35 Sources of law 1. What is Custom OR Discuss custom as a source of law?[8] Explain the requirements of a valid custom.[10]. or Under what circumstances does Custom become law? [5] Ans. Custom: Customs are the earliest sources of law and form the basis of the English Common Law system as we see it today. They can be described as cultural practices which have become definite and backed by obligation or sanction just by virtue of widespread practice and continued presence. Definition: Salmond's view on custom is that it is a source of law that has the same force as written laws. He divides customs into two: @ General customs apply to the entire country. For example, the Common Law in England. © Local customs apply only to a specific area. These customs have a higher authority than general customs because they are more specific and reflect the unique needs and traditions of that particular locality. Austin believed that laws were created by a political authority, not by custom. He argued that customs were not considered real laws unless they were recognized and enforced by the sovereign.36 Keeton defines customary law as rules that are followed by people and recognized by courts as having legal force. These rules are based on long-standing practices and are considered binding because they are accepted by a significant part of society, Explain the requirements of a valid custom: immemorial: Blackstone believed that a custom must be very old to be considered a law. If someone can find out when the custom started, it is considered a good custom. This means that customs must have been around for a long time to be valid. Reasonable: A custom must be both lawful and reasonable. If a custom is too unreasonable, it can cause more harm than good. Professor Allen says that we need to prove how unreasonable a custom is, not how reasonable it is. Continuous: A custom must not continuously be observed and if it has not been continuously and uninterruptedly observed, the presumption is that it existed at all. Peaceable enjoyment: The enjoyment of a custom must be a peaceable one. Certainty: A valid custom must be certain and definite, if there is any ambiguities in it or it keeps changing, it is not a valid custom. Compulsory Observance: If observance is required, a custom is considered valid. Observing anything optically is useless. A custom requiring all residents to contribute to the upkeep of a37 bridge will be beneficial, but one requiring each person to do so at his or her discretion is pointless and, in fact, is not a custom at all, according to Blackstone. General Or Universal: The custom must be general or universal. In the absence of unanimity of opinion, custom becomes powerless or rather does not exist. A valid custom must not be opposed to public policy or the principles of morality. Acceptance: The custom must be generally accepted and recognized by the community as binding 2. Define Precedent. Explain the circumstances destroying or weakening the binding force of precedent. [6+10] Ans. Defin decision that serves as a guide for future cases. Judges must in of precedent: A precedent is a previous legal follow these past decisions when making new rulings. This helps ensure consistency and fairness in the legal system. According to Keeton, A judicial precedent is a previous legal decision that has been recognized as having authority. This means that it can be used as a guide for future cases and must be followed by lower courts.38 According to salmond: A precedent can be a reported case that may be cited and followed by courts (loose sense). However, a binding precedent must not only be cited and followed but also has great authority. All precedents provide guidance for future cases, R. S. Pathak C. J. in Union of India v. Prithpal Singh it was stated that: The doctrine of precedent ensures consistency and predictability in legal decisions. It allows the law to evolve naturally and provides individuals with certainty about the legal consequences of their actions. This requires clear and consistent legal principles in court decisions. circumstances destroying or weakening the binding force of precedent: Abrogated decision: Abrogated decisions are those that have lost their binding authority. This can happen if they conflict with a later law or are overturned by a higher court. A decision can be reversed on appeal or overruled if a higher court finds it incorrect. Affirmation or reversal on a different ground: A precedent can lose its authority if the appellate court affirms or reverses it on different grounds. This can happen when the higher court disagrees with the lower court's reasoning or finds it easier to decide the case based on different legal principles. This weakens the precedent's binding force.39 Ignorance of statute: Ignorance of a statute invalidates a precedent. If a court establishes a precedent without considering or recognizing a relevant statute, it has no binding authority, even for lower courts. Inconsistency with earlier decisions of a higher court: A precedent loses authority if it ignores relevant higher court decisions. If a lower court disregards a higher court's ruling, its own decision becomes inconsistent and non-binding. For example, a High Court decision that ignores a Supreme Court ruling is invalid and cannot be followed by other courts. Precedents sub silentio or not fully argued: A precedent based on a point not argued or noticed is not binding. If the point had been fully argued, the court's decision might