ADMINISTRATION OF JUSTICE IN MUGHAL INDIA

Author(s): S. P. Sangar
Source: Proceedings of the Indian History Congress , 1964, Vol. 26, PART II (1964), pp.
41-48
Published by: Indian History Congress

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 41

the Deccan subas, manifest mental and moral qualities, judgment,

resolution, courage, talent for conceiving and executing surprises and a
high moral purpose that constitute military genius. Skill in devising
stratagems or in executing tactical manoeuvres prove the existence
of a particular or special bent of mind in a General. But the
charismatic character of Shivaji hold on the mass-mind, the spiritual
fervour, enthusiasm and devotion for the cause he communicated to
the rank and file, the common trooper no less than the highest officer
and the civilian are achievements associated with genius.

Shivaji's errors - and he was human enough to err - benefitted

his adversaries very little. »Shivaji turned them to good account by so
managing things that loss in human lives was minimised and the morale
of the army remained high. His two escapes - one fromPanhala besieged
by Sidi Jauhar, and the other from Agra - can be cited as examples.
The period of regular offensive warfare by land and sea was not one
of guerrilla enterprises. Maratha fighters had become seasoned iroops;
Maratha officers ready to carry on their own. These considerations
are enough to show that Shivaji'* genius for war was not limited to
genius for guerrilla war.

(ii) Administrative History

ADMINISTRATION OF JUSTICE IN MUGHAL INDIA

by
S. P. Sangar

In Mughal jndia, there were three agencies in general charge

of judicial administration. The Emperor and his agents, like the pro-
vincial governor, the faujdar in the sdrkar and the kotwdl , usually ad-
ministered political cases.
The qazi administered Shar'i or sacred law. His jurisdiction was
confined not only to questions connected with religion: He decided
disputes concerning family law and marriage, inheritance or auqaf
and also criminal cases

For the Hindus and the village people, there were the courts of t
Brahmin Pandits and the caste elders. They administered the comm
(unwritten) law or codes of tribal traditions. They were not subordin
to the qazi, nor had anything to do with the Shar'i law.

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 42

The Emperor and his Court

In respect of criminal justice, the Shari* a had left a wide field to

the discretion of the sovereign.1 The Emperor was the highest au-
thority in the kingdom and was the fountain of justice. It is wiong to
say, as alleged by the foreign travellers, that his will was Jaw in all
affairs.3 There was the Islamic law and he dared not transgress the
boundaries of the Shari'a without provoking misgivings in the hearts
of the orthodox.

The Mughal Emperor held his court every day where

ordinary cases were decided. Alibar held his court after prayers and
administered justice there.8 Every Mughal Emperor, however, set
apart a day of the week for administration of justice. In the case of
Akbar it was Thursday,4 for Jahangir Tuesday and for Shah Jahanand
Aurangzeb Wednesday.
No court was held on the special day reserved for the administration
of justice. Straight from the ddrshan window, the Emperor, followed
by officers, qazis , muftis , scholars and the koiwal, went to the Private
Audience Hall. From 8 O'clock in the morning till noon the Em-
peror continued deciding cases. As a court of first instance he got the
details of the complaints from the plaintiffs, tried to ascertain the facts
by inquiry, consulted the lawyers about the law and then pronounced
judgment.
Besides the special day reserved for administering justice, the
Mughal Emperor used to hear cases in the Diwan-i-Am also on almost
all the days of the holding of the court. According to Bernier, Aurang-
zeb devoted two hours on another day to hear in private the petitions
of ten persons selected from the lower order. . One day he fixed to
attend the justice -chamber, called ř Adalat Khana , where he was. assisted
by two principal qdzis .B
As a court of first instance and as the highest court of appeal, the
Emperor was supposed to dispose of a large number of cases. This,
however, was not possible; Many plaintiffs could not reach his court
for fear of the provincial or local authorities, long distances and
unsafe roads.

Executive Officers and Administration of Justice

Governor

The govrnor, like the Emperor, set apart a day for administering
justice in person.6 The qazi and other law officers attended the court

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 43

and helped the governor in deciding cases. The procedure followed

could not be different from that of the imperial court.

