JAMIA MILLIA ISLAMIA UNIVERSITY

SESSION- 2020-21

ISLAMIC JURISPRUDENCE ASSIGNMENT

Topic: “Concept of Adalah (Justice) and its administration

through Shariah Courts”

SUBMITTED TO: SUBMITTEDBY:

DR. GHULAM YAZDANI SHIVAM KUMAR PANDEY
STUDENT ID. 201903706
ROLL NO.-60/REGULAR
SEM: 3rd/ B.A.LL.B (Hons.)

FACULTY OF LAW
JAMIA MILLIA ISLAMIA UNIVERSITY
NEW DELHI – 110025

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 ABSTRACT

“Concept of Adalah (Justice) and its administration through Shariah Courts”

This assignment aims at analysing and understanding the concept of Justice (“Adalah’’)
wherein the very Concept of Sharia along with the structure and operation of “Sharia Court”
is being dealt herein. This project begins with the Introduction to the Topic “Concept of
Adalah (Justice) and its administration through Shariah Courts”. This project further Proceeds
with the main constituting aspects of the Sharia, i.e. Ibadah (ritual worship), Mu'amalat
(transactions and contracts), Adab (morals and manners), I'tiqadat (beliefs) and 'uqubat’
(punishments). Moving forword it deals with the historical background of the the “Sharia
Court” which is further followed by its scope and authority vide “The Constitution of India”
which is the ultimate law of the land, which then is followed by its operation to the Muslims
of India. This project then discusses the understanding of Justice and administration of Justice
within the Sharia Court and the Quran, which then is followed by the modern perspective and
modern role of Sharia in the dynamically changing world. Ultimately all these are summed
up in a ‘Conclusion’ at the End.

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 “Concept of Adalah (Justice) and its administration through Shariah Courts”

INTRODUCTION

As described in the religious book of Islam, Holy Quran, the origin of Sharia Law is founded
on divine words of Allah, and also from various traditions collected together from the life of
the Prophet Muhammad. History of Sharia law goes back to the era when Muhammad was
born in ca. 570 CE in Mecca, a place in the Arabian Desert. Mecca was a strategic place on
the trading route and also a pilgrimage for Arabs of many beliefs. Quraysh, who was a pagan
tribe along with some Jews and Christians, used to live in the city of Mecca. Muhammad lost
his parents at early age and got orphaned. This resulted in Muhammad coming under the
protection of his uncle. and he grew up and turned out to be a trader and got married to his
employer, a prosperous merchant named Khadija. Once the origin of Sharia got into existence
during the middle age Muhammad began to share the revelations that he got from received
from Allah through the angel Gabriel. Muhammad shared all of his revelations, and lured
many followers who canned them onto available materials. After around twenty years from
his first revelation until his death, Islam became the dominant force in the Arabian peninsula,
and a serious challenge to the Byzantine and Sasanian empires. When Muhammad passed
away, the revelations were brought together to be organized into what is called as Quran now.
Also, the carious accounts of his life ultimately formed the basis for Sunnah and it marks the
beginning or the origin of Sharia law.

The advent of Islam brought the barabaric and uncivilised tribes and the communities
together under a single religion. As Islam is not just a religion, but also a complete way of
life, a new common basis of law and personal behavior (Sharia) began to take shape.[59]
Sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu
Bakr (632–34) and Umar (634–44), during which time many questions were brought to the
attention of Muhammad's closest comrades for consultation.[60] During the reign of
Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation,
raising questions not originally covered by Islamic law.[60] Since then, changes in Islamic
society have played an ongoing role in developing Sharia, which branches out into Fiqh and
Qanun respectively. Among the Muslims, tribal laws were adapted to conform to Sharia "for
they could not form part of the tribal law unless and until they were generally accepted as

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such." Additionally, Noel James Coulson, Lecturer in Islamic law of the University of
London, states that "to the tribe as a whole belonged the power to determine the standards by
which its members should live. But here the tribe is conceived not merely as the group of its
present representatives but as a historical entity embracing past, present, and future
generations." So, while "each and every law must be rooted in either the Qur'an or the
Sunnah," without contradiction, tribal life brought about a sense of participation. Such
participation was further reinforced by Muhammad who stated, "My community will never
agree in error".

However, During the 19th century, the history of Islamic law took a sharp turn due to new
challenges the Muslim world faced: the West had risen to a global power and colonized a
large part of the world, including Muslim territories. In the Western world, societies changed
from the agricultural to the industrial stage, new social and political ideas emerged, and social
models slowly shifted from hierarchical towards egalitarian. The Ottoman Empire and the
rest of the Muslim world were in decline, and calls for reform became louder. In Muslim
countries, codified state law started replacing the role of scholarly legal opinion. Western
countries sometimes inspired, sometimes pressured, and sometimes forced Muslim states to
change their laws.

What is Sharia?

Sharīʿah (Arabic: ‫ شريعة‬šarīʿah, IPA: [ʃaˈriːʕa], "way" or "path") is the code of conduct or

religious law of Islam. Sharia has been defined as:

"Muslim or Islamic law, both civil and criminal justice as well as regulating individual
conduct both personal and moral. The custom-based body of law based on the Quran and the
religion of Islam. Because, by definition, Muslim states are theocracies, religious texts are
law, the latter distinguished by Islam and Muslims in their application, as Sharia or Sharia
law."1

•"a discussion on the duties of Muslims,"2—Hamilton Alexander Rosskeen Gibb

1
Sharia Law (http://www.duhaime.org/LegalDictionary/S/ShariaLaw.aspx)
2
Gibb, Hamilton Alexander Rosskeen (1970). Mohammedanism: an Historical Survey. Oxford University Press.
p. 68. ISBN 0195002458.

