State the Distinctive features of administration of justice during

Hindu period & Muslim period

Hindu Period:

This period extends for nearly 1500 years before and after the beginning of the
Christian era. The ancient India was divided into several independent states and the
King was the supreme authority of each state. As far as the administration of
justice is concerned the King was considered the fountain of justice. He was
entrusted with the supreme authority of the administration of justice in his
kingdom.

The essential features of judicial system of this period were as follows:

A. Organization of Court Structure:

Following courts existed during the ancient Hindu period:

1) The King’s Court:

The Kings court was the highest court of appeal in the state. It was also a court of
original jurisdiction for cases of vital importance to the state. In Kings Court the
King was advised by learned Brahmins, The Chief Justice and other judges,
ministers, elders and representatives of the trading community.

2) The Chief Justice’s Court:

The Chief Justices Court which consisted of the Chief Justice and a board of
judges to assist the Chief Justice. All the judges in the board belonged to three
upper castes preferable Brahmins.

3) Special Tribunal:
Sometimes separate tribunals with specified territorial jurisdiction used to be
formed from among judges who were members of the board of the Chief Justice’s
court.
 4) Town or District Court:
In towns and districts courts were run by the government officials to administer
justice under the authority of the king.

5) Village Council:
The local village councils or Kulani was constituted at village level .This councils
consisted of a board of five or more members for administration of justice to
villagers. The councils dealt with civil and criminal matters.

B. Judicial Procedure:

1) Stages of a Suit:-
A suit or trial consisted of four stages the plaint, the reply and investigation and
finally the verdict or decision of the court.

2) Bench of more than one Judges:-

The courts were functioning on the principle that justice should not be
administered by a single judge. Generally a bench of two or more judges would
administer justice. Even the King decided cases in his council.

3) Appointment of Judges and Judicial Standard:-

In the appointment of the Chief Justice and other judges the question of caste
consideration played vital role. The Chief Justice was mandatory appointed from
Brahmins. A sudra was forbidden to be appointed as a judge. Appointments were
made from among the persons who were highly qualified and learned in law.
Women were not allowed to hold the office of a judge. Judges were required to
take the office of a judge. Judges were required to take the oath of impartiality
when deciding disputes between citizens.

4) Doctrine of Precedent:–
The decisions of the King’s court were binding on all lower courts. The principles
of law declared by higher courts were taken into consideration by the lower courts
while deciding cases.
 5) Evidence:
During the course of proceeding both the parties were required to prove their case
by producing evidence. Ordinarily, evidence was based on any or all the three
sources, namely, documents, witnesses, and the possession of incriminating
objects. In criminal cases, sometimes circumstantial evidence was sufficient to
punish the criminal or acquit him.

6) Trial by Ordeal:
Ordeal which was a kind of custom based on religion and faith in God was a means
of proof to determine the guilt of the person. The application of trial by ordeal was
limited only to the cases where any concrete evidence on either side was not
available. This system ordeal was very painful and dangerous to the accused, and
sometimes the person giving ordeal died during the ordeal. Some common ordeals
are described below:

I. Ordeal by Fire: According to the Hindu myth fire is considered to be God

and it has purifying qualities. According to the ordeal of fire, the accused
was directed to walk through or stand or sit in fire for some specified
time. If the accused comes out from the fire without any harm, he was
considered to innocent.

Sometime the accused was asked to carry a red hot iron ball in his hand and walk a
few paces. If he had no signs of burns after the ordeal, he was considered to be
innocent.

II. Ordeal by water: Water seen as a sign of purity under the Hindu
mythology was used to test the guilt of the accused. The accused was
required to stand in waist- deep water and then to sit down in the water,
as an archer shot to an arrow. If the accused remained in the water during
the time limit, he was held to be innocent. Alternatively the accused was
required to drink water used in bathing the idol. If he had no harmful
effects within next fourteen days, he was declared to be innocent.
 III) Ordeal by Poison:
This method was also based on the view that God protects innocent people.
The accused was required to drink poison without vomiting it. If he
survived, he was declared to be innocent.

IV) Ordeal by Rice grains:

The accused was required to chew un- husked rice and then asked to spit out.
If blood appeared in his mouth, he was considered to be guilty, otherwise
not.

V) Ordeal by Lot:-
Two lots of the same type representing Right (Dharma) and Wrong
(Adharma) were placed in a jar. The accused was asked to draw a lot, if the
accused drew Dharma he was declared innocent.

C. Trial by Jury:

The jury system existed in ancient India but not in the same from as understood in
today’s world. There is evidence that the community members used to assist the
administration of justice. They were merely examiners of the case of conflict and
placed true facts before the judge though the verdict was declared by the presiding
judge and by the jury.

