Question

Which of the following is NOT a source of law in India?

• A. Legislation
• B. Precedent
• C. Custom
• D. Public Opinion

Hint:

While public opinion can influence legal reforms, the formal sources of law are legislation, precedent, and custom.

Answer 1

The Correct Option is D

In order to understand why Public Opinion is not a source of law in India, it is important to delve deeper into the recognized sources of law in the country. The legal system in India is based on the principles of justice, equity, and good conscience, and law-making is primarily carried out through structured, institutionalized processes. The following are the recognized sources of law in India:

1. Legislation

Legislation refers to laws passed by the legislative bodies such as the Parliament of India and State Legislatures. It is the most formal and authoritative source of law in India. The Constitution of India itself is the supreme legislation, and all laws must conform to it. Other significant legislations include Acts of Parliament, ordinances, and rules and regulations framed by the government under the authority granted by these Acts. Examples include:

• The Indian Penal Code (IPC) - governing criminal law.
• The Indian Contract Act - governing contracts and agreements.
• The Goods and Services Tax Act (GST) - regulating taxation.

The Parliament also has the power to amend existing laws or enact new laws, and these changes have a binding effect across the country. Legislation is the most binding form of law in India.

2. Precedent

Precedent is another essential source of law in India. It refers to the principle of stare decisis, which means "to stand by things decided." Precedent includes the decisions made by the higher courts, primarily the Supreme Court of India and High Courts, which lower courts are bound to follow. These judicial decisions create a body of case law that shapes the interpretation of statutes and regulations. For example:

• The Kesavananda Bharati case (1973) established the basic structure doctrine of the Indian Constitution, which has been followed in subsequent cases.
• The Maneka Gandhi case (1978) expanded the scope of Article 21 of the Constitution relating to the right to life and personal liberty.

The judgments of the Supreme Court, particularly in matters of constitutional interpretation, have profound implications on the country's legal framework, and lower courts are bound to follow them in similar future cases.

3. Custom

Custom refers to practices or traditions that have been followed by specific communities over a long period of time. These practices may become a source of law when they meet certain criteria, such as being consistent with public policy and not conflicting with statutory law. The legal recognition of customs is particularly prevalent in matters related to personal law. For instance:

• In matters of marriage, divorce, and inheritance, certain communities may follow customs that have been accepted as law by the courts. For example, the Muslim Personal Law (Shariat) Application Act, 1937, recognizes certain Islamic personal laws as customs.
• Customs related to land ownership or community rights are recognized in rural areas, provided they do not contradict the existing statutory laws or the Constitution.

However, for a custom to become legally binding, it must satisfy specific conditions. It must be ancient, reasonable, and not in conflict with other laws or public policy.

4. Public Opinion

Public Opinion is the least formal and least authoritative source of law in India. While public opinion can significantly influence the legislative process and judicial interpretation, it does not have the legal standing to be considered a source of law in itself. For example:

• Public opinion may influence lawmakers to introduce new legislation or amend existing laws, but it is the formal process of legislation that makes the law.
• Judicial decisions may take into account the prevailing social attitudes or public opinion in interpreting the law, but the courts base their decisions on statutes, precedents, and legal principles, not on public opinion.

While public opinion is an important factor in the democratic process, it is not recognized as a formal source of law in India. The role of public opinion is indirect—it helps shape the direction of law-making and legal reforms, but it does not directly create legal obligations.

Thus, Public Opinion is not a source of law in India. The proper sources of law are Legislation, Precedent, and Custom.