The governor inquired into the cases of the captives that were sent
to him by the local officers and dealt with them in accordance with the
law,*

Fdujdar

The fdujdar was responsible for the maintenance of law and order
in the district. He took measures to guard the roads against the
activities of the robbers.8

Koiwal

The Kotwal was required to attend the court of justice held by

the Emperor or the governor. In Aurangzeb's/carmdw his duties had
been made very clear. Whenever his men arrested a culprit and brought
him to his chabutrd , the kotwal was personally to investigate the charge
against him. If he was found innocent, he was forthwith to be released.
When the qaz'i sent a culprit to him for detention, the kotwal was to
carry out the qd&s orders and keep the person concerned in prison.
He was to send the detenue to the qazi's court every day so that his case
could be decided quickly.9
Thanedar

In the pargand there was the court of the thaneddr at least during
the reign of Aurangzeb. Thè Thanedar was entitled as ř Tahawar Sahar 9 or
c Tdhdwar Ddstgah*. The gumasta , news-writer, biographer, chaudharis ,
and qanungos were the officials usually present at the court of the
Thanedar. There used to be a naib or assistant, tdhawar Dastgdh , also.10

Aurangzeb had ordered that local cases should be tried by local

officers in their courts.11

The Qflzt :

The qazi was required to sit for Justice in an open place in the
middle of the town, one well known to the people. It was not to be
in a mosque. According to the Fatdwa-i-Alamgiri and the Dictionary of
Islam, he could, however, sit in a mosque. He could, if he so desired,
decide cases in his house. It was preferable if the house, like the
mosque, was situated in the middle of the town.1®

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 44

In case of non-Muslims, special magistrates could administer

justice. If however a Muslim had an interest in the case, the
qazi alone was competent to deal with it in accordance with the
Muslim law. A Shi' a or a non-Muslim could not decide the case
of a Sunnite.18

Usually the qazis did not enjoy good good reputation. "In
handbooks of the law of all times 'the qazis of our times' are repre-
sented as unscrupulous beings whose unreliable judgments were
chiefly directed by their greed.14" 'Bad qazis' were there always in
all times and most qazis were corrupt and ignorant.15
The same was true in Mughal India. The contemporaries are one
in their opinion as to the covetousness of the qazis. Money was their
main consideration. Those who could appease their greedy natures were
sure to receive favourable decisions. Aurabgzeb's first Chief Qazi,
Abdul Wahab Borah, was notorious for corrupt practices and within
sixteen years of his office came in possession of a fortune of over 33 lacs
of rupees. Some qazis were known for their honesty. Sheikh-ul-Islam,
son and successor of Abdul Wahab, was absolutely uncorruptible. He
showed no concern with the ill-gotten money of his father ; rather he
gave away his own share of it in charity. He avoided corrupt practices
to such an extent that he did not accept even the customary presents
and gifts from his nearest relations and friends.16

Muftis

The qazis were to be assisted by the Muftis. The muftis were those
who gave the fatwa by a judicial consultation based on one or more
precedents. The muftis expounded the law and supplied the qazi with
fatwas or decisions.1 *

Position of the Qazi in Mughal India

Like other Muslim countries, the qazi held a prominent place in
Mughal India as well. The Chief Qazi was appointed by the Emperor
and he could appoint his subordinates. The practice of administering
justice by the qazis was the same in the same provinces as at the centre.
In 1671, Aurangzeb learnt that the qazis of the province of Gujarat
enjoyed holiday for three days in the week, held their court for two
days and on other two days attended the governor's darbar , A farman
was issued to the Diwan of Gujrat that such a practice was contrary to
the convention followed at the centre and in other provinces. They

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 45

were ordered to have only Friday as holiday, to attend the governor^

darbar on Wednesday and hold their court on all the other five days.
The Emperor even fixed the timings of the court. The judges were
required to sit in their courts for doing justice from two gharis after
daybreak toa little after midday and retire to their houses at the time
of zuhar prayer.18
Bernier lamented that the Indian judges were not armed with
sufficient powers to redress the grievances of the oppressed subjects.19
Gases of oppression of the subjects at the hands of the officials and of
official corruption do not seem to have worried the qazi much.

