Alan Guenther
Searching for “Justice, Equity, and Good Conscience”: A Muslim re-interpretation of law in British India
The relationship of Christianity and Islam in history is usually examined in the realm of theology or religious studies. Some scholars focus on the differences, seeking to explain the distinctive character of each community by analyzing their theological presuppositions and contrasting their respective scriptures. Others, concerned that a focus on differences creates unnecessary divisions in an already too-fractured world, explore similarities in spirituality and parallels in religious institutions. This focus on the theological aspect of the interaction is understandable in that almost from the beginning of its history, Muslims have defined themselves in religious terms, seeing themselves a community obeying the message of God delivered by the Prophet Muhammad, who was both continuing in the line of previous messengers such as Moses and Jesus, but also preaching a message that corrected those areas in which Jews and Christians—the followers of the previous prophets—had departed from the true path.
Apart
from the theological aspect, however, Christians and Muslims have interacted in
a variety of other arenas as well, as they both inhabited the regions of the
Mediterranean coastline and of western Asia. The arena of interaction that has
received the most attention after the theological one has been that of
political and military confrontation. The past history of Christian-Muslim
encounters is often interpreted in light of more recent encounters during the
colonialist era and revolutionary or terrorist movements. Other historians who
wish to move beyond a “Clash of Civilizations” model would suggest another
important arena, that of scholarly interaction, exploring the very fruitful
interchange between Christian, Muslim, and also Jewish scholars that led to not
only the translation and transmission of Greek philosophical and scientific
knowledge, but also considerable expansion and development of those fields of
learning. One trend that becomes evident in this arena is the appeal made by
participants in these encounters to a common basis of reason that was shared by
all (or at least that was how it was presented). Thus Thomas Aquinas in the 13th
century begins his defense of Christianity in his Summa Contra Gentiles by presenting those truths accessible to all
by common human intellect, before moving on to those accessible by revelation
alone. Likewise, Sir Syed Ahmad Khan appealed to scientific rationalism in the
19th century in his dialogue with the British in India, and
redefined Islam based on nature and reason.
In
keeping with theme of this conference, I would like to direct our attention to
yet another arena of Christian-Muslim interaction, that of law. While in the
past this aspect has received limited attention by historians of
Christian-Muslim relations, the importance of this subject has become apparent
with increasing attention being directed to the Muslim Sharia and its role both
in countries where Muslims are the majority population and in those where they are
a minority. We hear warnings of “creeping Sharia” and attempts by Muslim
associations in Canada and in the United Kingdom to have the Sharia become part
of the legal systems there. The time period and geographical region on which
this paper is focused is 19th century British India, and the
specific subject is a Muslim named Syed Mahmood and his participation in the
project that produced the amalgam known as Anglo-Mohammedan law. From a post-colonialist
standpoint, Mahmood’s participation in the British judicial system—first as a
barrister and later as a judge—could be dismissed as collaboration with an
imperial regime or as enforced subjection at the hands of a dominant power. I
would argue that Mahmood’s work as a judge in the High Court at Allahabad and
his writings on law and British rule in India demonstrate rather a more
dialogical model of interaction. In particular, Syed Mahmood used the formula
“justice, equity, and good conscience” to call for laws adapted to India,
actually subverting the British practice of importing of English law. In the
realm of Christian-Muslim relations, then, Syed Mahmood represents Indian
Muslims negotiating justice with British Christians in a colonial context,
appealing to an imagined, shared foundation for that justice.
Origin
and purpose of the formula
The
phrase “justice, equity, and good conscience” had its origins in Roman
canonical law as it was understood by English jurists of the sixteenth century.
In the form in which it was introduced into England at that time, it was “an
appeal to sources of law other than English common and statute law,” namely,
“an appeal to fundamental laws, recognized universally.”[1]
The intent of its implementation was to free England from the papal authority
during the reformation of the Church of England. Then at the end of the
seventeenth century, the formula made its way across the oceans into the legal
language in India where courts established by the East India Company in Bombay
and Madras were mandated to administer justice according to the rules of equity
and good conscience and according to the native laws already in place.[2] After
nearly one hundred more years, the phrase was revived in 1781 by Governor
General Warren Hastings as he drew up regulations to guide the fledgling
British judicial administration in India. Section 60 of the Regulations stated,
“That 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,” and Section
93 repeated the rule for the Sudder Dewannee Adaulut as well.[3]
Those matters regarding which the existing corpus of law was silent were then
to be judged according to this provision.
