Introduction
During the first half of the twentieth century, a commitment to the application of shari'at was central to evolving notions of Muslim identity in the Punjab under British rule. In his important study, David Gilmartin has highlighted the championing of shari'at as a key dimension of Muslim urban politics in the Punjab from the 1890s onwards. Challenging the primacy afforded by the colonial state to customary law in the Punjab, Muslim political leaders argued for the application of Muslim law and with a greater or lesser degree of consciousness positioned shari'at centrally in emergent understandings of Muslim community. By the 1930s the implementation of shari'at was being argued for by both supporters and opponents of the demand for Pakistan, including Muhammad Ali Jinnah, and informed the passing of the Punjab Shariat Application Bill in 1937.Footnote 1 The adoption of shari'at would be among the first acts of the independent state of Pakistan.Footnote 2 This paper argues the existence and considers the implications of a nineteenth century precedent, overlooked in existing scholarship, for the later championing of shari'at by Muslim political leaders in colonial Punjab. Between 1865 and 1885 Punjabi Muslim elites engaged in negotiation and exchange with representatives of the Anglo-Indian state argued for the government appointment of qazis—officers for the superintendence of Muslim law—and the greater application of Muslim personal law. In doing so, they contested the primacy afforded to customary law by the Punjab Laws Act of 1872 and asserted the centrality of Islam to legal and wider public domains in later nineteenth century Punjab.
To understand Muslim and wider Indian engagement with the Anglo-Indian state it is useful to draw upon a distinction posed by Partha Chatterjee between civil and political society on the Indian subcontinent.Footnote 3 Chatterjee proposes the growth of civil society under colonial rule as a site populated by modern, western-style associational institutions such as literary and cultural societies. The distinguishing feature of civil society is its restricted nature: confined to an elite minority, civil society excludes the great mass of the population. Political society, in contrast, encompasses mass political formations and includes among its characteristic institutions popular political parties, encouraging new forms of mediation between state and population.Footnote 4 Whereas Gilmartin's study concentrates upon the development of modern urban politics in colonial Punjab and particularly on the mass political formations of the 1930s and 1940s—the emergence of political society and its pre-1947 zenith—this paper considers civil society in an earlier period of colonial rule. The Muslim individuals engaged in negotiation with the colonial state before 1885 belonged largely to an elite Persian and Urdu-speaking group. Their associations, including the Anjuman-i-Punjab (Lahore) and the Anjuman-i-Islam (Lahore) were exclusive in membership; their petitions and publications reached only a small number. In this paper it is shown that demands for the application of Muslim law in the Punjab did not simply appear with the development of modern urban politics at the turn of the twentieth century, but may be traced back at least as far as 1865. The cause of Muslim law was advanced to the colonial state by Muslim individuals and groups both before and with the emergence of mass political organizations and popular politics.
It follows that a need exists to revise Chatterjee's conception of civil society in India under British rule. Chatterjee writes that the institutions of civil society founded during the colonial period embodied the desire of an Indian elite ‘to replicate in its own society the forms as well as the substance of Western modernity’.Footnote 5 In doing so he minimizes, if not denies, the possibility of resistance to or negotiation with aspects of colonial rule from within the institutions of civil society. What demands for the application of Muslim law in the Punjab demonstrate, however, is that civil institutions, western in structure and organization, could and did negotiate the content of modernity during the colonial encounter, with varying degrees of success. Critiquing Chatterjee's minimizing of the possibility of Indian resistance in civil society, scholars have noted that civil society was as much a site of ideological contestation during the colonial period as its political counterpart.Footnote 6 This paper affirms that civil society was a location for negotiation and resistance with elements of the modernity imposed on India under colonial rule, preceding and informing the processes later characteristic of political society.
It is well known that in the final decades of the eighteenth century, British East India Company administrators founded a legal system incorporating Hindu and Muslim law into newly constituted civil and criminal courts.Footnote 7 In accordance with the Hastings Plan of 1772, Muslim law was applied in cases regarding marriage, inheritance and other ‘religious’ matters brought by Muslim parties before Anglo-Indian courts. Muslim law officers known as qazis were appointed to assist in the administration of Muslim law, advising European judges. Under the terms of the Bengal Code of 1793, later extended to the Madras and Bombay presidencies, qazis would in addition perform functions including the preparation and attestation of deeds of transfer and other legal papers, the superintendence of property transactions, and the performance of marriages and other ceremonies.Footnote 8 For its European advocates, the East India Company's sponsoring of qazis meant continuity between pre-British and British periods of rule. The position of qazi as state-appointed interpreter of Muslim law may be traced in Islamic history to the early Caliphate period and was a prominent one in the medieval and early modern Muslim states of India.Footnote 9
In recent scholarship it has been successfully demonstrated how far, notwithstanding the widespread rhetoric of preservation or ‘non-interference’, the administration of Muslim law in Anglo-Indian courts was to introduce changes to Muslim legal arrangements on the subcontinent.Footnote 10 The attempt to insert a unitary Muslim law into the East India Company's system of courts meant that primacy was afforded to particular Islamic legal texts which in translation became the foundation of Anglo-Muslim legal codes. Later, compiled textbooks of Muslim law presented these codes for the guidance of Anglo-Indian judges. Codification presented Muslim law as homogenous and immutable, which of course it had never been: its effect, accompanied by the growing use of legal precedent, was to make redundant the role of qazis as interpreters of Islamic law. After the transfer of sovereignty from the East India Company to the British Crown, aspects of Muslim law in the colonial legal system were more consciously reformed or replaced. Legal changes including a new code of criminal procedure (1861) and rules of evidence (1872) meant the supersession of older Anglo-Muslim alternatives: only family law and property disputes continued to be resolved in Anglo-Indian courts according to Muslim law. Their role considered unnecessary even for the administration of Muslim personal law, the appointment of qazis (and Hindu law officers) to Anglo-Indian courts was terminated with Act XI of 1864.Footnote 11
That Muslims from different parts of India opposed the abolition of the post of qazi in the Anglo-Indian state and sought revisions of the measure has been noted, albeit on a fragmentary basis, in existing research.Footnote 12 In the months immediately following implementation of Act XI, protests were submitted against qazi abolition by Muslim parties in the North-Western Provinces.Footnote 13 Appeals for revision of the act would later be made in Bengal, Madras and Bombay: opposition to qazi abolition was a concern shared by Muslims in different Indian provinces as early as 1870. Broadly speaking, Muslim proposals for revision of Act XI were of two kinds. Some parties, accepting that qazis were no longer required in the Anglo-Indian state for the administration of justice, argued that they were nevertheless indispensable for the performance of non-judicial functions including the conducting of marriages and funerals, and the registration of marriages and divorces with the colonial state. According to shari'at, it was argued, only the government could appoint qazis to fulfil this non-judicial role. Others would assert the necessity of qazis being appointed by government and restored to a judicial position: that qazis must hold an officially-recognized position as administers of Muslim law, either within or outside of the regular system of Anglo-Indian courts.
