Report No. 35

Appendix XXIV

Capital Punishment in India During the Muslim Period

I.-Introductory

During the Muslim times (Mughal times) the main system of criminal law administered was the Quranic one. The system had originated and grown outside India. Its main sources were the Quran as supplemented and interpreted by case-law and opinions of jurists. Since all the three sources were "trans-Indian",1 it became necessary for Indian Qazis to have a digest of Islamic law. The last such digest was the Fatawa-i-Alamgiri compiled by a syndicate of theologians under the orders of Aurangzeb2.

That portion of the Islamic Criminal Law which constituted the crimes in the estimation of all nations, was applied to Muslims and non-Muslims alike, e.g. adultery, murder, theft, etc3.

In the Mughal period, Muslim sovereigns used to administer justice in person. Thus, Sultan Muhammad Tughlaq constituted himself the Supreme Court of Appeal and used to keep four Muftis, to whom he used to say that they should be careful in speaking that which they considered right, because if any one should be put to death wrongfully the blood of that man would be upon their head. If they convicted the prisoner after long discussion, he would pass orders for the execution of the prisoner4.

Akbar's idea of justice may be gathered from his instructions to the Governor of Gujarat that he should not take away life till after the most mature deliberations5. The Emperor himself was the final Court of Appeal. and when he appeared in front of his window every morning, it was open to any one to demand justice personally- though the demand was seldom made6.

Akbar was keen to lay down, that capital punishment was not to be accompanied with mutilation or other cruelty, and that, except in cases of dangerous sedition, the Governor should not inflict capital punishment until the proceedings were sent to the Emperor and confirmed by him7.

In the time of Jehangir, no sentence of death could be carried out without the confirmation of the Emperor8.

It has been stated that the lands of the Moghuls were, on the whole, well policed9.

Capital punishment, it is stated, was almost totally unknown under Aurangzeb10.

Under the dictates of anger and passion he never issued orders of death11.

The Farmans issued by Emperor Aurangzeb to the Diwan of Gujarat on the 16th June, 1772 gives a small Code of offences.12

The first Indian Law Commission first prepared the draft of Penal Code before Macaulay's departure for England in 1837. But the Penal Code could actually be passed only in 1860. It was based on the draft proposed by Macaulay's commission and revised by Bethune, the legal member of council, and Sir Barness Peacock13.

The Indian Penal Code was, it is said, influenced by the French Penal Code and the Code of Louisiana14; but the foundation was the English law divested of technicalities. Until it was enacted for a long time, the substantive law of the criminal courts consisted of the Muslim law, with modification made in some respects by the Regulations15.

The general criminal law enforced in the Upper Provinces also (until the Indian Penal Code was enacted) was the Muhammadan law as altered by British regulations and judicial decisions16.

Even in Madras, "for want of anything better" the Muhammadan criminal law as interpreted by law officers and modified by enactment was applied until the Penal Code came into force17-18.

It was only in Bombay that an attempt had been made to codify the criminal law in 1827 by a Regulation19.

In view of this position, it is desirable to study briefly the Muslim criminal law.

The position regarding the criminal law applicable before Indian Penal Code is thus stated20:-

"By Warren Hastings' plan in 1772, the Muhammadan Criminal Law was retained in the Criminal courts subject to the interpretation of Government, or of the subordinate English functionaries, where its provisions were manifestly unjust. In 1790, when the Governor-General accepted the Nizamut of Bengal, the Criminal Courts then established were directed to pronounce sentence accordingly to the Muhammadan law; and in cases of murder according to the doctrines of Yusuf and Muhammad21, as has been already noticed. The Muhammadan law was further ordered to be continued in the like manner in the Criminal Courts established in 1793."22

"In 1832, it was enacted in Bengal that all persons, not professing the Muhammadan faith, might claim to be exempt from trial under the provisions of the Muhammadan Criminal Code for offences cognizable under the general Regulations23.

At Madras, in the year 1802, provisions were made respecting the administration of the Muhammadan Criminal law in the Courts of the East-India Company, similar to those enacted in Bengal by Regulation 9 of 170324.