have been different, making the precedent [Link] K. Balkrishna Rao yv. Haji Abdulla Sait (1980)the Supreme Court stated that the binding force of a precedent does not depend on whether a particular argument was made or not, unless the point for which the argument was advanced was decided by the SC previously. Erroneous de. that conflict with fundamental principles. Even though these decisions are incorrect, courts often follow them to maintain legal ‘ons: Sometimes, courts make wrong decisions certainty. However, they can overrule these decisions if they have caused significant injustice over a long [Link] House of Lords in London Transport Executive v. Betts (1959), held that the House of Lords can disregard a prior decision on its own if it clashes with the fundamental principles of common law.40 3. Define Legislation. What is Subordinate Legislation? Explain the kinds of Subordinate Legislation. [4+4+8] ANS: Defi n of legislation: The term ‘legislation’ is derived from Latin words, "Legis" meaning law and "Latum* which means “to make" or “set”. Thus the word ‘legislation’ means ‘making of law’. As per the analytical school, 'typical law’ is a ‘statute’ and ‘legislation’ is the normal process of law-making, The historical school holds that among all the sources of law, legislation is the least creative. According to James Carter "It is not possible to make law by legislative action" Salmond: Legislation is that source of law which consists of the declaration of legal rules by a competent authority. Gray: The law of the state or any organized body of people is composed of the rules laid down by the courts (the judicial organ) for determining legal rights and duties. Example: a traffic light. The rules governing when to stop or go are created through legislation. This means that a legislation has passed that laws which determines how traffic should flow. Subordinate legislation: Subordinate legislation is also named delegate legislation. Delegation’ has been defined by Black's Law Dictionary as an act of entrusting a person with the power or empowering him to act on behalf of that person who has given him that power or to act as his agent or representative,a ‘Delegated legislation’ means exercising of legislative power by an agent who is lower in rank to the Legislature, or who is subordinate to the Legislature. According to Sir John Salmond, “Subordinate legislation is that which proceeds from any authority other than the sovereign power.” According to M.P Jain, this term can be used in two senses e Exercise by subordinate agency or agency that is lower in rank to legislature delegated to it by the Legislature. © The Subsidiary rules made by the Subordinate Authority in the execution of the power bestowed on it by the Legislature. Example: a local council deciding on parking restrictions. The rules about where and when people can park are an example of subordinate legislation. These rules are made by a lower-level authority, but they still have legal force because they are based on the authority granted by the main government. The kinds of Subordinate Legislation: There are five Kinds of Subordinate Legislation which are as follows - Colonial legislation : Colonial legislation refers to laws and regulations enacted by colonial powers to govern their colonies. These laws were often designed to benefit the colonizers and exploit the resources and people of the colonies. They could cover various aspects of life, including trade, taxation, land ownershi and social control. Example:The British East India Company enacted several colonial laws, such as the Permanent Settlement Act, which42 granted land ownership rights to certain zamindars in India, leading to significant social and economic changes in the region. Executive legislation: Executive legislation refers to laws and regulations made by the executive branch of a government, such as a president, prime minister, or cabinet. These powers are granted to the executive by the legislature, often through a constitution or other legal framework. Example: The US President can issue executive orders to implement policies or directives without requiring congressional approval. Municipal legislation: Municipal legislation refers to laws and regulations enacted by local governments, such as city councils or municipalities, to govern their specific jurisdictions. These laws typically deal with issues like zoning, building codes, public services, and local taxes, ensuring that the needs and interests of the local community are met. Example: The Municipal Corporation of Delhi can pass bylaws regulating building construction, traffic management, and waste disposal within the city. Judicial Legislation - The Superior courts, especially the Supreme Court and High Courts of the State, have the power of Making rules for the regulation of their own procedure example:The West Bengal Land Reforms and Tenancy Tribunal Act, 1997 is an example of judicial legislation in West Bengal. It establishes specialized tribunals to adjudicate disputes related to land reforms and tenancy rights, ensuring fair and efficient resolution of land-related issues in the state.43 Autonomous legislation: Autonomous legislation refers to rules and regulations created by private organizations or bodies, such as corporations, universities, or professional associations. These entities have the power to self-govern and establish their own internal rules to regulate their operations and activities. example:The Calcutta University can establish its own rules and regulations governing admission, examinations, and student conduct, as it is an autonomous institution. Similarly, the West Bengal Medical Council can set standards for medical education and practice within the state. 