This is part 2 of a six-part series of posts that will examine Anglo-Muhammadan law in the courts of British India.
As noted in the introductory blog post, the application of Anglo-Muhammadan law was varied and uneven. In addition to this being the result of a limited understanding of Islamic law on the part of English judges, the judges also found various loop-holes to avoid the application of Islamic law. One such loop-hole was the notion of “justice, equity and good conscience.”[1] In 1781, under Governor-General Warren Hastings, a regulation was passed applying to the Civil Courts (Diwani Adalat) of Bengal, Birhar and Orissa that notes, “in all cases, within the jurisdiction of the Mofussil Dewannee Adaulut, for which no specific Directions are hereby given, the respective Judges thereof do act according to justice, equity and good conscience.”[2]
The passage of this regulation was especially curious as less than a decade earlier, under the same Governor-General, the Administration of Justice Plan of 1772 was passed which stated that “in all suits regarding inheritance, marriage, and caste and other religious usages and institutions, the laws of the Koran with respect to the Mahometans, and those of the Shaster with respect to the Gentoos [Hindus], shall be invariably adhered to.”[3] In some sense, these two regulations legitimized both the application and non-application of Islamic law. More specifically, judges were to apply Islamic law in cases of personal status law except if and when the judges could not ascertain the law, in which case they could rely on “justice, equity and good conscience.” The idea of justice, equity and good conscience applied in colonial courtrooms to Islamic law created a paradoxical situation in which judges invoked it both to argue for the application of Islamic, and invoked it to argue against the application of Islamic law. The next two posts look at an example of each.
Before turning to the specific cases, a few general notes are germane. All of the court cases I cite are taken from the Indian Law Reports: Allahabad Series: Containing Cases Determined by the High Court at Allahabad and by the Judicial Committee of the Privy Council on Appeal From the Court. Since the cases I use are taken from different volumes, for each case I will note the case volume, case year, and brief summary of the case before discussing the elements pertinent to Anglo-Muhammadan Law. It is important to note that in the Indian Law Reports (ILR), all cases of judicial significance are legally required to be reported. This means that if one is searching for cases involving Anglo-Muhammadan law, the index for ‘Muhammadan Law’ has to be consulted. What is immediately noticeable when canvassing the law reports is that of the hundreds of cases published in each volume, typically less than five involve Anglo-Muhammadan law. This indicates that irrespective of the efforts expended by the English administrators to create an ‘authentic Islamic legal code,’ its application in the courtroom was relatively limited.
Case 1: The Application of Islamic Law through Justice and Equity: The Right of Pre-emption
Source: Indian Law Reports: Allahabad Series, Volume II
Case: Zahur (Defendant) v. Nur Ali (Plaintiff), January 24, 1879
Classification: Muhammadan Law- Pre-Emption
Summary: “Where a dwelling-house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site, held that a right of pre-emption under Muhammadan law attached to such house.”[4]
Presiding: Justice Pearson and Justice Turner.
Brief Summary of the Case: The case, provided in the Allahabad Series, is an appeal to the High Court. In the first instance, the plaintiff charged the defendant with overlooking the former’s right to pre-emption in the selling of his house, making the selling of his house invalid, and allowing for the plaintiff to purchase it. The defendant contended that in order for the right of pre-emption to be invoked an immediate claim must be made, which the plaintiff did not do, rendering his claim invalid. The first instance of the case was dismissed by the lower court in favor of the defendant on the grounds that the plaintiff did not comply with the conditions of pre-emption. On appeal to a lower appellate court, the court reversed the ruling, stating that the plaintiff did in fact fulfill the conditions of pre-emption and therefore the sale was invalid. In the record provided in the Allahabad Series it is not noted exactly how the plaintiff proved his fulfillment of the conditions of pre-emption. On appealing the decision of the appellate court, the case was heard in the High Court. This time the case did not revolve around the plaintiff’s immediate invocation of the right to pre-emption; instead, the defendant asserted that because the sale of the house occurred without land there is no right of pre-emption under Anglo-Muhammadan law. It is noted in the record that passages from the Hedaya are cited to demonstrate that when a house is sold apart from the land, the right of pre-emption does not apply, and given that the seller (defendant) had no right to the land, only to the house, no right of pre-emption for the plaintiff existed.
