The Foundation of Muslim Rule in India: A History of the Establishment and Progress of the Turkish Sultanate of Delhi, 1206–1290 A.D. c17: Chapter XIII

The Foundation of Muslim Rule in India: A History of the Establishment and Progress of the Turkish Sultanate of Delhi, 1206–1290 A.D. c17

Language: English

Chapter XIII

c17.1

Administration of justice is one of the king's primary functions. The chroniclers deal at great length with the Sultan's responsibilities for upholding and maintaining the *Shariah*¹, which was the basic law in a Muslim-ruled country. But it is obvious that the non-Muslim, living in the country, could not be subjected, at least in their social relations, to the Canon law. Jurists have accordingly recognised a practical distinction between what they call *tashrii* and *ghair tashrii* law². There could be little doubt that the Muslims in their social and personal affairs were guided exclusively by the *tashrii* law, but we know practically nothing about the law which was applied to the non-Muslim *zimmis*. In such matters as inheritence, sale or transfer of land, marriage etc., presumably the customary law was followed, embodying, as it did, the principles of the local, tribal or the sacred Hindu code³. The principle followed by the Delhi Sultanate, at any rate, was minimum interference with the social affairs of the *zimmi*. In matrimonial cases for instance, the jurisdiction of the Muslim *qazi* was to be exercised only when the parties asked for it; and even then, he was to recognise such practices as are regarded valid in the party’s religion¹. In crimes which constitute offence in every law and where ethics was the sole determinant, the *zimmi* probably stood in the same footing as the Muslim², though it is doubtful if the Muslim penal law was applied with the same rigour and exactitude as is enjoined by the *faqih*.

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¹ Barani, p. 43, 81-83; *Fatawa-i Jahandari*, f. 11a.

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² Baillie; *Digest of Muhammedan law*, p. 174.

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³ Cf. Husain: *Administration of Justice in Muslim India*, p. 15, who suggests, on no specified authority, that Pundits and Brahmins assisted the *qazi* in deciding cases involving Hindu personal law. See also Ahmad: *Administration of Justice*, p. 115.

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¹ Baillie: *op. cit.* p. 178-79.

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² Rahim, *Muhammedan Jurisprudence*, p. 59.

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The question is, however, purely speculative so far as our period is concerned, for the conquest was not so thorough as to affect the social system of the native people. Numerous Hindu chiefs were allowed to retain their principalities where established legal practice was little disturbed. In the districts directly under Muslim administration, the Hindus lived in villages and came in little contact wth the application of Muslim law. The ancient system of local government was hardly touched by the conquest and the village or caste *panchayet* was left to carry on its traditional functions so long as they did not clash with the *qazi’s* jurisdiction³. In crimes occuring within the village, the headman (*muqaddam*) acted both as the committing and trying magistrate. A hint to the appointment of Hindu officers, presumably for adminisering justice and maintaining order among the natives, is contained in a passage of the *Tajul Maasir*, where, in describing Aibak’s conquest and settlement of Asni in 1193, Hasan Nizami refers to his posting of “*Ranahs*” in every side for the administration of the people and the territory⁴. To leave the newly conquered territory for the time being under native officers and to recognise the establishd customs was the natural course to adopt, and was even resorted to by the Arabs in Sind¹. Barani mentions a body of conventional and customary law, which he calls *zabitah*, followed by the government in dealing with the Hindu subjects².

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³ The *Hanafi* school of law recognises such non-Muslim judges to try cases among the *zimmis*, though the government is not held bound to enforce their decisions. See al-Mawardi: *op. cit.* p. 62.

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⁴ f. 125b.

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¹ See *Chachnama*: Elliot, I, pp. 160, 182-185.

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² *Fatawa-i-Jahandari*, f. 126a.

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A Muslim king is not only expected to provide for the dispensation of justice but also to hear and decide cases himself³. The king therefore tried both original and appeal cases, for he was the highest court of justice⁴. In cases arising out of the violation or application of the religious side of the *Shariah*, he was assisted by the *mufti* and the *sadrus-sudur* while in cases of a secular nature he sat with the *qaziul-quzat* (chief justice). He also held summary trial of criminal offences⁵.

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³ *Siyasat Namah*, pp. 11 and 40.

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⁴ Barani, p. 40, mentions Balban's practice of hearing and deciding cases himself.

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⁵ See *Siarul Arefin*, f. 189b, for a case of this nature tried by Iltutmish with the assistance of the ecclesiastics. See also Barani, p. 40-41.

