Judicial System under Muslim Rulers in India

1.1 Historical Background:

Long before the advent of the Mughal rule in India, rapprochement between the
Hindus and the Muslims had been necessitated by the exigencies of those times. The
Hindus being ignored by all the other prior a Mughal rulers were orthodox and
narrow in their outlook. As a result by the time of Akbar conversions to Islam had
almost stopped completely. The ground for socio economic synthesis had already
been prepared by the Sufi movement and Bhakti saints. Akbar’s mother was a
Persian and Akbar was brought up in a Hindu house himself as a child. His teacher
or guru Abdul Latif was so liberal in his religious outlook that the people dubbed him
as a Sunni in the Shia country of Persia and Shia among the Sunni populace. Akbar
learnt the noble lesson of suleh-I-kul or peace with all or the universal brotherhood
which applies in practice in his treatment towards Hindus.

1.2 The Sultanate judicial system

The Judicial System in the Sultanate and the Mughal Era pre Akbar had heavy
leanings towards religion and made a distinction between the Hindus and the
Muslim populace. The judicial system of the Sultanate was not very complex. The
ecclesiastical cases were separated from the civil and criminal cases. The sultan was
the fountain head of justice; Muhtasib the censor of public morals acted as police
cum judge in the observance of the canon law by the Muslims. 1
The Mughal Empire provided a system of government that shared many ideas with
the Sultanate as well as bringing in some new ideas of its own. The empire was
essentially still military in nature, with every officer of the Mughal state a member
of the army. The emperor was an autocrat and had unlimited freedom in making
laws. Although he had a council of ministers, he was not bound to consult them,
and his word was law. The only restriction was that he had to follow the guidelines
set forth in the scriptures and Islamic traditions 2. The sultans of Delhi
transplanted the Islamic law and legal institutions in India although these failed to
take deep roots into the soil.

The Islamic law made a sharp distinction between the Muslims and the non
Muslims; it refused to grant the rights of full fledged citizenship to the latter. The
Hindus were, accordingly, treated as zimmis or the ‘protected people’ who
purchased their freedom of life and property on the payment of jaziya to the
Islamic state as the sultanate was usually styled. They suffered from numerous
socio religious and economic disabilities. The sultans implemented shariat or the
Islamic law of crime and punishment, the main sources of which were the Quran,
the Hadis and the Ijma. The holy scripture contained the divine revelation, the
Hadis comprised the traditions and precepts of the prophet in matters of law and
religion, while the Ijma (consensus of opinion) referred to the legal decisions taken
by the muslim jurists (mujtahids) on the authority and by interpretation of the first
1
J.L Mehta, An advanced study in the history of Medieval India (Sterling Publishers Pvt. Ltd, New Delhi, 3rd ed,
1990) vol. 2 p 376.
2
V.D Kulshreshtha’s, Landmark in Indian Legal and Constitutional History ( Eastern Book Co, 7th ed, 1995) pp
56,57,58
two sources. As regards the Muslims, the application of the Islamic law to them
was treated as personal and indispensable while the Hindus were exempt from the
application of the religious part of the law. Even otherwise, the latter had a highly
developed indigenous system of jurisprudence of their own.

The Muslim rulers therefore made a sort of compromise on the implementation of

the Islamic law to the Hindus who constituted the majority of their subjects. Earlier,
the power to interpret law lay with the mullahs who acted as mujtahids. They used
this power by issuing religious decrees or Fatwas. The right to appeal from this
decree lay with the Sadr at the provincial level and with the Chief Sadr at the as the
highest appellate body. The muslim state was a theocracy in which religious leaders
the ulama or the mullahs wielded great influence in the state politics. The politics
divided the people into hostile sects which did not see eye to eye. The sunnis, shias
and the mahdivas persecuted their opponents in bloody conflicts and created law and
order for the state.3
In order to secure peace and tranquillity in their domains without exerting much
financial or administrative burden on the state, they gave recognition to the
personal law of the Hindus and allowed their legal institutions to function though
unaided by the state. As a result, the Hindus continued to be governed by their
own traditions, customs and personnal law which was interpreted by the pandits in
their own panchayats or elders of the communities albeit a Hindu was subjected to
the Islamic law when the rival party in dispute happened to be a muslim or the
state.

The provincial governors, iqtadars and other executive officers possessed some
judicial powers. Even the faujdars and kotwals were authorized to settle petty
disputes. There was seldom any discrimination between the judicial and the
executive function. The amils and the other revenue officers decided revenue
disputes. The panchayats had authority to govern independently. Criminal
punishments were severe.4

AKBAR’S CONCEPT OF JUSTICE

The administrative system of the Mughal Empire was largely the work of Akbar, for
the early two Mughal kings (Babur and Humayun) did not really get the chance to
implement much of a system. The great Mughal kings can best be described as
benevolent despots, who ruled fairly and justly. Most of them did involve their
ministers in decision making. They also attempted to improve the lives of their
subjects, although there was no socialistic work in their times. Humayun's other-
worldly pursuits led him to make a mystical addition to the Timurid doctrine: "He
believed that just as the sun was the centre of the material world, similarly the sultan,
whose destiny was closely associated with that great luminary, was the centre of the
human world."
In a world of monarchical absolutism, the Mughal rulers then garnered their
responsibility for ensuring the welfare of their diverse Indian subjects from the
ethical principles of Islam, as well as the pragmatic need for socio-political stability.
No doubt affected by the rich and variant cultural life of the age and region, the
3
A.L Srivastava, The Mughal Empire ( Shiva Lal Agarwala and Co Pvt Ltd, Agra,3rd e.d , 1959) p.185
4
ibid
Mughals developed an anachronistic capacity for tolerating and accommodating non-
Muslims. Babur's grandson, Jalal-ud-Din Akbar, took up the herculean task of
consolidating Hindus and Muslims--both Shia’s and Sunnis--into a unified civil
society. The effective administration and unification of his vast empire called for
broad religious tolerance and acknowledged equality of the various creeds.

