SOURCES OF LAW IN ANCIENT INDIA

DHARMA
Dharma is a concept which has multiple meanings in different indian religions. It is difficult
to provide a single concise definition for Dharma. There is also no equivalent single-word
synonym for Dharma in western languages.

● The root of the Sanskrit word Dharma is "dhr", which means "to support, hold, or
bear".
● In common words, Dharma means "right way of living" and "path of rightness".
Dharma when combined with the word sanatana, it can also be described as eternal
truth.
● In the earliest texts and ancient myths of Hinduism, Dharma meant cosmic law, the
rules that created the universe from chaos. So In ancient times, Dharma meant the
universal laws of nature, which are applicable to everyone.
● The concept of dharma is also closely tied up with the idea of samsara—the cycle of
birth, death, and rebirth.
● The word Dharma is also used to mean justice (nyaya).

● Dharma consists of both legal duties and religious duties. It not only includes laws and
court procedures, It includes a wide range of human activities like ritual purification,
personal hygiene regimes, and modes of dress.
● Dharma provided the principal guidance by which one endeavoured to lead his life.
● The obligations of dharma are considered as applicable to and binding on everybody.

Several ancient Hindu texts define Dharma and concepts like law, justice, and religion
interchangeably. Therefore, there appears to be no distinction between Dharma and law in
general. However, we must understand that Dharma has a religious and moralistic basis as
well.
 SOURCES OF DHARMA
The broad sources of Dharma are:
1. Shruti, 2. Smritis and 3. Acharas.

SHRUTI
– The Vedas are Shrutis. Vedas are the first source of Dharma. Shruti means ‘that which
has been heard (from God) by the Rishis’ and therefore these are considered of Divine
origin’.
– The four Vedas— Rigveda, Yajurveda, Samaveda, and Atharvaveda together
constitute the Shrutis. They are collections of oral texts of hymns, praises, and ritual
instructions.
– The principles of Dharma that are taught in the Vedas are called the ‘Vaidika Dharma’
or ‘Shrauta Dharma’ and are considered to be infallible (without error), universal and
eternal.

In keeping with its eternal and universal nature, the Shruti does not have many instructions of
‘do this’, and ‘don’t do that’ nature (except when talking about universal virtues and spiritual
truths) because such instructions tend to be non-universal by their very nature. For example,
the Vedas do not command us to ‘wear a coat made of fur’, because such a command could
not be followed easily by the people in tropical countries very easily. Rather, the Vedas will
just give a general command like ‘wear decent clothes to protect your body’.

Though Vedas cannot be considered as the texts proper of the ancient Hindu legal system,
Shrutis (Vedas) prevail over Smritis (Sastras) in case of conflict between them. According to
the Hindus, the fountain head of Dharma or law is the Vedas or revelation, but there are no
special chapters in the Vedas treating of law.

SMRITI
– The literal meaning of the word Smriti is ‘which is remembered'. They are the humanly
authored written texts that contain the collected traditions. Smriti is considered as the
wisdom of Saints and Sages who were pious, virtuous and had understood the Vedas.
– It is believed that the teachings of Smritis are derived from the Vedas itself. They were
compiled between 600 to 200 BC.
 – A Hindu learns how he has to spend his whole life from these Smritis. These contain all
that a Hindu need to know about the Dharma which he needs to be adhered to and all
the rituals he need to perform during his entire life.
– The main Smriti texts which teach about Dharma are the ‘Dharmashastras', and
therefore, the word Smriti itself is sometimes taken to mean the Dharmashastras
alone.

Dharmashastra
○ Dharmashastras are Sanskrit written texts on religious and legal duties. These
provide rules for the life of an ideal householder and contain the Hindu
knowledge about religion, law, ethics etc. These texts were often used for legal
judgments and opinion.
○ Dharmashastras are voluminous and there are hundreds of such texts. Some of
the most prominent Dharmashastra texts are Manusmriti (200BC-200CE);
Yajnavalkya Smriti (200-500CE); Naradasmriti (100BC- 400CE); Visnusmriti
(700- 1000CE); Brhaspatismriti (200-400CE); and Katyayanasmriti
(300-600CE).
○ It is not clear if single or multiple authors wrote these texts. They differ in format
and structure from the Dharmasutra and are written in the “verse form”.