But
it was not only the laws promulgated by the East India Company that were to be
implemented; the laws of the Hindus and Muslims were also to be considered
authoritative. The Regulations drawn up by Governor General Hastings and his
Council also stated that “in all suits regarding Succession, Inheritance,
Marriage and Cast, and other religious Usages, or Institutions, the Laws of the
Koran with respect to Mahometans, and those of the Shaster with respect to
Gentoos, shall be invariably adhered to; and on all such Occasion the Moulavies
or Pundits shall respectively attend to expound the Law.”[4]
Over the next number of decades, judges with the help of native Law Officers
interpreted and applied Muslim and Hindu law along with additional regulations
as legislated by the British Governor General and his Council. When the phrase,
“justice, equity, and good conscience” was invoked to address areas not covered
by the existing law, the judges would draw on a wide range of sources including
Roman Law, laws of European countries, English Law, and Natural Law.[5]
This
commitment to continue Muslim and Hindu law in India was repeatedly reaffirmed
by the British rulers in legislation in subsequent decades. In 1832, the
commitment was modified by a bill making space for converts from Islam and
Hinduism to retain inheritances that might have been eliminated by a strict
following of religious laws regarding apostates. But this Regulation still
explicitly stipulated, “In all such cases, the decision shall be governed by
the principles of justice, equity and good conscience, it being clearly
understood, however, that this provision shall not be considered as justifying
the introduction of the English or any foreign law.”[6]
The Bengal Civil Courts Act (VI of 1871) and the Bengal, Agra and Assam Civil
Courts Act (XII of 1887) also re-affirmed the commitment to uphold Muslim or Hindu
law, with justice, equity, and good conscience covering the residual matters.
Section 37 of the latter Act reads:
(1)
Where in any suit or other proceeding it is necessary for a Civil Court to
decide any question regarding succession, inheritance, marriage or caste, or
any religious usage or institution, the Muhammadan law in cases where the parties
are Muhammadans, and the Hindu law in cases where the parties are Hindus, shall
form the rule of decision except in so far as such law has, by legislative
enactment, been altered or abolished. (2) In cases not provided for by
sub-section (1) or by any other law for the time being in force, the Court
shall act according to justice equity and good conscience.[7]
Consequently,
the situation was such that British officers employed in India were in placed
in the position of having to decide how Muslim and Hindu law would be applied
in India, the final court of appeal for such religious laws being the Privy
Council in London.
The
problem was that as lawyers with more extensive training in English law—and
with less inclination to learn local law—made their way into the judicial
administration of the East India Company civil service, they applied English laws more and more regularly
under this formula of “justice, equity and good conscience.” The intention of
the formula was to permit the judge a wide latitude in seeking assistance in
cases where no specific source of law was indicated or where the indicated
source failed, but the practice in British courts in India by the second half
of the nineteenth century was to look upon the provision as a means to import
English common law almost exclusively. In his 1894 law lectures in Calcutta,
Sir Fredrick Pollock, one of Syed Mahmood’s fellow students at Lincoln’s Inn
and a respected English jurist, said:
The
only “justice, equity, and good conscience” English judges could and did
administer, in default of any other rule, was so much of English law and usage
as seemed reasonably applicable in [India]. Hindu and Mahometan law not
affording any specific rules, or certainly not that were practicable for a mixed
population, in a large part of the common affairs of life outside religion and
the family, there was only English law to guide them.[8]
This
then was the context in which Syed Mahmood arrived when he began his legal
career in India in the early 1870s. An ardent supporter of the British Empire,
he nevertheless argued persistently in whatever forum was available that law in
India must be created for that context, and that the practice of importing
English law was contrary to universal principles of justice and equity. The
formula which others used to introduce more and more English law into India,
Syed Mahmood used to 1) restrict that practice, 2) preserve and enlarge space
for Muslim law, and 3) push for a codified Indian law. In doing so, I would
argue, he was more accurately reflecting the original intention of those who
promoted “justice, equity and good conscience.”