2.1 Reason behind Akbar’s innovative dispensation of Justice

 Personal Legacy
His cosmopolitan disposition was formed through a variety of influences. Akbar's
father, Humayun, developed an affinity toward the Shias over the more inflexible
orthodoxy of the Sunnis. His mother, the daughter of a Persian intellectual, was
thoroughly instructed on the practical importance of charity and religious-political
lenity. From his Rajput wives and acquaintances, Akbar came to learn much about
the idiosyncrasies of local Hindu culture 5. Perhaps most significant to his perspective
of governance were the influential Sufi and Persian mystics that he encountered in
Kabul. His teacher or guru Abdul Latif was so liberal in his religious outlook that the
people dubbed him as a Sunni in the Shia country of Persia and Shia among the
Sunni populace. Akbar learnt the noble lesson of “suleh I kul” or peace with all or the
universal brotherhood which applies in practice in his treatment towards Hindus. As
the apparent result of his mystical affinities and disquieted spirit, Akbar grew
disenchanted with orthodox Islam and its inexorable defenders.

Many of Akbar's actions were influenced by his Mongol heritage. From his ancestor
Ghengiz Khan (r.1206-1227), he inherited a theory of kingship whereby the king
possessed a divine mandate to rule and answered to no other superior. A Mongol
sovereign ruled by centralizing power rather than distributing it. The Mongol
indifference to their subjects' religion is also reflected in Akbar's actions. He
continued the Mongol method of rule which allowed for all faiths to be worshipped in
the Empire.6

The subordination of subjects, not the dictation of social policy, such as religion, was
a Mongol ruler's primary goal. The culturally pluralistic Turk, Timur Gurgan of
Samarkand (r. 1370-1405), added Islam to the Mongol theory of kingship, but
religion did not come to dictate how he should rule. He successfully explained the
sultan's supreme status within the confines of Islam by stating "Since God is one and
hath no partner, therefore, the vice-regent (sultan) over the land of the Lord must be
one."

Timur believed that both religious law and kingship came directly from God and as
such the sultan was only accountable to God. Timur's concepts on kingship meant
that since the right to rule came from God then all actions, whether done in the name
of Islam or not, were justified by the sultan's Divine judgment. Akbar furthered the
existing Muslim theory that the sultan was the shadow of God on Earth. He claimed
that mandate was from God to rule, and also that he had a sovereign nature that
emanated from God. This two-fold doctrine of kingship elevated Akbar above all
people and legitimized the Mughal lineage as eternally sovereign by making the
Mughal sultan recognizable to all in the empire.
5
Nazeer Ahmad, Democracy, Pluralism and Minority rights <
http://www.irfi.org/articles/articles_251_300/democracy3.htm>
6
ibid
  Socio political environment:

Sher Shah Suri was the forerunner of Akbar in adopting the policy of religious
toleration. Akbars politics was not based merely on sentiments and platitudes. The
socio political situation of the country was such that Akbar thought it advisable to
adopt independent views in religious matters. The non- Muslims constituted the
majority of the Indian subjects. Akbar had suffered much at the hands of his own
jealous and unscrupulous kinsmen nor could he depend exclusively on his Muslim
nobles who frequently resorted to revolts. On the other hand Akbar’s highly devoted
Hindu wives won his love and affection. All these considerations deeply motivated
his political state policy. In spite of vehement denunciation from and political
conflict with the imperial 'ulama', through a concatenation of influences, Akbar
drifted toward a more self-derived, amalgamated form of religion. 7

 Akbar’s spiritual awakening:

Akbar married a Hindu princess from Amber and got the services of the Rajput
warriors in return. However he was so impressed with the services of the Rajputs
that he stopped using them as prisoners and ordered the forbiddance of molestation
and rape of Hindu women by the Mughal armies.8 This was the first step of its kind in
the history of India and it was rebuked by the Muslim nobility. However Akbar bore
the criticism with patience and then also went on with other radical reforms such as
abolishment of Jeziya which was a poll tax charged by the Muslims to the non
muslims in their capacity as zimmis. He opened the gates of justice to all and began
making selections on the basis of merit.

