The

Is la m ic L a w
and
C o n s ti tu ti o n

By
SAYYID ABUL A'LA MAUDUD1

Tr an sla te d an d Ed ite d by
KHURSHID AH MA D

Islamic Publications (Pvt.) Ltd.

13-E. Shah Alam Market, LAHORE (Pakis
tan)
 In ike name of Allah, the Beneficent, the Merciful

AUTHOR'S PREFACE

HE first edition of this book was compiled while I was in

T prison. As such, neither could I add anything to the book
nor could my suggestions be sought in its compilation. Now
the Beoond edition has been prepared in full consultation with
me and contains almost all of my speeches and articles relating
to the subjects of Islamic Law and Constitution. Mr. Khurshid
Ahmad deserves my heart-felt thanks for the skill and ability
with which he has translated and edited the book.

A book like the present one, which has not been written in
the common textbook style, may not cater to all the academic
needs of a student of Islamic Law and Constitution, who wants
to . study the subject in all its multifarious details, but. I do
hope, it will prove of immense help to all those persons who
want to study the nature of the Islamic State, its theory, form
and underlying principles, and who wish to understand bow the
Islamic Law can be implemented in a modern state. Today there
are many countries whose Muslim population is, after attaining
independence, naturally eager to base its polity on those princi­
ples and traditions of Islam which are a demand of its faith and
conscience. The people want that the Islamic Law should be
introduced in their respective countries bo that they may follow
a law to which they owe their honest and sincere allegiance. But,
unfortunately, in almost all such countries the reins of power
havo been in the hands of those persons who not only did not
 TA« Zsiamtc Law and Oonsiitution
have even an elementary understanding of Islamic Law and Con*
stitution, but had all their education and training for the run­
ning of Godless secular states. Therefore everywhere they are in
a bad predicament because they are incapable of thinking except
in terms of the nature and pattern of a state of the Western
secular type. They are not in a position to wriggle themselves
out of the Western modes of thinking and practice. The position
of the Muslim masses is not very dissimilar in certain respects.
No doubt they arc extremely eager to re-establish the Islamic
waj' of life and this urge of theirs is very real and sincere. But
they too are not clear about the nature and form of the state
whose establiBhmet they so sincerely urge. They also do not
know as to what should they do to establish the state of their
dreams. Furthermore, Western thinkers and policy-makers
whose opinions have begun to command immense importance in
our times, who are influencing most the destinies of the Muslim
countries, and to whoso opinions we too give due weight, har­
bour many a prejudice and suspicion about the nature and
prospects of the Islamic State. I think that most of their sus­
picions and apprehensions are due to a lack of information and
understanding and not because of any malice, and as suoh they
are removable. In ^the articles presented in this book I have
made an humble attempt to serve all these sections. I wish that
whatever opinion is formed about the Islamic State, should be
formed after one h>s properly and thoroughly acquainted him­
self with its nature and content, and not otherwise. The present
book will, I hope, help a great deal ’in understanding the
various aspects of an Islamic State.
I nm thankful to all those persons who offered their com­
ments on the first edition of the book in Pakistani and foreign
newspapers and journals. I have tried to benefit from their
comments as much as possible. I do not propose to give, in this
preface, any rejoinder to the objections particularly raised by
the Western roviowera and critics. But I would submit that
 . In the name of. Allah the Beneficent, the Merciful vii
the re should bo a lim it to one's des ire to see eve ryth ing in
accord with one’s own wishes. There can bo a people who mny
hav e very basic differences with the West in respect of hum an
values, ideals, culture and civilization and thov have as much a
righ t to fash ion the ir collective life in accordance with their
own values and ideals as tho West has to do according to its
own, For a happy Co-existenco, tho thruut-ing of one’s beliefs
and dpctrin ea on the oth er is as det rim ental and inju riou s as is
an hon est endeavour to und erstand one ano ther's ideology in its
true ligh ts necessary and helpful,

A B U L A‘L A M AU DU D1
Lah ore : 15th October, 196 0.
 CONTENTS

Page
PR EF AC E
>• • vii
INTRODUCTION
1
•Why Muslims Wa nt an Islamic Sta te 1 2
-Histo rica l Background of Pak ista n 11
-The Ideological Problem 16
-The Movement for Islamic Co nstitution
26
—-About this Book
« «* 33
• PA RT I

ASPECTS OF ISLAMIC LAW*

Chapter 1 —The Islamic Law
4 >> 39
M 2.—Legislation and Ijlihw l in Islam ■e » 71
ri 3.—How to Introd uce Islamic Law in
Pak ista n ? V II 93
PA RT II
• PO LIT ICA L AND CO NSTITUTIONAL
ISLAM
Chapter 4.—Politic al Theory of Islam
123
11 5.—Pol itic al Concepts of the Qurian
153
M G.—F irst Principle s of the Islamfo Sta to
• 4• 201
1> 7.—Fun dam entals of Tslam rcC ous titu tion a<• 253
Jr 8.—Rig hts of Non-Muslims in Tatanfe Sta to
273
>> 9;—The Problem of Ele cto rate • ••
301
M 10.—Somo Co nstitution al Proposals ■• e 313
ri ‘ TAe Jtlautft L a v Co M tiW iok
. • •. V, Page
e•
AP PE ND IC ES
Appendix I.—Basic Principle* of Wa mic Sta te :
by the ‘Ulama o f Pa kistan ... 331
II.— •U tam i’s Am endment# to the B.P .C.
M
Re por t ... 337

•> III .—Comments on the Dr aft Constitution

(1956) ... 365
IV .—Comments on 1956 Constitution ... 333
l>
9f
V.— White Paper on the Problem of
Electorates ... 389
99
VI .—Abnl A’la Maududi : A Biographical
Sk etc h—by the Ed itor ... 465
... 407
IN DE X
 I
INTRODUCTION
JSLAM today is passing through one of its moat crucial
periods. In the first half of the twentieth century, a wide­
spread revival of Islam has occurred. The chains of political
servitude have boon broken at many a pl<ce and nearly eighteen
Muslim countries have attained independence during the last
two docades. lutelloctual and oultural movements aiming at
Islamic renaissance have emerged throughout the length and
breadth of the Muslim world and are gradually gaining strength.
Although there have been ups and downs because of political
exigencies, the overall movement for Islamic rovival has been
slowly moving in the upward crescendo. The entire world of
Islam is humming with a new ambition to rehabilitate Islam and
revive its pristine glory. Everywhere Muslims are on the march,
Muslim s are on the march everywh ere
But the new challenge to Islam also emerges from this very
onward march of the Muslims. The course of events has put
them on trial. It is to bo seen hew they acquit themselves of it.
The basic problem before the world of Islam is how to re­
establish the Islamic ideology in the world of the mid-tw entieth
century. This problem poses a great challenge, because Islam
is not a more collection of dogmas and rituals. I t is a complete
way of lifo. It is the erobodimont of Divino Guidance lor all
fields of human life, may they bo private or public, politica l or
economic, social or oultural, moral or legal and judicial. Islam
i? an albombracing ideology and tho problem that besets the
Muslim world, which has only recently emerged from political
slavery, i« of transla ting this ideology into practice and of
reconstructing its socio-political lifo in accordance with it.
The movement for the introduction of the Islamic law and
the establishment of the Islamic dtute is a part and parcel of
this overall movement for the revival and the rehabilitation of
 2 The Islamic Law and Constitu tion
Islam. Tho movement is not afoot in more or less every Muslim
country, particularly in those countries which have recently
attained independence. Everywhere people are pressing for the
framing of an Islamic Constitution and for the introduction of
the Islamio law. Sudan, Indonesia, Pakistan , Malaya, Somalia,
etc, all are witnessing the same movement. The question
arises why has one and the same trend appeared in so many and
so far off places ? And why is the problem of Islamic State
becoming important with the spread of political freedom ?
Western observers and those totally educated in the
Western tradition often fail to understand the phenomenon. I t
seems, therefore, advisable to oast a cursory glance over tho
case of Muslims for the establishment of Islamic State.

II
WHY MUSLIMS WANT AN ISLAMIC STATE?
The question why Muslims want an Islamic State is a
strange question. For Muslims should not and, as a matter of
fact, could not as Muslims but want an Islamic State, This is
the only natural course for them. If they wanted anything else,
then an explanation would perhaps bo* called for ; and not
,-F "