Dharmasutra
○ Dharmasutra are the first four texts of the Dharmashastra.
○ The written format of the Dharmasutra is the “prose style”.
○ The Sanskrit meaning of Dharma-sutra is righteousness-thread or string.
○ They deal with the subject matter of dharma and are like guidebooks on dharma
with rules of conduct and rites. Dharmasutra discuss the rules for duties for all
the ashrama: the student-hood, the householdership, the retirement or forest
dwelling, and renunciation. Also, they provide the rites and duties of kings and
court proceedings. Other issues that are Dharmasutras cover include rules about
one's diet, crimes and punishments, daily sacrifices, and funeral practices.
○ The most important Dharmasutra texts are the sutra of Apastamba, Gautama,
Baudhayana and Vaisistha.
There are many other Smriti scriptures that teach us about Dharma, examples of such
scriptures are Puranas, Mahabharata, and Ramayana etc.

ACHARAS
 ACHARAS
– The third source of dharma is called the achara which means customary law or norms
within a community.
– When the Vedas and the Smritis are silent on an issue, the norms of the community can
be considered as dharma and followed. This makes achara authoritative in such cases.
– Acharas play a crucial role in guiding behavior when there is no explicit guidance from
Vedic scriptures. They bridge the gap between Vedic teachings and community
customs.
– Manu's Perspective was that; in the absence of Vedic rules, people should follow the
customs specific to their countries, castes, or families.
– Different types of acharas include deshachara (regional customs), kulachara (family
traditions), and jatidharma (caste-specific duties).
– Overall, acharas represent the cultural and societal norms that guide behavior within
specific communities or groups.

NIBANDHAS and TIKAS

– The next and important works on law which directly helped in the interpretation,
development and practical application of law and the administration of justice are the
'Nibandhas' and Tikas' (Commentaries and Digests) written by eminent jurists from
time to time with necessary adoptions to fulfil the requirements of a changing society.
The commentators can be aptly described as the architects of Hindu legal system.
– Among the commentaries, Mitakshara' is the celebrated and outstanding commentary
and its authority extended throughout India. Mitakshara is a commentary on
Yajnavalkya Smriti written by Vinaneswra. It was composed in the last quarter of the
eleventh century or the first quarter of twelfth century. The Mitakshara system was
adopted with certain local variations as considered necessary to suit the requirements
of the particular area.

Types of Courts and Procedures

 Types of Courts and Procedures

PEOPLE’s COURT

Even before the establishment of Justice Delivery System in India by the British Rulers, there
were dispute resolution institutes from time immemorial. During the early period, people
lived in small groups. The heads of these groups or tribes delivered justice under open sky
before all the members.

There were three types of people's courts namely:

1. Kula — belonging to the family or caste of the litigants,
2. Shreni— belonging to the same craft, profession or trade, and
3. Gana— belonging to the people of one place (assembly).
The people's courts consisted of panchayatdars. A shreni could review the decision of a
Kula, and a Gana had the power to review the decision of a shreni.
These popular Courts survived for a long time and existed even at the time of the
commencement of the British Rule in India.

In people's Courts, open arguments were made. There were no specialists like lawyers during
those days. When kingship was established in the society, kings delivered justice. The Court
presided over by the king (Nripa) was the highest court. There were other courts, some of
them appointed by the king (Adhikarika) and the others which were peoples courts.

