Jivesh Jha
(For the Subject of Jurisprudence)
Abstract:
In
the midst of round criticism and thorny remarks being framed against immoral
customs, it has always been an uphill task before the state as well as
non-state mechanism to put every immoral course of conducts into suspended
animation. Despite of the fact that to quash the breeding of immoral custom is
a tough task, the people from all walks of life should come down heavily
against every immoral customs in a bid to prepare a conducive ground for
prevailing the court of law. However, the jurists and legal pundits are quick
to add that there should be a strong legislation aimed at thwarting the
anti-social course of conducts. In an apparent effort to live up to the
expectation of the people, the political leaderships should come out in the open
and launch an anti-immoral custom drive. Moreover, the double-edged sword
drizzles at a time when the educated sections of society remain mum against
immoral customs. Similarly, the double-edged sword drizzles further when the
self-declared educated youths observe immoral customs, arguing that they are
following it simply because its’ an ancestral practice. So, in an attempt to
wipe-out the immoral customs, the strong legislation coupled with strong
commitment from various quarters is a must.
Acknowledgement:
I would like to
express my profound gratitude to my respected Teacher and Supervisor of this
mini-project Mr. Mohit Negi, for his scholarly and insightful supervision,
without which the accomplishment of the present mini-research work would have
been impossible. I would like to thank my respected teacher for his intuitive
suggestions, and regular lectures.
It would be a
gross-injustice if I fail to remember my four-year Bachelors’ study in Nepal
and the very teachers who made me capable to join this LLB program here in
Dehradun. I pay a strong appreciation to my teachers who taught in my
graduation study—without their blessings my entire life would go in vain.
Similarly, my best
friend Naveen Chaudhary, and other counterparts like Nitee Rawat, Preeti Rawat,
Priyanka, Pooja, Preeti and among others have always stood by my side and
helped me in many grounds. So, I am equally thankful to them.
My deep thanks go
to entire teachers—especially Dr Jageshwor singh, Dr Mohit Negi, Mrs
Pallavi Gusain, Dr sharafat Ali—of
Siddhartha Law College whose standing ovation lectures mean a lot to me when it
comes to attain some legal insights and think for the would-be
legitimate-course that would shape my life in near future.
Subsequently, I
would also like to pay gratitude to the –google guru—for helping to collect the
data. Without google’s help, I would not be capable to draft this project.
Once again I would
like to thank my teacher—who never came down heavily notwithstanding I put some
nonsense questions during lecture period--for his motivational lectures and
regular classes. It would have an uphill task for me to complete this project
had I not attended the classes in regular animation. So, tons of thanks go to my respected teacher
Mr Negi for his motivational lectures. I love philosophy and literature-type
subjects a lot. I take them as part and parcel of my life. Despite, I am now a
law student; I have not given up my interests. For me, jurisprudence is
combination of philosophy and literature. Sir, I enjoyed a lot your lectures.
Once again, many thanks to you !!!
Finally, I would
like to remember my Parents and almighty without whose blessings nothing would
have been possible.
Introduction:
The
jurist and veteran legal pundits are of the view that custom is the oldest
source of law. They maintain that custom is the continuing course of conduct.
However, they are quick to add that custom is inversely proportional to the
growth of legal system. Confident of underscoring the need of court of law, the
jurists firmly believe that rule of law should prevail in the modern society
notwithstanding the society is as close to the custom as they are close to
their state. By forwarding this notion, the jurists have clarified that custom
is to society what man is to state.
At
a time when the people are raising eye-brows against the customs that have lost
their relevancy when compared it under the light of legal sanction, it has
become battle of nose among some sections of society as they claim that their custom
is still relevant while the court of law vent ire against their course of
conduct, arguing that their custom is immoral in eyes of law. The much-admired
jurist Salmond insists that the belief which is being accepted by society is a
form of custom. Thus, in one way or the other, he concedes that custom is the
continuing course of conduct.
Expressing
contrary view, another acclaimed jurist Sir John Austin asserts that custom is
rule of conduct which follows the subject spontaneously under the sanction of
sovereign. By forwarding his view on custom, the alma mater has clarified that
custom must need recognition of paramount power.
On
a different account, making a clean breast the jurists have further asserted
that the custom is a ‘jus non
scriptum’—an unwritten law. While forwarding this notion, the jurists have sung
a similar tune like Salmond as they are also of the view that the custom is
made by the people in respect of a place where it is followed.
Meanwhile,
so far the research design is concerned; the paper is divided into as many as
nine headings, ranging from introduction to conclusion. The project author
tried to seek the basic concept of custom and also made an effort to analyze
the impacts of immoral customs that are prevalent before us in different forms.
