CLASSICAL HINDU AND

ISLAMIC APPROACHES TO

PUNISH AND TREAT

OFFENDERS
NAME OF THE STUDENT :SAMRUDDHI LAAD
SUBJECT : CRIMINAL LAW - II
COURSE : S.Y. LLM
YEAR : 2013 – 2014
NAME OF THE COLLEGE : G.R. KARE COLLEGE OF
LAW
 TABLE OF CONTENTS
CHAPTER NO. TOPIC PAGE NO.

CHAPTER I CLASSICAL HINDU

APPROACH

A) INTRODUCTION

B) DANDA – HINDU
PUNISHMENT
(i) Dharmashastra
Interpretation of
Punishment
(ii) Punishment – Defined

C) ADMINISTRATION OF
JUSTICE

(i)Types of punishment

D) CRITICISM ON MANU’S
CRIMINAL JUSTICE
D) CONCLUSION

CHAPTER II CLASSICAL ISLAMIC

APPROACH

A) INTRODUCTION

B) PHILOSOPHY OF THE
ISLAMIC CONCEPT OF
PUNISHMENT

(i) Punishment and

Legal Penalties

(ii) Hudud Religious

Punishments

(iii)Other Shari’ah Crimes,

Punishment, & Blood
Money

(iv)Repentance and
punishment

(v) Functional Nature

C) CONCLUSION

CHAPTER III FUTURE VISION -

HINDU AND ISLAMIC
LAWS
 A) INTRODUCTION

Introduction 1

Scholarly views on classical India suggested the importance of Dharma and śāstras as the
central theoretical and textual categories that create a moral self in Hinduism. Various
theories on evolution of Hindu Law and Dharma suggested that it developed from
macrocosmic universal order and microcosmic sphere where the focus shifted from super
humans to individuals. Dharma in the later stage became more associated with the duties
of the individuals and self-controlled order. In the process of this evolution, textual
understanding of Hindu law and Dharma developed through the sacred texts of Śruti and
Smriti genres and their commentaries and digests. These texts have traditionally formed
the corpus of Hindu law, a law which was to govern every part of a Hindu’s life. Later,
more secular and personal understanding of Hindu law and Dharma developed under
Muslim and British rulers in India.

India’s legal system presents the most extensive and diverse written law in the world.
Law in India emerged from classical traditions rather than a construction of a public body
or state and the system was considered as very near to people. The classical legal
traditions of India were exclusively recorded in the Sanskrit texts and believed to have
developed by the ancient sages. These traditions are widely understood as Hindu law
which originated from community principles and not from a state polity. Hindu law refers
to the system of personal laws (marriage, adoption and inheritance) applied to Hindus in
India. Very recently, Donald Davis has given more convincing definition of Hindu law as
‘variegated grouping of local legal systems that had different rules and procedures of law
but that were united by a common jurisprudence or legal theory represented by
Dharmaśāstra literatures’. This definition suggests that Hindu law is a system of

1
Santhosh Abraham, “CLASSICAL LEGAL TRADITIONS: SOME HISTORIOGRAPHICAL
INTERPRETATIONS”, Journal of History and Social Science,Vol IV, Issue I, Jan-June 2013
religious law, deeply rooted in a legal theory, i.e., the concept of Dharma. The
significance of the Dharma, pointed out by Kane, as ‘the privileges, duties and
obligations of a man, his standard of conduct as a member of Aryan community, as a
member of one of the castes, as a person in particular stage of life’.

Dharma is generally understood as the concept, ‘comprises of rules of morality, conduct

and good behavior, religious principles, legal precepts and all that supports the
harmonious functioning of human relationships’. It is important to trace the recent
historiographical interpretations on the nature, evolution and sources of Hindu law and
Dharma which passed through several transitions of meaning. 2

2
Santhosh Abraham, “CLASSICAL LEGAL TRADITIONS: SOME HISTORIOGRAPHICAL
INTERPRETATIONS”, Journal of History and Social Science,Vol IV, Issue I, Jan-June 2013
 B) DANDA : HINDU PUNISHMENT

Danda is the Hindu equivalent of punishment. In ancient India, punishments were

generally sanctioned by the ruler, but other legal officials could also play a part. The
punishments that were handed out were in response to criminal activity. In the Hindu law
tradition, there is a counterpart to danda which is prāyaścitta, or atonement. Whereas
danda is sanctioned primarily by the king, prāyaścitta is taken up by a person upon his or
her own volition. Furthermore, danda provides a way for an offender to right any
violations of dharma that he or she may have committed. In essence, danda functions as
the ruler's tool to protect the system of life stages and castes. Danda makes up a part of
vyavahāra, or legal procedure, which was also a responsibility afforded to the king. 3

Dharmashastra Interpretation of Punishment 4

It must be stated that even the Hindu Shastras have emphasised on King’s power to
punish the law breaker and protect the law abider. According to Manu, King was Danda
Chhatra Dhari i.e. Holder of Danda(Punishment) and Chhatra(Protector). According to
Gautam the word danda meant restrains. Vasista Samhita also upheld King’s power to
punish and destroy the wicked and the evil. But “punishment must be awarded after due
consideration of place, time, age, learning of the parties and the seat of injury”. For
Manu, Danda i.e. punishment was the essential characteristic of law. He justified
punishment because it keeps people under control and protects them. To quote him,

3
Danda – Meaning, availabe at http://en.wikipedia.org/wiki/Danda (visited on 13th

November 2013)
4
Prof. N.V. Paranjape, Criminology & Penology with Victimology, (15th Ed.) pg.262
“punishment remains awake when people are asleep, so the wise have recognised
punishment itself as a form of Dharma 5.

