Article Written By EIH Researcher And Writer
Aparnna R Menon
What was legality like in the Mughal state? How did the empire that has been largely understood as an Islamic state rule over a predominantly non-muslim population? Were the laws of the state derived solely from shari‘a?
These questions open an interesting window into the fascinating realm of the legal order which incorporated social norms, oral traditions, ethics, and morality. Here, the spotlight shifts from the imperial state; kings, nobles, bureaucracy, imperial court, and the harem to processes happening at the local levels to study how state formation is happening from below.
To equate shari’a (roughly translated as Islamic law) with the kinds of rigid laws of today would be anachronistic. In ‘An Introduction to Islamic Law’ Wael Hallaq notes how ‘legal plurality is an important feature in Islamic law with the ability to integrate local customs and provide an array of opinions on the same set of facts. This character of law provides flexibility and adaptability to diverse societies and regions with an ability to change and develop over time.’ Furthermore, in the context of South Asian legal order Prof Werner Menski has proposed “a kite model of law” that is shaped by the interactions between customs and tradition, state laws, religious and cultural norms, and international laws. Thus, the laws were neither distanced from their time nor unaffected by the influences of customs and traditions.
To borrow Nandini Chatterjee’s words, Sharia was a ‘permissively inclusive’ legal system, one that acknowledged religious boundaries that served in the Mughal state for Muslims and non-muslims. In fact, the Persian documents of the National Archives of India open details about various transactions like that of sales, mortgages, gifts, division of inheritable property, legal disputes recorded in mahzar namas, marriages, and incidental obligations which exempting the one that dealt with Muslim marriages, were dealing with predominantly non-Muslims.
A few case studies
An Augustinian friar Sebastiao Manrique was travelling through Bengal in 1640 with a party of Muslim attendants. Eyeing for a sumptuous meal, one of his attendants killed a couple of peacocks. Manrique’s immediate response was to flee but they were caught by the villagers. The last resort to bribe the local guide also fell in vain and they were produced before the shiqdar appointed by the Mughal state to collect the revenue and maintain law and order. He pleaded for his Muslim attendant saying that Islam did not prohibit the killing of the peacock but his appeals to religious sentiments fell on deaf ears. The culprit was punished on the accounts that the local customs (that included Hindu customs of the region) had displeasure with the killing of peacocks and that ‘Muslims in a Hindu district had to follow the laws and practices of Hindus.’ Emperor Akbar had insisted on that.
Another example from Surat documents shows us a Hindu woman whose spouse had purchased four shops attached to the mosque and was denied from collecting the rent. The mosque was God’s property and the shops were an extension from which rent could not be allowed to collect. The legal claims were made as per shari‘a. But what’s impressive is that these claims were countered by the Hindu woman using shari‘a. She argued before the local qāzi that she must have complete access to the property as these shops were purchased by her deceased spouse and in shari’a, a transaction of sale (bai‘) ensures this demand. Though a better reading of history would provide no surprise about women using their agency, what is remarkable is how the knowledge of shari‘a was not limited to any group. It was accessed and manipulated by groups to suit their demands.
A record from the pargana of Batala in 1710 documented in mahzarnama denounces a local qāzi Hibatullah for misusing the law and usurping properties illegally. These craftsmen and artisan groups who included non-muslim residents like Gulab Rai and Jhajju Singh sought a replacement with qāzi Ghulam Muhammad whose efforts pleased them. As Muzzaffar Alam suggests, shari‘a adopted multiple meanings and gave importance to the concepts of haq (righteousness) and ‘adl (justice) from which qāzi a could not deviate.
Professor Farhat Hasan, whose works have been extensively used to jot down this article, points out the malleability of the rule structure and the enormous participation of local power holders, corporate groups, and ordinary people. Another engaging insight is delivered by the legal document or mahzar dated July 1787 that deals with a case of theft and a broken promise that the culprit’s family failed to meet. This document contains various patterns and floral designs. As cute as they may look to the naked eye breaking the monotony of the long script, these imprints were fused to the semiotic world where the illiterate and the unlearned marked their participation in the legal process. This assertion is supplemented by the diverse groups that partook in this activity; local elites and residents but also barbers and dyers. These markings elicited a sense of caste-based, community-based identity, social markers, and differences. Nandita Sahai’s works add to this as she locates different centres of power where caste councils and community groups functioned to uphold customs and practices. The different languages in these legal documents also reveal the wider participation that these were meant for.
