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Theory and Practice of Muslim State in India c7.s2: 3.2. Justice

Theory and Practice of Muslim State in India c7.s2

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3.2. Justice

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*The Daily Mail*, London, published a series of articles on India between April 1933 and April 1934 by many eminent British administrators. These articles were later published in the form of a pamphlet which cost one penny. The articles are full of imperialist love for India - a love also shared by the earlier Muslim imperialist power. Islam has all the ingredients of imperialism found anywhere in the world in any age. In one of the aforesaid articles Rothermere asserts that "The plain fact is that India is as indispensable to Britain as Britain is to India" in the same vein as today it is claimed that India is as indispensable to Muslims as Muslims are to India. In another article Sir Michael O'Dwyer, formerly Lieutenant Governor of the Punjab, wrote: "The essentials of a good government in every country are: (1) External and internal security, (2) Impartial justice (3) Progressive and efficient administration and (4) Light taxation."⁵⁷ According to Ruben Levy, as noted earlier, "the duties of the ruler in Islam are (also) four" - judgement or justice, Taxation, Friday service and Jihad. We have already dealt with Jihad which also took care of external and more so of internal security. We shall take up the study of taxation later on. Here we shall concentrate on justice and Friday service under Muslim rule.

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*Justice by the King*

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In Islam, justice has to be done in accordance with the Quran. If solution is not found in the Quran it should be done as per the Sunnah. If Sunnah also fails to provide an answer, then it should be done according to ijtihad (or individual judgement).⁵⁸ But justice must be done. Justice - Islamic justice - has a very important place in a Muslim state.

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"Justice is the balance in which the actions of people, good or bad, are weighed," says Ziya Barani.⁵⁹ "According to the ancient political ideal... the sovereign is the fountain of justice and it is his duty to try cases personally in open court."⁶⁰ Like their Hindu counterparts, past and contemporary, Muslim kings in India like Iltutmish, Balban, Alauddin Khalji and Muhammad Tughlaq, followed this ideal and personally administered justice in open court. So did the Mughals. While the emperors attended to ordinary cases every day in open *darbar*, they had fixed one day in the week specially for cases requiring evidence of witnesses and their cross-examination. Akbar's day of administering justice was Thursday, Jahangir's Tuesday, Shahjahan's Wednesday and Aurangzeb's also Wednesday. Besides kings, the princes, commanders of armies, and other high officers of the state also decided cases, expert opinion on law being provided by judicial officials possessing knowledge of the Shariat.

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The law courts under Muslim rule were located in administrative units of the empire, in Parganas, Sarkars, Subahs and the capital of the empire. The *adalat* of the Pargana Qazi was the lowest court under the Mughals. Appeals were preferred to higher courts, to the Qazi-i-Subah and the emperor. The emperor's court was the highest court in the empire. He tried both civil and military cases. He also sat as the final court of appeal within the empire. In deciding -cases, he had the assistance of a Mufti or Mir Adl. There was a hierarchical cadre of officials like Qazi-ul-Quzzat or Lord Chief Justice, Qazis, Naib Qazis, Mir Adls and Muftis who expounded the law and gave opinion on complicated cases. The emperor's court was quite popular with the people who obtained redress from his impartiality.

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*Judiciary of Muslim State*

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But the emperor was not a Qazi or Mufti. Besides, he could not decide all the hundreds of cases that came up for hearing. These cases were dealt with by the judiciary. The chief court of the empire was located in the capital and was presided over by the Qazi-ul-Quzzat, or the Chief justice of the realm. He was appointed by the emperor. He had the power to try original civil and military cases. He heard appeals from and supervised the working of provincial courts. He was assisted in his work by Qazis, Muftis, Muhtasibs. The Muhtasib was the chief custodian of public morals. It was his duty to see that there was no infringement of Islamic law in the public as well as private lives of the people. He used to enquire into the conduct of the people and so instilled a sense of fear in them. The office of the Muhtasib was instituted by Caliph al-Mahdi (775-785) to see that the religious and moral precepts of Islam were observed and that the offenders were detected and punished. Muhtasib was like the Christian Inquisitor without the latter's licence of cruelty and torture. The office of Muhtasib was an integral part of the administrative set up of the Muslim state. There were Muhtasibs during the Sultanate period and in the Mughal empire. They were there in the capital as well as the headquarters of the provinces and their subdivisions.