Punishment – Defined 6
Punishment under law is the authorised imposition of deprivations of freedom or privacy
or other facilities to which a person otherwise has a right, or the imposition of special
burdens because he has been found guilty of some criminal violation, typically, though
not invariably, involving harm to the innocent. Thus, punishment may be defined as an
act of political authority having jurisdiction in the community where the harmful
wrong(crime) is committed. It consists of imposition of some burden or some form of
deprivation by withholding some benefit or right to which a person is legally entitled to
enjoy.
Punishment under law is fundamentally a technique of social control, and its employment
is justified to the extent that it actually protects such social justice as society through law
has achieved.

5
Id. at pg.263,
6
Prof. N.V. Paranjape, Criminology & Penology with Victimology, (15th Ed.) pg.263
 C) – ADMINISTRATION OF JUSTICE 7

From the Vedic period onward, the perennial attitude of Indian culture has been justice
and righteousness. Justice, in the Indian context, is a human expression of a wider
universal principle of nature and if man were entirely true to nature, his actions would be
spontaneously just. Men in three major guises experience Justice, in the sense of a
distributive equity, as moral justice, social justice, and legal justice. Each of these forms
of justice is viewed as a particularization of the general principle of the universe seen as a
total organism. From the broadest to narrowest conception, then, ancient Indian views on
justice are inextricably bound up with a sense of economy. Human institutions of justice -
the state, law, etc. - participate in this overall economy; but the belief has remained strong
in India through the centuries that nature, itself, is the ultimate and final arbiter of justice.
Ultimately, justice is cosmic justice.

The administration of legal justice and infliction of punishment was performed on

the basis of Varna system. Manusmriti considers that it is only natural to take Varna into
account in the administration of legal justice. Manu indicates that the king, acting as
judge should consider "the strength and knowledge" of the defendant. His strength and
knowledge are estimated as functions of his Varna. Legal consideration of varna rank has
two main outcomes, one having to do with responsibility, the other with privilege, and
one concerning the perpetrators of crime and the other its victims. Crimes against persons
were adjudicated with reference to the class-status of the victim and the perpetrator. The

7
Manusmriti: A Critique of the Criminal Justice Tenets in the Ancient Indian Hindu Code, available at
www.erces.com/journal/articles/archives/v03/v03_05.htm (visited on 13th November 2013)
penalty for a crime was increasingly severe the higher the Varna of the victim and lower
the Varna of the perpetrator (Das 1982). One of the chief duties of the king was the
maintenance and protection of the Varna system through his power of danda (the
sceptre). The king obeyed this concept because it is realized that Varna and the state are
necessary aids to the achievement of the final goal of life (Underwood 1978; Lahiri
1986). The legal distinctions of ancient India are firmly based on an ideal of equity and
justice expressed in terms of hierarchy rather than of equality.

Types of Punishments 8

In his digest, the Mānava-Dharmaśāstra, Manu cites four types of punishment: Vak-
danda, admonition; Dhikdanda, censure; Dhanadanda, fine (penalty); and Badhadanda,
physical punishments. Vak-danda is the least severe type of punishment and the severity
increases as one examines Dhikdanda, Dhanadanda, and Badhadanda respectively. Manu
also states that the different types of punishments may be combined to serve as a just
punishment. Later authors added two more types of punishment: confiscation of property
and public humiliation.

1. Admonition and censure 9

If forgiveness is not possible or desirable, it is seen whether the circumstances of the

offense are deserving of admonition. Admonition is to be used first, and then censure.
Both admonition and censure are the lowest and least severe of the possible punishments
because neither inflict physical pain or loss of property. When using censure, "a good
man committing his first offense should be asked: 'Is this your evil action.' 'Is it proper of
you?'" Censure is a stronger disapproval than admonition.

2. Fines

8
Types of Punishments availabe at http://en.wikipedia.org/wiki/Danda (visited on 13th November 2013)

9
Ibid.
The imposition of fine was a common mode of punishment of offences which were not of
a serious nature and especially those involving breach of traffic rules or revenue laws.
This mode of punishment is being extensively used in almost all the sentencing systems
of the world. Fines by way of penalty may be usesd in case of property crimes and minor
offences such as embezzlement, fraud, theft, gambling, loitering, disorderly conduct etc.
Other forms of financial penalty include payment of compensation to the victim of the
crime and payment of costs of the prosecution. Financial penalty may be either in shape
of a fine or compensation of costs. 10

A fine is to be imposed when damage is done to another; the amount of the fine is
dependent on many factors. In the ancient Hindu tradition, it was generally accepted that
if a Kshatriya, a Vaisya, or a Sudra was not able to repay the fine, then the offender was
made to perform manual labor. However, it was expected that Brahmins would pay the
fine in installments. The last resort was to imprison the offender if the offender could not
perform manual labor. Presently, any offender may repay the fine in installments, but
there cannot be more than three planned installments. According to the ancient Indians,
the King must pay a heftier fine for committing a crime. This was thought because he
was the prosecutor of his subjects, and therefore, he was also an example for his subjects.
In accordance with this idea, the King was made to pay 1,000 Karshapanas when a
common man would be fined just one Karshapana. 11

3. Fines for first offenders

There were conflicting views on how fines should be imposed on first-time offenders:
either inflict lenient fines or very heavy fines to prevent the offender from becoming a
recidivist. Over time, it became commonplace to base the amount of the fine on the
nature of the crime. In totality, the nature of the crime, the ability of the offender to pay,
whether or not it was the first offense, and whether it had been an individual or group that
committed the crime were used to determine the amount of the fine. It was thought that

