Abstract:
The Shari`ah Laws had been the law of the land during the Muslim rule in India for centuries. All the civil and criminal dispute were desided in accordence with the rules of the Qur’an and Sunnah. The entire legal system and judicial structure of India was based on Shari`ah  laws. Throughout the India qadizs were appointed who used to decide cases according to the injunctions of Quran and Sunnah. and the other recognized sources of Shari`ah. The Shari`ah Laws were enforced in India in the begining of the Colonial rule till the time when  Lord Warren Hastings was appointed as the first Governor General of India in 1774. Lord Hasting was the first who, in the name of legal reform, gradually abrogated the Islamic Legal System of India. He started his reform in 1774  that continued till 1799 when the entire legal and judicial structure of India was based on English Common Law. This paper examines the step by step abrogation of Islamic Laws from the Indian legal and judicial system during the time of Lord Hastings during 1774 to 1799.

Introduction
Pakistan emerged as an independent state on August 14, 1947. It was established by division of India into two states as a result of the Indian Muslims claim to a separate nation in their own right. Such claim was made in a resolution passed by the All India Muslim League on 23rd March, 1940 in Lahore. The demand of Muslims of India for a separate homeland was: not merely a demand for a separate territorial state as an economic homeland but the real basis of this demand was ideological. They by establishing a separate country wanted to protect their Islamic way of life which was being threatened by the overwhelming Hindu majority. The Hindu nationalist leaders left no doubt in the minds of the Muslims that they had no place in the future India and they were either to be absorbed in Hinduism or completely neglected. Thus the basis of the Pakistan movement was that the Muslims of India will have a separate homeland in which they will order all the aspects of their life in accordance with the teaching of Qur'an and Sunned. Their aim was to run the system of their homeland in accordence with the rules contained in the Holy Qur'an and Sunneh. More or less every government of Pakistan, either at its own or under the pressure of public demand, made attempts for the islamization of the legal and judicial system of the country and the process of islamization seems to be continued in the future as well. The purpose of this paper is to provide a historical account of the “Anglicization” of the legal system of the Indian sub-continent which was essentially based on Islamic law at the advent of the British colonial rulers.

Origin of the Anglicization of Islamic Laws:
British involvement in the Indian sub-continent started with the East India Company, a chartered company of London merchants chartered by the British Crown. It was established under a Royal Charter of Queen Elizabeth-I. The Company gradually transformed trading privileges into a territorial empire centred on India. By 1700 it had secured important trading ports in, Madras, Bombay, and Calcutta, which became the capital of British India. In 1756 Prince Tipu Sultan captured the company's trading station at Calcutta. Clive defeated the Prince at the Battle of Plassey in 1757 securing Bengal for the Company. This made the East India Company the greatest European power in India. Increasingly the company acted as an instrument of colonial government serving as Britain's administrators in India. In 1774 Warren Hastings, Governor of Bengal, was made the first Governor General of India. The liberation war of 1857 caused the transfer of the control of India from the East India Company to the British government in 1858.

Judicial System of India under the Muslim Rule
The judicial system of India during the Muslim rule was purely base on the Shari`ah laws  and the Muslim emperors used to decided all type of disputes in the light of the injunctions of the Qur’an, Sunnah and the other recognized sources of Shari`ah. While deciding the disputes between their subjects the Muslim rulers were always assisted by ‘ulama and muftis especially appointed for such purpose. The Muslim rulers of India regarded themselves as the humble servants of Allah (?????? ??????).  The administration of justice was considered to be an essential act for the fulfillment of the responsibilities of a ruler.  The ruler was considered a vicegerent of Allah (?????? ??????) elected by his peope to serve them and he could be deposed by them if he acted against the rules of Shari`ah promulgated in the Qur’an and Sunnah. 

The judicial system of India during the Muslim was based on Islamic teachings contained in the Qur’an, Sunnah and ancient fiqh works. The laws relating to punishment, civil matters marriage, divorce, inheritance, evidence and procedure were base on the Shari`ah.  The king was bound by those laws as any other ordinary member of the society. No immunity was available for the king and he could not alter these laws. He had to decide the disputs in accordance with those laws. If a ruler needed any interpretation of the provisions of those laws he had to consult the ‘ulama and muftis of his kingdom appointed for his assistance in this regard.