The Ruling: Justice Turner dismisses the claim of the defendant arguing that the selling of the house entails the right of occupation of the soil it is built upon, so the argument of the appellant that no land is involved is invalid. The right of pre-emption for the plaintiff stands.
The Right of Pre-Emption in the Hedaya: In appeal to the High Court presented above, the rights of pre-emption are invoked as presented in the Hedaya, to which we now turn. The right, as written in the Hedaya is:
The right of pre-emption is a right to acquire by compulsory purchase, in certain cases, immovable property in preference to all other persons. It is not one of the matters in suits respecting which the Muhammadan Law is expressly declared to be the rule of decision when the parties are Muhammadans. But the Courts of British India have, on grounds of justice, equity and good conscience, generally administered that law as between Muhammadans in claims for pre-emption.[5]
In this passage, the right of pre-emption as existing between two Muslims is established. Curiously, it also notes that judicial authorities are not bound to recognize the right of pre-emption as it is beyond the scope of Anglo-Muhammadan law to be implemented as per the 1772 Judicial Plan. The rationale given for recognizing the laws of pre-emption in the commentary is that it is “firmly rooted” nature in the “sentiments of the Moslem community” and therefore according to “justice, equity and good conscience,” it should be applied. Further in the Hedaya it is noted that it is implemented “where the custom is judicially noticed as prevailing in a certain local area,”[6] meaning that judges can choose when to recognize the right of pre-emption and when to ignore it. The text then turns to outline individuals who cannot claim the right of pre-emption such as tenets of contiguous lands, any individual in a “mere vicinage,” co-owners of an estate,[7] as well as the conditions making pre-emption valid.[8]
In the High Court, the defendant asserted that the right of pre-emption does not apply in his case as he only sold the house and not the land, and it is to the land that the right of pre-emption applies. In the discussion of pre-emption in the Hedaya this differentiation appears with reference to “immovable” versus “movable” property, with the former being within the scope of pre-emption and the latter not.[9] On the interpretation of the judges, even if one sells only their house, the right of pre-emption is still violated as the selling of the house entails the immovable property upon which it rests.
The ruling in this case has a number of notable features. First, despite the creators of Anglo-Muhammadan law justifying the law on the basis of legal uniformity or monism, judges did not uniformly apply the law. In this case of pre-emption, it is clear that it was left to the jurisdiction of the judges whether they wanted to apply the law on the basis of what was customarily applicable in their area. This meant that the right of pre-emption was not one that was given to all Muslims in India; rather, it was granted only to some Muslims on the basis of their location. Second, inasmuch as the Hedaya was a legal compendium created for the ease of the judge when ruling, it became something used by litigants and legal practitioners as well. In the case discussed in this brief, both representatives for the plaintiff and defendant argue for their rights on the basis of passages of the Hedaya, and the judge rules in accordance to his interpretation of those passages. Third, focusing on the usage of Anglo-Muhammadan law and the invocation of the Hedaya by the judges, aside from a cursory mention of the text, the majority of the judicial discussion preserved in the ILR on pre-emption is devoted to providing details of the case and little discussion of Islamic law is deemed relevant. For judges, the ability to rely on “justice and equity,” even in cases involving Islamic law meant that even a cursory engagement with Anglo-Muhammadan law was seen as sufficient when reporting judicial decisions. In this case, we see the judges acknowledging the rulings in the Hedaya and justifying their application on the basis of “justice, equity and good conscience,” but in the next case we shall see the opposite phenomenon.
Notes:
[1] For a history of this legal principle see Duncan M. Derrett, “Justice, Equity and Good Conscience,” in Changing Law in Developing Countries, ed. J.N.D. Anderson (New York: Frederick A. Praeger, 1963), 114–53.
[2] Regulations for the Administration of Justice in the Courts of Mofussil Dewannee Adaulut and in the Sudder Dewannee Adaulat, July 5th, 1781.
[3] Selections from the State Papers of the Governors-General of India, volume II (Oxford: B.H. Blackwell). This passage was formally adopted as part of the Regulations of 1780.
[4] The Indian Law Reports: Allahabad Series, Volume II (Superintendent Government Press), 68.
[5] Sir Roland Knyvet Wilson, A Digest of Anglo-Muhammadan Law (London: W. Thacker & Co., 1895), 311 (emphasis added).
[6] Ibid., 315, 316.
[7] Ibid., 321–30.
[8] Ibid., 331.
[9] Ibid., 325.