10
Prof. N.V. Paranjape, Criminology & Penology with Victimology, (15th Ed.) pg.266
11
Types of Punishments availabe at http://en.wikipedia.org/wiki/Danda (visited on 13th November 2013)
an individual should have a lesser amount imposed upon him because he did not conspire
to commit the crime with others. 12

4. Fines and caste

The amount of fine varied according to the caste in which one belonged. A Sudra would
pay eight times the amount of the damage, a Vaisya would pay sixteen times the amount,
and a Kshatriya would pay thirty-two times the amount. A Brahmin would generally pay
sixty-four times the amount; however, a Brahmin could be made to pay up to a hundred
times the amount of damage. The multiplier was different for each caste, because the
mental capacity of the offender and the offender's ability to pay the fine were taken into
consideration. 13

5. Fines due to the complainant

"If a blow was struck against men and animals in order to give them pain, the Judge had
to inflict a fine in proportion to the amount of pain caused. If a limb was broken or
wound caused, or blood flowed the assailant had to pay to the sufferer the expenses of the
cure, or the whole (both the usual amercement and the expenses of the cure) as a fine to
the King. He who damaged the goods of another, intentionally or unintentionally had to
give satisfaction to the owner, and pay to the King a fine equal to the damage."[2]:155–156
Here it is demonstrated that the offender must be fined proportionate to damage done, as
well as, repay the victim. There were also heftier fines placed on certain items such as
leather, utensils made from wood or clay, flowers, roots and fruits. The fines placed on
these were five times the value of the item damaged.

6. Imprisonment

The main function of imprisonment, for ancient Indians, was deterrence. Prisons were to
be situated near main roads where the offenders could easily be seen. The Dharmaśāstras
12
Ibid.
13
Types of Punishments availabe at http://en.wikipedia.org/wiki/Danda (visited on 13th November 2013)
do not lay out specific crimes for which imprisonment is required; moreover, the
Dharmaśāstras do not state how long a prisoner should be kept. It was left to the King to
decide who would be imprisoned and for how long. The people who received stolen
property "had to be put in iron fetters, kept on a lean diet, and made to do manual labour
for the King till their death." Brahmins could be sent to prison if one had committed a
crime that required mutilation; however, the Brahmin would not be forced to perform
manual labor. The Brahmin could be made to do menial labors instead such as cleaning
dirty dishes. 14

7. Mutilation

Mutilation was yet another kind of corporal punishment commonly in use in early times.
This mode of punishment was known to have been in practice in ancient India during
Hindu period. One or both the hands of the person who committed theft were chopped off
and if he in sex crime his private part was cut off. 15

Mutilation was also used to deter the offender from repeating the crime. Therefore by
cutting off the limb that was used to commit a crime, for example, stealing cows
belonging to a Brahmin resulted in the offender losing half his feet, the offender would
physically be unable to commit such crimes again. Lastly, there were eight main places of
mutilation: the organ, the belly, the tongue, the two hands, the two feet, the eye, the nose
and the two ears. 16

8. Death

Under the Indian Penal Code, the death penalty is reserved for the gravest offenses. There
are only several crimes, for which inflicting death upon the criminal, is permissible. The
first of which is waging war against the Government of India. All of the cases, in which
one can be sentenced to death, are those in which death has resulted or was likely to
result. For all seven of these cases, there is the alternative of lifetime imprisonment.

14
Types of Punishments availabe at http://en.wikipedia.org/wiki/Danda (visited on 13th November 2013)
15
Prof. N.V. Paranjape, Criminology & Penology with Victimology, (15th Ed.) pg.264
16
Supra 14.
Today, attempts are made to find mitigating and extenuating factors so that the lesser
punishment is inflicted. It was commanded that the King should avoid capital punishment
and instead detain, imprison and repress offenders.

There are some main differences between the ancient and the modern Hindu law with
respect to the death penalty. The first difference is that in classical India the death penalty
was permissible in a very large number of cases. Second, the death penalty was not
prescribed solely in cases in which death resulted or was likely to result. Instead, it was
also used in cases such as adultery and theft. Third, there were numerous ways to inflict
the death penalty, unlike modern India which uses hanging as their only means of
imposing death. Fourth, in modern India the death penalty is an exception whereas in
ancient India it was a rule. Fifth, today the underlying principle seems to be retributive
while in classical India it was a means of deterrence. Lastly, today the law in relation to
the death penalty is the same regardless of caste or color. However in ancient India
Brahmins were never subject to the death penalty. 17

Other forms of punishment 18

Whipping

Whipping was done with a whip, cane, rope, or something similar. Whipping was
performed upon women, children, men of unsound mind, the impoverished, and the sick.
Whipping, and the other forms of corporal punishment, would only be inflicted if the
other three forms of punishment (admonition, censure, and fine) had failed to reform the
offender.

Branding

The convicts were branded as a mask of indelible criminal record leaving visible marks
such as scars in the body parts which are normally noticeable. These permanent indelible

17
Types of Punishments availabe at http://en.wikipedia.org/wiki/Danda (visited on 13th November 2013)
18
Ibid.
marks not only served as a caution for the society to guard against such hardened
criminals but also carried stigma which deterred them from repeating the offence. 19

Flogging
Of all the corporal punishment flogging was one of the most common methods of
punishing criminals. In India, this mode of punishment was recognized under the
Whipping Act, 1864, which was repealed and replaced by similar act in 1909 and finally
abolished in 1955. The English Penal Law abolished whipping even earlier. Penological
researchers have shown that whipping as a method of punishment has hardly proved
effective. Its futility is evinced by the fact that most of the hardened criminals who were
subjected to whipping repeated their crimes. 20

Confiscation of property

In ancient Hindu society, the entire private property of an offender would be confiscated,
as opposed to, present day where the Indian Penal Codes only confiscate the property
used in the commission of the crime. 21