in the case when they want iL But because of a host of

reasons an explanation to this effect has become necessary.
Firstly, the intellectual and religious background of the
world of Islam is very different from that of the West and as
such it becomes difficult for tho Western and the West-oriontod
observors to grasp and appreciate tte situatio n. It is, therefore,
necessary that the Islamic concept of religion and the Muslim
outlook on politics should be clcary understood at the very out­
set. Then alone can a better understanding of tho contempor­
ary Muslim political thought be developed.
Secondly, the educated younger generations of the Muslim
world too have been estranged from their own cultural and in­
tellectual traditio n. Under the influence of Western education
they have imbibed the Western political concepts and are think-
 Introduction 3
ing of introducing them in the Muslim world without any regard
for tho Muslim trad ition as such. And as, through a cruel con­
spiracy of circumstances, the reins of power in many a country
has passed from the hands of the erstwhile Imperialist powers
to this very class of West-oriented Muslims tho need for a
precise presentation of tho Islamic case has increased manifold.
Islam holds that Allah has created the Universe and con­
trols and governs it. Ho created man and provided him with
all that he needs for the progress and growth of life. To fulfil
his material needs Ho has endowed the world with all kinds of
materials and substances which man can harness to his use.
To cater to his spiritual, cultural and social requirements, he
needs His revealed Guidance through His Prophets, It is the
Guidance which constitutes the religion of Islam.
Life is a unity. It cannot be divided into water-tight com­
partments. The function of religion is to dire ct the affairs of
life. Therefore its domain is life in its entirety , and not any
specific aspect of it. That is why it not only gives an outlook
on life and reality but also lays down the basic principles on
which man’s relationships to his own self, to other men and
society, and Allah the Creator are to be reared. I t looks upon
life its tota lity and provides guidance for every field of
activ ity. Tile mission of a prophet, according to Isla m, is not
merely to cater to spiritual elevation. His mission is to purify
the beliefs and ideas of man about Reality, to purge his soul of
all impurities, to awaken his moral consciousness and to use this
moral force for the reconstruction of the society and the
remoulding of tho flux of history.
Th’S bus been tho mission of all the prophets of God and
Prophet Muhammad (peace be upon him) was the last of the
prophets to whom God’s Guidance was revealed in its complete­
ness and who established an ideal social order—a complete
civilization—in accordance with this Guidance. It is this
Guidance which is enshrined in tho Qur’an and sunnah, the
word of God and the example of the Holy Prophet, and consti­
tute s the. religion of Islam.
4- Th* M mm * Law and Constitution
Tho Qur’an explicitly asks man to subm it to God with a
complete submission and to accept His Guidance in every field
of activity. The call of the Qur’an is :
“ 0 ye who believe ! enter into Islam wholly and follow
not tho footsteps of the Satan, verily ho is unto you an
enemy manifest” * (2 : 208)
The mission of the prophets, according to the Qur’an is the
establishment of virtue and justice in accordance with the
revealed guidanco.
“ We verily sent Our messengers with clear proofs, and
revealed with them the Scripture and the Balance, (i.o., the
authority to establish Juatioe), th a t mankind may observe
tho right m easure; and He revealed iron (i.e., coercive
power) wherein is m ighty power and (many) uses for m an­
kind and th at Allah may know who hclpeth Him and His
messengers, though unseen” . (57 : 25)
“ H e i t is Who hath sent His messenger with the Guid­
ance and religion of T ruth, th a t He may make i t supremo
over all other ways, however much idolaters may be averse” .
(6 1 :9 )
Thus Islam wants to fashion oac’e entire Life according to
the principles of individual and social behaviour revealed by
God and does not confine itself to the precincts of tho private
life of the individual alone. Politics, on the other hand, studies
the relationship of man with the state and of man with man. In
]slain th is too is the-domain of religion, which comprehends all
aspects of life. Islam does not adm it of any separation between
religion and politics;I it wants
, ■• to •conduct* politics also
• in accord-
•
ance with the guidance provided by religion and.to use the
state as the servant of the Lord, The Qur’an lays down th a t
Allah is tho Sovereign and tho Law-giver and His revealed law
uaustbu adopted as the law of the land. According to tho Q ur’an ;
“ The command is for none but God ; He hath com­
manded th a t jo obey nano but Him: th at is the right p a th ” .
(12 : 40)
 Introduction 6

“ Verily , Hia is the Creation and His is the Law” ,

(7 : 54)
“ If any do fail to establ ish and decide by what God hath
revealed, they are the unbel ievers .......... th e unjus t........ .th e
evil-d oers” . (5 : 44, 45, 47)
Islam uses politic al power for the reform of the societ y and
dow not leave it to degen erate into ‘th e last resort of a
scoundrel*. It rather makes th e Proph et pray th a t the rulers be
conve rted to the creed and becom e its suppo rt.
“ Say : 0 my Lord ! Let my entry be by the Gate of
Truth and Honou r and likewise my exit by the Gate of
Truth and Hono ur ; And grant mo from Thy presen ce a
Tulin* autho rity to aid too*’. (17 : 80)
Maulana Maud udi, in his Tafsir , explains the above verse
ns follows :
“ That is either grant me power on earth or make any
ruling autho rity, any state, my supporter,, so th a t I may.
with the force of the coercive powers of the state, establ ish
virtue , eradic ate evil, put an end to the surgin g tide of cor*
ruptio n, vulga rity and sin, set at right the disrup tion which
has engulfed life and adm iniste r justice accorn ing to Y our
revealed law” .
This is th e real meaning of the verse and this is the inior-
pTetation given by Hasan Jdasri. Qatada, Ibn Jarir and Ibn
Kathir , This view is furthe r suppo rted by the badifh :
“ Allah throug h state power puts an end to that what
He does not eradic ate throug h the Q ur'an” .
This shows that reform s which Islam wants to bring about
canno t bo carrie d out by sermo ns alono. Politic al power is also
essential to achiev e thorn.1 . . ‘
Tin's is the approa ch of Islam. And the logical consequence
'J this appro ach is that the state must bo mould ed on Islamic
patter ns. This is a dictat e nf the Islamic faith and canno t be
disreg arded. The Weste rn conce pt of the separa tion (if religio n

b Abul A‘41 Ta//c/'wiVl (Ji/r'trM, Vol. II, Lahore 1934, p. G18.

 6 The Islam ic Law and Constitution

from politics of secularism—is foreign to Islam an

d the adoption
of it would be tho very negation of the Islamic co
ncept of polity.
This problem has become very serious with the
spread
of political freedom. In the pa st, Muslims we
re not free to
fashion the ir politiical life accor
likes. They were under the yoke of Western im
perialism and
had no freedom to order their affairs according to
the Islamic
principles. Bu t after the attain me nt of indepen
dence, they are
free to adopt whatever way of life they like. If,
even after the
attain me nt of this freedom, the y do not adopt the
Islamic way
and instead of enforcing Tglamio law, choose to run
the ir sta te
on some other lines, this avoidance of Islam on the
ir pa rt would
amount to no less tha n a form of natio nal apostas
y—something
of which Muslims cannot conceive.
This concept of Islam, fu rth er supported by the pra
ctice of
the Holy Prophet (peace be upon him), of the
and of the multitude of Muslim reformers, impe
ls Muslims to
strive for the establishment of Islamic State .1 Th
is is wh*v this
move i b spreading throughout the world of Islam
and has become
one of the most im po rta nt topics of our age.
A perusal of Islamic history reveals th at throu
ghout the
long range of thirte en centuries, no ideal other
than IaJam has
ever spurred Muslims to any great action. Islam
is the very
brea th of the ir life ; it alone has moved them
to accomplish
great feats of glory. Any contrary ideal has neve
r caught their
im agination, has never moved them to sacrifice
the ir en tire,
existence, has never won any popular support
amongst them.
Professor Wilfred Sm ith, while surveying the
problems of
nationalism in the Muslim world, admits this
unique pheno­
menon of Islamic history. He observes :

1. H ero n cla rifi cat ion is por hnp s .ca lled for .
T her e jm n I m v u c dif fer enc e
bet we en a ‘M usl im Sale* and an ‘Is la m ic Sta
te* . A M usl im S la te is any
■st ate wh ich is rul ed by M usl im s. Isl a m ic
S tal e. <m th e o th e r h an d , is
one wh ich o p ts to con duc t its aff air s in Ao
cor dnn rc w ith th e rev eal ed
gui dan ce of Isl a m and acc ep ts th e so v e re ig
n ty o f A llah and th e sup re-
' m acy o f H is Law , an d wh ich dev ote s its
res ou rce s to ach iev e Hits end .
 Introduction 7
“ No Muslim people hag evolved a national feeling that
has meant a loyalty to or even concern for a community
tianscending the bounds of Islam” .1
Also that :
“ In the past, only Islam has provided for these people
this typo of discipline, inspiration and energy” .2
This is a unique feature of Islamic history and the move of
the Muslim people towards the Islamic State is the natural func­
tion of their history. . Any other move simply cannot succeed*
Moreover, the experiment of the Western countries with
secularism are in no way encouraging. Separation of polities from
morality and religion has created more problems than it has
solved. The result is that there is ’scepticism in thought-, con­
fusion in values, expediency in standards, vulgarity in behaviour
and opportunism in diplomacy. Politics has become out-and-out
machiavellian and this state of affairs haa greatly impairedjthe
poise and tranquillity of life. That is why, in the words of a
philosopher, although the modern man has “ learned to fly in the
skies like the birds and to swim in. the oceans like tho fishes, but-
has failed to learn to live on earth like human beings” . That is
why the renowned historian, Arnold Toynbee is even doubting
the value of secularism as an ideal. He says ;
“ Perhaps it is impossible to attain secular happiness
for the individual by pursuing this secular happiness as an
ultimate end in. itself ; but it is conceivable that secular
happiness for the individual may be .produced as an inci­
dental by-product if the individual is aiming at something
else that is spiritually above it and beyond it. Secular
happiness may be a by-product of trying to carry out tho
spiritual aims that are common to all the higher religious :
the effort to take sides with what is good against what is evil,
and the effort to attain harmony with Absolute Reality or

h W ilfred C. S m ith , Islam in Modern H isl& y, P rin c e to n , 1957.. p t "7.