4. Is ‘Sati’ a valid custom? If so, should it continue? [8] Ans. Sati first appears in the historical record during the reign of the Gupta Empire, c. 320 to 550 CE. Thus, it may be a relatively recent innovation in the extremely long history of Hinduism. Sati is a banned funeral custom. Where a widow either voluntarily or by force have to commit suicide following her husband. The woman has to burn herself with her [Link] time it becomes a forced custom. Women who didn't with to die like this were forced to do so in different ways traditionally. A widow had no role to play in society and was considered a [Link],if a woman had no surviving children who could support her,she had to accept sati. Raja Ram Mohan Roy is the most prominent figure associated with the fight against Sati. Roy strongly opposed the practice of Sati, arguing that it was not sanctioned by the Vedas and was a violation of human [Link] 1829 ‘sati’ became punishable by the help of Raja Ram Mohan Roy and Lord William Bentinck.According to the essentials of a valid custom, a practice must: 1. Be ancient and immemorial: It must have been in existence for a long time and be part of the community's traditions. 2. Be continuous: The practice must have been observed continuously without any significant breaks. 3. Be certain: There should be no doubt about its existence or practice. 4. Be reasonable: The custom must be reasonable and not violate public policy, morality, or justice. 5. Be uniform: The practice should be observed uniformly by the community. Sati fails to meet these criteria: ¢ Violation of Human Rights: Sati is a direct violation of human rights, particularly the right to life. It forces women into a situation where they are coerced or pressured to end their own lives. e Gender Inequality: The practice reinforces harmful gender stereotypes and perpetuates gender inequality. Public Policy: Sati is explicitly prohibited by law in many countries, indicating that it violates public policy. Morality: The practice is widely considered immoral and unethical, as it involves the intentional loss of life. Therefore, based on the essentials of a valid custom, Sati cannot be considered a valid practice. It is a harmful and outdated tradition that must be eradicate.45 5. (a) What are the sources of law? [4] (b)What is meant by ‘ratio Decidendi’ of a decision? How to find the 'Ratio Decidendi' of a case? [6] Ans. there are three main sources ie. customs, precedent and legislation. Customs are known to be oldest source of law. Along with customs, traditions, norms and values also played important role in establishment of law. Customs: The second important source of law is customs. It refers to any established mode of social behavior in a community. There are myriad dimensions of human behavior that get assented by society to become customs. Judicial Precedents: In every legal system around the globe, the judges take reference and guidance from decisions taken in the past if they fit well with the case at hand. Such decisions are compiled in reports and are called judicial precedents. Legislation: Legislation is an important source of law. The term legislation is actually derived from the Latin words legis and latum which mean "law" and "to make" respectively. Therefore, in simple terms, the term legislation means "making of a law". Notable jurist Salmond defined legislation as that source of law that contains the declaration of legal rules via a competent authority. Ratio decidendi: The ratio decidendi is "the point in a case that determines the judgement" or "the principle that the case establishes". In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends.46 The legal meaning of Ratio Decidendi means ‘the reason' or 'the rationale for the decision’. Ratio Decidendi literally means ‘reason for deciding’. The ratio of the case has to be deduced from its facts, the reasons the court gave for reaching its decision, and the decision itself. It is said to be the statement of law applied to the material facts. Only the ratio of a case is binding on inferior courts, by reason of the doctrine of precedent that needs to be followed by the courts in subsequent decisions. example:In the case of X v. State of West Bengal, the court held that the government's imposition of a tax on agricultural income was unconstitutional, as it violated the constitutional guarantee of protection to agriculture. This decision established the principle that agricultural income is exempt from taxation in West Bengal. To find a ratio decidendi of a case a person need to- |. Reading the entire judgment is crucial for understanding the context and nuances of the case, which helps in accurately identifying the ratio decidendi. Il. Pinpoint the key facts that were essential to the court's decision. These facts distinguish the case from others. Ill. Identify the material facts and the legal arguments presented by all parties. IV. Examine how the court applied the law to the material facts. Look for the legal principle or rule that the court used to reach its decision. V. Remember that obiter dicta (statements made “in passing’) are not binding; they're persuasive but not part of the ratio. 