19
Prof. N.V. Paranjape, Criminology & Penology with Victimology, (15th Ed.) pg.265
20
Prof. N.V. Paranjape, Criminology & Penology with Victimology, (15th Ed.) pg.264
21
Types of Punishments availabe at http://en.wikipedia.org/wiki/Danda (visited on 13th November 2013)
 D) - CRITICISM ON MANU’S CRIMINAL JUSTICE

Manusmriti has treated different varnas and gender as unequal for legal purposes. The
Hindu law as codified by Manu was based on the principle of inequality. The punishment
for a particular crime was not same for all varnas. In fact, the punishment varied
depending on the Varna of the victim as well as theVarna of the person committing the
crime. For the same crime, the Brahmin was to be given a mild punishment, whereas
the Shudra was to be given the harshest punishment of all. Similarly, if the victim of a
crime was a Shudra, the punishment was mild, and the punishment was harsh in case the
victim was a Brahmin. For example, if a Brahmin is awarded death sentence, it is
sufficient to shave his head, but Kshatriya, Vaishya and Shudra are to actually die. If
a Kshatriya, a Vaishya, or a Shudra repeatedly gives false evidence in the court, he is to
be punished and expelled from the kingdom, whereas the Brahmin is not to be punished,
he is to be only expelled.
Manu clearly asserts the supremacy of Brahmanism by exempting Brahmins from any
kind of punishment. Manu has identified ten places on which punishment may be
inflicted for three varnas, but exempts Brahmin to depart unhurt from the country. Manu
even goes to the extent of asserting that No greater crime is known on earth than slaying
a Brahmin and a king, therefore, must not even conceive in his mind the thought of
killing a Brahmin. 22
Manu also have widely discriminated women in the administration of justice. Unequal
punishments were to given for women who have committed the crime same as men.
Manu has prescribed death penalty for women guilty of infidelity. Manusmriti prescribes
that the wife who touches, meets, or even talks to a man who is not her husband is to be
fed to animals. Lesbians were cruelly punished by having their fingers chopped off 23

CHAPTER V - CONCLUSION 24

For Nietzsche the human wisdom of Manu far surpassed that of the New Testament; for
the British Raj it seemed to be the perfect tool with which to rule the Hindus. No
understanding of Hindu society is possible without it, and in the richness of its ideas, its
aphoristic profundity, and its relevance to universal human dilemmas. Manu stands
beside the great epics, the Mahãbhãrata and the Rãmãyana. Many commentators find
Manu contradictory and ambiguous and others perceive a clear thematic integrity. Even
after several centuries, it still generates controversy, with Manu's verses being cited in
support of the oppression of women and members of the oppressed castes. The criminal
justice tenets of Manu are remarkable in its vision and application. However the
inequality in rendering justice based on Varna system is a chink in the armour of Manu,
the first lawgiver of India.

To conclude it is worth mentioning what Jawaharlal Nehru (1990) told about religion in
the context of codes and law: “Religions have laid down values and standards and have
pointed out principles for the guidance of human life. But with all the good they have
done, they have also tried to imprison truth in set forms and dogmas, and encouraged

22
Manusmriti Chapter VIII 379-81
23
Id. pg 356-372
24
Manusmriti: A Critique of the Criminal Justice Tenets in the Ancient Indian Hindu Code, available at
www.erces.com/journal/articles/archives/v03/v03_05.htm (visited on 13th November 2013)
ceremonials and practices which soon lose all their original meaning and become mere
routine”.

CHAPTER II - CLASSICAL ISLAMIC APPROACH

A) INTRODUCTION
In a dark period of history when nothing but ruin, squalor and desolation remained of
what wre once great civilizations, when oppression, exploitation and the right of might
prevailed, when human rights had ceased to be recognized, when superstitious and
hedonic cults were followed at many places and man still terrified of the forces of nature
and gave a very low place to himself in the scheme of creation, was born Muhammad, the
Prophet of Islam, on Monday the 12th Rabi-ul-Awwal (corresponding to 29th August, 570
A.D.) in the desert country of Arabia. 25

Since the first half of the nineteenth century, the application of Islamic criminal law has
seen important changes. In most parts of the Islamic world, it was replaced by Western-
type criminal codes. The Ottoman Empire, from the sixteenth to the eighteenth centuries,
had a stable and fairly well-functioning system of criminal justice. The emergence of
Western hegemony in the nineteenth century greatly affected the legal systems in the
Islamic world. In most Islamic countries that came under European colonial rule, Sharia
criminal law was immediately substituted by Western-type penal codes. In some other
countries, however, this was a gradual process: there the final abolition of Islamic
criminal law took place after a period of reform, during which Islamic criminal law

25
Syed K. Rashid, Muslim Law, (3rd Ed), pg. 1, as cited in Athar Husain, The Prophet of Islam, p. 1
continued to be implemented. The processes of reform during this period are of interest
because they show us which precisely were the frictions between systems of penal law
based on the Sharia and legal concepts based on Western law. In India and Nigeria, the
colonial rulers directly interfered with the substance of Islamic criminal law and tried to
mould it into something resembling Western criminal law, before replacing it entirely by
a Western-type penal code. 26

In the classical textbooks of fiqh [Fiqh is an expansion of the code of conduct (Sharia)
expounded in the Quran, often supplemented by tradition (Sunnah) and implemented by
the rulings interpretations of Islamic jurists. Fiqh deals with the observance of rituals,
morals and social legislation in Islam), criminal law is not regarded as a single, unified
branch of the law. It is discussed in three separate chapters 27:

(1) Provisions regarding offences against persons, i.e. homicide and wounding,
subdivided into:
(a) those regarding retaliation (qisas.) and
(b) those regarding financial compensation (diya).