Moreover, by citing different leading cases, the project author has tried his
best to underscore the need of eradication of immoral customs. Likewise, the
conclusion part offers author’s view on immoral customs. However, it would an
unjust to claim that the very paper would give a complete picture of the
‘incongruence of customs with morality: a need of legislation.’
Custom:
An Introduction
While
forwarding the definition of Custom, the legal pundits and the jurists are not
at odds. In a similar vein, the jurists admit that custom is the continuing
course of conduct having a strong base in the society. The veteran jurist
Salmond observes that the belief which is being accepted by the society is a
form of custom. Here what he opines that the belief taking a social route is a
form of custom. Meanwhile, Salmond further states that in a bid to prevail any custom,
there needs an approval by the society at large--not necessarily acknowledged
by the power of state. However, in a contrary gesture, the acclaimed jurist Sir
John Austin maintains that custom is a rule of conduct which follows the
subject spontaneously and under the apparent sanction of sovereign.
In
a similar motion, another veteran jurist Holland came forward to assert that
custom originates by the common conscience of the people. He is of the view
that the regular course of conduct being followed in the society and being
followed as per the human intellect is a form of custom.
Likewise, Keeton suggests that custom are
those rules of human action, established by usage and regarded as legally
binding. He persistently believes that custom needs recognition from the court
of law. He is of the view that those customs would be termed invalid if not
recognized by the court of law.
While
dealing the term custom in the light of Hindu philosophy, it is often said that
custom is to society what man is to state. Manu suggests that custom should
satisfy the sense of equity and good conscience and reasonable in manner at
large. So, the Hindu philosophy rolls out a positive gesture while defining the
term custom. It advocates that custom should be acceptable by the society at
large. Secondly, it can be argued that Hindu philosophy does not advocate those
types of customs which undermine a particular section of society. It thinks for
the common good having a strong base on equity.
Further,
the customs are of different kinds. Firstly, conventional custom--which is
codified by state and well established. Secondly, there is legal custom which
prevails in society but not oppose the public policy. Thirdly, valid customs
that are legally accepted, consistent, certain, freed from ambiguity and being
in usage from time immemorial. Similarly, some customs are recognized by states
and entertained as a matter of right
while some are unrecognized which are yet to get due protection by the state.
On
a separate context, the jurists find similar perception while terming any
custom as invalid. They believe that any custom which is not legally accepted,
ambiguous in nature and short usage falls under invalid customs. However, in
yet another significant move, the jurists came forward to assert that there
needs a strong legislation to wipe-out immoral customs. Basically, in modern
world, the court of law very clearly favors moral customs. Moreover, it can be
argued that the immoral customs can defeat the legal provisions.
On
a different occasion, there is a popular saying in Sanskrit under ‘Charvak
philosophy’ that ‘यावत जीवेत सुखं जीवेत ऋणं कृत्वा घ्रित्वं पीवेत’. It can be translated in English as ‘I have to live a
life like an elite-class despite I am neck-deep with several forms of loan.’
This saying is very popular in Bihar and southern belt of Nepal. There is a
custom to expend maximum amount of money during the marriage ceremony—either in
the name of dowry or in the name of show-off—at the hands of bride’s family.
Even the poor families are forced to invest maximum amount money as much they
can, during the period of marriage. And, such an unrealistic practice has taken
aerial route in the state of Bihar.
It
is of hue and cry to find the immoral customs still prevailing in society. The
double-edged sword further torrents while we witness from the fact that even
the educated sections of society hesitate to raise fingers against the immoral
customs. Either, they wish to remain a silent spectator or they advocates for
it, saying its’ our custom which is being followed among us from the time
immemorial.
Immoral
customs: An Indian Approach
The
jurist and legal pundits have always faced struggle from various quarters while
they term any custom as immoral. They insist that the immoral custom coupled
with unlawful-motion is obviously immoral custom. Coming down heavily on these
types of customs they say that the immoral customs have lost their relevancy in
present world. However, they face criticisms from the disgruntled sections of
society—who champion for the relevancy of their custom despite it’s immoral in
eyes of court of law.
After
scanning different websites, books and online materials, the project-writer has
come to learn that India needs a strong legislation and sturdy pledge to
wipe-out some of the immoral customs that are still being observed in certain
groups. However, it was not much easy for a non-Indian to study the immoral
customs prevalent among Indian society. After much back and forth, the project
writer found that the following customs are immoral in nature and have lost the
second of court of law.