6. ls the Supreme Court bound by its own previous decisions? [5]aT What are the merits of Legislation as a source of Law? [8] State the functions of Supreme Legislation and Subordinate Legislation.[8] Distinguish between Supreme and Sub-ordinate Legislation. [8] ANS. Is the Supreme Court bound by its own previous decisions: The case of Sajjan Singh y. State of Rajasthan highlights the Supreme Court's authority to overrule its previous decisions. The court held that while the doctrine of stare decisis is generally followed, it is not strictly binding. This means that the Supreme Court can depart from its previous rulings if it believes that they are erroneous or detrimental to the general welfare. The court's power to overrule its own decisions is essential for ensuring that the law evolves to meet changing circumstances and societal needs. It allows the Supreme Court to correct errors and adapt to new legal developments. There are two primary ways in which the Supreme Court can overrule its previous decisions: 1. Express Overruling: The court can explicitly state that a previous decision is no longer good law. This is typically done when the court believes that the earlier decision was based on a flawed legal analysis or is inconsistent with other legal principles. 2. Implicit Overruling: The court can effectively overrule a previous decision by not following it in a subsequent case.48 This can happen when the court distinguishes the new case from the earlier one on the basis of material differences in the facts or legal issues involved. In conclusion, the Supreme Court's authority to overrule its own decisions is a crucial aspect of the American legal system. It allows the court to adapt to changing circumstances and ensure that the law remains relevant and just Merits of Legislation as a source of Law: The concept of legislation has been derived from the process of law making. Legis literally means ‘law’ and Latum means “making”. Therefore the word Legislation means lawmaking, according to Salmond Legislation can be said as a process of making law by a competent and appropriate authority. Austin has also defined Legislation as the making of law by sovereign authority that every part of society must followThe process of law making is considered to be a strict concept as only one body is empowered with the work of making law and also the scope of making any alterations is also negligible. Legislation is the best and most reliable source of law: Legislation is the primary source of law, crafted by authorized bodies. It's clear, accessible, and directly reflects societal needs. Unlike case law, which can be complex and subject to interpretation, legislation provides a definitive framework. Statutory law is inflexible: Unlike common law, which evolves through court decisions, statutory law is a fixed set of rules enacted by a legislative body. This means that statutory law applies equally to all individuals, regardless of the specific circumstances of a crime. There's little room for flexibility or exceptions, as the law is intended to be clear and consistent.49 legislation is a more direct and democratic: Modern states prioritize legislation as the primary source of law. This is because legislation is a more direct and democratic way to create laws, reflecting the will of the people. Additionally, statutory law provides a clear and consistent framework, making it easier to enforce and understand. Legislation makes new law to the society: Legislation is the process of creating new laws. These laws are designed to regulate behavior, protect rights, and address societal needs. By legislation, social control is possible: Legislation provides a framework of rules and regulations that guide behavior. By enforcing these laws, society can maintain order, protect its members, and achieve common goals. The functions of Supreme Legislation and Subordinate Legislation. Ans. Functions of Supreme Legislation: Supreme legislation, enacted by the highest legislative body in a country, plays a pivotal role in shaping the legal framework and governing the society. Its primary functions include: |. Law Creation: Supreme legislation is the primary source of new laws. Legislatures create and enact statutes that govern various aspects of society. They can also modify existing laws to keep them relevant and address current challenges. ll. Policy Formulation: Supreme legislation helps shape government policies. It sets guidelines for economic development, social welfare, and other important areas. Additionally, statutes provide the structure for how government agencies operate and what their roles are.50 Protecting rights and freedoms: Supreme legislation protects fundamental rights. Constitutions often guarantee rights like freedom of speech and religion. Legislatures can also enact laws to safeguard the rights of minority groups and prevent discrimination. Resolving disputes: Supreme legislation provides legal frameworks for resolving disputes and defines the principles and rules used in court proceedings. Promoting social order: Supreme legislation helps maintain law and order and promotes social justice by defining laws and penalties and enacting measures to ensure equality. Functions of subordinate legislation: Subordinate legislation, also known as delegated legislation or secondary legislation, is created by entities other than the supreme legislative body The primary functions of subordinate legislation include Subordinate legislation provides the specific rules and procedures needed to put primary legislation into action. Subordinate