KING’s COURT

Sasita, the Court over which the king presided was the highest Court in any kingdom. It was
situated in the royal palace at the capital city. The King (Rajah) the Chief Justice
(Praduivaka) and the Sabhya’s (Judges) were the judicial officers of the Court. The king
was invested with the power of passing final decrees. The Chief Justice had to give his final
opinion in the cases, and the duty of the judges was to investigate the merits of each case.
There was no institution of lawyers, the legal profession was administered by the
administrating judges themselves.
Procedure of filing a case:
– The Vadin (the plaintiff) had to submit a plaint which was brief in words, rich in
content, unambiguous, free from confusion, devoid of improper arguments and
capable of being traversed by the defendant and with all relevant detailed information.
– When a plaint or complaint came before the court, the king or judge asked a number of
question and recorded the answers given by the party.
– After recording the statement of the plaintiff, the Court decided whether the case was
legally maintainable. If maintainable, the court issued summons to the opposite party
(defendant) to appear before the Court and answer the allegations through the
plaintiff.
– The defendant's reply could be of four kinds:
1. Satyam (admission); 2. Mithyam (denial); 3. Pratyavaskandanam (special plea) ;
4. Purvanyaya (former judgment).
– Unless his personal presence was required, the plaintiff or the defendant could
authorise any person to appear before the Court and speak on his behalf, or he could
be represented by his own father, brother or son. A person, not being father, brother or
son of the party, who spoke for a party in a suit, without being authorised by the party,
was liable to be punished.

Process of proceedings:
The ancient judicial proceedings consisted of four parts:
1. Purvapaksha (declaration) i.e. stating the case of Vadin (plaintiff),
2. Uttara (the written statement) being the reply or answer given by the Prativadi
(defendant),
3. Kriya, the trial of the case by the court, and
4. Nirnaya, the judicial decision.
A party to a litigation could appoint a Niyogi (An advocate or pleader), a person well versed
in law to represent his case before the Court. The representative had to be appointed by the
party and not by the king. This Niyogi was entitled to get as his renumeration some part of
the suit claim.
In the commentary on Narada Smriti, a case was cited in which both the parties had
engaged Niyogis to represent them. These Niyogis argued forcefully, presenting
 different interpretations of a legal provision regarding the liability of a great-grandson
to pay the debt incurred by the great-grandfather.
This case shows that the practice of engaging the legal experts i.e., Niyogis as lawyers
had already come into existence, and were used to put forward their cases forcefully.

Process of Witnesses:
– when litigants were contesting each other in a court of justice, the judges after
examining the answers, fixed the burden of proof on either of the two parties.
Generally, the plaintiff had to provide evidence to support their case. However, if the
defendant contested the plaintiff's claims with a special plea, then the burden of proof
shifted to the defendant and thus the defendant had to prove their assertion,
essentially taking on the role of the plaintiff in proving their case.
– Parties had to themselves produce witnesses. The witnesses should give their
evidence in the presence of the plaintiff or the defendant as the case may be and never
behind their back. It was laid down that the judge by himself should question each
witness separately. Before giving the evidence, the witness should administer an oath
taking in his hand gold, cow-dung or a few blades of sacred grass (Kusha), as the case
may be. The highest punishment i.e. capital punishment was given for the offence of
giving false evidence.
– When the parties to a litigation were unable to prove their case by means of oral or
documentary evidence, the Courts could allow the parties concerned to prove their
case through divine tests or ordeals namely— ordeal by balance, ordeal of fire, ordeal
of water, ordeal of poison etc. The ordeals played an important role in the judicial
system not only in India but also in many other countries, because it was the belief in
ancient times that truth could be found out by applying Divya or divine tests.

Judgement procedure:
– The king tried law suits assisted by the important officials like chief justice, Amatya (a
high-ranking minister), Brahmanas (priests), and Purohitas (religious advisors). They
were supposed to avoid being greedy or angry and follow the guidelines laid out in the
Dharmastras (ancient texts on righteous conduct). Additionally, the chief justice and
other officials were not allowed to have private conversations with the people involved
in the legal cases. If they did, they could be fined.
– Every judge (Sabhya) of the Court should deliver the fair opinion discarding love and
hatred. Under the signature of the Chief Justice (Pradvivaka) and bearing the royal
seal (Rajamudra), the jayapatra (Judgment copy) should be given to the victorious
party.
 Legal Thinkers of Ancient India:

MANU as a legal thinker

● Manu was the first Hindu Philosopher who laid the foundation of India’s political
tradition in the Ancient India. Manu was not only the first king but also the first
philosopher to codify the law and create a new Hindu social and Political order. His
masterwork ‘MANUSMRITI’ or Manava Dharma Sastra is the most influential work
which still determines the social and political orientations of many Indians.
● The Manu Smriti was written somewhere between 200 BC and 100 AD. It is the
landmark in the history of Hindu law and it is the treasure of knowledge on Hindu
Jurisprudence. The Brahmins themselves credit the work with a divine origin and a
remote antiquity.
● Manu is considered as the mythical survivor of the Flood and father of the human race,
the primitive guru of sacred rites and laws. He is the greatest and oldest law giver of
the race.
● The text is believed to be a divine dictation from Manu, who learned it from Brahma,
the creator.
● The systematic collection of all the rules of Dharma Shastras, covering all the branches
of law then in force and the simple language and great clarity in its composition made
the Manu Smriti the most authoritative source of ancient Hindu Jurisprudence.
● The text makes no categorical distinction between religious law and practices and
secular law.

The Manu Smriti consists of 2684 verses, and has been subdivided into 12 chapters in
modern version of the text, since the original text had no such division. The subject matter of
these 12 chapters are :
1. Creation of universe
2. Definition and sources of Dharma
3. Celibacy
4. Mode of life and household’s code of conduct
5. Rules of governing food
6. Rules governing forest hermit
7. Rajadharma
8. King’s duties to administration of justice
 9. Duties of husband and wife
10. Rules of conduct for all
11. Seven proper modes of livelihood
12. Karma (birth and rebirth cycle) and the knowing of self.
At present, some scholars reduced the Manu Smriti into 1214 verses and it is called
“Visuddha Manu Smriti”.
– The Manu Smriti thus offers an interesting ideal picture of domestic, social and
religious life in India under ancient Brahmin influence.
The picture has its shadows. The dignity of the Brahmin caste was greatly
exaggerated, while the Sudra caste was so far despised as clear from the text; 1,034
verses of text were dedicated to expected virtues of Brahmins, and 971 verses for
Kshatriyas. The statement for the Vaishyas and the Shudras in the text is
extraordinarily brief. Even Punishments for crimes were lenient for Brahmins but
increased in severity for warrior, farmer, and serf castes.
Women were considered fickle, sensual, and incapable of self-direction. They were
subjected to strict subjugation throughout their lives, prohibited from learning Vedic
texts, and their participation in religious rites was limited.

Manu dharma signifies five principles of universal morality i.e., (i) non-violence, (ii) truth
(iii) purity, (iv) control on organic desires; and (v) greedlesseness in others' property and
things.
Manu enunciated more categories of dharma namely, rajdharma (duties of the king)
ashrama dharma (duties of individuals), varna dharma (duties in the hierarchical order of
Varnas), stree dharma (duties towards women), dampatya dharma (duties towards married
couples) and apad dharma (duties in distress).

Sir Henry Maine believed that the Manusmriti, also known as the laws of Manu, portrayed an
idealistic view of law according to the Brahmanas, the priestly class in ancient India. While he
acknowledged that it contained genuine practices of Hindu society, he thought it was more
of an idealized representation rather than a practical set of rules enforced in India. Despite
its significance in India's legal history, the Manusmriti has sparked controversy due to its
perceived endorsement of the oppression of women and lower castes. However, for students
studying Hindu law, the Manusmriti remains relevant as a source book.
 YAJNUVALKYA as a legal thinker

● Yajnavalkya was a prominent Hindu Vedic sage. His name stands distinguished both in
the Shrutis and in the Smritis. He is considered as one of the earliest philosophers in
recorded history.
● The code of Yajnavalkya (which occupies the next important place after the Manu
smriti among the legal texts in India) to a great extent is based on Manu Smriti.
Yajnavalkya is more liberal on certain matters than Manu. Yajnavalkya although a
follower of conservatism is decidedly more liberal than Manu.
● His Code can rightly be regarded as the founder of the law of inheritance. He first
recognised 'cognates' as heirs. The Code is indeed a Code of duties comprehensive
and secular in nature. He was more liberal than Manu on a number of matters and
particularly on the questions of status of Sudras, women's rights of property and
inheritance and criminal penalty.

