Report No. 35
II.-Muslim Law as in Force at the Advent of British Rule
For the present purpose it is unnecessary to give a detailed discussion of the theory of punishment in Muslim Law. But the following brief extracts from an authoritative book will suffice1, to give a general picture:-
1. Jadunath Sarkar Mughal Administration, (1952) pp. 101 to 109.
Classification of Crimes
According to Muslim ideas of jurisprudence crimes fall into three groups, namely:-
(a) offences against God„
(b) offences against the State, and
(c) offences against private individuals.
Punishment for the first of these classes is "the right of God (Haqq Allah)", while for the other two classes of offences the injured party may forgive or compound with the wrong-doer. Thus, curiously enough, manslaughter is not a violation of God's law nor of the king's peace, but only a damage to the family of the murdered man, which can be settled by paying money compensation (called "the price of blood") to the next of kin of the victim, without the Executive Head of the State or the Judge of Canon Law having to take any further notice of it. It was only when the relatives of the murdered man refused to accept money damages and insisted on retaliation, that the quazi had to pronounce the sentence of death and the executive to enforce it.
The Institute of Timur puts the matter with great clearness and force. He writes:-
"Robbers and thieves, in whatever place they might be found, or by whomsoever detected, I commanded to be put to death." (Note: This, however, was not in exact accordance with Quranic law.)
And I ordained that, if any one seized by violence the property of another, the value of that property should be taken from the oppressor, and be restored to the oppressed.
Concerning other crimes-the breaking of teeth, the putting out of eyes, the slitting and cutting off of the ears and nose, wine drinking and adultery,-I ordained that whoever should be guilty of these, or other crimes, they should be brought into the courts of the ecclesiastical and lay judges-(the exact terms being Qazi-i-Islam and Qazi-i-Ahdas,-andas meaning "ritual Impurity"); that the ecclesiastical judge should decide on those causes which are determinable by the sacred laws (Shara), and that those which did not fall under his cognizance (urfi bashad, i.e., pertain to the customary or secular law) should be investigated and laid before me by the lay judge." (Davy's Institutes of Timm-, pages 251 and 253, corrected by reference to the Persian text).
Description of punishments allowed by Muhammadan law
The punishments for crimes were of four classes:-
Hadd (its plural being hadud), means a punishment prescribed by Canon Law and considered as 'the right of God', which, therefore, no human judge can alter.
Hadd must take certain prescribed forms of punishment, viz.:-
(i) Stoning to death for adultery; scourging for fornication [100 stripes].
(ii) Scourging for falsely accusing a married woman of adultery 180 stripes].
(iii) Scourging for drinking wine and other intoxicating liquors. For a free man the punishment was 80 stripes for wine drinking,
(iv) Cutting off the right hand for theft.
(v) For simple robbery on the highway, the loss of hands and feet; for robbery with murder, death either by the sword or by crucifixion.
Tazir is punishment intended to reform culprit tazir is inflicted for such transgressions as have no hadd punishment and no' expiation prescribed for them. The kind and amount of tazir is left entirely to the discretion of the judges The Judge can completely remit the tazir. The process of trial is simple in contrast to that for hadd. Hence attempt was often made to escape tazir by bribery [Ency. Islam iv. 710].
It was not the "right of God". It could take one of these four forms:
(i) Public reprimand (tadib).
(ii) Jirr, or dragging the offender to the door [of the court house?] and exposing him to public scorn; somewhat like putting a man in the pillory.
(iii) Imprisonment or exile.
(iv) Boxing on the ear; scourging. The stripes must not be less than 3, nor more than 39 (or 75 according to the Hanafi School, as in Abu Yusuf).
We are told in the Hedaya, a Persian compilation of Islamic law according to the Hanafi school of jurists drawn up by Mulla Tajuddin, Mir Muhammad Hussain, and Mulla Shariatullah about 1780, that the above punishments should be inflicted according to the offender's rank, and that imprisonment and scourging were to be confined to the third and fourth grades of the people, the petty traders and common labourers, respectively, (or as Manu would have put it, the Vaishyas and Shudras),-while the lighter forms of punishment were reserved for the nobility and gentry; (Hedaya, 203-204; full details in Hughes, 632-634).
