Chapter XI Law and Legal Institutions and Judicial Organisations Toe Hindus and the Muslims attached supreme importance tothe their faith and their sacred scriptures served as guides to principles of es litical organisation. Bound as they regulate their social relations and po! were to their respective faiths they were temperamentally not ready to accept the laws framed by any human agency. We have noted how Kautilya was dubbed a revolutionary for advocating the supremacy of the rational law over the sacred law. But through centuries, it came to be felt that the Vedic hymns are difficult to comprehend and more so to relate to current practice. Therefore, Vedas became inadequate for the regulation of large segments of social life which had become more intricate and complex. The result was the law codes (dharmasastras) -omposed by the law-givers, and their ordinances achieved _a_ stature scomposed_by_the_law-givers, ‘comparable to that of the Vedas. This development is tn e Islamic Taw as well. J. Sources and Character of Muslim Law The Islamic government and society was based on the Shar, or Islamic Law. Shar’ was the legal sovereign and everyone, the rulers and the ruled were not above the law but subservient to it. Muslims consider Shar’ as divine, eternal and immutable. ‘This was so Universally recognised that there are cases on record in which subjects have sued monarches.in ordinary courts of law’. This demonstrates the supreme reverence with which they had held the sacred law. In the history of Islam, law has been divided into Shar’ and Urfi. wunciate (1. The Shar’: The Shar’ which is based on the principles enunciated fadis and Tima. The Quran is the important source of law and the Quranic injunction _has an overridding authority over all other factors: But this Holy Book does not enunciate principles of law in very oxact [256] © scanned with OKEN ScannerLAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 257 and precise terms. AS time passed by social problems grew more inti . y iy és Frmplex and the governance became difficult on the basis of the alter which laid down only broad principles of social life. This difficulty was over- wre by incorporating Swnah or Hadi as a source of law next to_Quray ) ‘The Quran was revealed to mankind through the agenc: of Muhammad, iuis- therefore, natural for mankind to venerate him. But the Muslims regard him as Insan-i-Kamil or the perfect map.'(The Muslims hold that Proph Muhammad_was “the best interpreter’ of thé Quranic revelation) Therefore, ‘hat he said, did, acted, or did not oppgse are consi of vital importance and ese a speci sane [After careful research scholars have agreed upon a collection of traditions which were regarded as authentic and this collection is called the Sunnah or Hadis. The Sunnah is regarded as the pest interpretations of the law and has played an important part in the apmentof Shar’ because wherever the Quran is ether silent or does not contain 3.clear injunction, the authority of the Sunnah or Hadi is sought.) "Tn the course of its later development Muslim society was confronted with new problems as the existing law was inadequate to solve them. Hence two other sources were drawn upon. These were the Jjma and Qivas. Ijma or the consensus of opinion of the most eminent theologians of Islam was accepted as the right sol ‘ation. It was agreed that wherever legal opinion is unanimous regarding the interpretation of a verse of the Quran or a tradition fete differ. Unless the judge has very strong of the Prophet it is not safe TO ms to differ from an {interpretation which has received universal approb- ation, he is expected to concur, The Oivas_ we nalogous inferences based on the Quran, the Hadis(Atnong, all these sources, “the Quran and fhe Hadix were considered the most valuable a ‘and were described as the Usul ul-uswal oF the bases of the bases” of Islamic jurisprutens 2". TCiotiows From what has been described above that inerpresisor lays « significant part in the development of the Shar’ lay. The Shar'law is n ae omnizable amount of judge-made lay” This need arose due to the application of the principles ‘of Quran and the teachings of the Prophet to the complex, growing ‘and the changing society and it was found necessary for the advocates and judges 10 interpret and reinterpret these principles and teachings.” Matters which att Tp ated a5 an 8 en of religion, such as marriage, succession. jnheritance and so forth came unde1 the purview of “Td. The Urfi Law): Inthe development of Islamic jurisprudence may be mentioned the rules and regulations issued fronvtime to time, by rulers of eee eee 1. Aw. Pande, op. cit, p. 160. 2, The Delhi Sultanate, pp. 456-457 3. Ibid. p. 457, © scanned with OKEN Scanner258 HISTORY FOR LAW STUDENTS (Clap, _ ‘These regulations were based on justice and fyip to matters like trade, property, war, taxation 4 to be collectively known as the Urfi lay. A judge discretion in the interpretation and the application however, had no such discretion in the interpre. d he had to abide"strictly by the views of the different Muslim States play and mostly related like. These have come was allowed considerable of the Urfi law. The judge. tation of the Shar’ law anc approved learned jurists. ; Still later, considerable complexity arose due to the conflicting inter. pretations by numerous learned jurists (mujtahids) ‘who held divergent op. nions with regard to legal points and other matters that were not covered by direct injunctions of the Quran or the Hadis’. Consequently there grew up many well-defined schools of law, whose commentaries on Muslim Law were based on their interpretations on an exhaustive study of the Quran, the Hadis, the [jma and the Qiygs. Each school was marked by its own distinct characteristics, some were fundamentalists and others were rationg- lists of different hues. Of the important schools or law, leaving aside the Shiah and Khariji sects, which were founded as the result of political cleav- age, mention may be made of four main schools of law. These schools were evolved of orthodox Islam, called generally Sunnism and they are considered as the most authentic schools of law. These are : 1, The Hanafi School founded by Abu Hanifah (699-767 A.D.) 2, The Maliki School founded by Malik ibn Anas (713-797 A.D.) 3. The Hanbali School based on the teachings of Ahmed ibn Hanbal (780-855 A.D.) 4, The Shafj School founded by Muhammad ibn Idris-ash-Shafi (767-820 A.D.)