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HISTORY PROJECT (V TRIMESTER)

HISTORY OF LEGAL INSTITUTIONS UNDER THE


MUGHAL EMPIRE

SUBMITTED BY,
NITISH SEBASTIAN JOSHY
2011 B.A. LL.B 80
A-1128

SUBMITTED TO,
PROF. (Dr) UDAY PRATAP SINGH

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Contents
INTRODUCTION......................................................................................................................3
A BRIEF INTRODUCTION TO ISLAMIC LAW....................................................................4
LAW AND THE MUGHAL EMPIRE.......................................................................................5
ADMINISTRATION OF JUSTICE...........................................................................................7
CONSTITUTION OF COURTS............................................................................................7
THE IMPERIAL CAPITAL...............................................................................................7
PROVINCES......................................................................................................................8
DISTRICTS........................................................................................................................8
PARGANAH......................................................................................................................9
VILLAGES........................................................................................................................9
JUDICIAL PROCEDURE.......................................................................................................10
APPOINTMENT OF JUDGES................................................................................................11
CRIMES AND PUNISHMENT...............................................................................................11
CONCLUSION........................................................................................................................13
BIBLIOGRAPHY....................................................................................................................14

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INTRODUCTION
With the advent of Muslim rulers coming to India, Islamic law was introduced in North India.
However Islamic law was first introduced in India, when Arab merchants and traders settled
in the Malabar Coast in 7th century A.D. They did not integrate any further until the Delhi
sultanate arrived in 12th century. They were then overthrown by the Mughals in the 1526.
The Mughal Empire ruled from about 1526 to 1757 (though it lingered for another century).
The Mughal emperors were Muslims and direct descendants of Genghis Khan through
Chagatai Khan and Timur. At the height of their power in the late 17th and early 18th
centuries, they controlled most of the subcontinentextending from Bengal in the east to
Balochistan in the west, Kashmir in the north to the Kaveri basin in the south. Its population
at that time has been estimated at between 110 and 150 million, over a territory of more than
3.2 million square kilometres (1.2 million square miles).
The justice administration under The Mughals was quite impressive for their time. They gave
paramount importance to law. This can be seen from the fact that the emperors themselves
spent a lot of time hearing to the various issues of the people. Some of the laws were not
exactly delivering justice, but the point is that there was a law and the subjects in the empire
were expected to follow them.
The judicial institutions under the Mughals were very organized. There were proper courts
and officials put in place so that justice was delivered. There were different tiers of courts
which hear the cases. There were also a system for appeals and lawyers also played an active
part in the judicial system.
Mughals were the ones who introduced the Muslim law of crimes. Hindus were also allowed
to follow their own personal laws, to maintain their institutions and their forms of worship.
However the public laws were largely against them, except for the time under the rule of
Akbar. Under Aurangzeb, the Sharia law was also codified.
This project attempts to show what the laws that were prevalent during the Mughal period,
the judicial organization and the punishments that were administered.

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A BRIEF INTRODUCTION TO ISLAMIC LAW


The Islamic society was based on Shar. Everyone in the society was under this Islamic law
including the rulers and its subjects. They held it supreme and there were instances where the
monarch themselves were sued. It is important to know the Islamic law as it was the state
law.
Islamic law is divided into two: Shara and Urfi.
Sharia is based on principles based on the principles enumerated in the Quran. The Shara has
three main elements. They are the Quran, Hadis and Ijma.
The Quran is the main source of Islamic law and has an overriding effect on other elements.
The Quran, however is religious text, therefore it does not specify any laws. It just says what
is right and what is wrong under Islam. Also as the society grew, and social interactions
became more complex, it became difficult to apply the Quran to such interactions.
Muslims regard Prophet Mohammed as the perfect man. Hence what he said, did, acted, or
did not oppose are considered to be of vital importance and required a special sanctity. 1 A lot
of research was done and scholars agreed on traditions and practices which were considered
lawful. This is called Sunnah or Hadis.
Ijma is the consensus of opinion among reputed Islamic theologians. Therefore if a judge was
to differ from these opinions he has to give strong reasons. Yet another source for Islamic
Law is the Qiyas. This was the analogous inferences based on the Quran and Hadis.
Among these, the Quran and Hadis are the most important and is described as the basis of
basis of all Islamic jurisprudence.
Urfi law refers to the different rules and enactments introduced by the different rulers of
Islamic states. A judge was allowed discretion in applying Urfi law but not in Shara law. The
former was related to matters like trade, property, war while the latter was related to matters
like Marriage, succession, Heritance etc.
Based on the different interpretations 4 main schools of Islamic law evolved. They are
Hannafi, Mailiki, Hanbali and Shafi.
1 History for India (Part-1) by H.V. Sreenivasa Murthy
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LAW AND THE MUGHAL EMPIRE


