Chapter 2

Judiciary System in Islam

Judiciary system oflslam is very important for many reasons; it has given a new
system to the world in general and to India in particular. It has also brought new
institutions like Caliphate, the Sadarat, Qazi-ul-Quzat and so on. It has new concept for
"crime" and "Punishment". It developed new institutions regarding crime and
punishment. The holy Quran has good concept of Justice in every sphere of life
particularly for common masses like women, poor and so on. It has very liberal rule
and very democratic in nature but regrettably, it has been misunderstood and
misrepresented 1 by several historians like Jadu Nath Sarkar, Philosopher, various
Mullas and many others, which needs to be understood well.

1
Note: Misunderstood or misrepresented means that several scholars like Jadu Nath Sarkar has
misunderstood the Muslim kings, Islam and judiciary system oflslam in general. They have painted
them as very cruel, heartless and not good enough with common masses particularly with Hindus.
Historian like P. Hardy from the School of Oriental and African Studies that "Apartheid was the
dominant ideal in Medieval India, in default of Cultural victory" has criticized Medieval government in
that manner. I.H.Qureshi has criticized the Mughal government in the following words:
"It was a crime to lull the Muslims into believing that the maintenance of the Empire was not their
primary responsibility. Even more disastrous was the encouragement of the feeling that tolerance implied
the belief that all religions were merely different paths, all equally good for reaching the same God. This
was an even more potent cause of the demoralization and degeneration of the Muslims, especially their
acceptance of subtle non-Islamic ideas. Indeed this was the darkest period in the history oflndian Islam".
(A history of the freedom movement: Being the story of Muslim struggle for the freedom of Hind-
Pakistan, 1707-1947, Karachi, 1957, vol.l, p.34.)
R.C.Majumdar also saw Medieval history in a communal angle. He says:
"The newly acquired ideal of a 'secular state' is opposed to all known facts of Indian history. But it is
sought to be buttressed by a new conception of Indian history and culture, which recognizes no distinct
Hindu or Muslim culture in Modem India, and looks upon these, along with European or Western culture,
as so many streams muting together only to mingle and lose their separate entities in the sea of Indian
culture. The Muslims, however, repudiate any such idea, and Islamic culture is not only recognized as a
distinct entity, but has been formally adopted as the basis of the new state of Pakistan. In India, however,
a small but gradually increasing class of influential persons now fight shy of the term 'Hindu' as a
designation of a cultural unit, and only think in terms of Indian culture. Whatever may be value of such
an idea in shaping Indian's culture, it becomes positively dangerous when it encroaches upon the domain
of Indian history and seeks to ignore the existence of Hindu culture as one of the most potent and patent
facts oflndian History even today". (C.H.Philips, (ed.), Historians of India, Pakistan and Ceylon,
London, 1961, pp.426-7). .
Peter Hardy also misinterpreted history in the following words:
" ... neither educated Muslims nor educated Hindus accepted cultural co-existence as a natural prelude to
cultural assimilation. Thus long before British rule and long before modem political notions of Muslim
nationhood, the consensus of the Muslim community in India had rejected the eclecticism of Akbar and

61
 However, this chapter deals with the concept of justice in Islam, origin of
judiciary and main functionaries of Judicial administration in Islam.

Concept of Justice in Islam

The holy Quran has documented beautifully the concept of justice which is very
important for understanding the administration of Justice. As we have seen footnote 1
that there are so many misunderstandings about Islam and Islamic traditions which can
be removed by seeing the concept of Justice in Islam.
"Fulfill the commands ofthy Lord with truth and justice"
- Quran2
"Life cannot be maintained without society, nor society without government,
nor government without religion".
- Akhlaq-i-Jalale
Wahed Husain observed that "According to Muslim jurists the protection ofthe
weak and punishment of the evil-doer are not the sole functions of justice.
Establishment of peace on earth, concord among humanity, advancement of society,

Dara Shikoh for the purified Islamic teaching of Shaikh Ahmad ofSirhindi and Shah Waliullah. Cultural
Aparthied was the dominant ideal in Medieval Muslim India, in default of cultural victory".
(Islam in India, Sources of India Tradition, Columbia University Press, See Introduction).
M.S.Golwalkar has said: "In Hindustan exists, and must exist the ancient Hindu nation, and nought else
but the Hindu nation. All those not belonging to the national, i.e. Hindu race, religion, culture and
language, naturally fall out of the pale of real national life" Golwalkar said about the non-Hindu that
"have no place in national life, unless they abandon their differences, adopt the religion, culture and
completely merge themselves in the national race. So long, however, as they maintain their racial
religious and cultural differences, they cannot but be only foreigners".
Golwalkar again said against Muslims and others that: the foreign races in Hindustan must either adopt
the Hindu culture and language, must learn to respect and hold in reverence the Hindu religion, must
entertain no idea except the glorification of Hindu religion and culture, i.e. of the Hindu nation, and must
lose their separate existence to merge in the Hindu race, or they may stay in the country wholly
subordinated to the Hindu nation, claiming nothing, deserving no privileges, far less any preferential
treatment- not even citizen's rights. There is- or, at least, should be- no other courses for them to
adopt. We are an old nation, let us deal as old nations ought to and do deal with the foreign races who
have chosen to live in our country".
Quoted from Sita Ram Yechury's article Has the BJP disowned this man? 16 June, 2008, Hindustan
Times, p.12.
All above statements are not correct and they represent communal agenda and against the Islamic secular
thoughts.
2
Quranic quotation quoted by Wahed Husain in his book, Administration of Justice during the Muslim
rule in India, Idarah-i-adabiyat-i-Delli, first edition, 1934, reprint 1977, Delhi, p.1
3
Ibid., p.l.

