Custom: The Essential Conditions Of Valid Custom | Fundamental Rights | Human Rights | The National TV
- by Aditi-Harshraj
- Apr 30, 2020 18:37
Custom means a traditional way of doing something on a regular basis. A process that is being followed by the families, societies, people at large. John Salmond defined Custom as It is an embodiment of those principles which have a conscience as a principle of justice and public utility. While C.K. Allen defined Custom as legal and social phenomena growing up by forces partly of reason and necessity and partly of suggestions and imitation.
The essential condition of a valid custom:
1. Reasonability: A custom must be reasonable and there must be a balance between mortality, understanding of justice, health, and public policy. The practice must be valid and should not be infringing on human rights. Sati was once followed by our Hindu culture but due to the efforts of Raja Ram Mohan Roy, Lord William Bentinck declared Sati as an offense on Dec 4, 1828.
2. Conformity with the statute: If any custom is found violating any statute then they won't be considered as valid custom. In Upanishad, It was said that Law is most powerful, King is also not more powerful than the Law. Re. Smt Anina v. Unknown (2 Aug 1991) It was held that customs or usage can't violate any fundamental rights of any citizens.
3. Certainty: Any custom or usage must be certain and clear. People should have the proper information & knowledge about custom or usage.
4. Consistency: A custom must be consistent with the general principles of Law. It means it should be on the basis of Justice, fairness, and liberty. Triple talaq was practiced in Islam, where Muslim man could legally divorce his wife pronouncing talaq three times. This practice was held unconstitutional in Shayara Bank v. Union of India case on 22nd August 2017 by 3:2 majority.
5. Antiquity: Customs must be ancient. It must be before the middle Ages. Basically it means for a long time.
6. Peaceful practice: Customs must be peaceful and not calling for any kind of violence then only any custom could be considered as valid custom.
7. Customs must not be opposing Public Policies.
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