By Dr. Rajkumar Singh 6 September 2019
The establishment of the Muslim rule in India opened a new chapter in its judicial history. The Muslim conquerors brought with them a new religion, a new civilization and a new social system.
The ideal of justice under Islam was one of the highest in the middle ages. The Prophet himself set the standards and said in the Quran, ‘Justice is the balance of God upon earth in which things when weighed are not by a practice less or more. And He appointed the balance that he should not transgress in respect to the balance; wherefore observe a just weight and diminish not the balance.’
This high tradition reached its zenith under the first four Caliphs. The first Qazi was appointed by the Caliph Umar who enunciated the principle that the law was supreme and that the judge must never be subservient to the ruler.
The Muslim kings in India brought with them these high ideals, and individual Sultans had very high ideals of justice. But unfortunately the administration of justice under the Sultans did not work well. The reason was that the outstanding feature of the entire Sultanate period was confusion and chaos. No Sultan felt secure for a long time. One dynasty was replaced by another within a comparatively short period and the manner of replacement was violent. Consequently the quality of justice depended very much on the personality of the sovereign.
Judicial administration of Mughals
Under the Mughal Empire the country had an efficient system of government with the result that the system of justice took shape. In this period the unit of judicial administration was under Qazi; an office which was borrowed from the Caliphate.
Every provincial capital had its Qazi and at the head of judicial administration was the Supreme Qazi of the empire. In addition, every town and every village large enough to be classed as Qasba had its own Qazi.
In theory, a Qazi had to be ‘a Muslim Scholar of blameless life, thoroughly conversant with the prescriptions of the sacred law. On the appointment of a Qazi, he was charged by the Imperial Diwan in the words like; ‘Be just’, ‘be honest’, ‘be impartial’. Hold trials in the presence of the parties and at the court house and the seat of Government. Do not accept presents from the people of the place where you serve, not attend entertainments given by anybody and everybody. Write your decrees, sale deeds, mortgage bonds and other legal documents very carefully, so that learned men may not pick holes in them and bring you to shame. Know poverty to be your glory’.
But due to lack of supervision and absence of good tradition, these noble ideals were not observed. In spite of this there is overwhelming evidence that all the Emperors from Akbar to Aurangzeb took their judicial function seriously and discharged their duties. Jahangir made a great show of it and his Golden Chain has become famous in history.
Unlike the British the Mughals failed to make a long-term impact on the existing judicial system of India. No Indian Emperors or Qazi’s decision was ever considered authoritative to lay down a legal principle to elucidate any obscurity in the Quran or supplement the Quranic law by following the line of its obvious intention in respect of cases not explicitly provided for by it.
Hence, it became necessary for Indian Qazis to have at their elbow a digest of Islamic laws and precedents compiled from the accepted Arabic writers. Muslim law in India was, therefore, incapable of growth and change, except so far as it reflected changes of juristic thought in Arabia or Egypt. However, the Mughal judicial system has left its imprint on the present system and a good part of our legal terminology is borrowed from it. Our civil courts of first instance and called Munsifs, the plaintiff and the defendants are termed Muddai and Muddaliya and scores of other legal terms remind us of the days. After the conquest of Bengal by the British the process of replacement of the Mughal system of justice by the British began but it took a long time to be established.
Periods of Mughal rulers
The present judicial system of India is at large, a part of the inheritance India received from the British after more than 200 years of their colonial rule and the same is obvious from the many similarities the Indian legal system shares with the English legal system.
Earlier Muslims came to India when they conquered Sindh in 712 A.D. The Delhi Sultanate came into existence in 1206, when Qutubuddin Aibak of the Slave dynasty became the first independent Sultan of Delhi. From 1206 to 1526 five different dynasties- the Slaves, the Khaljis, the Thughluqs, the Sayyids and the Lodhis ruled India. The Mughal dynasty was established in 1526 and continued till 1857, it was in decay since the death of Aurangzeb Alamghir in 1707.
The foundations of the British Empire in India was laid down by East India Company which was organised to further British interest in overseas countries. The representative of the Company arrived in India in 1604 and by the 1661 the Company had factories in Surat, Madras and Bombay.
The Company delivered justice arbitrarily which could be called as ‘trader’s justice’ because the Company’s officials were all traders and had no knowledge of law. However, after its coming the East India Company slowly and gradually started interfering in the local justice system by acquiring revenue collection of 38 villages in 1717 near Calcutta.
Soon the Company also acquired the administration of justice in the areas under its control and the role of Muslim qazis and judges was over. Company’s officials became judges without any formal training and at the time the Privy Council was born as the highest court of appeal.
Coming of Britishers
Since the establishment of East India Company was made to promote British interests in India, the expansion of Company’s judicial jurisdiction and enactment of different judicial acts took place simultaneously. Further after the battle of Plassey, the Company installed Mir Zafar as the Nawab of Calcutta who ceded the Zamindari of the 24 Parganas to the Company which now controlled 800 square miles of area called ‘moffussil’.
The Company provided the adalat system for the administration of justice in the moffussil. The 1772 plan provided for a moffussil Diwani Adalat in each district with collector as judge to decide civil cases.
For Muslims the court was to apply the Quran while for Hindus it was applying Shaster. The Regulations of 1793 referred to Hindu law and Mohammedan laws instead of Quran and Shaster. In case of Muslim cases the collector was to be advised by the Qazi while in case of Hindus, by a Pandit.
In an important decision on December 3, 1790 the Criminal justice system was taken from the Muslim Qazis, Muftis and Maulvis and was given in the hands of the Company’s English servants. The Regulation Act of 1773 authorised the Supreme Court in Calcutta to enrol English, Irish and Scottish attorney at law.
Likewise in 1793 Cornwallis created a regular profession authorising the Sadar Diwani Adalat to enrol pleaders or vakeels, for both Hindus and Muslims for all Company’s courts. The 1857 war of independence changed the fate of India. The Bill of 1858 gave all territories in the possession or under the government of the East India Company to the Crown. However, before the take-over by the Crown the East India Company had done the groundwork for the colonisation of the subcontinent.
The British rulers changed the whole administration of the country, especially the law and justice. The British East India Company established a system of courts in each of the three Presidencies. The types of courts and their jurisdiction varied from Presidency to Presidency, until the Crown replaced the Company’s administration and greater uniformity in the entire judicial structure became possible.