- Ib id .
 8 • The Islamic Law anACcnetitulio*
God”*.
Iqbal has also very forcefully pointed out the real mo/awre
of the Western culture. He. says :
“ Both nationalism and atheistic socialism, at least in
the present state of human adjustm ents, must draw upon
the psychological forces of hate, suspicion and resentm ent
which tend to impoverish the soul of man and close up his
hidden sources of spiritual energy. Neither the technique
of medieval mysticism nor nationalism nor atheistic social­
ism can cure the ills of a despairing humanity. Surely
the present moment is one of great crisis in the history of
modern culture. The modern world stands in need of
biological renewal. And religions, which in their higher
manifestations are neither dogma nor ritual, can alone
ethically prepare the modern man for the burden of the
great responsibility which the advancement of modern
science necessarily involves, and restore to him that
attitud e of faith which makes him capable of winning a
personality hero and retaining it hereafter. It is only by
rising to a fresh vision of his origin and future, his whence
and whither, that man will eventually triumph over a
society motivated by an inhuman competition, and a civilk
nation which has lost its spiritu al unity because of its inner
; conflict of
religious and political values” .12 .
In this context Iqbal's call was as under :
"Humanity needs three things today----- a spiritu al ia-
1. Arnold Toynbe e, C h ristian ity among the. Religion ? o f the World, Oxford
U n iversity PreMs, London , 1958, p, $62 (Em phasis o v rt) Speakin g nt
the Jaxnsho d Memorial H all, Karach i, Prof. Toynbe e said :
♦‘R eligion was indispen sable for human beings, and w ithout it, the
existenc e o f nz n was not possibly . R eligion w as essen tia l for solvin g
the m ost com plicated probloin s of the individu al nnd the so cia ly . In
modern scientifi c advance m ent, religion has s till to play a bet tor mid
• im portant role for the preserv ation o f the persona lity o f trim,’*
Quoted in The Islam ic Review, London , January I960, p, 00,
2. Muhum mad Iqbal, Reconstr uction o f Religiou s Though t in Islam ,
La’ioro, 1034, pp, 183-189 [Empha sis ours).
 «
torpretation o f the Universe, spiritua l emancipation of the
individu al, and basic principles o f a universal import direct­
ing the evolution of human society on a spiritual basis..*
B^liove me, Bn rope today is the greatest hindrance in the
way of man’s ethical advancement. £he "’Muslim, on the
other hand, is in possession o f these ultimate ideas on the
a*
basis of a revelation...Let the Muslim of today appreciate
his, position , reconstruct his social life in the light of ulti- *
mate principles, and evolve..that spiritual democracy which
is the ultimate aim of Islam” 1 .
With this belief and this realisation, Muslims are trying to
carve out their own path and to set, by establish ing a political
order on the moral principles of Islam, an example before a
world torn by Seoularism, Nationalism and Communism.
Lastly, they are faced with the problem o f Communism.
Communism has shaken the Western world and the spectre is
♦
now haunting tho Muslim East. Communism is a social philo­
sophy, but in the last analysis, it is an ideology which is a pro­
duct of secularism and atheism and which .emerged to fill the
vacuum created by the disintegration of religion in the West.
Poverty and social disorder there always haro been. Commun­
ism appeared on the scene only when religion , the hope of the
people, was destroyed. It is a product not mainly of poverty
but essentia lly of materialism, and religion alone can meet its
challenge. R. N. Crew-Hunt rightly says that ;
•'It is, in the last analysis , a body of ideas which has
filled the vacuum created by the breakdown of organised
religion as a result of the increasing secularisation of
thought during the last three centuries, and it can be com­
bated only by opposing to it a conception of life based upon
wholly different principles”^

I. Muhammad Iqbal, Reconstruction. of ReUfioue Thought in Islam,

Lahore, )954, pp. .1S3-180 [Emphasis ours}
’ 2. Crow-Hunt, The Thrcory and Practice of Communirm, London,
. 1901, p. 6.
 10 The Islamic Law and Constitution
Douglas Hyde, a former editor o f the Daily Worker,
London, endorses the same analysis. He writes :
“ Communism-is not, first and foremost, a social or
political problem. It is a spiritual problem and only if we
understand this, shall we see why it has spread in this
particular age and no other. Its rapid growth would not
have been possible in the age with a faith. Only in a pagan,
faithless age was it possible for such a philosophy and way
of life to spread to millions of men.;.” .1
“ Communism uses the very poor in times of crisis or
when a revolutionary situation develops. . This is its main
interest in*th?m. Social justice is the thing upon which, it
feeds. It Is not the originator of Communism” .2 "The
spread o f Communism and Communist influences has been
made possible by the spread of wrong ideas, wrong values,
wrong standards. Still more, it has been made possible by
the existence qf large numbers of people with no standards,
no rakes, often all—but no ideas at all.” 3*5
J “ Communism is the expression o f a deep Spiritual ill.
The spread of Communist influence can, in the Jong run,
only be countered by the spread of the f a i t h ”*
Muslims believe that the greatest bulwark against Commun-
ism is Islam. Islam is the faith and religion o f over five hund­
red. million human beings,8 It is the force which hasz moved
them in the past and which is the sheet-anchor of thoir present
existence* It i i an ideal which inspires them and can move
them to notion, effort and sacrifice, It is a social philosophy
whichstands for justice and well-being and has a just and
moral,' political and economic ideology o f its own.8 Islam not
; ■1. Douglas Hyde, Ths Answsr to Communism, London, 1951, p. 46.
2. Ibid., p. 41. (Emphasis ours).
J; Ibid., p: 49 (Emphasis ours), 4. Ibid., p. 30 (Emphasis ours).
5. Seo Abdullah Al-Ma&duSI, MliSahib-t-AIam, VLaxabhi, 1938, p. 130
0.
•* Prof. Wilfred C. Smith, him self a:'former Socialist, adm its in his
recent book, Islam in M odsm History : *
••Surely Islam ic enterprise has been the moet serious and sustained
endeavour-ever put forward to im plem ent justice among mon and
until the rise o f Marxism was also the largest and most ambitious.”
. Islam in Hordern H istory, op t cii. t p. 24. .
 Introduction 11
only gives them an ideal to live and die for, it also establishes a
social order inXriuch equity, justice and fair play reign. Such an
ideology alone can check the onward march of Communism.
The negative ideology of secularism cannot cross the way of tho
positive movement of Communism. Muslims see in the Islamic
State the surest answer to Communism. The establishment of
the Islamic State would not only check the onward march of
Communism but would be a positive challenge to it. And that
id how Communism can be mot on its own grounds.
This is, in brief, the Muslims’ case for an Islamic State and
herein lies its importance for the Muslims in particula r and for
the world at large in gene ral

III
HISTORICAL BACKGROUND OF PAKISTAN
The Pakistan movement was an expression of Muslim
India’s firm desire to establish an Islamic State. The movement
was inspired by the ideology of Islam and the country was car­
ved into existence solely to dem onstrate the efficacy of the
Islamio way of life.
Islam came to India through Muslim trad ers, trav ellersand
8ufis, With the spread of Islam, the desire to establish an
Islamic polity in the sub-continent gained stren gth. Muslim
rulers, in response to the aspirations of the Muslim masses,
introduced Islamic Law and established the Sha'air-e-Islam
(Islamic Institutio ns). Although there was monarchy and des-
A
•

potism, institutio ns alien to the lette r and spirit of Islam, but

the Shari1ah \did constitute the law of the land and there was
no masB-deviatiqn from Islam. This was not a very welcome
situation, for Islam was not being enforced in its entirety. But
there was also no movement agkinsj Islam and it was expected
that through sustained effort, things would be corrected in the
course of events. I t was during the reign of Akbar that a
calculated endeavour was zqade to purge Islam from the socio­
political life and to evolve a new religion—& hotch-potch of
12 The Islam ic Law and Constitution
Hinduism, Buddhism, Paganism and Islam—under the patro n­
age of the State . This produced a strong reaction among the
people who revolted against this idea and tho movement for the
establishment of % tho Shari* ab ©merged in full force. Tt was
pioneered by Shaikh Ahmad of Sarhind, popularly known as
Mvjaddid Alf-i-Thani who propagated the teachings of Islam in
a systematic way, proclaimed the truth undeterred by threa ts,
created public opinion for social and political reforms, fought for
Islam undaunted by the temp ests of adve rsity and even suffered
imprisonment in the historic Gwalior Fort, It was as a result
of this movement that the anti-lslam policy of Akbar fizzled out
almost immediately after his death and gradually even the
Mughal emperorB became Islam -oriented , so much so that
history witness Aurangzeb who was an ardent soldier of Islam
and in whose reign codification and introduction of Islamic law
was accomplished.
The torch which Afujoddtd AlJ-i^Thani lit was kept burning
by the later generations and the movement progressed under the
guidance of different leaders of thou ght and action, /S'AaA JFalt-
ullah of Delhi reconstructed the Islamic thou ght and laid the
foundations of Islamic renaissance in the country. All the re­
formers of the nineteenth and twentieth centuries drew their
inspiration from this beacon of learning. \