62
and safeguards for social interest are the pillars of justice".4 Quran focused greatly on
justice as we have seen on the top two quotations which lay great stress on justice.
Another Quranic verse lays stress on justice;
"When you decide between people, give your decision with justice"
-Quran5
"And when give your decision, decide between them (i.e., the Jews) with
justice: surely God loves them who dojustice". 6
"0 true believers, observe justice when you appear as witnesses before God,
and let not hatred towards any induce you to do wrong: put act justly; this will approach
nearer unto deity, and fear God, for God is fully acquainted with what you do".
- Qurans: 87
"0 you who believe, be maintainers of justice when you bear witness for God's
sake although it be against yourselves, or your parents, or your near relations; whether
the party be rich or poor, for God is most competent to deal with them both, therefore
do not follow your low desire in bearing testimony so that you may not swerve from
justice, and if you swerve or tum aside then surely God is aware of what you do".
- Qurans 4: 135 8
However, the above quotation shows that Quranic verses focused greatly on
Justice. Justice is also a part and parcel of the divine injections. It is, therefore, a divine
justice.
The Muslim canon law has also focused greatly on justice. It should not be
based on race, creed, friends and foes. This is a great feature of the Muslim canon Jaw.
For instance, the second Caliph '(Umar) issued a farman to the governor of Kufa
containing instructions for the administration of justice. One of the instructions is -
"Treat all men justly and on equal footing when they appear before you in the court".9

4
Ibid., p.l.
5
Ibid., p.2.
6
Ibid., p.2.
7
Ibid., p.J.
8
Ibid., p.J.
9
1bid., p.J.

63
Another farman says- "In dealing justice, regard all men as equal, and treat the near
and remote on equal footing, keep yourself free from corruption. 10
The Quran has set up an ideal of justice by referring to the Divine Balance-
"Balance of justice". It says:
"And He appointed the balance that ye should not transgress in respect to the
balance; wherefore observe a just weight and diminish not the balance (i.e., measure)"
-(55: 7-9) 11

* * *

"Certainly we sent our Apostles with clear arguments and sent down with them
the book and the Balance (i.e., measure of justice) that men may conduct themselves
. h eqmty
Wit . " .12

-(57: 25)
Wahed Husain B.L. observed that "The Emperor Shah Jahan had a balance and
a pair of scissors engraved in a "luminous" stone, and set it up on the arch of the door
of Diwan-i-Am, the "Hall of Public Audience". This was the symbol of justice of the
Mughal Emperors. It convened the idea that justice would be weighed in the balance,
after pruning the extraneous matters from the claims of parties with scissors of equity.
These symbols are still to be seen on the doorway of the Diwan-i-Am in Delhi"P
Wahed Husain has given the another instance about the justice of Mughal
Emperor Jahangir. He says that "Jahangir adopted another device to bring justice within
the easy reach of every person without the intervention of the court officials. He
ordered to make a chain of gold thirty yards in length containing sixty bells. One end of
the chain was fastened to "the battlements of the Shah Burj of the fort at Agra and the
other to a stone-post fixed on the bank of the river "Jam una". The emperor generally
held the royal court to hear complaints. The aggrieved parties used to pull the chain.
The sound of the bells apprised the Emperor that the Pullers of the chain wanted redress.

10
Ibid., p.3.
II Ibid., p.4.
12
Ibid., p.4.
13
Ibid, p.5.

64
They were ushered into the royal presence, and the Emperor used to personally hear
their grievances and redress their wrongs". 14
The above instances show the balance of justice in Mughal period.
About Islamic Justice and its character, Mohammed Marmaduke Pickthall says
that "the laws of nature are expounded as the laws of Allah in the physical sphere, and
in the moral and political spheres mankind is informed that there are similar laws of life
and death, of good and evil, action and inaction, and their consequences - laws which
no one can escape by wisdom or by cunning. His mercy, like His law, surrounds all
things, and the standard of His Judgement is the same for all. He is not remote or
indifferent, partial or capricious. Those who do good earn His favour, and those who do
ill earn His Wrath, no matter what may be their creed or race; and no one, by the lip
profession of a creed, is able to escape His law of consequences". 15
The Quranic verses say or justify above statement;
"Then evil was the consequence to those who dealt in evil, because they denied
the revelations of Allah and made a mock ofthem". 16

* * *

"Allah produceth creation, then He reproduceth it, then unto Him Ye will be
returend". 17

* * *

"In that day their excuses will not profit those who did injustice, nor will they
be allowed to make amends". 18

* * *

14
Ibid., p.5-4.
15
Pickthal, Mohammed Marmaduke, The Meaning of the Glorious Quran, Madhur Sandesh Sangam
Publication, First Print 1994, Reprint 1995, New Delhi, pp.289-90.
16
Ibid., p.29l.
17
Ibid., p.29l.
18
Ibid., p.294.

65
 "Blessed is He who hath revealed unto His slave the criterion (of right and
wrong), that he may be a Warner to the people". 19
The above Quranic verses talk about the various forms of justice documented in
Islamic concept of justice.
Quranic Verses talk about Women and Orphans and God gives justice to them.
It says;
"0 mankind! Be careful of your duty to your Lord who created you from a
single soul and from it created its mate and from them twin hath spread abroad a
multitude of men and women. Be careful of your duty toward Allah in whom ye claim
(your rights) of one another, and towards the wombs (that bare you). Lo! Allah hath
been a watcher over you". 20

* * *

"Give unto Orphans their Wealth. Exchange not the good for the bad (in your
management, thereof) nor absorb their wealth into your own wealth. Lot That would be
a great sin". 21

* * *

"And if ye fear that ye will not deal fairly with the orphans, marry the women,
who seem good to you, two or three or four; and if ye fear that ye cannot do justice (to
so many) then only (one) or (the captives) that your right hands possess, thus it is more
22
tilcely that ye will not do injustice".

* * *

19
1bid., p.259.
20
Ibid., p.79.
21
Ibid., p.79.
22
Ibid., p.79.