The yajnavalkya Smriti consists of 1010 verses and is divided into three chapters:
1. Achara or ecclesiastical law,
2. Vyavahara or the civil and criminal law and
3. Prayaschitta or atonement for sins committed.
– He deals exhaustively on subjects like creation of valid documents, law of mortgages
and hypothetication as also on partnership, associations of persons interested in joint
business ventures.
– He does not confine the litigations of 18 titles of law as indicated in Manu Smriti. With
the progress of the society different types of rights must have come to be recognized.
Therefore, he provided that a cause or Vyavahara arises if any right of any person is
infringed or any other injury is caused.

– Although a number of well -known commentaries have been produced on Yajnavalkya

Smriti. However, the commentary of Vijnanesvara has superseded the others and
under the name of Mitaksara, it is accepted as authoritative in most parts of India.
– Yajnavalkya has been accepted as the paramount authority on Hindu Law in the whole
of India including Kashmir, except the province of Bengal.
The well-known scholar Monier Williams in his book "Indian Wisdom" considered the
Dharmashastra of Yajnavalkya along with its celebrated commentary, the Mitaksara by
Vijnanesvara as the most important law book next to Manu and declared him to be the
principal authority of the school of Banaras and Middle India.

According to Robert Lingat, the presentation of Yajnavalkya Smriti is methodical, clear and
concise instead of the poetic literary beauty as found in Manusmriti. The main themes in the
text are sources of law, law of adoption, marriage, castes, purification, sraddha etc.
 Sources of Islamic law
The ultimate authority of law-making in Islam belongs to God (Allah) alone. Islamic law is
based on the commands of Allah and comprehends all aspects of human life.

In the ideal of Islamic law, everyone including the Prophet and ruling authorities, is
subordinate to God, working under His direct or indirect guidance. Islamic law, irrespective
of the variety of its sources, emanates from God and aims at discovering and formulating His
will. God’s will is not defined once for all and it is not a static system. It is, on the other hand,
dynamic and progressively reveals itself in history.

Shariah— Right path; An all inclusive code of conduct, a comprehensive body of laws and
rules which regulate the public and private life of individuals.

According to the classical legal theory, the four main sources of Islamic law are—
1. the Quran
2. the Sunnah,
3. Qiyas and
4. Ijma.
The first two i,e [Quran and Sunnah] are considered as Primary sources of Islamic law. While
the last two [Qiyad and Ijma] are considered as Secondary sources of Islamic law

QURAN

– The Quran, the holy text of Muslims and the word of God, is the primary source of
Islamic law. The Quran was revealed in the Arabic language over approximately 23
years in fragmented texts addressing the needs of the time as well as providing
solutions to different problems that arose at the time.
– Quranic texts were always written during revelation by a team nominated by the
Prophet (PBUH) for this purpose. During the Prophet’s (PBUH ) time, the Quran was in
a written form. However, it was not compiled in one copy, which was done during the
period of Abu Bakr (RA), the first of the four celebrated rightly guided Caliphs. During
the time of Uthman (RA), the third Caliph, copies were made of the master copy and
were distributed throughout the Islamic world.
 – The Quranic text, in use today, is precisely the same that was distributed 1,400 years
ago in the seventh century by Uthman (RA)
– Every word of quran is the “word of God”, which was communicated to the prophet
(pbuh) through angle Gibrail from 609 to 632 AD.
– The holy Quran contains 6666 verses (ayats) and 77934 words (haruf) in total.

– Quran lays down guidelines not only for man's relationship with God but also for his
interactions with fellow human beings. It covers various aspects of social life, including
inheritance, marriage, divorce, war, peace, theft, adultery, homicide etc.

There are 2 types of verses in Quran:

1. Qati verses. 2. Zanni verses
Qati Verses: These are those verses in Quran by which Islamic law is clearly evident.
Thats we can understand the law directly through these verses without any need of
personal interpretations.
Zanni verses: These verses in Quran which are not clearly evident and which are
subject to personal interpretation.

