Notes on the primary and secondary sources of Indian Law

Primary and Secondary Sources:

The main sources of modern Indian Law, as administered by Indian courts, may be divided into broad categories: (i) Primary sources and, (ii) secondary sources. The primary sources of Indian law are: (a) customs, (b) judicial precedents, (stare decisis) (c) statutes and (d) personal law. The secondary sources of Indian law are: (a) English Law, (common law, equity, law merchant, and statute law), (b) Justice, equity and good conscience.

Customary Law:

Customs have played an important role in making the law and therefore are also known as customary law. ‘Customary Law’, in the words of Keeton, may be defined as “those rules of human action, established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as sources of law because they are generally followed by the political society as a whole or by some part of it”.

In simple words, “it is the uniformity of conduct of all persons under like circumstances”. It is a generally observed course of conduct by people on a particular matter. When a particular course of conduct is followed again and again, it becomes a custom.

Every custom does not become law. A custom, to be valid, must be observed continuously for a very long time without any interruption. Further, a practice must be supported not only for very long time, but also it must be supported by the general public opinion.

Also, a custom must not conflict with any statute law and must not be opposed to public policy and morality. Another requisite of a valid custom is that it must be certain and definite and not vague and ambiguous. Last, but not the least, a custom must be reasonable and not opposed to the principles of justice, equity and good conscience.

A valid custom is law unless it has been overridden by legislation. For example, the Hindu Marriage Act prohibits marriage of persons who are within the “prohibited degree of relationship”, still the Act permits marriage of persons within prohibited degree of relationship, if there is a proven custom in a certain community. With the progress of civilization, custom as a source of law is being replaced by statutes and judicial precedents.

As customary law is unwritten, therefore, it is sometimes called jus non-scriptum as contrasted with the legislation which is called jus scriptum.

Judicial Precedents are an Important Source of Law:

Judicial precedents are another important source of law. It is based on the principle that a rule of law which has been settled by a series of decisions generally should be binding on the court and should be followed in similar cases. These rules of law are known as judicial precedents.

However, only such decisions which lay down some new rules or principles are treated as judges to follow the same; they cannot substitute their opinions for the established rule of law. This is known as the doctrine of ‘stare decisis’. The literal meaning of this phrase is “stand by the decision”.

The common law of England owes much of its development to the system of judicial precedents. In India also, the practice of following precedents is as much prevalent as in England. For example, each court is absolutely bound by the decisions of the courts superior to it.

Thus, the decision of a single judge of a High court is absolutely binding on the courts subordinate to it. However, a Division Bench of the same High Court can overrule the same. A full Bench which must consist of three or more judges can overrule a Division Bench.

All courts in India are absolutely bound by the decisions of the Supreme Court; Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. ‘All Courts’ means courts other than the Supreme Court.

The Supreme Court is not bound by its earlier decisions and may reverse the same on a subsequent occasion if it is convinced that the same is clearly erroneous or it would be detrimental to public welfare if the previous decision is allowed to continue.

Meaning of Ratio Decidendi:

The phrase ‘ratio Decidendi’ refers to the principle underlying or the ground or basis of decision given by a court. In other words, it is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion. The proposition of law which was necessary for the decision or could be extracted from the decision lay down – is answered by ratio Decidendi.

Further, that principle or basis or ground gives the decision, the element of authority. The ratio Decidendi is nothing more than the decision based on the material facts of the case and is binding on the parties thereto. The ratio Decidendi must be distinguished from ‘obiter dicta’.

Meaning of Obiter Dicta:

The phrase obiter dicta refer to a decision of a judge on a point not directly relevant to the case before him and therefore, need not be followed by courts in other like cases. It has only a persuasive and academic value and many a time helps the cause of the reform of law.

Thus, at the most, it may be considered as trend-setter in the development of law. The literal meaning of the phrase obiter dicta is “said by the way”. The reason for not regarding it as binding is that it was probably made without making a full consideration of all the facts on the point. The phrase ratio Decidendi is often used in opposition to obiter dictum as the courts are bound to follow the former, but they are under no obligation to follow the latter.

‘Statute’ – An Important Source of Law:

The statutes or the statutory law or the legislation is the main source of law. This law is created by legislation such as Parliament. In India, the Constitution empowers the Parliament and state legislatures to promulgate law for the guidance or conduct of persons to whom the statute is, expressly or by implication, made applicable. It is sometimes called ‘enacted law’ as it is brought into existence by getting Acts passed by the legislative body. It is called Statute Law because it is the writ of the state and is in written form (jus scriptum).

The superiority of legislation over all other sources of law is now well established. It is not merely a source of new law, but is equally effective in abolishing that which already exists. Thus, it has what is known as abrogative power. Another advantage of legislation is that it makes possible to distinguish between two important organs of state, i.e., Legislature and Judiciary.