D. Crimes and punishments:

The philosophy of crime and punishment was based on the idea that the
punishment removed impurities from the accused person and his character is
reformed. Before punishment was to be awarded the judge had to consider the
motive and nature of the offence, time and place, strength, age, conduct, learning
and monetary position of the offender.
There were four methods of punishment- by gentle admonition, by severe
reproof, by fine and by corporal punishment. These punishments could be inflicted
separately or together depending upon the nature of the offence.

Judges always considered the relevant circumstances before deciding actual

punishment. The severity of punishment depended on caste as well.

Certain classes of persons were exempted from punishment:-

Old people over eighty
Boys below sixteen
Women and persons suffering from diseases were to be given half of the normal
punishment.
A child below five was considered to be immune from committing any crime and
therefore was not liable to be punished.

In adultery and rape, punishment was awarded on the basis of the caste
consideration of the offender and of the woman.

In abuse or contempt case every care was taken to see that each higher caste got
due respect from persons of lower caste.
For example:- If a person of a lower caste set with a person of higher cast, the man
of the lower caste was to be branded on the breech. For committing murder the
murder was to pay 1000 cows for killing a Kshatriya, 100 for a Vaisyo and 10 for a
Sudra. These cows were given to the King to be delivered to the relatives of the
murdered person. A bull was given to the King as a fine for murder.

If a Brahmin was killed a person of lower caste, the murderer would be put to
death and his property confiscated.

The above discussion on crime and punishment gives a necessary idea that
infliction of punishment was not based on any broad principle rather on whim and
caste consideration which was completely devoid of humanity and ethics.
Judicial System in Muslim period

This period starts with the invasion by Turkish Muslims in the Indian Sub-
continent in 1100 A.D. The Hindu kingdoms began to disintegrate gradually with
the invasion of Turkish race in the end of eleventh and the beginning of the twelfth
century. When Muslim conquered the states, they brought with them the. Turkish
idea of administration. The theory of Muslims was based on Quran, their religious
book. According to the Quran, sovereignty lies in Allah (God) and the King is His
humble servant to carry out His will on the earth. The ruler was regarded as trustee,
being the Almighty’s chosen agent.

The whole Muslim period in India may be divided into two sub-periods-
i) the Sultanate of Delhi
ii) the Mughal Empire.

By the end of twelfth century Muslim Sultanate was established at Delhi by

Muhammad Ghor. This period existed for thirty, years beginning from 1206 till
1526. On the other hand, in 1526 Delhi Sultanate came to an end when Delhi was
captured by Zahiruddin Babar. Babar founded the Mughal Empire in India which
existed until 1857.

A. Legal System under the Sultanate

The Sultan or the King was the supreme authority to administer justice in his
kingdom. The judicial system under the Sultanate was organized on the basis of
administrative divisions. A systemic 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 were clearly defined.

Courts at Centre:

The courts established at the capital of the Sultanate were as follows: The King’s
Court, Diwan-e-Mazalim, Diwan-e-Risalat, Sadre Jehan’s court, Chief Justice’s
court and Diwan-e-Siyasat.
The King’s court was presided over by the Sultan himself. This court exercised
both original and appellate jurisdiction in all kinds of cases. It was the highest
court of appeal in the realm. In discharging judicial functions the Sultan was
assisted by two reputed Muftis highly educated and expert in law.

The court of Diwan-e-Mazalim and court of Diwan-e-Risalat were the highest

courts of criminal and civil appeals respectively. Though the Sultan nominally
presided over these courts, in the absence of the Sultan the Chief Justice (Qazi-ul
Quzat) presided over these courts

The court of Diwan-e-Siyat was constituted to decide the cases of rebels and high
treason etc. Its main purpose was to deal with criminal prosecutions.

Some of the other officers attached to the court of Chief Justice were as under:

(1) Mufti: He was selected by the Chief Justice and appointed by the Sultan. He
acted as legal expert and in case of difference of opinion between the mufti
and judge, the difference was referred to the Sultan for decision.

(2) Pandit: He was a Brahmin learned in law of Hindu and he acted as expert of
law in civil cases of non-Muslims and his position was similar to the Mufti.

(3) Mohtasib: He was entrusted with the prosecution for the violation of cannon
law.

(4) Dadbak: He was the registrar or the clerk of the court and his duty was to
ensure attendance of persons summoned by the court. Sometimes he was
also entrusted with the task of trying of petty civil cases.
Provincial Courts:

In each Province (Subah) at the Provincial Headquarters four courts were

established, namely Adalat Nazim-e-Subah, Adalat Qazi-e-Subah, Governor’s
Bench (Diwan-e-Subah) and Sadre-e- Subah.

