History & Basis of Muslim Criminal Law


The Muslim system of Criminal law and justice had gained ground sufficiently in India when the Britishers came to India. During the Moghul period, it had become systematic, and, as applicable in the Muslim-ruled areas in India. The Primary Source of Muslim Law was the Koran. Ijma & Qiyas were the other Sources.

The nature, purpose & mode of punishment under Muslim Law may be grouped into four:

i) Retaliation (Kisa) (Life for life, limb for limb),

ii) Blood money (Diya) (Unintentional killing), monetary compensation,

iii) Fixed penalties (Hadd) (Limits of Punishment prescribed),

iv) Discretionary (Tazzer) (Judge's discretion)

Muslim criminal law was based -on 'Hedaya and Fatawa Alamgiri. Sometimes these contained contrary Principles opposing Hanafi Schools. This resulted in the uncertainty of Hanafi Law. In addition, this Law of crimes in some aspects suffered from other glaring defects like the absence of the Principles of natural justice.

Crimes were divided into Crimes against God & Crimes against man. The King was the highest judicial authority & formed the highest court, He decided cases in the Court Hall called Diwan-i-Khas (Hall of private audience).

The British Government employed the process of gradually reforming the Muslim law so as to make it a fit instrument for the administration of Criminal Justice in India. The reforms were introduced in the form of regulations based generally upon English Principles.

Lord Cornwallis in 1790 divested the Kazi of any authority over nizamat. In 1791, the government abolished the punishment of mutilation and substituted imprisonment and hard labor in its place. General principles on which criminal justice should be administered were introduced in Cornwallis Code 1793. In 1833 Lord Macaulay moved the House of Commons to codify the whole of Criminal law in India. The first law commission was appointed with Lord Macaulay as its Chairman. This submitted its draft to the Governor-General in 1837. This was circulated to the Judges and Law advisers. It was revised by another Commission. It was finally passed by the Legislative Council in 1860. This is the Indian Penal Code. In 1861, the Criminal Procedure Code was passed. These two together abrogated, interalia, the then prevailing Hindu & Muslim Criminal Laws and Procedures.

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