Shaik Ibrahim the importance of customs in molding the law was introduced. It was also made to notice that the customs were not universal or uniform throughout the country. Some regions of the country had their own customs and usages.

After the independence and the enactment of the Constitution, the parliament took many steps and abrogated many old practices by some progressive legislations.

The Hindu Personal laws were codifies and laws related to Hindu adoption and marriage were introduced.

  • Judicial Precedent

Judicial Precedent refers to the previously decided judgements of the superior courts, such as the High Court and the Supreme Court. The binding character as to which courts decision will be accepted is decided by the hierarchy which has been given in the Constitution of India. Judicial Precedent plays an important role is formation of the law specially for the English legal system and also for the counties which follow the English legal system.

The Doctrine of Precedent in India which was followed Pre-Independence was according to the Sec.212 of the Government of India Act, 1919 which laid down that by federal court and any judgement of the Privy Council was to be binding on all courts of British India.

Post-Independence the Supreme Court was made the supreme judicial authority and the hierarchy of courts was introduced.

The hierarchy of Courts in India is :

Supreme Court

High Court

District Court and Additional District Judges

Subordinate Judge (Class I)

Subordinate Judges (Class II)

Court of Small Causes for metropolitan cities / Munsif’s Court or Court of Subordinate Judge (Class III)

Judicial Precedents rests on the doctrine of ‘stare decisis.’ The doctrine implies adhering and relying on earlier decisions made by the courts. The doctrine of stare decisis rests on public policy. This brings confidence in the public eye, and the administration of justice becomes crystal clear.

  • Legislation

‘Legislation’ is derived from a Latin word ‘legis’ which means law and ‘latum’ which means to make or to set. Thus legislation means ‘making of law’.

It is that source which is considered to be of the most importance. It includes every method of law-making. The legislation is framed by parliamentary actions in the form of Acts, new laws and amendment and repeals of the old law. The procedure by which the parliament frames legislation is prescribed in the Constitution of India.

There are usually two types of Legislation-

Supreme Legislation: The law that originates from the sovereign strength of the nation. It is the parent or the ultimate law which cannot be annulled, repealed, or managed by other legislative authority.

Sub-ordinate Legislation: This sub-ordinate legislations are dependent on supreme legislation when it comes to their validity or existence.

The above mentioned source are some of the important sources from where law has been derived in our country. There are many other sources by which law is derived. Article 141 of the Constitution of India gives constitutional status to the doctrine of precedent in respect of law declared by the Supreme Court of India.

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