* Of these four schools, the Hanafi and Shafi schools gained greater popu- larity and even now the Hanafi School is followed in Northern Indig. The Hanafi School gives greater img tational deduction and_it_w: “ep ; greatly strengthened by the t one of whom, Imam Abu Yusuf, has left an important treatise on the law governing the State demand on agricultural produce and agrarian adminis- tration. This school had the most liberal altitude towards non-Muslim in- habitants of a Muslim Empire. The Hanbali and the Maliki schools are more Hanbali and the Maliki schools are more fundamentalists > The Shafi school is followed only by a few in India, 4, M, Rama Jois, Legal and Constitutional History of 5. The Delhi Sultanate, p. 457. eee ee © scanned with OKEN ScannerLAW & LEGAL INSTITI xo 'UTIONS AND JUDICI IAL ORGAN a ISATIONS 259, That Muslim Law is primarily religi of js. The thesfore he secular lav ene Si 7 . ic levi t sila Te basis of Islamic esislationi ethical and no : jen shown by joseph Schacht, the Quran does not ‘lay Goma mul but indicates what is right conduct and what is na sete why ‘the Islamic law is not susceptive of change or rowth’ aa ae development of Islamic law the constant interpretation and eee have played a significant role, They have also hel the ae Ort law have been sometimes accepted by the Muslim learned Ss : i ponte and recognised as legal enactments. For instance, ammad bin Qasim accorded the immis 10 the Hindus d Multan, which was hitherto the special privilege of Christians iment.’ It is no doubt juris ‘ of Sind an nd Jews, Abu Hanifah recognised this as a legal enact true that such instances of ‘accommodating character were rare, but they vere there and on account of circumstances some time made Islamic what was originally considered unIslamic’’.® Since the Muslim law was based on trans-Indian_source,,no Indian jurist, however jearned and eminent he may be, Fwas considered competent enough to come forward with a bold interpretation of the above type} Further, he was not considered capable of laying down a legal principle or elucidating any obscurity in the Quran or supplementing the Quranic lav, by following the line of its obvious in- tention in respect of cases not explicitly provided by it? The same Muslim during the rule of the British in India and ‘continues to fution to the extent it was Law was in force ule of t h be in force’by virtue of “articls 372 of the Constit 7 the Constitution and subject to the the commencement 0 propriate legislature a in force prior to jslations enacted by the aPI provisions of Legi and Non-Muslims ct of the responsibility of the non-Muslim the Shar’ La. Since the ‘but merely accepted its Jizya tax. They were 2. Muslim Law ‘Three broad pri residents in an Islamic Stal avis did not actively SUPPOTE the Mus i rebellion and pay a 4 to refrain from authority, they ma ee 7 ‘the State by enlisting this a ol spre Zimmis were exempled cted exempted from themselves from the app! %. Origins of Islami Jurisprade ore Mughal Empire, 5 4 The Mughlai creat 1 8 Ae Mughal Empire, P53, BM Rama Jois. 0p. tf PP- 9-10. the arm ication of the perso ince, p- 384. © scanned with OKEN Scanner260 HISTORY FOR LAW STUDENTS (Cap, 5° of the Muslim State, they were “free.to_maintain their orship, their personal law and, if they so desired, hei vans to impose their personal law'.!! ‘The Zimmis were given Re choose either a Muslim court or their own courts. But the the choice to cheer cases where the litigants differed in religion. In cases Oe ae Wii happened to be non-Muslims the advice of men learned We pas taken by the court. In all cases where the litigants difereg i religion, ‘even though one of the parties to the dispute was a Muslim, decisions were pronounced on principles. of. equity. In respect of criminal code the problems involved in its universal application were solved by the “Muslim jurists before the advent of Islam into India. ‘They laid down that the Islamic criminal code was to be applied, but where it came into conflict of the ld not apply.to, them, if such the State or Society”’."? For of Sati was not considered as an offence. and allied peoples institutions, their forms of W a procedure could be adopted instance, the voluntary observan ‘The different schools of Muslim Law recognised Muslims alone as the citizens of an Islamic State and the non-Muslims were not allowed to enjoy the same rights as Muslims. The Law for the Hindus ‘was Islam or death’. The Hanifah school grants only secqnd-grade.citizenship to the Zimmis and imposed on them some legal and political disabilities which~exténded to even wearing of clothes and riding the horse. “They were discriminated against in matter of testimony in the law courts and in marriage and also in the matter of protection under the criminal law’’.'