Customary law


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‘Justice has emanated from nature. Therefore, certain matters have passed into custom by reason of their utility. Finally the fear of law, even religion, gives sanction to those rules which have both emanated from nature and have been approved by custom.’

– Cicero


THE linkages between people and nature are as old as humans themselves. Long before the rise of modern global society, communities throughout the world prospered by husbanding natural resources in an attempt to adapt to the local natural environment. In the process, a wide-ranging body of knowledge, innovations and practices evolved, inextricably linked to the use of natural resources. It enabled most communities to live within the limits of their local environment and contributed to shaping their cultural and spiritual identity as well. Any effort to conserve nature and ecosystems, therefore, must take into consideration the interface between nature and culture.

Local communities, representing a significant part of India’s population, are rooted in their immediate environment and their social organisation is woven round the management of their environment with their culture elaboration taking place primarily through interaction with the immediate natural environment. These communities depend on local natural habitats for their biomass needs and natural resources. They have depended on their immediate natural environment for their survival for long and consequently developed a stake in conserving the local resources base.



As a result of long and continuous usage of natural resources, these communities have acquired a broad know-ledge base of the behaviour of complex ecosystems of their locality. ‘This cumulative body of knowledge and beliefs handed down through generations by cultural transmission about the relationship of living beings, including humans, with one another and with their natural environment,’ is the indigenous knowledge. The indigenous knowledge and belief system determined the cultural ethos, value system and worldview of the community. This worldview, treating man as a strand in the web of life, was naturally conducive for nature conservation. This is indigenous wisdom.

But the entire process had its origin in the ‘usage’ of natural resources. Law, which is the product of a rather complex process of socio-political organisation was unknown, at any rate in its present sense in the ‘primitive’ ages when society was not, as at present, a collection of individuals but an aggregate of families. There was no king or sovereign to frame rules or set laws for families. One family was independent of another and followed its own head, whose will or pleasure was ‘law’ unto its own members. Only when the families expanded and evolved into a ‘community’ and ‘community’ into ‘society’ were rules and principles established for the guidance of members. And most of these rules and principles had their origin in the ‘usage’ or ‘practice’ of natural resources of the community. The long and continuous usage by the community of the natural resources of the locality evolved into customary practices. And when customary practice from long usage obtained the force of law, it becomes customary law. A clear understanding of this ‘process’ led the Roman thinker and philosopher Cicero to trace the origin of most of the social laws to nature.

India was (and continues to be) a biomass-based civilization. The local communities of the independent ‘village republics’ of the 19th century had a locally defined physical environment and natural resources of their own to protect, care for, improve and sustainably use. People’s links to earth were simple and harmonious and the common natural resources were regulated through diverse decentralised community control systems.



The forest was the home of compact tribal communities, like the Nilgiri Todas. Rural communities dependant on subsistence agriculture lived in organised villages. These agriculture based rural people depended on their neighbourhood forests for a variety of products and services. It was a case of harmoniously integrating the domesticated rural economy with that of the natural ecosystems for the subsistence survival of the rural folks.

Forests and other natural ecosystems were considered to be social commons of the locality. But the taking over of their forests and other village commons by the colonial forces resulted in depriving the community access to and control over their ‘neighbourhood nature-catchment reserves. Most of these forests were treated as reserve forests under the Indian Forest Act and the people found inside the forests were termed trespassers; further, the trespass was punishable under the said act. However, notwithstanding the statutory ban and bar, local communities continued to live in the forest and depended on non- timber forest produce for their survival. People were governed and guided by certain ground rules in the exploitation of non-timber forest produce. Traditional and customary practices in the usage of natural resources shaped the ground rules of sustainable use.



On the rural-agricultural front, it was a subsistence economy. And for the compact forest communities it was more than mere survival dependence on their habitat, the forests. These communities had to use their terrestrial, marine and aquatic bioresources for a variety of economic, cultural and religious purposes. The rich oral library of indigenous knowledge and cultural control processes had co-evolved with the customary use of natural resources, helping most of the communities avoid over-exploitation and live within the limits imposed by their availability.

Self-imposed limitations on forest clearance, restriction on hunting, taboos on hunting or harvesting certain species, protection of sacred groves for religious reasons, rotational use of catchment areas (hunting and fishing reserves), lineal ownership of nature zones and use of appropriate local technologies which lower the impact of use or even increase biodiversity, are some examples of cultural controls. Traditional and customary practices of local communities in the usage of natural resources, on the whole, were conducive to the conservation of natural environment with minor exceptions.

Ancient custom is generally regarded as providing a foundation for many laws in most systems of jurisprudence and for reasons grounded in principle and justice. In Indian jurisprudence, immemorial custom is not merely an adjunct of ordinary law but a constituent part of it. In Hindu law, immemorial custom has proprio vigore, the efficiency of law. Custom has its origin in usage. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons in the same locality.

