“Justice is ultimately connected with the way people’s lives go,
and not merely with the nature of the institutions surrounding them.” This
quote from Amartya Sen’s Idea of Justice aptly defines the main factor
influencing the dispensation of justice during the 17th and 18th
centuries in India: the people. The institutional paraphernalia were not as
important as the people who gave and who were being given justice. Factors like
gender, status, caste, community affected the working of the judicial system.
The vast expanse of the subcontinent rife with gender and caste hierarchies
made justice a highly subjective matter. There was no one law of the land.
Justice was dispensed at various levels and with different laws. Rather than
being based on reason, justice in India during this time either emanated from
scriptures or from customary laws.
Even though the Mughal ruler was styled as just or adil and the rhetoric of the just rule
was kept alive, the ground reality was quite different. The state in most
judicial matters took a very politically correct view and justice could be
bought, sold and bargained. The paper therefore tries to bring out both the
rhetoric and the reality of the dispensation of justice during the 17th
and the 18th centuries, the state’s judicial paraphernalia, the
state’s ideals of justice and concludes by examining as to why there were such
sharp differences between the rhetoric and reality of justice during the given
time period.
In Islam, justice or adl
was one of the rare divine attributes that God was willing to share with his
creation. Allah was therefore not just adil
but also the source of justice on earth. The Quran however does not define or
explain justice. But it appears, as Prof. Najaf Haider says “either as a course
of action which was right, fair, straight forward, balanced and impartial or in
binary opposition to oppression or zulm,
wickedness and lust or huwa.” The
expansion of the rule of Islam (dar-ul-Islam)
called for the need to prepare a specific code for the believers to govern
their relationship with God through rituals or ibadat and with other people through social affairs or muamalat. This was called as the sharia
(literally, straight path) and was based on the Quran, the prophet’s saying and
doings in the Hadith, analogical reasoning or qiyas and consensus or ijma
collectively called as usul al fiqh
or the four principles of Islamic jurisprudence. The ulema from thereon defined justice as “an objective and universal
moral truth which is engrained in the human soul as a permanent source of
guidance; being an abstraction from the human nature of everything that is
considered righteous by Islam, independent of particular spiritual beliefs or
actions.”
Islamic jurisprudence had four major schools, namely, Hanafi, Hanbali, Shafi and Maliki. Out of these it was the Hanafi school, developed by Abu Hanifah,
was popular in the subcontinent. M.B. Ahmed tell us that law in India was
divided into four main categories: The Canon law (Akham-e-Shariyah) which was the personal law of the Muslims applied
exclusively in religious matters, the Common law which was the Islamic Law of
Crimes, Tort, Nuisance, etc., and applied to all the subjects of the state
irrespective of religion, Qanun-e-Shahi
which were regulations issued by the king in the form of proclamations, known
as farmans or dastur-ul-amal and finally the Qanun-e-urf
which were the local customary laws of the people. Apart from all this the Islamic
jurists also referred to precedents established by other courts.
The king, being a humble servant of God (Nyazmand-e Dargah-e Ilahi) was responsible for dispensing justice either
personally as Imam-e-Adil (just
leader) or through officers appointed for the purpose. As M.B. Ahmed puts it “by
virtue of his office he was the legislator, the defender of the Laws as well as
the dispenser of Justice.” Ziya-ud-din Barani in Fatawa-i-Jahandari explains that the “king possesses an innate sense of justice (adli
I jibilli) which enables him to dominate over his desires and accomplish
the execution of justice in most perfect manner.” He also maintains that “the
supreme object of kingship is to establish justice and equity (daddahi wa insaf)”. Accordingly, the
King was the final court of appeal and exercised his original jurisdiction in
select cases where men of high rank were involved. Apart from this the king was
personally involved in selection of all the jurists in the empire.
Under the Mughal Empire the judicial system was rather extensive.
At the centre was the chief justice or the Qaziul
Quzat and his corps of jurists alongwith the Muhtasib, a member of the ulema
appointed to, as J.F. Richards
notes, “regulate urban markets to prevent disorder and fraud in public. The Muhtasib also enforced Sharia
prohibitions against blasphemy, wine-drinking and gambling and other heretical
or idolatrous behavior in public.” At the provinces (subas) was the qazi-e-subah,
the provincial muhtasib with other
jurists while at the districts (sarkars)
were the qazi and the faujdar. The parganas had the qazi-e-pargana and the villages had their own village panchayats led by the village headmen or
muqqadams.