1. Women
adopt girl child in a fresh bid to engage her in prostitution when she attains
a level of maturity. In general, their all effort is to garner would
be-prostitutes. Very sorry to say that these customs are immoral, unrealistic
and illegal as well.
2. In
Knachan society of Delhi, some of the family is wholly or partly engaged in
prostitution business. They have set up certain code of conducts that there
would be continuation of prostitution even after the death of any family
member—who was already a prostitute. They have separated certain worth of
properties for the would-be prostitute, whoever succeeds the deceased.
3. Subsequently,
the double-edged sword further torrents when we come to learn that still there
is a custom in some sections of society that allows a wife to leave her husband
any time soon—even without getting divorced—and contract a fresh a marriage
during her life time. If the law should prevail, these barbaric customs should
be banned as it is contrary to the established principles. However, there is
nothing immoral when the re-marriage is completed by following the
procedure.
4. A custom among the people, who are engaged in
prostitution, that a prostitute would forfeit her property as soon she
contracts marriage with a groom. Secondly, they have also clarified that the
newly married women have to leave prostitution business and can’t claim for
even ancestral properties which she was supposed to get earlier.
5. A
custom entitling a brothel-keeper to succeed to the property of a Nauchi or
slave kept for the purpose of prostitution is immoral as it is calculated to
encourage brothel-keeping and, therefore, cannot be recognized by courts[1].
6. A
custom entitling a brothel-keeper to succeed to the property of a Nauchi or
slave kept for the purpose of prostitution is immoral as it is calculated to
encourage brothel-keeping and, therefore, cannot be recognized by courts.[2]
7. A
custom compelling a member of family to run adultery is also bad. Secondly,
also a custom recognizing a right of heirship in an illegitimate son by an
adulterous intercourse is bad.
8. It
is often criticized that a custom among Pathans (a caste-group in Muslims) that
paves the ways to sale-off bride to the nearest male relative without reaching the
consent of the girl.
9. The
practice of selling daughters for a consideration is a bad custom.
10.In
Hindu society, giving dowry and dowry being a medium of consideration to
contract a fresh marriage is also against the public policy. There are the
incidents of domestic violence against a bride at the hands of other family
members, when their demands were not met from the family of bride.
11.A
custom validating the sale of a religious trust or office is invalid.
12.In
Punjab, especially among tribes around Jalandhar district, there was a custom that
a childless person can’t offer gifts to another. However, later it was judged
repugnant by the Privy Council.
13.A
custom, during ancient Rajas period, to keep a woman kept, aimed at satisfying
the physical need of male guardians is of course a bad custom.
To keep a kept and
establish an extra marital affair or extra-sexual affair is a form of sin, as
envisaged by the holy religious sculptures. The holy Quran maintains,
“Live-in”
relationship is not a “marriage like relation”. Marriage has sanctity of
religion and our traditions. While live-in relation is both “illegitimate” and
“grave sin”. Dictating or negating social values or religious beliefs is not
within the ambit of courts. We cannot be carried away by courts in the matters
what “sin” is and what not. All sexual activities, without valid marriage is a
“sin” and “punishable act” in our ethos derived from Divine laws. And we cannot
give this right to interpret Divine Law to courts at their will. All sexual
ills and crimes marring the world today are rooted in the dirty notion of “sex
with consent” is not crime. The solution lies in the Divine decree: “And do not
go near fornication. Verily, it is an abominable crime and evil way.[3]”
(The Qur’ān, 17:29)
The prevalent Civil
Law and Hindu Law also prohibit second marriage and so negate
“heterosexuality”. In many cases this rule applies on all citizens,
irrespective of Personal Laws. For example, no Civil Servant or a member of
Armed Services can have second wives. The Gen. Sec. of Forum for Civil
Rights Sayeed Mansoor Agha believes that the courts in India, for settling
family disputes, have always relied upon customs and traditions of the couple
in dispute, and never count upon “social trends elsewhere”. Customary Laws get
prevalence even in written laws. Referring “various countries recognise” this
trend or that trend is a deviation from existing norms of Indian judiciary and
is dangerous[4].
Moral
and Immoral Customs: A Judicial Approach
The judicial decisions have
clarified that the customs contrary to the public policy would be termed void.
The court of law is also of the view that the immoral customs that attacks the
public policy is not entitled to flourish dominantly. In the case of Fateh
Alienation Shah v. Mohammedan Baksh, it was held that the custom, which opposes
the public policy, is immoral and not enforceable in the court of law.