There can be usage without custom, but no custom without usage. Usage is inductive, based on consent of persons in a locality. Custom is deductive, making established local usage a law. They are often used interchangeably though custom was originally confined to local usages immemorially existing.

Custom, if the law is to uphold it as right, should be immemorial in origin, certain, reasonable in nature and continuous in use. Both national and international courts play an important role in the application of custom. The court by its imprimatur will attest the ‘jural quality’ of the custom. When a customary right is upheld by the court it becomes customary law. But to obtain that legal status, the custom must be ancient, certain and reasonable and, in derogation of the general rules of law, be construed strictly.



A custom must be ancient, immemorial: The court of law recognizes only those customs that are prevalent from ancient times. A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law. But the rigid standard of the English common law are not strictly applied to Indian conditions. All that is necessary to prove is that the usage has been in practice for a long period and with such invariability that it has by common consent been submitted to as the established governing rule of a particular locality. The right must be proved by clear evidence showing a continuous user as of right, nec ni nec clam nec procario. It should not have been exercised under a permission. In a Madras case, the right to catch fish in a tidal river at a certain place by putting stakenets across the river was claimed on the basis of a custom and was held established as customary right of the locality on proof of thirty years use.



Custom must be reasonable: A custom derives its validity from being reasonable at inception and present exercise. The Indian decisions are in harmony with the English authorities. Menoor v. Denne and Tyson v. Smith, which elaborate on the reasonableness of customs. A customary right, namely the right to take earth for making pots, was claimed by the kumbhar community of a village and upheld in the Nagpur case of Bhiku v. Shooram, though it was a case of profits. In State of Bihar v. Subodh Gopal (AIR 1968), the Supreme Court held that a customary right in the exercise of which the residents of a locality were entitled to excavate stones for purposes of trade (and not for domestic or agricultural purposes) would ex facie be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the right. The custom was therefore unreasonable.

Custom must be certain and invariable: The court will not recognise a custom as valid unless it is certain in its extent and mode of operation. The requirement that a custom should be certain is also expressed by saying that it should be definite, or that it should be invariable.

Other features: (i) Customary rights are not public rights. Public rights are in favour of the general public at large, but a customary right is in favour of a limited section of the public, like the inhabitants of a village or members of a community. The way in which a public right arises is known as ‘dedication’. (ii) Customary rights are rights partaking of some of the characteristics of an easement, but are not easements in the proper sense; customary rights are not appurtenant to a tenement but exist in gross, i.e., they are not for the beneficial enjoyment of a dominant heritage but exist for a personal benefit. Easements are private rights belonging to a particular person while customary rights are public in nature annexed to the place in general. Customary right are specifically excluded from the purview of the Indian Easement Act, 1882.



When the courts in India recognised customary rights based on long usage, they become customary laws. These customary laws were the creation of Indian courts. Customary rights, by definition cannot be the creature of a written instrument. Neither were the principles of customary laws codified nor were the said customs listed out separately by legislation in India. However, customary rights were recognised as early as 1872, when the Indian Evidence Act was enacted. Section 13 of the act deals with the facts relevant for the proof of customary law. The Indian Forest Act 1927, under Sections 12 to 16 recognises rights to pasture and forest produce at the stage of settling rights before a given area of forest is classified as reserve forest. These rights are, no doubt customary rights. But these rights were seldom transformed into customary rights in the field. The reasons were twofold. Either the forest dependant communities were ignorant about their rights or the settlement officers, with their narrow and rigid pre-establishment mindset, were not inclined to grant such rights to the people. However, it should be admitted that the early colonial legislations enacted over a century ago did recognise customary rights, though such legislations were very few.



The Constitution of India, under Article 13, treats customary law along with other branches of civil law. A custom or usage if proved would be law in force under this article. These customary rights having the force of law can be taken judicial notice by courts under Section 57 of the Indian Evidence Act 1872.

Community level customary laws evolved out of area-specific traditional usage and practice. Hence they reflect the cultural ethos and traditions of the local people. Since these practices had emerged out of specific natural environments, they supported local livelihoods. These practices helped the local communities to be self-reliant and self sufficient, since their needs were few. However, with the advent of colonial rule and introduction of formal legislative laws, customary regulations gradually receded to the background.

During the colonial era, Indian courts attempted to formulate a more rational legal framework into which the customary rights could be integrated. In the absence of guidance from any substantial legislative law, it was left to the courts to develop customary laws as a new branch of civil law. However, most of the decisions rendered by the courts in the context of customary laws related to either hereditary offices or religious ceremonies. Though areas like community commons, community conservation and the corresponding traditional resource rights (TRR) clearly came under the purview of customary rights, these issues were seldom brought before courts for adjudication. The reasons were not far to seek. All disputes relating to the issues were sorted out in community panchayats. Also, the community did not recognise the jurisdiction of any outside institution to preside over their community resource disputes. And on their part, the colonial courts, with their Anglo-Saxon jurisprudence orientation in respect of ownership issues, were unable to understand the complex issues of community ownership and the custodial association related with ownership.