(2) Provisions regarding offences mentioned in the Koran and constituting violations of
the claims of God (h. uq¯uq All¯ah), with mandatory fixed punishments (h.add, pluralh.
ud¯ud ); these offences are:
(a) theft
(b) banditry
(c) unlawful sexual intercourse

26
Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first
Century, Rudolph Peters, available at www.cambridge.org, (visited on 15th November 2013)

27
Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first
Century, Rudolph Peters, available at www.cambridge.org, (visited on 15th November 2013)
(d) the unfounded accusation of unlawful sexual intercourse (slander)
(e) drinking alcohol
(f ) apostasy (according to some schools of jurisprudence).

(3) Provisions concerning discretionary punishment of sinful or forbidden behaviour or of

acts endangering public order or state security.

Categories (1 (a)) and (2) are expounded in the fiqh books with great precision and in
painstaking detail. They may be regarded as constituting Islamic criminal law in its strict
sense, with characteristic features that set it apart from other domains of the law, such as
the absence of liability of minor and insane persons, the strict rules of evidence and the
large part played by the concept of mistake (shubha) as a defence. Category (3) is a
residual but comprehensive one under which the authorities are given wide-ranging
powers. They may punish those who have committed offences mentioned under (1) and
(2) but could not be convicted on procedural grounds (e.g. pardon by the heirs of a victim
of manslaughter, or evidence that does not satisfy the strict requirements), and also those
who have perpetrated acts that are similar to these offences but do not fall under their
strict definitions. Moreover, under this heading the authorities can punish at their
discretion all other forms of sinful or socially and politically undesirable behaviour. The
punitive powers of the authorities are hardly restricted by law and, as a consequence, the
doctrine offers little protection to the accused.

In classical Islamic theory of government the head of state has wide-ranging executive
and judicial powers and may pass legislation within the limits set by the Sharia.
Specialised judicial organs, such as courts staffed by single judges (qadıs) operate on the
basis of delegation by the head of state. The latter, however, retains judicial powers and
may adjudicate certain cases himself or entrust other state agencies with hearing and
deciding them. Moreover, he may issue instructions to the judicial organs with respect to
their jurisdiction. Classical doctrine recognises, apart from the head of state himself, three
law enforcement agencies. The most prominent is the single judge, the qadı, adjudicating
cases on the basis of the fiqh doctrine. However, officials in charge of public security,
such as governors, military commanders and police officers, also have jurisdiction,
especially in criminal cases. But unlike the qadı, they usually deal with crime according
to political expediency rather than on the basis of the legal doctrine. This jurisdiction is
called siyasa. 28

B) PHILOSOPHY OF THE ISLAMIC CONCEPT OF PUNISHMENT 29

Islamic Penal Code sternly prohibits this dual disability for an ex-convict. Once the
official punishment ends, the convict is a dignified citizen of the state enjoying civil
rights in its totality. He need not carry any appendage of conviction with his name. No
hurdles would be placed in his economic or social progress on the basis of his
conviction. A return to the normal life is thus facilitated by the whole society and state
under Shariah. The Prophet strictly admonished his friends from giving any bad names
to Ma'izz Bin Aslami and Ghamiddiya, two sahabi who, out of fear of punishments in
the life hereafter, self-confessed the sin of adultery and wore stoned to death.

It is merely an allegation that harsh Islamic laws would convert the society into a den
of crippled and indolent persons. It is mainly due to the partial understanding of the
Islamic System. Islam solves the social and economic problems of a man on a priority
basis so that one should not be stimulated to commit crimes due to social and
economic injustices. Secondly, the Islamic punitive measures are implemented
through a gradual process. With the advent of the Prophet and his party at Medina, the

28
Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first
Century, Rudolph Peters, available at www.cambridge.org, (visited on 15th November 2013)
29
Philosophy of the Islamic concept of punishment, available at www.studying-islam.org, visited

on 15th November 2013

 Islamic Penal Code was not suddenly clamped over the city. Had it been the 'case the
results would have been the same what critics allege.

(i) PUNISHMENT AND LEGAL PENALTIES 30:

Legal penalties are specified in the Qur’anic Text for: (a) Murder, (b) Theft, (c)
Adultery, (d) Cluminous accusation of adultery, and (e) Offence against public
security. No apology is needed for death being the Islamic penalty for premeditated
murder, its very severity makes the punishment a deterrent, especially if one considers
how simple and expeditious judicial machinery is in Islam and how rapid the
procedure and beneficial its effects for social tranquillity and the protection of human
lives.

Theft, except for the doubtful cases, for example stealing prompted by starvation, its
punishment is amputation of the hand. Stealing is too frequently perpetrated by force
and often entails murder of the victim. One wonders whether, in such case is it is
better to have more pity on the hand of the thief than on the life of the victim.

Punishment for Adultery:

The penalty for adultery for a married person is stoning to death, (to be witnessed by a
crowd of people) but there are very strict injunctions regarding the proof. The offence
must be testified to by four witnesses of unimpeachable veracity. And, if a person
levels a charge of adultery against someone and is unable to bring four such witnesses,
he is liable to be punished with, eighty strokes of the whip. By enjoining such
punishment, Islam has prevented dislocation of the family, and confusion with regard
to paternity. More important it establishes the basis for a peaceful life in human
society. Peace at this price is not at all costly compared to modern measures
introduced and expenses incurred for a peaceful life but it is no where to be found

30
Ibid.
 because the murderers, the thieves, the fornicators and others get away too easily.
They are a constant source of fear and disturbance because of the potential threat to
life and property. The Shariah provision nips the evil in the bud with a firm hand and
puts down its foot strongly to stop mischief and to ensure peace to the society. Islamic
punishments are, therefore, the most suited to bring about peace and peaceful
conditions. Islam deals with the culprit rather heavily in the interest of his would-be
victims. 31

(ii) Hudud Religious Punishments 32

Forte describes the religious Hadd crimes, writing “Islamic law denotes five “Quranic
offenses” which are regarded as offenses directly against Allah and which compel
specific punishment.” These crimes are Unlawful Intercourse (Zina), False Accusation of
Unlawful Intercourse (Kadhf); Drinking of Wine (Shurb); Theft (Sariq), and Highway
Robbery (Qat’ Al-Tariq).