66
 "0 ye who believe! It is not lawful for you forcibly to inherit the women (of
your deceased kinsmen), nor (that) ye should put constraint upon them that ye may take
away a part of that which ye have given to them, unless they be guilty of flagrant
lewdness. But consort with them in kindness, for if ye hate them it may happen that ye
hate a thing wherein Allah hath placed much good". 23

* * *

"0 ye who believe! Be ye staunch injustice, witnesses for Allah, even though it
be against yourselves or (your) parents or (your) kindred, whether (the case be of) a
rich man or a poor man, for Allah is nearer unto both (than ye are). So follow not
passion lest ye lapse (from truth) and if ye lapse or fall away, then lo! Allah is ever
informed of what ye do". 24
The above Quranic verses show that the holy Quran is a great supporter of
Women, Orphan for their justice.
Justice in Quran has been documented as moral and ethical value. Those who
follow good moral and ethical behaviour, will follow justice certainly. See some
Quranic verses in this regard;
"Follow those who ask of you no fee, and who are rightly guided"?5
"It is not for the sun to overtake the moon, nor doth the night outstrip the day.
They float each in an orbit". 26
These two verses talk about moral and natural justice. Person should follow
only the right path and follow one's natural duties. The strong man should not suppress
the poor and the poor should not feel weak and work laborously. Quran is very clear
in term of justice and concept as we have seen with two verses as Justice means moral
and ethical values.
Another Quranic verse talks about the conspiracy, crime and wrong doing
which is, of course, a part of justice;

23
Ibid., p.316.
24
Ibid., p.316.
25
Ibid., p.316.
26
Ibid., p.316.

67
 "0 ye who believe! When ye conspire together, conspire not together for crime
and wrong doing and disobedience toward the messenger, but conspire together for
righteousness and piety, and keep your duty toward Allah, unto whom ye will be
gathered". 27
"Lo! Conspiracy is only of the devil, that he may vex those who believe; but he
can harm them not at all unless by Allah's leave. In Allah let believers put their trust". 28
The above Quranic verses talk about the righteous path and not to make or
commit any crime towards right and not conspire any wrong doings. It is a natural
justice. It is also, to me, a social justice. Our duties to follow only right path and not
follow the wrong doings. It is very unfortunate that people do not follow Quran very
well and interpret wrongly. It's very important to know Quran in right directions.
The Quranic verses talk about reward for good work and judgement which
follows:
"Save those who believe and do good works, and theirs is a reward unfailing". 29
"So who henceforth will give the lie to thee about the judgement?'.3°
"Is not Allah the most conclusive of all judges?"31
The above verses say that Allah is the only and the biggest judge on the Earth.
Allah gives reward to them who perform the righteous duties and follow the right path.
Allah gives judgment in the last day and Allah is the final judgement. Allah cannot be
wrong, and follow the only right and good path.
Very beautiful injunctions about justice which is put forward by the Prophet
Mohammad;
"Beware! You are all guardians, and you will all be asked about your subjects;
then the Imam is the guardian of the subjects and he will be asked about respecting the
subject, and a man is as a shepherd to his own family, and will be asked how he
behaved, and his conduct to them; and a wife is a guardian to her husband's house and

27
Ibid., p.391.
28
Ibid., p.391.
29
Ibid., p.444.
30
Ibid., p.444.
31
Ibid., p.444.

68
children, and will be interrogated about them; and a slave is a shepherd to his master's
property, and will be asked about it whether he took good care of it or not". 32
The above statement says the rights of women, slave, husband, and Imam are
very useful for considering justice concept.
There is another Quranic verse about Jihad (holy war). During holy war, the
Prophet strictly prohibited the soldiers not to attack women, infants, slaves, blind and
so on which is very beautiful concept of justice;
"It is not incumbent upon infants to make war, as they are objects of
compassion; neither is it incumbent upon slaves or women, as the rights of the masters,
or the husband, have precedence; nor is it so upon the blind, the mohned, or the
deorepid, as such are incapable". 33
In Islam, abusive language is forbidden by the Muslim law which is very good
concept of justice. Those who abuse must be punished according to the discretion of the
Qazi. Abu Hanifa says;
"If a person abuses a Musalman by calling him an ass or a hog, punishment is
not incurred, because these expressions are in no respect defamatory of the person to
whom they are used, it being evident that he is neither an ass nor a hog. But some
allege that in our times chastisement is inflicted, since, the modem acceptation, calling
a man an ass or a hog is held to be abuse. Others, again, allege that it is esteemed only
to be abuse when the person of whom it is said, occupies a dignified position".
According to Abu Hanifah, the greatest number of stripes that can be inflicted for
abusive language are thirty-nine". 34
Muhammad has also said; "Abusing a Muslim is disobedience to God, and it is
infidelity for anyone to join such one in religious warfare". 35
The above statement and sentences clearly focus on morality which is law in
Islamic world and it also focuses that abuses are anti Muslim or anti-Islamic. This is a
natural or moral justice.

32
Dictionary of Islam, p.266.
33
Dictionary of Islam, p.244.
34
Ibid., p.8.
35
Ibid., p.8.

69
 Islam also gives another version of justice about peforming religious duties.
About religious duties, according to the Muhammadan Jaw, it is not lawful to accept
any remuneration for the performance of religious duties. But these injunctions are now
totally disregarded, and fees are taken for almost every religious duty performed by an
Imam. The teaching of the Hidayah on the subject is as follows:
"It is not lawful to accept a recompense for summoning the people to prayers, or
for the performance of a pilgrimage, or of the duties of an Imam, or for teaching the
Quran, or the law; for it is a general rule, with our doctors, that no recompense can be
received for the performance of any duty purely of a religious nature. According to
Shafai, it is allowed to receive pay for the performance of any religious duty which is
not required of the hireling in virtue of a divine ordinance, as this is only accepting a
recompense for a certain service; and as the acts above described are not ordained upon
the hireling, it is consequently lawful to receive a recompense for them. The arguments
of our doctors upon this point are twofold. First, the prophet has said, "Read the Koran
but do not receive any recompense for so doing" and he also directed Othman-bin-
Abbas, that if he were appointed a Mowazzin (a cryer for prayer) he should not take
any wages. Secondly, where an act of piety is performed, it springs solely from the
performer (whence regard is had to his competence), and consequently he is not entitled
to any recompense from another, as in the cases of fasting or prayer. A teacher of the
Koran, moreover, is incapable of instructing another in it, but by means of qualities
existing in his scholar, namely, capacity and docility, and therefore undertakes a thing
the performance of which does not depend upon himself, which is consequently invalid.
Some of our modem doctors, however, hold it lawful to receive wages for teaching
Koran in the present age, because an indifference has taken place with respect to
religion, whence if people were to withhold from paying a recompense for instructing
in the sacred writings, they would in time be disregarded; and decrees pass accordingly.
"It is not lawful to receive wages for singing or lamentation, or for any other
species of public exhibition, as this is taking a recompense for an act which is of
criminal nature and acts of that nature do not entitle to recompense in virtue of a
contract". 36