Cases of non-Muslims

It seems that the penal law for the Hindus was the same. In the
villages, however, there were panchayaX courts by the caste elders to
decide cases of common law.

According to an agreement of 1618 between Prince Khurram, the

Mughal Governor of Gujrat and Sir Thomas Roe, the English
Ambassador at Jahangir 's court, the East India Company had been
permitted to decide cases of dispute between the English themselves.*0
Punishment

In Mughal India, provincial governors and other executive officers

were not allowed to inflict capital punishment in an arbitrary manner.
A f arman of Akbar in 1582 forbade the provincial governors to award
death punishment without his permission.21 When Akbar himself acted
as a judge, the guilty was given death penalty only when the order
had been given for the third time*3. Jahangir had ordered that no
person against whom death sentence had been pronounced, was to
be punished until sunset. Jahangir once issued orders for the remission
of capital punishment of an offender, but before the scond and revised
orders reached, the criminal had already been executed. It was to
avoid the repetition of such an incident that he felt the necessity of
giving the above orders.28 Jahangir had reserved to himself the
authority of awarding the capital punishment. Whenever the provircial
governor felt the necessity of inflicting this penalty on any offender, he
was required to take royal permission before executing the sentence.24
The same was true of Shahjahan's reign:

Death penalty could be inflicted by hanging, beheading, and impaling.

Other methods were to get the condemned torn to pieces by dogs,

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 46

have them trampled by elephants or bitten by snakes. Death punish*

ment could also be inflicted on the accused by throwing him down
from the roof.'5

Other forms of punishment were mutilation, flogging, banishment,

imprisonment, fines and confiscations, forfeiture of rank and title,
forbidding the court and dismissal.

Mutilation was resorted to only in extreme and rare cases, parti-

cularly on habitual and notorious robbers and rebels. The Governor
of Bihar, Afzal Khan, defeated the rebel faqir who had assumed the
name of Khusrow, captured him and then tore him to pieces limb by
limb. By this he earned the displeasure of Jahangir who was against
the death penalty on a man, though a rebel, who had expressed
filial relationship with the Emperor. He, howeer, pardoned Afzal
Khan due to the intercession of the Bengal's Governor, Islam Khan.**

Banishment to Mecca as an exile was a popular form of punish-

ment in Mughal India.

So far as imprisonment was concerned there was usually no specific

rule or period for it. That went hard for the majority of the prisoners.
There used to be three 'noble-prisons or castles' in Mughal India.
One was at Gwalior, second at Ranthambore and the third at Rohtas.
Criminals condemned to death punishment were usually sent to the
fort of Ranthambor. They met their doom two months after their
arrival there. The 'Governor then bringing them to the top of the wall
and giving them a dish of milk, which having drunk, he is caste
down thence on the rocks.' The Gwalior fort was reserved for the
'nobles that offend.' To Rohtas were sent those nobles who were
condemned to perpetual imprisonment, from whence 'very few returned
home."7

For temporary confinement there were the lock-ups in the cities

known as the Chabutra of the kotwal .*8

According to Muslim law, the qazis or magistrates were expected to

visit the prisons and inquire into the conditions there, and release those
who showed sign of repentence. Usually, however, they neglected their
duty. The only redeeming feature for the prisoners was that orders
for their release were issued on special occasions. Those occasions were
birth of a crown prince, recovery of the Emperor or a royal prince from
long illness, or visit of the Emperor to some of the prison fortresses

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 47

during royal tours. On the birth of Prince Salim, Akbar ordered that
all the prisoners in the imperial dominions who were shut up in the
fortresses on 'account of great accounts* were to be feleased.29
Soon after his accession, Jahangir ordered the release of all those
persons who had been imprisoned for a long time in the forts.80 In 1610
he released some of the prisoners in the Gwalior fortress.®1 Six years
later while he happened to pass by Ranthambor, he ordered the release
of some of the prisoners there.82 In 1618, he inspected the condition of
the prisoners in that fort. With the exception of those convicted for
murder or other dangerous crimes, he freed them all and to Ceach one
in accordance with his circumstances gave his expenses and dress of
honour.'