On the contrary, in case of
Harprasad v. Shiv Dayal (1876), the Privy Council court held that custom is a
rule which has obtained the force of law in a particular family or region due
to long usage. In a similar gesture, in Transitory case (1608), it was observed
that custom is a jus non scriptum made by the people in respect of place where
it is followed. The court heralded that any custom obtains force of law when it
is continued from time immemorial.
Recognizing the importance of
custom in Hindu law, even the Privy Council in the case of Collector of Madura
v. Motoo Ramlinga, it was observed that the clear proof of usage will outweigh
the written text of law. Here the court heralded a new dimension to look at the
customs’ validity. The court signaled that for a custom to get legal sanction,
it must have a long usage.
In a similar tune, West Rand
Central Gold Mining Co. v. R (1905), the court laid down that for a custom to
get recognized at international arena, it must be beyond doubt widely and
generally accepted that it could hardly be thwarted by any civilized society.
So, by advancing this notion, the learned justices involved in the
decision-making process of the aforementioned case, have put efforts on the
need of civilized customs. The court was of the view that any custom would
obtain international or national recognition only if it does not pose serious
concern in a civilized society.
Similarly, in the case of Raja
Verma v. Ravi Verma, it was held that a custom of recognizing the sale of
religious office and trust property was inconsistent to the public policy.
After going through the above
mentioned cases, the three basic determining filters come across us as the
custom must have a long usage, it should not oppose the public policy and
widely acceptable. Apart from this, the courts, while administering justices,
have underscored the need of civilized customs. Denouncing the immoral customs,
the justices came down heavily against the customs that are unacceptable among
the civilized states. A veteran jurist Keeton observes that a custom must be
reasonable and in existence from time immemorial.
Regarding a local custom, it has
been held by the Judicial Committee of the Privy Council in Subhani v. Nawab,
that it is undoubted that a custom observed in a particular district derives
its force from the fact that it has, from long usage, obtained in that district
the force of law.
“As observed by Chatterji, J., in
Daya Ram v. Sohel Singh, customary law is in a “fluid state” and changes with
the times and therefore the custom set up need not be absolutely invariable,
though no doubt the latter is the conception of what custom is, “It may
be the case that, in the Punjab, custom can be regarded as something which does
slowly and imperceptibly change and that it need not be absolutely invariable,
though the latter is the usual conception of what custom is. But such a
change would have to be gradual and a new custom cannot be created by the mere
assertion of the various tribes at a subsequent settlement with respect to this
matter. It has always appeared to us that the earliest riwaj-i-am serves
as a very useful check on subsequent rivaj-i-ams and may even be regarded as
the most important document in which custom has been recorded.”—Per Addison,
J. Similarly, it was remarked by the same Judge in Fazl-i-Husain v. Tafazil
Hussain: “It may be the case that it is not necessary to prove that a
custom in the Punjab is ancient, as has once been held, though as to this I
prefer to offer no opinion; but it is certainly necessary at least to establish
that it is being invariable or very generally followed at the time in dispute
and has been so followed for some time in the past; for, otherwise, one would
have to find some other name that custom for such a variable process.[5]”
In the case of Mercer v. Denne
(1905), it was held that custom would be admitted if reasonable. Similarly, the
case of Hamperton v. Hono, it was held that if the observation of a custom is
suspended for a long time, it would be assumed that such custom was never in
existence. While citing the relevancy of regular observation, the
much-acclaimed justice Blackstone rolled out a significant parameter to term a
custom as valid in nature. He asserted that a custom contributing in finding
pleasure to an individual is idle and absurd. He was of the view that a custom
must serve a broader interest than that of individual spectrum.[6]
“A custom to be legal must,
therefore, be proved to have been in existence for a time preceding the memory
of man. It not always being possible to obtain such proof, the Courts
have invariably been willing to presume the existence of a custom for such a
period provided that evidence is produced which proves that the custom
has been as far as living testimony can establish it.”[7]
Similarly, when we cite rule number 36 framed under section 14 of the Punjab
Land Revenue Act, 1871, provided as follows:- “It should be remembered that
nothing can be called a ‘custom’ which is not acted on, or which is not of the
nature of a rule habitually applied by the persons amongst whom the custom is
said to prevail whenever the occasion arises.” In Balanda v. Mst. Suban,
Addision, J., however, observed that “custom in the Punjab is more local than
tribal though it may be both.”
One of the
requisites of a valid custom is that it must be certain.