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•"a long, diverse, complicated intellectual tradition," rather than a "well-defined set of
specific rules and regulations that can be easily applied to life situations," 3—Hunt Janin and
Andre Kahlmeyer

•"a shared opinion of the [Islamic] community, based on a literature that is extensive, but not
necessarily coherentor authorized by any single body,"4 —Knut S. Vikor

Most Muslims believe Sharia is derived from two primary sources of Islamic law: the
precepts set forth in the Qur'an, and the example set by the Islamic Prophet Muhammad in the
Sunnah. Fiqh jurisprudence interprets and extends the application of Sharia to questions not
directly addressed in the primary sources by including secondary sources. These secondary
sources usually include the consensus of the religious scholars embodied in ijma, and analogy
from the Qur'an and Sunnah through qiyas. Shia jurists prefer to apply reasoning ('aql) rather
than analogy in order to address difficult questions. Muslims believe Sharia is God's law, but
they differ as to what exactly it entails.5 Modernists, traditionalists and fundamentalists all
hold different views of Sharia, as do adherents to different schools of Islamic thought and
scholarship. Different countries and cultures have varying interpretations of Sharia as well.
Sharia deals with many topics addressed by secular law, including crime, politics and
economics, as well as personal matters such as sexuality, hygiene, diet, prayer, and fasting.
Where it enjoys official status, Sharia is applied by Islamic judges, or qadis. The imam has
varying responsibilities depending on the interpretation of Sharia; while the term is
commonly used to refer to the leader of communal prayers, the imam may also be a scholar,
religious leader, or political leader. The reintroduction of Sharia is a longstanding goal for
Islamist movements in Muslim countries. Some Muslim minorities in Asia (e.g. in India)
have maintained institutional recognition of Sharia to adjudicate their personal and
community affairs. In western countries, where Muslim immigration is more recent, Muslim
minorities have introduced Sharia family law, for use in their own disputes, with varying
degrees of success (e.g. Britain's Muslim Arbitration Tribunal). Attempts to impose Sharia

3
Hunt Janin and Andre Kahlmeyer in Islamic Law: the Sharia from Muhammad's Time to the Present by Hunt
Janin and Andre Kahlmeyer, McFarland and Co. Publishers, 2007, p.3
4
The Sharia and the nation state: who can codify the divine law? (http://www.hf.uib.no/smi/pao/vikor.html),
p.2 Accessed 20 September 2005
5
Otto, Jan Michiel. Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU
Foreign Policy . Amsterdam University Press, 2008, p. 7: "When people refer to the sharia, they are in fact
referring to their sharia, in the name of the eternal will of the Almighty God."

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have been accompanied by controversy,6 violence,7and even warfare (cf. Second Sudanese
Civil War).8

Main Aspects of Sharia Law

The Sharia Law can be analysed and understood through the following Five major heads:

1. Ibadah (ritual worship)

Muslims are enjoined to pray five times each day, with certain exceptions. These obligatory
prayers, salat, are performed during prescribed periods of the day, and most can be performed
either in groups or by oneself. There are also optional prayers which can be performed, as
well as special prayers for certain seasons, days and events. Muslims must turn to face the
Kaaba in Mecca when they pray, and they must be purified in order for their prayers to be
accepted. Personal, informal prayer and invocation is practiced as well. Classic Islamic law
details many aspects of the act of prayer, including who can pray, when to pray, how to pray,
and where to pray.9

2. Mu'amalat (transactions and contracts)

Islamic law recognizes private and community property, as well as overlapping forms of
entitlement for charitable purposes, known as waqf or trusts. Under Sharia law, however,
ownership of all property ultimately rests with God; while individual property rights are
upheld, there is a corresponding obligation to share, particularly with those in need. 10 The
laws of contract and obligation are also formed around this egalitarian Qur'anic requirement,
prohibiting unequal exchanges or unfair advantage in trade. On this basis, the charging of
interest on loans is prohibited, as are other transactions in which risks are borne
disproportionately to the potential returns between parties to a transaction. The limits on
personal liability afforded by incorporation are seen as a form of usury in this sense, as is

6
"Voice of America: Aceh's Sharia Law Still Controversial in Indonesia"
(http://www1.voanews.com/english/news/religion/ Acehs-Sharia-Law-Still-Controversial-in-Indonesia-
80257482.html)
7
"BBC: Thousands of people have been killed in fighting between Christians and Muslims following the
introduction of Sharia punishments in northern Nigerian states over the past three years."
(http://news.bbc.co.uk/2/hi/africa/2632939.stm)
8
PBS Frontline: "Civil war was sparked in 1983 when the military regime tried to impose sharia law as part of
its overall policy to "Islamicize" all of Sudan." (http://www.pbs.org/frontlineworld/stories/sudan/facts.html)
9
al-Misri, Ahmad ibn Naqib. Reliance of the Traveler (edited and translated by Nuh Ha Mim Keller), pp. 101-
219. Amana Publications, 1994. ISBN 0-915957-72-8
10
H. Patrick Glenn, Legal Traditions of the World. Oxford University Press, 2007, pg. 183.

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insurance. All these inequities in risk and reward between parties to a transaction, known
collectively as riba, are prohibited. For this reason, Islamic banking and financing are
partnerships between customers and institutions, where risk and reward are distributed
equitably. Partnerships, rather than corporations, are the key concept in collective Islamic
business. Financing and investments are accomplished in this manner, as purchases and
resales, with equity shifting over time between the institution and the client as payments are
made or returns are recognized. Conversely, no individual is shielded from the consequences
of poor judgement or bad timing. The Islamic financial and investment models have taken
root in the West and begun to flourish, even as the financial underpinnings of large Western
corporations collapse under the weight of unevenly distributed risks. Classic Islamic law
details the manner of contracting, the types of transactions, the assignment of liability and
reward, and the responsibilities of the parties in Islamic trade.

3. Adab (morals and manners),

Adab that is the manners in islam has a high place and it refers to the morals and righteous
manners which typically is the desirable social conduct of a muslim against every individual
within the community and the society. It encompasses all the righteous thing a muslim is
expected to do, be it, good observance as a Father, Son, daughter, mother, aunt, uncle,
brother, sister, cousin, Senior, or as Junior and so on. It is oftenly connotatively restricted to
the the worldly and material rightful conduct which defies the complete meaning of the
concept. It refers to the rightful and revered conduct in the spiritual discourse as well. Adab
in Islam is incomplete if it is not to the ultimate truth that is the Allah and the preachings of
the Prophet Muhammad. Adab is natural, it isn’t really taught, or learnt, but it is naturally
developed. Children acquire adab from their parents, students from their teachers, the young
from the elders. We may have much knowledge but lack adab and we may have
much adab but lack knowledge; but it is adab that holds the greater value and importance. In
today’s society, where parents, teachers, and elders are no longer given their correct honours,
respect or rights; basic manners have made a swift exit, whilst we compete for glory,
knowledge, or worldly gain.