Syed
Mahmood on preserving Muslim law
Syed
Mahmood was the first Muslim to be appointed as a judge in the High Courts in
India, and was a pioneer in a number of other significant fields. His father,
Sir Syed Ahmad Khan, had risen in the judicial system of the Indian Civil
Service as high as a native of his day could. Wanting more for his son, Sir
Syed had made sure that he received an education in English and then secured a
government scholarship enabling Syed Mahmood to sail to England and study at
Cambridge and at the Inns of Court in London, being among the first Indians to
do so. Syed Mahmood qualified as a barrister before returning to India in 1872.
After a number of years working as a lawyer—again the first Indian barrister in
Allahabad—Mahmood was invited to serve as a District Judge, then as a Puisne
Judge of the High Court in Allahabad—the first Indian to serve on the Bench
there. As the only Indian judge in the Allahabad High Court, he developed a
reputation of writing lengthy judgements, elaborating points of law, often in
disagreement with his fellow judges who complained that he was taking too long
in doing his work. Because of that, as well as his drinking problem, he was
forced to retire from his position on the bench in 1892, at the relatively
young age of 42 years old. But in his capacity as a judge, Mahmood had the
opportunity to issue numerous authoritative judgments that were published as
judicial precedents in the Law Reports of his day. Furthermore, because he
gained a reputation for independent and insightful understanding of law, he
also was invited by the government to comment on proposed legislation. In these
positions, then, he was able to play an influential role in the creation of law
for British India.
Syed
Mahmood fervently supported the British administration in its commitment to
retain Muslim law in matters of “succession, inheritance, marriage, or caste,
or any religious usage or institution,” as initially proposed by Warren
Hastings in 1772. He described it as “one of the most important guarantees
given to the people of India by the British rule.”[9] When
the Viceroy and his Council repeatedly affirmed this commitment, Syed Mahmood voiced
his support in one of his rulings on the Bench:
And
one thing is certain, that so long as s. 37 of the Civil Courts Act (XII of
1887) [quoted earlier] is allowed to stand in the Statute book of the land (as
I hope it will always do), the rule of “justice,
equity and good conscience” must apply to all cases where there is no
legislative enactment one way or the other. Further, that rule, as I understand
it, does not mean that we are to disregard the special conditions of the country
where it is applied, the principles upon which the laws of that country
proceed, and I have no doubt that it does not authorise the importation in a
rigid form either of the common law of England or any technical rules of the
Courts of Chancery there.[10]
So
what some British officials saw as a technical phrase permitting them to rely
on their own inherited concepts or rules of justice, Syed Mahmood saw as an
guarantee that in the absence of legislation the default must be ancient Indian
customary law, specifically as practiced
by centuries of Muslim rule by the Mughal emerors. I find in this an
interesting parallel with the original use of the formula by 16th
century English Reformers seeking to free themselves from the canon law of the
Roman pontiff by appealing to ancient usage in the Roman Empire.
In
his judgments in court, Syed Mahmood was critical of decisions by British
judges who tended to invoke their own notions of justice, equity, and good
conscience too hastily, allowing them to prevail over Muslim law. “It has come
with my notice,” he wrote, “that vague and variable notions of the rule of
‘justice, equity and good conscience’ are sometimes regarded as affecting the
administration of native laws in such matters to a degree not justified or necessitated
by the general municipal law applicable to all persons, irrespective of their
race or religion.”[11]
Syed
Mahmood on extending Muslim law
Beyond
seeing this formula as a means to restrict importation of foreign law, Syed
Mahmood saw in it opportunities to expand the jurisdiction of Muslim law, as in
the matter of pre-emption. In Kashi Nath
v. Mukhta Prasad, Syed Mahmood went beyond his argument that Hindu law did not
contain rules governing the right to pre-emption, to contend that in the past,
the British Government in India also had not introduced legislation to direct
the courts in administering that right. “The question being left unprovided for
by the Legislature, the Courts have to fall back on the general principles of
equity in passing decrees such as would suit the exigencies of each case.”[12] When
rules in regard to decrees in pre-emption were finally formulated by the
Legislature in 1877 as part of a general law of civil procedure, they fell
short of comprehending all the various cases that might arise, again leaving
judges to import the principles of equity in administering the enacted code.[13] His
own court at Allahabad, as well as the one at Calcutta, had taken it as
“equitable” to follow Muslim law in such cases. Mahmood strongly approved of
this recognition of Muslim law as being the customary law of the land that must
become the default law when no other rules were found.