The Shari‘ha law had been administered in India for centuries, first by the various Sultans, next under the authority of the strong Mughal empire, and finally by the successor states that arose during the eighteenth century.  Especially under the Mughals, the administration of Shari’ah was viewed as a sacred duty. On the administrative side, Shari’ah was supplemented with a comprehensive set of imperial regulations as well as a cadre of officially sponsored qadis drawn primarily from the ‘ulama.

Laws of India under the Muslim Rule:
The Shari`ah had been the law of the land during the Muslim rule in India for centuries. All the civil and criminal dispute were desided in accordence with the rules of the Qur’an and Sunnah. Besides the rules of Shari`ah the rulers used to promulgate certian ordinances form time to time known as farmeen and Dosateer-ul-Amal. They were also called Qunoon-e-Shahi. Such ordinances were contained in collections like Ain-e-Akbari, Zawabit-e-Alamgiri etc. Such regulations could not, however, provide contrary to the injunctions of the Qur’an and Sunnah.  Those laws which had their origin neither in the Shari`ah nor in the farmeen, were consisted of local customs and were knows as the Qanoon-e-Urf.

During such period the courts develop a very rich case law as well. The law courts were permitted to consider, while deciding the cases, the precedent established by other courts. There were ulema and muftis appointed to collect the decisions of different court for the assistance of qadis in the decision of cases. The use of precedent was permitted, however, qadis was not bound by the decision of superior courts.

The cases of civil as well as of criminal nature were decided by the courts in accordance with the rules of Shari`ah. However, the laws of Shari`ah were not codified in the present day sence of codification. It appears form the study of the judicial system under the Muslim rule that qadis used to consult the original sources on tafseer, hadith and fiqah while deciding different disputes. No codified general law was given to the courts for implementation, and consequently, the justice was dispensed in acordence with the sources of shri`ah.

Fatawa was another source of law in the period of Muslim rule in India.Several books of  fatawa were compiled during that period. Such fatawa books were consulted by qadis because many of them were prepared on the directives of different Muslim rulers. Fatawa-e-Alamgiri was considered one of the most authentic sources of Islamic Law in India. It was compiled during the reign of Aurangzeb Alamgir, who himself was a scholar of Islamic laws. Under the direction and supervision of Aurangzeb Alamgir a team of fuqaha of that time compiled this valuable work. The courts were ordered to implement it and even today it is being consulted by the courts of Pakistan.

Fatawa-e-Hamadiah was another rich collection of fatawa. This collection of fatawa was prepared by Abu-ul-Fatah Rukan-un-Din Bin Hasam, Mufti of Nagore (India) and his son Maulana Baud in ninth century (Hijree) by the order of Qadi-ul-Quzat of Naharwal, Qadi Jamal-Ul-Millah-wad-Din Ahmad bin Qadi Akram. The work is in Arabic and contains fatawa regarding the all chapters of fiqh. Fatawa-e-Tatar Khania was prepared by a great scholar Farid-ud-Din Alim Billah Hanafi in on the direction and help of Amir Tatar Khan.  Fitawa-e-Qira Khania was written by a famours scholar Maulana Imam Humam and was comiled in its present shape by Qabool Qara Khan, another scholar in the reign of Sultan Allah-ud-Din (695-716 A.H) . The work is written in persian and has been prepared in the question answer form relating to all the chapters of fiqh. al-Fatawa al-Ghayasia prepared by Daud Bin Yousaf Alkhatib in the reign of Sultan Giyas-ud-Din Bolban (1266-1287 A.D) and was submitted to him by the author.  Fiqh-e-Feroz Shahi was promulgated in the reign of Feroz shah Tughlaq. It was written in Arabic but was translated into Persian by the order of Feroz Shah Tughlaq. It chiefly related to the procedural law and law of civil matters. It remained the basis of Judicial System of Muslim ruler in India up to the reign of Auragzeb Alamgir.