4. I'tiqadat (beliefs)

The I’tiqadat which refers to the one of the pillars of the very foundation that is the
‘Shahada’ which is the fundamental statement of faith and commitment made by Muslims:

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“There is no God except the God (Allah), and Muhammad is His Messenger.” It is the very
element which distinguishes Muslims from those of other faiths. The Shahada is perhaps
better known in the West as the Arabic phrase on the flags of ISIS, al-Shabaab and Boko
Haram. This Sahad is by no way the exclusive preservance of the violent terror group and has
great significance which after its three times recital in front of a witness has alone potential to
convert somebody to a Muslim. During the Islamic month of Ramadan, Muslims abstain
from food, drink, sex, between dawn and sunset. Exceptions to this obligation are made for
the young, the infirm, and women during their periods of menstruation. During Ramadan, the
daylight hours will often begin and end with a large meal. After dinner, many Muslims
participate in special communal prayers held during Ramadan. The end of Ramadan fasting is
celebrated with special prayers, gatherings of family and friends, and specially prepared
meals. Muslims may also fast on other special days of the year, and to make up for missed
days of fasting. Classic Islamic law details the exact definition of the fast, the times of
fasting, how a fast may be broken, who must fast, and permitted exceptions to the fast.11

5. 'uqubat’ (punishments)

The punishment depends on whether the criminal was convicted of qesas, hudud, or tazir. In a
tazir crime, the penalty would be usually a prison sentence, corporal punishment in some
countries, or a execution in a more serious case (such as a case that was not prosecuted as
hudud, like rape/drug trafficking). Since hudud crimes are extremely hard to punish, this is
the usual route that would be taken. Stoning and amputation would certainly not be carried
out in a tazir sentence, and the punishment would not be fixed, but discretionary. Most
countries have a civil code that regulates the penalties that should be received in a tazir crime,
such as a death sentence in the case of drug trafficking, aggravated rape, or prison time in the
case of other offenses.

Modern perspectives

Muslims have responded in a variety of ways to the forces of modernity. These responses
cross the lines of tradition, sect and school. They affect the way Sharia is interpreted by
individuals in their personal lives, and the extent to which Sharia is implemented in the public

11
Chris Horrie and Peter Chippindale. What is Islam? A Comprehensive Introduction, pg. 38. Virgin Books,
1991. ISBN 0 7535 0827 3

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sphere by the state. These diverse movements can be referred to collectively as contemporary
Sharia(s).[35]

Spectrum of Muslim legal systems

The legal systems in 21st century Muslim majority states can be classified as follows:

Sharia in the secular Muslim states: Muslim countries such as Mali, Kazakhstan and Turkey
have declared themselves to be secular. Here, religious interference in state affairs, law and
politics is prohibited.[36] In these Muslim countries, as well as the secular West, the role of
Sharia is limited to personal and family matters. The Nigerian legal system is based on
English Common Law and the constitution guarantees freedom of religion and separation of
church and State. However, eleven northern states have adopted Sharia law for those who
practice the Muslim religion.[37]

Muslim states with blended sources of law: Muslim countries including Pakistan, Indonesia,
Afghanistan, Egypt, Sudan, Morocco and Malaysia have legal systems strongly influenced by
Sharia, but also cede ultimate authority to their constitutions and the rule of law. These
countries conduct democratic elections, although some are also under the influence of
authoritarian leaders. In these countries, politicians and jurists make law, rather than religious
scholars. Most of these countries have modernized their laws and now have legal systems
with significant differences when compared to classical Sharia.12

Muslim states using classical Sharia: Saudi Arabia and some of the Gulf states do not have
constitutions or legislatures. Their rulers have limited authority to change laws, since they are
based on Sharia as it is interpreted by their religious scholars. Iran shares some of these
characteristics, but also has a parliament that legislates in a manner consistent with Sharia13.

History of Sharia Courts

Sharia courts popularly known as „darul-qaza‟ stand for the „house of the qazi‟ or an Islamic
scholar who has the authority to suggest solutions to problems of Muslims approaching them.
Rooted in and operating within the frame work of local relations of power, sharia courts are
appropriated by social actors to preserve their heritage in consonance with early traditions of
12
Otto, Jan Michiel. Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and
EU Foreign Policy . Amsterdam University Press, 2008, p. 8
13
Otto, Jan Michiel. Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and
EU Foreign Policy . Amsterdam University Press, 2008, p. 8

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informal dispute adjudication. Before the British consolidated their ground over the Indian
soil, Mohammedan Penal law prevailed in the country as Hanafi Law was widely practiced
and professed in regulating both the personal and private lives as well as in adjudicating
disputes. The role of qazi as the chief judge is a practice evident since the Mughal rule. The
institution of sharia courts under the royal Mughal patronage was decisive in its articulation
which continued unabated until the British intrusion. The history of justice administration
during the Mughal rule in India reveals a fine combination of the judicial traditions of foreign
nations as Egypt, Iraq, Turkey and Spain. The justice administration evident during the
Mughal rule was an amalgam of Indian and extra-Indian elements; it was Perso-Arabic
system in Indian circumstances. (Vahid Hussain, 1934) Well-articulated sharia courts or qazi
courts had been vital to the justice system during the Mughal rule in India. The Mughal ruler
appointed a „qaziul-quzzat‟ or the chief qazi who sent deputies on his part into each district;
these deputies in turn were appointed and removed by the chief qazi.