In 1869, following a dispute between two claimants to the position of qazi in Madras, a petition was submitted to the Madras government appealing for the state reappointment of qazis. Composed by Hyder Jang Bahadur, the petition claimed to represent the Sunni Muslim community of Madras city. It argued the necessary government appointment of qazis to a non-judicial role to include the performance and registration of Muslim marriages and conducting of other domestic ceremonies. According to Muslim law, the petitioners argued, only the government could appoint qazis on behalf of the Muslim community.Footnote 14 The Government of Madras was sympathetic to the petitioners’ case and in October 1870 appealed to the Government of India for permission to begin reappointing qazis, independent of any formal judicial role.Footnote 15 Provoked by the Madras administration, the Government of India solicited the opinion of all other provincial governments on the possibility of repealing Act XI of 1864. It is clear that the Viceroy of India, Lord Mayo, and members of his council favoured repeal. Mayo noted that Muslims widely held the cessation of the government appointment of qazis to have ‘deprived them of an institution which was in their view an essential part of their religion and social system’.Footnote 16 For the state to act in accordance with Muslim law by recommencing the appointment of qazis, he argued, would cost it nothing and win favour with Muslim subjects. Without bestowing any judicial power on qazis, the Government of India might make a pragmatic and beneficial concession to Muslim law and opinion.Footnote 17
Concurrent with events in Madras, Bengali Muslim elites in the late 1860s had under consideration problems derived from the qazi abolition act. In 1868 Nawab Abdul Latif, founder of the Calcutta-based Mahomedan Literary Society, presented a paper before the Bengal Social Science Association in which he sought to draw attention to the shortcomings of the act.Footnote 18 Latif's particular concern was the registration of Muslim marriages. Since the abolition of the post of qazi, he argued, great inconvenience and mischief had resulted from the discontinuance of the keeping of records of Muslim marriages and divorces in Bengal. His proposed solution was the appointment by government of Muslim marriage registrars with whom all Muslim marriages and divorces could be voluntarily registered before being filed in Anglo-Indian courts. When the qazi question came soon after to the attention of government, Latif submitted his proposals for consideration.Footnote 19 Confronted by major differences of opinion between various provincial governments, Lord Mayo in 1871 declined to overturn the qazi abolition bill despite his personal favour for repeal. Nawab Abdul Latif, however, continued his campaign for the voluntary registration of Muslim marriages and as a member of the Bengal Legislative Council introduced a bill to that effect in 1875. Passed into law the following year, the bill provided for the voluntary registration of Muslim marriages and divorces in lower Bengal with government-appointed Muslim registrars.Footnote 20
For many Muslim parties, the provisions of Latif's bill did not go far enough. In 1873 a fresh appeal had been made from the province of Madras for the government appointment of qazis, this time from the Muslim inhabitants of Dratcharam in the district of Godaveri.Footnote 21 A similar petition was submitted to the Bombay government in December 1873 from the town of Poona.Footnote 22 In these appeals no claim was made for the bestowing of judicial authority on the office of qazi: rather it was hoped that the Anglo-Indian state would act in accordance with shari'at by recognizing and appointing qazis for the performance of civil and religious Muslim ceremonies including marriages. That demand of course went beyond the mere registration of marriages legislated for in Bengal. As a member of the Imperial Legislative Council of India from 1878, the Aligarh reformer Sayyid Ahmad Khan would draft a bill seeking to satisfy Muslim requests for the government reappointment of qazis. Introduced to the council in January 1880, it stipulated that provincial Indian governments be granted the power to appoint qazis in any locality where the demand existed.Footnote 23 Sayyid Ahmad composed the preamble to the bill in which it was noted that some Muslims continued to hold the presence of state-appointed qazis indispensable at Muslim marriages and other ceremonies. The resulting act was largely passive in nature, conferring no judicial or administrative powers on qazis, nor making the presence of state-appointed qazis indispensable at Muslim marriages and other ceremonies. Indeed any individual might continue to act as a qazi without state recognition. Crucially, however, Muslim demands for the state appointment of qazis were recognized and responded to. Act XII of 1880 applied first to the province of Madras, where those demands had been loudest after 1869, and contained a clause allowing its extension to other provinces on the initiative of provincial governments.