legislation can adapt to changing circumstances by quickly responding to unforeseen events and handling technical matters that the supreme legislature may not be well-versed in. Subordinate legislation can improve efficiency by decentralizing decision-making and utilizing the specialized expertise of subordinate entities. Subordinate legislation supports government agencies by providing them with the necessary authority and guidelines, while also streamlining administrative tasks to improve efficiency,51 V. Subordinate legislation can supplement primary legislation by providing additional regulations and filling in gaps to create a comprehensive legal framework. Distinguish between Supreme and Sub-ordinate Legislation: Supreme Legislation and Subordinate Legislation are two primary categories of laws. While both are essential to governing a nation, they differ significantly in their origin, authority, and scope. Definition: Supreme legislation proceeds from the sovereign power in the state. It is enacted by the highest law-making authority and cannot be repealed, annulled, or controlled by any other legislative body. Subordinate legislation is made by an authority other than the sovereign power. It operates under the power delegated to it by the supreme authority. Authority: supreme legislation Has the highest legal authority within a jurisdiction. Subordinate legislation is Dependent on the supreme legislation for its validity. Characteristics: In England, supreme legislation cannot be challenged in a court of law. The British Parliament embodies the doctrine of parliamentary sovereignty, implying its supremacy and [Link] India and the United States, while the parliament is sovereign, it is not entirely supreme. Courts can declare legislation ultra vires or unconstitutional.VII 52 Subordinate legislation is Made by administrative or executive [Link] be repealed or amended by the delegating [Link] be consistent with the supreme legislation. Scope: supreme legislation Covers a wide range of subjects and is the foundation of a nation's legal system. Subordinate legislation Often more specific and detailed than supreme legislation, focusing on implementing and administering existing laws. Repealable: Unlike supreme legislation, subordinate legislation can be repealed or amended. Example: The Constitution of India is the supreme legislation in India. It outlines the fundamental rights of citizens, the structure of the government, and the powers and responsibilities of various institutions. It is the highest law of the land and all other laws must be consistent with it. The Motor Vehicles Act, 1988, is an example of subordinate legislation in India. It regulates road traffic and motor vehicles in the country, setting rules for driving, Vehicle registration, and road safety. It ir made by the central government under the authority of the Parliament, which is the supreme legislative body in India. Case law: In the landmark case of Kesavananda Bharati v. State of Kerala, the Supreme Court of India upheld the doctrine of the Basic Structure of the Constitution, declaring that certain fundamental features of the Constitution cannot be amended by the Parliament. This judgment reinforced the supremacy of the Constitution and established a crucial limit on the amending power of the legislature.53 In the case of R. v. Paddington & Hammersmith Rent Tribunal ex parte Bell, the English High Court struck down a rent tribunal order as ultra vires, meaning it exceeded the owers granted to the tribunal by the enabling legislation. Phis case highlights the importance of ensuring that subordinate legislation remains within the bounds of its delegated authority, 7. Write a note on Corporation sole?[8] Ans. A corporation sole is a legal structure that allows an individual to hold property in the name of an office or position, rather than their personal name. This concept originated in religious institutions, where positions like bishops or abbots were considered to hold property in trust for the church. It was initially used to protect church assets from personal claims and ensure continuity of ownership despite changes in individuals holding the position. Later, it was adopted by other organizations, like universities and charities, to provide a legal framework for managing property and assets. Functions of corporation sole: Property Ownership: A corporation sole holds property in the name of the office or position, ensuring continuity of ownership even if the individual holding the position changes. Legal Entity: It acts as a legal entity, separate from the individual holding the position. This provides protection for the assets and reduces personal liability.Perpetual Succession: A corporation sole can continue to exist indefinitely, allowing for long-term planning and asset management. Tax Benefits: In some jurisdictions, corporations sole may enjoy tax advantages or exemptions. Trusteeship: It acts as a trustee, holding property in trust for a specific purpose, such as a charity or religious institution. Contractual Capacity: A corporation sole can enter into contracts and legal agreements. Legal Representation: It can be sued or sue in its own name. Example: A corporation sole in West Bengal could be the office of the Archbishop of Calcutta. The Archbishop, as the head of the Roman Catholic Archdiocese of Calcutta, would hold the property of the Archdiocese in the name of the office, ensuring continuity of ownership and legal protection for the Church's assets.