As for tazir-bil-mal or 'chastisement in property' i.e. fine, only Abu Hanifa pronounces it to be legal, but all other learned men reject it as opposed to the Quranic law. (Hedaya, 203) Aurangzeb, who was a strict Hanafi and himself well-read in Canon Law and the literature of precedents (fatawa), issued an order to the diwan of Gujarat and also of other subahs, in 1679, to the effect that as fine was not permitted by Canon Law, every civil official (amal), zamindar or other person found guilty of an offence, should, according to the nature of his act, be imprisoned or dismissed or banished, but not punished with fine, (Mirati-Ahmadi, i. 293).
Private vengeance, public degradation, etc.
Qisas or retaliation: This was the personal right of the victim or his next of kin, in the case of certain crimes notably murder. If he demanded the legal punishment, the qazi was bound to inflict it, and neither he nor the king could exercise the royal clemency by modification or abrogation of the sentence. If, on the other hand, the next of kin of the deceased was satisfied with the money damages, called "price of blood" (Arabic diya) offered by the murderer, or pardoned him unconditionally, it was his look-out, and neither the qazi nor the king was to take any further notice of the crime. For minor offence, the retaliation was, as laid down by the Mosaic law, "a tooth for a tooth and an eye for an eye", with certain exceptions. (Hughes, 481, Encyc. 1st. ii. 1038).
Tashhr or public degradation was a popularly devised punishment of universal currency throughout the Muslim world and even Hindu India and Medieval Europe. It is neither recognissd nor condemned in the law-books of Islam, but was inflicted by all Muslim qazis and kings, and even by the lay public, as it was a mild form of lynching: In India, the offender's head was shaven, and he was mounted on an ass with his face turned towards its tail, covered with dust, sometimes with a garland of old shoes placed round his neck, paraded through the streets with noisy music, and turned out of the city. "The judge may blacken the face of the culprit, cut his hair or have him led through the streets, etc." [Encyclo, Islam, i. 132.]. This last refers to the Arabian practice.
As for offences against the State, such as rebellion, peculation and default in the payment of revenue, the sovereign inflicted punishment at his pleasure, because the Quranic law gives no guidance here. Among the prevalent modes of putting an offender to death were having him trodden to death [the last being also sanctioned by medieval English law]. Tortures of various degrees of ingenuity were resorted to. Theft (sarqa) is punishable with the cutting off of one hand one foot. But if the offender has robbed and killed, he is to be put to death and his body publicly exposed for three days on a cross or in some other way.
The punishment of death is here considered a haqq Allah and blood-money is out of the question. All accomplices are punished in the same way. The judge can inflict the above punishments, as hadd, only when all the legal conditions are fulfilled. The legal inquiry has to be conducted, witnesses are necessary, or a confession. If the thief has given back the Article stolen before the charge is made, he is immune from punishment [Ency. 1st, iv. 173-174].
The capital sentence (qatl) is inflicted, after the offence has been legally proved, in the following cases:-
(i) When the next of kin of a murdered person demands the life of the murderer (qisas) and refuses to accept the alternative of money compensation (djya or 'price of blood');
(ii) in certain cases of immorality; the woman sinner is stoned to death by the public (Ency. 1st, s. v. zina, iv. 1227);
(iii) on highway robbers
The Muslim Criminal Law compared more favourably with the English Criminal law as it was in force at that time. The English law still prescribed barbarous punishments and contained some glaring anomalies, while, as Hastings had declared, the Muslim law was founded 'on the most lenient principle and an abhorrence of bloodshed'1.
A brief summary of Muslim law of homicide is quoted below from one study2:-
The law of murder, for example, needed radical alteration if life was to be made secure. Abu Hanifa, whose opinions were generally accepted by the Bengal Judges, had drawn a sharp distinction between the two kinds of homicide known by the terms Amd (wilful murder) and Shabih-amd (culpable homicide not amounting to murder), although such distinction was not recognised by the Quran. The distinction was based on the method by which the crime was committed.
If a man killed another by striking him with his fists, throwing him from the upper floors of a house, throwing him down a well or into a river, strangling him, or with a stick, stone, club, or any other weapon on which there was no iron and which would not draw blood, he was guilty only of shabih-amd, not of murder, and he could not be capitally punished3. A man was guilty of murder only if he used a dah (knife) or some other blood-drawing instrument, and was liable to be sentenced to death3. Persons guilty of shabih-amd were merely sentenced to pay the blood-fine to their victims' relatives if those relatives chose to accept it. Abu Hanifa.