A Historical Account of the Anglicization of Islamic Laws:
In the-Indo-Pakistan sub-Continent the Islamic laws prevailed right from 1602 to 1772. The British colonists thought that it was quite necessary to first deprive Muslims of their source of sustenance and symbol of identity i.e. Islamic legal and judicial system. The first target of their attack was the Islamic laws enforced in India for centuries.

In the beginning the British colonial power tolerated the existing legal and judicial system which was essentially based on the Islamic laws as a matter of policy. And that was because of by three main reasons. Firstly, they did not want an immediate break with the past. Secondly, their main purpose was to have security in social conditions so as to facilitate trade. Thirdly, they had no desire to interfere with the religious loyalties of their subjects.  The Islamic laws remained in operation for over one hundred year after the British had taken over, nevertheless, it underwent so many amendments during this period.

Appointment of English Judges as Qadis:
The first step towards the Anglicization of Islamic laws in the British India was the replacements of qadis with the English Judges in 1772. Muftis continued to advise the English judges, however, mostly the cases were decided by the English judges without giving regard to the opinion of muftis.  And in this way the British directly entered into the legal system of India which was based on the rules of Islamic Law.

Proposals of Warren Hastings for the Modification of Islamic Law:
In 1790 Lord Warren Hastings formulated certain proposals for the modification of Islamic laws enforced in India at that time. He suggested that the difference between the Qatal-e-Amd and Shib-e-Amd may be removed and both of the crimes should be considered same. Secondly, he suggested that the privilege granted by Islam to the sons or other relations to pardon the murderer of their Parents oar kinsmen, be, abolished. Thirdly, that the right to impose qisas which had been granted to the son or other relatives of the murdered may be taken back and only the government should execute the penalty. Fourthly, he proposed that the fine imposed for manslaughter should be proportionate not only to the nature of the crime, but both to the nature and degree of the crime, and to the substance and means of the criminal.

Abolition of the Distinction between Qatal-e-Amd and Shibh-e-Amd:
The qadis of India had adopted the view of Imam Abu Hanifah regarding the distinction between the Qatal-e-Amad and Shibh-e-Amad. According to Imam Abu Hanifah a murderer was not liable to qisas if he committed the murder by strangling, drowning, poisoning, or with a weapon such as a stick or club, on which there was no iron, by such an instrument as is not usually adopted to the drawing of blood.
A Regulation passed on December 3, 1790, abrogated the rule propound by Imam Abu Hanifah to draw distinction between Qatli Amad and Shibh-e-Amad and thus Shibh-e-Amad was also treated as willful murder subject to capital punishment.

Abolition of the Option Granted to the Next of Kin of a Deceased to Remit the Penalty:
According to the all four schools of thought of Islamic Law the next of kin of a deceased person may validly remit the qisas punishment and may either take the amount of diyah from the murderer or may pardon him without demanding the amount of diyah.  Pardoning of the offender has been declared better than the execution of punishment.  This fact is evident from the following text of the Holy Qur’an:¬

O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.

By the Regulation of 3 December 1790 the said option of the next of kin of a deceased person was abolished. It was laid down in the Regulation, that:
“The relation be in future debarred from pardoning the offender and the law be left to take its course upon all person convicted without any reference to the will of the kindred of the deceased”.

Abrogation of the Penalty of Hirabah
The term hirabah in its legal sence it is defined as “spreading mischief” but its precise meaning is “to kill by stealing and targeting a defenseless victim in a way intended to cause terror in society.” The punishment of the offence of Hirabah has clearly been prescribed in the Holy Qur’an. Allah (?????? ??????) Says:

The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter.

There is an agreement among all the fuqaha of the Islamic Law that the next of kin of the victim of Hirabah cannot pardon the offender and it is obligatory to impose upon the offender the Hadd punishment of Hirabah.