(1) Adalat Nazim Subah: This court was presided over by the Nazim. In the
Province the Sultan was represented by him and like the Sultan he
exercised both original and appellate jurisdiction. In original cases he
usually sat as single judge. From his judgment an appeal lay to the Central
Appeal Court at Delhi. While exercising appellate jurisdiction, the Nazim sat
with the Qazi-e-Subah constituting a Bench to hear appeals. From the
decision of this Bench, a final second appeal lay before the Central Court at
Delhi.

(2) Adalat Qazi-e-Subah: This court was presided over by the Chief Qazi of the
Province. This court tried all cases of civil and criminal matters. It also heard
appeals from the courts of District Qazis. Appeals from this court lay to the
Adalat Nazim-e-Subah. This court also had the supervisory jurisdiction
over the administration of justice in his province and to see that the Qazis in
districts were properly functioning. Four officers namely Mufti, Pandit,
Mohtasib and Dadbak were attached with this court too.

(3) Diwan-e-Subah: This court had both original and appellate jurisdiction in
all revenue matters. It had the final authority in the Province over all cases
concerning revenue.

(4) Sadre-e-Subah: This was the Chief Ecclesiastical court in the province. This
court dealt with the matters relating to grant of stipend, lands etc.
District Courts:

In each District, at the District Headquarter, following courts were established:

(1) The District Qazi’s Court: This court had the jurisdiction to try all civil and
criminal matters. It also heard appeals from the decisions of the Parganah
Qazis, Kotwals and village panchayats. This court was presided over by the
Qazi who was appointed by the Sadre Jahan on the recommendation of the
Qazi-e-Subah. This court was also assisted by same four officials as
mentioned above.

(2) 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.

(3) Court of Mir Adils: This court dealt with land revenue matters. Appeal from
this court lay before the Court of Diwan-e-Subah.

(4) Court of Kotwals: This court was authorised to try police and municipality
cases.

Parganah’s Courts: The Courts of Qazi-e-Parganah and Kotwals were constituted

at each Parganah Headquarter. The Court of Kazi-e-Parganah had all powers of a
District Kazi in all civil and criminal cases except hearing appeals. The Kotwal
was authorised to try petty criminal cases. He was also the principal executive
officer of the town.

Village Courts: For each group of villages, a panchayat was functioning to look
after the executive and judicial functions. The panchayat decided petty civil and
criminal cases of purely local nature.

B. Legal System under The Mughal Administration

During the Mughal period (1526-1857) the Mughal 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 Capital
Three important courts were functioning at the capital city of Delhi. They were as
follows:

(a) The Emperor’s Court: The Emperor’s court presided over by the
emperor himself, was the highest court of the empire. This court had jurisdiction to
hear both civil and criminal cases. The Emperor while hearing the cases as a court
of first instance, was assisted by Daroga-e-Adalat, Mufti and Mir Adil. 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.

(b) The Court of Chief Justice: This was the second important court at the
capital, This court presided over by the Chief Justice was assisted by two Qazies of
great importance who were attached to this court as puisne judges. This court
had jurisdiction 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.

(c) Chief Revenue Court: This was the third important court in Delhi. It
was the highest court of appeal to decide revenue cases. This court was also
assisted by the same four officials as mentioned below.

In each court, as stated above, four officials were attached- Daroga-e-Adalat,

mufti, Muhtasib and Mir Adil. Apart from the above-stated three important courts,
there were also two courts in Delhi. The court of Qazi-e-Askar was a special court
to decide military matters. This court moved from place to place with troops.
Another court was the court of Qazi of Delhi which sat in the absence of the Qazi-
ul-Quzat to decide local civil and criminal matters.

Provincial Courts

In each Province there were following three types of courts:

(a) The Governor’s Court (Adalat-e-Nazim-e-Subah): The

Governor or Nazim presided over this court and he had original jurisdiction in all
cases arising in the Province. This court had also jurisdiction to hear appeals from
the subordinate courts. Further appeal from this court lay to the Emperor’s court.
This court had also supervisory power over the administration of justice in the
Province. One Mufti and a Daroga-e-Adalat were attached to this court.

(b) The Provincial Chief Appeal Court (Qazi-i-Subah’s Court): This

court heard appeals from the decisions of the Qazis of the districts. The powers of
Qazi-i-subah were co-extensive with those of Governors. This court had original
civil and criminal jurisdiction as well. The officers attached to this court were,
Mufti, Mohtasib, Daroga-e-Adalat-e-Subah, Mir Adil, Pandit, Sawaneh Nawis and
Waqae Nigar.