Among all qazis‟, the „qazi-ul-quzzat‟ being the chief qazi at the realm was associated with
the imperial Court; his judicial powers were supported by the Mughal emperor himself. The
chief judge or the „qaziul-quzzat‟ was both the supreme judge of the empire as also „the qazi
of theImperial Camp‟ and often found to be in the company of the sovereign. Having the
power to decide both civil and criminal cases, his office was highly esteemed and powerful.
His closeness with theroyal authority gave his office an awe and authority that made natives
fear and besides religioussanctity this was one of the reasons for complete obedience to his
verdicts. The chief qaziappointed the local qazi in every city and every large village
throughout the empire. The office of the chief qazi was the chief court of appeal. Though not
debarred from deciding original suits, the chief qazi’s main function was to listen and decide
upon appeals from lower courts. As per the Muhammadan Law the chief qazi possessed the
power of reviewing his judgement. He took upon himself the responsibility of ruyat‟ or
reviewing his verdict if the previous decree has been repugnant to the „Quran‟, the „Sunnah‟
(Traditions of the Prophet) and basic tenets of Islam and listened to the case again. Similarly,
he also embarked upon correcting accidental errors and clerical mistakes. The judicial
tradition in the country displayed elements of reliance more on the ethical than upon the legal
means to achieve harmony. Standing upon the foundation of the ethical norms, men were
trained to attain the highest sense of ethical obligations for which neither any fixed rule was
required nor laid down because this practice was a part of the spirit of benevolent-despotism
vogue since the historical period. Imbued with the aim of maintaining comprehensive unity

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and omitting differences, the practice of referring disputes for „tahkem‟ or arbitration was
common. Sitting in his own court, the qazi conducted and settled disputes in accordance with
the precepts of the Mohammedan Law taking cognizance of such cases concerning marriage,
marriage contract and settlements, the division of inheritance, testaments, the appointment of
„Muhammadan mutewallis‟ or trustees of religious endowments and attested all papers and
deeds with his seal. In the discharge of his functions, the qazi was often assisted by the
„mufti‟. The mufti was an expert in „fiqh‟ or Islamic jurisprudence and competent to give
fatwa or legal opinion. Though the „muhtesib‟ or market-inspector was not ordinarily vested
with judicial powers, he sometimes formed a part of the board for justice administration. A
sort of full bench existed and after hearing the case and the parties in question the qazi as
judge pronounced the verdict while the mufti recorded the „fatwa‟ or the law applicable to
the case in question. The mufti well-grounded in Islamic „fiqh‟ was appointed by the
sovereign to aid and advice the qazi with the expositions of legal principles. He was the legal
officer of the empire. In case of ambiguity the mufti was asked to expound the law and
ascertain the procedure to be followed. Every qazi court had a mufti attached to it and when
the Mughal Emperor held his Royal Court it was incumbent upon both the qazi and mufti to
attend it. Under the Muhammadan rule, the task of the mufti was neither to present the case
for the party viz-a-viz the emperor nor support the case for the sovereign but to expound the
law correctly in its true spirit and express the legal opinion freely. Conducting all proceedings
of his court with the other learned men attached to it; the office of the qazi stood as the final
expression of judgment supplemented by considerable privileges and patronage from the
sovereign; it was independent of the supreme authority except in certain remarkable cases.
Drawing its very existence from the royal prerogative, the qazi with his office was a perfect
link between natives and the imperial authority. The office of the qazi as chief judge of the
court of cannon law as well as common law was deemed to be „Arka -i- Daulat‟ or „the
pillars of the state‟. Under the Mughal dispensation the chief qazi was a man of celebrity and
importance and his power and influence upon the administration of justice was enormous.
The chief justice or the qazi-ul-quzzat in charge of maintaining the judicial system
throughout the empire was also responsible for the appointment and management of qazis‟
all over the kingdom.

As judge of the canon law he shouldered the responsibility of dispensing justice through
sharia courts giving good counsel and warning to those guilty of violating the social and
religious norms. Though this court was the chief court of appeal but that did not bar the

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Muslim judge from deciding original suits. Working on principles and laws of sharia, the qazi
through his courts enforced the principles of classical „fiqh‟ as recognized by the Islamic
“madhabs‟ or schools of thought. Bound by the sharia the qazi as judge followed the
prescribed procedure and prepared „mahazir‟ and„sijilat‟, that is records and decrees
respectively in proper form. Discharging his adjudicativefunction impersonally without
accepting any „nuzzars‟ or gifts and favours from either party in dispute, the qazi was
indefatigable in the exercise of his adjudicative authority and by being regular in his
devotions assiduously refrained from all things forbidden by divine laws. The qazi court
functioned on the maxim of treating all men justly on an equal footing so that the weak may
not be disappointed from justice and the rich and powerful may not hope to extract undue
privilege. Combining within his personality the elements of both the temporal and spiritual,
the qazi was both a layman and religious persona thoroughly conversant with the „Quran‟
and other Islamic texts, relevant principles and rules. His judgement was decisive for the
parties involved. Indeciding cases he followed and never acted contrary to the law laid by the
religious texts or a universally accepted tradition; and in abiding by both „ijma‟ or consensus
and through “ijtihad‟ or independent reasoning he upheld the sanctity and infallibility of the
positive rulings and methodological principles universally agreed upon by the Islamic
scholars. He held his sway not only in the capital but exercised his unchallenged authority
through a network of “qazis‟ spread over the countryside, as every town and village both
large and small had its local qazi appointed by the chief qazi. Though his office and
responsibility was of public nature, time had helped it to attain the status of a hereditary one.

Sharia Court and The Indian Constitution

The existence of sharia courts does not stand in contradiction to the spirit of the
IndianConstitution. The Indian Constitution has specially upheld the functioning of sharia
courts basedon personal laws of the Muslim community. It is worth recalling here that Article
372(1) of theIndian Constitution says,

“… all the laws in force in the territory of India immediately before the commencement of
this Constitution shall continue in force therein until altered or repealed or amended by a
competent legislature or other competent authority.”

The word “all the laws in force” in the above-mentioned article includes all statutory,
customary as well as personal laws. Henceforth, by virtue of this article the Muslim Personal
Law stands recognized and Muslims in the country have all the right to live their own way of

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life. On 26thJanuary 1950, as the Indian Constitution was adopted the Indian Republic
confirmed continued application of Muslim Personal to Muslim Community.