In 1790 Lord Cornwallis proposed that the Government ought to substitute the punishment of Hirabah i.e. amputation of leg and arm etc. with the temporary hard¬labour, or fine and imprisonment, according to the circumstances of the case. At that very time the British Government did not give any regard to the proposal of Lord Cornwallis, however, one year later in 1791 the punishment of Hirabah was abrogated. The Governor General in Council resolved on 10 October, 1791 that the punishment of mutilation should not be inflicted on any criminal in future, all criminals thereafter sentenced by the courts to lose two limbs should instead of being made to suffer such punishment, be imprisoned and kept to hard labour for seven years. 

Abrogation of the Rule of Shari`ah that a non-Muslim cannot be a Witness against a Muslim:
According to all the four schools of thought no non-Muslim person is allowed to testify against a Muslim accused.  However, if a Muslim makes a will during a journey and does not find any Muslim to make him a witness upon his will, he is permitted to make a non¬ Muslim as his witness.

This rule of Shari`ah was implemented by the courts of India till 1711 April, 1792 when the Governor General abrogated this rule by resolving that:
"the religious tenants of witnesses be no longer considered as a bar to the conviction or condemnation of a prisoner; but in cases in which the evidence given on a trail would be deemed incompetent by the Mohammadan Law, on the plea of the persons giving such evidence not being of Mohammadan religion, the law officers of the courts of circuit were to declare what would have been their fatwa supposing such witnesses had been of Mohammadan Persuation. "

Amendment in the Law of Qisas Where the Next of Kin was either Minor or Lunatic:
In case where the wali al dam i.e. next of kin of a deceased is either of minor age or lunatic, the majority of the fuqaha is of the opinion that the qisas shall be deferred till the wali al dam attains the age of majority or his lunacy cures. Where it is not possible the guardian of the Wali al Dam shall execute the qisas on his behalf. According to few of the Hanafi Fuqaha the court has the authority to execute the punishment on the behalf of wali al dam who is of minor age or is lunatic.

In 1793 the British Government amended this rule through its Regulation IX of 1793 wherein it was held that if the heir of the slain had not attained the age of majority required by the Islamic Law to render him competent to claim qisas, the trail was to take place as if there was no heir. 

Abolition of Payment of Diyyah:
According to Islamic law the penalty in Shibh-e-Amd and Qat-ul-Khata is the payment of diyah to the heirs of the deceased. Moreover it can be paid even in the case of Qatal-ul-Amad where the heirs of the deceased agreed to compromise with the murderer.  The provision of diyah has been provided for in the Qur’an and Sunnah clearly, for instance:
(a)    He who hath killed a believer by mistake must set free a believing slave, and pay the Blook money to the family of the salin, unless they remit it as a charity. 
(b)    For (the killing of) a person hundred camels (to be paid).

Unfortunately this clear provision of Islamic was abolished by the British Government through the Regulation IV in 1797. It was decided through the said Regulation that in cases where a person convicted of homicide was liable to pay blood money,. the court was to  commute the blood money to imprisonment for such period as it considered adequate for these offence. 

Prohibition of Wali-ud-Dam from Executing the Qisas Personally:
Islam has given right to a wali-ud-dam of a deceased to execute the punishment of qisas by his own hands under the supervision of the court. 

In 1797 through Regulation IV this right of Muslims was taken away by the British Government and it was held that a prisoner convicted of willful murder was to be punished without any reference to the heirs of the person killed.

Promulgation of Death Punishment for the Murder of Son or Grand Son:
Under the Islamic Laws a man cannot be put to death for the murder of his son/daughter or grand son/daughter how law so ever.  A tradition of the Holy Prophet (??? ???? ???? ? ???) says:¬
The father shall not be killed for his son.

The Fuqha of all the four schools of thought are agreed upon the rule that a father can not be convicted to death punishment for the murder of his own son.  This agreed rule of the Islamic was abolished through the Regulation VIII of 1802. And it was laid down that in all those cases where the murderer was declared, by the Islamic law, not liable to qisas on the ground of the prisoner being the father or mother, grandfather or grandmother, the prisoner was to be condemned to suffer death.

