Customs And Customs: Kinds Of Customs In India

• Kinds of customs: Customs may be divided into two classes:

1. Customs without sanction: These customs are observed due to pressure of public opinion but in itself being non- obligatory in nature. For example, respecting one’s parents is an Indian custom but there will be no sanction if the same is not followed.

2. Customs with sanction: There are certain customs which are binding and enforceable by the court of law since they are backed by the sanction of the State. To illustrate, a Hindu Marriage solemnized without the performance of Saptapadi is not legally valid and can also be set aside by the court under the Hindu Marriage Act, 1955.

These customs are essential as a source of law and can be categorized as:

(i) Legal customs: This kind

In the judicial field, it refers to the guidance or authority of past decisions for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents.

A judicial precedent can, thus, be defined as a judgment or decision of a Court of law cited as an authority for deciding a similar state of fact in the same manner or on the same principle or by analogy.

It is a doctrine or practice of following the past decisions or to take the same course as has been taken previously; to confer advantage of past experience and saves the judges from the effort of thinking the same problem again and again.

Nature of precedents:

1. Precedent being a judge- made law are based on actual cases and are therefore, more practical.

2. It brings certainty to law. In the absence of precedents, the judges decide each matter afresh and if the previous decisions are not considered, the law becomes uncertain.

3. It is flexible as it adapts itself to the growth and changes in the society. The same connects it to justice and is an advantage as the enacting law.

4. Precedents make it convenient for the courts to decide on a subject matter without hearing the arguments again and again on a similar case. This saves a lot of time and labor of the court, lawyers and the

It may not be unworkable as a source of law in every circumstance since no one knows what problem will arise in future; the problem may be something not found of in past.

Kinds of precedents:

1. Original or Declaratory: Precedents can be either original or declaratory. Original precedent is that which create or establish original or new rules whereas declaratory precedents merely reiterate and apply an already existing rule of law.

2. Authoritative or Persuasive: Authoritative precedents are those which must be followed by the courts, whether they approve of it or not. This basically comes from a superior court and is rule of law for subordinate courts. For instance, a precedent laid down by Supreme Court of India is authoritative with relation to all the High Courts and other inferior courts in India.

There may be two kinds of authoritative precedents:

a) Absolute: It means a precedent which is binding by the court to which it is cited, irrespective of whether in the opinion of that court it is right or not. In this case, the judges cannot exercise their discretion.

b) Conditional: A conditional authoritative precedent is one which is normally followed by the courts but which can be disregarded in certain circumstances i.e. it may be overruled or dissented. Such a reversal of an earlier decided law becomes essential when established contrary to law and has serious