1. Unlawful Intercourse—Zina: This occurs when a person has sexual relations with
anyone not their spouse, nor a concubine (Shari’ah accepts sexual slavery). Technically,
adultery is not a crime as no woman has exclusive rights to her husband, and the husband
has no exclusive bond with his wife, despite this being an offense against Allah. The
crime of Zina can also occur if a man takes and sleeps with a fifth wife while the four
previous yet live, weds a close relative or girl before she undergoes puberty, or commits
necrophilia, writes Forte.

31
Philosophy of the Islamic concept of punishment, available at www.studying-islam.org, visited on 15th
November 2013
32
Crime & Punishment in Islamic Law, Kelly OConnell Sunday, September 26, 2010 available at
http://www.canadafreepress.com/index.php/article/28083, visited on 15th November 2013
Proof of Zina must be provided by four adult Muslim males or a confession. The crime
should have occurred within the last 30 days. On a discrepancy of testimony, of even a
technical irregularity, the four can then receive the punishment for Zina themselves.
Peters explains that if a man has sex with a slave not his, he owes her master a fine. A
woman who reports a rape but cannot prove it occurred via four witnesses can then be
prosecuted for Zina with her unproved accusation acting as a confession.

Zina Penalty:

The punishment here can be stoning, lashing, or both, depending upon the school. A
stoning should only be applied to one convicted of unlawful intercourse, who is mentally
competent, is a free person, and has already experienced lawful sexual relations in a
marriage. For all others, it is either one 100 lashes for a free person, or 50 for a slave. All
homosexual relations fulfill the Zina requirements, although the penalty is simply death
instead of whipping, according to Peters.

2. False Accusation of Unlawful Intercourse—Kadhf: This occurs when a competent

adult slanders another competent adult, who is a free Muslim, with false charges of Zina.
Claiming someone is illegitimate also qualifies. Proof for this occurs via normal Islamic
means, using oaths of witnesses, or by confession. Under a special rule, a husband may
charge his wife with infidelity without risk if he uses the li’an procedure, which Forte
describes as “...if he swears four times by Allah that he is speaking the truth and, at a fifth
oath, calls down a curse upon himself if he is lying.” The woman, as a defense, may
repeat the exact procedure. If either one refuses the li’an, they are considered
guilty, ipso facto, and receive the lashes.

Kadhf Penalty: The punishment for kadhf is 80 lashes for a freeman, or 40 for a slave.

3. Drinking of Wine—Shurb: Alcohol was not originally illegal but became so after
Muhammad was appalled at the drunkenness of Arab society. The law also applies to any
other intoxicant or drug. Proof can be provided by a confession, which can then be
withdrawn at any time without penalty. Or witnesses can attest seeing the accused
drinking, smelled alcohol on his breath, or observed him soused.
Shurb Penalty: The penalty for intoxicant imbibing is 20-40 lashes.

4. Theft—Sariq: This must be a crime of theft involving removal by stealth of an item

owned by another of at least a certain value, kept in a locked area or under guard (hirz),
says Peters. For example, removal of a gold coin stored in an animal stable would not
qualify. This crime should be prosecuted by the government.

Sariq Penalty: Amputation of the right hand, as based upon Qur’an 5:38; although the
Shiites allow just four fingers of the hand amputated, according to Peters. A second, third
and fourth conviction can remove all such appendages.

5. Highway Robbery—Qat’ Al-Tariq: The Arabs considered this the most serious kind
of crime as it threatens the calm and order of all society, according to Forte. Two types of
evil are covered here. The first is robbing travelers from distant places; whereas the
second is armed assault into a private home. Even non-Muslims are protected under this
law. There must be at least a holdup which occurs outside the city for the penalty to apply
to banditry, states Peters. The perpetrator must be of superior force to the victim, and so
women do not qualify.

Qat’ Al-Tariq Penalty: The first conviction for this offense merits the amputation of the
right hand and left foot of the wrong-doer, although some schools allow a simple
deportation if no harm occurs. The second results in amputation of the left hand and right
foot.

(iii) Other Shari’ah Crimes, Punishment, & Blood Money 33

A. Ta’zir Penalties

Discretionary penalties, or Ta’zir, are punishments delivered at the qadi’s subjective

decision. The purpose is to punish acts against man and God, and sometimes includes
reparation and repentance, writes Forte. These punishment vary in severity:

33
Crime & Punishment in Islamic Law, Kelly OConnell Sunday, September 26, 2010 available at
http://www.canadafreepress.com/index.php/article/28083
 1. Private admonition to the guilty party, sometimes by letter;
2. Public reprimand in court;
3. Public proclamation of the offender’s guilt;
4. Suspended sentence;
5. Banishment;
6. Flogging;
7. Imprisonment;
8. Death.

Forte says many crimes are covered by Ta’zir that for some reason have
eluded Haddpenalties, such as apostasy (ridda —although some schools consider
this hadd), wine selling, homosexual activity, bodily harm or murder, bestiality, perjury,
slander and usury.