(c) Provincial Chief Revenue Court (Diwan’s Court): This court

presided over by Diwan-e-Subah had original and appellate jurisdiction in all
revenue matters. An appeal from this court lay to the Diwan-e-Ala at the Imperial
capital. Four officers attached to this court were- Peshker, Darogha, Treasurer and
Cashier.

District Courts
In each district there were following four courts:

(a) District Qazi: The chief civil and criminal court of the district was
presided over by the Qazi-e-Sarkar. This court had jurisdiction to try all
civil and criminal matters. Appeal from this court lay to the Qazi-e-Subah. Qazi-e-
Sarkar was the principal judicial officer in the District. Six officers were attached
to this court- Darogha-e-Adalat, Mir Adil, Mufti, Pandit, Mohtasib and Vakil-e-
Sharayat.

(b) Faujdar Adalat: This court presided over by a Faujdar had jurisdiction
to try cases concerning riots and state security. An appeal lay to the court of
Governor from the decisions of this court.

(c) Kotwali Court: This court presided over by a FCotwal-e-Shahar decided

all petty criminal cases. Appeals from this court lay to the Qazi-e-Sarker.

(d) Amalguzari Kachari: This court presided over by an Amalguzar

decided revenue matters. An appeal from this court lay to Diwan-e-Subah’s adalat.

Parganah’s Court
In each Parganah there were three courts:

(a) Qazi-e-Parganah’s Court: This court had jurisdiction over all civil and
criminal cases arising within its original jurisdiction. This court had no appellate
jurisdiction. Appeal from this court lay to the court of District Qazi.

(b) Court of Kotwal: This court decided all petty criminal cases. Appeals
from this courts’ decision lay to the Court of District Qazi.

(c) Amin-e-Parganah: This court presided over by an Amin decided all

revenue matters. An appeal from this court lay to the District Amaguzar.

Village Courts
In each village two types of courts were working- court of village panchayat and
the court of Zaminder. The village panchayat consisted of five persons headed by a
headman. The panchayat had the power to decide petty local civil and criminal
matters. No appeal was allowed from the decision of a panchayat. In the late
Mughal period, Zaminder’s courts were empowered to try petty criminal and civil
matters.
 Crime and Punishment in the Mughal Administration

A systematic judicial procedure was followed by the courts during the Mughal
period. The judicial procedure was regulated by two Muslim Codes namely Fiqh-e-
Firoz Shahi and Fatwai-i-Alamgiri. Evidence was classified into three categories-
(a) full corroboration; (b) testimony of a single individual; and (c) admission
including confession. The court always preferred full corroboration to other classes
of evidence. The Muslim criminal law broadly classified crimes under three
heads: (i) crimes against God; (ii) crimes against the King; and (iii) crimes
against private individual.

During the Muslim period trial by ordeal as existed in Hindu period was
prohibited. Instead three forms of punishments were executed by the courts under
Muslim law for above three types of crimes.

(a) Hadd (fixed penalties): This is the form of punishment which was
prescribed by the cannon law and could not be reduced or modified by human
agency. Hadd meant specific punishments for specific offences. It thus provided a
fixed punishment as laid down in Sharia for crimes like theft, robbery, whoredom
(zinah), apostasy (ijtidad), defamation and drunkenness. It was equally applicable
to Muslims and non-Muslims. The state was under a duty to prosecute all those
who were guilty under Hadd. “No compensation was granted under it. For
instance, stoning to death was prescribed for adultery or drinking wine, cutting off
the right hand for theft etc. All offences for which Hadd was prescribed as
punishment are characterised as offences against God, in other words, against
‘public justice’.

(b) Tazir (Discretionary Punishment): This was another form of

punishment which meant prohibition and it was applicable to all crimes which
were not classified under Hadd. Offences. for which tazir was fixed were all
offences against God. It included crimes like gambling, causing injury, minor theft
etc. Under Tazir the kind and amount of punishment was left entirely with the
judge’s wish; courts were free to even invent new methods oi punishing the
criminals e.g. cutting out the tongue, impalement etc. The object was to reform the
criminal.
 (c) Qisas (retaliation) and Diya (blood money): Qisas meant, in
principle, life for life and limb for limb. Qisas was applied to cases of willful
killing and certain types of grave wounding or maiming which were characterisd as
offences against human body. Qisas was regarded as the personal right of the
victim or his next of kin, to inflict a like injury on the wrong-doer as he had
inflicted on his victim. Under Qisas the relatives or successors of the murdered
person could excuse the murderer. Qisas became Diya when the next of kin of the
victim was satisfied with money as compensation for the price of blood. This also
could not be reduced or modified either by the Qazi or the Emperor. In cases where
Qisas was available, it could be exchanged with diya or blood money.