Article by Prof. (Dr.) Surinder Singh
The two major states of the medieval times, the Delhi sultanate and mughal empire, developed elaborate structures of administration. Apart from collecting land tax from a widely scattered peasantry, they paid a fair amount of attention of the administration of justice. The modern literature has concentrated on the functions of various judicial officers and a wide range of cases that culminated in appropriated verdicts. However, the existing literature has paid little attention to the compendiums of rulings, both officials and unofficial, that were produced from the mid thirteenth century to the establishment of the arrival of British colonialism. Our study seeks to examine the content of a few important legal texts, with the object of deepening our understanding of law and justice in the premodern times.
During the second half of the fourteenth century, an anonymous scholar edited the text of fatawa-i-firoz shahi which had been originally compiled by sadruddin yaqub muzaffar kuhrami. It is a collection of legal opinions of eminent jurists and these are arranged in chapters according to the subject. Employing both Persians and Arabic, it adopts a question- answer pattern. Though the compiler was bound to include the existing legal opinions, yet his work takes into consideration the contemporary political, social, and economic circumstances. It deals with the powers of the sultan, the rights of the rebels against him and the principles of collecting land revenue. Apart from the issue of partnership in trade and transfer of money, it touches upon the matter of fixing market prices by the ruler. More importantly, it recognizes the presence of non – Muslims and, in particular, examines their relations with the Muslims in different roles and positions. It gives equal rights to the non – Muslims, paying due regard to the to their concerns and showing no discrimination on any ground whatsoever. On the one hand, it approves the social intercourse between Hindus and Muslims in the ordinary activities of life. On the other hand, it throws light on the rights of Hindus vis-à-vis Muslims regarding payment of loans and ownership of property. What is rather crucial, it allows freedom to the Hindus in the practice of their religious rites and social customs. On the issue of the rights of the Hindus, this text differs from the injunctions issued by several contemporary authorities.
During the mughal period (16th to 18th century) the ownership of land became a contentious issue, as it was debated among several stake holders. We came across two legal texts that focused on this important question. During the second half of the sixteenth century, sheikh jalaluddin thanesari wrote the risala tahqiq-i-arazi-i-hind, which sought to plead the cause of the holders of land grants (madad-i-maash). It is true that these grants permitted the beneficiary to enjoy only the land revenue of particular tracts expressed in units of area (bighas), but did not give him the right of ownership of land, nor its transfer or sale. But the learned scholar makes a spirited defense of the land grantees, claiming the complete right of ownership for them. He builds his case on the ground that land under reference, being waste land and ownerless [property, belonged to the public treasury (bait-ul-mal) which was in the hands of the ruler who, in turn, could assign it to anyone. The second text, risala ahkam-i-arazi-hind which was written by qazi Muhammad ala i9n 1745 ad, enters the raging debate on the ownership of land in mughal India. In his view, the ruler cannot be accepted as the owner of land, as the land revenue claimed by him is larger than the permissible limits. Hence the land belongs to the public treasury (bait-ul-mal). This particular stance deviates from the official position of the mughal state, which is explicitly articulated in chronicles, documents and orders.
Aurangzeb sponsored the compilation of fatawa-i-alamgiri, which was a monumental encyclopedia of legal rulings. It was completed over a period of eight years (1667-1675). Sheikh nizam burhanpuri, its chief editor, was supported b nearly fifty compilers. Five sections of the work were placed under one editor, who was assisted by a number of junior assistants in accordance with their specializations in the domain of law. It aimed at patronizing the learned theologians and helping the qazis to deliver better judgments. It was modeled on the pattern of the classic treatise Hidaya as well as those that were produced in India during the previous four centuries. The work under reference comprises more than sixty sections which deal with laws on religious rites, economic transactions, land rights, and treatment of slaves. It also embraces matters relating to judicial proceedings, legal devices and inheritance. Under each topic, it describes cases from standard works of jurisprudence (fiqh), each judgment being followed with reasoning from the relevant works. The source of each case is mentioned, so that a total of nearly 124 sources have been counted. In a section entitled, adab-i-qazi, it lays down his qualifications and responsibilities, with reference to his abilities as a mufti and mujtahid also. It also prescribes the procedure expected to be followed by the qazi with reference to the traditional ingredients of the Muslim law (shariat). Y=the compilation was consulted in the different parts of the Islamic world, where it became popular as fatawa-i-hindiyya. In India it was translated into Persian and Urdu, while N.B.E. Baille (d. 1883) translated its portions into English for use in the courts if the east India company.