> They were subjected to pay land revenue and other taxes af double Yhe rate than paid by the Muslims. The Sultans of Delhi found it di to enforce the Muslim Law in its letter and spirit and the attempts of some Sultans to enforce their strict ob- seryance were not met with success. This is not to say that the Hindus could freely observe their own law: sustoms, but the prevailing atmosphere made it necessary for the Sultans to effect a compromise with the law of the land. Nevertheless, in the administration of justice the Hindus were not treated on par with the Muslims. . Changes under Akbar: Akbar was more farsighted and original than his predecessors. He pos- sessed a large measure of humanity in his character hated pride and arrogance: In his desire to emancipate India from the thraldom of the religion of a minority and extricate her from the clamps of theocracy repealed the 1, This rule was never in practice in Indi 12. The Dethi Sultanate, p. 45800 13. J.N, Sarkar, Aurangzeb, Vol, I, pp. 265-267. © scanned with OKEN ScannerLAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 26! jaw_in regard to non-Muslims. naar te prisoners of var and tose oft fates res a ustims. Tn 1563 he abolished they pilgrim ci bean usfimns and in the following year the much ated J ee A tbe ae Mie 108 which imposed social, religious and | Oo dusblies on te ie wach impose se legal disabilities on the Akbar’s restless mind did not le se di not rest content until he eave any aspect of human life untouched. or social. He desired to fuse together the Sifireat eas aa we religious vfs of 8 COMO Ji and to establish classes of his subjects by he accorded recognition to all the religioris” ast a fond ae jegitimate religious propaganda and proselytism. By an ie ‘te 7 ram the building of temples and other religious stature. an another geinance (1580) the Hinds who were forcibly converted ‘a islam wer permitted tO revert to the religion of their forefathers. This facility was ox tended to Hindu_women who were forcibly married “to Muslims. A far more revolutionary ordina ied to the repeal of the law imposing punishment of death for criticising the relis i of Istam or the conduct of Prophet Muhammad." the personal laws of the Muslims and Hindus. 15 Akbar introduced _vital_ ordered that a Mussal- iy if the first one is barren, ‘Muslim, womai if she ceased to have menses? Sinilatly marfiages relatives were forbidden. He fixed the mar- at 16 and 14 respectively. Prohibition was the rise Of Sunnat oF circumcision before the fo the option of the boy- These laws were Akbar also amended Contrary to the view expressed by Ibn Hasan. amendments relating t i fan can take a second wil was not allowed to remarry between the cousins and nea riageable age for boys and gitl imposed on the observance of age of 12 and even then left it enforced by the{Korwals}in the cities." ‘The marriage laws were made applicable to the Hindus as well. Hindu women, if they $0 desired, were permitted to remarry and voluntary sati Sbservance was allowed. ‘Akbar removed all legal disabilities imposed on the Hi tended the SCOPE of the common yb prescribing uniform rates of land “and other taxes. Correspondingly. th scope of the “Musi @ began to shrink paving the way for the establishment of one com ue a, The Mughal Empire.» 540. 15, Central Structure ‘of the Mughal Empire, p- 308: 18 she Mughal Empire, P- 538. © scanned with OKEN Scanner262 HISTORY FOR LAW STUDENTS (CHap. Akbar. His son revok Many of these reforms did not survive oked the amendments relating to the personal law of the Muslims. Shah Jahan avith) nstruction of new temples and repairing of olg drew permission for the cor aM interested in making the empire an Islamic State ones. Aurangzeb who wa: ed the supremacy of the Shar’ law. By the time we come to the end “rest Of the Mughal rule all the laws that were in operation prior to the reforms of Akbar had been restored} 3. Criminal Law and Punishment It was the Mughals who introduced the Muslim law of crimes for pur- poses of administration of Criminal Justice. It was not only in force during the Mughal age but also for over hundred years during the British rule Aurangzeb who was interested in enforcing Islamic law appointed’a syndi- cate of learned theologians to prepare a Comprehensive legal digest and they composed Farwa-i-Alamgiri.-The farmans on criminal law issued by Au- rangazeb supplement the theoretical Muslim criminal law.!7 Salient features of Islamic Criminal Law: Under the Islamic jurisprudence three kinds of offences, namely of- fences against God, offences against the State, and offences against the pri- re recognised. Offences against God include aposiasy, heresy, and criticising the religion of Islam or the conduct of Prophet Mu- hammed, Thes® offences were pinishable with death. Ther€is lo unanimity __ among the Muslim schools of law regarding punishment to women offenders. While Hanafi School prescribes imprisonment, the other three ‘schools favour capital punishment to women offenders) Death penalty is prescribed for heretics. The law of Islam compounded offences against the State and private individuals. The usual punishment for murder_was death, But it could be compensated with money if the deceased telatives did not insist on _fetaliaton. If the relative refused, the case was decided by the Qazi’s court murdering a non-Muslim a Muslim was not put to death if the latter ~ had not killed the former treacherously. The punishments for various ue were classified into four broad categories under the’Muhammadan law. ate Hadd, Tazir, Qisas and Tashhir. Literally Hadd means ey or limit or barrier. In legal parlance, it means the punishment as has been exactly prescribed by the Quran or the Hadis. Since the punishment is prescribed by the canon law and is considered to be the right of god it could not be altered. The nature: and gravity of punishment was fixed and neither nature could be varied nor gravity increased or decreased. Hadd prescribes vate individual: 17. The Mughal Empire, p. 544. © scanned with OKEN Scanner& LEGAL A w LAW INSTITUTIONS AND JUDICIAL ORGANISATIONS 263 «6 punishments for such cri gefinite PUY r such crimes as adultery, fornicati ann aot). inking oF wie, ht highvay aa ai ti on murder. ‘The following are the punishments prescribed for nea os es: Crimes F Punishments Fornication (sexual relations be- ; 100 strokes of the whi ‘ 1e whip tween unmarried persons) 3, False accusation of a married =: 80 i pesion vith adultery strokes of the whip 3, Theft + Loss of right hand 4, Robbery. - Loss of hands and feet 5, Robbery with murder : Death 6... Drinking wine + 80 strokes of the whip Apostasy Death Severe’ punishments are prescribed for the Hadd category of crimes. Similarly, strict procedures are prescribed for proving the guilt. Depending ‘upon the type of rime, for convicting the guilty evidence of four to two competent eye-witnesses of proven credibility is insisted