It is likely that one of the unintended consequences of the 1880 Kazi Act was to encourage Muslim demands for further reversals of Act XI of 1864, including the re-bestowing of judicial and administrative responsibilities on state-appointed qazis. In 1882, the National Muhammadan Association, founded at Calcutta by Sayyid Amir Ali, submitted a memorial to the Government of India in which it argued the impoverishment of Indian Muslims under British rule. The principal aim of the association's memorial was to secure from government measures for the encouragement of Muslim education and employment in the Anglo-Indian state. Composed by Amir Ali, it also considered Muslim grievances provoked by abolition of the post of qazi.Footnote 24 The arguments advanced by Amir Ali, extended in an article published in the London-based journal Nineteenth Century, in part concerned the role of qazis in a non-judicial domain. Amir Ali would, for instance, critique the insufficiency of the 1876 Muslim marriages act in Bengal and propose a compulsory system for the registration of Muslim marriages and divorces, to be administered by state-appointed qazis.Footnote 25 What is particularly interesting about the National Muhammadan Association's memorial, however, is that it also presented before government a case for the maladministration of Muslim law resulting from qazi abolition. Without the advice of qazis, Amir Ali argued, judges in Anglo-Indian courts had made great errors when attempting to try cases according to Muslim law. The National Muhammadan Association's proposed solution was the appointment of Muslim judges to all colonial courts to advise on shari'at and assess cases involving Muslim parties.Footnote 26 With the association's memorial, forwarded by the Government of India to all provincial Indian governments in 1882, a debate was engendered to which European administrators and interested Muslim parties from across India would contribute on the administration of Muslim law under British rule.
Muslim law in the Punjab
Whilst the National Muhammadan Association's memorial and the wider involvement of Muslims in Bengal with demands for the reappointment of qazis has been the subject of some scholarly attention, appeals for the appointment of qazis in the Punjab have been almost entirely overlooked in existing research. Where the concern of Muslims in the Punjab for the appointment of qazis has been noted, a tendency has been exhibited to dismiss this concern as unimportant on account of the supremacy of customary law over shari'at in the Punjab after 1872.Footnote 27 In what follows the case is made that, notwithstanding the primacy afforded to customary law in colonial courts by the Punjab Laws Act of 1872, the appointment of qazis and wider application of shari'at were major concerns held by Punjabi Muslims in the two decades after Act XI of 1864. In accordance with shari'at, Muslims in the Punjab sought the state appointment of the qazis deemed necessitous for observation of the practices and ceremonies of their religion. Requests were also made for the granting of judicial powers to qazis: qazi appointment was married by Punjabi Muslims to demands for the better administration of Muslim law, the Anglo-Indian prioritizing of customary law challenged by Muslims seeking the more extensive application of shari'at.
In contrast to judicial arrangements in the older provinces of British India, the government of the Punjab had declined to begin appointing qazis to assist in the administration of Muslim law after annexation of the territory in 1849. That decision may be explained by growing Anglo-Indian perceptions of the redundancy of qazis in aiding the trying of cases according to Muslim law in colonial courts, and by Anglo-Indian doubts over the extent to which Punjabi Muslims desired the application of shari'at. In the period between annexation and the passing of Act XI of 1864, no qazis were employed by the Punjab administration in a judicial role: when the ramifications of Act XI were under discussion at an all-India level later that year, the Punjab government recorded that qazi abolition had had no effect on the administration of justice in the province.Footnote 28 With the Punjab Laws Act of 1872, custom—the laws and practices of village or tribal communities—was elevated above religion as the basis of a system of personal law to be administered in Punjab colonial courts. The Punjab government's resolve to prioritize custom above religion derived principally from a perception of existing ‘native’ practices: that disputes over marriage, divorce and inheritance were popularly resolved according to indigenous traditions independent of Hindu or Muslim law. As Gilmartin has noted, the elevation of customary over religious law reflected a widespread Anglo-Indian belief in the centrality of the ‘tribe’ or village community as the basic social unit in the Punjab: custom was widely held by administrators to define the relationship of the state to population more accurately than religion, and hence to provide a more realistic foundation for the exercise of imperial power.Footnote 29 After 1872, attempts would be made by Anglo-Indian administrators to codify Punjab customary law.Footnote 30
To ascertain how far the Punjab Laws Act impacted practically upon the observation of shari'at in the province, Muslim legal and judicial practices both within and outside colonial courts should be considered. To what extent did the colonial prioritizing of customary law affect the laws governing Muslim social relations and the resolution of civil disputes between Muslim parties? A useful starting-point for this enquiry is the collection of Persian documents translated by J. S. Grewal detailing the operation of the office of qazi in the town of Batala, north-east of Amritsar, through the final decades of Mughal power, the period of Sikh rule and the early years of British government in the Punjab.Footnote 31 The records of the Batala qazi reveal the coexistence of Muslim law and local custom in pre-British legal administration: to take a civil dispute to the qazi was a matter of choice for the town's residents, and it appears that shari'at was popular for the resolution of disagreements between Muslim parties. The final documents in the Batala collection show that in spite of their exclusion from formal structures of jurisprudence, qazis continued after British annexation to exercise a range of legal or quasi-legal functions, including the supervision of property transactions. As Grewal and others have noted, there is no reason to think that Batala was exceptional among Punjab urban centres: shari'at was administered prior to 1848 by qazis who in the early British period were still resorted to by town-dwellers.Footnote 32
During the decade preceding the Punjab Laws Act, European administrators consistently questioned the relevance of Muslim law in the province. Judges in the Punjab civil court ruled in many instances that customary law ought to supersede shari'at, anticipating the provisions of the act.Footnote 33 From colonial courts, shari'at was not, however, removed: Muslim law continued to be applied when its application was requested by both parties in a dispute, and also when no alternative custom could be found operating in a particular locality. Cases brought before the Punjab civil court relating to the definition of inalienable religious endowments (waqf) and rules governing the award of gifts were notable examples of the former, as Muslim parties sought the state administration of religious law.Footnote 34 The effect of the Punjab Laws Act was to codify the principle, already widely observed by Anglo-Indian judges, that Muslim and Hindu law would be administered only in the absence of a custom applicable to the parties in a civil case. Customary law would be applied wherever it existed to areas of civil judicature including succession, property ownership, marriage and divorce, dower, guardianship, minority, adoption, bastardy, wills, gifts, family-relations and the usage of institutions.Footnote 35 In the interpretation of this act, the trial of cases according to Muslim or Hindu law continued to be permitted on those occasions when expressly desired by both parties in a case.Footnote 36
