Categories: ArticlesImportant Laws

What are the Sources of law?

In simple language “The law is the set of rules which governs the country or people by regulating their actions according to law and it may be enforcing by imposing the penalties”. The famous jurist “Salmond” defines law as “Law is the body of principles recognized and applied by the state in the administration of justice”.

Sources of law

India has derived its laws from various sources which are;

Legislation as Sources of law

The term ‘Legislation’ is derived from the Latin words ‘Legis’ meaning regulation and ‘latum’ which means making. India considers the legislation as the primary source of law. The parliament is consists of two bodies Lok Sabha and Rajya Sabha. There is a proper process to make the law. Kindly go through the article is you want to know more about the procedure as given below.

How a bill becomes Act?

The act or law made by Legislation is recognized as “Act of parliament” or “a Statute”.

Customs as Sources of law

Any habit which is followed by a group of people from time immemorial may be considered as the Custom. The custom is recognized as the oldest source of law in India. Many laws of India are formulated by Customs.

All habits cannot become Custom. There are some conditions which must be fulfilled by that habit to become a custom which are:

Antiquity

The custom must be antique. It means the custom must be followed by time immemorial. There is no specific period given in any book, some jurists said that any habit which is following for more than 100 Years should be recognized as Custom.

Continuous and Certainty

The custom must be followed continuously from time immemorial. There should not be any gap to follow the Custom. Any custom which is not followed by people continuously cannot become custom in true sense.

Consistency

The custom must not be contrary to any Act of parliament. Any custom which is contrary to the Statute will become invalid.

Reasonability

There should be specific reasons to follow a particular custom. Any habit without reasonableness cannot be recognized as Custom.

Compulsory Observance

The custom must be observed as a right. It must not be regarded as an optional rule but as an obligatory or binding rule of conduct.

Judicial Precedents as Sources of law

Judicial Precedents means the earlier decisions of the superior court. There is a well-known doctrine “stare decisis” which means relying on and adhering to previous decisions made by the courts. For example, if the High Court decided a case and the lower court deals with the case which has a similar situation as the case which is already decided by HC, the lower court will treat that case alike and pass the same judgment as passed by HC.

The “stare decisis” is a well-known principle where the lower court is binding to follow the decision of a higher court. The decision of the higher bench will always be followed by a lower bench because the lower bench is binding under the principle. But the higher bench is not binding by the precedence given by the lower bench. The higher bench can overrule the decision by giving a valid reason.

All the courts are binding under the decision of the Supreme Court. Also, all lower courts are binding by the decision of High Court but the High court of other State is not binding by the same, though the reference of that decision can be taken by the High Court without binding force.

The SC is bound with their own decisions.

In Union of India Vs, K.S. Subramanium – (AIR 1976 SC 2435)- In this case when there was an inconsistency in the decision between the benches of the same court, the decision of the larger bench was followed.

Justice, Equity and Good Conscience

Where the judges feel that the law is not proper at the point, unjust or out of date the judges make decisions by using their commonsense and based on the good conscience, equity, fairness, and Justice.

 

Conventional Law – International Treaties/Agreements /Conventions

As modernization, there was a need to interact with other countries. That’s why there was a need for a law that should bind all the countries with each other. These laws are made in the form of treaties, agreements, etc. all these are harmonized by the United Nations. The countries which are the parties of the UN have to accept these rules.

Read also:

What is hacking?

What is CAA?

How a bill becomes Act?

The preamble to the Constitution of India

What is NRC- National Register of Citizens