Syed
Mahmood considered the rules of Muslim law “so consistent with justice, equity,
and good conscience,” that they must be followed even in situations which were
covered to some extent by legislated law.[14]
In a subsequent case on pre-emption, he referred to his judgment in Kashi Nath v. Mukhta Prasad as an
example when even legislation by the British government in India—in this case a
section of the Code of Civil Procedure—must not be read without regarding the
analogies furnished by the Muslim law of pre-emption.[15]
He concluded that in that case as well in several others, he along his fellow
judges in the Allahabad court had “followed the analogies of the Muhammadan law
of pre-emption, and have laid down rules of law which by dint of those
analogies have appeared to us consistent with justice, equity and good
conscience.”[16]
Similarly,
with regard to the Law of Evidence, Syed Mahmood utilized the formula to argue
that the customary laws of evidence—based largely on Muslim law—were to be
preferred to English laws which the government-appointed judges were
introducing. In cases of doubt or difficulty of interpretation of any sections
of that Act, judges should have recourse to both the case law of the land which
existed prior to the Act and to juristic principles “which only represent the
common consensus of juristic reasoning.” In this he disagreed with rulings by
the judges of other high courts in Calcutta and Bombay because he felt they had
been influenced too much by the doctrines of the English law of evidence. In its policy to bar the admission of
certain judgments as evidence in a subsequent case, the English law of evidence
was, according to Syed Mahmood, unreasonable law, and certainly not fitted to
be imported into India in the absence of express legislative authority. “In the
absence of express legislation the rule of justice, equity and good conscience
would be the doctrine, but certainly not the common law of England, since the
common law if any would be the Muhammadan law.”[17]
He appealed to the principle of “justice, equity, and good conscience” because
it would supply rules of common sense, not of the common law of England, unless
those rules were conformable to the principle according to the judges. The
antecedent law which should be appealed to was, in his estimation, the Muslim
law that had become the common law of the region from which the suit had been
filed.
Syed
Mahmood on the necessity of codification
The
solution that Syed Mahmood proposed to the problem of “creeping English law”
was codification, that is, the collection and systematic arrangement of
regulations that become law by acts of legislation. In his judgments, Mahmood pointed
out the weaknesses produced by the lack of legislated law, particularly the
liberty it gave individual judges to import English law into India without
regard for the local context. This is an interesting position for him to take
as a judge, because in effect he is calling for a restriction of his own power
and increasing that of legislators. I think it can be explained by the fact
that in his copious and lengthy memos to both the provincial and national legislative
councils, he did have a voice in that arena as well as in court. Also,
considering his output in the Law Reports, he was not at all adverse to making
law as a judge as well.
Mahmood
was not the only one calling for action on the part of the legislators to
restrict the proliferation of judge-made law. The Law Member of the Viceroy’s
council during the time when Mahmood was first appointed as judge, Whitley
Stokes, saw the purpose of codification as two-fold, namely eliminating those
aspects of law which were purely English and unsuitable for the Indian context,
and preparing a simplified, “Indianized” law that could be more easily
administered by judges who did not have extensive training in law and
jurisprudence. In encountering resistance to one of his proposed bills, he
wrote:
The
assertion that the bill would introduce a mass of new law into India must
therefore be due to ignorance of the extent to which English law (under the
name of justice, equity and good conscience) is actually administered to the
Natives by the Anglo-Indian Courts. The object of the Bill, like that of all
our Codes, is to strip our own law of all that is local and historical, and to
mould the residue into a shape in which it would be suitable for an Indian
population and could be easily administered by non-professional Judges. But the
Bill will introduce hardly any new substantial law….”[18]
Another
proponent of codification was Lord Salisbury, the Secretary of State for India
from 1874 to 1878. He had urged the government in India to continue the process
of codification of the law because of this tendency by the judges to import
English law to the detriment of the country’s legal system. If the only
guidance the courts were given was to follow the dictates of equity, judges were
apt to apply English authorities with which they were familiar, but which the
litigant parties and even the judges of first instance would not know.