During the Mughal period, religious tolerance was mostly followed. But the level of tolerance
varied from emperor to emperor. The Maliki, Hanbali and the Shafi schools of Islam says that
under a Muslim state, all must be Muslims. If not, they are to be either converted or
executed.2 The Mughals followed the Hannafi School which were followed by the Delhi
Sultanates. Muhammad Bin Qasim awarded the status of Zimmis to the non-Islam person,
which was previously given to only Jews and Christians. The Zimmis accepted the authority
of their Islamic authority even though they did not support them actively. They were required
to pay a tax exclusive to them called the jizya tax. This tax was collected along with the other
usual taxes. They could exempt from this tax by joining the army or the civil service. This
was followed by the Mughal rulers except during the reign of Akbar where he abolished this
tax. He brought in other favourable changes under his reign including changing the state
religion from Islam to Din-e Ilahi which be explained in detail in the succeeding sections.
Akbar changed the state religion from Islam to Din-i-ilahi. During his reign, religious
liberalism reached its peak. Akbar's government machine included many Hindus in positions
of responsibility - the governed were allowed to take a major part in the governing. He
abolished the jizya tax. He permitted building of temples and other religious structures. He
recognized all religions and gave them equal status. By another ordinance, those who were
forcibly converted to Islam were allowed to go back to their previous religion. This was
extended to Muslim women who were forcibly married to Muslims. He also repealed the law
imposing death for criticising Islam or Prophet Muhammad. He also ordered that a Muslim
can only take a second wife only if the first wife is barren or if she ceases to have menses. He
imposed marriageable age for girls and boys at 14 and 16 respectively. He prohibited the
circumcision of boys under the age of 12 and left to the option of the boy. These laws were
enforced by the Kotwals in the cities. Voluntary observation of Sati was allowed. Legal
disabilities on Hindus were removed. However these changes did not last after Akbars death.
Islamic law was the official religion of the state (except during the reign of Akbar). However
Islamic law was not imposed on the on all. Zimmis (non-muslims) were allowed to follow
their own personal laws. Mughal emperors followed the policy of religious toleration. For
instance; when Babur the first Mughal Emperor took power over Delhi, through his first act
2 From Mongols to Mughals: Religious Views in India 9th -18th century by Nicholas F. Gier
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prohibited the killing of cows which was offensive to the Hindus.3 Hindu Temples were
allowed to be built with the emperors permission. However Aurangzeb, the last emperor of
the Great period of the Mughal period, ended the policy of religious tolerance. He was the
first Muslim ruler to apply Muslim law to all the subjects of a Muslim state. He applied
Sharia law even to Hindus. He codified the Hannafi laws and incorporated into one text
called the Fatawa-e-Alamgiri. He ordered the punishment of Muslims who dress like nonMuslims. He ordered the demolition of temples. As result temples like the Kashi Vishwanath
temple, Kesava Deo temple and Somnath temple. He built mosques in the place of temples.

