Muslim Period.

C3
hapter:
The Muslim Period: Judicial System of Mediaeval
India1
Muslim period marks the beginning of a new era in the

legal history of India/Bangladesh. Arabs were the first Muslims
who came to India. They came in the 8th century and settled
down in the Malabar Coast and in Sind but never entered further.
As it is, the Arabs conquered the Persians, Afghans and

Turks, and converted them to Islam and it was the Afghans and
Turks who were let loose on India. Though the Prophet
prohibited unprovoked attacks, the Gaznis and Ghoris who were
animated by the lust for gold and pretended enthusiasm for Islam
had an easy victory over the Hindus who were enfeeble by their
comforts, luxuries and internal disagreement.
A. Causes or Reasons of the Downfall of Hindu Kingdom

The downfall of the Hindu period began towards the end
of 11 and the beginning of the 12 th century. Local Hindu Rajas
th
were attacked and defeated by foregin invaders of Turkish race.

Gradually old Hindu Kingdoms began to disintegrate. Out of the
various political, military, social and economic factors some
important causes of the downfall of the Hindu Period may be
stated as follows:
1
Kulshreshtha, V.D, Landmark in Indian Legal and Constitutional History, 9th Edition,
Eastern Book Company, 2009, pp.16-31.
The Muslim Period: Judcial System of Mediaeval India
I. Lust for Supremacy: There were great mutual distrust

created amongst the contending states as they were
involved in dispute and struggles for increasing their
own supremacy over others, which prevented their
political unity against the common enemy and faced
great danger from foreign invaders.
II. Lack of Strong Leadership: There was no leadership,

capable of controlling and guiding the political and
military talents and uniting Indians against the
common foreign enemy.
III. Influence of great feudatory families: The real

weakness in Indian administration lay in the influence
of the great feudatory families whose power and
ambition constituted a perpetual threat to the stability
of the central government.
IV. Caste System: Hindu Kingdoms also suffered from

the prevailing caste divisions.
V. Treachery of Local Individual chiefs or high

officers: One of the most contributory cause of the
defeat was the treachery of the local individual chiefs
or high officials for the sake of power and money. The
enemy took full advantage of this weakness.
VI. Lack of awareness: The Indian leadership was not

vigilant, it was shambling, unpatriotic and politically
disunited.
B. Muslim Social Order: Political Theory and Religion
24
 The social system of Muslims was based on their religion

‘Islam’. The Muslims followed the principles of equality for
men and they had no faith in the graded or sanctified
inequality of caste system. Muslim religion places every man
on an equal footing before God, overriding distinctions of
class, nationality, race and color.
 The main idea of the Muslim rule in India was its own self-
preservation and political domination over Hindus.
 The political theory of Muslims was governed by their

religion, ‘Islam’. It was based on the teaching of the Quran,
their religious book, the traditions of the Prophet and
precedent.
 The political institutions which were adopted and developed

by the Muslims were based on the ideas given by the Greek
philosophers. Sovereignty in a Muslim State belonged to
God.
 The Political theory laid emphasis on the fact that all Muslims
formed one congregation of the faithfuls and it was necessary
for them to unite closely in the form of an organized
community. Any attempt to break away from the organized
community was condemned by the religion.
 All the members of the community elected the Khalifa or

Caliph as the Commander of the faithfuls. It was made
obligatory on all Muslims to owe allegiance to the Khalifa
who was also their ruler. In India the Sultans of Delhi, though
absolute regents claimed to be the representatives of the
Khalifa.
25
 The Quran being of absolute authority, all controversy

centered round its interpretation, from which arose the
Muslim Law or Sharia.
C. Historical Introduction of Muslim Rule in India

 In the late 10th and early 11th centuries, Mahmud of Ghazni, a
Muslim of Turkish race attacked India from the North West.
 In 1191, Muhammad of Ghor attacked India, but he was

defeated by Hindu Rajas led by Prithvi Raj, a Rajput hero.
 Next year in 1192, Muhammad of Ghor defeated Prithvi Raj

and established Muslim Sultanate at Delhi by conquering
most of northern India.
 In 1398, Tamurlane, a Mongol conqueror captured Delhi and

ended the Sultanate of Delhi.
 In the middle of the 15th century, the Sultanate was revived.
 In 1526, Babur, a descendant of Tamurlane and Chengis

Khan, defeated Ibrahim Lodi at Panipat and captured Delhi
and founded Mughal Empire in India.
 In 1540, Sher Shah laid down the foundation of Sur dynasty.