upon. Four eye witnesses were considered necessary for proving the guilt of illicit inter- course. In. view of this it was not easy to secure conviction, under this ca- tegory of crime.” Tazir means censuring. It was @ coirective doctrine in that the punish- ment wasvawarded with a ‘view to reform the culprit. It took cognizance of suet offences as “the we of abusive language, forger of deeds or letters, jality, sodomy. offences against. public peace and tranquillity, decency, morals-etc.” not covered by Hadd. ‘All were ‘not equal under this category of crime and punishm jing to the social status of the accused. °Men of high rank, who Wer’ guilty of proved offences, were to be let off with a warning. Merchants Wer sent to prison, and common people Were punished with strokes of the whip’. ‘The type and quantum of punishment fo be awarded was left completely to the discretion of the judge. i iti snciple it meant a hand for a hand, a foot jisas, means retaliation. In prine ipl cana life for 8 ean eye foot, h for a too it, a NOSE for a nose, @ toot! dali for a fave, and s0 forth. Such meiments were inflicted on an offender fore caused a grievous injury hort of death, For murder death was the yent varied accordi 18. The Mughal E 543. 15, M_ Rama Jois. oP: cits P- a © scanned with OKEN Scanner264 HISTORY FOR LAW STUDENTS (Chap, the murdered or other claimants demanded it unanj. be compensated with blood money (diya). We may Manucci which occurred during the rule of ations of this offence. The traveller penalty if the kin of mously. It could also here refer to a case related by Ma ‘Aurangzeb to understand the true implic: records: «There was a woman who came to him (Quazi Abdul Wahab, who was the Quazi of Agra during the time of Moghul Emperor Aurangzeb) requiring the condemnation of a young man then in the custody for having slain her husband. The Quazi in a mild tone counselled her to forgive, and if she would listen to him, he would advice her to marry the man or else some other, should she object for having the murderer. The woman consented to the proposal. The young man was released and she married him. Seeing this easy way of proceeding, I took the liberty to say to the Quazi that the sentence he had pronounced was likely to be the cause of several murders for there being many women who were not content with their husbands, they would procure their murder by the hand of their lover in order to marry again at once with the latter. He admitted the force of what I said, but he made me, laugh at it and said it was a charity to secure a benefit to the young man and save his life. But if the woman had persisted in her com- plaint, he would have condemned him to death,”’?0 Tashhir was an un-Islamic but an ancient Indian punishment which was continued in the medieval period. This meant causing disgrace to the offen- der by parading him on an ass with the face turned towards the tail. Some- times the culprit’s head was shaven and face blackened and then paraded. This form of punishment continues even at present. It was also retained by the Mughals. We are told that Jahangir once gave this punishment to imperial officers for dereliction of duty. The heads and beards of the officers were shaved off, and they were paraded on the asses dressed in female attire.2! The Emperor dealt with such offences as’ misappropriation, default in the payment of revenue, rebellions and so forth according to his pleasure. ‘There are numerous instances of such offenders being trampled to death by the elephants or bitten to death by a cobra. Tortures of various kinds were employed to elicit confession. A detailed. analysis of the Islamic Criminal Law reveals many limitation, In this system the criminal law is treated ‘as a branch of private law than of public law’. M. Rama Jois remarks: ‘The principle governing the law was more in the nature of providing relief to the person injured as in civil matters rather than to impose penalty for the 20. Stocia do Moger, Vol. Ii, 419-420, in i it 20 Sia de Mozer Vol pp. , quoted in M. Rama Jois op. cit., pp. 10-11. © scanned with OKEN ScannerLAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 65 ce committed... Though for the offences against indivi posed He penalty still the purpose was only to cae a oe rather, than safeguarding the interest of society. It eee 5 to move the State machinery against such ie ee woul not suo motu take cognizance of the same and this ie ei pefest of ‘Muslim Criminal Law." For one versed with : canes certain aspects of Muslim Law may appear strange and ios i se is treated as crime against individual but not a heinous exis whi ae ing wine is treated as a crime against society and hence rte ae wrong. AS Manucci feared in the case quoted above by vesting the = . Kins or relatives of murdered to initiate action and voviing the whole procedure gave cause to several crimes. “AC: twa delivered in March 1791, one Mongol Das murdered n and therefore no death sentence sibility in the for compromise, cording to a Fai his wife and one of her heirs gave pardor could be inflicted at the instance of other heirs and they had no alternative than to receive ‘“Diya’” (blood money). The system was highly criticised. Inthe words of ‘Warren Hastings: “Law of barbarous construction, and con- trary to the first principle ‘of civil society, by which the State acquires an interest in every member which compares it and a right in his security. It js a law which it rigidly observed, would put the life of every parent in the hands of his son, and by its affect on weak and timid minds, would afford a king of preas ere disposed to become surance of impunity in those who w obnoxious of it. ‘The Muslim Criminal 1924 Law no doubt makes @ distinction between murder and culpable homicide, Put the Tatter did not rest on intention but on the inethod, If a murder took place without the Use of sharp weapon and spilling the blood it as viewed 25.2 culpable homicide. imi c i ‘bed for pro Similarly, “ME f evidence prescril 0 highly cal aad irrational’, amone the rules of evi deserve to