36
Dictionary of Islam, p.586.

70
 However, the whole Quran is based on the concept of justice directly or
indirectly. Quran is also based 'on natural justice. It focuses each and every aspect of
man's and women's problem and also discovers their solutions. The holy Quran talks
about women's role, their dress, their marriage, liberty, laws and vice-versa about
men's also. The Quran talks about punishment, sins (crime), moral character, lman
justice, rights, slaves, concubine and so on which all are based on concept of justice
indirectly or directly some time. What is wrong and what is right has been dealt with
very well.
It's very important to note that the Quran has to be read very carefully because
so many schools have been interpreted or interpreted wrongly and understanding in a
wrong direction. They try to see their own interest and problems come up. Therefore,
it's a matter of great careful reading and implementing.

Sin (Crime) in the Islamic World

Although 'sin' looks moral character or moral teaching but in Islamic world it is
also regarded as a crime which is punishable. About 'Sins' many authors and many
other sources may give different number but according to dictionary oflslam the 'Sins'
are following: 37
l. Kufr, or infidelity.
2. constantly committing little sins.
3. Despairing of God's mercy.
4. Considering oneself safe from the wrath of God.
5. False witness.
6. Quzf, or falsely charging a Muslim with adultery.
7. Taking a false oath.
8. Magic
9. Drinking Wine
10. Appropriation ofthe property of Orphans.
11. Usury.
12. Adultery.

37
Ibid., p.594.

71
 13. Unnatural Crime.
14. Theft
15. Murder
16. Fleeing in battle before the face of an infidel enemy.
17. Disobedience to parents.
These "sins" may be divided more but these are important "sins" in the Islamic
world which are also crimes.
There are some sayings of Prophet Muhammad as given in the "Traditions" on
the subjects of"Sin".
"He is not a believer who commits adultery, or steals, or drinks liquor, or
plunders, or embezzles, when entrusted with the plunder of the infidel. Beware!
Beware! " 38
"The greatest sin is to associate another with God, or to vex your father and
mother, or to murder your own species, or to commit suicide, or to swear to lie". 39
"The greatest of sins before God is that you call any other like unto the God
who created you or that you murder your child from an idea that it will eat your victuals,
or that you commit adultery with your neighbour's wife". 40
"Abstain ye from seven ruinous destructive things, namely, (1) associating
anything with God; (2) magic; (3) killing anyone without reason; (4) taking interest on
money; (5) taking the property of the Orphan; (6) running away on the day of battle;
and (7) taxing an innocent women with adultery". 41
"Do not associate anything with God, although they kill or bum you. Do not
affront your parents, although they should order you to leave your wives, your children
and your property. Do not abandon the divine prayers for he who does so will not
remain in the asylum of God. Never drink wine; for it is the root of all evils. Abstain
from vice, for from it descends the anger of God. Refrain from running away in the
battle, although ye be killed. When a pestilence shall visit mankind and you are in the

38
Ibid., p.594.
39
Ibid., p.594.
40
Ibid., p.595.
41
Ibid., p.595.

72
midst of it, remain there. Cherish your children and chastise them in order to teach
them good behaviour ,and instruct them in the fear ofGod". 42
It is related that a Jew once said to his friend, "Take me to this Prophet". He
said, "Do not call him a prophet, for ifhe hears it he will be pleased". And they came to
the Prophet and asked about the nine (SK) wonders (i.e. Ten Commandments), which
appeared (from the hands of Moses). He said, "Do not associate anything with God, nor
steal, nor commit adultery, nor murder, nor take an inoffensive person before the king
to be killed, nor practice magic, nor take interest, nor accuse an innocent woman of
adultery, nor tum your backs on the field of battle; and it is proper, particularly for the
Jews, not to work on Saturday". The Jews kissed the hands and feet of the Prophet, and
said, "We bear witness that you are a Prophet". He said, "what prevented you from
being my disciples?" They replied; "David called on God to perpetuate the gift of
prophecy in his family, and we fear the Jews will kill us if we become your
followers" .43
The above things are seen in the Islamic world as a crime.

Punishment in the Islamic World

Punishment is very important aspect in the Islamic world for maintaining law
and order situation in the respective state or territory. Commonly speaking, denying the
Quran teaching or Prophet words is seen a crime or sin in the Muslim world. Because it
is a God-gifted holy book which cannot be wrong. Despite all these things still in the
Islamic world "Punishment" is divided into three classes which are following: 44
1. Hadd
2. Qisas
3. Tazib

Hadd

42
Ibid., p.595.
43
Ibid, p.595.
44
Ibid, p.476.

73
 Hadd or hudood (literary mean "that which is defined") is that punishment the
limits of which have been defined in the Quran and Hadis. The following belong to this
class:
i) Adultery (Zina), for which the adulterer must be stoned.
ii) Fornication, for which the guilty persons must receive one hundred
stripes (Quran, Surah, xxiv, 2).
iii) The false accusation of a married person with adultery, for which the
offender must receive eighty stripes (Quran, Surah, xxiv, 4).
iv) Apostacy, which is punishable with death.
v) Drinking wine, for which the offender must receive eighty lashes.
vi) Theft which is punished by cutting off the right hand. (Quran, Surah,
v.42).
vii) Highway robbery: For robbery only, the loss of hands and feet, and for
robbery with murder, death, either by the sword or crucifixion. (Quran,
Surah, v.37).