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*Islamic Justice*

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Justice has one meaning for the ruler, another for the ruled. What was impartial justice for the British was imperialist oppression for the Indians. What was impartial justice for the Muslims was the imposition of the Islamic Shariat on the Hindus because Muslim law was full of discrimination against non-Muslims. Muslim law on crime and punishment is complicated and cruel. Where imprisonment of a month or two would be considered sufficient, say for pilferage or theft, in Islam it is visited with cutting of hands and feet. A Hadd (pl. Hudud) comprises punishments that are prescribed in the Quran and the Hadis. These include stoning to death for adultery; one hundred lashes for fornication,⁶¹ and eighty lashes for drinking wine. When a woman is to be stoned a chest deep hole is dug for her, so that her nakedness is not exposed and the modesty of the watching multitude is not offended. No such hole need be dug for a man. The stoning is begun by the witnesses followed by the Imam or Qazi, and then by the participating believers. Cutting off the right hand is prescribed for theft,⁶² and cutting off feet and hands for highway robbery. In the cases of murder the right of revenge (*qisas*) belongs to the victim's heir. But the heir can forgo this right of death for murder and accept blood-price in exchange. For the death of a woman, Jew or Christian, only half of the blood-price is due. "As slaves and unbelievers are inferior in status to Muslims they are not entitled to qisas according to most Muslim *faqihs* (jurists)."⁶³ In all such cases, a woman's testimony (*shahadah*) has half the weight of a man's.

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It is a very great crime to apostatize from Islam (*irtidad*) and its punishment is death. The Quran gives the broad outline of these punishments, all Hadis collections provide many details of the same. Both Quran and Hadis are specific about punishment of death for giving up islam.⁶⁴ One can accept Islam freely; one can be forcibly converted or could be captured in war and made a Muslim, but once converted, one cannot abjure Islam. Once a group of men apostatized from Islam. Ali burnt them to death. Eight men of the tribe of Ukl became Muslims. They went to Madinah, but away from the control of the Prophet, they turned away from Islam. The Prophet sent twenty Ansars after them. They were captured and brought back. The Holy Prophet "got their hands cut off and their feet, and put out their eyes, and threw them on the stony ground until they died". Another *hadis* adds that "while on the stony ground they were asking for water, but they were not given water."⁶⁵ The rules are so strict that if a Muslim does not deny Islam, if he adheres to all injunctions but denies one single principle, he becomes Kafir and deserves to be killed.⁶⁶ There was no effective law to hinder the infliction of many other forms of cruel punishment according to the caprice of the local official. For example, killing a man by making a snake bite him became a common Muslim punishment in India.⁶⁷

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Men have been punished in war and peace in all countries through the ages. But severe flogging, mutilation of limbs, amputation of hands and feet and noses and ears, putting out eyes by piercing them with red hot iron, nailing of hands and feet, flaying alive, hamstringing and decapitating were Islamic specializations. Add to this pouring molten lead into the throat, crushing the bones with mallets, burning the body with fire, driving nails into the hands, feet and bosom, cutting the sinews, sawing men asunder - these and many similar tortures were common. With this background, with this ideology, with this set of punishments, justice in medieval India under Muslim rule could only be barbarous in nature, content and cruelty. There were cruel kings and kind kings, there were corrupt Qazis and honest Qazis, but so long as punishments remained barbaric, there was little hope for the accused or the victim. In Islamic conception the state belongs to God. Hence a violation of public right becomes an offence against God. As a result punishment for injury done to God's authority has to be visited according to the rules laid down by God and his Prophet as contained in the Quran and Hadis.