be ‘mentioned: ay) “No capital sentence could dence of ‘a non-Muslim: Jn other ‘cases, evidence of valent to {WO ‘non-Muslims; wing the crime was dence the following e law of be inflicted on @ Muslim on the evir ‘one Muslim was considered as equi- @Q) city p13. : it Dr angutating oF poisoning. any other method Srasidered as a culpable ‘homicide. © scanned with OKEN Scanner266 HISTORY FOR LAW STUDENTS (Cap, (3) Evidence of two women was considered equivalent to that of one man; : . Evidence should be direct viz., that of eye-witnesses only and nop circumstantial and further specified number of witnesses was 4 must to secure conviction. For instance for proving offence of rape not only eye-witnesses were necessary but also /four Such witnesses were insisted; (5) For proving theft, evidence of two men or one man and two women was necessary; (6) For securing sentence of Kisa (Qisa) direct evidence of two com. petent eye-witnesses were necessary; (7) Evidence of women was inadmissible to prove a charge of murder and in all cases of Hadd or Kisa’’5 The Law of Evidence rendered the proof of the guilt extremely difficult, As a writer aptly puts it: “As ‘a system the Mohamedan criminal law is mild; for though some of the principles it sanctions are barbarous‘and cruel, Yet not only is the infliction of them rarely rendered compulsory. on the magistrate but the law seems to have been framed with more care to provide for the escape of criminals than to found conviction on sufficient evidence and to secure the adequate punishment of offenders,’"27 All were not equal in the eyes of law. For certain offences Punishment as dependent on the social status of the accused, The Principle of equity = yy. Further, it was left to the judge to deter- 26. M. Rama Jois, op. ci 21. Ibid, p. 15,7 °F Cit B. AS. 28. Ibid, p. 16. © scanned with OKEN ScannerLAW & LEGAL INSTI ITUTIONS AND JUDICIAL, ORGANI ISATIONS xi d decided all type: 267 court am : lypes of cases. Hi vee by the chief Sa »_OF Cases. He was assisted in di juste by dr (Sadr-us-Sudur) regarding Sted in dspensation of of religious natu s-nature py the chief Qazi (Qazi-ul-Quzat) i snd DY Ue chief Qazi Qazi-ul-Queat) in all other cas gadr oF zi Was mostly one person, he rem: ses. But, as the chief the head of the State in judicial ‘on, he remained th f \ ip Judictal matters, The chiet Qazi chief adviser the Sultan oF the Emperor in the judiciary and ee in provi a capitals, in the headquares of ds (oie him were the Qazis grpatant cities within the eat es and parganas and all Muslim population and lange enough to be ig villages having considerable inted by. the called gasbas. These ‘nied by the emperor on the recommendations “Of the chi eee Mecided cases falling within their jrisdict ns “OF "he chief Qazi. They cases mostl en aE peat Tew more particularly ‘religis cases mostly dealing wit ihe personal law of the Muslit eases sf marriage, divorce, inheritance. and the like. They senate ae i cat a anata ce.and the like. also Lie endowments (augaf) of Tand, property or cash for ae ritable purposes.” i i A a purp Sometimes, imuftis (people: who interpreted Islamic laws) ea to assist the Oazs. Th addition, they performed such duties ne ficiating at Musalmans’ marriages, appointing guardians to look after i property of orphans, disabled and other haridicapped Muslims, and a ranging for the marriage of ‘Maslim widows or Muslim orphan gis In other words, the Qazis were entrusted with care of orphans, widows amd destitutes. ‘The criminal cases were decided by the Emperor, the. provincial Qazi, the ‘dari Adalat) and Korwal. Petty criminal cases eating to theft or rioting in the poraars were $5 a whole-time Qazi was app d to try criminal EREe within the pargana. The Faw diction. His wus to those Of modern_magistrates. The ie ‘arkar) and provincial Qasi had also original jurisdiction in addition) t0 hearing appeal Faujdar and Kotwal The third category. or courts Were the revenue courts 7 othe Sarkars and provincial and central Diwans respectively decided revenue 1 Wr of these officers: In ‘medieval period there WAS 00 watertight separation of ; aad stn i en judicial function to erterion for their appointment 2s } iudfevenve affairs was the SOI Age village amd case OF guild pan- Governor, the Faujdar (Fauj _ to the local Kotwal. In course of time afte possessed some criminal juris- wers were analoge' courts of the Jazi-i-S al s against the decisions OF Me ‘The Amils in the parganas» ‘Amalguzars i and pro “cases. Adjudication was not the prime dut 8 the executive and the judiciary an these executive official duties. nowledg judges in revenue cases.”? Besides, there W large vi overno! 3p. The Mughal Empire, P- 5° P\ 3B. ABB. Pande, op. ci P- 162 © scanned with OKEN Scanner268 HISTORY FOR LAW STUDENTS [Citap, chayats which decided all kinds of ¢ _ religious, civil and crim | filed by the Hindus in their respective villages. ‘These 8 were decided according to customary Hindu kaw and usage and the decisions of the pan. chayats were recognised by the State. In fact the panchayats worked sug. cessfully during the medieval period. Though there were different types oy courts, the area of their jurisdiction and their relations with each other were neither clear nor definite. 4, The Royal Court It was an ancient ideal to hold the court regularly and in conformity with it both the Hindus and Musalmans considered it as obligatory to hold open court. ‘The Sultans of Delhi used to hold judicial court twice a week, The general practice Ghder the Mughals was to dispense justice in the open court on the evening of every Friday; but the day of holding the open court varied with the Emperor. The first two rulers of the Mughal dynasty Babur and Humayun were very keen on discharging this particular duty. The bio- grapher of Humayun-informs us that the emperor introduced“the drum of Justice’. He further tells us “‘that a drum was placed near the au and complainants were required to ‘strike it so as to make thei reach the emperor. If a Complainant gave the drum one stroke, it indicated a petty dispute; if two, it meant non-payment of wages or salary; if three, it Meant a dispute about property ‘and if four, it indicated the shedding of Akbar was accustomed to spend several hours of the day in the disposal of judicial cases and appeals, and sometimes would order the trans- fer to his own tribunal of original civil suits of importance. In addition to holding open court every morning at the Jharokha Darshan, every Thursday he held open court exclusively for administration of justice. In this Thursday open court all the high judicial officers like the chief Qazi, muftis, other important law dignitaries and the Kotwal were .""