Shah Ismail Shahid and Sayyid Ahmad Shahid waged amove-

n
ment for the establishm ent of th© Islamic State, ^ ©y fought
the Sikhs and the British imperialists and their ultim ate objective
was to establish Rhil ifat ala minhaj*t-Khilafai-t-Rashidah
(Islamic State on the patte rn of the State established by the
Rightly-Guided Caliphs). In the words of Sayyid Ahmad Shahid :
"The only desire that spurs me is that the law revealed
by the Almighty, whioh we call the Shari*ah may Le enforc­
ed in all the lands and on all the peoples and there should'
remain no conflict or tussle in this respect. My objective is
to accomplish this task----- this may bo achieved through
my hands or through anybody elae’s. What I want is that
 Introduction 13

this must be done. And I resort to all those means and

devices which seems to help in the achievement of this end.1
Although Sayyid Ahmad and his armies could not succeed,
they ignited a fire in the hearts and souls o f the people and the
Movement continued oven after their martyrdom. This move­
ment left such indelible impressions upon the minds of the
Indian Muslims that no amount of British repression could effaco
them. The blood stains at Balakote continued to inspire the
people and indeed the movement has survived in all its pristine
foroe up to the present day.
Sir Sayyid Ahmad Khan tried to strike a compromise with
Western thought but despite his sincerity, modernism could not
gain ground. £At6lt Nu'mani, Abul Kalam, Uaulana Muhammad
Ali, Iqbal and Maududi all represent the original renaissance
movement and each one o f them gave a new impetus to this
movement. Shibli tried to inspire confidence in Muslim culture
and brought to light the historical role o f Islam and o f the
Prophet of Islam. Abul Kalam shook Muslim India from its
stupor and called it back to the original message o f Islam.
Muhammad Ali revived the Muslim interest in Indian politics,
strengthened the pan-Islamic feelings and championed the
Khilafat Movement which constitutes the turning point in the
modern political history of Muslim India. Iqbal, through his
poetry and prose, moved the soul of the younger generations and
inspired them to re-achieve the glory that is Islam. Maududi
gave the revivalist trends its new intellectual formulation and
organised the* e forces into an all embracing movement.
This is the intellectual background in which the demand for
Pakistan arose. The Pakistan movement was not the making
of any one individual. It was the natural crescondo of history
and it goes to the credit of Iqbal and Muhammad A li Jinnah '
that they grasped the. slow whisper of history and piloted the
movement on such lines that within a decade Pakistan became
axeality., • *
I- Shah Itm a il, p. 5'J quoted by Gh-ilam R i n o l M>hr, iSayyad
Ahmad Shahid, Vol, I (, Lahoro, p.
14 The Islamic Law and Constitution
The idea of Pakistan owes its origin to the belief that
Muslims are a nation,*1 an ideological community, and it is a
dictate of their faith to establish a state, a Bociety and a culture
in the light of the principles given by the Qur’an and the Sunnah,
Iqbal, while suggesting the idea of Pakistan in his Presi­
dential Address to the Annual Session of All-India Muslim
League in 1930, said th a t: ' .
“ The life of Islam as a cultural force in this country
very largely depends on its centralisation in a specified
territory . This centralisation of the more living portion of
the Muslima of India...w ill eventually solve the problem
of India as well as of A sia/’2
This was essential so that Indian Muslim may become
“entitle d to full and free development on the lines of his own
culture and traditio n” .3*
1. To have an idea of how old this concept ie let us give a few references:
(1) AbBerun i who visited Indo-P& kiitan sub-continent in the ninth
century writes :
“The Hindus entirely differ from us (i.e. the Muslims^ in every
respect?* Kitab al •Hind. Tr. by S. Sac Bru p. 17.
“One might think that they had intention ally changed them (i.e.
their customs and ways of living) into the opposite, for our customs do
not resemble theirs, but are the very reverse ; and if ever a custom of
theirs resembles one of ours, it has certainly just the oposite mean­
ing.” (Ibid., p. 197).
(2) Sir Syed Ahmad said in 1862 :
“Is it possible that under these circumstanoea two nations—the
.Mohamm adana and Hindus —could s it on the same throne and remain
equal in power ? Moat certainly not. It is necessar y that one of them
should conquer the other and thrust it down. To hope that both could
remain equal is to desire the impossib le and the inconceivable.**(<Juoted
by Richard S ymond, TAe Making o f Pakistan . London, 1951, p. 31)-
(3) Sir William Hqnter, in his book TAe Indian Mussabn ant, speaks of
Muslim ■>as a commun ity, a race exhibitin g “ their old intense
fooling of national ity.5 ’ (W, W. Hunter, TA* Indian M ustalman s
Calcutta I9|5 ed., pp. 143-14.4), a

2. Muhammad Iqbal, Speeches and Statemen ts of Iqbal, compiled by

“Shamloo, ” L al* re, 1948, p. 13. .
3. Ibid., p. 11.
 Introduction
Quaida-A zam based his plea on the same grounds. During
the Jinnah-Gandhi talks he said : .
“ We> claim the right of aejf-determination as a nation
and not as a territorial unit” .1
In March 1944, wh ile elaborating the concept of Pakistan
he said :
“ Our bed-rock and sheet-anchor is Islam. We are one
and wo must move as one nation and then alone we shall be
able to retain Pak ista n” .2
. In Jun e 1945, he said :
. "There is only one course open, to us ; to organise our
nation. And it is by our own din t o f arduous and sustained
efforts tha t we can create strength and support our people
not only to achieve our freedom and independence but to be
able to maintain it and live according to Isla mic ide als and
principles.
“Pa kistan not only means freedom and independence
but the Muslim Ideolo gy wh ich has to be preserved, which
has come to us as a precious gift and treasure and which we
hope others will share with ua” .3
In November, 1945, he said :
"The Muslims demand Pak ista n, where they could rule
accordidg to their own cod e of life and according to their
own cultural growth, tra ditions and Islamic law s......O ur
religion, our culture and our Isla mic ide als are our drivin g
force to achieve our independence”.4
*Mr. Liaquat AH Khan affirmed the sam e concept of Pak ista n
when, wh ile moving the Objectives Res olu tion , he said :
“Pa kistan was founded because the Muslims of this
sub-continent wanted to build up the ir live s in accordance
1. Muhammad Ali J inn ah, Jinn af^G andM Talk *, Delh i, 1944
, p. 20.
2. Muhammad Ali Jinn ah, 8omo Rtco nl and Writing * o f M r.
Jinn ah, Lah ore, p. 99.
3- ZMd.» pp. 366.67.
Ibid .
 16 TJU M am ie Law and Constituion
with the teachings and traditions o f Islam, because they
warned to demonstrate to the world that Islam provides
a panaoea to the many diseases which have crept into the
life of humanity today” J
Tnia was the real ooncept of Pakistan.
The above discussion dearly shows that :
(а) The movement for the establishm ent o f Islamic State
has a glorious background and the Muslima* demand
and support for Pakistan was a part of that very
movement. e

(б) Tlio idea behind Pakistan haa been the establishm ent
of a country where Islamic State and Islamic aooiety
could be established .
(e) The leaders o f the movement made thia very promise
with the people whose support and unbounded
enthusiasm for the demand was motivated by thia very
Islamic nature o f the enterprise.*2

THE IDEOLOGICAL PROBLEM

The real objective behind the creation of Pakistan, aa we
have discussed earlier, was the establishm ent of a country
wherein the Islamic ideology could be implemented in its

. 1. Constituent Assembly of Pakistani Debs/se, Vol. V. p. 3. March 7, 1CH9

2. liore wu may also quote Prof. Sm ith who in hie book Pakistan ao an
Itlamio says s .
“ In the coie of Pakistan the whole rattan d'etre of the state is
Islam : it is Islam alone which holds it toguLhor." Wilfred C. Smith,
Pakitlan ae an Zelamic State, Lahore, 1964, p. 2d.
In his recent book I t lam in Modem H it lory, he says ; .
“It is this Islamic nature of the State (quit* i nd open debt of its form)
that explains the joyous and devoted loyalty that it initially aroused.
The establishmen t o f Pakistan was greeted by ita Muslim citizenry
with a resonant euihusiaeui, despite the ua baatrophic terror and chavs
— of its early months. Indeed, without the stam ina and morale goiiu-
■ rated by religious fervour, the now dominion would hardly have
survived tho day as tutious of its first disorders.’*. Wilfred C. Smith,
Itlam in Modern H U lory, op. «fr,“pT212.
 F
' , JMrorfaetkm W"-
entir ety. The support end the saorifioee of the peop le were
meant for thia obje ctive and for noth ing else. The natural
demand o f thia situa tion free that effective step s should have
been taken at the very outset to implement thia ideology. The
rapport and oo-operation of those people who could really
guid e the Governm ent in thia project should have been enlis ted.
Education, law, adm inistratio n, commerce and all other fields
of national life shou ld have been overhauled in the ligh t of
Islam ic principles and to make a beginning in this direction ,
constitution-mak ing should have been expedited and earn estly
carried on Islam ic lines . But, unfortunately, none of thes e
steps was take n.. The leadership failed to come to grips with
the ideo logical prob lem. It could not give a lead to the nation
in. this direction. It had fed the people on slogans, but when
the hour for the implementation came, it oould not deliv er the
. good s. It was from this situa tion that the ideo logical conflict
arose.
People waited for some time. But grad ually they began
to become restless. Protests and demands began to pour in;
Dissatisfactio n and even frustration began to mou nt. This was
the position of the peop le, bnt the rulers on the othe r hand,
instead o f responding to their call, started dilly -dallying tactics.
And as the leadership faile d to solv e even the non-ideological
problems, the confidence of the people was shaken to its roots. •
Their missionary zeal began to evap orat e—and the loss o f this
spir it has been the grea test loss which the nation has suffered
since independence.