3 http://www.bbc.co.uk/religion/religions/islam/history/mughalempire_1.shtml
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ADMINISTRATION OF JUSTICE
CONSTITUTION OF COURTS
During the Mughal period, the emperor was considered the fountain of Justice. The Emperor
was created a separate department of Justice called the Mahakma-e-Adalat to regulate and see
that the justice was administered properly. On the basis of the administrative divisions, at the
official headquarters in each Province, District, Parganah , Village, separate courts were
established to decide civil, criminal and revenue cases. At Delhi, the Imperial capital of India,
highest courts of the Empire empowered with original and the appellate jurisdictions were
established. A systematic gradation of courts, with well defined powers of the presiding
Judges, existed all over the empire where there were considerable Muslim population.
THE IMPERIAL CAPITAL
Three important courts were established at the imperial capital of Delhi. They were the
Emperors court, the Chief Court of the Empire and the Chief Revenue Court.
The Emperors court, presided by the Emperor, was the highest court of the empire. The court
had jurisdiction to hear original civil and criminal cases. Generally the Emperor was assisted
by a Darogha-e-Adalat, a Mufti and a Mir Adl. In criminal cases the Mohtasibe-Mumalik or
the Chief Mohtasib who is equivalent to the Attorney General of India of today, also assisted
the Emperor. In order to hear appeals, the Emperor presided over a Bench consisting of the
Chief Justice (Qazi-ul-Quzat). The public were allowed to make representations and appeals
to the Emperors court in order to obtain his impartial judgement.
The Chief Court of the Empire was the second most important court at Delhi. It was presided
over by Qazi-ul-Quzat. The court had the power to try original, civil and criminal cases, to
hear appeals from the provincial courts. It was also required to supervise the working of the
provincial courts. It was also required to supervise the functioning of the provincial courts. In
administering justice, The Qazi-ul-Quzat was assisted by one or two Qazis of great eminence,
who were attached to his court. Four officers attached to court were- Daroga-e-Adalat, Mufti,
Mohtasib and Mir Adl. The Mufti attached to the Chief Justices court was known as Mufti-eAzam.

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The Qazi-ul-Qazat was appointed by the Emperor. He was considered the next important
person after the Emperor. Sometimes a Chief Provincial Qazi was promoted to the post of the
Chief Justice.
The Chief Revenue Court was the highest court of appeal to decide revenue cases. The court
was presided by the Diwan-e-Ala.
There were two other lower courts in Delhi to decide local cases. The court of Qazi, who
enjoyed the status of Chief Qazi of a province, decided local civil and criminal cases. The
court of Qazi-e-Askar was specially constituted to decide cases of the military area in the
capital. The court moved from place to place with the troops.
PROVINCES
In each province (Subah) there were three courts. They were Governors court, the Chief
Appellate Court and the Chief Revenue Court.
The governors court or (Adalat-e-Nazim-e-Subah) had jurisdiction in all cases arising in
provincial capital. It was presided over by the Governor(Nazim-e-Subah). Two officers
attached to this court were a mufti and a Darogha-e-Adalat.
The provincial Chief Appellate court was presided over by the Qazi-e-Subah. The court had
original civil and criminal jurisdiction. It was the chief court of Appeal in the provinces for
all appeals from the District courts. The Qazi-e-Subah had powers similar to that of the
governor. There were seven officials attached to this court were Mufti, Mohtasib, Darogha eAdalat-e-Subah, Mir Adil, Pandit, Sawaneh Nawis and Waqae Nigar.
Provincial Chief revenue Court was presided over by Diwan-e-Subah. The court was granted
original and appelleate jurisdiction in revenue cases. An appeal from this court lay to the
Diwan-e-Ala at the Imperial capital. Four officials were attached to this court. They werePeshkar, Darogha, Treasurer and the Cashier.
DISTRICTS
There were four courts in each district. They are the Chief Civil and Criminal Court of the
District, Faujdari Adalat, Kotwali, Amalguzari Kachehri.
The Chief Civil and Criminal Court of the district was presided over by the Qazi-e-Sarkar.
The court had original and appellate jurisdiction in all civil and criminal cases and in
religious matters. Qazi-e-Sarkar was the principal judicial officer in a district. He was also
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known as Shariyat Panah. Six officers attached to this court were-Darogha-i-Adalat, Mir
Adil, Mufti, Pandit or Shashtri, Mohtasib and Vakil-e-Sharai. Appeals from this court lay to
Qazi-e-Subah.
Faujdari Adalat dealt with criminal cases concerning riots and state security. It was presided
by the Faujdar. Appeals from this court lay with the governors court.
Kotwali Court deceided cases similar to those under modern Police Acts and had appellate
jurisdiction. It was presided by Kotwal-e-Shahar. Appeals from this court lay to the District
Qazi.
The Amalguzari Kachehri decided all revenue cases. Amalguzar presided over this court. An
appeal from this court lay to the Provincial Diwan.
PARGANAH
In each Parganah, there were three courts. They were Adalat-e-parganah, Kotwali and
Kachehri.
Adalat-e-Parganah was presided over by Qazi-e-Parganah. The court had jurisdiction over all
civil and criminal cases arising within its jurisdiction. It included all those villages under
Parganah. This court had no appellate jurisdiction as no other lower courts are present.
Appeals from this court lay with the court of district Qazi. Four officers attached to this court
are Mufti, Mohtasib-e-Paraganah, Darogha-e-Adalat and Vakil-e-Shara.
Court of Kotwali was presided by the Kotwal-e-Parganah to decide such cases as are found in
the modern Police Act. Appeals were made to the court of District Qazi.
Amin was the presiding officer in Kachehri which decided revenue cases. An appeal lay to
the District Amalguzar.
VILLAGES
The village was the smallest administrative unit. From ancient times the village council were
authorised to administer justice in all petty cases. Generally, the panchayat meetings were
held in public places. It was presided over by five people. No appeal was allowed from the
decision of a Panchayat. They were mostly governed by their customary law.