SUNNAH
– Sunnah refers to the exemplary behavior and actions of Prophet (sollalahu aly hi
wasalam). The sayings and actions which the prophet followed is known as Sunnah.
– In Islamic jurisprudence, the significance of Sunnah is equal in importance to Quranic
injunctions as the Prophet (PBUH) was inspired by God in whatever he said and did, a
theme supported in the Quran (53:3–4).
– Much of the sunnah is recorded in the Hadith. Initially, Prophet (pbuh) had instructed
his followers not to write down his acts, so they may not confuse it with the Qur'an.
However, he did ask his followers to disseminate his sayings orally. As long as he was
alive, any doubtful record could be confirmed as true or false by simply asking him. His
passing away however, gave rise to confusion over Prophet’s conduct. Thus the Hadith
were established.
– Hadith is the index and vehicle of the Sunnah.
 – The Quran instructs Muslims to follow the conduct of the Prophet, considering it
exemplary and noble, thereby making Sunnah the ideal for the Muslim community.
– It is the Sunnah that gives concrete shape to the Quranic teachings. The Quran, for
instance, mentions Salah and Zakah but does not lay down their details. It is the
Prophet who explained them to his followers in a practical form.

The chain through which these sayings of Prophet (PBUH) i;e Hadith reached us is as
following—
Prophet ⸻> Suhabah ⸻> Tabayeen ⸻> Taba-tabayeen
From Taba-tabayeen these Hadiths were collected and compiled by IMAMS (like Bukhari
etc) in the form of book, which today we have in our homes.

Sunnah can be divided into 3 categories:

1. Confirming sunnah (sunnat-ul-fail) : The sunnah whose confirmation we get from the
Holy Quran.
2. Explanatory sunnah (sunnat-ul-tuqrir) : The sunnah which the Prophet (PBUH) has
said with explanation.
3. Sunnah as an independent source (sunnat-ul-qual) : This includes those laws in
Islam which are evident only from Sunnah and aren’t mentioned in holy Quran.

IJMA
– With the passing away of the prophet (PBUH), the original law-making process ended,
so the questions, which could not be solved either by the principles of the Quran or the
Sunna, were decided by the Jurists with the introduction of the institution of Ijma.
– Ijma means agreement of the Muslim Jurists of a particular age on a particular question
of law, in other words, it is the consensus of Jurist’s opinion.
– Those persons who had knowledge of law were called Mujtahids (Jurists). When
Quran and traditions could not supply any rule of law for a fresh problem, the jurists
unanimously gave their common opinion or a unanimous decision and it was termed as
Ijma. Not each and every Muslim was competent to participate in the formation of Ijma,
but only Mujtahids could take part in it.
There are three kinds of Ijma:
1. Ijma of Companions (ijma-ul-ummah) : The concurrent opinion of the companions of
 1.
Prophet was considered most authoritative and could not be overruled or modified.
2. Ijma of the Jurists: This was the unanimous decision of the jurists (other than
companion).
3. Ijma of the people or masses (ijma-ul-aimah) : It is the opinion of the majority of the
Muslims which was accepted as law. But this kind of Ijma has little value.
The ijma of the companion’s cannot be reopened again— Example : [20 rakat of taraweeh ;
second azan of jummah prayers ]
Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally binding
on people. Without Ijma, these rules of Islamic law would have been diffused and incomplete.
Its principles cover the vast subject. Ijma authenticated the right interpretation of the Quran
and the Sunna.

QIYAS
– The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’ In Arabic
Qiyas means ‘measurement, accord, and equality.’ In other words, it means measuring
or comparing a thing to a certain standard, or to ‘establish an analogy.’ If the matters
which have not been covered by Quran, Sunna or Ijma, the law may be deducted from
what has been already laid down by these three authorities by the process of analogy
(Qiyas).
– The Qiyas is a process of deduction, which helps in discovering law and not to
establish a new law. Its main function is to extend the law of the text, to cases which do
not fall within the purview of the text.
– For valid Qiyas, the following conditions must be fulfilled:
○ The process of the Qiyas can be applied only to those texts which are capable of
being extended. The texts should not be confined to a particular state of facts or
rules having a specific reference.
○ The analogy deduced should not be inconsistent with the dictates of the Quran
and authority of Sunna.
○ The Qiyas should be applied to discover a point of law and not to determine the
meanings of the words used in the text.
○ It must not bring a change in the law embodied.
If there is a conflict between two deductions, a jurist is free to accept any one of the
deductions from a text. Hence one analogy cannot abrogate the other.
 – Compared with other sources, Qiyas is of much lesser significance. The reason is that
on the analogical deductions, resting as they do, upon the application of human
reasons, which is always liable to error.
The Hanafi school of thought very strongly supports Qiyas. As Abu Hanifa quote; “it is the
best we have been able to achieve. He who can arrive at different conclusions is entitled to
his own opinion as we are entitled to our own”.