Several observations on Punjabi Muslim approaches to shari'at should at this point be made. As scholars have shown, the question of the female inheritance of property was a major point of departure for many landed Muslims from the strict observation of shari'at. Since it was common in Punjab agrarian society for daughters to marry beyond their ‘tribe’ or village, the denial of Qur'anic inheritance rights to women was considered necessary for the preservation of traditional kinship structures; custom very widely stood in the way of female inheritance.Footnote 37 Research has shown that from the final years of the nineteenth century, the female inheritance of landed property was a key divisive issue in Punjabi Muslim debates on the wider application of religious law, foundational to the province's disputatious politics.Footnote 38 What should be noted here is that not all Punjabi Muslim landowners in the 1860s and 1870s overlooked shari'at in matters of female inheritance. Either side of the Punjab Laws Act, rural Muslim parties in districts as distant as Peshawar and Jalandhar sought rulings of the Punjab civil court to uphold Qur'anic inheritance rights for wives and daughters.Footnote 39 In addition, Punjabi Muslims in rural locations extensively held qazis necessary for the performance of marriage ceremonies: on the question of marital procedure, essential to the validity of a marriage contract, shari'at was observed irrespective of location and social standing.Footnote 40
The campaign for the government appointment of qazis in the Punjab was headed from 1865 by a class of Muslim elites at Lahore, before later being popularized among urban and landed Muslims further afield. To that Lahore-based group and the emergent public sphere to which it contributed the attention must now turn. As is well known, the two decades after the successful British suppression of the Indian Rebellion of 1857–1858 witnessed the emergence and proliferation across northern India of public institutions, including debating societies, publishing associations and literary clubs, membered by European and Indian gentlemen. With participation restricted to a literate and respectable few, these institutions became locations crucial to the formation of early ‘public’ opinion and the negotiation of Indian elites with representatives of the colonial state. Accompanying the development of associational institutions was the rapid growth of the printed word: journals, newspapers, pamphlets and longer works disseminated knowledge and opinion through the English language and rapidly evolving vernacular media.Footnote 41
In the Punjab, the first modern-style association, combining regular public meetings, paid-up members and a permanent committee of management, was the Anjuman-i-Punjab. Founded at Lahore in January 1865, it should be considered the foremost institution of an emergent Punjab civil society in the decade. The Anjuman-i-Punjab brought together several hundred Hindu, Muslim, Sikh and European members, including the Punjab Lieutenant-Governor, Donald McLeod, and conducted its proceedings in Urdu.Footnote 42 Many of the activities of the Anjuman, including the foundation of a public library, the hosting of lectures and the translation of European texts into Urdu reflected a predominant government concern to promote European knowledge and ideas among Punjabi elites. Significantly, however, members of the Anjuman also contested aspects of government policy. The most notable early success of the Anjuman was achieved in December 1869 when, following a lengthy campaign, the Punjab University College was founded. Consistent with the demands of Anjuman members, the institution departed from regular state educational provisions by combining western education with Arabic, Persian and Sanscrit courses of study.Footnote 43
On account of the important role which they would play in appeals for the state appointment of qazis, three of the most high profile Muslim members of the Anjuman-i-Punjab should briefly be profiled. As we shall see, all belonged to a sharif Muslim class claiming descent from outside India, with a family history of service to Mughal, Sikh and British governments on the subcontinent; all were highly educated, and conversant in English, Persian and Urdu. Sayyid Muhammad Latif was born at Lahore in 1850. His father, Sayyid Muhammad Azim had risen to prominence when in that same year he founded the Lahore Chronicle—the first English-language newspaper under Muslim ownership in the province. A district judge, Sayyid Muhammad Latif inherited his father's talent for writing and journalism: from 1870 he would edit the Anjuman's weekly journal, the Akhbar-i-Anjuman-i-Punjab, and later composed influential histories of the Punjab and Lahore.Footnote 44 Muhammad Barkat Ali Khan descended from a family of Pathans who had arrived in India from Afghanistan during the seventeenth century rule of Shah Jahan. Loyal to the British during both the conquest of the Punjab and Indian Rebellion, he served in the Punjab Military Police Force before becoming a civil officer at Lahore. In 1868, Barkat Ali was awarded the title Khan Bahadur for his services to government, and held the office of extra assistant commissioner before his retirement in 1882.Footnote 45 The first Muslim western-educated medical doctor in the Punjab was Rahim Khan. Born at Kanpur into a family of renowned Arabic scholars, originally of Kandahar, he would study at Dacca and Calcutta before being stationed as a civil surgeon in the Punjab at Shahpur in 1860. A founding member of the Anjuman-i-Punjab, Rahim Khan taught at Lahore Medical College and published a series of textbooks for the spread of western medical ideas.Footnote 46
Discerning the extent to which Muhammad Latif, Barkat Ali and Rahim Khan, as representatives of a sharif class at Lahore, followed the precepts of shari'at in their daily lives is not an easy task. No collections of personal papers or correspondence exist to shed light on their private and familial domains, or to document the operation of Muslim law through fatawa in the period. What is clear, however, is that all three lived in close association to ulama, including the highly respected Maulvi Abdul Hakim, who would later be brought into the Anjuman-i-Punjab's fold.Footnote 47 All three held a concern for the survival and revitalization of Islam in the colonial milieu, testified by their efforts to see religious education extended at Lahore.Footnote 48 Surveys of various Punjab districts in the colonial archive suggest that among higher class Muslims living in towns, customs contrary to shari'at were far less common; Muslim law was therefore far more readily applied in colonial courts to decide cases between urban parties concerning legitimacy, adoption and inheritance.Footnote 49 Moreover, shari'at was closely followed by town-dwelling sharif Muslims in matters of marriage and divorce, to which qazis were considered essential.Footnote 50 This is highly significant. As Muslim appeals for the state appointment of qazis gathered momentum, they undoubtedly carried a strong symbolic appeal, enabling individuals and groups publicly to profess a religious commitment and act on behalf of their religious constituency. What is clear, however, is that those appeals cannot be considered symbolic alone: Muslims seeking the government appointment of qazis did so with a view to real, substantive change in the personal and domestic sphere.
