JUDICIAL APPROACH TO ISLAMIC LAW
It is wrong to call Islamic law as Mohammadan law. What we are no applying is Anglo-Indian jurisprudence.
SOURCES OF ISLAMIC LAW
The primary sources of Islamic law are :
i. The Holy Book (The Quran),
ii. The Sunnah (the traditions or known practices of the Prophet Muhammad),
iii. Ijma’ (Consensus) and
iv. Qiyas (Analogy).
THE HOLY QURAN
This Holy Quran were revealed to the Holy Prophet Mohammed (SAWS) BY Arch Angel Jibril or Angel Gabriel (literal translation God is my strength) can be broadly divided into two categories : –
Mecca Surahs – Revelations before the migration of the Holy Prophet from Mecca to Medina – Beginning of Hijra – these are mostly Philosophical and Theological in nature
Medina Surah – Revelations after the Holy Prophet moved to Medina – this mostly deals with socio – economic issues.
SUNNAH
Sunnah means the way of the Holy Prophet.
Three divisions of hadith : –
A statement of the Holy Prophet
An action of the Holy Prophet
The approval of the Holy Prophet of work of sabahas or companions or actions done by others.
Words of the Holy Prophet during his farewell or last sermon confirms this. He said : –
You have taken them only as a trust from God, and you have made the enjoyment of their persons lawful by the word of God, so understand and listen to my words, O people. I have conveyed the Message, and have left you with something which, if you hold fast to it, you will never go astray: that is, the Book of God and the sunnah of His Prophet. Listen to my words, O people, for I have conveyed the Message and understand [it]. Know for certain that every Muslim is a brother of another Muslim, and that all Muslims are brethren. It is not lawful for a person [to take] from his brother except that which he has given him willingly, so do not wrong yourselves. O God, have I not conveyed the message?” It was reported [to me] that the people said, “O God, yes,” and the Messenger of God said, “O God, bear witness.”
Going astray is one of the most feared ones of the faithful. A Muslim prays to the Almighty that he should be put in the path of Sirat Al-Mustaqim or the Right path. Islamic law cannot be separated from one’s living. Every action has to fall into one of the following categories :
i. Al Wajib – obligatory
ii. Al mandub – recommended act
iii. Al haram – prohibited act
iv. Al – makruk – distasteful act
v. Al – mubah – legally indifferent act
STRUCTURE OF ADMINSTRATION DURING THE SULTANS AND MUGHALS
Emperor
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Sadr – Us – Sudar
only a person who had sound knowledge of the Shariat and was exhibiting virtues of Piety, honesty, scholarship and was from a good social background was considered
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Qazi – e – Parganah
(Parganah means district in Urdu)
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Mulla / Muezzin
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Mutawalli
BRITISH ERA
This can be divided into two parts. The first part being from late 18th century to 1857 and thereafter.
From 1790’s till 1857, the British Colonialists avoided any kind of legislation. The judges were however assisted by Islamic Scholars under the Regulations XII of 1793 etc. So much so that even when complaints were received about mal administration or corruption, the East India Company took the policy of non-interference.
The Government wanted the previous position to continue. However, their role was limited to collection of revenues generated by the endowments.
POST 1857
The Regulations of the company were replaced by the Religious endowments Act, 1863. Section 3 empowered the Government to
In the case of every mosque, temple or other religious establishment to which the provisions of either of the Regulations specified in 1[the preamble to this Act] are applicable, and nomination of the trustee, manager or superintendent thereof, at the time of the passing of this Act, is vested in, or may be exercised by, the Government, or any public officer, or in which the nomination of such trustee, manager or superintendent shall be subject to the confirmation of the Government or any public officer, the State Government shall, as soon as possible after the passing of this Act, make special provision as hereinafter provided.
The power of revenue collection was also transferred to the trustees under Section 4
In the case of every such mosque, temple or other religious establishment which, at the time of the passing of this Act, shall be under the management of any trustee, manager or superintendent whose nomination shall not vest in, nor be exercised by, nor be subject to the confirmation of, the Government, or any public officer, the State Government shall, as soon as possible after the passing of this Act, transfer to such trustee, manager or superintendent, all the landed or other property which, at the time of the passing of this Act, shall be under the superintendence or in the possession of the Board of Revenue or any local agent, and belonging to such mosque, temple of other religious establishment except such property as is hereinafter provided;
Cessation of Board’s powers as to such property.— and the powers and responsibilities of the Board of Revenue, and the local agents, in respect to such mosque, temple or other religious establishment, and to all land and other property so transferred, except as regards acts done and liabilities incurred by the said Board of Revenue or any local agent, previous to such transfer, shall cease and determine.