Thus,
it is said, many rules ill-suited to oriental habits and institutions, and
which would never recommend themselves for adoption in the course of systematic
law-making, are indirectly finding their way into India by means of that
informal legislation which is gradually effected by judicial decisions. It is
manifest that the only way of checking this process of borrowing English rules
from the recognised English authorities is by substituting for those rules a
system of codified law, adjusted to the best Native customs and to the
ascertained interests of the country.[19]
So
Syed Mahmood found himself in quite influential company in his promotion of
codification, even though his fellow judges were resistant.
In
a judgment delivered in 1888 on a case involving an obstruction created on a
public thoroughfare, Syed Mahmood’s assessment of the use of “justice, equity,
and good conscience” was remarkably similar to that of Lord Salisbury. He noted
that the both Indian Penal Code and the Criminal Procedure Code had defined the
nature of a public nuisance and rendered it punishable as a criminal offence.
The lack, he said, was in the civil side, with no statute law on the matter of
torts.[20]
Without statute law as a guide, Mahmood wrote,
it
therefore devolves upon Judges sitting in British India virtually to legislate,
by judicial exposition, for the people of the country, under the authority of
the somewhat indefinite rule of justice, equity and good conscience, which as
to be administered, in the absence of any legislative directions, by the Courts
of British India.[21]
The
result was that the practice of the higher courts in British India, presided
over by English lawyers had been to fall back upon the analogies of the English
law, taking it in all cases to be a good guide for applying the ubiquitous
formula. In this case of public nuisances, he had found the case-law of British
India decisive, and fortunately the same as the rule of the English law of
torts, so he did not have to deal with a conflict between English law and what
he considered equitable for India. Nevertheless, he challenged the assumption
made by British judges that in the absence of statute law, English law would by
default provide what was just and equitable in any given situation.
Another
abuse of the application of the principle of “justice, equity, and good
conscience,” which Syed Mahmood considered even more reprehensible than the
unwarranted importation of English law, was its utilization to sanction the
uninformed whims of individual judges. In arguing for the extension of the
Indian Easements Act, he gave an example of a case regarding easements which
had come up before him on appeal, in which a “military civilian,” (by
implication, untrained in any jurisprudence) serving as a subordinate judge,
had given a ruling completely dismissing the restrictions introduced by the
concept of easements. Mahmood quoted the judge’s ruling from memory: “This is a
simple case which the plaintiff’s pleader has tried to complicate by legal
technicalities. It is admitted that the lake belongs to the defendant; and I do
not see why a man should not do what he likes with what is his own. These
claims are dismissed with costs.”[22]
In appeal, Syed Mahmood had learned that those who held lands along the banks
of the lake had been entitled to take water from the lake for irrigation from
time immemorial, and therefore overturned the judge’s ruling and decreed the
claims. He commented, “It is within my experience as Judge of an Appellate
Court in the mufassil and here [Allahabad], that the greatest absurdities are
expected by learned Judges of subordinate Courts to constitute ‘justice,
equity, and good conscience.’”[23]
That was why he insisted that legislation on matters such as easements was
needed, and that the principle of justice, equity, and good conscience alone
was an insufficient guide.
Mr. Justice Mahmood’s
conceptions of equity, justice and good conscience were in some respects
materially different to those of many other Indian judges; and it was perhaps
because of these conceptions that he was enabled to grapple with the modern
conditions of Indian life. Equity with him was neither a roguish thing, nor a
deceitful will o’ the wisp. On the contrary he could always trust to it for
lighting up some dark corners in our law. But he at the same time clearly
realized that it was by no means desirable to import whole-sale those equitable
maxims or rules which are the growth of ages in England and which are
peculiarly suited to English life and English Courts.[24]
In challenging the assumption that the
formula was a means to import English law, Mahmood stimulated a critical
examination of the practice of applying that law by default, and encouraged the
production of laws that would be better suited to the unique conditions and
peoples of India. And the place to look
for such laws suited for the Indian context, in his opinion, frequently would
be the traditional Muslim law as had been administered there for centuries.