The Criminal law administered in the Company's Courts at Bombay previous to 1827, was ordered to be regulated by the law of the accused party: Christians and Parsis to be judged on the principles of the English law, and Muhammadans and Hindus according to their own particular laws25.

The Muhammadan law was to be regulated by the Fatwa of the law officers, which was directed to be given according to the doctrine of Yusuf and Muhammad; respect which, and the law of the Hindus, the Judges were enjoined to refer to the translation of the Hidayah by Hamilton, and of the Hindu laws by Halhed and Sir William Jones; as likewise to a tract entitled "Observations", which then constituted part of the criminal Code for the province of Malabar and Salsette; etc.26 In 1819, the Hindu Criminal Law was directed to be administered to Hindus in the special Court27. The Native Criminal Laws were abolished in the Bombay Presidency in 1827, and a regular Code substituted in their place.

The Muhammadan Criminal Law, even when first reserved to the natives of the British territories in India, was subjected to many important restrictions in its application; and it has been so modified by the subsequent Regulations in the Presidencies of Bengal and Madras as to present no vestiges of its sanguinary character, and but few of its original imperfections28."

1. Jadunath Sarkar Mughal Administration, (1952), p. 100.

2. Jadunath Sarkar Mughal Administration, (1952), p. 21.

3. Wahed Hussain Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), p. 15.

4. Wahed Hussain Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), pp. 20-21.

5. Wahed Hussain Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), p. 33, citing Ayin-i-Akbari, Vol. I, p. 254.

6. Pringle Kennedy A History of the Great Mughals, (1905), Vol. I, p. 308.

7. Wahed Hussain Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1905), p. 33, citing Elphinstone History of India, pp. 532-533, Letter of Instructions to the Governor of Gujarat.

8. Wahed Hussain Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), p. 41.

9. Pringle Kennedy A History of the Great Moghuls, (Thacker Spink & Co., Calcutta), (1905), Vol. 2, p. 3.

10. Wahed Hussain Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), p. 53, referring to Alexander Dow, History of India.

11. Pringle Kennedy A History of the Great Mughals, (1905), (Thacker Spink & Co., Calcutta), Vol. 2, p. 77

12. Full discussion will be found in J.N. Sarkar, Mughal Administration, (1952), pp. 122-130.

13. Cambridge History of India, (1958), Vol. VI, p. 384. Also see p. 8.

14. Cambridge History of India, (1958), Vol. VI, p. 387.

15. See Field, The Regulations of the Bengal Code, (1875) (Thacker Spink & Co.), p. 175, para. 240.

16. Cambridge History of India, (1958), Vol. VI, p. 79.

17. Cambridge History of India, (1958), Vol. VI, p. 43, middle.

18. For example, see Madras Regulation 7 of 1802 (section 15), Madras Regulation 8 of 1802 (section 9 to 11), Madras Regulation 15 of 1803 (Preamble).

19. Bombay Regulation 14 of 1827.

20. William H. Morley Administration of Justice in British India, (1858) pp. 185-186.

21. Bengal Regulation XXVI, 1790, sections 32-33.

22. Bengal Regulation IX, 1793, sections 47, 50, 74, 75.

23. Bengal Regulation VI, 1832, section 5.

24. Madras Regulation VII, 1802, sections 15, 16.

25. Madras Regulation VII, 1802, sections 9, 10, 11; Bombay Regulation V of 1799, section 36; Bombay Regulation III of 1800, section 36; Bombay. Regulation VII of 1820, section 17.

26. Bombay Regulation of 1799, sections 36, 39; Bombay Regulation III of 1800, sections 36¬39; Bombay Regulation VII, 1820, sections 17-20.

27. Bombay Regulation X of 1819.

28. The right existing in the Government to alter the Muhammadan law appears to have been virtually recognised by the 13th Geo. III, C. 63, section 7, vesting in it authority for the ordering, managing, and governing, "in like manner (as the Act recites), to all intents and purposes whatever, as the same now are, or at any time heretofore might have been exercised by the President and Council in Select Committee" because it was then before the Legislature that the President and Council had interposed, and altered the Criminal Law of the Province in 1772. Such alterations, and all future necessary amendments thereof, appear, by the above clause, to be legally sanctioned. See Fifth Report from the Select Committee of the House of Commons, 1812, p. 40.