The same argument is also applicable for „Entry No.5 of List III (Concurrent list) of the

Seventh schedule read with Article 246 (2) of the Indian constitution which give power to
both

State Legislatures and the Union Parliament to legislate on „all matters in respect of which
parties in judicial proceedings were immediately before the commencement of this
Constitution subject to their personal law in matters of marriage, divorce, will, succession,
inheritance, etc. Both the Supreme Court and High Courts follow the Muslim Personal Laws
in matters where both parties are Muslims. Thus, citizens are free to access sharia courts
having all the liberty to follow sharia laws in responding to needs of their community
members. This maxim has been well established by the decision of both earlier Privy Council
as well by the Supreme Court. Justice Vivian Bose once speaking for the three-judge bench
of the Supreme Court indicated „personal laws of the Muslims were immune from the
provisions of the Constitution including the provisions in Part III thereof relating to the
Fundamental Rights. In a decision on the case “Krishna Singh vs. Mathura Ahir” 14, a two
judge bench of the Supreme Court decided

that „Part III of the Indian Constitution does not touch upon the personal laws of the parties. ‟

It further stated that judges of the High Court, „in applying the personal laws of the parties
could not introduce his own concepts of the modern times thus, banished and prohibited any
reformulation or reconstruction of the old sources and assuring that personal laws would
remain untouched by the Indian Constitution”

It is often debated, if personal laws are open to scrutiny under Article 13 of the Indian
Constitution, Article 25 of the same would be rendered redundant. In the famous case of
„Bombay High Court vs. NasaruAppa Mali‟ it was concluded that personal laws „were based
on considerations peculiar to each of the communities‟ and hence enjoyed immunity from
other provisions of the Constitution.

Both Justice Chagla and Justice Gajendragadkar pointed out in separate judgements that
personal laws do not come within the scope of Article 13(1). A further point was pointed out

14
1980 AIR 707, 1980 SCR(2) 660

13
by the Supreme Court in „Bajya vs. Gopikabai 15 ‟that personal laws do not lose their status as
personal laws even if they are codified. (Justice Hegde while recognizing the importance of
personal laws which is due to past history, differences in culture, traditions and customs; was
referring to the Hindu Code of 1955-56 which he says are personal laws). Before the
promulgation of the Indian Constitution, the High Courts in India had mostly decided cases
on lines of personal laws. When the Constitution was framed, this point was amply borne in
mind by the framers of the Constitution who inserted Article 225 which stated that laws
which the High Courts administered in deciding disputes of the parties before the
commencement of the Constitution would continue as before. Thus, Article 225 justifies the
continuation of their personal laws for the Muslim community. Arguing on the justifiability
of the personal laws of Muslims or sharia laws as it is often called, it is held since “the source
is traditional scriptures and texts, the same would not be open to a constitutional challenge.”

Sharia Courts and Indian Muslims

The Muslim Personal Law Shariat Application Act of 193716 regulates the life of millions of
Muslims in India. It provides for the application of Islamic code to the Muslim community.
The Act stipulates, “Notwithstanding any customs or usage to the contrary, in all regarding
adoption, wills, women’s legacies, rights of inheritance, special property of females,
including personal property inherited or obtained under contract or gift or any other provision
of personal law, marriage, dissolution of marriage, (including talaq, ila, zihar, lian, khula and
mubaraat) maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs
(other than charities and charitable institutions and charitable and religious endowments) the
rule of decision in cases where the parties to a case are Muslims shall be the Muslim Personal
Law (Shariat) ”(Tahir Mahmood, 1983). The Shariat Application Act 1937 came at a time
when the British- Indian Government was trying to subvert Islamic law and its application to
the Indian Muslims in the name of bringing about social reforms. In response to the British-
Indian Government’s move, a call was given by the Indian Muslim leadership to Muslims
across the country. At the forefront was the “Jamiat al-Ulema Hind‟ who spearheaded the
movement to express their resentment against the government’s actions. The government’s
initiatives drew ire of the leading ‘’ulemas‟ or religious scholars of the country who deemed
15
AIR 1978 SC 793, (1978) 2 SCC 542, 1978 3 SCR 561, 1978 (10) UJ 463 SC.
16
THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 ACT NO. 26 OF 1937 [7th October, 1937.]

14
it as their religious obligation to create awareness among the Muslim community of the evil-
designs of the government to uproot Islamic law. Hence an intense campaign was carried out
throughout the country to persuade the Muslims to follow „Islamic Sharia‟. Along with the
campaign against government’s action, parallel efforts were made by “ulemas‟ to end the
many „un-Islamic‟ practices among various sections of the Muslim community in the
country. To ensure continued applicability of the Sharia Application Act (1937) the All India
Muslim personal Law Board (AIMPLB) was formed at a meeting at Hyderabad on 7th April
1973. By adopting suitable strategies, the AIMPLB strove for annulment and exemption of
members of the Muslim community from any parallel legislation or rulings of courts of law
which in their opinion would result in interference with Muslim Personal laws. The board
took upon itself the responsibility of creating general awareness among members of the
Muslim community of the tenets of Islamic law or sharia principles and how a Muslim should
govern his life by relying on them. It would also construct a comprehensive framework for
the promotion of Islamic laws among the community members. Along with ensuring
protection and continued applicability of Muslim Personal law, the aim of the AIMPLB was
to foster a sense of harmony, goodwill and a spirit of brotherhood among the various sections
of Muslims across the country. One of the major aims of the board was to establish “dar -ul-
qazas‟ or sharia courts across the length and breadth of the country to adjudicate on disputes
of personal status among the Muslims. Time and again, the AIMPLB has adopted resolutions
at its various meetings on the issue of “darul - qazas‟. Important among many resolutions are
the ones adopted at Kolkata on 6 th-7 th April 1985, at Jaipur on 9 th -10th October 1993,
Mumbai on 28th -30th October 1999, at Hyderabad on 21st -23rd June 2002. The logic
behind the establishment of sharia courts is that secular courts are not competent enough to
interpret and apply sharia principles which are based on “Quran‟ and “traditions of the
Prophet‟ (Peace Be Upon Him). This can be done effectively by sharia‟ courts alone manned
by muftis and ulemas learned in Islamic law. The board has been enthusiastic about
establishing sharia courts since its inception. The very same year of its birth, it had
established two “darul qazas‟ in the state of Maharashtra (1973) and at present there are
about 16 such institutions working effectively in the state alone. Bihar was the first state in
India to establish darul qaza followed by Orissa. Under the patronage of “Imarat-e-sharia‟ 26
“darul -qazas‟ are fulfilling their duty of settlement of disputes in Bihar, Orissa and
Jharkhand. Thousands of disputes between Muslims are tried by qazis working under the
Imarat organization. The Imarat still exists and its qazis, acting as private judges decide cases
involving questions of family law and succession and has disposed about 45,000 cases