B. Fines & Blood Money

Fines are paid to the state, whereas blood-money (diya) goes to a victim or kin, based
upon his blood-status. Bloodprice is the victim’s worth, only calculable against that of the
accused, which controls the punishment. A person cannot receive retaliation for killing a
person of a lower bloodprice. For example, a Muslim cannot be executed for murdering a
slave or member of the protected classes, being Christians or Jews, deemed dhimmis, i.e.
the People of the Book (Bible).

C. Public Scorn, Imprisonment & Banishment

A common punishment is public exposure to scorn (tashir). Achieved by shaving the

culprit’s head, or covering his face with soot (especially for false witnesses) and parading
him sitting backwards on an donkey, through the community, with a town-crier
announcing his sins. Banishment (nafy, taghrib) is associated with two crimes—simple
banditry and illegal sex. If a woman is banished for being sexually immoral, a male
relative must travel with her to make sure she stays chaste. Imprisonment (habs) is not
normally used for penal law, but as a means to encourage debtors to pay.
D. Retaliation

Retaliation for injuries (qisas ma dun al-nafs) comes as Lex Talionis, eye-for-eye
punishment in the form of amputations, blinding, and infliction of wounds the victim
received. A recent Saudi case involved a man sentenced to judicial paralysis for severing
the spinal cord of another. This should not be done till the victim has healed, in case he
dies.

E. Theft & Amputation

Muhammad probably borrowed amputation (qat) for theft from the pagan Quaraysh tribe,
who inflicted this punishment on rival tribesmen caught stealing, says Forte. While
Muslim jurists claim amputation is to prevent recidivism, it more likely originated as
judicial revenge. The hand is removed at the wrist, the stump cauterized in boiling oil, at
the criminal’s expense, and the hand can be hung around the thief’s neck for three days.
Cross-amputation (al-qat min-khilaf) is a punishment for brigands, ie highway robbers.

F. Flogging (Jald)

Flogging by leather whip is a very common punishment under the Shari’ah. The
executioner administers this penalty, but should not raise the whip arm above the
shoulder. The more serious a crime, the harder the executioner should flog the criminal.
For example, one convicted of illegal sex should be beaten more severely than one guilty
of drinking alcohol. Men are whipped standing, women seated. Men are stripped to the
waist, while women are allowed to keep on clothes. As advised in Qur’an24:2, the
punishment should be public. The blows are to be spread over the body, except for
dangerous places, like the head or genitals, as the purpose for whipping is not death.

G. Executions: Beheading, Stoning & Other Means

There are many ways to execute a criminal under Shari’ah. Typically, the mode of
execution is beheading by sword, as done at famed Chop-Chop Square in Riyadh, Saudi
Arabia. But the crime defines the manner. For example, homosexuals are executed in
typically dramatic fashion, by stoning, beheading, thrown from a high wall or building,
hanging, immolated by fire, or buried alive (despite male homosexuality reportedly being
rampant in the Middle East, according to Raphael Patai’s Arab Mind).

Death by Stoning (Rajm), or lapidation, is delivered by a crowd with the ultimate intent
of killing the victim, writes Peters. The stones used should neither be too large, which
would kill the criminal too quickly, nor too small, which would delay the job. The proper
size is a stone which fills the hand. Women are to be dug into the earth up to their waists
before the event. If the conviction is based upon accusations, the accusers are the first to
throw. If the conviction is based upon a confession, the state representative is first to toss.

For Highway Robbery (Qat’ Al-Tariq), if a killing resulted during an attempted robbery,
the punishment is beheading by sword. If a murder occurred during an actual theft, the
punishment is execution by crucifixion (salb), the body left dying three days. Unlike a
normal murder, the family of the victim cannot choose blood-money (diya) instead of
execution.

Apostates may renounce Islam by word or deed, including rejecting axiomatic articles of
faith, like denying Muhammad’s mission, fasting, or disrespecting the Qur’an. The
apostate (ridda) is given three days to reflect, then put to death. Some schools only
execute men, whereas the women are kept alive but flogged during the hours of prayer,
according to Peters. Frank Vogel, in Islamic Law & Legal System: Studies of Saudi
Arabia states that apostates are beheaded in Saudi Arabia before huge crowds on Friday
afternoons, in the public square, directly after prayer time has ceased.

(iv) REPENTANCE AND PUNISHMENT 34

Punishment in Islam has nothing to do with the notions of atonement, expiation or

wiping away of sin. A crime is essentially an act of injustice to one’s own self, a sin

34
Philosophy of the Islamic concept of punishment, available at www.studying-islam.org, (visited on 15th
November 2013)
against God. It can be wiped away only by God, and that He does when a person turns
to Him, truly repentant and seeking forgiveness. Between man and God, therefore, the
total emphasis is on repentance, and punishment can be no substitute for it. But a crime
is also an act against the social order and in this sphere mere repentance cannot be a
substitute for punishment which is a means of protecting and strengthening the society.

(v) FUNCTIONAL NATURE 35

Penalties in Islam are more of a functional nature, to regulate and deter. God has laid
down a body of mutual rights and obligations which are the true embodiment of
justice. He has also laid down certain bounds and limits to be observed and maintained
for this very purpose. If men and nations desire to move in peace and safety on the
highways of life, they must stick to the ‘traffic lanes’ demarcated for them and
observe all the ‘signposts’ erected along their routes. If they do not, they not only put
themselves in danger, but endanger others. They therefore naturally make themselves
liable to penalties –not in vengeful retribution – but to regulate the orderly exchanges
in man’s life in accordance with justice.