There were standing instructions during Shahjahan's reign that

whenever the Emperor passed by ä fort, the cases of the prisoners
there should be brought to his notice. When in the beginning of his
reign he visited the fon of Gwalior, he gave orders for the release of
all prisoners excepting those charged with very serious crimes.88 , In the
eleventh year of his reign, he again happened to pass by that fòrt. He
inspected the cases of the prisoners there, found only eleven with sen-
tences of long duration and set them free.84

On the occasion of the celebrations of recovery from illness of the

favourite princess Begum Sahib, Shahjahan released prisoners in 1638.8ß

In the 46th year of his reign (1 703), Aurangzeb ordered Mohammad

Mas'ud that all the prisoners confined should be set free with the excep-
tion of a faqir.
Footnotes -

1 Islamic Society and The West , Vol. I, Pt. II, p. 116.

2 De Laet, p. 93 ; The Embassy , pp. 89, 104, 435 ; English Factories
1618-21, pp. 14-15.
3 Akbar Nama, Bev. iii p. 373, Text, iii, p. 717.
4 Ibid., Bev. iii, p. 1069. ; Text, III, p. 717 ; Monserrate»s Commentary
pp. 209-12-
5 Bernier, p. 263 ; Manucci,ii, p. 462.
6 Mirat-i-Ahmadi i, p. 275.
7 Mirat-i-Ahmadi ì p. 282.
8 Mirat-i-Ahmadi , pp. 282-83.
9 Jaipur Akhbarat, 49th year.
10 Mirat-i-Ahmadi , i, p. 257.
11 Hurgronej, p. HI; Muslim Institutions, p. 151; Hedaya, Eng. Tr. by Hamilton.
2nd ed. p. 337. -

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 48

13 Muslim Institutions, p. 152.

14 Hurgronje : Mohammadanism, p. 111.
15 Encyclopedia of Islam , ii, p. 606.
16 Mughal Administration , p. 98.
17 Dictionary of Islam , p. 367.
18 Mirat-i-Ahmadi , i, p. 275.
19 Bernier, ii, p. 253.
20 The Embassy of Sir Thomas Roe, p. 478.
21 Akbar Nama, Bev. Ill, p. 559 ; Mirat,i, p. 163.
22 Monserrate, p. 209.
23 Tuzk Bev., II, p. 28 ; Text, II, 242.
24 Thevenot, III, p. 19.
25 Early Travels , p. 326.
26 Akbar Nama , Text, II, pp-173-76; Bev. II, pp. 269-73 ; Badauni, Text, II.
pp. 52-53 ; Tabaqat , Text, II, pp. 158-59 ;.
27 Baharistan-i-Uhayb i, i, pp 89-91.
28 Early Travels, p. 145.
29 Jaipur Akhbarat, 49th year.
30 Akbar Nama, Bev, II, pp. 504-5 ; Fanshta, II, p. 350 ; Badauni, Text, II,
p. 120 ; 124 ;.
31 Tuzk , Bev. I, p. 10 ;
32 Ibid., pp. 270 ; 345.
33 Ibid., I, p. 256 ; II, pp. 59-60.
34 Lahori, I, p. 245.
Ibid, p, 246.
35 Ibid., II, p. 355.

(iii) Social & Cultural History ( including Art , Religion & Literature)

STRAY REFLECTIONS ON HINDU- MUSLIM RELATIONS

(1000-1526)
by
Birendra Kumar Singh
(Summary)

There is great divergence of opinion on the question of Hindu-

Muslim relations in early medieval India. Drawing upon the same
source material, historians arrive at different conclusions. A casual
student of history is sure to feel puzzled on encountering two diametrically
opposite views on the same problem. Whereas one school of thought holds
that 6the two great communities, although they lived side by side, moved
each in its own orbit, and there was yet no sign that the 'twin shall
ever meet', the protagonists of the other school are of the opinion that

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