Both the Hindu and Muslim systems of law had a religious conception of law in the sense that they were ultimately supposed to have been based on revelation and that the law bound the kings, judges and the subjects.
The Muslim law was commandment of God and the sovereigns in the Muslim States were regarded as his servants on earth who were responsible for seeing that His laws were duly obeyed. This message was also preached by Mohammad, the Prophet of Islam. Therefore, the Muslim rulers while ruling over India also regarded themselves as the servants of the God. As the chief judge of the empire the king was duty bound to supervise the administration of justice.
Islamic law is a branch of Muslim theology, giving practical expression to the faith, which lays down how a Muslim should conduct himself in accordance with his religion, both towards God and towards other men. Islamic law is based on man’s duties or obligations rather than on his rights, and the sanction is that he will fall into sin. It has a wider application than any secular system of law since it claims to regulate all aspects of man’s life, his duties to God, to his neighbour and to himself.
Sources of law
As laid down in Fatwa-e-Alamgiri, the courts in India were to be guided by the following authorities while deciding the disputes.
(i) Quran- This is the sacred book of Muslims and contains collected revelations of Mohammad in a definite written form. Quran is the word of the God. Therefore, this contains much of the law by which the Mohamedans were governed and are still governed.
(ii) Sunna – During his life time, the Prophet had decided many questions from case to case and the collections of His words and deeds were reduced in writing and came to be termed as Sunna or traditions. These traditions or rules of law gradually laid the foundations of Islam.
(iii) Ijma- A major portion of the Islamic law consists of the Tanis concurrent opinions of scholars on legal questions i.e. ijma.
(iv) Qiyas – It comprises the methods of deductions or drawing of dom as conclusions by analogy.
(v) Customs – These were also an important source of law.
Notion of Law
The law in Islam is called fiqh. It implies the exercise of intelligence in deciding a point of law in the absence of a command from the Quran or Sunna. Fiqh literally means ‘intelligence’ and faqih is a ‘jurist’, a person skilled in the law. A man may be learned, but to be a faqih, he must possess the quality of independent judgment, the capacity to discern between the ‘correct’ and binding rule of law.
According to the classical theory of fiqh, fiqh is the knowledge of one’s rights and obligations derived from the Quran, or the Sunna of the Prophet, or the consensus of opinion among the learned (ijma), or analogical deductions (qiyas).
According to the modern theory of fiqh, the spirit of the law of Islam is religious and ethical, drawing its inspiration from the Quran and the teachings of the Prophet. But the content of the law is based upon pre Islamic customs and usages. The matter is non-Islamic, but the spirit is
Shariat, the Cannon law of Islam, is the totality of Allah’s commandments or hukums. Shariat embraces all human actions. It is not ‘law’ in the modern sense; it contains an infallible guide to ethics. It is fundamentally a doctrine of duties and a code of obligations. Legal considerations and individual rights have a secondary place in it.
Classification of law
The law which were applied by the courts were classified under three board heads:
(a) Cannon law – prescribed for Mohammedans only and dealt with religious infringements and offences against God.
(b) Common law – which comprised of Islamic law of crimes, tort, nuisance, etc. was applied to all irrespective of the religious belief.
(c) Regulations – orders or firman issued by the king from time to time.
Salient features of Islamic justice
The king, the representative of God on earth was considered as “fountain of justice”. The qazi was invested with both civil and criminal judicial powers, even the king was bound by the verdict of qazi. The law was applied equally to all and the officers of the State were as much answerable for wrongs committed by them as ordinary citizens.
Crime and punishments – Crime under Muslim jurisprudence was not considered as social evil but the entire conception of justice laid emphasis on prevention of the offence termed as crime. The reason was that in Islam the State belonged to God, therefore, the violation of public right was an offence against the God white infringement of private right was an offence mainly against the individual concerned. The crimes were divided into various types:
(a) Offences against the God- e.g. adultery, drinking, theft, etc..
(b) Offences against the ruler- e.g. rebellion, misrule, etc.
(c) Offences against the private citizens- e.g. stealing, gambling, arson, etc.
Various types of punishments were prescribed for the various offences.
(a) Kisa – i.e., retaliation which meant in principle life for life, and limb for limb. This applied to cases of wilful killing and certain types of causing hurt, in which cases the injured party or heirs were entitled to inflict a corresponding injury.
(b) Diya – A Muslim could forego his right (of Kisa) by accepting Diya. Diya or blood money was being awarded to the victim in a fixed scale.
(c) Hadd – This was the type of punishment inflicted on persons who committed offences against God viz. anti-social or anti-religious offences. The nature and gravity of punishment was fixed.
The punishment under the category of ‘Hadd’ was very severe. But the mode of proving the offences to which ‘Hadd’ was prescribed was very strict. For instance, for proving offence of ‘Zina’ (illicit intercourse), four eye-witnesses was a must, consequently in practice it was very difficult to secure conviction for such offences.
(d) Tazeer – It literally means prohibition. It was a reformative type of punishment and discretionary in nature which could be regulated by the sovereign. The usual types of such punishment were imprisonment, corporal punishment, fine, etc. Under this came offences such as theft, hurt, gambling, etc. The bulk of the penal law of the Muslims came under this category as the types of offences which fell under ‘kisa’ and ‘Hadd’ were very few in number. The type of quantum of penalty to be imposed was entirely within the discretion of the judge.
Development of Muslim Criminal Law
Muslim law of crimes was utterly absurd, barbarious, illogical and deficient. While drunkenness and adultery were considered serious offences which merited severe punishment of death by hanging or stoning; offences like murder was treated very lightly. In case the heirs of the victim chose not to complain or accept blood money (diya), no punishment could be inflicted on the murderer. If the death was caused not by a sharp-edged weapon drawing blood but by drowning, beating, starvation, etc., blood money could, at best, be claimed. Further, insistence of law on specific number of eye-
witnesses to prove the guilt made the conviction very difficult. Punishment could be severe or light depending upon the personal whim, discretion or caprice of the judge. Thus, Mohammedan law encouraged potential criminals to commit atrocious crimes and escape punishment.
Lord Cornwallis (1790-92) thoroughly reorganised the criminal judicature and entrusted the administration of criminal justice to English servants assisted by native law officers. He resorted to Regulations to effect changes in the Muslim Law of crimes. He made intention as the basis of conviction in murder rather than the instrument used to commit crime. The option of the next of kin of the victim to remit the death penalty was taken away and their refusal to prosecute the murderer was no longer to be a bar to trial. He put the evidence of all persons, irrespective of religion or sex, on equal footing. The punishment of mutilation was to be converted into imprisonment and fine.
John Shore in 1797 barred the kinsmen from accepting blood money (diya). In 1799 Wellesely put an end to justifiable murders i.e. killing of child by parents/grand-parents, and of slave by the master, which were to be punished by death now. Tazeer, which vested wide discretion in the judge to inflict punishment was largely responsible for corruption and hence abolished. Requirement of two eye-witnesses for conviction was replaced by confession, evidence of creditable witness and strong circumstantial evidence.
Lord Bentick even went to the extent of robbing Mohammedan law of crimes of its status as general law of the land by providing in 1832 that non-Muslims could seek exemption from its application. The Muslim law officers were made redundant by dispensing with the requirement of obtaining fatwa. The British judges were authorised instead. With the enactment of the Indian Penal Code in 1860, the Islamic penal law does not apply in India.