In Gottlieb Leitner, registrar of the Punjab University College, Muslim advocates of the state appointment of qazis found a high-profile and outspoken supporter. A Hungarian-born naturalized British citizen, Leitner had arrived in India to take the post of Principal at Lahore Government College in 1864. On his initiative, members of the Anjuman-i-Punjab had collected funds and petitioned government for the conversion of the college into a university combining Arabic, Sanscrit and Persian instruction with a regular western course. A primary concern of Leitner's upon the opening of the Punjab University College was the foundation of a legal faculty in which Hindu and Muslim law would be studied.Footnote 51 Under the terms of a scheme for the award of law degrees effected in 1871, two branches of legal training were established. In the first, students followed a similar course to that at the Calcutta University and were expected to pass examinations in subjects including theories of law and property; principles of jurisprudence and judicial enquiry; the history and constitution of law courts in India; the Indian Penal Code; Criminal Law; and Hindu and Muslim law, in addition to the customary law of the Punjab. The second branch of legal training offered at the University College, however, reflected its unique position as an institution for Arabic and Sanscrit learning. Students would study only Muslim or Hindu law and graduate respectively as maulvis or pandits; special titles would be conferred on those excelling in the study of one or other system of religious law in the Arabic or Sanscrit languages.Footnote 52
Prior to his departure for India, Leitner had studied Islamic theology in the Ottoman Empire and taught Arabic and Muslim law at King's College, London. At the Punjab University College he would take a personal interest in the development of Muslim law classes and act on occasion as professor. It is evident that Leitner attached a high value to shari'at as a foundation for the administration of justice and sought its wider application in the Punjab. In a short text published at Lahore in 1871, he recorded that justice in the truest sense of the term could not be divorced from religion and described Islamic law as very just and equitable. For the administration of shari'at in Muslim states he identified the office of qazi as indispensable.Footnote 53 Leitner joined with other European commentators on India, including W. W. Hunter, W. G. Palgrave and Alfred Lyall, in denouncing the abolition of the post of qazi in the Anglo-Indian state and proposing the reappointment of qazis by government.Footnote 54 In similar vein to W. G. Palgrave, he identified the state-sponsoring of qazis for the administration of Muslim law in the Ottoman Empire as a model for British India.Footnote 55 In 1876 the Viceroy of India, Lord Lytton, visited the Punjab. Leitner would use the occasion to appeal for the granting of full university status to the Punjab University College and to offer his services to the Government of India for the compilation of new textbooks to be used in Anglo-Indian schools. Leitner suggested the compilation of a new legal textbook in which English principles of law might be combined with Hindu and Muslim legal precepts. To Lytton he would also argue the necessity of maulvis and pandits being appointed to advise European judges in Anglo-Indian courts and propose the relegation of cases concerning marriage, inheritance and other personal matters, to be tried according to Muslim or Hindu law, to honorary native courts.Footnote 56 Leitner's proposals amounted to the state appointment of Hindu and Muslim legal specialists for the application of their respective religious laws within and outside regular Anglo-Indian courts. For Leitner, the successes of the legal faculty of the Punjab University College made the Punjab best prepared of all provinces to appoint qazis for the administration of Muslim law.Footnote 57
The impact of Act XI of 1864 on Muslim subjects in British India was among the first topics debated by members of the Anjuman-i-Punjab. In early 1865, the Anjuman declared its opposition to the abolition act and proposed the state reappointment of qazis.Footnote 58 Several years later, the Anjuman dissolved itself into separate Hindu and Muslim subcommittees to consider the question of matrimonial disputes in Anglo-Indian courts. Concurrent with Nawab Abdul Latif's lobbying for the voluntary registration of Muslim marriages in Bengal, Muslim members of the Anjuman, led by Sayyid Muhammad Latif, reached the conclusion that European judges frequently made unsatisfactory decisions when trying matrimonial disputes in Punjab courts.Footnote 59 When its advice was requested by the Government of India in December 1870, the Punjab government would advise against the reversal of Act XI of 1864, recording that no demand existed among Muslims in the province for the state appointment of qazis.Footnote 60 It is evident, however, that this contention was not in fact true. In April 1872, Gottlieb Leitner solicited the opinion of three groups of Lahore-based Sunni maulvis on the qazi question. All three asserted that qazis were important to the administration of Muslim law and contended that a responsibility of government lay in their appointment and employment. Qazis, it was argued, were important not simply for the performance of marriages and other ceremonies; their presence was indispensable to the correct application of shari'at where conflicts over matrimony, divorce and inheritance arose between Muslim parties. The appointment of qazis would permit cases to be tried according to Muslim law rather than custom in Punjab courts.Footnote 61 At this juncture, Rahim Khan and the other Muslim members of the Punjab University College's governing senate offered their support to appeals for the government appointment of qazis.Footnote 62 The Punjabi Muslim movement for qazi appointment had begun.