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In India in the Sultanate period such punishments continued to be awarded as the chronicles of Barani and Afif show. Under Alauddin Khalji and Muhammad bin Tughlaq punishments became more severe. Cutting of hands and feet was sanctioned by the Shariat. Alauddin added to it slicing off flesh from the haunches of the defaulting shopkeepers.⁶⁸ Since "God Almighty himself in the Quran commanded the complete degradation of the non-Muslim (*yan yad yaham saghrun*),⁶⁹ slaying, plundering and imprisoning of the Hindus became routine. For a handful of *tankahs*, revenue officials were clamped in jails for many years receiving blows and kicks,⁷⁰ while the Hindus in general had no gold or silver left in their houses. Muhammad Tughlaq confined Shaikhzada Jami in an iron cage leading to his death.⁷¹ Under him punishments laid down by the Shariat were scrupulously awarded. The mother of prince Masud was ordered by the Sultan to be stoned to death for adultery, the verdict having been pronounced by Qazi Kamaluddin. Ibn Battutah relates that on one occasion he himself as Qazi gave eighty stripes to one Razi of Multan for making himself drunk and stealing five hundred *dinars*. He also says that during Muhammad Tughlaq's reign people used to admit uncommitted crimes and courted death to escape torture. When the royal order was issued for the execution of any person, he was executed at the gate of the palace where his corpse remained for three days.⁷² The Diwan-i-Siyasat worked vigorously and every day hundreds of culprits were brought for punishments.⁷³ Sultan Firoz Tughlaq writes in his *Fatuhat* that he appeased by means of gifts the heirs of those who had been deprived of a limb, nose, eye, hand or foot in the time of his late lord and patron Sultan Muhammad Shah. Firoz Tughlaq is known for his kind-heartedness but, according to Shams Siraj Afif, he killed one lakh 80 thousand Bengalis in war. Towers of skulls of the killed were erected. The chronicler adds, "Firoz Shah was near the mound of skulls with all magnificence; and glory and was inspecting the counting of the heads.

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In India, in course of time and under the influence of Hindu environment the violence of punishments was mitigated to a great extent. Under Akbar, "the compassionate heart of His Majesty finds no pleasure in cruelties or in causing sorrow to others; he is ever sparing of the lives of his subjects, wishing to bestow happiness upon all..."⁷⁵ So that, by the time of Akbar and Jahangir, "No person was to suffer, for any offence, the loss of nose or ear. If the crime were theft, the offender was to be scourged with thorns, or deterred... by an attestation on the Koran."⁷⁶ In his *Tuzuk*, emperor Jahangir asserts that "I forbade the cutting of the nose or ears of any person, and... made a vow... that I would not blemish any one by this punishment."⁷⁷ This statement, however, inadvertently shows that mutilation of this type was quite prevalent before him. Perhaps the digressions from the letter of the law prompted Aurangzeb to restate once more and clearly, the basic canons of Islamic law in his *Fatawa-i-Alamgiri*, completed in 1670.⁷⁸ Aurangzeb also issued a farman to the Diwan of Gujarat in June 1672 giving a gist of his penal code. in theory and practice mutilation and decapitation was continued under Aurangzeb, but there was greater emphasis on repentance, and flogging was more often resorted to. But that was also to give time to the accused to see the merits of the 'bright religion' and become its adherent. Those who did not show subservience were meted out cruel punishments. In northern India, Gurdwara Sisgunj in Chandni Chowk, Delhi, stands witness to Aurangzeb's idea of punishment to non-Muslims. Here the Sikh Guru Tegh Bahadur was called upon to embrace Islam, and on his refusal was tortured for five days and then "beheaded on a warrant from the emperor" (December 1675). In South India when the Maratha King Sambhaji and his minister Kavikalash were taken prisoner, "that very night his (Sambhaji's) eyes were blinded and the next day the tongue of Kavikalash was cut out. After a fortnight's torture their limbs were hacked one by one and their flesh thrown to the dogs" (March 1689).