° Akbar alone in- the cases of the Hindus, their traditions should also as well to decide cases of He is reported to have de- 31. The Mughal Empire, p. 546, 32. Ibid, p. 546, © scanned with OKEN Scanner& LEGAL INSTITUTIONS AND N : " JUDICIAL ORG, IN i= ; GANISATIONS 269 | ir ; on guilty of an unjust act, 1 we is | 1 1 would rise in judgm Tf lent “ei ie fol ahangit followed the practice of his great f¢ yas te worthy son of a worthy father. He Teo ta enaaatat he sister justice vey morning and set apart at ao eaamplainonls and we cour fOr the administration of justice. Terr ery Thursday for holding gen, meditating) in all matters of conse a of Jahangir ‘moder- (ee most part judging secundum eanence whic Pappas near His told thats “In parading his love of justice he out di peaahares a a! me a an the balcony of his Vhaebtha Dishok Oa e fixed Ov a fort to which suit ee cwutaltie thet petitions which were drawn up and A nha Sh a peed to the complaints every morning ae elas open cour cory wednesday in the Diwan-i-Khas, and after hearing the plaints re yorted by his judicial officers in the presence of the parties, and veraining the law from the Ulema (Canon-lawyers), pronounced judgment on the facts sub- mitted to him. Aurangzeb, likewise, dispensed justice daily in his private per (Khil Watgah) and held open wart every Wedriesday. Aggrieved his presence by the officials of (he justice department, decided either in accordance 8 cham! persons were led into were personally examined, and had their cases with Quranic injunctions, ‘where these were applicable, oF otherwise, ac- tording to custom and the Emperor's discretion. vAurangzeb, in course O time, found it extremely difficult to investigate into the cases personally and therefore, he issued orders 0 the governors 1 dispense with justice or ‘send parties to the capital with their reports » The Mughal emperors were the lovers of justice, The Emperor was the Khalifa of the age JN. Sarkar remarks: he was “the highest court of appeal and_ sometimes acted at the first instance too.” He decided both civil and criminal cases personally al remained undisturbed even tours or & gaged in military expeditions. Both when the Emperor was ri 7 care ‘Akbar and AurangZed ‘OOK special 0 Ke id ot pei judges cient, just and industrious. to impose the penalty of deat 5 was ‘The standing instructions were thal wi ime’ emperor had given his orders for the tl + ia. 9-192 35. Edwards and Garret, THE ugha Rte in Indias " Ba Bids P19 gal Envir 546. Quoted in The Mugha' Em| Fi Sarkar, Studies i” Mughal India © p. 14-65: —_——~4 © scanned with OKEN Scanner270 HISTORY FOR LAW STUDENTS (Chap, 5. The Chief Qazi Next to the Emperor was the chief Qazi, called Oazi-ul-Qazat, Who combined the office of chief Sadr, was the highest judicial officer of the country, Though primarily a judicial officer, he performed civil, religious and clerical duties. As a revenue officer, he collected the Jizya; aS a registrar, he registered the sale-deeds, mortgage-deeds, conveyances, gift deeds and as magistrate, he accepted bail-bonds, surety-bonds, attestation of Farmans and documents. He was appointed by the emperor and could be dismissed by him. The Qazi being the repository of Muslim Law was to be a man of sobriety, integrity and honesty. The instrument of instructions issued to a Qazi at the time of his appointment under Aurangzeb indicate the qualifications of the chief Qazi: “Be just, be honest, be impartial. Hold the trails in the presence of the parties and at the court house and the seat of government. Do not accept presents from the people of the place where you serve, nor attend entertainments given by anybody and everybody... know poverty to be your glory.">7 The Qazis were expected to rise to such high expectations, As long as they discharged their work honestly and satisfactorily no one inter- fered in the discharge of their duties. Prior to the rule of Akbar, he held his court in a mosque or in his house where the complainants had free access and thereafter in the state buildings only. Though learned in Islamic theo- logy, the Qazi was never ‘considered authoritative enough to lay down a legal principle, elucidate an obscurity in the Quran or supplement the Quranic law by following the line of its obvious intention in respect of cases not explicitly provided by it’. He had to accept the authoritative rulings Provided by the mufti who expounded the law. The mufti was ‘urged to spend his days and nights in reading books on jurisprudence and the reports of cases from which one can learn precedents’. The Qazi decided religious cases mostly concerning the personal law of the Muslims and executed the judgments. He had to visit the jails and review the condition of the prisoners. He had the power to discharge those who deserved freedom. It was on the recommendations of the chief Qazi the Qazis of the provinces, districts, Parganas and gasbas were appointed. Though primarily the court of the chief Qazi was an appellate court, it also decided cases of the first instant. The jurisdiction of the chief Qazi extended over the whole empire. In addition to dispensing justice he performed enor- ' mous multiplicity of functions and this must have grossly impaired his judi- 37. Quoted in A.B. Pande, op. cit., p. 166, | © scanned with OKEN ScannerLAW & LEGAL INSTI ITUTIONS AND JUDICIAL ORGANISATIONS xt) 2 at wor Most of the Qazis did not rise up to the i ‘aurangzed- ‘As