Custodial association is much more than community conservation of natural resources. Compact communities of India still have a concept of ‘custodial association’ with their community controlled natural commons. This man-nature relationship of custodial association represents the ‘best and highest’ in community conservation. This customary practice of local communities is well illustrated by the Toda tribe of the Nilgiris. The ancient pastoral Todas have lived on the upper plateau of the Nilgiris for centuries. They believe that they and their unique hill buffaloes were created on the Nilgiri hills (of Western Ghats) by their great Goddess Tokissay. The rolling mountain grassland with the shola forests in their fold was the homeland of Todas where they have grazed their buffaloes for generations. Many of the high peaks, shola forests and streams are in one way of another enshrined in their myths and legends and are sacred to the tribe. Therefore, the Todas, who are vegetarians, would neither hunt animals nor till the earth for agriculture. Their association with their habitat was ‘custodial’ in nature.

Their custodial association is a contribution of ‘custodial responsibility’ and ‘custodial right’ with endowments of nature. This custodial association is deeply rooted in their ethical philosophy. It would be incorrect to project this association only in terms of control over resources. Nature is not just an ensemble of resources; it is much more. This association is in the nature of custodial relationship among the members of a family. Todas are part of their habitat, a strand in the web of nature. This unique relationship was reflected in their use of natural resources and manifested in their traditional and customary practices.

For the Todas it was more a ‘customary duty’ than a ‘customary right’. Little wonder, even the rigid Englishmen who set their foot on the Nilgiris, later recognised the customary rights of the Todas to their homeland. These rights were incorporated in the Tamil Nadu Forest Act 1882 as Toda Patta Lands by the colonial legislators, a right exercised by the unique Todas even today. Is there any scope for revival of customary law, which in turn can create some more space for community based conservation?



Centralised administrative institutional control, complete bureaucratic hold on natural resources, rigid forest legislations that offer little space for people’s participation, the pre- sent economic paradigm based on liberalisation and globalisation, and an ignorance and indifference of the relevance of conservation oriented customary laws at the administrative and judicial levels are some of the major constraints on the revival of customary laws. However, there is a silver lining on the horizon, both in relation to international and domestic law. Based on both hard conventions and soft declarations, Public International Environmental Law is emerging as an independent and distinct discipline of environmental jurisprudence. Also, there are judicial decisions of Commonwealth countries that are conducive to customary law and community conservation.

The Convention on Biological Diversity (CBD) adopted at the Earth Summit (1992) brought conservation of biodiversity to global centre stage. The convention, which has been ratified by India, ordains 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 on Environment and Development, Agenda 21 and Forestry Principle – other soft declarations adopted at the Earth Summit – also encourage the promotion of customary practices conducive to conservation.



Convention 107 (1957) and Convention 169 (1989) of the International Labour Organisation (ILO) declare the right of indigenous people to their habitat. Not long ago, the Australian court in the Mabo case, declared that the community title over community commons was superior to crown title. At the domestic level, the Indian Forest Policy Statement (1988) recognises the relevance of customary rights and practices of local communities for the conservation of nature.

The Constitutional 73rd and 74th Amendments are giant steps in regard to community conservation based on customary law. They pave the way for self-rule for local governments. Under Article 243G, state governments are required to devolve power and authority to local governments to enable them to function as institution of self-government with reference to matters in the 11th Schedule of the Constitution. Subjects, including social and farm forestry, soil and water conservation are listed out in the said schedule. The Panchayats (Extension to Schedule Areas) Act of 1996 mandates that states shall not make any law under (Part IX of the Constitution), which is inconsistent with customary law, social and religious practices, and traditional management practices of community resources.



The Supreme Court in M.C. Mehta v. Kamal Nath and others (1997-ISCC 388) had ruled that the ‘doctrine of public trust’ applies to natural ecosystems and the government as public trustee should protect the same for the benefit of the society at large and that private commercial and industrial establishments should not be allowed to misappropriate them. The judgement is a reassurance of peoples right to their commons. The common-land case of Karnataka represents another case of people’s resistance to the take-over of common property resources by the state for the benefit of commercial corporations.

Communities in many places are regaining control over natural resources. The accelerated loss of natural biological resources represents not only a loss of species and ecosystems, it also tears apart at the very fabric of human cultural diversity which has co-evolved with, and depends on, their continued existence. As the communities, cultures, languages and harmonious customary practices of local people die out, lost forever is the vast library of ‘biodiversity related knowledge’, accumulated in some cases over thousands of years. Revival of community customary practices conducive to community conservation assumes significance in such a scenario. What is lacking is the political will and social determination. Global civil society can certainly shape the socio-political forces in this regard.