Modification of the Punishment of Zina:
Islamic has prescribed  Rajam as the punishment of Zina commited by a Muhsin person. The Fuqha of all the four schools of thought are agreed upon the Rajam being the punishment for Zina by a Muhsin person. Following are some instances from Hadis in which the punishment of Zina by a Muhsin person has been prescribed:
a).    A case of Zina was reported to the Holy Prophet (??? ???? ???? ? ???) and in such case he ordered the rajam of married woman by saying, “0 Unais! Go to the wife of this Man and if she confess, then stone her to death.
b).    In the case of Maiz the Holy Prophet (??? ???? ???? ? ???) upon his confession sentenced him to rajam. 

These crystal clear commandments of Allah (?????? ??????) were totally ignored by the colonial ruler and, consequently, were abolished in 1817 through Regulation XVII. The Regulation laid down that the maximum punishment for the offence of zana was 30 strips and imprisonment with hard labour for seven years. Such punishment was prescribed without any regard to the distinction, prescribed by Shari`ah, between a muhsin (married) and gyr-muhsin (unmarried) offender.

Promulgation of English Civil Laws:
In 1861 the Third Law Commission was constituted by the British Government to frame a body of substantive laws, in preparing which the law of England was used as a basis. The following six enactments were promulgated by the British Government on the recommendations of such Commission:
•    The Indian Succession Act;
•    The Indian Contract Act;
•    The Negotiable Instrument Act;
•    The Indian Evidence Act;
•    The Transfer of Property Act;
•    The Criminal Procedure Act.

All these laws, promulgate by the colonial rulers, generally superseded the rules of Shari`ah in their respective fields.

Abolition of Muslim Criminal Law in Total ¬and the Promulgation of the Indian Penal Code.
By destroying the whole structure of the Shari`ah law in India the Colonial rulers eventually abolished the Islamic law from India where it was implemented for centuries. By the year 1860 such process of anglicization of Shari`ah laws ended and the Shari`ah was totally abrogated by the promulgation of British made Indian Penal Code of 1860.

As stated by M.P. Jain in his M.P. Jain, “Outlines of Indian Legal and constitutional History” the British rulers were not able to codify any code of law themselves The basis of their penal code was still the Shari`ah as Sir George Combe describes in the following words:

"The foundation of our criminal law is still the Mohammedan code; but so altered and added to by our regulations that it is hardly to be recognized and there has, in fact, by practice and continual amendative enactments, grown up system of our own, well understood by those whose profession it is, and towards which the original Mohammadan Law and Mohammadan Lawyers are really little consulted. Still the hidden substructure on which the whole building rests is; this Mohammadan law; take which away, and we should have no definition of or authority for punishing, many of the most common crimes."

After the complete subjugation of India by the colonial rulers the ulama declare India as a dar ul harb in which all the Muslim institutions would be discarded and discredited. When the demand of the Indian Muslims for the restoration of the institution of Qada was not accepted, there remained no hope that the colonial courts would do justice. Consequently, Muslims turned to the ulama, referring, to them nearly all of their socio legal problems for an out of court adjudication. In 1869 a Dar al-Ifta was established at Deoband for the issuance of fatawa in thousands of cases referred to it by Muslims from all over the British India. Many trusted Muftis in different parts of India came to be so consulted. The fatawa literature, which thus came into being gained much currency among Muslims of British India and continues to be popular even now for the decision of the dispute of people. Some of the well-known published fatawa collections are:
a)    Al-Fatawa al-Ghiyasiah;
b)    Fatawa Feroz Shahi;
c)    Fatawa al-Tatarkhania;
d)    Fatawa Ibrahim Shai;
e)    Al-Fatawa al-ALawiyah;
f)    Fatawa-e-Aziziah;
g)    Fatawa-e-Rashidia;
h)    Fitawa-e-Deoband.
i)    Imdad-ul-Fatawa;
j)    Kifayat-ul-Mufti;

The whole of the Fatawa literature, only part of which was collected and published, is indicative of the deep urge of Muslims in British India, to get their disputes settled out of courts of law presided over by non-Muslim judges.

References:

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[2]       Alexender Roger, Tuzuk-e-Jehangeeri, English Translation (London: 1914) 24.