has been pointed out ty IN the ideal expected of them 2 ously Cortupt. Every provincial capita 7 ; Saar the Qazis were no- ae ie chief Qazi and these appinime its local Qazi, who was ap- ty bribery: Most of them were so greedy a ey, purchases by wrong udaments in comida or mo aricious, Me) eet Pronts according, t0 their whims showing scant ney. They delivered judg: menome of them even didnot altend the TSP on house ‘There were Ol thers who held rt and tried cases in their court only twice or thrice a week, Au- rangzeD warned and exhorted them not to absent themselves fi ‘i et cept on Friday, the Muslim Sabbath. What is more, some pate rat jgnoramuses and their knowledge of law was very perfunctory. It . ied that the rulers were unaware of this corrupt practice of the Oats. In fact Akbar took drastic action against his celebrated chief, Qazi Shaikh Abdun- Nabi and exiled him to Mecca, as he had become dissatisfied with his erasp- ing conduct, religious bias, and corrupt administration both as the chief Qazi and chief Sadr.” In view of this, the Qazi certainly did not rank high in the public estimation. Popular Miclike and contempt of these, exponents of civil law are enshrined in the adage: ‘when the Qazi’s bitch died, the whole town was at the funeral; when the Qazi himself died, not @ soul followed his coffin’ “© Tt was not all that leak; there were honest Qazis. For instance, rrupt chief Qazi, Abdul Wahhab Bohra who 'd not touch a penny of his the son of that notoriously co became chief Qazi was pponest that ‘he di father’s ill-gotten riches, Dut gave away his share of them in charity. Not only did he decide all ‘sases without the faintest suspicion of corrupt in- fluence or bribery, put even declined the ‘customary presents and gifts from his closest friends and Kinsmen’! ‘Unfortunately this noble example was not followed by many other Qazis during the period of our concern Here. 6. Secular Courts was made between the secular This was due t0 the riod no cle nd the trial for political offences. no ‘di i jl, penal and amils and 4 equity. They In medieval pe ar distinction and common law 4 fact that Muslim jurists. make political divisions of law’. T Kotwals dispensed justice om the Fe, Quoted in A.B. Pande, oP. cit P 166. 39. The Mughal Empire, P- 30. Edwards and Garrett. 0 Clif 191 41, JN, Sarkar, AurangzeDs Vol. Hil, p- 10° © scanned with OKEN Scannerm HISTORY FOR LAW STUDENTS (Chap, 7. Panchayats ‘The panchayats which played an important role in the administration of justice in ancient India continued to play the same role during the rule of the Sultans of Delhi and the Mughals. The panchayats decided cases of their villages. The members of the village or caste panchayats were elected by the people and by rendering conspicuous service to their caste or village community exercised tremendous influence in the village. They had criminal jurisdiction in petty cases. The decision of the panchayats were more often than not were unanimous. They inflicted such punishments as ‘fines, public degradation or reprimand or ex-communication’. They were thus the lowest trial court for criminal cases and usually there were no appeals against their findings. According to A.L. Srivastava, the ‘prestige enjoyed by the pan- chayats was great and their authority was moral than political or adminis- trative. The fear of public opinion was one of the most potent factors responsible for the prevention of crimes and hardly did any case go out of the boundaries of the village. Normally, cases involving even murder were settled locally. The law administered by the panchayats was usually caste and tribal usage and the customary law of the land’’.? The way these village or caste panchayats conducted themselves and the influence they exercised elicited the admiration of British administrators. Sir Henry Elliot who was so impressed by the administration of justice by the panchayats in the Pun- jab remarks: ‘The particular value of this mode of trial was that in intricate points of native customs, often depending upon a state of feeling, which it was difficult for the English officer, as being a foreigner, to enter into the members of the panch were thoroughly at home in their subject and were able to give due weight to a variety of minor considerations which none but a native could perfectly understand. Even in the older provinces, where the regulations are in force, it is found at times convenient to have recourse to this time-honoured method of decision, and the result is so satisfactory, that one is tempted to wish it were more largely resorted to.’”43 Defects in the Judicial Administration The medieval judicial system had a number of defects, The paucity of Suitable law-books was one of the serious defects of the administrative sys- tem. Muslim Law ii Indiadid not grow and change according to the needs and circumstances of the country, It merely reflected the changes of juristic 42, Akbar the Great, Vol. Il, p. 279. 43. irs istory, is 3, nie on the History, Folklore and Distribution of the Races in N.W.E-P., pp. © scanned with OKEN Scanneree EES ONS. AND Sup] AL ORGANISAT Fi NS ANI ICI, NI IONS, tin Arabia or Egypt. Ni ous toi No Musli i fought 10 issue any legal code, Te monarch of Indi if estat regulations issued by Isla € have no idea abot after Firoz Tughl fafoms of Akbar were not “in mm Shah for adeseout the subject na Y ‘te guidance of judges, oA to serve paella Sonienieee . i ral ci i * ection of Islamic laws and got coma ‘made an ae of law «atari and this proved of iain them inva Teale Lior the codi- [rrre. Yet, the judicial office Je help to the juliet native hei s frequent! judicial officer: custom OF their own personal prejudic ly acted according to pas? ofthe: jsoretionary with the trying officer and ned Also punishments Gen dictates ae of uniformity Wasa serio they assumed different fms: Hence vat. wus defect of the judicial ent forms. Hen¢ hee separate judicial agencies work judicial system. ‘There were arone another with no unifying ond on the same time and independent ‘ocedure Was not