Satires and political criticism
As much as the Mughal state emphasised textual tradition and pen and paper, juridical literacy co-existed with oral and performative culture. There have been attempts to codify the law like that of Fatwa I Alamgiri by Aurangzeb. However, Prof Farhat Hasan argues that the texts did not gain autonomy or replace orality but synchronised to produce meaning. The local qazbas, bazaars, and chowks that were bustling with activities; How did they see the state and enact their agencies? Panegyric writings with gracious epithets as we know found their way into the source material but so did political critiques, especially that of the 18th-century hajw (satire) in the rekhti traditions. The satires in allegorical and metaphorical language encompassed literary assaults in explicit sexual undertones, violent and sadomasochistic at times even denoting bestiality. The ones of Jafar Zatalli spared no one as he targeted the qazi, kotwal, and petty officials to the emperor himself losing his employment and his dear life along the way. The violence of the state was expressed in the sexual form mostly pederastic, the embodiment of the corporeality of the state educed in the process. Homosexual acts were neither approved nor critiqued in the medieval world as pointed out by C M Naim but the active and passive sexual roles got linked to manliness. The state was reprimanded for emasculating the people. These satires critiqued lawlessness, corruption, theft, etc, and attacked the power-holders but also evoked a sense of anger among people. Anger, argues Prof Hasan, is not an irrational sentiment in the ‘rational’ sphere of political activities or an antithetical to modernity but crucial in negotiating with the state for better governance. These satires were read out in public spaces like bazaars and qazbas which resulted in a ‘performative public sphere.’ The activities from below, often overlooked, narrate nuanced stories of people like you and me.
The onset of colonial rule meant something else for these interactions. Interestingly, Warren Hastings on the legal administration of Bengal proposed that “the Mohemadans and Gentoo inhabitants shall be governed by their own laws.” The governor clearly did not understand the assignment and was subjected to criticism by Reza Muhammad Khan in the context that Hindus were never governed by Brahmins. However, the result came out to be a clearly defined set of laws based on religion deriving authority from the state. Lauren Benton’s ‘Law and Colonial Cultures: Legal Regimes in World History’ holds colonialism as the reason for the shift from a plural legal order to a state-centred legal order. As argued by Prof Farhat Hasan, the prepossession to portray the Mughal state through the prism of state legal centrism comes very much with the need to draw the ‘medieval’ state as a quasi-modern state, a rightful predecessor of the modern state; the terms like ‘medieval’ and ‘modern’ heavily burdened by colonial interpretation of these words. This urge was met at the cost of disenfranchising the people and the political agency they exercised.
“If history is about remembrance, it is also about amnesia, selective and discriminatory.” -Farhat Hasan
While the works of scholars like Farhat Hasan, Abhishek Kaicker, and Prathyay Nath have sought to look away from the state-centric perspective and put people back in the history of the Mughal empire, more works are awaited that would help comprehend better the extraordinary roles played by the ordinary people.
BIBLIOGRAPHY
Chatterjee, Nandini. “REFLECTIONS on RELIGIOUS DIFFERENCE and PERMISSIVE INCLUSION in MUGHAL LAW.” Journal of Law and Religion, vol. 29, no. 3, Oct. 2014, pp. 396–415, 10.1017/jlr.2014.20. Accessed 15 Nov. 2021.
Hallaq, Wael B. An Introduction to Islamic Law. Cambridge Cambridge University Press, 2016.
Hasan, Farhat. “Law as Contested Communication: Literacy, Performativity and the Legal Order in the Mughal Empire.” Oxford Journal of Law and Religion, vol. 8, no. 2, 1 June 2019, pp. 396–413, 10.1093/ojlr/rwz015. Accessed 1 Nov. 2021.
—. Paper, Performance, and the State : Social Change and Political Culture in Mughal India. Cambridge University Press, 3 Feb. 2022.
Khalfoui, Mouez. “Together but Separate: How Muslim Scholars Conceived of Religious Plurality in South Asia in the Seventeenth Century.” Bulletin of the School of Oriental and African Studies, vol. 74, no. 1, Feb. 2011, pp. 87–96, 10.1017/s0041977x1000073x. Accessed 27 Jan. 2023.
Image credits
Abu’l Hasan, Emperor Jahangir at jharokha window of the Agra Fort, C. 1620, Aga Khan Museum. From Wikimedia.