As a result of religious discourses held at the Ibadat Khana, Akbar’s belief in the
orthodox sunni Islam was shaken. The sunni mullas held high posts and misused
such power in obtaining grants and discriminating between subjects. The orthodox
sunni Ulema who held important judicial and civil assignments through out the
empire would not let Akbar rule as a liberal king. Akbar being disgusted with this as a
first step towards it removed the wasi or the head priest of the Jama Masjid and
himself adorned the pulpit. He thus began to establish a direct rapport with all his
subjects and consolidated justice administration. This was revolted against and led to
the proclamation called mazhar in September 1579. Prepared by Sheikh Mubarak
and signed by almost all the prominent muslim theologians it recognized Akbar in
his capacity as the just monarch and the” Amir ul mommin” to to be the Imam I Adil,
the supreme interpreter or arbiter of the Islamic law pertaining to civil and
ecclestiacal matters. It did not steal the basic rights of the Mullas as the Mujtahids
but it placed Akbar at the position of the chief Imam thus assuming those powers
which belonged by delegation to the Sadr us sadur or Qazi ul qazat or chief justice of
the Mughal empire. As a matter of fact until that time the mughal empire was
regarded as Muslim state and the ruler was expected to act as Amir ul momnin
leader of the faithful and Amir I adil or the just ruler9. It was in this capacity that
7
J.L Mehta, An advanced study in the history of Medieval India (Sterling Publishers Pvt. Ltd, New Delhi, 3rd
e.d, 1990) vol 3 p 244
8
J.L Mehta, An advanced study in the history of Medieval India (Sterling Publishers Pvt. Ltd, New Delhi, 3 rd
e.d, 1990) vol 3 p 245
9
J.L Mehta, An advanced study in the history of Medieval India (Sterling Publishers Pvt. Ltd, New Delhi, 3rd
e.d, 1990) vol 3 p 249
Akbar was entrusted with implementing the Muslim law over his subjects. What was
given by mazhar was the right to implement the law as the chief imam and to resolve
disputes.10
After the issue of Mazhar religious discourses continued to be held at the Ibadat
Khana which were attended to by leaders of all religions as a result of which he felt
that every religion had sensible people and became far more tolerant and liberal in
his thinking.

 Religion :Din i IIlahi

The spiritual enlightenment of Akbar did not lead to the renunciation of the
materialistic world by him. He was a religious minded and God fearing person. He
wanted to establish brotherhood and fraternity in his polity and his ultimate goal was
to seek national integration. The means was the promulgation of a secular faith and
practice called Din I ilahi11. Due to the absence of any text on this it is very difficult to
define it as perceived by Akbar. A person who wanted to become a member of this
religion had to approach Abu fazl and in turn Akbar with a turban in his hands which
he placed at the feet of Akbar. The latter blessed him by raising him up by the touch
of his shoulders and placed the turban on his head. There were four grades of
devotion to Akbar as the spiritual leader of the Ilahis in ascending order of
importance- property life honor and religion12. A person who pledged to sacrifice only
one of these things for his spiritual guide possessed one degree of devotion. He
embarked upon a long campaign of having the Hindus, especially the Rajputs,
acknowledge his suzerainty by offering them senior posts in his army and
government, and by marriage to Rajput princesses. However, he did not hesitate to
interfere with some of the Hindus' most cherished practices when they offended his
sense of humanity. He forbade child marriage, trial by ordeal, and animal sacrifice,
and permitted widows to marry again. Although he realized that to abolish SATI (the
burning of widows on their husband's funeral pyre was beyond his power, he
ordained that the sacrifice must be voluntary and took personal pains to see that no
compulsion should be used.

 Imperialist Tendencies
A planned policy against the Rajputs and his liberal religious outlook were two ways
in which he achieved imperialism. His political ambition to rule over the whole of
India led to his attempts to unify the nation with uniform justice administration.

2.2 Akbar’s perception of justice:

Akbar believed that "Each person according to his own understanding gives the
Supreme Being a name, but in reality to name the Unknowable is vain." Thus,
Akbar's principled epistemological quest, culled from a broad spectrum of spiritual
and intellectual sources across the subcontinent, coupled with the pragmatic need for
the Mughal dynasty to foster goodwill and cooperation among Hindu and Muslim
sects, brought about a remarkable degree of religious tolerance. This tolerance was
nonpareil, even when considering the religious ferment of the period. He truly
10
www.westedu.com.
11
Richard Hooker, The Mughals: Last three great emperors <
http://www.wsu.edu/~dee/MUGHAL/AKBAR.HTM>
12
J.L Mehta, An advanced study in the history of Medieval India (Sterling Publishers Pvt. Ltd, New Delhi, 3rd
e.d, 1990) vol 2 p. 400.
realized the ill effects of ill treating Hindus who formed the bulk of the majority. He
not only meted out fair treatment to the Hindus and appointed them to high posts, as
Sher Shah and his successors had done, but also tried to remove all forms of injustice
against them.

He abolished Jeziya in his ninth year of reign. He tried to introduce humane social
reforms. As a practical statesman, with a keen sense of justice and unprejudiced
mind he was always eager to enhance his reputation as the just monarch. Being the
khalifa of the age ‘the fountain of all justice’ he wanted to serve as a just monarch. An
intrepid soldier, a benevolent and wise ruler a man of enlightened ideas and a sound
judge of character. Though Akbar did not know how to read and write, he was not
uncultured.