Qisas45
Qisas means 'retaliation'. Qisas is that punishment which although fixed by law,
can be remitted by the person offended against, or in the case of a murdered person, by
his heirs. It is applicable to cases of murder and of wounding. For instance, the Quranic
verses say like this "Eye for eye, tooth for tooth, burning for burning, wound for wound,
stripe for stripe; but in allowing a money compensation, Muhammad departed from the
Jewish Code.
(Quran, Surah ii, 173).

Tazib
Tazib is the punishment which is left to the discretion of the Qazi or Judge.46

Concept of Justice through Law

45
Ibid., p.477.
46
Ibid., p.477.

74
 Law is meant for Justice. Law is important for the natural justice. Therefore,
Natural justice is embedded in the Holy Quran. In the Islamic world, the Law is a way
of life. The meaning of "Shariah" and "Shara" is "the way". The compiler of the
Ghiyasu-1-lughah defines it as "the way or road in the religion of Muhammad, which
God has established for the guidance of His people, both for the worship of God and for
the duties of life". The term ash-Shariah occurs once in the Quran, Surah xiv. 17. "We
(God) put thee (Muhammad) in the right way concerning the affair". The term ash-
Shariah is almost obsolete in books on Muslim theology, but it occurs once in the
Quran, Surah v. 52: "To every one have we given a right way". 47
According to the Islamic Scholars, The Muslim law may be divided into five
part.
i) Itiqadat (beliefs)
ii) Adab (Moralities)
iii) Ibadat (Devotions)
iv) Muamalat (Transactions)
v) Uqubat (Punishment)48

Itiqadat (beliefs) 49
Itiqadat contains six articles of the Muslim faith, namely; Belief in
i) God;
ii) His angels;
iii) His books;
iv) His prophets;
v) The day of Judgement;
vi) The Decrees of God;
This section of Muslim law is termed "Ilmul-Aqaid" or the "Science of the
articles of Belief'.

Adab 50

47
Ibid., p.285.
48
Ibid., p.285.
49
Ibid., p.285.

75
 Adab consists of all those moral excellences which are enjoined in the Quran
and traditions, which are following;
i) Ikhlas i.e. sincerity
ii) Tawakkul i.e. confidence in God
iii) Tawazu i.e. humility
iv) Tafwiz i.e. resignation
v) Qasru-e-Amal i.e, keeping down one's expectation
vi) Zuhd-fi-d-dunya i.e. renunciation of the world.
vii) Nasihah i.e., giving good council and advice
viii) Qanaah, i.e., contentment
ix) Sakhawah, i.e., liberality
x) Hubb i.e., love to God and man
xi) Sabr i.e., Patience

lbadat 51
lbadat includes all acts of devotion to God, such are included in the five pillars
of practice which are following;
i) Recital of the creed;
ii) Prayer
iii) Zakat or legal alms
iv) Saum or fasting
v) The pilgrimage to Makka

Muamalat52
It include such duties as it required between man and man and is divided into
the following:
i) Mukhasamat (altercations)
ii) Munakahat (Nuptials)
iii) Amanat (Securities)

50
Ibid., p.285-6.
51
Ibid., p.286.
52
Ibid., p.286.

76
 Under these three heads are embraced all the various sections of civil
jurisprudence such as barter, sale, agency, larceny, marriage, divorce, dower,
partnership, claims, etc.

Uqubat53
Uqubat denotes the punishment, embedded in the Quran and traditions, which
are following:
l) Qisas i.e. retaliation
2) Haddu-e-Sariqah i.e. punishment for theft by the loss of a hand;
3) Haddu-z-zina, i.e., punishment for fornication and adultery is stoning for
a married person and one hundred lashes for an unmarried person
4) Haddu-i-Qazf i.e. punishment of eight lashes for slander;
5) Haddu-r-riddah, or punishment by death for apostasy
6) Haddu-sh-shurb, or punishment with eighty lashes for wine drinking.
Islamic laws are also divided into two great distinctions of (l) Mashru (lawful)
and Ghairu-i-Mashru (unlawful).

53
Ibid., p.286.

77
Mashru (Lawful)54
Mashru or lawful laws are divided into five divisions which are following;
i) Farz
ii) Wajib
iii) Sunnah
iv) Mustahabb
v) Mubah

i) Farz
Farz that which is proved beyond all doubts to have been enjoined either in the
Quran or in a tradition of undoubted authority and the denial or disobedience of which
is positive infidelity.

ii) Wajib
Wajib is an obligatory duty but of which there is some doubt whether or not it
is enjoined in the Quran or in a tradition of undoubted authority.

iii) Sunnah
Sunnah is a word of prophet Muhammad which was practiced by him.

iv) Mustahabb
It was Muhammad and his companions who sometimes did and sometimes
omitted it.

v) Mubah
This is desirable but which may be omitted without fear of sin.

Ghairu-i-Mashru (Unlawful)
In the Islamic world, Ghairu-i-Mashru was divided into three classes which are
following;