The duty of the legislature is to make law and that of judicature to interpret and apply the same. Another virtue of legislation lies in the fact that it satisfies the requirement of natural justice that laws shall be known before they are enforced. Further, legislature can, by way of anticipation, make rules for cases that have not yet arisen. Furthermore, the product of legislation assumes the form of abstract propositions.

The statutory law as compared to customary law or judicial precedents is more compact, easily identifiable and definite. It is brought into existence after discussions and debates, both within and outside the legislature. Also the statutory law is different from judicial precedents. The latter do not create any new law; they apply an existing law to a particular set of circumstances.

And while doing so reasons are also given and they are, thus, argumentative. On the other hand, the statutory law creates new law and is imperative. In other words, legislation is imposed on courts by the legislature but precedents are created by the courts themselves.

Personal Law:

Many times, a point of issue between the parties to a dispute is not covered by any statute or custom. In such cases the courts are required to apply the personal law of the parties. Thus in certain matters, we follow the personal laws of Hindus, Mohammedan and Christians.

Secondary Sources of Indian Law:

The secondary sources of Indian Law are English Law and justice, Equity and Good Conscience.

English Law:

The chief sources of English Law are: (i) the Common Law (i) Equity; (ii) The law Merchant and (iii) The statute Law.

Nowadays, English law is not very important source of Indian law. The English law, in its application to India, has to conform to the peculiar circumstances and conditions prevailing in this country. Even though the bulk of our law is based on and follows the English law, yet in its application our courts have to be selective. It is only when the courts do not find a provision on a particular problem in the primary sources of Indian Law that it my look to subsidiary sources such as the English Law. For example, the greater part of the Law Merchant has been codified in India.

The India Contract Act 1872, the Indian Partnership Act, 1932, the Scale of Goods Act 1930 and the Negotiable Instruments Act, 1872, are some of the very important Acts relating to business transactions. Where, however, there is some doubt as to the interpretation of any provisions of these Acts or where certain branches of the Law merchant have not been codified, the courts in India look to English decisions on the point, for guidance.

Justice, Equity and Good Conscience:

In India we do not have, no did we ever had separate courts (as in England) administering ‘equity’. But the equitable principles of law, I.e., justice, equity and good conscience, are the guiding force behind most of the statutes in our country and the decisions of the courts.

Especially, where law is silent on any point or there is some lacuna in a statute, the principles of equity come handy to the judges who exercise their discretion often on equitable considerations. The frequent use of terms such as ‘good faith’, ‘public policy’, in statutes and by the judges in their judgments is based on principles of equity.

Now we shall briefly describe the main sources of English law:

(i) Common Law:

This source consists of all those unwritten legal doctrines embodying customs and traditions developed over centuries by the English courts. Thus, the common law is found in the collected cases of the various courts of law and is sometimes known as ‘case law’. The Common Law emphasizes precedents.

(ii) Equity:

The literal meaning of the term ‘equity’ is ‘natural justice’. The development of equity as a source of law occurred due to rigours and hardships of the Common Law.

Therefore, in its technical and narrower sense, ‘equity’ means a body of legal doctrines and rules emanating from the administrations of justice, developed to enlarge, supplement or override a narrow rigid system of existing law of the land. However, like the common law, the ‘equity’ is unwritten and is a supplement to common law as a source of law.

(iii) Statute Law:

The Statue law consists of the law passed by the Parliament and therefore, is ‘written’ law. The authority of parliament is supreme but is subject to natural limitations and those laid down by the Constitution. It can pass any law it pleases and can override its own previous Acts and decisions of the courts. Statute law, therefore, is superior to and can override any rule of Common Law or equity.

(iv) The Law Merchant or Lex Mercatoria:

It is another important source of law and is based to a great extent on customs and usages prevalent among merchants and traders of the middle ages. Its evolution like that of equity can be traced to unsuitability of Common Law so far as the commercial transactions were concerned.

The Common Law was found to be unsatisfactory in dealing with disputes between merchants. The merchants, therefore, developed certain rules based upon customs and usages to govern their mercantile transactions. These rules were known as Lex Mercatoria or the Law Merchant. For many years the Common Law courts refused to recognise these customs and usages even though they were regarded as binding between the merchants themselves.

However, Lex Mercatoria is now regarded as part of the Common Law. It is worth noting that the Lex Mercatoria is the origin of much of the present law relating to negotiable instruments, trademarks, partnership, contract of affreightment and insurance. Parts of the Law Merchant have been codified in England, for example, the Sale of Goods Act, 1893 and the bills of Exchange act, 1882.