Superficially, the oonfliot was o f a political nature. But

when one peeps beneath the surface one finds that it was
esse ntia lly an ideo logic al and a cultural conflict and can be
understood only in a wider perspective.
Alth ough the oontaot of Islam and the Western Civilization
began in the seventopotj^ century, it entered a crucial stage ;
only in the nine teen th and twen tieth centuries. In thes e later
periods the polit ical -supremacy of the Muslims was on the
■Wtoa,-. The Mailifli world iraa mqo limbing a t a ragtid pace ty
 18 The Mamie Law and OonstiiiUiea
the encroachments of Western imperialism. Under the
sheltering care of imperialism, Wostoru education and Western
technology were oreeping into the world of Islam. New ide#a
began to fill the a ir ; new techniques began to hold sway. These
things shook the old order to its roots. The Muslim world was
thrown into convulsion.
Two diametrically opposed reactions emerged in thia age of
crisis. One was that of undiluted conservatism and the other
of unbridled modernism. The conservatives sought refuge in
the asylum o f old tradition. They became rigid in their
outlook and approach. Every change, they thought, would be a
change for the worse. So, in their view, the only way to save
the Islamic law and culture, in that hour of chaos and confusion,
was to stick to the past stubbornly and guard the old order
jealously.
The modernists, on the other hand, were swept away with
the current of the time. They thought that the royal road to
glory lay in the imitation of the West, The Muslim revival, in
their view, could bo achieved only through adopting Western
technique, Western law, Western education. Western culture,
and Western modes of thought and behaviour. They saw no
contradiction between Islam and the modern West and pleaded
for the adoption of Western civilization so that Muslims could
*
also emerge as a progressive nation.
A third trend—that of the Henaissant Islam—had also
emerged and was gradually gaining strength. Its political and
emotional manifestations were becoming more and more
pronounced but lacked a proper intellectual formation which to
intents and all purposes was given by Iqbal and Maududi.
After independence, all these three trends beoainc more
clear and pronounced aud the ideological conflict was the
product of the basic attitudes formed by these different
approaches to the problem. The modernists inherited the reins
o f power from the erstwhile British rulers but these people
totally failed to underatahd the language of the people. This
gave birth to an ideological sohism, the role of Maududi, in
 • k_, ' • •

the conatitutional and political history o f Pakistan, lieein

bridging the gulf between the two extremes and in giving
classical Islamic thought a new formulation to suit the needs
o f the modern society.
. A
Careful reflection reveals that neither conservatism nor
modernism can deliver the goods.
The conservatist approach, represented by . the orthodox
ulama, is unrealistic. It fails to take note o f the fact that life
is everchanging. H istory is moving ahead and the society ia
being moulded into newer shapes. New situations are arising,
new relationships are being formed 'and new problems are
emerging* I t i« imperative to take note of this change and see
how the tenets o f Islam can be applied to these new conditions.
It would be futile to try to put a brake upon change. I t would
be still ’ more futile to ignore the change altogether and do
nothing to meet its demands. The approach which fails to
grapple with the problems of the day is bound to fail. I t
cannot but drive religion out of the flux o f life and confine it
to the sphere o f private life. And whpn an estrangement is
effected between religion and life, then even the private life
cannot remain religion’s preserves
Furthermore the conservative elements had not the full
understanding o f the constitutional, political, economic and
cultural problems o f the day. The result was .th at they could
not talk the language o f today and failed to impress the
intelligentsia and the masses alike. They were unable to give
a b ad in the new ideological situation. *
But in all fairness it must be said th at the conservative
elements did realise their weaknesses and tried to adopt
themselves to the movement of the Renaisaant Islam . A new
awakening had been among them and some sections from among
them had begun to gravitate to the middle course. They had
their lim itations, but they did try to adjust to the new
situation.
The modernist approach, on the other hand, has been still
shallow, unrealistic and unsuited to our firniditinn^
V
 to Tht Itlamic Law m 4 CoMiUwUon

This approach o f the so-called liberals is, in fact, not a

reform movement, bat a oloaked departure from Ialam. They
lack an understanding of Islam and try to import all their ideaa
and concepts from the West. But aa they arenot bold enough
to apeak their mind openly and frankly, they try to maintain
the Talamio terminology and twiat its meaning to unit their
ideaa. Even a leading Western critic of Islam, ^rofeasor Joseph
Schacht had to admit that what these ‘progressives' are driving
at is not Ialam, but the very antithesis o f it. He writes in a
reoent essay ■
“ The method used by the modernist legislators savours
of unrestrained eclecticism ; the ‘Independent reasoning*
that they claim goes far beyond and that was practised in
the formative period o f . Muhammadan law ; any opinion
held at some time in the past is likely to be taken out of
its context and used as an argument. On the one hand the
modernist, legislators are inclined to deny the religious
character of the oentral chapters of the sacred law ; on the
other, they are apt to use arbitrary and forced interpretations
of the Koran and traditions whenever it suite their purpose.
Materially, they are bold innovators who want to be
• modern at all costs ; formally they try to avoid the
semblanoe o f interfering with the essential contents or the
sacred law. Their ideals and their arguments come from
the West, but they do not wish to reject the sacred law
openly as Turkey has done”.1
We do not say that all modernists lacked sincerity. The
sincere among them have been many. Bqt they have failed to
r<\alise that the Islamic ideology is basically different from
Western secularism. Both have arisen out of different situations.'
The approach, the thought-pattern and the institutions of the
two are different. An imitation of the West, without realising
its implications in the Muslim East is bound to breed chaos and

I . Joseph Sohsoht, Tita Law, Unity and Variaty in Huatim UiviUtaiion,

Ed., fl. K. Von Grauebsam. University of Chicago Press, UMS, p. 83.
 confusion. It is ike fade o f reaiisatlM of the baafe fact which
made the creed of the modernists very much akin to Western
secularism and the results that their ideas failed to make any
deep inroad into the thought and life of the people.1
Secondly, they do not realise that the conditions in the
Muriith wofld today are essentially different from those that
prevailed in Europe during the periods of Renaissance and
Reformation. The history, the traditions, the politico-too) al
institutions and the cultural ,background o f Islam and the
modern West are totally different. In such a situation, how
can the secular Western institutions work in this part of the
w orld!
Thirdly, people here have no heart for the imitation of the
West. They want to have Islam and not Westernism. Their
experience of the West has been bitter. The West has
humiliated them, rode rough-shod over them, subjugated them
and trampled their culture underfoot.2 They have seen
Western imperialism and Western despotism in their stark
nakedness and do not want anything more from the West in
the realm of values, creed and culture. The modernists have
failed to evaluate this situation and are following a course that
1, “ One major difficulty for the politician is that hie Wee tern education
has set a'barrier between him and the common m an/A nd nowhere is
this barrier stronger than in the field of mutual understanding of the
significance of the religion.,, Pakistan is offered ’’t wo widely different
interpretation, of Islam , each claimed to be proper ideological basis
of the state. At one extreme the Islam of the politicians *and adminis­
trators comes very close to W estern secularism ...... ** Prof. Keith
Cal lard, Pakistan t A Political Study, London 1007, p. 280.
2. •‘In the encounter between the world aijdXhif W est that has been going
<’ig£>y now for four or five hundred years, the world, not the W est, is
party that, up to now, has had the significant experience. It has not
been the W est that has been hit by the world; i t is the world that has
been h it—and hit hard by tho W est......Vhe West (the world will say)
has been the aroh-aggreasor of the modern tim es. And certainly the
world’s judgement on the W est does seem to be justified over a
period of about four and a a half centuries ending i’n IStW.”
Arnold J. Toynbee, The. World and tJU West (Reith Lectures)
♦ London. 1$63, pj>. 14, *
 Mamie Law an t Cotutitntio*
on e is foredo om ed to failure. No t only tha t such a
policy is
bound to fail but it will also injure the soc iety in many
respect*.
For ins tan ce:
(а) Such a policy is incom patible with democracy, for
the
people do not oonsent to it. And if it is to be carried
out , it mu st be accompanied by despotism and high*
handedness.1
(б) Even if it is imposed from above, it will engender
a
social schism in the soc iety . The resources o f the
nation will be wasted in mutual conflict between the
rulers and the ruled and nothing great can be achieved
by a people divided aga inst themselves.
(c) It will lead to the disintegratio n of the com munit
y
and wil l throw the soc iety in moral confusion and
cultural convulsion. Islam is the moral basis of our
soc iety and culture and if it is weakened, the moral
basis of the soc iety will autom atically disintegrate.
Th e modernists hav e no realisation of all the se gra
ve
problems.
Fourthly, the mo dernists are utterly confused and the
ir
perspective is tot ally blurred. There is no agreem ent
among
them as to what the y wa nt and how they wa nt to ach iev
e tha t.
Ev ery bod y has his own interpretations and the diff
erences
am ongst them are so acute tha t no one agreed ideology
can be
formulated from the ir vie wp oin ts. Their mutual disagr
eements
hav e weakened their pos itio n beyond repair.
z
Lastly, the y hav e not proved good adm inistrators
and
politician s eith er. The adm inistra tion of the cou
ntry has
become more and more lax . Corruption has mounted
high.
The economy has been thr ow n into one crisis after the
other. •
Po litical ins tab ilit y has increased. Even respect for
law and
I. MIbelieve this is one of the rea son s why suc h law (i.e
Secular Law)
usu ally has to be put in firs t by a dic tato r. <It can not
com e in as a
mass mo vem ent because the ma sses are in the old trad
ition**.
Dr. Film er 8. C. Nor thr op, Colloqu ium on Isla mic
CuUuth
Prince ton U niv ers ity Pre ss, 1953, p. 109 ..
 Introfatton
................... M
%
the cosutitntioii of the country has dwindled to the lowest ebK
All those things and the way that they havo again and again
thrown to the winds the most sacred constitutional conventions
and modes o f doing things and tried to impose by force what
their people were not willing to accept through democratic
means, have further lowered the prestige o f the ideology they
want so much to impose. During the last few years all types
and brands of the modernists and all possible combinations o f
them have come to the helm of the country’a affairs and
proved an utter failure. Their pronouncements might be of
some value to a seotion of foreign observers, but they have
utterly failed to impress their people and sweep them* to their
side. Modernism has lost its shine and flavour. Tt is on the
decline here, there and everywhere and is bound to decline
further.1 As a matter o f fact, it is no answer to the ideological
challenge of our country. -
The creative response to the new challenge came from
Islamic revivalist forces, the mainspring o f whose guidance has
been Abul A'la Maududi.
The chief characteristics of this Renaissent approach are as
follows :
(a) The renaissance movement of Islam has as its objective
the establishment of the Islamic way o f life in its
entirety (Zgffma^e-din).
(5) It has a comprehensive scheme of reform and
reconstruction before it and has been influencing life
in every department. It is trying to reconstruct the
Muslim thought in the light of the Qur’an and Sunnah
and to meet the intellectual challenge o f the West.

