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Mughal Administration c10.s4: § 4. The Qazi, his position and powers.

Mughal Administration c10.s4

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§ 4. The Qazi, his position and powers.

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The *qazi's* business, in strict theory, was to play the part of a jury : he was to take the law from others and pronounce a verdict in the particular case on the basis of the evidence adduced. This expounder of the law was the *mufti*, whom we may rather loosely call the advocate general. "The *mufti* is the officer who expounds and applies the law to cases, and the *qazi* is the officer who gives it operation and effect."* An illiterate man may legally act as a *qazi*, according to all the schools of Muslim law except that of Shafi, because "A *qazi's* business may be to pass decrees merely on the opinions of others. The object of his appointment, moreover, is to render to every subject his just rights, and this object is accomplished by passing decrees on the opinions of others." (*Hedaya*, translated by Hamilton, 2nd edition, 334-335.)

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∗ In theory, "the *qāẓi* must be a Muslim scholar of blameless life, thoroughly conversant with the prescriptions of the sacred Law.... These judges are tied down to the decisions of earlier authoritative scholars...and have to adhere strictly to the rules laid down in the *fiqh* books.... The judgment of the *qāẓi* is decisive for the parties; there is no appeal from it." [*Ency. Isl.* ii. 606.]

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Though many of the qazis were very learned lawyers, yet the primary and indispensable qualifications of a qazi were, in theory at least, honesty impartiality virtuousness and pure detachment from the society of the place. (*Hedaya*, also *Manual*.)

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In practice this high ideal was seldom attained, though there are some noble exceptions in the history of Islamic lands. To take one example only, Abdul Wahhab Borah, the first Chief Qazi of Aurangzib's reign, was so corrupt that during 16 years of office he amassed a fortune of 33 lakhs of Rupees in cash, besides much jewellery and other valuable things. But his son and successor, Shaikh-ul-Islam, was of an exactly opposite character. He did not touch a penny of his father's ill-gotten riches, but gave away his share of them in charity. Not only did he decide all cases without the faintest suspicion of corrupt influence or bribery, but he even declined the customary presents and gifts from his nearest friends and kinsmen. [*History of Aurangzib*, iii. Ch. 27 § 10.]

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But in the Mughal empire the qazis were not sufficiently supported by the executive. As Bernier noticed,

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"The qazis or judges are not invested with sufficient power to redress the wrongs of these unhappy people [*viz.*, the peasant artisan or tradesman oppressed by the jagirdars, governors and farmers of the revenue]. This sad abuse of authority may not be felt in the same degree near capital cities...or in the vicinity of large towns and seaports, because in those places acts of gross injustice cannot easily be

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concealed from the Court''. (P. 225.) And, again, "Of what advantage are good laws when not observed, and when there is no possibility of enforcing their observance? The governor is absolute lord, in the strictest sense of the word. He is in his own person the intendant of justice, the parliament, the Presidial Court, and the assessor and receiver of the king's taxes...In eastern countries, the weak and the injured are without any refuge whatever; and the only law that decides all controversies is the cane and the caprice of a governor.'' (Pp. 235-236.)

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But Bernier must be here referring to revenue exactions and executive oppression, and not to cases which could be clearly brought under the Canon Law, for the qazi's jurisdiction over the latter was unquestioned and universally exercised in practice. Though the provincial governors were jealous of the qazi's power, they durst not openly defy him, because he could always appeal to the Emperor in the name of the Sacred Law.

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According to Muslim jurisprudence, the qazi must discharge his duty in a mosque or some other public place, the Jama Masjid of the town being specially recommended. As a concession, however, he was permitted to hold court in his house occasionally, but in that case the public were to have free access there and the two parties were to be placed by him on an absolutely equal footing as regards seats, conveniences and general treatment. (Hedaya, 337.)

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We possess the imperial regulation about the office-work of the qazis. About 1671 the Emperor Aurangzib learnt that the judges of the province of Gujrat used to sit in their offices (*muhakuma-i-adalat*) on only two days in the week, while on two other days (*viz.*, Tuesday and Wednesday) they attended the subahdar’s *darbar*, and treated the remaining three days of the week as holidays. The Emperor wrote to the diwan of the province, “This way of doing work is not the practice at the imperial Court nor in any other subah, and therefore there is no reason why it should be so in Gujrat. The diwan is ordered to urge the judges to sit in their offices on Saturday, Sunday, Monday, Tuesday and Thursday, *i.e.*, five days, while on Wednesday they should attend the subahdar, and Friday alone should be a holiday. From two *gharis* (about an hour) after daybreak to a little after midday (*i.e.*, when the sun has begun to decline), the judges should sit in the court room and do justice, and go to their homes at the time of the *zuhar* prayer.” (*Mirat-i-Ahmadi*, i. 275.)

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§ 5. Muslim law, its character and sources.

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The crudeness and insufficiency of the judicial system were aggravated by the fact that the only law recognised by the Emperor and his judges was the Quranic law, which had originated and grown to maturity outside India. It was supposed to have been defined once for all within the pages of the Quran as revealed to the Arabian Prophet and his Traditional Sayings (*Hadis*). But there was a wide latitude in the interpretation of the words of the Quran. And for this purpose our Indian judges turned to the known decisions of the pious Muslim kings and eminent Muslim jurists of the past, in the chief centres of Islamic thought and civilization outside India. Thus, Muslim law in India did not originate in legislation but in revelation ; it had two other sources, *viz.*, precedents or case-laws and the opinions of jurists, though both of these latter merely professed to make the meaning of the *Quran* explicit and not to add any new principle or rule to what is written in the Book of God.

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All the three sources of Indo-Muhammadan law were trans-Indian. No Indian Emperor’s or Qazi’s decision was ever considered authoritative enough to lay down a legal principle, elucidate any obscurity in the *Quran*, or supplement the Quranic law by following the line of its obvious intention in respect of cases not explicitly provided for by it.

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Hence, it became necessary for Indian qazis to have at their elbow a digest of Islamic law and precedent compiled from the accepted Arabic writers. Such digests were prepared from time to time, and their character varied with the sovereign’s choice among the four schools of Islamic law, *viz.*, the Hanafi, the Malaki, the Shafi, and the Hanbali. The Hanafi school was considered orthodox in India. The last law digest prepared in our country was the *Fatawa-i-Alamgiri*, which was compiled by a syndicate of theologians under orders of Aurangzib at a cost of two lakhs of Rupees. Muslim law in India was, therefore, incapable of growth and change, except so far as it reflected changes of juristic thought in Arabia or Egypt.

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As is well-known to students of mediæval history, in a Muslim State the Civil Law is merged in and subordinated to the Canon Law, and the theologians are the only jurists.

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In the old Marathi records we have much information about the Hindu caste courts and arbitration boards which administered justice according to Common Law. But they refer to the Deccan only, where society was differently constituted from Northern India. A few Sanskrit judgments have survived, giving us a glimpse of the Brahmanic courts sanctioned by the Emperor Akbar, which followed Manu and other text-writers on the "Gentoo Code," as Nathaniel B. Halhed called the loose mass of Sanskrit legal rules and pious injunctions which were appealed to by Hindu litigants at the end of the Mughal period.

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