On a separate
context, while upholding the notion of tribal custom, the courts have held that
customs are generally tribal in nature, not necessarily local. The learned
judges and legal pundits have forwarded that the tribal custom is meant for a
custom which prevails among the whole tribe of the country to which the certain
section of society belongs. It was observed in the case of Balanda v. Mst.
Suban, and Waras v. Mst. Fatima, that
custom is primarily tribal and not local; though the custom of a particular tribe
may, and often differ in particular localities.
In yet another significant reading,
in the case of Daya Ram v. Sohel Singh, it was
held that customary law is in a “fluid state” and changes with the times
and therefore the custom set up need not be absolutely invariable.
From the above discussion, it has
been apparent that the essential characteristics of custom are:
1.
It must be of immemorial existence,
2.
It must be reasonable
3.
It must have some sorts of certainty,
continuity and freed from ambiguity
4.
Acceptable at large scale in a civilized
society
5.
Valid custom must be immemorial,
reasonable, certain and continuous.
Moral Customs
and Immoral Customs: A Comparative Study
To
put potshots against immoral customs could not be always true. At a time when
the dissident groups of society showing their serious concerns of being
neglected from a wider-section of society, to term their custom an immoral one
could invite contentions—in one way or the other. However, yet there is every
effort being made, in a fresh a bid to prevail the court of law, the
evaporation of immoral customs is a must in 21st century.
After
much back and forth, the project author has come to learn that, there could be
following differences between moral custom and immoral custom:
a. Moral
customs are generally accepted by society while the immoral customs could face
potshots from some sections of society.
b. Moral
customs can be recognized by the court of law whereas the immoral customs could
face difficulties when it comes to attain legal sanction.
c. Moral
custom is just, reasonable and came out of natural justice. However, the
immoral customs could lack these filters.
d. Moral
custom generally strikes a good deal with humanitarian perspective. However,
the human rights activists could find some pitfalls under immoral customs.
e. On
a separate context, here the society or state is definer of reality—in case of
terming a custom valid or invalid. According to the state policy, certain
custom is identified as moral while some are classified under the list of
immoral customs.
f. Moral
customs could be realistic in nature and it could be pragmatic. However, there
could not be a similar story in case of immoral customs.
g. In
a civilized society, only valid and moral customs prevail. Nonetheless, the
immoral customs could prevail even among educated sections of society but would
obviously fail to garner support from all walks of life.
h. Immoral
customs could bring contentions in society at large while the moral customs
could bring peace and brotherhood. On a different account, to envisage a ‘Ram
Rajya’ (an ideal state as opined by Plato) is as much difficult as to wipe-out
an immoral custom from society at large. Similarly, to foresee a river milk and
honey and to dream a utopian world prevailed by lawful customs—both—are day
dream.
i. Immoral
customs are not enforceable by law. Nevertheless, the moral customs are
enforceable.
j. There
could be consistence, regular observations, continuity, certainty, legal
sanction and among others in moral customs, while the same case is not with
immoral customs.
k. For
example, in R v. Karson, it was held by the Bombay High Court that a custom authorizing
a woman to leave her husband at her will and marry another man was held to be
void being against morality and public policy.[8]
l. Similarly,
in yet another subtle blow to the immoral customs, the court held that a custom
recognizing the sale of religious office and trust property was held to be void
being opposed to public policy—in the case of Raja Verma v. Ravi Verma.[9]
m. Despite
customary laws—be moral and immoral—are weak, but oldest.
n. However,
Narad, Manu and among other Hindu philosophers opine that ‘Custom is above the
law.’ However, the legal pundits and jurist raise eye-brows against this
notion.
o. It
is often said that custom is inversely proportional to the development of legal
system. No matter its’ moral custom or immoral one, will have face legal slap
when it overrides the constitutional provisions.
On
a similar account, the above mentioned differences may not give a complete
picture about the distinction between moral and immoral custom. It has always
been a tall task to differentiate the customs. In developing countries like
India, immoral customs could mushroom day by day. And, it should be taken
normally. However, the state and court of law should come down heavily against it
by leaving the mum-attitude. For example, the dowry system is being heavily
garnered day by day in Brahmin society of Bihar and Uttar Pradesh. Apart from
this, the dowry is much dominant system in Nepal as well. Despite of frequent
efforts being made at the hands of state to wipe-out this uproar, people are at
odds against the legal provisions. Hence, their reckless-attitude should be
blamed for the widening of immoral customs.
The
society should be pledged to vanish the immoral customs. Unless the society
comes down heavily against the repugnant customs, it could not be possible for
the court of law to watch each and every loophole of every custom and term it
immoral. So, the responsibility has been added on the head of society to banish
certain customs that are immoral and repugnant in the eyes of court of
law.