1. “The W esternising middle class of Pakistan has failed to evolve a

successful ideology. I t has not succeeded in putting forward in this
realm anything winsome and feasible, eliciting the intellectual assent,
moral commitment, and constructive energy of its own members.
It has not persuaded the mosses that the programme m which it has
embarked is significantly related to their own convictions, aspirations,
is calculated to fulfil their hopes’1. Prof. Wilfred C. Smith, Iilam in
M odm History, op. eti., p. 238.
 Tltt Itiamte uni OtMUtMicn 1

I t I® trying io uplift the individu al and inspire in him

the original Islamic spirit. I t is trying to reform the
society end rebuild it on the Islamic pattern . I t is
trying to reconstruct the politica l life in accordance
with the principles given by God and H is Prophe t.
In short, it has been trying to mould the ideas o f the
people and the thought-pattern o f the country , to
educate the masses in the Islamic way o f life, to
mobilise their powers for social and politica l reforms,
and to create general consciousness to bring up a
leadership that can carry on the task o f Islam ic
transfo rmation in the country .
(c) I t has avoided the extreme s o f conservatism and
modernism. I t neither suffers from narrow-mindedness
nor from the inferior ity-com plex which engenders
servile im itation. The renaissance movement has been
moving ahead with self-con trol and self-confidence.
I t has a clear vision o f its objectiv e. I t does not
want to break away from glorious Islamic traditio ns.
I t wants to re-establish real Islam in the world o f the
twentie th century . I t presents the unadulterated
teachin gs o f Islam in the languag e o f to-day. I t is
trying to apply the principles of Islam to the problems
of our age and claims that Islam is capable of meeting
the challenge o f every age and epoch.
(d) I t has been a non-sectarian movement and instead of
looking upon the problems from the angle o f thia sector
or that one, it has looked upon them from a broader
angle o f vision and has avoided all sectarian prejudices.
Instead o f involvin g itself in petty trivials , it has been
\ devoted to the basic and fundam ental problems and
that is why the leaders of the various schools of,
thought have lent their support to it. This movement
has been nationa l in the real sense o f the word.
. (e) I t has adopted democr atic and constitu tional means to
organise the public opinion and bring about necessary
 Inlro fauf a* 35
pressure upon the rulets to concede to the people's
dem and. Public education and not viole nt agita tion,
free discussion and not civil disobedience, ballot and
not bullet have been its means of work,

i / ) There has been a uniformity of approach and unity of

thought among the leaders of this movement and on
ever y occasion they presented an agreed ideo logy . In
the Parliament1 and outside it- they presented the
same view poin t.-f They responded to the challenge of
the rulers that the ulama cannot give an agreed
concept of Islam ic State. In 1951 the leaders of all
the schools of Muslim thou ght unanimously formulated
the Basic Principles of an Islamic Stat e.3 In January
1953 again they almost unanimously presented their
com ments on the Nazimuddin Report.4 And in May,
I960 they unanimously formulated their answers to
the Questionnaire of tho Con stitu tion Commission.5
This shows tho unity of thought and uniformity of
approach of all tho reviv alist groups.
(y) The platform of the renaissance movement has becomo
the mee ting ground or more or less all the sincere and
enlighten ed sections of the coun try. Tho conserva tives
have slow ly but grad ually moved toward* it, and the
sincere from amongst tho modernists also are coming
closer to it. It is becoming tho natural yen'famous for
the extr eme groups. The conserva tives are becoming
less conserva tives , and some of the modern is ts are
becoming less modernist. A medium course is being
chalked out by tho renaissance forces of Islam.

!. Refer ence is to Mcmfana Shab bir A hm ed (TamotH, M.P.

2. i.e. the publi c m ovem ent o f Mtcv laiw M titidu di and Jsfaulnna A lber A li.
3. See A ppen dix I . .
4. See Appe ndix II .
: 5. See Answ ers to the Q uesti onna ire o f the C o n stitu tio n C om m ission
by 19 Ulam a of P ak istan , Laho re May, I960.
M T1U Mamie Xatr
The above analysis shows that as far as the ideological
problem is concerned, none but' the Rensissant Islam can deliver
the goods. Now let us see how the greatest popular movement
of the last twelve years—the movement for Islamic Constitution
—grew and developed and w hat’ leadership the renaissance
forces provided in this rcepeet.

MOVEMENT FOR ISLAMIC CONSTITUTION

As we have shown earlier, the present demand for the
establishment of the Islamic way of life has its roots very deep
in the history of Muslim India from the early days of
seventeenth century down to this day. The establishment o f
Pakistan has only added a new fervour and given a practical
orientation to it. That explains why the Muslims sacrificed
their hearths and homes and even their lives for the sake of
this homeland in the shape of Pakistan and regarded the dawn
of freedom as t ho dawn of a new Islamic era. Consequently,
as soon as the dust of civil disturbances had settled down and
the storm of refugee problem had subsided a bit, the question
of constitution-making came to the * forefront. With the
presentation of this problem the demand for Islamic
Constitution camo up instantly. Maulana Shabbir Ahmad
Utntani raised thfc issue in the Parliament. Maidans Abul A*la
Mavdudi approached the people, channelised the nation’s
feelings and aspirations m regards the objectives of the state
and formulated the public demand in the form of a fourpoint
formula. In February, 1948, he delivered an address at Law
College, Lahore and presented this demand which was later on
moulded in the form of a resolution which was passed by the
people and sent to the Governor-General, the Prime Minister
and the President of ths C >mtitaent Assembly, The resolution
was as follows : e
“ Whereas the overwhelming majority o f the citizens
of Pakistan firmly believes in the principles o f Islam ; and
 whereat the entire struggle end e ll the sacrifice® in the
freedom movement for Pakistan were for the sole purpose
of establishing these very Islamic principles in all fields of
our lif e :
Therefore now, after the establishment of Pakistan, we
the Muslims of Pakistan demand that the Constituent
Assembly should unequivocally declare :
(1) That the sovereignty o f the State of Pakistan vests
in God Almighty and that the Government of Pakis­
tan Bhall bo only an agent tn execute the Sovereign’s
W ill:
(2) That the Islamic Sharjah shall form the inviolable
basic code for all legislation in Pakistan ;
(3-) That all existing or future legislation which may
contravene, whether in letter or in spirit the Islamic
Shari'ah shall be null and void and be considered
ultra virt* of the Constitution ; and
(4) That the powers of the Government of Pakistan shall
be derived from, circumscribed by and exercised
within the limits o f Islamic Shari'ah alone A
As this demand reflected the deepest aspiration of the
people and represented theiT general will, there were echoea
soon from all corners of the country and the demand for the
acceptance of the Four Points spread like a wild fire. But the
power-drunk Westernised group at the helm of affairs refused
to respond to the call of the nation. In spite of all their demo­
cratic pretensions, they did not care a jot for the voice of the
people and cherished the illusion that by resort to methods of
suppression and imprisonment, they would cool down the popu­
lar enthusiasm. Jfaududi and some o f his colleagues were put
into jail. The Safety’ Act was moved against the newspapers
and journals which were very vocal in this campaign. But their
hopes proved deceptive, and w ithin* year of the initiation of
thia demand the Constituent Assembly had to paas the Objoct-

L Abul A'la Maududi, Mutalfra p. 8.