This brought into the judiciary, to play an active role, for the first time. The power of appointment which was exercised by the Qazi, stood transferred to the Court. This was under Section 5 of the Act. It reads
Procedure in case of dispute as to right of succession to vacated trusteeship.—- Whenever from any cause a vacancy shall occur in the office of any trustee, manager or superintendent, to whom any property shall have been transferred under the last preceding section, and any dispute shall arise respecting the right of succession to such office, it shall be lawful for any person interested in the mosque, temple or religious establishment to which such property shall belong, or in the performance of the worship or of the service thereof, or the trusts relating thereto, to apply to the Civil Court to appoint a manager of such mosque, temple or other religious establishment, and thereupon such Court may appoint such manager to act until some other person shall by suit have established his right of succession to such office.
Powers of managers appointed by Court.–The manager so appointed by the Civil Court shall have and shall exercise all the powers which, under this or any other Act, the former trustee, manager or superintendent, in whose place such manager is appointed by the Court, had or could exercise in relation to such mosque, temple or religious establishment, or the property belonging thereto.
By this time, the office of the Qazi assisting the Courts were abolished. Therefore, the British judges applied what they thought was “Mohammadan law”. It was seldom satisfactory.
Originally, the view emanating enmating from the Privy Council was that English Law should not be applied to the “natives” – Mayor of Lyons v. East India Company, (1 Moore’s 175). However, within a few years, this was changed. The Privy Council held the law must be applied in terms of equity, Good conscience – generally meaning English law – Waghela Rajsanji v. Shek Masludin and Ors, XI ILR Bombay 551 at 561.
Using their knowledge as inspiration, instead of applying Shariat to Muslims, the British lawyers developed the Anglo – Muhammadan jurisprudence. This was a hotchpotch of legal and moral texts mixed with British judicial system and procedures.
In other words, instead of applying Islamic law to Muslims, the colonial masters, ably assisted by the court, applied the anglo-mohammadan jurisprudence, they developed.
First, by not referring to original texts and commentaries, the colonialists stunted the growth of Islamic law
Secondly, by brining matters to court, which was manned by British judges, used to English customs and laws, they were able to impose those values on the Muslim subjects,
Thirdly, as a result of the first and second, the law was changed and custom and usages were concentrated upon rather than the Shariat itself.
On the scope of interpretation of Shariah or as what Justice Mahmood called its Muslim Ecclesiastical law, while British judges merely looked it as a disposal of law on law as they understood. However, in Queen – Empress V. Ramzan, VII Allahabad 461 (FB), Justice Mahmood pointed out that under Section 57 of the Indian Evidence Act, it is the duty of the court to take note of the Shariat.
It was a case of conviction of a person named Ramzan. He entered a masjid used by the Hanafi sect of Islam. While at prayers, Ramzan loudly called out the word “amen”. For this act, he was convicted under Section 296 of the Indian Penal Code, 1860. On revision, Justice Mahmood held that such a usage was not contrary to the tenants of the four schools of Islam and therefore, does not attract the provisions of the penal code. the other four judges viewed it in a pedantic manner without looking at the aspect that if the view of Islamic scholars is applied, it would not be an offence at all.
http://14.139.60.114:8080/jspui/bitstream/123456789/24284/1/098_Queen-Empress%20v.%20Ramzan%20and%20others%20%28461-477%29.pdf
if Mahmood faced resistance from his brethren, Ameer Ali, an expert in Islamic law faced resistance for his work amongst Anglo mohammadan experts. Wilson, the famous author of Digest on Muslim law, attacked Ameer ali for referring to original texts in his interpretations. The attempt was to justify the English form of interpretation rather than one based on Shariat.
FIRST ERROR OF THE COURTS – INVALIDATING WAQF ALAL AULAD
In a powerful dissent in Bikani Mia case, ILR 20 Calcutta 116 – ameer Ali after referring to the original texts, held that Waqf Alal Aulad was perfectly valid as per the Sharia. Four other judges held otherwise. On appeal, the Privy Council in Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdry, LR 22 IA 76, upheld the view of the majority and rejected Ameer Ali’s view. This did not conclude there. When their mistake was pointed out, they confirmed their view in Fatuma Binti Mohammed Bin Salim Bakhshuwen v Mohammed Bin Salim Bakhshuwem, Privy Council Appeal 47 of 1950 dated 10th October, 1951. (https://www.bailii.org/uk/cases/UKPC/1951/1951_27.pdf)
This was set right by enacting the Mussamlam Wakf validating Act, 1913. However, it was interpreted to mean that it applied only to wakfs created after 1913 and not to those created prior to it. Therefore, the Mussalman Wakf Validating Act, 1930 was enacted. This clarified that the 1913 Act shall be deemed to apply to wakfs created before its commencement. Hence, the Validating Act of 1913 was given retrospective application by the 1930 Act.