SALIENT FEATURES of ISLAMIC CRIMIANAL LAW

1. Divine Origin: Sharia law is considered perfect and God-given, beyond human
questioning.
2. Based on Quran and Sunnah: Derived from the Quran and teachings of Prophet
Muhammad recorded in the Sunnah.
3. Interpreted by Scholars: Renowned theologians interpret Sharia law, with early
Islamic lawyers seen as authoritative.
4. Schools of Jurisprudence: Various schools of jurisprudence emerged to apply Sharia
principles, with four main schools becoming permanent.
5. Universal Rights: Guarantees rights to personal peace and security, forbids unjust
violations by the state.
6. Legal Framework: Prohibitions and rules are based on genuine events, allowing for
interpretation and implementation based on social necessity.
7. Evidentiary Prerequisites: Strict evidentiary requirements temper severity of
punishments, making it tougher to find suspects guilty.
8. Procedural Guarantees: Safeguards individuals from abuse of power, ensures fair
trials and protection of rights.
9. Deterrence and Reintegration: Punishments serve as deterrents but also focus on
reintegration, with emphasis on compensatory sanctions.
10. Contextual Application: Criminal justice issues are mentioned in various Quranic
verses, emphasizing social and moral aspects.
11. Equality Before the Law: All individuals are equal before the law, regardless of
religious or economic status, ensuring uniform application of laws and punishments.
12. Regulating Discretion: Individualized punishments for certain offenses are regulated
to ensure judges do not misuse discretion, maintaining proportionality of sentences.
 Punishments under Islamic law
Islamic law is based on the following classification of punishments—
1. Hudood (fixed punishment)
2. Qisas-o-Diyat (Retaliation of blood money)
3. Tazeerat (classification of discriminatory punishment)

HUDOOD
– These are the crimes for which the kind and quantum of punishment have been fixed
by the Quran as of right of God Almighty. These punishments cannot be increased,
decreased or altered by the Ruler or by the judge.
– These offences were characterised as being against God, Judges had no direction in
this matter.
– Such punishments were intended to deter criminals from committing those crimes.

The offences for which Hudud punishments are prescribed are as follows:
1. Zina. 2. False accusation of adultery. 3. Theft. 4. Robbery. 5. Drinking alcohol.
6. Apostasy. 7. Sedition

Zina (illegal sexual intercourse)

Zina bil raza : zina by consent.
Its punishment in “100 lashes” [ if done bw 2 unmarried man and woman] OR. “stoned
to death” [ If one of the two was married or both were married]
Zina bil jabr : zina which is done forcibly.
It’s punishment is “Death”

Qazf (false accusation of adultery)

Accusing an innocent person with adultery is strictly forbidden by God by clear
statement in the Quran and Sunnah.
Punishment: “80 lashes” as per Quran

Theft
Theft can be defined as secretly taking the property of other person without his
consent. Theft is prohibited in islam.
Punishment: “cut off the hands” either its male or female.
To convict a person to be a thief; the following three essentials must be accomplished
— [Adult(balig) ; Sane (aaqil) ; Intention]
Harba (Highway robbery)
It is defined as the activity of an individual or group of individuals who commit robbery
near a public highway usually against travelers. Its the practice of charging a price that
is very high and usually unfair for something.
Punishment: either they will be “killed” OR “crucified” OR “have their hands and feet
on alternate sides cut-off” OR “will be expelled from the land”.