He maintained a library full of books on different subjects and was fond of his
scholars, philosophers and poets. He had a keen sense of art and literature too. Smith
writes that “ Anyone who had heard him arguing with great acuteness and erudition
on a subject of debate would never suspect him of illiteracy”. His ideal kinship was
also high. “Upon the conduct of the monarch” said he, “depends the efficiency of any
course of action. His gratitude to his Lord, therefore should be seen in his just
governance and due recognition of merit; that of his people in obedience and
praises”.13

“Kingship is a gift of God” writes Abu Fazl “and is not bestowed till many thousand
great requisites have been gathered in an individual. Race and wealth and the
assembling of a mob are not enough for this great position” 14

The king in Akbar’s opinion must be just, fair impartial and benevolent. “Tyranny is
unlawful in every one specially in a sovereign who is the guardian of the world”. After
enumerating the qualities that an ideal king should posses, Abu Fazl concludes “In
spite of these qualities he cannot be fit for this office if he does not exercise universal
peace. He believed in peace or Sulah-i-kul.

Akbar was unquestionably the greatest of all rulers of India of all ages. It was an age
of great monarchs. but in many respects he surpassed them all. He was the first real
founder of the Mughal Empire. The secret of his success as an empire builder lay in
his breadth of vision which made his out-look liberal and statesman like. Very early
in life he adopted and practiced the principle of universal toleration. His grand idea
was to place before the country the vision of a homogenous nation, a nation that
would be neither Hindu nor Mussalman but Indian. Tolerance has often been
implemented indirectly, couched under various concepts such as caritas, pax, millet,
tasamuh, ultimate concern, neutrality, humility, liberty, justice, mercy, respect,
grace, etc. Furthermore, the concept of tolerance has been analyzed and redefined by
many. religious tolerance is a strategy that does not imply relativity or indifference,
impertinence or irrelevance of religion, moral neutrality, or religious practices that
clearly harm others. Rather, it is a malleable concept that speaks to the reciprocal
recognition of freedom of conscience of each individual in regards to religion,
offering a temporal environment whereby individuals are unfettered and unimpeded

13
RC Majumdar, HC Raichaudhari and Kalinkar Datta, An advanced history of India
(Rajkamal Electric Press, New Delhi, 4th ed, 2001) pp 453,454,455.
14
A.L Srivastava, The Mughal Empire ( Shiva Lal Agarwala and Co Pvt Ltd, Agra,3rd e.d , 1959) p.187.
by religious persecution. He thereby laid the foundations of a uniform civil code, a
dream India even today is trying to fulfill. Smith in this glorified quote writes “ He
was a born king of men, with a rightful claim to be one of the mightiest sovereigns”.
The claim rests purely on his extraordinary natural gifts, his original ideas and his
magnificent achievements.”

Von Noer however gives a correct account of the Faith “Akbar might have
contemplated the acts of his reign with legitimate pride but many incidents in life
prove him to be modest. It was the people who made a God of that man. One of his
creations will assure him a place among the pre- eminent benefactors of humanity. –
greatness and universal tolerance.

AKBAR’S LEGAL SYSTEM

During the time of the Mughal Empire there was no formal written law, but there
was a keen interest amongst the Mughal emperors to deliver speedy justice to their
citizens. The justice system placed even senior officers within the law, and perhaps
the only person really above the law was the emperor himself. The Mughal emperors
were very keen on justice, but for most of the Mughal period, appealing to the
emperor was a complex procedure. Two notable exceptions were Akbar and
Jehangir, who allowed subjects to directly petition them. In addition to the emperor
there were other officers in charge of justice.

3.1 Courts of Justice:

Being the khalifa of the age ‘the fountain of all justice’ which took up original as well
as appellate cases, he personally heard the disputes and administered even handed
justice with the assistance of muftis and pandits who interpreted the ‘personal laws
for him. Akbar introduced minor changes in the judicial structure of the state and
appointed right thinking men as the justices of peace so as to make the system more
efficient and purposeful. Below the imperial Court there was the court of the Qazi ul
qazat or the chief justice of the empire who was appointed by the emperor but held
office at his pleasure. The Chief qazi was in charge of the main judicial organization
of the state. He appointed the provincial qazis with the approval of the emperor
issued rules and regulation for the proper functioning of the provincial and local
courts and exercised disciplinary control over the judicial services. Almost every
important town had a qazis court which tried civil and criminal cases of both Hindus
and Muslims.15
The local courts of Justice were managed by three types of judicial officers
1. Qazi
2. Mufti
3. Mir i Adl.
The qazi cross examined the parties in dispute and investigated the evidence, the
mufti interpreted the law and the mir I adl delivered the judgement. Ordinarily the
Islamic law was implemented for the administration of justice although in the case
oh Hindus their personal law including their customs and usages was also taken into
consideration.