He ruled over North India until 1555.
 Akbar was the greatest Mughal ruler. He ruled over large part
of India from 1556 to 1605. The Mughal period continued
theoretically under a series of puppet emperors up to 1862.
The Judicial system of India during the Mediaeval Muslim

period may be divided and studied under two separate periods,
namely The Sultanate of Delhi and The Mughal Period.
The judicial reforms of Sher Shah formed a bridge

between the two periods.
26
D.The Sultanate of Delhi

In order to understand the set-up of the judicial machinery
during the period covered by the Sultans of Delhi (from 1206-
1526), it is necessary to have a brief account of the prevailing
administrative units.
1. Administrative Units: Civil Administration

 The Sultan and his Chief Minister (Wazir) were head of
the civil administration of Sultanate.
 The Sultanate was divided into administrative divisions

from the province to the village level.
 The Sultanate was divided into Provinces (Subahs).
 The Province (Subah) was composed of Districts

(Sarkers).
 Each District (Sarker) further divided into Parganas.
 A group of villages constituted a Parganah.
2. The Administration of Justice: Constitution of Courts

The Sultan being head of the justice was the supreme
authority to administer justice in his kingdom in mediaeval India.
One of the important functions of the Sultan was the
administration of justice. Administration of justice was actually
carried on in his name in three capacities:
a. Diwan-e-Qaza (arbitrator),
b. Diwan-e-Mazalim (as head of bureaucracy) and
c. Diwan-e-Siyasat (as Commander-in-Chief of forces).
The courts required to seek Sultan’s prior approval before
awarding the capital punishment.
27
The judicial system under the Sultan was organized on the

basis of administrative divisions of the kingdom. A systematic
classification and gradation of the courts existed at the seat of the
capital, in Provinces, Districts, Parganahs and Villages. The
powers and jurisdiction of each court was clearly defined.
 Courts at Central Capital:

At the Capital of the Sultanate six courts were established,
which are described as follows:
i. The King’s Court,

ii. The Court of Diwan-e-Muzalim,
iii. The Court of Diwan-e-Risalat,
iv. Sadre Jehan’s Court,
v. The Court of Diwan-e-Siyasat, and
vi. The Chief Justice’s Court.
i. The King’s Court:

 This Court was presided over by the Sultan who
exercised both original and appellate
jurisdiction on all kinds of cases.
 It was the highest Court of Appeal in the realm.
 Two reputed Muftis highly qualified in law

assisted the Sultan.
ii. The Court of Diwan-e-Muzalim:

 It was the highest Court of Criminal Appeal.
 Though the Sultan nominally presided over this

Court, he seldom sat in it. In the absence of the
Sultan the Chief Justice presided over this
Court.
28
iii. The Court of Diwan-e-Risalat:

 It was the highest Court of civil appeal.
 Though the Sultan nominally presided over this

Court, he seldom sat in it. In the absence of the
Sultan the Chief Justice presided over this
Court.
iv. Sadre Jehan’s Court:

 In 1248, Sultan Nasir Uddin being dissatisfied
with the then Chief Justice created a superior
post of Sadre Jehan and appointed Qazi Minhaz
Siraj to this post. Since then Sadre Jehan
became de-facto head of the Judiciary.
 The ecclesiastical cases were transferred to this

Court. Sadre Jehan became more powerful and
occasionally presided over the King’s Court.
 The offices of the Sadre Jehan and Chief Justice

remained separate for a long time. Ala-ud-Din
amalgamated the two but they were again
separated by Firoz Tughlaq.
v. The Court of Diwan-e-Siyasat:

 It was constituted to deal with the case of rebels
and those charged with high treason.
 Its main purpose was to deal with criminal

prosecutions.
 It was established by Muhammad Tughlaq and

continued up to 1351.
vi. The Chief Justice’s Court:
29
 It was established in 1206. It was presided over

by the Chief Justice (Qazi-ul-Quzat).
 It dealt with all kinds of cases.
 The Chief Justice and Puisne Judges were men

of ability (Afazil-e-Razgar) and were highly
respected. Many Chief Justices were famous for
their impartiality and independent character
during the Sultanate period.
 Officer of the Court: Four officers namely