The
NV Paranjape, a much-acclaimed commentator on Jurisprudence, observes that
custom is to society what law is to the state. However, there arises a serious
concern if we herald the second the side view this concept. Had the custom been
realistic like law, there would not have victims emerged out of illegal custom.
There would not have any people victimized in the name of custom. Similarly,
the poor innocent souls would not have to face uproar. Moreover, every custom
would be lawful and the unlawful customs would have evaporated with time and
space. So, despite people love their custom, its’ high time to advocate for the
customs that are lawful and reasonable in manner.
· Formal education should be made available
from school to university level of education on the topic of moral and immoral
custom. The course books should be competent enough to educate a child that
what is- in fact- moral custom and what is immoral one.
· “The Central and State Governments in
partnership with non-governmental organizations should provide gender sensitive
market driven vocational training to all those rescued victims who are not
interested in education.[10]” The government should
come down heavily against immoral custom and there should be an optimum level
of sympathetic move with the victims of immoral customs. For example, the
government could bring some sort of compensations in package for the women who
are under hue and cry situation after failing to provide an adequate amount of
dowry to their groom’s family.
· Rehabilitation and reintegration for
rescued victims—in case of those who are allegedly involved in prostitution--
being a long-term recruitment of adequate number of trained counsellors and
social workers in institutions/homes run by the government independently or in
collaboration with non-governmental organizations.[11]”
· Adequate publicity should be made through
print and electronic media outlets in a fresh effort to eradicate the immoral
customs from society at large scale. Its’ the informed citizenry that would
help us to vanish immoral customs from the society.
· The political leaders and opinion makers should take
initiative to spread knowledge about the utmost need of moral customs against
immoral one.
· However, the responsibility has been added to the head
of paramount power amid the society failing to materialize deal of evaporating
the immoral customs from down to the last hair of head.
· There should be establishment of some helpline
centers, radio programs, jingle advertisements, cartoons and among other visual
information aimed at educating the people to launch an anti-immoral custom
drive at larger scale.
· The NGOs and different organizations should come up
with certain projects among the under-privileged sections of society in a fresh
attempt to make them aware from the uproars of immoral customs.
· The society, which is yet to take the glass of
civilized look, is more prone to immoral customs. So, its’ the need of hour to
make them aware from the ground reality.
· The modern society should not become a ground-zero of
immoral customs. We are living in the age of globalization and to garner the
immoral customs in our society would be miscarriage of justice for a modern
world.
· Any customs defeating the legal provision should be
declared void. If we think that we are living in the age of civilized world,
efforts should be made to prevail the court of law and counter the contrary
provisions—be it a custom.
Most
of the chaos and turmoil in South Asian countries today can be traced as aftermath
of the frequent observation of immoral customs. While the immoral customs
project poor light of modern world, such customs get an extra energy when
people from various quarters become reluctant to avoid it.
No
doubt, the immoral customs could be costlier to the state mechanism and the
people at large scale. However, a strong pledge is the need of hour to banish
it. Meanwhile, a strong legislation is needed to wipe-out immoral and
un-pragmatic customs. For that the leaders from various sections and parties should
come out in the open and march movements against immoral customs. However, the
leaders and the parliament have never shown any significant effort to
completely banish the immoral customs. May be the leaders are afraid of losing
their vote-bank. One of my friends from Haryana said quoting a former Chief
Minister, “We are pledged to protect the activities of ‘Khap-Panchayat’.
Khap-Panchayat symbolizes the identity of Haryana. Similarly, it’s the very
citizen court of Haryana.” The activities of ‘Khap-Panchayat’ are-no doubt-
arbitrary in nature. Secondly, the Panchayat enjoys maximum power and the
verdict passed from their section is made admissible to the so called
perpetrator. The extra-judicial attacks on humanity should be condemned.
However, the leaders seem busy in protecting those unlawful institutions and
customs in an apparent bid to make sure their vote-bank.
Meanwhile,
former Chief Minister Mulayam Singh Yadav during a political rally this year
justified rapes. Cunningly, he said that the violence against women and rapes
are common in India as “boy will be boys.” The cunning leader was justifying
the rape bids. In a fresh attack on women’s modesty, the leader heralded an
unpleasing notion that could give air to the perpetrators busy in outraging the
modesty of our mothers and sisters. Similarly, in yet another sense, when we
analyze the leader’s statement differently, one thing becomes clear that
violence against women have also taken a shape of custom. It is multiplying day
by day. In a similar vein, the immoral customs also get air from such remarks
coming from a powerful leadership.