15
V.D Kulshreshtha’s, Landmark in Indian Legal and Constitutional History ( Eastern Book Co, 7th ed, 1995)
pp 42,43.
In civil cases, the provisional governors, Diwans and other executive officers were
armed with numerous judicial powers within the sphere of their influence even the
subordinate officials such as the Faujdars and the Kotwals were authorized to settle
petty crimes and inflict punishment on defaulters. Ordinarily the high officials did
not distinguish between the exercise of their executive and judicial power. The Amils
and other revenue officials decided the revenue disputes. The village panchayats
enjoyed the sanction of the state to administer justice according to the local
authorities traditions postulates and customs.
In the criminal cases, Islamic law was enforced on all subjects whether they were
Hindu or Muslims. Nevertheless, there was no cut and dried code of civil and
criminal justice in the modern sense of the term. There was no professional lawyers,
trained in law and conversant with social usages and regulations of the state and
since the parties had to plead their cause in person we may presume that justice was
not always done to the simple villager who was helpless against a rapacious official or
an influential opponent. The mughals penal code was severe, mutilation of limbs
and physical torture formed an essential part of it, capital punishment could not be
inflicted by any judicial officer of any degree without the approval of the emperor.
Akbar has issued standing instructions that orders must be obtained from him three
times, after suitable intervals, before a condemned criminal was executed.

3.2 Jutice by universal tolerance:

Akbar’s theory of kingship was the result of gradual evolution. During the early years
of his reign his conception of his position and duty was that of an orthodox Muslim
monarch. He was the then commander of the faithful (Amir ul mummin) and
defender and missionary of Islam, bound to carry out god’s will as expressed in the
Quran and responsible to him only. Like other Muslim monarchs he was atleast in
theory subordinate to the wishes of the entire muslim population (millat) in the
empire.16 The public opinion of the muslim brotherhood or millat was guided and
controlled by the muslim learned divines called the ulema who was consequently
claimed the right to influence the State policy and who welded the great influence.
Akbar sought to remove this check to his will and become supreme authority over his
muslim subjects without being controlled either by the Ulema or the millat. He
attained this object either by promulgating the so called infallibility decree (Mazhar)
in September 1579. The Ulema gave Akbar in writing the authority to accept any of
the conflicting interpretations of the law, which in his opinion was likely to be
beneficial to the state, and also to adopt any line of action for the benefit of his
subjects, provided he could quote in support if each action a verse from the Quran.
This in practice was meant to be uniting ecclesiastical authority with that of secular
power in person.

1. He had felt that the separation of these two authorities had weakened the
state.
2. The next logical claim was to establish his claim to be an impartial ruler of all
his people, muslims and non muslims. This implied the establishment of
common citizenship on the basis of complete toleration to the non- muslims
and their association on equal terms in the central administration. 17

16
RC Majumdar, HC Raichaudhari and Kalinkar Datta, An advanced history of India
(Rajkamal Electric Press, New Delhi, 4th ed, 2001) pp 453,454,455
17
A.L Srivastava, The Mughal Empire ( Shiva Lal Agarwala and Co Pvt Ltd, Agra,3rd e.d , 1959) p.180
Such a policy brought him clash from the orthodox sunnis and the muslim nobility
who had enjoyed a privileged position in the state. These two classes combined and
raised a rebellion. Akbar realized that the right course for him was to disregard the
narrow perspective of the Islamic theory and build a new one based on essential
equality and welfare of diverse creeds and communities in the empire.18
The result of this was the theory of divine right of monarchy so ably propounded by
his scholarly secretary Abu Fazl who sought to prove that the king was something
more than an average human being. He was god’s representative on earth and his
shadow (Zill-i-Alhi) and greater knowledge and wisdom embedded in him.

Akbar was the head of the state, the supreme commander of the forces and the chief
executive and possessed supreme legislative authority. He was also the fountainhead
of justice and personally decided cases and settles disputes. There was no written
constitution to prescribe his duties, lay down his limitations and exercise a check on
his despotism. He was not bound to any course of action except the fear of a rebellion
by the millat and the traditional customary laws and precedents.

3.3 Daily Dispensation of Justice by the Monarch:

An idea of Akbar’s daily dispensation if justice is visible through Akbarnama penned

by Abu Fazl. Early at sunrise he would be available at Jharoka darshan to show
himself to his subjects. Here he was accessible to the people to hear their complaints
and perform state transactions. Next he held an open court which generally lasted
for four and a half hours. People of all sects and both genders were allowed to
present their petitions and represent their case in person. The emperor listened to
them and decided their cases on the spot. After working for those four and a half
hours he retired and appeared again the afternoon where now he held a full darbar in
the Diwan I aam. Here he attended to the daily businesses such as the karkhanas the
forces the promotion of the mansabdars and the grant of jagirs. In the evening and
night he met his ministers and advisers in the private hall Diwan-i- Khas. Where
special businesses relating to international administration and foreign relations was
attended to. Later in the night confidential matters such as war and foreign policy
was discussed with his ministers. This confidential room was called as the Daulat
Khana.

3.4 Administration of Empire & Justice:

The Central government19 under Akbar after it was well organized and evolved
consisted of four departments each presided over the other by a minister.

1) The Prime Minister or the Vakil

2) Finance minister or the Diwan or Wazir
3) Pay Master general or the Mir Bakshi
4) Chief sadr or Sadr us sadur

18
RC Majumdar and P.N Chopra, Main Currents of Indian History ( Sterling Publishers Pvt Ltd, New Delhi, 2nd
ed, 1994) pp.81.
19
A.L Srivastava, The Mughal Empire ( Shiva Lal Agarwala and Co Pvt Ltd, Agra,3rd e.d , 1959) p.189
Early in Akbars reign ministers were appointed by the Prime Ministers and their
number was never fixed. On taking the reigns of the government in his own hands
Akbar deprived the prime minister of this privilege. He began appointing and
dismissing ministers as he liked. The other ministers were distinctly the prime
ministers subordinate and they did not constitute a council. They were called
separately to discuss matters with the emperor.