Mufti, Pandit, Mohtasib and Dadbak were
attached to the Court:
a. Mufti:
He was a lawyer of eminence
attached to the court to expound law and
was appointed by the Chief Justice in the
name of Sultan.
b. Pandit:
He was a Brahmin lawyer generally
known as Pandit, appointed to explain
personal law of Hindus in civil cases. His
status was the same as that of Mufti.
c. Mohtasib:
He was in charge of prosecutions
on original side and in appeal he
answered for the prosecution.
d. Dadbak:
30
He was an administrative officer of

the Court such as Sherestadar, Peshkar,
peon, clerk etc.
 Courts at Province:
In each Province (Subah) at the Provincial
headquarters five courts were established which are
described as follows:
i. Adalat Nazim Subah (Governor’s Court),

ii. Adalat Nazim-e-Subah’s Bench,
iii. Adalat Qazi-e-Subah,
iv. The Court of Diwan-e-Subah, and
v. The Court of Sadr-e-Subah.
i. Adalat Nazim Subah (Governor’s Court):

 The Governor or Nazim was head of this Court
and Sultan was represented by him.
 It had both original as well as appellate

jurisdiction in all cases arising in the Province.
 Further appeal from this court lay to the Central

Appellate Court.
ii. Adalat Nazim-e-Subah’s Bench:

 The Governor, while exercising his appellate
jurisdiction sat with Qazi-e-Subah constituting a
Bench to hear appeals.
 From the decision of this Bench, a final second

appeal was allowed to be filed before the
Central Court at Delhi.
iii. Adalat Qazi-e-Subah:
31
 The Chief Provincial Qazi was head of this

Court.
 It had original civil and criminal jurisdiction as

well.
 It heard appeals from the decisions of the Qazis

of the Districts.
 It had also supervisory power over

administration of Justice in Subah (Province).
 Four officers namely Mufti, Pandit, Mohtasib

and Dadbak were attached to the Court.
iv. The Court of Diwan-e-Subah:

 Diwan-e-Subah was head of this Court.
 It had both original and appellate jurisdiction in

all revenue matters.
 It had the final authority in the Province over all

cases concerning revenue.
v. The Court of Sadr-e-Subah:

 This was the Chief Ecclesiastical Court in the
Province.
 This Court dealt with the matters relating to

grant of stipend, lands etc.
 Courts at Districts:
In each District (Sarker) at the District
Headquarter, following Courts were established which are
described below:
32
i. The District Qazi’s Court,

ii. Faujder Court,
iii. The Court of Sadre,
iv. Court of Amils, and
v. Court of Kotwals.
i. The District Qazi’s Court:

 The District Qazi was head of this Court.
 It had the jurisdiction to try all civil and

criminal matters.
 It also heard appeal from the decisions of the

Parganah Qazis, kotwals, and village panchayat.
 It was also assisted by four officers namely

Mufti, Pandit, Mohtasib and Dadbak.
ii. Faujder Court:

 This Court had jurisdiction to try petty criminal
cases concerning security and suspected
criminals.
 Appeal from this Court lay with the court of

Nazim-e-Subah.
iii. The Court of Sadre:

 It was dealt with cases concerning grant of land
and registration of land.
 Appeal from this Court lay to the court of Sadr-

e-Subah.
iv. Court of Amils:

 It was dealt with the Land revenue cases.
33
 Appeal from this Court lay to the Court of

Diwan-e-Subah.
v. Court of Kotwals:
 This Court was authorized to try police and
petty criminal cases.
 Courts at Parganah:
At each Parganah Headquarter two Courts were
established which are as follows:
i. The Court of Qazi-e-Parganah, and

ii. The Court of Kotwal.
i. The Court of Qazi-e-Parganah:

 The Court of Qazi-e-Parganah had all powers of
a District Qazi in all civil and criminal cases.
 It had no appellate jurisdiction.
ii. The Court of Kotwal:

 The Kotwal was authorized to try petty criminal
cases.
 He was also principal executive officer of the

town.
 Courts at Village:
 For each group of villages there was a village
assembly or Panchayat.
 It was constituted by five leading men to look

after the executive and judicial affairs.
34
 The Sarpanch or Chairman was appointed by

the Nazim or the Faujdar.
 The Panchayats decided civil and criminal cases

of purely local character.
3. Appointment of Judges and Judicial Standard

 During the period of Sultans, the Sultan appointed
Judges impartially, on the basis of their high standard
of learning in law.
 The Sultan appointed the Chief Justice (Qazi-ul-Quzat)

from amongst the most virtuous men in his kingdom.
 Judges were men of ability (Afazil-e-Razgar) and were

highly respected. Many Chief Justices were famous for
their impartiality and independent character during the
Sultanate period.
E. Judicial Reforms of Sher Shah

In 1540, Sher Shah laid down the foundations of Sur
Dynasty in India after defeating the Mughal Emperor Humayun
at Chousa. Sher Shah was famous not only for his heroic deeds in
the battlefield but also for his administrative and judicial
abilities. He ruled only for five years. He introduced various
remarkable reforms in the administrative and judicial system of
his kingdom. His important judicial reforms as summarized by
M.B Ahmad in his book “The Administration of Justice in
Mediaeval India” may be stated as follows2:
1. Separate system of Courts for civil and criminal cases:

 Sher Shah introduced separate system of Courts for
civil and criminal cases in the Parganah.
2
Ahmad, M.B, The Administration of Justice in Mediaeval India, The Aligarh Historical Research
Institute,(1941), p.129.
35
 The civil Judge were called Munsif, who was

empowered to hear civil disputes and to watch
conduct of the Amils and the Moqoddams (officers
connected with revenue collections).
2. Office of Shiqhdars:
 The Kotwals were replaced by the Shiqhdars who
were given magisterial power within the Parganahs.
 They continued to be charge of the local police.
3. Introduction of police system:

 Moqoddams or heads of the Village Councils were
recognized and ordered to prevent theft and
robberies.
 In case of robberies, they were liable for the loss

sustained by the victim. Thus, Police regulations
were drawn up for the first time in India.
4. Specified duties:
 When a Shiqhdar or a Munsif was appointed his
duties were specifically enumerated.
5. Provision of transfer of judges:

 Provision of transfer of judges below Provincial
Qazi after every two or three years was introduced.
 This practice continued in British India.
6. Duties were emphasized:

 The duties of Governors and their duties regarding
preservation of law and order were emphasized.
7. Provision of report directly to the Emperor:
36
 Provincial Qazi was authorized to report directly to

the Emperor on the conduct of the Governor
specially if Governor made any attempt to override
the law.
F. Judicial System Under The Mughal Administration

Babar founded Mughal Empire after defeating Ibrahim
Lodi at Panipath in 1526. His son Humayun was defeated by
Sher Shah in 1540 and regained the empire again in 1555
defeating the decendants of Sher Shah. So, theoretically it can be
said that Mughal empire continued from 1526 upto 1862.
1. Administrative Divisions
The whole empire was divided into Imperial capital,
Provinces, Districts (Sarkers), Parganahs, and Villages. Just like
the Sultans of Delhi the Mughal emperors were also absolute
monarchs. The Mughal Emperor was the Supreme authority and
in him the entire executive, judicial, and military power resided.
2. The Administration of Justice: Constitution of Courts

During the Mughal period, the Emperor was considered
the “Fountain of Justice”. The Emperor created a separate
department of justice (Mahakuma-e-Adalat) to regulate and see
that justice was administered properly. The important Courts
functioning during this period were as follows:
 Courts at Province:
Three important courts were functioning at the capital city
of Delhi. They were as follows:
37
i. The Emperor’s Court,

ii. The Court of Chief Justice, and
iii. The Chief Revenue Court.
i. The Emperor’s Court:

 The Emperor’s Court presided over by the Emperor
himself. It was the highest court of the empire.
 This Court had jurisdiction to hear both original civil

and criminal cases.
 Emperor while hearing the cases as a Court of first

instance was assisted by Daroga-e-Adalat, Mufti and
Mir Adil. In criminal cases, Mohtasib-e Mumalik or
the Chief Mohtasib also assisted the Emperor.
 While hearing appeal the Emperor presided over a