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Unlike other branches of government, the judiciary from the very beginning appears to have been a centralised department. The Sultan himself appointed *qazis* to different provinces and localities, doubtless on the recommendation of the *qaziul-quzat*⁶. He is also known to have controlled the appointment of the *amir-i-dad* of the principal cities and also to have issued order for their dismissal and transfer⁷. The *muqti* was expected to enforce the *qazi's* decision when necessary⁸.

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⁶ Minhaj, p. 175.

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⁷ *Ibid*, pp. 213, 214, and 176. See *Zikr-i-jami-Aulia-i-Delhi*, f. 108b, for an instance of the Sultan even appointing the *qazi* of an obscure little town named Kothi-wala, near Multan.

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⁸ See *Siyasat Namah*, p. 38, for the relation of the *qazi* with the local governor.

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Below the king, the *qaziul-quzat* was the highest judicial officer. He lived at the capital and decided

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The Judiciary, a centralised organization.

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cases in collaboration with the amir-i-dad. Minhaj-i-Siraj who held the office on three occasions, was also the head of the ecclesiastical department and was generally known by this latter office namely, the sadr-i-jahan¹, which seems to have always been held thereafter by the qaziul-quzat². The two offices, however, were kept separate, and Minhaj always mentions them separately³. The qaziul-quzat only supervised and controlled the lower judges in the provinces and also heard appeals; as an appellate judge he probably sat with the king. No detail of any case decided by him has however come down to us; it is perhaps reasonable to suppost that he was assisted by a mufti (legal interpreter). A later account ascribes to Minhaj the legalisation of Sima (religious music) to which objection was raised by the orthodox ulema⁴. This, however, must have been done in his capacity as the sadrus-sudur. If we could argue back from the instances of Khalji and Tughluq periods⁵, the chief qazi would also appear to be the Sultan's legal advisor in all matters of the Shariah, both religous and secular. In addition to the post of the qaziul-quzat and the sadrus-sudur, Minhaj also held the post of chief khatib and was for sometime, the qazi of Gwalior⁶.

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¹ Minhaj, p. 219.

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² See Barani's list of the grandees of the realm before the account of every Sultan.

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³ E.g. pp. 195, 215, 220.

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⁴ Abdul Huqq: Akhbarul Akhiar, Or, 221, f. 37a.

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⁵ Barani, p. 293, for Alauddin's asking for the opinion of qazi Mughisuddin respecting his governmental measures. See also Afif, p. 129, for a similar question by Firoz Tughluq to the qazi respecting his right to levy a water tax.

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⁶ Minhaj, pp. 193 and 223.

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Among judicial officers in a large city like Delhi, besides a number of qazis dealing with cases coming under the purview of the tashii law, we hear also of the Criminal Courts; the *amir-i-dad*. *amir-i-dad*, lately known as *dadbak*. He, it seems, was the chief city magistrate, for his designation suggests his association with the detection and redress of crimes. He apprehended criminals and also tried cases with the assistance of the *qazi*. His court, called the *masnad-i mazalim wa adl*, closely corresponds to the *diwan-i-mazalim* of the Abbaside government of Bagdad and also, in some respects, to the *wilayatul-mazalim* of al-Mawardi². The latter assigns to him such functions as checking the arbitrary exaction of taxes, supervising and controlling the *amins* (officer in charge of surveying and keeping a register of Muslim property). He was also to see that the head of every department dealt fairly and uninterferingly with the employees. It is not certain if the *amir-i-dad* of Delhi also performed these functions. Minhaj has the following statement to make respecting the *amir-i-dad* with whom he worked for several years. "It must be about eighteen years since the *masnad-i-mazalim wa adl* has been adorned by his (Saifuddin Ajami) dignity, and during the whole period he has followed the path of justice and equity and has been obedient to the *Shariah*. The writer of this work, upon two occasions, for nearly eight years, is seated on the same bench with that just *malik*....in the capital city; and the author has seen that the whole of his acts, procedure and expositions have been conformable with faith and *sunnah*. By the dignity of his punishment and the majesty of his justice, the multitude of contumacious persons round about the capital and the gangs of evil doers and robbers, having drawn back the hand of violence....are quiescent in the court of fear and terror¹”. The *amir-i-dad* would thus appear to be a judge of criminal cases and also charged with punishing convicted criminals. His was also possibly a tribunal for trying officers accused of oppression and malpractices. He also enforced the *qazi’s* decisions and helped the *muhtasib* in applying his regulations². The *amir-i-dad* had his provincial representations and as their head was called the *amir-i-dad-i-mamalik*³. He had also an assistant, called *naib-i-dadbak*⁴.

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¹ *Ibid*, p. 275.