The Prime Minister under Akbar bore the title of the vakil. Formerly he was the de
facto head of all departments of the central government and had the power to
appoint and dismiss other ministers who were looked upon as his subordinates. But
after the dismissal of Bairam Khan the vakil was gradually deprived of his powers.
The post soon became redundant and did not carry with it serious duties except those
of an advisor to the emperor or of his ve during his absence.

The finance minister of Akbars time was called the Wazir. The finance minister
was Muzaffar Khan who presumed to work independently of the emperor and was
removed and Raja Todar was appointed in his place. He was in charge of the
revenues ad expenditure of the empire. His main duties were to formulate rules and
regulations for the land revenue settlement and for fixing rates of all other kinds of
revenue, to scrutinize and control disbursements.

Public Records

Almost all official records were sent to his office for his inspection and storage. He
was required to recommend the recruitment of important diwans and to guide and
control them. He was required to affix his seal on all important transactions and free
grants of land. The diwan enjoyed wide powers and discretion. His work was so
heavy that assistants had to be appointed to help him. One of these was Diwan i
khalsa who was in charge of the khalsa and the other was Diwan i jagirs who were
incharge of the jagirs. The third was Sahib i taujih who was in charge of military
accounts and the fourth was Diwani i bayutut whose duty was to supervise the
accounts of various karkhanas or workshops attached to the courts. The treasury
which was in charge of an officer called Mushrif i Khazana was also under the control
of the diwan. All these officers were provided with the necessary help. The Mir bakshi
or pay master general was next in rank to the prime minister. He was required to
maintain a register in which the names of all the mansabdars and their salaries were
recorded.20

The Mir Bakshi was also required to post news reporters and spies in different
provinces and to receive their report and post them before the king. He was not the
chief of the military forces but at times was required to conduct important military
operations.

The Chief Sadr was a very important minister in the kingdom. He had three fold
duties and was to serve as the religious advisor to the emperor, to disburse royal
charity and to function as the chief justice of the empire. As the chief religious
advisor he was to give authoritative ruling on the conflicting interpretations of the
shariat and to enforce it. It was his duty to see that the emperor and his government
did not o astray from the injunctions laid down in the quran. In his capacity as the

20
Peter Robb, A History of India (Palgrave, NewYork, 1st ed,2002) p. 88
chief qazi the sadr was the second highest judicial authority next only to the emperor
who held court and decided cases usually the appeals from the chief qazi’s courts. In
this capacity the chief qazi recommended candidiates to the appointment of
provincial, district and city qazis. Like other Ministers he had an official
establishment with clerks, accountants and peons.

After Akbar had re-organized the government and rejected the Islamic theory of
governance the Chief Sadr naturally ceased to be his supreme religious advisor. Now
the chief sadr was required to possess completely different qualifications, which in
the words of Abu Fazl were “ As the circumstances of the men have to be inquired
into before the grants are made and their petitions must be considered in fairness an
experienced man of correct intentions is employed for this office. He ought to be at
peace with every party and must be kind towards the people at large in words and
action. Such an officer is called the Sadr. Akbar clipped the powers of the chief sadr
so far as they related to the grant of scholarships and religious jagirs. Akbar took
personal interest and introduced several important reforms in the department. He
Laid down elaborate rules and conferred powers on other important courtiers to
bring important cases to his notice. In view of this it was not necessary that petitions
of free grants should go to the emperor through the chief sadr21.

An enquiry revealed that there had been great corruption in the department in the
early days of his reign and many undeserving persons had been given grants of land.
Akbar ordered the resumption of such lands and appointed separate sadrs in the
provinces with a view to curtail the powers of the chief sadr. After this the
department is said to have functioned efficiently. Apparently there was tremendous
accountability, because we have records of even high ranking officials like provincial
governors being dismissed after complaints were made against them by the citizens.

Besides the four ministers there was a Mir Saman who wielded great authority and
influence. He held the rank of a minister during the days of Jahangir and other
muslim emperors.

3.4 Constitution of courts:

The emperor created a separate department of justice (Mahukma-e-Adalat) to

regulate and see that justice was administered properly. On the basis of the
administrative divisions at the official head quarters in each Province, District
Paragana and Village separate courts were established to decide civil criminal and
revenue cases. At Delhi the Imperial courts of Delhi were empowered with original
and appellate jurisdiction.