54
Ibid, p. 286.

78
 i) Mufsid, that which is the most vicious and corrupting, a mortal sin;
ii) Haram, that which is distinctly forbidden;
iii) Makruh, that which is generally held to be unclean.
The above distinctions of lawful and unlawful classes with their various
subdivisions apply to all branches of Islamic law, whether it relates to ordinary duties
of life, or of devotion to God.
In the contest of Islamic justice through law, we have seen that how laws are
lawful and unlawful and many sub-divisions talk about the conceptual justice of Islamic
world. The important thing is that these laws are very secular and very democratic in
nature. As in general concept, scholars believe that Islamic laws are very tough, but it's
not correct. It depends upon the crime, the Quantum of the crime, situations and so on.
Different Ulema and states interpreted Muslim laws differently, therefore it appears
wrong but Quranic Verses or Muslims are not wrong. It totally depends upon the nature
of crime and interpretations.
Judicial administration in the Islamic world: Origin and their main functionaries
"At the commencement of Islam the prophet was the chief of the Muslims in
temporal and spiritual concerns, being their ruler, judge, law-giver, priest and
general."55 In other words the prophet was the head of the Islamic Republic of Medina
as well as the spiritual guide ofthe Muslim community. Prophet in his judicial capacity,
acted as the supreme judge of the community, hearing complaints, deciding cases and
determining the forms and limits of punishment." 56 But, latter on, during the death of
the prophet, prophet appointed Abu Bakr to look after the whole business including
judicial duties. From that time the institution ofKhilafat (caliphate) was founded.
Caliph means successor; a lieutenant; a vicegerent, or deputy. In the Islamic
world, it is the title given to the successor of Muhammad, who is vested with the
absolute authority in all matters of state, both civil and religion as well as Judicial
decisions. 5 7 Regarding this, the Quranic verses document the following words;

55
Zaydan and Margoliouth, Islamic civilization, part iv, p.248, Quoted from by A.D. Khan, in A history
of the Sudarat in medieval India, Vol. I, Delhi, p. I.
56
Ibid, p, l.
57
Dictionary allslam, p.263.

79
 "0 David! verily we have made thee a vicegerent (Khalifah); Judge then
among men with truth"
(Quran, Surah xxxviii, 25). 58
In the context of Origin of Judiciary m the Islamic world, the caliph was
responsible,in charge of every duty, and the fountain of every order.
"The Caliph was in fact the Head of the State, Commander-in-chief of the army,
and the chief Judge of the Empire. At first there were no separate judges; the caliph
himselftried and decided cases. The Executive and the Judiciary were not separate at
that time." 59
Prophet Muhammad made several rules for the rulers and Imam or Caliph and
their Qualification, which are recorded in the book, named "Mishkatu-i-Masabih"
which are following.
"Whoever obeys me obeys God, and whoever disobeys me disobeys God.
Whoever obeys the Amir obeys me. An Imam (caliph) is nothing but a shield to fight
behind, by which calamities are avoided; and if he orders you to abstain from that
which is unlawful, he will have great regard; but if he enjoins that which God has
forbidden, he will bear the punishment of his own acts". 60

* * *

"If a negro slave is appointed to rule over you, you must listen to him and obey
him, even though his head be like a dried grape".61

* * *

"It is indispensable for every Muslim to listen to and approve the orders of the
Imam, whether he likes or dislikes, so long as he is not ordered to sin and act contrary
to law. When he is ordered to sin, he must neither attend to it nor obey it".62

58
Ibid, p.263.
59
A.D. Khan, A history of the Sadarat in Medieval India, Vol I, Idarahi-i-adabiyat-i-Dolli, Delhi, 1998,
p,3.
60
Dictionary of Islam, p.548.
61
Ibid, p,548.

80
 "The best Imams or Caliphs are those you love, and those who love you, and
those who pray for compassion on you, and you on them; and the worst of Imams are
those you hate, and those who hate you; and those whom you curse, and who curse
you".6J

* * *

"Prophets were the governors of the children of Israel, and when one died,
another occupied his place; and verily there is no prophet after me, and the time is
when there will be after me a great many Khalifahs." The companions said, "Then what
your order to us" "The prophet said, obey the Khalifah, and give him his due; for verily
God will ask about the duty of the subject''.64
However, the above statement was given by prophet about the qualification of
Imam or caliph.
However, Mawardi, a great Islamic Scholar mentioned the following
requirements of a man to be eligible as Caliph or Imam:
1. He must be morally beyond evil;
2. He must be possessed of such knowledge that will enable him to pass
judgment personally on positions of the government that will present
themselves to him;
3. His hearing and sight must be unimpaired;
4. He must enjoy soundness of limbs;
5. He must show the courage and energy required to protect the Dar-ul-lslam;
and to fight the enemy;
6. He must possess the judgment and the experience necessary for the conduct
of affairs; and
7. He must be descendant ofthe Quraish, the clan of the prophet.65

62
Ibid, p,548.
63
Ibid, p. 548-49.
64
Ibid, p. 549.
65
Mawardi, Quoted by A.D. Khan in, A history of the Sadarat in Medieval India, p, 5-6.

81
 However, we can see that Khalipha possesses unlimited powers and he was the
absolute authority but he can be dismissed if he is wrong as prophet Muhammad says in
his statement.

Sadarat
Sadr who holds the office of Sadarat. Sadr is the Naib (deputy) of the Khalipha
who discharges duties for the khalipha. Sadr has so many functions and enjoys
unlimited powers. Al-Mawardi has given a list of duties of Sadr which are following;
I. Action against injustice and tyranny committed against people by
those in authority over them;
2. Checking injustice in the assessment or levying taxes;
3. Supervision of the acts of the public official in the various
Government departments;
4. Complaints by those in receipt of official stipends that these have
been reduced in amount or have not been paid;
5. Claims for restoration of property wrongfully seized.
6. Surveillance of auqaf (pious foundations);
7. Non-enforcement of decisions made by the Qazis not strong enough
to see their judgments carried out against defendants occupying high
ranks and powerful positions;
8. The suppression of open evil-doing and the enforcement of
regulations within the jurisdictions of the Muhtasib (censor) but
beyond his jurisdictions;
9. The care of public worship and religious practices in general; and
l 0. Hearing of litigation in general (presumably including the hearing of
appeals against the decisions of the Qazi).
However, Sadr was vested unlimited powers as the above list shows.