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*Fate of the Mutilated*

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What was the fate of those who were mutilated? It would be euphemistic to say that they lived a miserable life. One case gives a glimpse of the plight of such people. Pietro Della Valle was in western India in 1623-24. In Cambay, where "the people are most part Gentiles", he saw "a famous Hospital of Birds" and another of animals like goats, sheep, and calves. "Among the beasts there was also a thief, who having been taken in theft had both his hands cut off. But the compassionate Gentiles that he might perish miserably now (that) he was no longer able to get his living, took him into his place, and kept him among the poor beasts, not suffering him to want anything."⁷⁹ So, the victims of Muslim justice could live like beasts after they had been mutilated. But many managed to survive. They probably got their food from the free kitchens run by the government.

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There was probably another avenue of relief, perhaps rather than probably. Mutilation, blinding and beheading were common punishments as laid down by the Shariat. It stands to reason that some sort of remedy would have been sought to be applied in the case of persons who had lost a limb or the eyes. In India, the land of Charak, Shushrut and Dhanwantari, medicine and surgery had been in a developed state from ancient times. The art and science of surgery was widely practised even by some expert barbers, as for example, for doing circumcision of little Muslim boys and newly converted adults. Allama Abul Fazl and emperor Jahangir both write, but under the caption of magic and sorcery, whereby a man would be cut up in many pieces and then made to appear unhurt. Jadunath Sarkar in a footnote in the *Ain-i-Akbari* recounts the testimony of Ibn Battutah, Edward Melton, and many others about how dismembered limbs were joined together to form the living man once again.⁸⁰ Jahangir's *Tarikh-i-Salim Shahi* describes such a case of revival of a man.⁸¹

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In emperor Jahangir's *Tarikh-i-Salim Shahi*, surgical operations by Bengalis, Portuguese and others are described at length along with the description of alchemy and magic.⁸² But there may have been some remedy available to cure, to some extent at least, the disabilities of the mutilated. Jahangir talks of his expert, excellent and loyal physicians but they were not surgeons.⁸³ However, his own son Khusrau, who had been blinded had his eyes partially restored.⁸⁴ Similarly, slit noses could be repaired to look almost like the original through plastic surgery.⁸⁵ Niccolao Manucci gives a detailed description of such an operation of rhinoplasty during the Bijapur-Mughal war under Aurangzeb, when the Deccanis used to cut off noses of Mughal soldiers and send them bleeding to the Mughal camp.⁸⁶ But there is no case cited of one who had lost his hand or leg being restored to normal health in medieval India.

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*Jails*

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One thing not mentioned in Islamic scriptures is imprisonment of people. The Quran and Hadis do not speak of jails. The Hadis in particular speak only of beheading or mutilation. In India there were jails under Muslim rule. But these were few. The number of prisoners was not large, for the usual punishments were mutilation and death. In the fourteenth century "for (a default in collection of) five hundred or one thousand *tankahs*" revenue officials were clamped in jail for many years under Alauddin Khalji. Besides government officials, bootleggers and other criminals were fettered and thrown into underground jails, built specially for them. In these monstrous holes many offenders died, or survived with completely shattered health."⁸⁷ Amir Khurd, the author of *Siyar-ul-Awliya*, describes the horrible conditions prevailing in such prisons. He says that once his father Saiyyad Kamal was imprisoned by Sultan Muhammad Tughlaq in Bhaksi jail near Devagiri. It was reported about that place, says he, that no prisoner used to come out alive from it as it was full of rats and snakes.⁸⁸ The state hardly made any arrangements for "reformation" of the prisons, and the prisoners suffered of oppressions of local authorities."⁸⁹ By the sixteenth-seventeenth century there were jails in many Mughal forts. The jail in the Gwalior Fort was meant, besides others, for royal prisoners ever since the Sultanate period. The other prisons of note were Ranthambhor, Rohtas, Bhakkar, Junnair, Biana and Lahore. Gwalior was the most prominent fort and next to it in importance was Ranthambhor. Jahangir released "not less than seven thousand individuals, some of whom had been in confinement for forty years," in the fort of Gwalior.⁹⁰ Similarly, he set free many prisoners, except murderers and rebels, from the fort of Ranthambhor on two occasions.⁹¹

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*Punishment for the Poor*

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The stern justice, the dire punishments, as happens in autocracies, were meant for the poor while the rich and influential remained untouched; the rich who could "put a few coins in the hands of the Qazi," got scot free. This was specially so, say, in the case of wine-drinking. Wine is prohibited in Islam, but in practice only for the poor.