Drinking Alcohol
Drinking alcohol is prohibited in Islam.
Punishment: “80 lashes”

Apostasy
When a Muslim converts to other religion or remains no more Muslim or doing some
other acts which goes out of the circumference of Islamic circle, such a person is
known as ‘Murtad’.
Punishment : Death
[A Murtad is given a deal of 3 days to revert back]

Sedition (Rebellion)
One cannot rebel with his own religion or violate the rules and laws of islam. In simple
words sedition is ‘Bagawat’.
Punishment : Death

QISAS
Qisas means life for life and limb for limb. It applied to wilful killing of human beings and to
certain types of wounding or maiming. It gave to the injured person or his next kin and in
case of slave to his master, the right to inflict a similar injury on the wrong-doer. In some
case Qisas was not available, e.g., where the person slain was a descendant of the slayer. For
Example – if the accused had caused injury to the eye of a person, that person had right to
cause injury to the eye of accused person.

Diyat (Blood money) – Diayat is the compensation paid for Blood. In case of the wilful
murder, the fine of the blood was capable of being exacted only from the criminal himself. In
other case, his family or associates were liable. For in case of unintentional injuries only fine
was awarded.
 TAZEERAT
Its also called the “penal punishment” OR the “Discretory Punishment”.
Tazeer refers to all those offences for which the Quran or the sunnah do not prescribe any
explicit punishment and it is left to the discretion of ruler of the islamic state to specify its
types and the quantum of punishment.
Tazeer offences are the broadest category of punishment because the crimes that have fixed
punishments are few in number and all other crimes fall under this category.
Example— Breaking of promise, taking bribe, giving false witness etc.
punishment : its punishment includes “imprisonment, fine, confiscation of property
and even death penalty”.
 HANAFI SCHOOL OF THOUGHT
– The Hanafi School is one of the four major schools of Sunni Islamic jurisprudence or
Fiqh that exist today. The other major schools in Sunni Islam are Maliki, Shafi'i and
Hanbali.
– This school has been named after its founder “Imam Abu Hanifa” (699–767 CE ) who
studied and taught in Kufa, Iraq.
– He was one of the earliest Muslim scholar-interpreters to seek new ways of applying
Islamic tenets to everyday life.
– Two of Abu Hanifa's disciples, Abu Yusuf and al-Shaybani, compiled and organized
their master's teachings, which were favoured and followed by the Abbasid dynasty.
– The Hanafi school is known for its liberal religious orientation that elevates belief over
practice and is tolerant of differences within Muslim communities.
– One of the key principle of the Hanafi school is the use of Qiyas, or analogical
reasoning in deriving legal rulings. Qiyas allows scholars to apply existing legal
principles to new situations by drawing analogies between them. [for example: If
alcohol is prohibited because it intoxicates, then scholars can use Qiyas to also
prohibit drugs that have similar effects]. This principle allows for a dynamic and
adaptable approach to islamic law.
– While the Hanafi school, along with other Sunni schools, utilizes Qiyas (analogical
reasoning) as a method of legal reasoning, Abu Hanifa himself relied extensively on ray
(personal opinion). He also favoured the use of istihsan, commonly known as juristic
preference.
– Hanafi doctrines have always been considered among the most flexible and liberal in
Islamic law, including in the areas of criminal law, treatment of non-Muslims, individual
freedoms. marriage and guardianship, and ownership and use of property.
– The Hanafi school also has specific practices and rulings that distinguish it from other.
For example: it generally allows for the use of certain types of financial transactions,
such as Murabha (cost plus financing) and ijara (leasing), which may be prohibited by
others.
– Officially adopted by the Ottoman Turks in the 16th century, Hanafi jurisprudence
remains the most influential school in the world today and is used in Jordan, Lebanon,
Pakistan, Syria, Turkey, and the United Arab Emirates. With respect to family and
personal law issues, Hanafi fiqh predominates in Bangladesh, Egypt, India, Iraq,
 Pakistan, Syria, and, for significant minority populations, in Iran and Malaysia.
– Hanafi scholars refuse to control a human religious or spiritual destiny, and refuse to
give that right to any human institution. Among the Hudud crimes, those crimes
against God, blasphemy is not listed by the Hanafi's. Hanafi's concluded that
blasphemy could not be punished by the state. The state should not be involved in
deciding God-human relationships.
– Rather, the state should be concerned only with the violation of human rights within
the jurisdiction of the human affairs and human relationships.