15
through “darul - qaza‟. The system has been working since 1919 in Bihar, Orissa and
Jharkhand and adjoining regions of West Bengal¸ where verdicts pronounced by sharia courts
are considered by district courts as arbitration awards. The institution of darul- qaza exists in
other states as Uttar Pradesh, Madhya Pradesh, Andhra Pradesh, Tamil Nadu, Uttaranchal,
Delhi, Karnataka, Gujarat, and North-Eastern states mainly in Assam. Sincere efforts are also
being made to establish sharia courts in the states of Rajasthan, Himachal Pradesh and other
major cities and towns of India. In 2013, Mumbai got its first darul-qaza which was
inaugurated by Syed Mohammed Wali Rahmani, the general secretary of All India Muslim
Personal Law Board. The most recent addition has been an all-women sharia court at Pune.
At present more than 100 sharia courts or “darul-qazas‟ are effectively rendering their
services towards their community members. Since the Indian judiciary is already
overburdened, issues which can be readily solved with the help of community members and
within the boundary of Islam can be referred to it. It would not be wise to drag every dispute
to courts. Islam contends that differences which can be resolved with the help of elders of
either the family or community should be resolved without much noise and within private
domains. It is best to resolve differences among one’s family or community members quietly
and privately. The “darul-qazas‟ have always strove to render „Islamic justice‟ to its
community members. Since secular courts are not competent enough to deliver justice
according to Islamic sharia it is recommended that Muslims avail the service of sharia courts
as far as possible. The secular judges often fall short in their ability to interpret and apply
sharia principles in its true spirit which is only possible through Islamic scholars well learned
in Islamic traditions. Therefore, taking recourse to sharia courts is completely within the
bounds of Islam and its tradition.

Justice

The concept of justice embodied in Sharia is different from that of secular Western law. 17
[103] Muslims believe the Sharia law has been revealed by God. In Islam, the laws that
govern human affairs are just one facet of a universal set of laws governing nature itself.
Violations of Islamic law are offenses against God and nature, including one's own human
nature. Crime in Islam is sin. Whatever crime is committed, whatever punishment is

17
Chris Horrie and Peter Chippindale. What is Islam? A Comprehensive Introduction, pg. 44. Virgin Books,
1991. ISBN 0 7535 0827 3

16
prescribed for that crime in this world, one must ultimately answer to God on the Day of
Judgement.18

Legal and court proceedings

Sharia judicial proceedings have significant differences with other legal traditions, including
those in both common law and civil law. Sharia courts traditionally do not rely on lawyers;
plaintiffs and defendants represent themselves. Trials are conducted solely by the judge, and
there is no jury system (as is found in civil law in countries such as Russia and France). There
is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common
law, judges' verdicts do not set binding precedents 19 under the principle of stare decisis 20, and
unlike civil law, Sharia does not utilize formally codified statutes (these were first introduced
only in the late 19th century during the decline of the Ottoman Empire, cf. mecelle). Instead
of precedents and codes, Sharia relies on jurists' manuals and collections of non-binding legal
opinions, or hadith, (ulama, particularly a mufti); these can be Sharia 12 made binding for a
particular case at the discretion of a judge. There are three categories of crimes in Sharia law,
qisas, hudud, and tazir. Qisas involves personal injury and has several categories: intentional
murder (first-degree), quasi-intentional murder (second-degree), unintentional murder
(manslaughter), intentional battery, and unintentional battery. A qisas offense is treated as a
civil case rather than an actual criminal case. If the accused party is found guilty, the victim
(or in death, victim's family) determines the punishment, choosing either retribution (qesas-e-
nafs), which means execution in the case of intentional murder, imprisonment, and in some
cases of intentional battery, the amputation of the limb that was lost; or compensation (diyya)
for the loss of life/limb/injury. The Sharia judge (or in modern Sharia systems like Iran or
Iraq, the state) can convict for and legally punish only qesas crimes on his own authority.
However, the state itself may prosecute for crimes committed alongside the qisas offense. If
the victim's family pardons the criminal, in addition to the Sharia punishment he would
normally receive a tazir prison sentence (such as 10–20 years in prison) for crimes such as
"intentional loss of life", "tazir assault and battery" "disturbance of the peace", and so forth.
The second category of crimes is hudud (or hadd). Hadd crimes are crimes whose penalties
were laid down by the Quran, and are considered to be "claims against God". Hadd crimes
18
Chris Horrie and Peter Chippindale. What is Islam? A Comprehensive Introduction, pg. 44. Virgin Books,
1991. ISBN 0 7535 0827 3
19
Islamic Law - Legal Literature And Institutions, Jurisprudence: The "sources" Of The Law, The Modern Period
(http://science.jrank.org/ pages/7816/Law-Islamic.html)
20
Saudi Arabia Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Supreme Court of Delaware, January
14, 2005 p. 52