Qazi
During Umar (Khalipha) time, an important development took place which was
the separation of the judiciary from the executive. He appointed Qazis to administer

82
justice and made the office of the Qazi distinct from and independent of the
executive.66
The Qazi can be appointed either by the Khalipha or the sovereign directly or by
the Wazir, or by the provincial Governor vested with the necessary power of doing so.
His appointment should be made on written letter or verbally. Qazi can be dismissed or
deposed by the sovereign but his dismissal should be in public place so that the ruler
may repair to him for decision, and may refrain from doing so when he is no longer in
the office.
The Qazi may appoint a Naib or deputy Qazi only if he is empowered to do so;
he can also dismiss him. 67
Those who wanted to be Qazi, needed ten requirements which are following.
1. A Judge should be God-fearing and at the same time should have a
dignified demeanour;
2. He should have sound common sense and be conversant with the best
of judicial demeanour;
3. He should bear an absolutely irreproachable Character;
4. He should not deliver judgments before he is satisfied that full proof
has been laid before him, nor tarry in his judgment when sufficient
proof has been produced;
5. He should not accept any presents nor hear any recommendations;
6. He should never see any party in private;
7. He should be fearless in awarding what is right and due;
8. He should rarely smile and speak little;
9. He should never ask any party to do him any favour; and
10. He should take great care to protect the property of the orphans.68

Duties of Qazi
Qazi had many duties which had to be followed are following;

66
Ibid, p,6.
67
Wahed Husain, B.L. Administration of Justice during the Muslim rule in India, Idarah-i-adabiyat-i-
Delli, Delhi, 1934 (First reprint) 1977, p.l60.
68
A.D. Khan, A history of the Sadarat in Medieval India, p,22-23.

83
 l. "A Qazi in deciding a case must follow and cannot act contrary to the law
laid down by a clear text of Quran, or of a universally accepted or well-known
tradition, or of a consensus of opinion (Ijma)."
"Any decision of his opposed to such certain and absolute law must be set aside
by himself or by the succeeding Qazi when the error is discovered. But, otherwise, his
decision cannot be set aside by another judge or by himself, although the view of law
on which it is based is erroneous".69
In the context of duties of Qazi, Ibn Khaldun states that the Qazi was in the
authority who decides disputes and to whom persons aggrieved carry their plea for
justice. So his primary duty was to solve the disputes and second duty of Qazi was to
take care of those persons, grown up or young, who were incapable of protecting their
rights by reason of being disabled, infirm, insane, insolvent ,orphans, and the like so
that the enforcement of rights and obligations in their favour could be insured. The
third duty of the Qazi was the administration and supervision of awqaf, the pious
foundations. The next duty of Qazi was to give effect to testamentary dispositions. The
Qazi was also responsible for the protection of the district against the violations of
safety and building regulations. Other duties like, solemnization of marriage, divorce
and the like also come within the function of the Qazi. 70

Qazi-ul-Quzat

The Qazi-ul-Quzat, i.e., the Qazi of Qazis, the Chief Qazi, was the Chief
Judicial Officer, and his court was the highest court of justice in the Caliphate. It was
generally situated at the capital.
The court of the Qazi-ul-Quzat was the Chief appellate court in addition to the
court of the Caliph who also used to hear appeals.

69
Wahed Husain, Administration of Justice during the Muslim rule in India, p.l64.
70
A.D.Khan, A History of the Sadarat in Medieval India, p.23-24

84
 Harun-ur-Rashid, first established the court in the Caliphate. Imam Abu Yusuf,
one of the Chief disciples of Abu Hanifa, was appointed the Chief Qazi of Baghdad.
Since then the office has been retained in all Islamic countries. 71
Maqrezi, an Islamic historian, has given vivid description of Qazi-ui-Quzat
court. He says that Qazi-ul-Quzat was having the highest post in the judiciary system
and his rank and position were very superior to all "The People of Learnings". He looks
after all the judicial and religious matters. He holds his court generally on Saturdays
and Wednesdays. The Chief Qazi also inspects the records of mint. He himself closes
the mint and puts his seal upon it. 72

Mufti
An important functionary in the judiciary system was the Mufti. The term
"Mufti" means a person who was competent to give fatwa or legal opinion. He did not
represent any party to litigation, nor did he expound the law from the point of view of
his client. 73 Mufti was the expounder of the Muslim law. He was the legal advisor to
the Qazi. A.D. Khan says that the Mufti was expected to have a through "knowledge of
the rules of God which concern the actions of men, who could themselves bind to obey
the law respecting what was required, forbidden, recommended, disapproved or merely
permitted. 74 The Mufti did not hold a court of his own but he was attached to the court
ofthe Qazi for giving legal opinions. His functions were consultative.

Muhtasib
The last important officer of the Judiciary System was Muhtasib and his office
was adjunct with the Sadarat office. This institution (AI-Hisbah) can hardly be called a
court of justice as the office of the Muhtasib was not ordinarily vested with judicial
powers. Amil Ali writes: "The Municipal Police was under a special office called
the Muhtasib. This useful and important office was created by the Caliph Mehdi and
has existed ever since in Islamic countries. The Muhtasib was both superintendent of

71
Wahed Husain, Administration of Justice during the Muslim rule in India, p.l69-70.
72
Ibid., p.170
73
Ibid., p.166-7.
74
A.D.Khan, p.24-25.

85
the markets and a public censor. He went through the city daily, accompanied by a
detachment of subordinates and assured himself of the due execution of the police
orders, inspected the provisions, tested the weights and measures used by trades people,
and suppressed nuisances. Any attempt to cheat led to immediate punishment". 75
S.Khuda Bukhsh observes, "we must note, however, that the Muhtasib only
interposed upon application of the party and was not competent to adopt coercive
measures as he had no judicial power. It was no part of the duty of this officer to decide
judicial matters unless the accused confessed his guilt and was in a position to carry out
his obligation or to repair the injury caused by him". 76
In the Islamic world, the administration of judicial system was well established.
In the administration, there was no discrimination based on class-caste. Although
administration was run by only the elite but slave can also be a Khalipha as prophet
Muhammad has said. There was no absolute power vested in the hand of Qazi-ul-Quzat,
Qazi, Sadr or any other official. They all were the subject of Questions by the upper
official system. Even Imam or Khalipha was also not in an absolute position. Prophet
clearly said that if Imam follows the law, then subjects follow, otherwise, subjects
should not obey the Imam. To me, the judicial administration was based on hierarchy
and grade. All the officers had their own responsibilities and they had to stay within
the limitations. Although they had absolute power center within their territory and did
whatever they could do, but their power had also boundary and limitation. However,
the Islamic judiciary was well established and had very secular and non-partisan justice
system.