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JUDICIAL PROCEDURE
A systematic judicial procedure was followed by the courts. It was regulated by mainly to
Muslim codes. They are Figh-e-Firoz Shahi and Fatwa-i-Alamgiri.
In civil cases, the plaintiff was required to file a plaint for his claim before a court of law
having appropriate jurisdiction in the matter. The defendant was called up by the court to
accept or deny the claim. The plaintiff was required to produce evidence to support his claim
with assistance of witnesses and they were cross examined. The plaintiff has the option of
appointing a lawyer or a vakil. For people who could not afford one, the state arranged a vakil
for them.
In criminal cases, a complaint was presented before the court either personally or through his
representative. To every criminal court a public prosecutor was attached know as Mohtasib.
He instituted prosecutions against the accused before the court. The court was empowered to
call the accused. Ordinarily, the judgment was given in an open court. In exceptional cases
where either the public trial was against the interest of state or the accused was dangerously
influential, the judgement was not pronounced in an open court.
Evidences were classified by the Hanafi law into three categories: (a) Tawatur (full
corroboration), (b) Ehad (testimony of a single individual) and (c) Iqrar (admission including
confession). The court always preferred the first kind of evidence over the other two. Among
the rules of evidence, the following rules are of importance:

No capital sentence could be inflicted in a Muslim based on the evidence of a non-

Muslim.
Evidence of one Muslim was considered as equivalent to two Muslims.
Evidence of two women is considered equivalent to that of one man.
Evidences should be direct. It should be of the eye-witness only and not
circumstantial. A specified number of witnesses are required for a conviction. For

rape, four eye witnesses were necessary for a conviction.


For proving theft, evidence of two men or one man and two women was needed.

Such rules are plainly illogical and irrational.


Trial by ordeal was not recognised. However, in non-Muslim states which were under the
protection of the Mughals, this system was prevalent.