Research has shown that from early 1877 a new, Muslim-only public association became prominent in Punjab civil society: the Anjuman-i-Islam of Lahore.Footnote 63 The Anjuman-i-Islam had been established as early as 1869. For more than eight years, however, its major concern was the supervision of religious endowments and the restoration of mosques in Lahore city; only from 1877 would the scope of its activities be extended to include social and educational matters and the representation of Muslim views to government. By 1880, almost 300 Muslim gentlemen at Lahore had been attracted to the Anjuman-i-Islam, many of whom had earlier participated in the activities of the Anjuman-i-Punjab. Like the older association, the Anjuman-i-Islam held regular public meetings and conducted its proceedings in Urdu. A sharif Muslim class was attracted that included a number of Lahore maulvis.Footnote 64 The transformation of the Anjuman-i-Islam into a vehicle for the promotion of Muslim interests was the responsibility of Muhammad Barkat Ali Khan, who appears to have been motivated primarily by a concern to extend educational provisions for Punjabi Muslim elites.Footnote 65 It is evident, however, that a further concern of Barkat Ali's was the wider application of shari'at; he and his association played a dynamic role advancing the case for Muslim law during the qazi campaign.
When debates surrounding the extension of the Government of India's 1880 Kazi Act to the Punjab are considered, it becomes clear that Muslims elites in Lahore very widely held the presence of state-appointed qazis necessary for the performance of certain rites and ceremonies, including marriages, under shari'at. To recall, Act XII of 1880 had permitted provincial governments to appoint qazis where demand existed within a particular locality. The specific functions of qazis had remained undefined and no judicial role had been assigned to state-appointed qazis. In early 1880, the Punjab government was forwarded Act XII and began deliberations over whether or not it would begin appointing qazis. Punjab district officers were requested to ascertain the opinion of the Muslim gentlemen in their locality on the possibility of the act being applied in the province. The Kazi Act provoked widespread discussion among Muslim elites at Lahore. In February 1880, a meeting was convened of the Anjuman-i-Punjab to discuss it: a petition in support of the government appointment of qazis, signed by 246 Muslim gentlemen, was presented at the meeting before being submitted to the Punjab government.Footnote 66 The Anjuman-i-Islam met to discuss the act soon after, before publicly announcing its support for the government appointment of qazis. To the Punjab government it claimed that both Sunni and Shia maulvis in Lahore supported the application of Act XII.Footnote 67Sharif Muslims from beyond Lahore were at this point invited into the debate. The Majlis Islami of Amritsar, soon after to affiliate as a branch association of the Lahore Anjuman-i-Islam, announced its support for the application of the act.Footnote 68
It is in the records of the negotiations preceding the Punjab government's approval of Act XII that insight is first obtained into Punjabi Muslim ambitions for the appointment of qazis and more extensive application of shari'at beyond an urban elite group. In the early months of 1880, favour for the appointment of qazis was expressed by Muslims in the districts of Sirsa, Dejarat, Jhang and Peshawar, in addition to Lahore and Amritsar; among the Muslim supporters of the act were a number derived from landed families in locations around Peshawar and Lahore.Footnote 69 Swayed by the weight of Muslim opinion, the Punjab government was convinced to apply the 1880 Kazi Act in its territories. In January 1882, 400 copies of the act were distributed in the Punjab and Muslims were invited to recommend local candidates for the office of qazi.Footnote 70 Parties throughout the province responded by requesting qazi appointment and, over an 18-month period up to July 1883, qazis were appointed by the Punjab government at Wazirabad, Jelalpur, Talagang, Dera Ismail Khan, Dera Ghazi Khan, Narowal, Ramnagar and Lahore.Footnote 71 The Punjab government's decision to begin appointing qazis coincided with the raising of the Punjab University College to full university status in October 1882. At the university, students would be permitted to study Muslim law and sit examinations to qualify for the post of qazi.Footnote 72
For most Muslim parties, however, the provisions of Act XII were not alone a sufficient response to the qazi question. When the application of the act was under discussion, appeals for the government appointment of qazis were coupled by Punjabi Muslims with demands for the bestowing on qazis of a judicial role and the more extensive administration of shari'at in the province. The Anjuman-i-Islam led the way, requesting that qazis be granted responsibility to assist in the administration of Muslim law.Footnote 73 Similar requests were made by Muslim gentlemen consulted by the Punjab government at Peshawar and Jhang.Footnote 74 Whilst some Muslim parties suggested that qazis advise European judges on the administration of Muslim law in Anglo-Indian courts, others proposed the transfer of cases involving shari'at to separate qazi-administered Muslim courts.Footnote 75 These two measures were of course differing means towards the same end: the wider application of Muslim law. Members of both the Anjuman-i-Punjab and Anjuman-i-Islam would stress the necessity of shari'at being applied more extensively than at present to resolve inheritance disputes between Muslim parties; on the issue of inheritance, alongside marriage, concerns for qazi appointment and the more extensive application of shari'at increasingly centred.Footnote 76 Though, as we have noted, shari'at was not followed as closely in inheritance matters by rural as by town-dwelling Muslim elites, the records of the Punjab civil court suggest that in the years immediately following the 1880 Act, a growing proportion of landowning Muslims, including wives and daughters, sought the resolution of inheritance disputes according to Muslim law.Footnote 77
When the memorial of the National Muhammadan Association was circulated among Punjabi Muslims in 1882, demands for the government employment of Muslim judicial officers and the better administration of shari'at were nothing new. Punjabi Muslims would respond to the memorial with renewed calls for the bestowing of judicial powers on state-appointed qazis. Once again, a leading role was taken by the Anjuman-i-Islam. Petitioning the Punjab government, it expressed agreement with the National Muhammadan Association's contention that across India shari'at had been regularly misapplied since the removal of qazis from Anglo-Indian courts. The Anjuman noted the insufficiency of Act XII of 1880, insofar as it failed to bestow judicial power on qazis, and extended upon its 1880 proposals for the granting to qazis of a judicial role. For the effective administration of Muslim law, it argued, salaried qazis must be appointed to advise European judges in colonial courts.Footnote 78 In August 1882, Muslim members of the Anjuman-i-Punjab met to consider the National Muhammadan Association's memorial and expressed their agreement that Muslim personal law was not satisfactorily administered by European judges in Anglo-Indian courts. One of the Anjuman's members, Amir Shah, proposed a modification of the National Muhammadan Association's plan for the appointment of Muslim judges: in each district of the Punjab, qazis would be appointed by government not only to advise European judges but to try cases according to shari'at.Footnote 79 A proposal was also made at the Anjuman's meeting for the appointment of a qazi to the Punjab Chief Court at Lahore.