It is a significant contribution of Islam that these penalties are called hudud

(boundaries) and not punishments: they are liabilities incurred as a result of crossing
the boundary set by God. An important consequence of these hudud having been laid
down by God, and not by man, is that it is beyond human authority to reduce or
supercede them out of a sense of mercy greater than that of God; nor can a tyrant or
autocrat add to them out of a greater sense of strict justice. For no one can be more
merciful or wiser or more just than God himself.

Another important function which these punishments serve is educative, and thus
preventive and deterrent. The Qu’ran alludes to this aspect when it describes them ‘as
exemplary punishment from God’ (al-Ma’ida 5:38). Punishments are thus designed to
keep the sense of justice alive in the community by a public repudiation of the acts
violating the limits set by God. They are expected to build up in the society a deep

35
Ibid.
 feeling of abhorrence for transgression against fellow human beings, and therefore
against God - a transgression which, according to the Qur’an, is the root cause of all
disorders and corruption in human life. 36

C) CONCLUSION

Even the simplest person can deduce that classical Islamic Shari’ah law cannot possibly
fit into the modern world anywhere on the globe. But it is especially impossible to apply
this system in America, the land that created modern religious freedom, and let millions
escape oppression. Most alarming, the Islamic law does not change to fit into other
cultures, but is always offered as a “perfect gift,” delivered at the edge of a sword.

The Historical review of the Islamic penal system showed that despite the change
imposed on the Islamic society to adopt more westernized penal system, the inherited
values for punishment, which is built in the Islamic law, reject the principle of physical
confinement and imprisonment as the main punishment And or rehabilitation approach.
This resulted in the dismissal of prison buildings as a rehabilitation institute. People in
Islamic societies still believe in the values of Islamic penal theories. This is apparent in
their belief in the differentiation between the determination (Hudud and Quesas) and
the discretionary crimes (Ta 'azir).

36
Philosophy of the Islamic concept of punishment, available at www.studying-islam.org, (visited on 15th
November 2013)
 CHAPTER III - FUTURE VISION : HINDU AND ISLAMIC LAWS

Anticipating the future is an uncertain but nevertheless necessary activity, since the
direction and pace of change is never inevitable but rather a consequence of choices and
decisions that are made in the present. In respect to imprisonment in the United Arab
Emirates a reappraisal of possible future options seems to be particularly appropriate
since even in the last decade the nature of imprisonment appears to have undergone a
relatively radical transformation in terms of its functions, organisation, and the size and
make up of prison populations.

The real task, which confronts contemporary Islamic jurists, beyond their immediate aim
of adopting traditional Islamic law to modern conditions, is to evaluate modem social life
and modem legal thought from an Islamic angle to determine which elements in
traditional Islamic doctrine represent essential Islamic standards.

Attitude towards increasing comfort in domestic layout facilities and rehabilitative

programs, which has considerable cost to the society, is an interesting model. This model
should be carefully examined to provide an appropriate balance between punishment,
social values, and cost to the society.
Speaking of the hindu laws, the Manusmriti represented an archaic and outdated social
code. It fit in very well with the British colonial project. It was also convenient in
providing ideological cover for repressive legal steps the British wanted to take anyway.
For instance, it did not hurt that the Manusmriti advocated laws that legitimised gender
discrimination or attacked same-gender relationships. Such attitudes were then equally
prevalent in Europe and it made it easier to disenfranchise women in matters of
inheritance or introduce legal injunctions against same-gender sexual relations (as was
the case in Britain during the 18th Century).

However, in the post independent India, under the leadership of B.R. Ambedkar the
Indian constitution was made and he took efforts to see that no discrimination creeps in to
the constitution. The constitution of India (1950) was a remarkable achievement in the
elimination of discrimination on the lines of caste in the administration of justice. The
Constitution of India has sought to create a more equal and just rule of law between
individuals and groups than what existed under traditional authorities such
as Manusmriti. The Indian Constitution strives to eliminate the humiliation that people
suffered under the traditional social system of caste and patriarchy, thus creating new
ground for realization of human dignity.

The caste and gender discrimination continue to cause grave harm, that Adivasis
and Dalits still face all manner of trials and tribulations, and all such social inequities
need to be fought with continued vigour.
 BIBLIOGRAPHY
Books :
1. Prof. N.V. Paranjape, Criminology & Penology with Victimology, (15th
Ed.), Central Law Publications, Allahabad.
2. Syed K. Rashid, Muslim Law, (3rd Ed), Eastern Book Company.
3. Mulla’s Principles of Mahomedan Law, (18th Ed.), by M. Hidayatullah &
Arshad Hidayatullah, Bombay N.M. Tripathi Pvt Ltd.
Articles :
1. Santhosh Abraham, “Classical Legal Traditions: Some
Historiographical Interpretations”, Journal of History and Social
Science,Vol IV, Issue I, Jan-June 2013
2. Crime and Punishment in Islamic Law: Theory and Practice from
the Sixteenth to the Twenty-first Century, Rudolph Peters,
available at www.cambridge.org, (visited on 15th November 2013)
3. Crime & Punishment in Islamic Law, Kelly OConnell Sunday,
September 26, 2010 available at
http://www.canadafreepress.com/index.php/article/28083
4. Manusmriti: A Critique of the Criminal Justice Tenets in the
Ancient Indian Hindu Code, available at
 www.erces.com/journal/articles/archives/v03/v03_05.htm (visited
on 13th November 2013)

Websites visited :
1. http://en.wikipedia.org/wiki/Danda (visited on 13th
November 2013)
2. www.erces.com/journal/articles/archives/v03/v03_05.htm
(visited on 13th November 2013)
3. www.cambridge.org, (visited on 15th November 2013)
4. www.studying-islam.org, visited on 15th November 2013
5. http://www.canadafreepress.com/index.php/article/28083,
visited on 15th November 2013