Arshad Shaikh looks at the concept of crime and punishment in the Shari’ah and compares it with those in other systems of criminal law. The law of evidence in Islam with the presumption of the accused’s innocence is a key dimension of this topic. The subject has special relevance today with some Muslim countries reintroducing Islamic Shari’ah in the place of Western criminal codes and some right-wing politicians demanding Shari’ah laws to curb the growing incidents of rape and sexual violence against women in our country.

We all wish to have a crime-free society. Alcohol-free villages, dowry-free marriages, zero corruption offices and zero adulteration food products are always looked at with appreciation and admiration. However, most of the time, these conditions remain aspirational and utopian. Just take the case of homicide or murder. More than four lakh people die from homicide each year and although it is less than 1% of all global deaths, in some countries homicides are as high as 10%.

How can crime be reduced and eventually eliminated? Does the quantum of punishment and the justice dispensation system have a role to play? Reducing crime and punishment is something fundamental towards a broad reformation of society and yet there is little theoretical debate on its roots, aspects and manifestations.

The Islamic concept of crime and punishment is embodied in the Shari’ah. The approach of Shari’ah is radically different from that found in secular (man-made) laws. The Shari’ah addresses the root cause and tries to nip the evil in the bud. The general perception developed in the media is that Shari’ah mandated penal laws especially those related to fornication and theft are extremely harsh and those advocating their implementation are categorised as medieval and barbaric. Surprisingly, the same media lauds and highlights right-wing politicians when they demand Shari’ah law to be implemented in India to solve the problem of rape and sexual violence against women in our country.

IN THE SECULAR WORLD

The Oxford English Dictionary defines crime as an unlawful act punishable by a state or other authority. We come to know from academic literature that a crime becomes a crime only if it is declared as such by the relevant and applicable law. Punishment is the imposition of an undesirable or unpleasant outcome upon a group or individual by an authority as a response and deterrent to a particular action or behaviour that is deemed undesirable or unacceptable.

Punishment may include an act of violence, a monetary fine, some kind of penalty (like repetitive work), or confinement. The justifications for punishment are retribution, deterrence, rehabilitation, and incapacitation. Crime and punishment are inextricably connected to the criminal justice system, which consists of government agencies and institutions. Its goals include the reintegration of offenders, crime-prevention, and caring and support for the victims.

One of the key components of crime and punishment is the law of evidence. Crime and punishment in secular countries is completely based on man-made laws as recorded in their statute books or their penal codes. However, one must understand that their origins can be traced in natural law or divine law.

SOURCES AND SCHOOLS

Unlike man-made laws in a secular setup, the sources of the Shari’ah are the Qur’ān, the Sunnah of the Prophet Muhammad ﷺ, consensus (ijma’), analogy (qias), equity (istihsan), textually unspecified interests of the public (muslahah-mursalah), avoidance of harm (sad-al-dharai), compatibility of means and ends (istishab), and checking what is permissible and prohibited.

As Islamic scholars interpreted these sources in different ways, one can find varying opinions on the same legal issue. Over a period, schools of jurisprudence (madhhab, plural madhahib) were developed that united legal scholars and enabled the rulers to instruct judges (qadis) to judge only according to opinions of one school. There are four prominent madhahib in Sunni Islam – Hanafi, Maliki, Shafi and Hanbali.

CLASSIFICATION OF CRIME IN THE SHARI’AH

Crime can be classified in the Shari’ah under the following categories. (1) Hudud (Hadd – singular): these crimes have been mentioned in the Qur’ān with specific punishments that cannot be changed or modified. These include apostasy, sedition, adultery, calumny, theft, and drinking alcohol. (2) Qisas/Diyyat: they consist of offences punishable by retaliation or blood money. Even though punishments for these offences have been prescribed in the Qur’ān, the victim or the victim’s guardian may pardon the offender. In such a case, the offender pays the diyyat (blood money) in lieu of the pardon. Premeditated murder and causing death by reckless driving are some crimes that fall in this category. (3) Tazir: these crimes are not specified in the Qur’ān and the Sunnah but are acts of disobeying the laws of Islam and cause wrongdoing. .

THE LAW OF EVIDENCE

The Islamic law of evidence is rational and yet demands strict adherence to certain rules. The general rule is that the accuser must prove his claim and that he can do so by the testimony of witnesses or by the admission of the defendant. Evidence by witnesses is only admitted if two male, or one male and two female adult Muslim witnesses of good reputation give concurring testimonies in the presence of the qadı.  Slight inconsistencies in the testimonies make them unacceptable, even if they agree on the essentials.

For crimes such as homicide and injuries caused by attempt to murder, the standards of proof are stricter.  Only eyewitnesses may testify, and testimonies conveying the declarations of others are not admitted. The requirements for proving unlawful sexual intercourse are even stricter than for other hudud offences. Evidence is acceptable only if there are agreeing testimonies of four male eyewitnesses. They must have seen the act in its most intimate details. If their testimonies fail to satisfy the requirements, the witnesses may be awarded eighty lashes for the unsubstantiated accusation of fornication. (Source: Crime and Punishment in Islamic Law, Rudolph Peters, Cambridge University).

APPROACH MATTERS

A very thought-provoking quote on crime by HT Buckle reads, “Society prepares the crime, the criminal commits it.” The Prophet ﷺ said: “Allah has decreed for every son of Adam his share of zina, which he will inevitably commit. The zina of the eyes is looking, the zina of the tongue is speaking, one may wish and desire and the private parts confirm that or deny it.” (Sahih Bukhari)

The important difference between the Shari’ah and man-made laws is that the Shari’ah imposes the harshest possible punishments only after closing all the doors to the crime. For example, the commandments of the ‘hijab’ and segregation of the sexes are to be implemented in Muslim society. Marriage is to be made easy and fornication or adultery something extremely difficult. Scholars say that only after these conditions are achieved can one execute the ‘hadd’ punishment for fornication.

One may recall that Caliph Umar declared, “The hand of the thief is not cut who steals a bundle of dates or in a year of famine.”

Another aspect of punishment in Islam is the emphasis on the quick dispensation of justice. Yes, the due process of the law must be followed but the justice dispensation system must not yield (as is the case in our country presently) a backlog of 4.5 crores pending cases and would take hundreds of years to clear this backlog.

For the believers, adjudicating according to Shari’ah is not optional. The Qur’ān (5:44) says: “Those who do not judge by what Allah has revealed are indeed the unbelievers.” We must develop a society that leaves little scope for crime and punishment.

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