State, community and religious law
In her influential study of the development of understandings of Muslim community in later nineteenth century India, Ayesha Jalal is dismissive of the relevance of debates over the administration of shari'at to Muslims in the Punjab. Jalal notes the supremacy of customary over religious law in the Punjab after 1872 and suggests on this basis that shari'at was unimportant to the Punjab's Muslims. To verify this assertion, she cites extensively from the responses of Anglo-Indian judges in the Punjab to the National Muhammadan Association's memorial. Jalal appears to accept unquestioningly the thesis advanced by Anglo-Indian judges in 1882 that Punjabi Muslims held no concern for their religious law.Footnote 80 There is, however, compelling evidence to the contrary. Whilst the extent to which shari'at was observed differed considerably in the Punjabi Muslim population, religious law was very widely applied in matters of matrimony and divorce, to which the office of qazi was considered essential. First in Lahore and other urban centres, where the observation of shari'at was most pronounced, and then later from rural locations, repeated demands were made for the state appointment of qazis to ensure and extend the administration of Muslim law. Clearly, Jalal's dismissal of the relevance of debates over religious law to the development of Muslim community must be revised: inspiring Muslim elites to represent the interests of their religious group and assert the importance of Islam in the public domain, demands for the appointment of qazis and greater application of shari'at constituted an important issue encouraging Muslim community formation.
The role of the state in this process of community formation is deserving of particular attention. It is often posed, of course, that through its use of religion as a legal and administrative category, the Anglo-Indian state encouraged the formation of religiously-defined communities: the bureaucratic and legalist classification of the Indian population upon religious lines, it is argued, encouraged Indian elites to claim representation of a particular religious community in their engagement with the colonial state, and to pursue political, economic and social goals on behalf of their religious group.Footnote 81 More baldly it is argued that the colonial state sought to provoke the political mobilization of religious communities as part of a deliberate strategy of divide and rule.Footnote 82 Debates surrounding religious law in the Punjab problematize these well-rehearsed arguments. The Punjab Laws Act of 1872 was informed, as we have noted, by an Anglo-Indian perception that the ‘tribe’ or village community, rather than the religious group, constituted the basic unit in Punjab society. From 1872, religious community was relegated below tribal or village group as a foundation for the operation of the Punjab judicial system. Arguing for the state appointment of qazis and the greater application of shari'at, Muslim elites challenged the primacy afforded to customary law in the Punjab, and by extension asserted the importance of religious community over and above tribal or village group in the province's social structure. In debates over Punjab legal arrangements, the importance of religious community was asserted by Muslim parties in opposition to, rather than with the encouragement of, the colonial state. A danger exists that this argument might be overstated. The attention of Punjabi Muslim elites was brought to debates over religious law and the state employment of qazis partly as a result of official enquiries initiated by Lord Mayo's administration in 1870 and at the time of the Government of India's Kazi Act a decade on. The religious group occupied a prominent position in the wider administrative practices of the Punjab government, in spite of European doubts over its applicability.Footnote 83 In the assertion of repeated demands for the greater application of Muslim law and state appointment of qazis, however, a large degree of agency must be assigned to Punjabi Muslim parties. Stimulated in part by the opposition to qazi abolition voiced publicly by Muslims in Bengal, Madras, Bombay and the North Western Provinces, Muslims in the Punjab capitalized upon inconsistencies in the official approach to religious law to urge on government the employment of qazis and administering of Muslim law in the colonial judicial system. The institutions of civil society provided a location for Muslim individuals and associations to engage with the colonial state but also, crucially, for discussion and the formation of opinion independently of government. Demands for the state appointment of qazis and the application of Muslim law were made by Muslim elites acting on behalf of an envisaged religious community within the public space opened up by the development of Punjab civil society.
Appeals for the appointment of qazis and greater observation of shari'at appear at first glance to confirm accepted understandings of the importance of the family or domestic domain to developing notions of Muslim community. Among scholars of later nineteenth century South Asian Islam it has been noted that central to ideas of religious community as conceptualized by Muslim intellectuals and reformers was the private domain of the family. Taking after Partha Chatterjee's work on Hindu reformers in Bengal, Gail Minault has shown how Muslim gentlemen concerned with the reform and elevation of their community found in the domestic domain, and particularly in the symbol of the Muslim woman, an explanation for the social and economic backwardness of their community; the revival of that community would begin with reform in the domestic sphere. Significantly, however, reformers also identified in the female-dominated domestic domain that which would need to be preserved in any measure of reform: women were imagined as the indispensable carriers of the religious, ethical, cultural and historical ideals and values of their community. The twin imperatives of reform and preservation therefore governed attempts to reconsider the Muslim domestic space.Footnote 84 From this starting point it becomes possible to understand the importance of religion to an emergent Muslim public sphere. Discussed first in private, ideas about domestic reform entered into Muslim public discourse and were elaborated upon in the institutions of civil society. In debates over domestic reform the centrality of Islam was stressed: reformers concerned for the advance of education among Muslim women, for instance, emphasized the necessity of religious instruction being provided for alongside the teaching of other subjects.Footnote 85 Religion was important to imagined Muslim domestic spaces and therefore to conceptions of Muslim community.