75
Ibid., p.l74.
76
Ibid., p.l74.

86
Bibliography:

I.
Note: Misunderstood or misrepresented means that several scholars like Jadu Nath Sarkar has
misunderstood the Muslim kings, Islam and judiciary system oflslam in general. They have
painted them as very cruel, heartless and not good enough with common masses particularly
with Hindus. Historian like P. Hardy from the School of Oriental and African Studies that
"apartheid was the dominant ideal in Medieval India, in default of Cultural victory" has
criticized Medieval government in that manner. I.H.Qureshi has criticized the Mughal
government in the following words:
"It was a crime to lull the Muslims into believing that the maintenance of the Empire was not
their primary responsibility. Even more disastrous was the encouragement of the feeling that
tolerance implied the belief that all religions were merely different paths, all equally good for
reaching the same God. This was an even more potent cause of the demoralization and
degeneration of the Muslims, especially their acceptance of subtle non-Islamic ideas. Indeed this
was the darkest period in the history oflndian Islam". (A history of the freedom movement:
Being the story of Muslim struggle for the freedom of Hind-Pakistan, 1707-1947, Karachi, 1957,
vol.l, p.34.)
R.C.Majumdar also saw Medieval history in a communal angel. He says:
"The newly acquired ideal of a 'secular state' is opposed to all known facts of Indian history.
But it is sought to be buttressed by a new conception of Indian history and culture, which
recognizes no distinct Hindu or Muslim culture in Modern India, and looks upon these, along
with European or Western culture, as so many streams muting together only to mingle and lose
their separate entities in the sea of Indian culture. The Muslims, however, repudiate any such
idea, and Islamic culture is not only recognized as a distinct entity, but has been formally
adopted as the basis of the new state of Pakistan. In India, however, a small but gradually
increasing class ofinfluential persons now fight shy of the term 'Hindu' as a designation of a
cultural unit, and only think in terms of Indian culture. Whatever may be value of such an idea
in shaping Indian's culture, it becomes positively dangerous when it encroaches upon the
domain of Indian history and seeks to ignore the existence of Hindu culture as one of the most
potent and patent facts oflndian History even today". (C.H.Philips, (ed.), Historians oflndia,
Pakistan and Ceylon, London, 1961, pp.426-7).
Peter Hardy also misinterpreted history in the following words:
" ... neither educated Muslims nor educated Hindus accepted cultural co-existence as a natural
prelude to cultural assimilation. Thus long before British rule and long before modern political
notions of Muslim nationhood, the consensus of the Muslim community in India had rejected
the eclecticism of Akbar and Dara Shikoh for the purified Islamic teaching of Shaikh Ahmad of
Sirhindi and Shah Waliullah. Cultural Aparthied was the dominant ideal in Medieval Muslim
India, in default of cultural victory".
(Islam in India, Sources of India Tradition, Columbia University Press, See Introduction).
M.S.Golwalkar has said: "In Hindustan exists, and must exist the ancient Hindu nation, and
sought else but the Hindu nation. All those not belonging to the national, i.e. Hindu race,
religion, culture and language, naturally fall out of the pale of real national life" Golwalkar said
about the non-Hindu that "have no place in national life, unless they abandon their differences,
adopt the religion, culture and completely merge themselves in the national race. So long,
however, as they maintain their racial religious and cultural differences, they cannot but be only
foreigners".
Golwalkar again said against Muslims and others that: the foreign races in Hindustan must
either adopt the Hindu culture and language, must learn to respect and hold in reverence the
Hindu religion, must entertain no idea except the glorification of Hindu religion and culture, i.e.
of the Hindu nation, and must lose their separate existence to merge in the Hindu race, or they
may stay in the country wholly subordinated to the Hindu nation, claiming nothing, deserving
no privileges, far less any preferential treatment- not even citizen's rights. There is- or, at least,

87
 should be- no other courses for them to adopt. We are an old nation, let us deal as old nations
ought to and do deal with the foreign races who have chosen to live in our country".
Quoted from Sita Ram Yechury's article," Has the BJP disowned this man"?. 16 June, 2008,
Hindustan Times, p.l2.
All above statements are not correct and they represent communal agenda and against the
Islamic secular thoughts.
2. Quranic quotation quoted by Wahed Husain in his book, Administration of Justice during the
Muslim rule in India, Idarah-i-adabiyat-i-Delli, first edition, 1934, reprint 1977, Delhi, p.l
3. Pickthal, Mohammed Marmaduke, The Meaning of the Glorious Quran, Madhur Sandesh
Sangam Publication, First Print 1994, Reprint 1995, New Delhi, pp.289-90.
4. Dictionary of Islam, p.266.
5. Dictionary of Islam, p.244.
6. Dictionary of Islam, p.586.
7. A.D. Khan, A history of the Sadarat in Medieval India, Vol I, ldarahi-i-
adabiyat-i-Delhi, Delhi, 1998, p,3.
8. Dictionary oflslam, p.548.
9. Mawardi, Quoted by A.D. Khan in, A history of the Sadarat in Medieval India,
p, 5-6.
10. Wahed Husain, B.L. Administration of Justice during the Muslim rule in India, Idarah-i-
adabiyat-i-Delhi, Delhi, 1934 (First reprint) 1977, p.160.
11. A.D. Khan, A history of the Sadarat in Medieval India, p,22-23.
12. Wahed Husain, Administration of Justice during the Muslim rule in India, p.l64.
13. A.D.Khan, A History of the Sadarat in Medieval India, p.23-24
14. Wahed Husain, Administration of Justice during the Muslim rule in India, p.l69-70.

88