Bench consisting of the Chief Justice (Qazi-ul-Quzat)
and other Qazis of the Chief Justice’s court.
 The Emperor referred points for opinion regarding

authoritative interpretation of law on a particular point
to the Chief Justice’s Court.
ii. The Court of Chief Justice:

 This was the second important Court at the capital. It
was presided over by the Chief Justice (Qazi-ul-
Quzat).
 It had power to try original civil and criminal cases and

also to hear appeals from the Provincial Courts.
 It had also supervisory power over the working of the

Provincial Courts.
38
 The Chief Justice was assisted by two Qazies of great

importance, who were attached to this Court as puisne3
judges.
 Four officers namely Daroga-e-Adalat, Mufti,

Mohtasib and Mir Adils were attached to the Court.
iii. The Chief Revenue Court:

 This was the third important Court in Delhi.
 It was the highest Court of appeal to decide revenue

cases.
 It was also assisted by the four officials namely

Daroga-e-Adalat, Mufti, Mohtasib and Mir Adils.
Other Courts at Centre: Apart from the above stated three

important courts, there were also two lower courts in Delhi to
decide local cases, which were as follows:
i. The Court of Qazi of Delhi and

ii. The Court of Qazi-e-Askar.
i. The Court of Qazi of Delhi:

 It sat in the absence of Qazi-ul-Quzat to decide local
civil and criminal matters.
 Qazi of Delhi enjoyed the status of Chief Qazi of a

Province.
 From the decisions of this Court an appeal was

allowed to the Court of Chief Justice.
ii. The Court of Qazi-e-Askar:

3
Subordinate Judge.
39
 It was specially constituted to decide cases of the

military area in the capital.
 The Court moved from place to place with the troops.
 Courts at Provinces:
In each province there were following three types of
couts:
i. The Governor’s Court (Adalat-e-Nazim-e-Subah),

ii. The Provincial Chief Appellate Court (Adalat-e-
Qazi-e-Subah),
iii. Provincial Chief Revenue Court (Adalat-e-Diwan-
e-Subah).
i. The Governor’s Court (Adalat-e-Nazim-e-Subah):

 The Governor (Nazim-e-Subah) was the head of this
Court.
 It had original jurisdiction in all cases arising in the

provincial capital.
 It had also jurisdictions to hear appeal and further

appeal from this court lay to the Emperor’s Court.
 It had also supervisory power over administration of

Justice in Province.
ii. The Provincial Chief Appellate Court (Adalat-e-Qazi-e-
Subah):
 The Qazi-e-Subah was the head of this Court.
 It had original civil and criminal jurisdiction.
iii. Provincial Chief Revenue Court (Adalat-e-Diwan-e-

Subah):
 The Diwan-e-Subah was the head of this Court.
40
 It had original and appellate jurisdiction in all revenue

matters.
 Courts at District:
In each district there were following courts:
i. The Court of District Qazi,

ii. Faujdar-e-Adalat,
iii. Kotwal-e-Adalat, and
iv. Amalguzari Kachehri.
i. The Court of District Qazi:

 It was presided over by the Qazi-e-Sarkar(District
Qazi). Qazi-e-Sarkar was principal judicial officer in a
District.
 This Court had jurisdiction to try all civil and criminal

matters and in religious matters.
 Appeals from this court lay to the Qazi-e-Subah.
 Six officers were attached to this Court.- Daroga-e-

Adalat, Mir Adil, Mufti, Pandit, Mohtasib and Vakil-e-
Shariyat.
ii. Faujdar-e-Adalat:
 It was presided over by a Faujdar.
 It had jurisdiction to try cases concerning riots and

state security.
 An appeal from this Court lay to the Governor’s Court.
iii. Kotwal-e-Adalat:
 It was presided by Kotwal-e-Shahar.
41
 It decided cases similar to those under modern police

Acts and had appellate jurisdiction.
 Appeals lay to the District Qazi.
iv. Amalguzari Kachehri:

 It was presided over by the Amalguzar.
 It decided all revenue cases.
 An appeal was allowed to the Diwan-e-Subah.
 Courts at Parganah:
In each Parganah there were following three courts:
i. Qazi-e-Parganah’s Court,
ii. Court of Kotwal and
iii. Amin-e-Parganah
.
i. Qazi-e-Parganah’s Court:
 It had jurisdiction over all civil and criminal cases
arising within its original jurisdiction. It had no
appellate jurisdiction.
 Appeal from this court lay to the Court of District