[3]       R.C. Majumdr, An Advanced History of India (London: MacMillan, 1961) 559.

[4]       Jadunath Sarkar, History of Aurangzeb (Karachi: South Asian Publishers, 1981) 16-17.

[5]       V.D Muhajan, The Mughal Rule in India (New Dehli: S. Chand & Company, 1961) 234, H.S. Bhatia, Political, Legal & Military History of India (New Dehli: Deep & Deep Publications, 1984) 4:156, S.A.Q. Hussaini, Administration under the Mughals (Dacca: 1952) 199, K.S. Lal, Early Muslims in India (New Dehli: Books & Books Publishers, 1984) 90.

[6]       S.A.Q. Hussaini, Administration under the Mughals (Dacca: 1952) 203

[7]       A. A. Fyzee, Outline of Muhammadan Law in India, (Bombay: Oxford University Press, 1964) 5.

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[10]       H.S. Bhatia, Political, Legal & Military History of India (New Dehli: Deep & Deep Publications, 1984) 4:156-157, Mohammad Bashir Ahmad, Administration of justice in Medieval India (Allahabad: 1941) 71-72

[11]       Jadunath Sarkar, Mughal Adminstration, (Calcutta: Orient Longman Ltd. 1952) 37, N.B. Ahmad, Judicial System of Mughal Empire (Karachi: Pakistani Historical Society, 1978) 51, H.S. Bhatia, Political, Legal & Military History of India (New Dehli: Deep & Deep Publications, 1984), IV: P. 156-157, Mohammad Bashir Ahmad, Administration of justice in Medieval India (Allahabad: 1941) 71-72.

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[13]       Makhtootat-e-Farisia, Punjab Public Library, Lahore: 77-78.

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[15]       N.B. Ahmad, Judicial System of Mughal Empire (Karachi: Pakistani Historical Society, [n.d]) 20.

[16]       Asif. A.A. Fyzee, Outline of Muhammadan law in India, (Bombay: Oxford University Press, 1964) 53-54.

[17]       Seyyed Khalid Rashid, Islamization of Mohammadan Law in India, (American Journal of Islamic Social Sciences, September 1988) 146

[18]       M.P. Jain, Outlines of Indian Legal and constitutional History (Nagpur: Wadhwa & Company, 2007) 343.

[19]       `Alla’ al-Din al-Kasani, Badai`a al-Sanai`a, (Beirut; Dar Ahya al-Turath al-`Arabi, 200) 6:313.

[20]       M.P. Jain, Outlines of Indian Legal and constitutional History (Nagpur: Wadhwa & Company, 2007) 343.

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[22]       Abd Allah Ibne Qudamah, al-Mughni(Cairo: Hijr Publication, 1992) 11:580.

[23]       al- Baqarah, 178.

[24]       M.P. Jain, Outlines of Indian Legal and constitutional History (Nagpur: Wadhwa & Company, 2007) 343.

[25]       al-Mai’dah: 33.

[26]       `Alla’ al-Din al-Kasani, Badai`a al-Sanai`a, (Beirut: Dar Ahya al-Turath al-`Arabi, 2000) 6:56, Abd Allah Ibne Qudamah, al-Mughni(Cairo: Hijr Publication, 1992) 12:477.

[27]       M.P. Jain, Outlines of Indian Legal and constitutional History (Nagpur: Wadhwa & Company, 2007) 347.

[28]       `Alla’ al-Din al-Kasani, Badai`a al-Sanai`a, (Beirut: Dar al-Kitab al-`Arabi, 1910) 6:280, , al-Haythami, Ahmad bin Hajar, Tuhfat al-Muhtaj Bi Sharh al-Minhaj, (Beirut: Dar Sadir, [n.d.]) 10:211.                     

[29]       Ibne Humam, Kamal al-Din Mohammad, Fath al-Qadir Fi Sharh al-Hidayah, (Beirut: Dar al-Fikr, 1970) 6:41. , Abd Allah Ibne Qudamah, al-Mughni(Riyadh: Maktabat al-Riyadh al-Haditha [n.d]) 9:182.