17
are: adultery (zina): includes adultery, fornication, incest/pedophilia, and rape, pimping;
sodomy/lesbianism (or sodomy rape); hiraba (uniquely known as moharebeh/mofsed-e-filarz
in Iran) waging war against God and society: armed robbery, terrorism, armed violence; theft;
use of intoxicants (alcohol/drug use); apostasy/blasphemy; and defamation (meaning false
accusation of any of these things). These cases not meant as actual punishments, but as
deterrents, to simply to set an example to the general public, and to prosecute the most
flagrant violations. Hudud is meant as a deterrent, not a general punishment. The process is
extremely exacting, a minimum of two witnesses are required to corroborate the evidence,
and in the case of sex crimes, four witnesses, thus making it in most cases hard, if not
impossible, to receive the violent punishments. Circumstantial evidence is not allowed to be
part of the testimony. When one does receive them, it usually would occur in a case where
the offense was so obvious, obscene or flagrant that it is impossible to not be convicted. Very
often, Westerners mistake hudud punishment as punishment regularly given under Sharia
law, but that is inaccurate; hudud punishments are only meant as a deterrent for rare cases.
Most punishments are given under tazir rules. As a result most countries do not prosecute
hudud offenses (the exceptions being Saudi Arabia and Afghanistan under the Taliban, which
regularly managed to prosecute offenses in the hudud manner) Almost all other countries,
such as Iran, would usually punish the same offense as a tazir crime. The third category of
crimes is tazir. It covers all other offenses not mentioned already. It is a "claim of the state"
and it receives a discretionary sentence. The punishment may not be more severe than the
punishment of a hudud crime. It can range, depending on the crime or circumstances, from
death to imprisonment to even community service. Circumstantial evidence is allowed, and
most countries prosecute their crimes as tazir crimes, due to the flexibility of the evidence-
gathering and sentencing. The punishment is meant to fit the crime. For example, a rapist
may not be able to be prosecuted for zina, but would still be convicted of tazir rape, or in
theft, they would be found guilty of tazir theft and given prison time rather than amputation.
A murderer would still spend time in prison if he had received the forgiveness of the family.
The heavy hudud penalties of amputation and stoning are not applied (although some
countries do use corporal punishment). Most modern countries such as Iran have a fixed
penal code that regulate what sentences should be given depending on the crime and
circumstances of the case. Sharia courts' rules of evidence also maintain a distinctive custom
of prioritizing oral testimony. A confession, an oath, or the oral testimony of a witness are the
main evidence admissible in a hudud case, written evidence is only admissible when deemed

18
reliable by the judge, i.e. notaries21. Testimony must be from at least two witnesses, and
preferably free Muslim male witnesses, who are not related parties and who are of sound
mind and reliable character; testimony to establish the crime of adultery, or zina must be from
four direct witnesses. Forensic evidence (i.e. fingerprints, ballistics, blood samples, DNA
etc.) and other circumstantial evidence is Sharia 13 likewise rejected in hudud cases in favor
of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape
cases. Testimony from women is given only half the weight of men, and testimony from non-
Muslims may be excluded altogether (if against a Muslim). Non-Muslim minorities, however,
could and did use Sharia courts, even amongst themselves. Sharia's rules on written evidence
necessarily diminish the utility of written contracts to structure economic relations, and
Timur Kuran has noted the predominance of a "largely oral contracting culture" in pre-
modern Islamic society.

Shari’ah’s Primary Objective Is Mercy

“…And We did not send you (O Muhammad) except as a mercy for all creation.”22

And the Prophet (s) said, “The Most Merciful shows mercy to those who have mercy on
others.Show mercy to those on earth, and the One above the heaven will show mercy to you.”

From this, and many other source texts, one can summarize the primary objective of the
Shariah,(maqsad al-Shariah al-asasī) as Kamali has done:

The ulema [scholars of Islam] have, thus, generally considered Rahmah [Mercy] to be the all-
pervasive objective of the Shariah and have, to all intents and purposes, used it synonymously
with Maslaħah [benefit in everyday communal life].23 Similarly, Schact observes:

…the underlying tendency of the Qur’ānic legislation was to favour the underprivileged; it
started with enunciating ethical principles... This feature of Qur’ānic legislation was
preserved by Islamic law, and the purely legal attitude, which attaches legal consequences to

21
Introduction to Islamic Law
(http://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/
islamic/islamic_chpt4.pdf)
22
Suratu ‘I-Anbiya, 21:107.
23
Kamali, Muhammad Hashim, “Maqsid al -Shariah: The objectives of Islamic Law”, Islamic Research
Institute,Pakistan, 1999, p. 1

19
relevant acts, is often superseded by the tendency to impose ethical standards on the
believer.24

Since Mercy is the Shariah’s primary goal, it is clear that this cannot be achieved if the
believers who implement it are not embued with this essential quality. When society is
informed by spiritual values, the purpose of Shariah, to bring out mercy to mankind, will be
natural manifestation of those values. When an individual’s faith is informed by spiritual
values his psyche and ethical compass will be balanced and his desire for immoral or criminal
acts eliminated or reduced. Without such values, essential in removing the psychological
illnesses and the societal ailments which afflict people in difficult physical situations, man
becomes nothing more than a political animal and law becomes a means and anend, in-and-of
itself. Followers of Wahhabi movement, created by Muħammad ibn Abd al-Wahhāb (d.
1787), who make up the majority of implementers seeking ‘Islamic’ states today, reject the
principles of spirituality, rather, they base their view of Islam purely on material aspects.
Thus they see that the only approach to handling crime is to punish the perpetrator with a
physical punishment.

Despite studying the religious books of his day Muħammad ibn Abd al-Wahhāb became
extremely dogmatic in his understanding of the faith. Imām Abū Zahrā of Al-Azhar
University asserts that Muħammad ibn Abd al-Wahhāb was excessively more extreme in his
conceptionsthan any former scholar. Following his demise “his followers went to even
further extremessurpassing all bounds of jurisprudence, declaring countless acceptable
matters ‘forbidden.’ The Wahhabi movement, never content to promulgate its beliefs by
tongue or pen, wielded a sword to fight whoever differed from its ideology.”25

Factors influencing the modern role of Sharia

Against the backdrop of differing religious sects, scholarship, classical schools of thought,
and governmental implementations, the following forces are at work influencing future
developments in Sharia law.