However, had declared that if a man repeatedly committed murder by strangling, he might be executed4. Abu Hanifa, who was born in the eightieth year of the Jejira, had never taken part in the administration of justice, though he had been greatly revered as a virtuous and scholarly theologian.
It was said of him that he left his writings and opinions open to the correction of his disciples in so far as those opinions might be found to differ from the Holy Tradition; but although these disciples, Abu Yusuf and Muhammad, the former being Chief Justice at Baghdad, did, it was said, help to bring their master's doctrines into great renown, yet nevertheless they entirely differed with him regarding the punishment of homicide, laying down the more rational doctrine that if the intention of murder be proved, no distinction should be drawn with regard to the method employed5. Abu Yusuf's opinion, however, never came to supersede that of Abu Hanifa, and the important point we have to notice is that the latter's view was generally accepted and acted upon in Bengal at this time6.
In several other cases the Muhammadan Law which was administered in Bengal did not permit murderers to be executed. Provided they were Muslims, neither fathers nor mothers suffered death for the murder of their children, but were fined; they were liable to be hanged only for murdering other people's children. Grandfathers and grandmothers enjoyed a similar immunity with respect to their grandchildren; so did a Master for the murder of his slave, or a man for the murder of his son-in-law, provided that his daughter was actually living with her husband at the time. Patricide or matricide, however, might be punished with death7.
Homicide was justifiable in the following cases: A woman might kill a man who persisted in carrying on an indecent conversation "with violence and ill-will"; a man using a dangerous weapon in the streets of a town during the night, or outside the town during the day, might legally be killed7. Under certain circumstances a man might kill his wife if he caught her in the act of adultery, and also her paramour; and he might slay a man who attempted to rape his wife or his slave girl. The authorities who were followed in the Courts of Justice in Bengal differed somewhat on this matter.
One law Book laid down that a man might kill another who attempted to rape his wife or slave-girl. Another authority maintained that an adulterer might be slain provided that, if he "made a noise" to give the offender a chance to desist; second, the adulterer neither fled nor desisted on hearing the noise; third, the offender was a Mussulman; and fourth, the offender was seen in the very act. A third authority stated:
"A man finding another with his wife, it is lawful for him to kill him; should he know that the fornicator will cease his attempt at his crying out, or frightening him with weapon not mortal, he is not to slay him. Should he know that his death only will restrain him, it is permitted to slay him". A fourth authority emphasises the necessity of producing witnesses to prove the act of fornication. "If a murderer shall state that he has slain anyone on account of fornication, and the heirs of the slain shall deny his allegation, the murderer having no witnesses, his assertion being without testimony, shall be deemed inadmissible8". A man might slay a person caught in the act of robbing his house9.
But by far the most important reason why murderers frequently escaped the death penalty was that provision of the Muhammadan Law which gave to the sons or next of kin the privilege of pardoning the murderer of their parents or kinsmen. This misplaced. power of life and death made the fate of a murdered largely depend on the caprice, venality, or indifference of the deceased man's relatives.
1. Monckton Jones, Hastings in Bengal, p. 331, cited by Aspinall, Cornwallis in Bengal, (Manchester University Press), (1931), p. 61.
2. Aspinall, Cornwallis in Bengal, (1931), pp. 53-56.
3. Bengal Rev. Cons., 28 November, 1788; 30-12-1789.
4. Bengal Rev. Cons., 21 July, 1790.
5. Bengal Rev. Cons., 19 Aug 1789; 15 July 1791. This information was given to Jonathan Duncan, the Company's Resident at Benares by the Muhammadan Judges of the Benares Courts.
6. Bengal Rev. Con., 28 November 1788; 30 December, 1789. In a written communication the Ghazipur Judge refers to the "Hanifan legal writings, which are most prevalent, or in use, for the guidance of the rulers of the country of Hindustan."
7. Bengal Rev. Cons., 30 December, 1789; 29 June, 1792.
8. Bengal Rev. Cons., 18 February, 1789; 30 December, 1789. A Tradition from Muammad says: Someone asked him, 'Oh, Prophet of God! Should I find anyone with my wife, shall I leave him till I can get four witnesses'. The Prophet answered, 'Let them alone till you can get the four witnesses'.
9. Bengal Rev. Cons., 30 December, 1789.