Muslim discussions over the role of qazis and application of shari'at share a great deal in common with discourses on the education of Muslim women and wider domestic reform. As we have noted, the government appointment of qazis was desired by Punjabi Muslims on two main accounts: on the one hand, state-appointed qazis were considered essential for the legitimate performance of Muslim rites and ceremonies, including marriages and divorces; on the other, qazis with officially-sanctioned judicial powers were sought for the resolution of civil disputes—usually concerning divorce and inheritance matters—in accordance with shari'at. It is clear that the qazi question closely concerned the Muslim domestic domain and, in particular, relations governing the Muslim family. Arguing for the state appointment of qazis and better administration of shari'at, Muslim parties concentrated public discussions on the domestic: asserting the importance of Islam in the domestic domain they simultaneously positioned religion centrally in a growing public space. The idea of Muslim community was developed through public discussion of a Muslim domestic sphere to which the centrality of Islam was stressed.
In one particularly important way, however, appeals for the government appointment and employment of qazis would differ from other attempts at reform in the domestic domain, including the extension of educational provisions for Muslim women. It has been noted that domestic reform was discussed and acted upon by Indian parties both privately and in an emergent public space. Existing explanations of the attraction of the domestic domain as a site of reform emphasize that, whether the focus of private or public attention, the domestic sphere was considered beyond the reach of Anglo-Indian government. Hindu and Muslim reformers concentrating their efforts on the domestic domain positioned themselves at a distance from the colonial state; to concentrate on social reform was to ensure freedom from the interference of an intrusive government to a degree not possible in the highly restricted field of politics. Indian elites in the later nineteenth century deliberately excluded the colonial state from the domain of social reform: the legal authority of the colonial state was replaced by the moral authority of the community.Footnote 86 The activities of the Anjuman-i-Himayat-i-Islam in the Punjab bear out this set of arguments.Footnote 87 Founded at Lahore in 1884, the Anjuman would attract members of the older Anjuman-i-Punjab and Anjuman-i-Islam with its programme for the foundation of educational institutions under Muslim management. Of especial importance to the Anjuman was the education of Muslim girls: within five years of its foundation the association had opened ten small schools for girls in Lahore.Footnote 88 Through the foundation and management of schools and colleges—a high school for Muslim boys would be established and later converted into the Islamia College, Lahore—the Anjuman-i-Himayat-i-Islam would consciously take over a function, pedagogy, formerly the reserve of the Anglo-Indian state and European missionary organizations. The Anjuman's female schools would provide religious instruction alongside a basic household training: a conviction of the importance of Islam to the Muslim domestic space was discussed and acted upon in public.Footnote 89 The establishment of schools for Muslim girls empowered the Anjuman, an organization of growing importance in Punjab civil society, to reform publicly the Muslim domestic domain with a large degree of autonomy from the colonial state.
Debates over the role of qazis and observation of shari'at reveal something quite different. Urging upon the Punjab administration the appointment and employment of qazis, Punjabi Muslims considering reform of the domestic domain would, far from seeking distance from government, invite the colonial state to act in a sphere intimately concerned with the Muslim family. Through the public channels of Punjab civil society, the Muslim domestic space, usually considered to have been deliberately set apart from the colonial state, was presented to government as a field for administrative intervention. The collusion of the Anglo-Indian state was sought in the positioning of the Muslim domestic domain as a site for public discussion and action. Appealing for the government appointment of qazis and administration of shari'at, Muslim elites sought the assistance of the Anglo-Indian state in the strengthening of religion in the Muslim domestic domain, whilst simultaneously pursuing official acceptance of the place of religion in the public sphere. Through their lobbying for the state-appointment of qazis, Punjabi Muslims attempted to accentuate an ever-present disjuncture between the Anglo-Indian state's profession of non-interference with the religions of India and its administrative practice. Put differently, Muslim elites in Punjab civil society sought government assistance in collapsing the professed colonial distinction between private and public, religious and secular spheres.
The Punjab government's appointment of qazis under Act XII of 1880 was halted in June 1883 after a dispute at Lahore concerning the appointment of Khalifa Hamiduddin as the town's qazi.Footnote 90 After 1885 the teaching of Hindu and Muslim law as distinct degrees at the Punjab University was terminated, as part of a drive for the greater encouragement of western learning at the institution.Footnote 91 Repeated demands for the government appointment of qazis and application of shari'at testify, however, to the importance of religious law to Punjabi Muslims between the years 1865 and 1885. This paper suggests that the centrality of shari'at to understandings of Muslim community in the Punjab after 1900 must be understood within the context of developments during this earlier period. Moreover, appeals for the appointment of qazis and wider application of Muslim law suggest a need to think more carefully about the relationship between family, community and state under colonial rule. A means for the protection of the domestic sphere as a site of community values, shari'at was simultaneously advanced in opposition to the recognized legal and political category of the village or tribal group by Punjabi Muslims encountering the policy contradictions of a vacillating state. The challenge for scholars now is to look beyond projections of shari'at as a singular moral category to consider further its manifold appeal and effects. The campaign for the government appointment of qazis anticipated later efforts more divisive of Muslim opinion to encourage observation of shari'at, including the application of women's inheritance rights, through the structures of the colonial state. Muslim leaders urging qazi appointment promoted Islam in a public space anterior to the advent of Punjab party politics, whilst securing colonial intervention in the sacred domestic domain.