Rapid exchange of cultures and ideas

24
Schact, J., Cambridge Encyclopedia of Islam, vol. II, pt. VIII/chpt. 4, pg. 539.
25
Imam Abu Zahra, History of Islamic Schools of Thought, Cairo, 1997, p. 208.

20
Around the world, Muslims are becoming more connected by the Internet and modern
communications. This is leading to wider exchanges of ideas and cultures. Reactionary and
fundamentalist movements are unlikely to halt this trend, as the Sharia itself defends the right
to privacy within the home.[40]

Schools of thought

Legal scholar L. Ali Khan claims that "the concept of Sharia has been thoroughly confused in
legal and common literature. For some Muslims, Sharia consists of the Qur'an and Sunnah.
For others, it also includes classical fiqh. Most encyclopedias define Sharia as law based
upon the Qur'an, the Sunnah, and classical fiqh derived from consensus (ijma) and analogy
(qiyas). This definition of Sharia lumps together the revealed with the unrevealed. This
blending of sources has created a muddled assumption that scholarly interpretations are as
sacred and beyond revision as are the Qur'an and the Sunnah. The Qur'an and the Sunnah
constitute the immutable Basic Code, which should be kept separate from ever-evolving
interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is
necessary to dissipate confusion around the term Sharia."26[41]

Revival of the religion

Simultaneously with liberalizing and modernizing forces, trends towards fundamentalism and
movements for Islamic political power are also taking place. There has been a growing
religious revival in Islam, beginning in the eighteenth century and continuing today. This
movement has expressed itself in various forms ranging from wars to efforts towards
improving education.[42] A return to traditional views of Sharia: There is a long-running
worldwide movement underway by Muslims towards a better understanding and practice of
their religion. Encouraged by their scholars and imams, Muslims have moved away from
local customs and culture, and towards more universally accepted views of Islam. This
movement towards traditional religious values served to help Muslims cope with the effects
of European colonization. It also inspired modernist movements and the formation of new
governments.[43] The Islamist movement: Since the 1970s, the Islamist movements have
become prominent; their goals are the establishment of Islamic states and Sharia within their
own borders, their means are political in nature. The Islamist power base is the millions of
poor, particularly urban poor moving into the cities from the countryside. They are not
international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes
26
The Second Era of Ijtihad (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935607), 1 St. Thomas
University Law Review 341

21
western culture and western power.[44] Political groups wishing to return to more traditional
Islamic values are the source of threat to Turkey's secular government.[44] These movements
can be considered neo-Sharism.[45] The Fundamentalist movement: Fundamentalists,
wishing to return to basic religious values and law, have in some instances imposed harsh
Sharia punishments for crimes, curtailed civil rights, and violated human rights. These
movements are most active in areas of the world where there was contact with Western
colonial powers.[46] Extremism: Extremists have used the Qur'an and their own particular
version of Sharia[47] to justify acts of war and terror against Western individuals and
governments, and also against other Muslims believed to have Western sympathies. [48]
Friction between the West and Islam, particularly with regard to the Palestinian question,
continues to fuel this conflict.[49]

Immutability of God's will

Although there are many different interpretations of Sharia, and differing perspectives on
each interpretation, there is consensus among Muslims that Sharia is a reflection of God's will
for humankind. Sharia must therefore be, in its purest sense, perfect and unchanging. 27 The
evolution or refinement of Sharia is an effort to more perfectly reflect God's will.[51]

Conclusion

There is tremendous variety in the interpretation and implementation of Islamic Law in

Muslim societies today. Liberal movements within Islam have questioned the relevance and
applicability of Sharia from a variety of perspectives; Islamic feminism brings multiple points
of view to the discussion. Some of the largest Muslim countries, including Indonesia,
Bangladesh and Pakistan, have largely secular constitutions and laws, with only a few Islamic
Law provisions in family law. Turkey has a constitution that is officially strongly secular.
India and the Philippines are the only countries in the world that have separate Muslim civil
laws, wholly based on Sharia. In India, Muslim civil laws are framed by the Muslim Personal
Law board while in the Philippines, it is framed by the Code of Muslim Personal Laws.
However, the criminal laws in both the countries are uniform. However, The sharia courts
27
"You shall not find a change in Allah's course." TMQ 48:23

22
improve access to justice delivery by lessening costs associated with bureaucratic delay and
with the need for professional assistance, and lessening the discouragement of potential
parties who are confronted in regular courts by judges and lawyers of higher social status
than themselves. Since litigation is considered to be a negative social phenomenon leading to
disruption of harmonious social relationship, sharia courts through mediation uphold shared
societal interests and reaffirms social bonds. Fostering community peace and larger social
harmony through mediation is the tangible expression of sharia courts.

The institution can be best described as “internal community regulatory mechanism.” Sharia
courts today are important alternative dispute resolution (ADR) mechanism; its role is
complementary to the formal judiciary. Under the present dispensation sharia courts or darul-
qaza is an integral dispute redressal forum for the Indian Muslims as they are able to resolve
disputes expeditiously and amicably. By settling private disputes of such a big community as
that of the Muslims, the darul-qaza is complementing the formal Indian judiciary. Apart from
its complementary role, the system is inspired by the ideal of service to mankind. In a
developing country as India, the darul-qaza through its informal approach create a more
flexible and precise instrument for dispute adjudication and reduce the uncertainty and
insecurity that emerge from the rigidity of the formal legal system. The institution is fully
adapted to the profile and requirement of its community members.

23
 II. Bibliography

The resources used here in for this assignment are as mentioned below:

Books Referred-

 “The Constitution of India, 1950” Bare Act with Short Notes, Universal Law Publishing,
2016.
 THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 ACT NO.
26 OF 1937 [7th October, 1937.]

 Asaf A. A. Fyzee ’Outlines of Muhammadan Law’, 6th Edition (Oxford University Press
India, 2018)

 Tahir Mahmood,‘The Muslim Law of India’, 3rd Edition, LexisNexis Butterworths, 2002.

Websites-

• https://shodhganga.inflibnet.ac.in

• www.jstor.org

• www.manupatra.com

• www.legalservicesindia.com

• www.ebc-india.com

24
25