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Many Muslims cannot forgo the pleasure of drinking wine in this world when it is promised to them in the next. The description of Paradise in the Quran specifically mentions free flow of wine (*kasir-ut sharab* and *utuf-ul-yeham*) as one of its blissful contents (*Surah* 38 *ayat* 51, also 37: 45-46). Prophet Muhammad in one verse of the Quran praises wines of different colours (*sharab-i-mukhtalif alwana*) as signs of God's grace to mankind and cure of many diseases (Quran 16:69). Nasai devotes many *ahadis* to the discussion of drinking in Islam. According to him Muslims drank wine of wheat and barley. They were advised by the Prophet to dilute strong wine with water and not to get intoxicated.⁹² According to Bukhari many Muslims drank wine on the day of *ghazwah*.⁹³ However, as the early companions of the Prophet got drunk, Muhammad was obliged to show some disapproval. He found that drinking led to gambling, quarrelling and stealing and, worse still, to neglecting the namaz. Consequently, he forbade it outright (Quran 2:216; 5:90-92). Wine-drinking became punishable by eighty lashes, and according to some traditions drinking of wine is punishable by death.⁹⁴

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In medieval India Muslim ruling classes drank freely, at the same time punishing poor helpless Muslims for the "crime". For example, while Alauddin Khalji had prohibited wine-drinking, his own son Qutbuddin Mubarak drank hard and so drank his nobles. All Mughal emperors from Babur to Shahjahan drank hard, Jahangir drank the hardest. But since wine is prohibited in Islam, it was a matter of routine for rulers to put a stop to drinking by common people. Even orthodox sultans like Firoz Tughlaq and Sikandar Lodi drank secretly "to keep in good health".⁹⁵ Most of the Mughal nobles drank openly and "all princes drank in secret."⁹⁶

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In such a scenario, the responsibility of punishing the guilty fell on the Qazis or Muslim judges. Judges of medieval India were, generally speaking, not held in high esteem in high circles. Some lacked erudition, others integrity. Maulana Shamsuddin Turk, a theologian hailing from Egypt in the fourteenth century, complained "that ill-fated wiseacres of black faces sat in the mosques with abominable books and made money by cheating both the accuser and the accused... "⁹⁷ At home they were accused of being bereft of dignity and being altogether worthless.⁹⁸ The sultans even used to punish the Qazis quite often. European travellers visiting India during the Mughal period like William Finch, Edward Terry and Francois Bernier are also critical of medieval judicial officers. They are criticised either for ignorance of law or cruelty or corruption.⁹⁹

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The Qazis could be easily bribed. Qazi Abdul Wahab, the Chief Qazi of Aurangzeb's reign, had amassed a fortune of 33 lakhs of rupees besides much jewellery during the sixteen years he held office.¹⁰⁰ But the Qazi alone did not administer justice. The will of the king and his substitutes (subedars, nobles) "is the law".¹⁰¹ For example, Shahjahan, like Sher Shah Suri, insisted on his police officers to any how produce the thief, else they themselves would be punished. Naturally a 'culprit' was produced if not the real thief. One good thing in the system was that the trial by the king, his officers and Qazis was quick, but executions were also as quick as the trials. All this was due to the fact that the quality of courts left much to be desired, as, "the judicial department stands in marked contrast in organisation, in status, and dignity to other departments of the central government which were highly organised and equipped with efficient men."¹⁰²

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However, in a society where slavery existed, where the Muslims were taught to "obey God, the Prophet and those in authority over you," and Hindu attitude of fatalism among the lowly generated slavish respect for all those who administered justice - kings, officers, qazis - the punishments, howsoever barbarous, were taken in their stride.

Cites (5)