Imperial capital: At Delhi which was the capital (Dural Sultanat) of the Mughal
Emperors in India three important cases were established: 22

The emperors courts presided over by the Emperor was the highest court of the
empire. The court had jurisdiction to hear original civil and criminal cases. As the
21
J.L Mehta, An advanced study in the history of Medieval India (Sterling Publishers Pvt. Ltd, New Delhi, 3rd
e.d, 1990) vol 2 p.p 370,371,372
22
V.D Kulshreshtha’s, Landmark in Indian Legal and Constitutional History ( Eastern Book Co, 7th ed, 1995)
p.p 18, 19, 20
court of first instance generally the emperor was assisted by the Daroga e adalat, a
mufti and a Mir Adl. In the criminal cases the Mohtasib e Mumalik or the chief
Mohtasib like the Attorney General of India today assisted the emperor. In order to
hear appeals the emperor presided over a bench consisting of the chief justice (Qazi
ul Wazat) and Qazis of the Chief Justice’s Court. The Bench decided questions both
of fact and law. Where the emperor considered it necessary to obtain authoritative
interpretation of law on a particular point the same was referred to the Bench of the
Chief Justice for opinion. The Public was allowed to make representations and
appeals to the Emperor’s Court in order to obtain an impartial judgement.

The chief court of the Empire was the second most important court at Delhi the sea
of the capital. It was presided over by the Chief Justice (Qazi ul Qazat) 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. The
third important court was that of the chief revenue court at Delhi. It was the highest
court of Appeal to decide revenue cases. The court was presided by the Diwan e Ala.

Apart from the above stated three important courts there were also two lower courts
at Delhi to decide local cases. The court of the Qazi e Askar was specially constituted
to decide cases of the military area in the capital. The court was mobile.

Provinces: In each province or subah there were three courts namely the
Governor’s own Court and the Bench, the chief Appellate Court and the chief revenue
court.
The governor’s own court (Adalat-e-Nazim) had original jurisdiction in all cases in
the provincial capital. It was presided over by the governor. The provincial Chief
Appellate court was presided over by the Qazi-e-subah. Provincial chief revenue
court was presided over by the Diwan e subah.

Districts (Sarkar) In each district there were 4 courts, namely the chief civil criminal
court of the district, faujdari Adalat, Kotwali adalat and Amalguzari Kachcheri.
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 too. He was officially known as “Shariyat Panah”. Six
officers attached to this court were – Darogha e adalat, Mir Adl, Mufti, Pandit or
Shastri, Mohtasib and Vakil-e-Sharayat. Appeals from this court lay to the Qazi-e-
subah.Faujdari adalat dealt with criminal cases concerning riots and state security. It
was presided by the faujdar. Appeals lay to district Qazi. The Amalguzari Kachcheri
decided all revenue cases. Amalguzar presided over this court. An appeal is allowed
to the Provincial Diwan.23

3.5 Provincial Administration:

Paraganah- In each Paraganah there were three courts namely the Adalat e
Paraganah, Kotwali and Kachcheri.

23
RC Majumdar, HC Raichaudhari and Kalinkar Datta, An advanced history of India
(Rajkamal Electric Press, New Delhi, 4th ed, 2001) p.p 445 , 447
Adalat e Paraganah was presided over by the Qazi e Paraganah. The court had
jurisdiction over all civil and criminal matters arising within the original jurisdiction.
It included all those villages which were under the Paraganah court’s jurisdiction.
Four officers attached to the Adalat e Paraganah were – Mufti, Mohtasib e
Paraganah, Darogha-e-adalat and Vakil e shara.

Court of Kotwali was presided by Kotwal e Paraganah to decide such cases as are
found in the modern police act. Appeals were made to the District Qazi. Amin was
the presiding officer in the Kachcheri which decided revenue cases. An appeal lay to
the district Amalguzar.

Villages- The village was the smallest administrative unit. From the ancient times
the village council were authorized to administer justice in all petty civil and criminal
matters. Generally the Panchayat meetings were held in public places. It was
presided over by the 5 panchs elected by the villagers. Sarpanch or village headman
was generally the President of the panchayat, No appeal was allowed from the
decision of the Panchayat. They were governed by customary law.

Institution of Lawyers:

Litigants called Vakil were represented before the courts by legal experts. Though
there was no association like the “Bar Association” as it exists today still lawyers did
play a significant role. Two Muslim Indian codes namely the Fiqh e Firoz Shahi and
the Fatwa e Alamgiri clearly stated the duties of the vakil. Ibn Batuta was working as
a judge during the reign of Mohammed Tughlaq mentioned vakils in his book.
Mawardi referring to the legal experts states that specialised knowledge of law was
necessary for both qazi and legal practice. Sometimes they gave free legal advise and
maintained a high standard of behavior and learning. They were entitled to an
audience.

3.7 Judicial Procedure:

A systematic judicial procedure was followed by the courts during the muslim period.
 In civil cases, the plaintiff or his duty authorized agent was required to file a
plaint for his claim before a court of law having appropriate jurisdiction. The
defendant assisted in the plaint was called upon the court to accept or deny
the claim. Where the defendant denied the claim the court framed the issues
and the plaintiff was required to produce evidence supporting his claim.
Witnesses could be produced by the defendants and they could be cross
examined. Judgement was delivered in open court.

 In criminal cases a complaint was presented before this court either

personally or through a representative. To every criminal court was attached a
public prosecutor known as the Mohtasib. In exceptional cases where the
public trial was against the interest of the state or the accused was
dangerously influential the judgment was not announced in open court. 24

24
V.D Kulshreshtha’s, Landmark in Indian Legal and Constitutional History ( Eastern Book Co, 7th ed, 1995)
p.p p.25
3.8 Evidence was classified by the Hanafi law into three categories :

1. Tawatur- full corroboration

2. Ehad – testimony of a single individual
3. Iqrar – admission including confession.

The court always preferred tawatur to all other kinds of evidence. Women were also
competent witnesses but at least two women were required to prove appoint for
which one man was sufficient.