MUSSALMAN WAKF ACT, 1923
Finding that the 1863 Act was not of much use, the Colonialists enacted the Musalman wakf Act, 1923. This Act again entrusted the powers to the Civil Court. There was a stark divergence with the application of this Act.
While on one extreme was the interpretation holding that for an inquiry under this act, the magistrate had the power to decide if the property was waqf property or not – In Re Sidar Sayedna taher Saifudin, AIR 1934 Bombay, 169, on the other end was the view that if the existence of the wakf was denied, the court did not have the jurisdiction under the Act but resort had to be made to the other enactments – Syed Ali Mohammad v. Collector of Bhagalpur AIR 1927 Patna 189
SHARIAT ACT, 1937 AND WAKFS ACT, 1995
Alarmed at the rise of customs taking the place of Shariat, the Muslims in India arose against this. This was taken cognisance by the Central Legislature. The objects and reasons were
For several years past it has been the cherished desire of the Muslims of British India that Customary Law should in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary Law is a misnomer in as much as it has not any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so-called Customary Law is simply disgraceful. All the Muslim Women Organisations have therefore condemned the Customary Law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them. 2. The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this present measure, if enacted, would have very salutary effect on society because it would ensure certainty and definiteness in the mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research. which is the chief feature of Customary Law.
The Shariat was not applied to all situation. It was applied only to the areas specified under Section 2 of the Shariat Act. They are : –
intestate succession,
special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law,
marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower,
guardianship,
gifts,
trusts and trust properties, and
wakfs (other than charities and charitable institutions and charitable and religious endowments)
it was limited because under the Government of India Act, 1935, the central parliament did not have the power to make laws with respect to agricultural lands and charities and charitable endowments.
This was rectified by amendments made to the Shariat Act, 1937 by the respective state legislative assemblies like the Shariat Amendment Act, 1949 of Madras. They received the Assent of the Governor General in council and applied to these aspects also.
Interpreting the Shariat Act, 1937 in Syed Mohiuddin Ahmed v. Sofia Khatoon AIR 1940 Calcutta 501 = I.L.R. (1940) Cal. 464 took the view :
“The effect of Section 2 of the Shariat Act is to make the Mussalman Law expressly applicable to subjects, which, under the terms of previous Acts and Regulations had to be decided on principles of equity and good conscience. That this was the object of Section 2 is made clear by the repeal of parts of the earlier Acts and Regulations mentioned in Section 6”
This view was accepted by Lahore high Court – Ata Mohammad v. Mohamed ShafI A.I.R. 1944 Lah. 121 & Mohammad Asghar Sing v. Mohammed Gulsher Khan and Ors, AIR 1949 Lahore 14. It was also accepted by Bombay High Court in Ashraf Ali Cassim v. Mohemed Ali Rajballi, ILR 1947 Bom. 1.
However, Basheer Ahmed Sayeed J, differed and applied it across the board – Mukkattumbrath Ayisumma vs Vayyaprath Pazhae Bangalayil, (1952) 2 MLJ 933.
Chief Justice Rajamannar speaking for the bench in Puthiya Purayil Abdurahiman v. T.K Avoomma, 1956 (1) MLJ 119 = AIR 1956 Mad 244 reversed this position and followed the view of Calcutta High court.
Therefore, from 1937, it is Shariat which should be applied to wakfs.
These views was approved by the Supreme Court in C. Mohammed Yunus vs Syed Unissa And Others, AIR 1961 SC 808 = 1962 SCR (1) 67.
In so far as wakfs are concerned, Justice Abdul Hadi referring to the 1949 amendment held that it was only from 1949 onwards that Shariat was made applicable and therefore mutawallis cannot claim right by hereditary succession – Syed Ansaruddin v. Tamilnadu Wakf Board, (1992) 2 LW 685
This was strongly dissented by Justice S.A. Kader in his book, The Law of Wakfs and accepted by Justice R. Subramaniam in Amanullah v. State of Tamil Nadu – the Law of Wakfs – an analytical and Critical study – S.A. Kader, Eastern law house, 1st edition, 1999.
Unfortunately, the Supreme Court has also fallen to interpreting the Waqf Act as per anglo mohammadan jurisprudence instead of the Shariat – aliyathammuda beethathebiyyappura & anr v. Pattakal & ors 2019 (9) SCJ 50 = (2019) 6 MLJ 464.
This is more so when the Waqf Act demands that the Waqf board should follow the usage or custom of the waqf, sanctioned by the school of Muslim law, to which the waqf belongs – , Section 15 of the Wakf Act, 1954 and Sections 25 and Section 32 of the Waqf Act, 1995.