To
envisage would be-days when the political leaderships would come down heavily
against immoral customs is a day dream—more or less. The strong action should
be taken against those leaders who try to substantiate the need of immoral
customs. Similarly, what I believe that the executive authority should show
courage to limit these types of hanky and panky things. Every time, seeking
blessings from leaders is not a good sign. They will obviously live up to our
expectation when they become enlightened.
The
strong legislation coupled with people’s strong pledge would only help us to
wipe-out the immoral customs. The much-admired justice Blackstone was of the
view that the immoral customs should not prevail in a civilized society. He
further insisted that a custom violating the norms of civilized society pose a
serious concern before the state.
Likewise,
Austin opines that custom has only persuasive value. It has no binding effect.
If we are going to accept his notion of custom, no one should be compelled to
follow any custom. Secondly, if any one fails to perform any custom, he should
not be punished by the society. However, though the court of law firmly
believes that custom has no binding effect, the people at ground level should
also learn this fact. And, for that awareness campaign is a must.
In
the eyes of Salmond, custom would prevail though it does not get sanction from
paramount powers. He was of the view that the customs provides identity of a
society. Secondly, it reflects society’s second face that could offer them a
wide name and fame among the international communities. May be while forwarding
this notion he would not be much acquaint from the uproar of the immoral
customs prevailing in Indian societies. Yes, of course, the custom is like
identity of man. They love it like their own body. But the question comes, what
about those customs which ruin the rule of law? What about those customs which
attack the humanity? What about those customs which harm the philosophy of
natural justice? What about those customs which are unjust?
The
customs that are unjust and unrealistic are straightly void. And the
leaderships should show courage to speak against that. One wrong thing will be
wrong in every manner. A unjust and unfair activity would never reflect a
justice-based picture.
While
forwarding the need of custom, Salmond maintained that a custom can become law
when it satisfied the conditions prescribed by the law. He is also of the view
the illegal and immoral customs should not have space in our society.
Subsequently,
another jurist Gray firmly believed that customs must have a support from
community. He was of the view that law is what the judges declare. However, he
suggests that while declaring a law, the judges should seek recourse to other
sources such as statutes, precedents, opinions of legal experts, customs and
morality and among others. He suggests to look the complete picture. So, in one
way or the other, he advocates the court of law. He stresses the need of legal
customs and moral customs to prevail.
On
the contrary, Austin, who propounded analytical school of jurisprudence,
believes that custom needs state recognition. However, the customs which are
observed in prescription—in very small groups or certain families—does not get
much attention and it could not be an issue before the state. So, every custom
can’t become a subject for the sovereign powers. Moreover, the laws should
define a boundary or put a demarcation dealing with the just and unjust
customs.
Amid
round criticism from different quarters, the parliamentarians should come down
heavily against the immoral customs. The politics has a strong base in society
and leaders capitalize their politics in society. So, any attempts violating
the norms of society should be thwarted by the parliamentarians. Any custom
opposing the public policy and venting ire on the life and liberty of a person
should be termed immoral and unrealistic. Further, it is the responsibility of
the leaders, executive and judiciary to take a lead in an apparent bid to put
entire immoral customs into suspended animation.
Custom
is one of the oldest sources of law. The jurists and legal pundits are not
divided while defining the fundamentals of customs. They sang a similar tune
amid forwarding the concepts of customs as most of the jurists believe that
custom is the science of belief accepted by society. The veteran jurists
maintain that custom is continuing course of conduct. In a significant motion,
the veteran jurists are also not at odds while terming any custom an immoral
one. Almost, entire legal patriarchs believe that any custom contrary to the
public policy and pose serious concern on humanity then it falls under the set
of immoral custom.
Meanwhile,
former justice of Supreme Court (SC) Krishna Iyer believes that the roots of
jurisprudence lies in the soil of society’s urges and bloom in the nourishment
from humanity it serves. Heralding a new dimension in the field of
jurisprudence, Iyer went to add that law is pragmatic instrument of social
order. The patriarch strongly believes that the basic aim of any law should be
to serve the humanity. However, it would not be unjust to add that any
provisions—be it custom or culture—ruling out humanity could fail to attain a
legal sanction. Nevertheless, any provisions—be it custom—that do not serve the
humanity and not even serve the social order then why not they should be blamed
of being invalid customs.