 Tkt Itlamie Law M l C n M w to a
fives Resolution which embodied all the pointe for which the
people o f Pakistan, with M aududi at their helm, had been pree-
sing—a "orime” for which Maududi had to rot for twenty
months in jail under the Punjab Public Safety Act—a law where
the imprisonment of & person is ordered by the Provincial
Executive without even letting him to know the charge against
him.
With the passing of the Objectives Resolution, the purpose
of the State of Pakistan was clearly defined and thus the first
round of the fight between the people and their rulers was won
by the people. After that, everybody hoped quite naturally
that Constitution-m aking would proceed smoothly. Unfor­
tunately, however, there was plenty o f frustration still in store
for the people.
When after waiting for an year and a half, the Basic Prin­
ciples Committee’s Report came to light in September 1950, the
people were surprised to find that it was a gross and flagrant
betrayal of the Objectives Resolution. They protested most
vehemently against this betrayal. JUaududi toiired the length
and breadth of West Pakistan to mobilise public opinion against
it. 1 The Jamia* t al Ulama e-Istam took up this woTk in East
Pakistan. And in a very short period such a huge storm of
opposition gathered on the political horizon that the report had
to be withdrawn—an event which forms a landmark in Pakistan’s
history. This meant the second defeat for the Westernised
ruling group.
Unfortunately, the ruling group did not take the defeat in
good grace, and, instead of mending its ways, it started a
campaign of blackmail and black-paint against the workers for
Islam and also against the very concept of Islamic polity. It
was alleged that there was such a severe conflict of opinions
among the different schools of Islamic thought that ho unanim­
ous version of Islamic Constitution was possible, and it was,
therefore, utopian to talk of the establishment of an Islamic
State.
1. See Datfuri S i fair that par tanqid<&tabtril> Labors, 1950.
 Obviously, it was &challenge to Islam* The Ulama took it
up and a Conference of renowned scholars of all schools of
Islam ic thou ght was convened in Karachi in January, 1951.
Within three days the Conference form ulated unanimously the
“Principles o f the la Iam io State* * in the form o f 22 Artic les and
brought to naug ht the alleg ation of the Westernised group.1 *
Then came a lull in the political arena. A full eighteen
months wore off and nobody ever heard during those days aven a
whisper abou t the Constitution* The peop le became impatient
and suspicion quite natu rally began to grow as regards the
intentions of the political leaders. Consequently, Mau dudi once
again stood up in May 1252 to voice the Muslims* sentiments.
He oriticiaed the dilly -dallying polic y o f the Constitution *
Makers and put forward his famo us dema nd that the Constitu­
tion should be framed before the end of 1952 and that it should
embody the follo wing eight poin ts :
1 (1) That
the Islam ic Shar jah shall form the law of the
land ; '
(2) That there shall be no suoh legis latio n as would con­
travene any of the dicta tes or principles of the
Shari* ah ;
(3) That all such laws as are in conflict with tho dictates
or the principles of the Shari'ah shall be abrogated ;
(4) That it shall be incum bent upon the State to eradi­
cate the vices which Islam wants to be eradicated
and to uphold and enforce the virtu es which Islam
requires to be upheld and enforced ;
(5) That none of the basio civic rights o f the people—
secur ity o f life and property, freedom of speech and
expression, and freedom of associatio n and movement
—shall be forfeited exce pt when a crime has been
proved in an open court of law after affording due .
opportunity of defence ;
(6) That the people shall have the rights to resort to a :
oourt of law again st transgressions on the part of .the
■ - 11
Bee Appe ndix I,. .
 30 TA* Zafamw Law and Contlitnlion
legislative or the executive machinery o f the State ;
(7} That the Jadioiary shall be immune from all inter*
. ferenoe from the E xecutive;
(8) That it shall be tho responsibility of the State to see
that no citizen remains unprovided for in respect o f
the basic necessities o f life, viz, food, clothing,
shelter, medical aid and education A
This demand was raised by people belonging to ail shades
of opinion. The voice grew* louder and louder and it was
echoed from every nook and corner ol the country. The result
was that KA. Nazim-ud-din t the then Prime Minister presented
the Basic Principles Committee Report in Deoember 1952. It
embodied most of the points of demand, but obviously not all of
them. A Convention o f the Muslim scholars, representing all
schools of thought, was again convened in Karachi in January
1953, and the Ulama decided to accept the report with certain
amendments unanimously formulated by them A
The nation took up the t/Tanta’j amendments and demanded
their acceptance.^ But the movement was just gathering
momentum when, like a bolt from the blue, came the sudden
removal of Natim-wLdin Ministry and the formation o f a new
Government under the premiership o f our ex-ambassador to
the U.S.A., Mr. Mohammad A li of Bogra.
•

1. Later on a ninth point about Q&di&tiis was also included in his

demand. This w -* done to direct in to co n stitu tio n a l channels the
growing public agitation for the declaration o f the Q adianis as a non­
M uslim m inority and to concentrate the en tire force o f the people on
the con stitu tion problem bo that the people m ay n ot be sidetracked
in to su b sid iary issu es as was the attem pt of the high-ups. The ninth
point was as follow s :
°T h a t the Qadianie sh ell be included in the li^t o f non*Muslim
m inorities and their Keats shall bo reserved according to their
population, through >cpiM‘ute electorate *.
2. See Appendix II .
3. M aududi again ex ten siv ely toured the country to m obilise public
opinion. For the historic spoocn he <nad^ on the occasion , Stic Abul
A ‘Ia Maududi, Ta* hr i h it. Supplem ent to OhirtHrh-s-Rah, Karachi;
Ju ly . 1953.
a • •
 St
With the adve nt o f the new Ministry the stun t of "Pro­
visio nal Constitution*’ was put forward, a reign of terror was
let loose and the workers of Islam were harassed, persecuted and
imprisoned? Desp ite all this show of tyra nny, however, the
tempo of the peop le’s dem and could not be slowed down.
Fina lly, the stun t of the Provisional Con stitu tion proved abor­
tive and the work o f fram ing a full-fledged Con stitution had to
be star ted. The deadlock oq "parity** between the two wings of
Pakistan was solv ed in the shape of Mohammad A li's formula,
which was adopted by the Con stitu ent Assembly. Most o f the
Viand* a amendments were incorporated in the Report during its
adoption by the Constituent Asse mbly, thou gh some of the
important ones were left out. The work progressed rapidly and
the Prim e Minister of Pakistan prom ised to give the country a
Con stitution by the end of 1954. Just at the last hour, how ­
ever, the Con stitu ent Assembly was disso lved , obvious! v to
•*
enable the Westerniats to frame a Con stitu tion of their choice.
Mav dudi and his lead ing supporters were already in jail.
Maududi was sentenced to death on the flim sy pret ext of writing
u pam phlet, nam ely, “The Qadiani Problem” , which itsel f was
never banned! All artifices were used to orush the movement for
Islamic Constitution and create confusion amongst the people,!
but to no avail.
Mau dudi had been put in jail in 1953 for fourteen years,
but the stru ggle went on. In 1955 the new Constituent Assembly
was formed and it again started the task of cons titution making.
The demand for Islamic Constitution again began to mount.
Mau dudi who was released in the spring of 1955 because of the
nullification of the very law under which he could be detained
in jail, now presented his detailed comments upon the draft Bill2
and mobilised the public opinion in favour of his plea. It was
in this context that Constitution of 1956 was formulated and
*aa piloted iji the Consembly by Ch- Muhammad A li the then
Prime Minister of Pakistan- It was a compromise document, but
I- Seo Aii Ahmad Khan, Yth Giriftwria* Kiun ? (Why ttieso arrests
; Kara chi 1951.
2. bee Appendix I I I .
 32 TA« JH aatic
0»e •h a w •• O o iu tiiu tia n

did incorporate the basic demands of the people and at least

* provided a good ground to stand upon and move ahead. All
sections of opinion welcomed it. 1 2 I t waa hoped that Pakistan
will now turn a new leaf in its political life.
But unfortunately those vested interests which were delay*
ing the framing of the Constitu tion now began to avoid its
implementation and tried to sabotage it from within. Two and
a half years passed and they did not even hold the first general
elections, much less implement it in its entirety . On the other
hand they tried every artifice to avoid its impleme ntation, And
at last it waa abrogated on 7th October, 1958 by the then
President Major General I dander M irza*
Now the country is once again trying to have a constitu tion.
This movement for Islamic Constitu tion has been a popular
movement. Thousands of meetings were held to ventilat e the
demand. Hundreds of processions were carried out in all the
major cities of the country. Millions of post-cards, letters and
telegrams were sent to the Prime Minister and the Speaker of
the Constituent Assembly in support of the demand. Hundreds
of deputations met the members of the Constituent Assembly.
The demand became so pressing and so widespread that the
rulers had to face it in every nook and corner of Pakista n.3
Thia movement is unique in certain respects :
Il was the first popular moveme nt in Pakistan and was
carried out on purely democratic lines. A very critical
moment came when certain political interests tried
to sabotag e it by fanning agitatio n on the Qadiani
1. For Maududi’s comment s on it see Appendix VI.
2. Abul A‘la Maududi, . Islamic Law and Cfmtiituiion, Ed. Khurshid
Ahmad. Karachi, 1955, p, 204.
3. Here it may be mentione d in passing that the English press, control*
led by the ultra-modern minority* totally boycotted this movemen t ond
did not even had the guta end conscienc e to report it. I f an idea of
th •_?ox tent and popularity of this movemen t ie to be xnado. res or i must
be had to the Crdu Preae, particul^ ly to The Daily ZruwMm, Lahore*
The Daily A'o&jtaa, Rawalpin di and Lahore, The Daily Tume&t
Rawalpin di. The Daily SluM az f Peshawar* The Doily Jung, Karachi,
The Daily Atyam* Karachi; and the Daily Paeban, Dacca.
 33 ■ .. .
Problem to overshadow this movement, but the leaders
of the movement very wisely added a new point (the
nin th point) to the demand and tried to canalise the
agit atio n on con stitutio nal lines. Although the y could
not fully succeed in tha t objective yet the movemont
for a? Isla mic Constitution continued io progress on
purely dem ocratic and con stitutio nal lines.
(d) It was unique tha t the inte rest of the masses was
aroused on such a wide scale on a debate abo ut con­
stit utio n. Perhaps it can be said withou t any fear of
contradiction tha t in no oth er country of the world
did the masses take so much inte rest in con stitutio n­
making, as was taken by them in Pak ista n.
(c) The movement was an educative movement and brought
the people nearer to.t hs Isla mic ideo logy , made them
understand its moaning and prepared them to aoh icve
it through sustained struggle.
(d) The dem ocratic tradition began to cry stallise in the
country,
(«) New lite ratu re was produced on the politic al and con­
stit utio nal tho ugh t of Klam and the Islamic concept
was presented with greater clar ity and precision.
In the present book our concern is ma inly with this last
point and we propose to present in it some of the best writings
produced in this period.