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APPOINTMENT OF JUDGES
During Mughal period, the Qazi-ul-Qazat and other judges of high rank were appointed by
the emperor. On the recommendations of the chief Qazi, other Qazis were appointed.
Jadunath Sarkar pointed out that men of high scholarship and reputed sanctity of character
wherever available were chosen. Corrupt officials were punished or dismissed. Emperor
Aurangzebs order for the appointment of a judicial officer contained the following
instructions:Be just, be honest, be impartial. Hold the trials in the presence of the parties and at the
court house and the seat of the Government. Do not accept presents from the people of the
place where you serve, nor attend entertainments given by anybody and everybody.know
poverty(Faqr) to be your glory (Fakhr).

CRIMES AND PUNISHMENT


Under Muslim criminal law, which was mostly based on their religion, any violation of public
rights was an offence against the state. Islam provides that the state belongs to God; therefore,
it was the duty of any Muslim ruler to punish the criminals and maintain the law and order.
Offences against individuals were also punishable as they infringed private rights. Three
forms of punishment are recognised by the Muslim law. They are Hadd, Tazir and Qisas.
Hadd provided a fixed punishment as laid down in Shara, the Islamic law, for crimes like
theft, robbery, whoredom, apostasy, defamation and drunkenness. It was equally applicable to
Muslims and non-Muslims. No compensation was granted.
Some of the punishments prescribed under Hadd are:
CRIMES

PUNISHMENTS

1.

Fornication (sexual relations between unmarried

100 strokes of the whip

2.
3.
4.
5.
6.
7.

persons)
False accusation of married women with adultery
Theft
Robbery
Robbery with murder
Drinking wine
Apostasy

80 strokes of the whip


Loss of right hand
Loss of hands and feet
Death
80 strokes of the whip
Death

Tazir was another form of punishment which meant prohibition and it was applicable to all
crimes which were not classified under Hadd. It include crimes like counterfeiting coins,
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gamblimg, causing injury, minor theft etc..Under Tazir, the courts exercised their own
discretion in awarding suitable punishment to the criminal.
Qisas or blood fine was imposed in cases relating to homicide. It was a sort of blood-money
paid by the murderer to another man if the murderer has been convicted but not sentenced to
death for his offence. Muslim jurists supported Qisas on the basis that the right of Gods
creatures should prevail and only when the aggrieved party has expressed his desire, should
the state intervene.
The Muslim law considered Treason as a crime against God and religion and therefore,
against the state. Those guilty for treason, was punished with death. No consideration was
shown for their rank, religion or caste. Only the ruler was empowered to consider a mercy
petition.

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CONCLUSION
It does not cast a shadow of doubt that the Mughal emperors placed law and order highly.
They are regarded as lovers of justice. The non-Muslims for most periods were allowed to be
subjected under their own personal laws as well as establishing their own tolerance. Most of
the Mughal rulers were tolerant to other religion. Akbar is definitely a standout in this area.
The justice administering system was organized. Each level of the system knew very well
what their respective duties were. There were separate courts for separate purposes. The
judges were elected based on their merits. However, corruption did flow. It was known that
some of the provincial Qazis held hearings at their homes rather than the courts. There were
also cases where the position was obtained by bribery. Emperors like Aurangzeb warned them
about their conduct and to not to absent themselves from duty except for Friday which is the
Sabbath day for Muslims.
However, it can be seen that they were not completely fair to the majority of the population.
But the Mughal rulers left the village panchayats undisturbed. This helped them to continue
on and to exercise the same influence as before.
Islamic idea of justice seems to be based on the principle of an eye for an eye. Such a
principle cannot be accepted by the modern society. But Mughal rulers needed to be
appreciated, as they all held law to be supreme and followed it strictly.

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BIBLIOGRAPHY
1. The Wonder that was India Volume II by S.A.A Rizvi
2. From Mongols to Mughals: Religious Views in India 9th -18th century by Nicholas F.
Gier
3. http://www.bbc.co.uk/religion/religions/islam/history/mughalempire_1.shtml
4. History of India (Part-1) by H.V. Sreenivasa Murthy

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