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² *Ahkamus-Sultaniyah*, p. 76. See also *Siyasat Namah*, pp. 28-30 where similar duties are prescribed for the *qazi*.

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¹ Minhaj, p. 275; Raverty's translation, p. 789.

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² Qureshi: *op. cit.* p. 153, citing Fakhre Mudir's *Adabul Harb*, states that the *amir-i-dad* also controlled the *kotwal* and the *muhtasib*. The chronicles at least do not contain this suggestion.

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³ Tajul Maasir, f. 67b, and 178b; Minhaj, pp. 175, 276.

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⁴ Barani, p. 24.

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In towns, the police work was the responsibility of the *kotwal* who maintained law and order and even helped in military defence. Originally he was a military officer, the commandant of the fortified town, but with the expansion of civil administration he gradually became mainly a police officer. He had undoubtedly a police force under him but we do not hear of anything like the *Shurta* of the Abbasides; whether the city constables were called *guzarban* as in the Mughal period, the chronicle gives us no indication. Another officer, doing something of the police work by supervising the markets, checking dishonest dealings and enforcing price regulations and punishing hoarders and profiteers, was called the *rais-i-bazar*⁵. His duties would require the assistance of a staff to go round the markets and inflict summary punishment. An important officer having also something to do with the enforcement of law and order was the *muhtasib*⁶. He was primarily a member of the judicial staff and acted as a kind of prosecutor in offences against religious law. But he was also to supervise the markets, check weights and measures and punish adulteration of foodstuffs and the sale of wine. Writers of legal treatises ascribe to him duties corresponding to those of a modern inspector of educational institutions and also such municipal work as sanitation and maintenance of roads¹. He was empowered to inflict summary punishment with the help of his subordinate staff². He was, however, no judge, and cases requiring exposition of law or the ascertainment of fact had to be taken to the qazi. The muhtasib's was a separate organization, though allied to that of the qaziul-quzat who almost invariably was also the chief muhtasib. From Firoz Tughluq's reference to a tax called ihtisabi, the officer seems to have been entitled to a fee which probably went to pay for his remuneration³.

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⁵ *Adabul Harb*, f. 47a; Barani, p. 34.

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⁶ Barani, p. 73.

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¹ The muhtasib's multifarious duties, municipal, religious and police, are clearly set forth in Ibnul Ukhuua: Maalimul Qurba fi Ahkamil Hisba, an 11th century treatise, edited with an abridged translation, by Levy. E. G. W. Gibb Memorial Volumes, London, 1938.

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² Fatawa-i-Jahandari, f. 8; See also Siyasat Namah, p. 41-42.

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³ See Qureshi: op. cit. p. 229.

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Police work: Kotwal & Muhtasib

c17.43

A separate judicial organization existed for the army. In military camps a qazi-i-lashkar was appointed who possibly administered some sort of martial law. This office had became very important in Barani's time and only able and honest men, well versed in the Shariah were appointed to it⁴. In the Khalji period the amir-i-dad was also a member of the military court⁵; this was perhaps a normal practice.

c17.44

⁴ Barani, p. 47; see also p. 108.

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⁵ Ibid, pp. 358, 361.

c17.46

The members of the judicial services all received remuneration. The payment however, seems to have been made, at least in the case of the higher officers, not in cash but in revenue assignment⁶. From Minhaj's account of the amir-i-dad, Saifuddin Ajami, quoted above, it appears that the revenue of some specified iqtas was permanently attached to this office. Such iqtas however were changed from time to time; Saifuddin was allowed the revenue in succession, of Pulwal, Kamah, Baran, Kasrak (?) and again of Baran, in Mahmud's reign¹. It is probable that the qaziul-quzat was also paid in this manner.

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⁶ In the Tughluq period, the judges all appear as a salaried staff, but

c17.48

¹ Minhaj, p. 276.

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Minhaj has an interesting passage which throws some light on the court procedure. Speaking about Saifuddin he remarks. "During this period since he has been the amir-i-dad of the kingdom of Delhi, the customary fees at the rate of ten or fifteen per cent, which other chief justices before him have imposed, he has not extorted, nor has he had any concern with such, neither has he considered such to be right²". This fee seems identical with the dadbeki which Firoz Tugluq considered as illegal and formally abolished, an event which would imply its continuance as a normal practice³.

Linked texts (3)

Tāj al-maʾāthir — Ḥasan Niẓāmī, Persian
Chachnāma — ʿAlī b. Ḥāmid al-Kūfī
Fatāwā-yi jahāndārī — Ḍiyāʾ al-Dīn Baranī