Qazi.
ii. Court of Kotwal:

 It was presided over by the Kotwal-e-Parganah.
 It decided all petty criminal cases.
 An appeal from the this Court lay to the Court of

District Qazi.
42
iii. Amin-e-Parganah:
 This court was presided over by an Amin decided all
revenue matters.
 An appeal from this court lay to the District

Amalguzar.
 Village Courts:
 It was similar to that village courts under the Sultanate. In
every village there was a Panchayat (village council) to
administer justice in all petty civil and criminal cases.
 The meetings of the council were held in the public places

and were presided over by the Sarpanch (village
headman).
 The Panchayat was composed of five panchs elected by

the villagers and no appeal was allowed from the decision
of the Panchayat.
 Village Panchayats were mostly governed by their

customary law.
3. Salient features of the Judiciary during Muslim period

Salient features of the judiciary during Muslim period
were as follows:
i. Procedural Codes:
A systematic judicial procedure was followed by the courts
during the Muslim period. It was mainly regulated by two
43
Muslim Codes namely, Fiqh-e-Firoz Shahi and Fatwa-e-

Alamgiri.
ii. Judicial Procedure:

Judicial procedure of civil cases:
 In civil cases, the plaintiff or his duly authorized

agent was required to file a plaint for his claim
before the competent court.
 Then the court called the defendant to accept or

deny the claim. If denied by the defendant the court
framed issues and then the plaintiff was required to
produce evidence supporting his claim.
 The defendant was also given an opportunity to

prove his case with the assistance of witnesses.
 After weighing all the evidence, the presiding

authority delivered judgment in an open court.
Judicial procedure of Criminal cases:

 In criminal cases, a complaint was presented before
the court either personally or through
representative.
 A public prosecutor known as Mohtasib was

attached to every criminal court. He instituted
prosecutions against the accused before the court.
 The court was empowered to call the accused at

once and to begin hearing of the cases. Sometimes
the court insisted on hearing of the complainant’s
evidence before calling the accused person.
44
 Ordinarily the judgment was given in open court.

But in exceptional cases, where either the public
trial was against the interest of the State or the
accused was dangerously influential, the judgment
was not pronounced in the open court.
iii. Evidence:
 Hanafi law divided evidence into three categories: a)
Tawatur i.e. full corroboration; b) Ehad i.e. testimony
of a single individual; c) Iqrar i.e. admission including
confession. The Court always preferred Tawatur to
other kinds of evidence.
 All those who believed in God were competent

witnesses. Oaths were administered to all witnesses.
 Women were also competent witnesses but at least two

women witnesses were required to prove a fact for
which the evidence of one man was sufficient. The
testimony of one woman was recognized only in those
cases where woman alone were expected to have
special knowledge.
 The principle of Estoppel and Res-judicata were also

recognized by the Muslim law.
iv. Representation by Lawyers:

 Though there was no institution of lawyers like the
“Bar Association”, litigants were represented by the
lawyers known as Vakils.
 Two Muslim Indian Codes, namely Fiqh-e-Firoz Shahi

and Fatwa-e-Alamgiri clearly state the duties of a
Vakil.
45
 For the first time government advocates were

appointed in the reign of Shah Jahan to defend civil
suits against the State.
 During Aurangzeb’s reign, whole time lawyers were

appointed in every district, who were known as Vakil-
e-Sarkar or Vakil-e-Shara.
 It was expected that the Vakils should maintain a high

standard of legal learning and behavior.
v. Trial by Ordeal:
 The Muslim law prohibited the use of trial by ordeal to
determine the guilt of a person. It was not favored
either by the Sultans or by the Mughal Rulers in India.
 Sultan Jalal-ud-Din Khilji (1290-1296) made the

earliest attempt during the Muslim period, to adopt the
system of trial by ordeal in the case of Sidi Maula
when the court declined to convict him for sedition.
The Sadre Jehan and other judges refused to allow
Sultan Jalal-ud-Din Khilji to test the truthfulness of
Sidi Maula by ordeal of fire.
 Emperor Akbar also tried to encourage the system of

trial by ordeal most probably in order to please the
Rajputs. The Muslim law experts strongly opposed this
move to introduce the trial by ordeal and therefore
Akbar gave up the idea.
vi. Appointment of Judges:

 During Mughal period every possible effort was made
to keep the high standard of the judiciary.
46
 During Mughal period, the Chief Justice (Qazi-ul-

Quzat) and other Judges of higher rank were appointed
by the Emperor.
 Men of high scholarship and reputed sanctity of

character were chosen as Judge.
4. Crimes and Punishments Crimes:

During the Muslim period Islamic law or Sharia was
followed by all the Sultans and Mughal emperors. The Muslim
Criminal law broadly classified crimes under three heads:
a. Crimes against God;

b. Crimes against the King;
c. Crimes against private individual.
Punishments:
Four forms of punishments as recognized by the Muslim
law were as follows:
i. Hadd (fixed penalties):

 Hadd meant specific punishments for specific
offences.
 It provided a fixed punishment as laid down in Sharia

for crimes like theft, robbery, whoredom (Zina),
apostasy (Ijtidad), defamation (Itteham-e-Zina) and
drunkness (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 under it.
47
 For instance, stoning to death was prescribed for

adultery or drinking wine, cutting of the right hand of
thefts etc.
ii. “Tazir”(Discretionary Punishment):

 This 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.
 Under ‘Tazir’ the courts exercised their discretion in

awarding suitable punishment to the criminals. The
courts were free to invent new methods of punishing
the criminals e.g. cutting off the tongue, impalement,
etc.
iii. “Qisas”(retaliation):
 Qisas meant, in principle, life for life and limb for
limb.
 It was applied to cases of willful killing and certain

types of grave wounding or mutilating which were
characterized as offences against human body.
 It was regarded as the personal right of the victim or

his next of kin, to inflict a like injury on the wrongdoer
as he had inflicted on his victim.
iv. Diya (blood money):

 It was a sort of blood money paid by the man who
killed another man if the murderer was convicted but
not sentenced to death for his offence.
48
 Qisas became Diya when the next of kin of the victim

was satisfied with blood money as compensation for
price of blood.
 In cases where Qisas was available, it could be

exchanged with Diya or blood money.
Punishment for Treason:

The Muslim law considered “Treason” (Ghadr) as a crime
against God and religion and therefore against the state. Persons
held responsible for treason by the court mostly punished with
death. No consideration was shown for their rank, religion and
caste. Only the ruler was empowered to consider a mercy
petition.
Punishment of Contempt of Court:

Contempt of the court was considered a serious offence
and was severely punished in the Muslim period.
6. Defects of Muslim Administration of Justice4

The Muslim administration of justice particularly the
criminal justice in mediaeval India suffered from many defects.
Warren Hastings declared it to be a more barbarous law than
anything. The inherent defects of Muslim administration of
justice were as follows:
i. No separation of judiciary:
4
Halim, Abdul, The Legal System of Bangladesh, 3rd Edition, CCB Foundation, Dhaka, 2008,
p. 49-51.
49
The judicial administration was defective in the sense that

there was no separation between the executive and judiciary. The
emperor who was the head of the government was also the
fountain of justice and administered justice directly.
ii. No certainty and uniformity:

In many cases, Muslim criminal law was not certain and
uniform. In practice, it was discovered that the law laid down in
Hedaya and Fatwa-e-Alamgiri was mostly conflicting. There
were differences of opinions among Muslim jurists, which gave
the Qazis a good deal of freedom to interpret the law and apply it
to a specific fact before him. Thus, in each case the interpretation
of law dependent on the Qazi.
iii. No distinction between public law and private law:

The Muslim criminal law did not draw any distinction
between public law and private law. Criminal law was regarded
as a branch of private law. It had not developed the idea that
crime was an offence not only against the injured individual but
also against the society as well.
iv. Defects in practices of Diya:

The most defective provision in Muslim criminal law was
the provision of Diya. In many cases the murderer escaped
simply by paying money to the relatives of the murdered person.
Many evil practices developed out of it.
v. Defects regarding blood money:

In cases where murdered person left no heirs to punish
the murderer or to demand blood money no specific provisions
was available in Muslim law. A minor heir was to wait till he
50
attained majority for punishing the murderer or demanding the

blood-money.
vi. No prosecution with state initiatives:

State never took any initiative to punish the criminals or
murderer for committing murder unless the heir of the murdered
person claims before the court.
vii. No consideration on Mens rea:

Though, Muslim law tried to distinguish between murder
and culpable homicide but it did not rest on the intention or want
of intention of the culprit. It rested on the method of weapons
used in committing the crime. This was peculiar and generated
grave injustice.
viii. Defects regarding Tazir:

The law of Tazir, which provided for discretionary
punishment was also very vague which gave too much power to
the judges. On the one hand, even innocent persons were
punished by the Courts while on the other hand it led to
corruption and injustice. Punishment could be unduly severe or
ridiculously light as there was no standard or measure for them.
ix. Defects in Law of Evidence:

The law of evidence under the Muslim law was vague,
defective and unsatisfactory.
For example,
 No Muslim could be given capital punishment on the

evidence of an infidel.
 Evidence of one Muslim was regarded as equivalent to

two Hindus and evidence of one man was regarded as
equivalent to two women.
51
 For rape or illicit intercourse, evidence of four eye

witnesses was necessary.
 A thief would be convicted only on the evidence of

two men or of one man and two women.
x. Cruelty in executing punishments:

The nature of punishment of stoning, mutilation etc. was so
cruel and inhuman that no flesh and blood could even think of it
in a civilized society.
52

Muslim Period.

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Muslim Period.

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C3

Muslim period marks the beginning of a new era in the

As it is, the Arabs conquered the Persians, Afghans and

A. Causes or Reasons of the Downfall of Hindu Kingdom

were attacked and defeated by foregin invaders of Turkish race.

I. Lust for Supremacy: There were great mutual distrust

II. Lack of Strong Leadership: There was no leadership,

III. Influence of great feudatory families: The real

IV. Caste System: Hindu Kingdoms also suffered from

V. Treachery of Local Individual chiefs or high

VI. Lack of awareness: The Indian leadership was not

B. Muslim Social Order: Political Theory and Religion

 The social system of Muslims was based on their religion

 The political theory of Muslims was governed by their

 The political institutions which were adopted and developed

 All the members of the community elected the Khalifa or

 The Quran being of absolute authority, all controversy

C. Historical Introduction of Muslim Rule in India

 In 1191, Muhammad of Ghor attacked India, but he was

 Next year in 1192, Muhammad of Ghor defeated Prithvi Raj

 In 1398, Tamurlane, a Mongol conqueror captured Delhi and

 In the middle of the 15th century, the Sultanate was revived.

 In 1526, Babur, a descendant of Tamurlane and Chengis

 In 1540, Sher Shah laid down the foundation of Sur dynasty.

The Judicial system of India during the Mediaeval Muslim

The judicial reforms of Sher Shah formed a bridge

D.The Sultanate of Delhi

1. Administrative Units: Civil Administration

 The Sultanate was divided into administrative divisions

 The Sultanate was divided into Provinces (Subahs).

 The Province (Subah) was composed of Districts

 Each District (Sarker) further divided into Parganas.

 A group of villages constituted a Parganah.

2. The Administration of Justice: Constitution of Courts

The judicial system under the Sultan was organized on the

 Courts at Central Capital:

i. The King’s Court,

i. The King’s Court:

 It was the highest Court of Appeal in the realm.

 Two reputed Muftis highly qualified in law

ii. The Court of Diwan-e-Muzalim:

 Though the Sultan nominally presided over this

iii. The Court of Diwan-e-Risalat:

 Though the Sultan nominally presided over this

iv. Sadre Jehan’s Court:

 The ecclesiastical cases were transferred to this

 The offices of the Sadre Jehan and Chief Justice

v. The Court of Diwan-e-Siyasat:

 Its main purpose was to deal with criminal

 It was established by Muhammad Tughlaq and

vi. The Chief Justice’s Court:

 It was established in 1206. It was presided over

 It dealt with all kinds of cases.

 The Chief Justice and Puisne Judges were men

 Officer of the Court: Four officers namely

He was an administrative officer of

i. Adalat Nazim Subah (Governor’s Court),

i. Adalat Nazim Subah (Governor’s Court):

 It had both original as well as appellate

 Further appeal from this court lay to the Central

ii. Adalat Nazim-e-Subah’s Bench:

 From the decision of this Bench, a final second