3.9 Trial by ordeal:

Akbar encouraged the system of trial by ordeal mainly to please the Rajputs. Akbar
gave up the idea as it was strongly opposed by the scholars of the Hindus.

3.10 Appointment of Judges and judicial standard:

During the Mughal period the chief justice and other judges of higher rank were
appointed by the emperor. Sometimes the chief justice and other judges were directly
appointed from among the eminent lawyers. A chief provincial qazi having judicial
reputation was also promoted to the rank of the chief justice. Corrupt judicial officers
were punished and dismissed. Every possible effort was made to keep up the high
standard of the judiciary.

“Be just, be honest and be impartial. Hold the trials in the presence of the parties
and at the court house. Do not accept presents from the people or place you serve …
know poverty (Faqr) to be your glory. (Fakhr).

3.11 Crimes and Punishments:25

The shariat is based on the principles enunciated in the Quran. Any violation of
public rights was an offence against the state. Islam provides that the state belongs to
God and therefore it is the duty if the ruler to punish criminals and maintain law and
order. Three forms of punishments were recognized.. Hadd Tazir and Qisas.

 Hadd provided a fixed punishment as laid down in Shara, Islamic law for
crimes of theft robbery whoredom (Zina), apostasy (Ijtidad), defamation
(Itteham e Zina) and drunkeness (Shurb). It was equally applicable to
Muslims and non- muslims. The state was under a duty to prosecute all those
persons who were guilty under Hadd. No compensation was granted for the
same.

 Tazir: was another form of punishment which meant prohibition and it was
applicable to all the crimes which were not classified under Hadd. It included
crimes like counterfeiting coins, gambling, causing injury, minor theft etc..
The courts could exercise discretion in awarding the punishments. New
methods were implemented like cutting of the tongue, impalement, etc..

25
V.D Kulshreshtha’s, Landmark in Indian Legal and Constitutional History ( Eastern Book Co, 7th ed, 1995)
p.p 26,27
  Qisas or blood fine was imposed in cases relating to homicide. It was a sort
of blood money paid by the man who killed another man if the murderer was
convicted and not sentenced to death for his offence. Amauslim jurists
supported Qisas on the basis that “right of God’s creatures should prevail” and
only when the aggrieved party has expressed his desire the state should
intervene. Contempt of court was a serious offence and was gravely punished.
Trason or Ghadr was a crime against God and religion and therefore against
the state. No consideration was shown for their rank, religion and caste. The
death penalty normally had to be confirmed by the emperor, but there seem to
have been departures from the rule. A Dutch resident of India states that fines
represented the normal mode of settling all disputes in Mughal India. Capital
punishments and mutilations were frequent, and there are records of
impaling, dismemberment, and other cruel punishments. They were,
however, limited in their incidence and were inflicted only under the royal
orders. Furthermore, they were confined to those cases where an example was
to be made of the individual concerned. Imprisonment was not a method of
punishment that appealed to the Mughals. It was seldom used as a sentence in
private cases, though it was sometimes resorted to for preventive purposes.
Whipping was commonly used. The Muslim punishment of parading the
offender in an ignominious condition seems to have been frequently used, as
it coincided with the Hindu tradition as well.

3.11 Prisons

There were two kinds of prisons, one for prisoners of high rank and the other for
ordinary criminals. Important nobles and princes guilty of treason and rebellious
were imprisoned in the fortress situated in different parts of the country, the
prominent among them being those in Gwalior, Rathore, Bhakkar and Bayana. They
were jails at the capital and at headquarters of the provinces, districts and the
paraganas.26 Besides regular prisoners undertrials were also kept confined in jails.
The jails were frequently inspected by high officials of the judicial department who
inquired into the conditions of the prisoners and released those who had suffered
enough. Conditions of accommodation , sanitation and health and dietary issues
were not as satisfactory as today.

3.12 The Police system

Akbar’s police system was well organized and efficient. The police may be divided
into three categories of urban, district and village police. In all the cities and towns,
public order was was maintained by the kotwals. Kotwals were the head of the city
police and the committing and trying magistrate as well. He had to apprehend
thieves robbers and other petty criminals and had to punish them. He had to
implement social legislation and keep an eye on public property for want of thefts.
He was authorized to inflict pain and punishment such as torture mutilation of limbs
and flogging.27 He was however not entitled to inflict the death penalty. In the
district, law and order was maintained by the faujdar who was assisted in his work
26
A.L Srivastava, The Mughal Empire ( Shiva Lal Agarwala and Co Pvt Ltd, Agra,3rd e.d , 1959) p.p 224 and
225
27
ibid
by the amils and revenue officers of the paraganas. There were more than one thana
in a paragana and Akbar following the immemorial custom of his country followed
the principle of local responsibility. If a crime occurred at the boundary of the village
then the headmen of both the villages were responsible for it.

The police arrangement under Akbar was fairly efficient and maintained a high
standard of public order and tranquility. But in the view of the law abidingness and
high standard of morality and severity of the penal law the standard of public
security was not lower than it is in our time.