The
much-acclaimed jurist Salmond believes that the belief which being accepted by
the society is a form of custom. Similarly, Austin observes that custom is a
rule of conduct which follows the subject spontaneously and under the sanction
of paramount power. However, both of the jurists are undivided in the origin of
customs. They firmly believe that things done again and again, ancient laws,
faith, and constant use and among others are the sources of customs. In a
similar vein, they are of the view that immoral customs are those customs that
are opposing the public policy and humanity—in one way or the other.
So,
the immoral customs are those customs which vent ire against humanity and court
of law. It can also be claimed that immoral customs could not serve the broader
spectrum. One could very easily point pitfalls in immoral customs. Similarly,
in yet another significant blow to immoral custom, we can argue that at any
pretext immoral customs have to defeat in long run. On the contrary, it can
also argued that its’ the society and the state who are definers of reality—at
least in case of custom. The state holds paramount power to term any
custom—whether moral or an immoral one.
In
India, the immoral customs like dowry, selling of religious office and trusts,
leaving a husband without being divorced and contracting a fresh marriage,
establishing a brothel in a house, sale of wives, prostitution and among others
are immoral customs. The courts have denounced such customs in their rulings.
Though the court of law vents ire against such indiscriminate customs, these
cunning customs are not completely evaporated yet. The law though does not
protect, such customs, it’s prevailing in our society as the people are
reluctant to oppose it. Until and unless, people come down heavily against such
uproars, they can’t be limited. The law could banish it for a while, but the
people’s strong pledge against immoral customs could offer a permanent
solution. So, it can be argued that law could suspend an immoral custom for a
while whereas the people’s strong commitment could put an immoral custom in to
suspended animation for permanently.
On
a separate context, the double-edged swords torrent when the educated section
of society does not show courage in opposing the immoral customs. Similarly, it
torrents further, at a time when the educated people knowingly observes the
immoral customs, arguing that its’ their custom being observed from time
immemorial. So, the time has come to oppose the immoral customs. The long usage
could not provide a character certificate to the immoral customs. One wrong
could never be justified even if it holds a long history.
Moreover,
the strict written laws having provisions to penalize the people-- who advocate
for immoral customs—harder could offer a solution. Because, there would a kind
of fear among the people at large and subsequently people would keep in mind
that if they perform anything wrong even in the name of custom, they would have
to face a benefiting reply at the hands of court of law. So, it can be argued that
a strong legislation—written laws—is required in a bid to wipe-out the immoral
customs from the Indian society.
In
yet another sense, it could also be argued that the media outlets should also
reach out the people with information aimed at awaking the people about the
negative impacts of immoral customs. The media organizations should redefine
its four major functions—to inform, to entertain, to educate and to persuade.
The responsibility on media has been added at a time when the government
authorities are not much near to achieve the goal to wipe-out the immoral
customs. The media outlets can educate and inform the people via their news and
views content.
Further,
the schools and university education should also impart an optimum level of
knowledge in dealing with the pros and cons of immoral customs.
In
the meantime, the opinion makers and the parliamentarians should launch an
anti-immoral custom drive from rural to urban level in a fresh attempt to make
the people awaken. They should not fear from losing electorates. Their vote-bank
would be in safer side when their politics serve the broader need.
There
is need of a strong legislation in an apparent bid to quash the immoral
customs. Secondly, the people’s strong commitment is equally important. Confident
of underscoring the need of rule of law, the jurists firmly believe that any
custom defeating the legal provisions and attacking the humanity undoubtedly
pose a serious concern. They vent ire against immoral customs and of the view
that the immoral customs should be put in suspended animation.
http://punjabrevenue.nic.in/cust13.htm
(retrieved on 25th October 2014, time: 4:34 PM)
http://radianceweekly.in/portal/issue/immorality-of-live-in-relationship/article/immorality-of-live-in-relationship-polygamy-is-the-answer-for-heterosexuality/
(Retrieved on 25th October 2014, time: 4:20 PM).
Paranjape, NV (2014). Studies in Jurisprudence and
Legal Theory. Allahabad: CLA, p. 293
http://www.legalserviceindia.com/article/l269-Prostitution-in-India.html
(Retrieved on 25th October 2014, time: 4:37 PM).
[2] Ibid.
[3]
http://radianceweekly.in/portal/issue/immorality-of-live-in-relationship/article/immorality-of-live-in-relationship-polygamy-is-the-answer-for-heterosexuality/
[4]
Ibid.
[5] Ibid
[6] Paranjape, NV (2014). Studies in
Jurisprudence and Legal Theory. Allahabad: CLA, p. 293.
[8] Paranjape, NV (2014). Studies in
Jursiprudence, p. 290.
[9] Ibid.
[11] Ibid.
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