The codification and legal recognition of these customs is important. The co-existence of customary practices and formal law is not peaceful but subject to conflicts and contradictions with adverse impact not only on the societal relations but also the working of the legislature in the effective implementation of the laws.
This is because law in action may be quite different from law in books. Customs are not clearly defined and are not universally applicable and in their actual operation adapt themselves to the socio-political contours of society.
Moreover customs and practices followed in one particular community may differ from those followed in another leading to conflicts with regard to the statutory laws.
Thus customary laws being area specific may lead to overlapping of multiple laws and continuous amendments may be required to restore their place in the legal structure.
Customs occupy a very prominent place in modern India, and are recognized by the Parliament and the legislatures as valuable in the administration of law and justice. The Constitution of India treats customary law on the same lines as other branches of civil law.
According to Article 13, the term ‘law’ includes ‘customs’ and ‘usages’ having the force of law. But it cannot infringe any of the fundamental rights conferred by part III of the Constitution.
Such laws can be taken judicial notice by the courts under the Indian Evidence Act, 1872. Under The Indian Easements Act, 1882, an easement may be acquired in virtue of a local custom. For example, a customary right of way on the part of a certain group of people to use a piece of land not theirs as a pathway.
Customs also occupy a prominent place under international law. The Convention on Biological Diversity (CBD) lays down that nations should respect, preserve and maintain knowledge, innovations and practices of local communities relevant for conservation and sustainable use of biodiversity.
The Rio Declaration, Agenda 21, and Forestry Principle also encourage the promotion of customary practices conducive to conservation. Likewise International Declaration on Human Rights directs the governments to grant basic human rights to people.
Custom is an integral constituent in the Indian as well as the International legal system. Unlike Statutory law, customary laws come into sight from the community, and command social acceptance and observance or compliance. However no custom will be legally recognized if it is opposed to the principles of justice, equity and good conscience.
Custom has no existence outside statute law and to have colour of a rule or law it has to be discovered, asserted and sanctified by the judiciary.