quite rational and hoa them. Added to this, Te was not. satisfactorily defined. All the co ‘elation between different courts instance foo’ and ‘some of them like those apn the courts of ‘the first Qazis and governors were also the court of the emperor, the proving fefined procedure appeal s of appeal. In the absence of a fin Oe appeals could be made directly to the em i appealing, in the°fitst instance, at the lower courts. To wate IN pine there-was ‘no system, no organi ion.of the law co ts ree dation from the-high of the la co regular et. eter higt est to_the lowest, nor any proper distribution of courts in prop’ tion to the area to be served by them’’. Corruption and_bribery played a significant part in the judicial administration. Palsaert writing about conditions under Jahangir points ‘out that bribery was an approved institution al ‘and improper because ‘the Emperor him- {10 upported by present. It was and nobody considered it imm: achinery of civil law in motion-for securing self does nor'consider an highly expensive to set the m i s. There was much truth in the popular saying Ss8 Jnstances are not wanting 273 the redress of private wrones that “To trust a Qazi i Yo court misfortune. to show how at times ‘communal pressures were usefully ‘employed to secure the cancellation or mitigatio! ir decisions. In short, the judicial system under the rule_of the Muslims, viewed in the jight of the modern ideas, was very imperfect. 8. Punishments : «a medieval age WAS very severe: AS sh oral ‘was ‘an eye for an ‘The theory of puni 7 mentioned before, the princi a pai ‘lie eath penalty. blinding, eye’, ‘a tooth for a tooth’, and “a 7 A confiscation of flaying alive, whippine Aa ji the guilty ones: raphe we oe orm - 166. ‘op. cit P- 194. 44, AB. Pande op. Cit 45, Edwards and Garrett. © scanned with OKEN Scanner214 HISTORY FOR LAW STUDENTS [CHap. ‘zealous and watchful’ in the administration of justice, ‘deliberate ina fa unishments, and in all cases where capital punishment or mu- aaa haat requiring that he should be reminded three times lati en decreed, i mit i ee ees was carried out.‘ Jahangir was capricious and deliber. ation was absent in lis dispensation of justice. Terry informs us: “Trials i are executions: hanging, beheading, impaling, killing with ra cette serpents and other like, according to the nature of the fact” Shah Jahan was even more cruel and he took a savage pleasure in witnessing the execution of the punishments which he decreed."* On the other hand Aurangzeb in his desire to leave behind a name as an ideal Muslim sovereign conducted judicial proceedings according to the letter and the spirit of Muslim Law, ‘erred in the opposite direction’. Khafi Khan re- marks, ‘from reverence for the injunctions of the law he did not make use of punishment, and without punishment the administration of a country can- not be maintained”’.‘? This remark prompted the statement: ‘‘It is reasonable assumption that the dandaniti, or the law of punishment was better suited to the India of Mughal days than the strict doctrines and precepts of the Hanafi school, and that Aurangzeb's inability to recognize and accept that view involved the diminution of his own’ personal authority and the rapid deterioration of the imperial administration.””°° 9. Investigation Process Details are lacking regarding the process of investigation and the few details that are there about the periods of Akbar and Aurangzeb do not help us to draw a complete picture. Trials were held in the open court. When the litigant appeared before the court with his complaint, the mir-i-adal and the Qazis learnt the circumstances of the case through a thorough interro- gation. Then they recorded the evidence of the eye-witnesses or witnesses. The litigants could employ vakils or lawyers. Some-TiléiS“had~appointed lawyers to off legal advice to those who could not afford to engage i : , the State had made provision-for defending jome of most noted lawyers of this period were Ramachandra and Ray Arzantjamong the Hindus and Qawamuddin cr Pamachands Mohsin among the Muslims. One lawyer bore the title of Vakalat Khan’’. Generally the law dispensing authority gave a ‘little gap between the hearing 46. VA. Smith, Akbar, p, 344, . Foster, Early Travellers, p. 326. 48. Edwards and Garrett, op. cif, p. 192. 49. Quoted in Edwards and G: cl Aree jarrett, op. cit. p. 193. 51. A.B. Pande, op. cit. p. 164, © scanned with OKEN ScannerLAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIO: INS xl 275 a case SO as to have time to deliberate over it’ oti new. Due weight was given to evidence tendered when, began their en cases the evidence ofthe Hindus vas not admissible during te reign of ‘Aurangzeb. Capital punishment was decided by the Kine te ae igh pesuch cases weré“ried by diferent authorities, Cig eve gtously and prolonging of the litigation was generally dicouaged Gpangzed made it a rule that no one to be detained in jai mins : Morty of the Qazi; no warrant of arest should be issued unless 2 prima facie case existed against the person and the arrested person should te i uced before a law-court at the earliest. Aurangzeb did not favour indefinite detentions without trial or conviction, He also framed regulations for the release of the arrested persons on bail? All these show that he was equally ‘keen to administer justice even-handedly in cases in which the prestige and interest of Islam were not involved’. ‘The Muslim rulers in medieval India did not show the same amount of concern towards the establishment of sound judicial system a did the rulers in ancient India. With the exception of Firoz Tughlug, Islam Shah, Akbar and Aurangzeb no ruler thought it necessary to issue any legal code for the guidance of the judges. The existing Tegal code left uncovered three-fourths of the population, viz., the Hindus. A silver line in this none-too-happy picture is that by leaving the caste and village panchayats undisturbed, the id exercise the same medieval rulers enabled them to continue as ever an influence as before. © scanned with OKEN Scanner