Sources of Law: Hierarchy, Precedent, Custom and Delegated Legislation
Sources of law is the exam's foundation topic: it tests whether you can rank a rule's authority and identify the correct source when two rules collide. Questions cluster around precedent, custom, delegated legislation and constitutional supremacy.
The hierarchy
- The Constitution (including amendments under Article 368) sits at the apex.
- Statutes of Parliament or State legislatures come next.
- Subordinate/delegated legislation (rules, regulations, bye-laws, notifications) follows.
- Judicial precedent and custom are recognised sources but yield to statute.
Article 13 makes any law inconsistent with Part III void, so constitutional supremacy, not parliamentary sovereignty, is the working rule.
Precedent
Under Article 141, law declared by the Supreme Court binds all courts in India. Only the ratio decidendi - the rule necessary to the decision - binds; obiter dicta are merely persuasive. A larger bench prevails over a smaller one, and a coordinate bench cannot overrule. Decisions given per incuriam (ignoring a binding statute or precedent) lack binding force.
Custom
A custom must be ancient, certain, reasonable, continuously observed, and not opposed to statute or public policy. Once a statute occupies the field, custom yields.
Delegated legislation
Valid only if the parent Act delegates and the delegate stays within scope. Excessive delegation, unauthorised sub-delegation and ultra vires rules are struck down. Rules must be laid before Parliament where the statute so requires.
Worked example
A State rule prescribes a fee higher than the parent Act authorises. A litigant relies on long practice of paying the higher fee. Custom cannot cure ultra vires: the rule is void to the extent of the excess, because delegated legislation draws power solely from the parent statute.
Traps
Do not equate obiter with ratio; a High Court decision does not bind another High Court; Article 13 covers pre-constitutional laws too; repeal does not revive law automatically.