What
importance, then, do this man and his judicial activity have in the history of
Christian-Muslim relations? First of all, we need to recognized the historical
reality that the British Empire—though “Christian”—administered the Sharia for
more than 150 years. Even today, what is seen as Muslim personal law in India
is in large part what the nineteenth century British judges said it was. Why,
then, is it perceived as absolutely beyond the realm of possibility for Western
nations today to include elements of the Sharia in their judicial systems? What
is the responsibility of those regimes who govern pluralist societies in
administering justice for Muslim minorities within their borders? Does equality
before the law demand assimilation, or is there room for legal pluralism along
with religious pluralism?
For
his part, Justice Mahmood demonstrates a willingness to work within a colonial
structure dominated by British Christians, without compromising his own
identity as an Indian and as a Muslim. As such he could be seen as a pattern
that Muslim community leaders would do well to follow in countries where they
are a minority. He considers himself a loyal participant in the British Empire
working towards an ideal of equality of all its subjects coupled with a
necessary diversity of ethnic and religious groupings. In the matter of law, he
persistently resists the wholesale application of foreign legal precedents and
principles, and equally consistently insists on laws that are appropriate to
his native context. He draws on the history of Muslim rule in India to argue
that Muslim law had become the customary law even for the non-Muslim
communities in certain instances. He favours a legal regime where laws were
codified through legislation, not created through judicial activism or
arbitrary reliance of British law. The shared foundation of justice of the
British Christians and Indian Muslims was not, however, to be found in abstract
universal principles discovered through reason, but in the principles of
justice, equity, and good conscience as discovered in historic Indian law and
reformulated in legislation that incorporated a sensitivity to the Indian
context.
[1] J. Duncan M. Derrett, "Justice, Equity and Good
Conscience," Changing Law in
Developing Countries, edited by J. N. D. Anderson, Studies on Modern Asia
and Africa, 2 (London: George Allen & Unwin, 1963), 128.
[2] Ibid., 129-132.
[3] Regulations for the
Administration of Justice in the Courts of Dewannee Adaulut, Passed in Council,
the 5th July, 1783, with a Bengal Translation by Jonathan Duncan
(Calcutta: Honorable Company’s Press, 1885), 165, 213.
[4] Ibid., 121.
[5] Derrett, “Justice,
Equity and Good Conscience,” 140-141.
[6] William H. Morley, An Analytical Digest of All the Reported
Cases decided in the Supreme Courts of Judicature in India, in the Courts of
the Hon. East-India Company, and on appeal from India, By Her Majesty in
Council. Vol 1, containing the Introduction and the Digest (London: Wm. H.
Allen, 1850), clxxiii-clxxiv.
[7]
[8] Frederick Pollock, The Law of
Fraud, Misrepresentation and Mistake in British India, Tagore Law Lectures,
1894 (Calcutta: Thacker, Spink & Co., 1894), 7-8.
[9] The Indian Law Reports, 7
All. 297 (
[10] The Indian Law Reports 14
All. 273 (
[11] Ibid., pp. 153-154.
[12] The Indian Law Reports, 6
All. 370 (
[13] The Indian Law Reports, 6
All. 351 (
[14] The Indian Law Reports, 7
All. 720 (
[15] The Indian Law Reports,
12 All. 234 (
[16] Ibid., p. 271.
[17] The Indian Law Reports 12
All. 1 (
[18] “Fourth Note by Honourable Whitley Stokes,” GOI, Home Judicial (A),
Feb. 1879, Nos. 161-163, National Archives of India, Delhi.
[19] Stokes, Anglo-Indian Codes,
vol. 1, xvi-xvii.
[20] The Indian Law Reports,
10 All. 499 (
[21] The Indian Law Reports,
10 All. 499 (
[22] Syed Mahmood, Minute on “Necessity of extending the Indian
Easements Act (V of 1882) to these Provinces and Oudh,” N.-W. P. & Oudh,
Judicial (Civil) Dept. Proceedings (A) Mar. 1891, Nos. 32-58, p. 26.
[23] Ibid.
[24] Tej Bahadur Sapru, "Syed Mahmood, as a Judge," The Hindustan Review and Kayastha Samachar
7, n.s., no. 3 (1903): 449.
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