Note
1 The Indian legal system (ILS) recognizes people's law as “custom” at many points. The Indian Constitution itself, in Article 13, recognizes that “custom or usage” may have “force of law in the territory of India” and seeks to abrogate it only to the extent it can be said to contravene the guaranteed fundamental rights granted by Part III.
In a controversial decision, the Supreme Court of India has rejected the contention that power of excommunication from a religious sect is thus unconstitutional. Excommunication based on religious grounds does not violate freedom of religion or of conscience guaranteed by Articles 25 and 26 (see Saifuddin Saheb v. State of Bombay, A.I.R., 1963 S.C.). Thus an important sanctioning mechanism of the NSLS stands legitimated. The Constitution also continues in force “custom or usage having the force of law” before the Constitution came into force; although the text of Article 372 does not explicitly refer to custom, the above result has been achieved by judicial interpretation which has asserted that all custom having the force of law shall, subject to the provisions of the Constitution, have the force of law. Thus, not just people's law in India but people's law in Britain in so far as it was extended to India in the colonial period continues to operate with a constitutional legitimation. Article 31, which until 1977 guaranteed a right to property, recognized implicitly large number of customary agrarian tenures and property relations.The ILS recognizes large enclaves of people's law. Customary marriages and divorce are, for example, recognized by the Hindu Marriage Act (Derrett, 1963; 1970; Diwan, 1978, 1979). A similar diversity of customs and usages in regard to marriage and divorce exists among the many Indian Moslem groups (see, e.g. Ahmad, 1976; Husain 1976; Mahmood, 1972b; 1977).
Systems of family property in land are protected through customary regimes, as in Punjab and Haryana (Diwan, 1978). The law relating to negotiable instruments continues to recognize the indigenous, customary “instruments” such as the Hundis. As recently as 1978, a Government of India Committee urged codification of the law of indigenous negotiable instruments. Industrial law accepts at places the notion of a “customary” bonus. Agrarian reform measures, particularly the tenancy legislation, relied on customs and usages in defining the area of “personal cultivation” which can be retained or resumed by the landowner as against the tenant. Even though untouchability is abolished, as a matter of fundamental right, customary rights of scavengers are still operative in certain parts of India (Baxi, 1979b).It would be rather tedious, and somewhat unproductive, to list areas in which ILS specifically recognizes people's law. It is, however, important to note that the ILS derives considerable support and legitimacy by recognizing and maintaining regimes of customary or people's law. At places, it co-opts people's law; at others it restricts the scope of the operation of the people's law; at places it seeks to supplant it; and, finally, at places it simply chooses to coexist symbiotically, as it were, with people's law.