Q1. It is important for any person to know law as ignorance of law is no excuse. Modern Indian law has been derived from some sources. Discuss the primary and secondary sources of Indian law.
Answer:- The main sources of modern Indian Law, as administered by Indian courts, may be divided into two broad categories:
(i) Primary sources and,
(ii) Secondary sources.
Primary sources of Indian Law
The primary sources of Indian Law are:
- Custom
- Judicial precedent (stare decisis)
- Statute
- Personal law
Custom
Customs have played an important role in making law and therefore are also known as customary laws. In the words of Keeton, customary law 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 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.
Judicial precedent
Judicial precedent is another important source of laws. It is based on the principle that a rule of law that has been settled by a series of decisions generally should be binding in court and followed in similar cases. Only those rules that lay down some new rules or principles are treated as judicial precedents. Thus, where there is a settled rule of law, it is the duty of the judges to follow the same; they cannot substitute their opinion for the established rule of law. This is known as the doctrine of ‘stare decisis’. The literal meaning of this phrase is “standing by the decision”. Statute Statutory law or legislation is the main source of law. This law is created by legislation of bodies such as the Parliament. It is called statute law because it is the writ of the state and is in written form (jus scriptum). In India, the Constitution empowers the Parliament and state legislatures to promulgate law for the guidance or conduct of people to whom the statute is made applicable, either expressly or by implication. It is sometimes called enacted law because it is brought into existence by passing acts in the legislative body.
Personal Law
Many times, a point of issue between the parties to a dispute is not covered by any statute orcustom. In such cases, courts are required to apply the personal law of the parties.
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
- (ii) Equity,
- (iii) The law Merchant and
- (iv) The Statute Law.