The State’s jurisdiction in theory extended to both civil and
criminal cases but in practice the latter was largely considered as the village
panchayats’ prerogative. The state,
when it came to civil cases, often found itself in a precarious position. The
state left a bulk of the civil cases at the behest of the panchayats which decided these cases in accordance with customary
laws even if they were in conflict with the law of the land. Commenting on the
position of the state on civil disputes M.B. Ahmed notes “No attempt seems to
have been made by the administrators to modify by legislation local traditions
so as to bring them into strict accordance with the rules of the State Law.”
Arbitrating on civil cases, the state’s justice was often coloured
by biases like gender, status and caste. Women, especially in the lower rung of the society, were
economically productive which is primarily why the gap between the public and
private sphere wasn’t much for them. But their economic productivity did not
buy them equality in the society. They were not paid as much as their male
counterparts as they were believed to do relatively easy tasks. They were not
taught skills for fear that on their marriage the skills would pass from their
natal family to their family of procreation. Most of all, issues of their
sexuality and chastity were a constant source of worry of the village society.
As Prof. Nandita Prasad Sahai puts it “there was a certain ambivalence and
constant tension between the need to allow women autonomy to conduct work in
public spaces, and patriarchal imperatives of policing their sexuality and tightly
disciplining their lives.” So, a man’s infidelity was not as severely punished
as a woman’s and in extreme cases the latter often had her nose and ears cut
off to make her physically unattractive and thereby desexualized.
Yet their childbearing abilities and their high mortality rates due
to lack of sophisticated medical facilities, put a premium on them. This is
perhaps why marriages required payment of a bride price rather than dowry and
remarriage was considered legitimate. In case of their elopement with their
lovers, the husband was liable to receive from the woman’s lover a monetary
compensation (bair ke paise) and only
after this could he claim her legally.
Being scarce in number, death penalty was never inflicted upon
women, no matter how severe their crimes were. Appeals from women concerning a
man’s neglect of the household were heeded and acted upon.
Similar distinctions were made with respect to status. The state
was often found to be following the being soft with hard and hard with soft
rule. So men of means were favoured in most of these cases and could buy
judgments in their favour. In fact this privilege to the favoured lot was also
extended to documentation of cases where a number of times the cause of crime
and punishment were tweaked to suit them. As Radhika Singha notes that “the
Mughal emperor Akbar- in stating the ideal for determining appropriate forms of
punishment- prescribed that they should vary according to rank and status of
the offender.” Yet the State often had to give in to collective solidarity of a
particular caste group and the state had to relent.
The State had to share its power of dispensing justice with the jati panchayats especially when it came
to matters concerning caste hierarchies. Panchayat
was an assembly of elders, usually important people of the village with
hereditary rights over their property. Headed by the village headman (muqaddam), the panchayat derived its funds from contributions made by individuals
to a common financial pool. Each jati
or sub-caste had a jati panchayat
whose main concern was the community over the individual thereby to preserve
the caste order. The Jati panchayats
reserved the right to levy fines (gunegari)
and in some extreme cases of excommunication. The latter was always discouraged
by the State primarily because the State believed that a man free of community
pressures and robbed of his livelihood would take to crime and violence which
would become a nuisance for the State. The decision of the panchayats were usually binding on its members but more often than
not appeals were sent to the court in which case the State often consulted the panchayats to arrive at a decision.
Evaluating the State’s position in dispensing
justice during the 17th and 18th century one can safely
conclude that politics preceded justice. Styling itself as the patriarch or the
mai-baap of the weaker sections of
the society, the State often did the exact opposite of the rhetoric it so liked
to maintain. During the time period under consideration, the Mughal empire in
India was fast approaching its downfall and multiple foci of power were
emerging. Rather than positioning themselves as a part of the whole, the state
officials at the provinces and districts began to assert their independence. So,
justice was dispensed not just at kotwalis
or kachedis but also by jagirdars, thakurs, village headmen et
al. Moreover the State did not itself wish to mingle much in petty affairs as
it would mean unnecessary waste of time and resources. So in most cases of
appeal, the State complied with the judgment of the panchayats. The fact that customary laws were tedious and difficult
to grasp did not help either. The State therefore in most of the civil cases
preferred not to assume centrestage and remain largely peripheral in its
involvement. The State had community considerations too which is why the caste
system was to be preserved by the State at all costs. The State had monetary
considerations too. Favouring the wealthy was one and collecting fines (gunegari) was another. Yet the latter
was largely limited by the ability of the guilty to pay. Quite often the state
had to bargain the amount of fines precisely because a high amount would
largely remain unrealizable if the guilty could not afford it. During the given
time period, the State was, therefore, “far from being omnipotent and in fact
had to constantly reckon with the relative power and resources of multiple foci
of power, many of whom were often the offenders and the accused. They posed
threats of retaliation against any penal action curbing their unjust ways and
the state had few options but to reconcile to their status and accommodate their
excesses.