VI
ABOUT TH IS BOOK
Isla mic Law and Constitution is a collection of some of
those writings and speeches of Abu l A 9la Ma udu di which deal
with the political and con stit utio nal tho ugh t o f Isla m. Ma vdu di
is one of the lead ing thin ker s of the world of Isla
m and his
ideas have influenced a generation* It wou ld be of interest and
profit for all to see what he has to say on the problems and th e .
prospects of an Islamic Sta te.
The chie f contribution of Maududi is that ho has dev oted
 34 TAs Islam ic Law and Constitution

himself to the socio-politico-cu itural aspect of Islam and has

discussed those problems which the writers oa Islam were avoid*
ing for a long time in the recent p tst. He has tried to meet the
new intellectual challenge o f the West and has presented Islam
in the language of today. In political thoug ht,. his main con­
tribution it that he has uot only presented the teach ings of
Islam in a clear, precise, cogont and convincing way but has also
interpreted them for our times and has tried to suggest the form
which the Islam ic tenets can tako to crysta llise in the world of
twentieth, century. This has been a difficult task and he hat
come to grips with it in an admirable way.
The editor compiled some of his writing* ou law and con.
stitut ion in 1955 under the title of Islam ic Law and Cons titutio n!
The book was sold out within one year. It influenced the
thinking of the Pakistani intelligentsia and was again and again
referred to even in the Assembly debates and the party-meet­
ings. The need of the second editio n was pressing for a Jung
timo, but the edito r was so absorbed in other works that he
could not find out sufficient time to devote to this work. Ho
was eager to revise the book thoro ughly , because the first
edition was prepared while ho was a unive rsity student. He
was conscious of the drawbacks of translation and editing and
wanted to improve the book to tho best of his ability. He also
wanted to make many additions to it and thus make the volume
truly representative of Jfatufadi’s writings on political and con­
stitutional thoug ht. Now .he has tried to do the entire work
anew. The book has increased twofold in volume and ho hopes
that in the present form it will prove much more valuable to the
students of Islam ic political thoug ht.
The book is being presented with the hope that it will help
the people in understanding the concept of Islam ic Constitutio n
and of Islam ic State . A large number of our own people, who
have acquired modern Western education and who are not well­
versod in Is lam io literature, have not understood properly the
I f . Abul A*la A laudud i, frtzm tc L aw and C on stitu tion , K h u n h id A hm ad,
K arachi , p. 214.
 ■ . IttteodWtMH* ■ W
real nature and mea nin g o f tn Ielamio Conatitation. Many o f
them harbour fals e n o tio n abo ut Islamic polioy and ita practice.
Thia book can help them in grasping meaning of the Ialamic
Sta te.
Then, the ideo logical character o f Pak ista n baa aroused the
inte rest of foreign stud ents and scholars and the y are eager to
know wha t an Islamic Con stitution is. Thia book will enlighten
them on thia que stio n. »■

Moreover, throughout the Muslim world the re are move­

ments dem anding the esta blishm ent of the Isla mic Shari'ah ;
this book may act as a guid ing star to them .
■ It is hoped tha t thia book may serv e the abo ve outlined
purposes. A clarification is, however, needed at this stage,
Isla mic Law and Con stitu tion is a collection of some of tho se
writings and speeches of Abul A ‘la Ma udu di which throw ligh t
on the problems of Isla mic law and pol ity. The essays were
penned from tim e to tim e and the speeches were delivered on
different occasions and before different typ es o f audiences,
ranging from the uneducated masses to select gath erin gs of
lawyers, legists and stud ents. In spite of tha t, how ever, &
common thread tuns through them al! and link s them into a
unity of purpose.* The reader may find som e rep etition here
or there but tha t is quite natural in a work of this kin d.
In the preparation of thia book several persons have helped
me and I am thankful to them all for the ir labour o f love, I
am particularly indebted to Maulana Zafar Ahm ad Ans ari, for­
mer Secretary, Board o f Taleem at-e Jsla mia h, Con stituen t As­
sembly. Pak ista n, Mr. Zafar Ishaq Ans ari. Lecturer in Islamic
History . Univer sity o f Karachi and Khw aja Abd ul Vahsed.
Editor, AL Islam. Karachi, for the immense assistan ce they pro­
vided me ia tran slating and rev isin g the manuscript. My thanks
are also due to my brothers Ania Ahamad and Saj jad
for checking the references and ver ifying the quo tations from
the Qur'an. Mr, Sha hza d Muhammad typ ed ungrudgingly my
badly written manuscript again and aga in. I most also confess
tha t the book is seei ng the ligh t of the day only because of the
 The Islam ic Law and Ooiwiituiicn
never-failing endeavour of Chaudhri Ghulam Muhamm ad Sahib
who hae been the main source of stim ulus and encouragement. *'
The book is being presented with the sole purpose of dis*
seminating the view -point of Islam before a world torn by con­
flicts and deva state d by wars. Let it be hoped that it will be
f
reoeived with out any bias.

/ , New Queens Road KHURSH ID AHMAD

Kara chi, 14th July , I960
 PART I
f

ASPECTS OF ISLAMIC LAW

 Chapter 1

THE ISLAMIC LAW

m id ni gh t, on A ug us t 14 , 1947, when
At th e stroke of rn in to ex is ­
, P ak is ta n w as bo
the world w w asleep e es ta ­
m el an d of Is la m . B u t th
tence—Pakistan the ho m ained a
ed ge d Is la m ic so ci et y re
blishment of a full-fl with ha rd ­
us e th e re ad w as st re w n
distant hope, beca
e ri dd le d w it h m an y a se ri ou s m isun ­
ships. Minds wer
co nf us io n. W ha t, in fa ct , is Islam ic
derstanding and
pr ac ti ca bl e in th e tw en tieth ce n tu ry !
la w ! Is it
m ar m at er ia l pr og re ss 1 Such and th e
Would it n ot r modern
di st ur bi ng m an y o f ou
like questions were th e im ­
fa vl an a J/ au du di re al is ed
educated people, Jl
th es e qu es ti on s an d di d n ot h es it at e to
portance of
an d tA us re fu te th e m is taken n otio n s of
■answer them ch on th e
’. H e de liv er ed a sp ee
the ‘educated folk
Ja nu ar y 6, 19 48 at th e Law College,
Islamic L aw on o f Is la m ic Law.
te d th e re al na tu re
. Lahore, and delinea f th at speech.
th e E ng lis h re nd er in g o
®he follow in g is
—E dito r.
 THE ISLAMIC LAW
I
hia an irony of fate th at, now -adavs, the demand for the
T enforcement of Islamic Law has become surrounded by such
a thick m ist of *misgivings th at a mere reference to •it, even in a
•
Jfw h w cown/ry like P akistan, raises a storm of criticism. T hw ,
for instance, the questions are aj-ked : Can a centuries-old legal
system bo adequate to fulfil the requirements of our modern
state and society ? Is it not absurd to think th at the taw .
which had been framed under certain particular circumstances
in by-gene days, can hold goed in every ago end every clime ?
Do you seriously propose to sta rt chopping off the hands of
thieves and flogging human beings in this modern, enlightened
age ? Will our m arkets again abound in slaves and deal in the
sale ard purchase of human beings as chattels and playthings 1
Which particular sect’s legal system is going to be introduced
hero ? W hat about the non-Muslim m inorities who will Dever
tolerate ‘the dominance of the Muslim religious law apd will
resist it with all the force a t their command ? One has to face
a volley of such questions while discussing the problem, and,
strangely enough, not from non-Muslims but from the Muslim
educated elite I
To be sure, these questions are not the outcome of any an­
tagonism towards Islam but mostly of sheer ignorance which
m ust quite naturally breed suspicion. And to our u tte r misfor­
tune. ignorance abounds in our ranks. We have people who are
otherwise educated but who know practically nothing about
their great ideology and their glorious heritage. No wonder,
then, th a t they labour under strong prejudices.
This state of degradation, however, has n o t come as a bolt
from the blue*: it is, rather, the culmination of a gradual process
of decay spread over many centuries. Commencing with stagna­
tion in the domains of knowlege and learning, research and dis- :
covpiy end tl c u g lt and cvltuie, it finally culminated in OUT
 *•

a WMutay the
V

: o f non-Hijflijn power®. Political ®!av<sry gave birth i

to a s i^criority-coniplex and the resultant intellectual sarfitom
eventually swept the entire Muslim world off its feet, so
so that even those Muslim countries w|^ch were able to retain .
their political freedom could not escape its evil infiuence. The
ultimate consequence of, this evil situation w m that when
Muslims woke up again to the ©all of progress, they were inoap-
*bje*<rf- looking at things except through the coloured glasses o f ;
Western Thought. Nothing which was not Western could !
inspire confidence in them. Indeed, the adoption of Western ;
Culture and Civilization and aping the West even in th® moat
personal things became their craze. Eventually, they succumbed
totally to the slavery of the West.
This trend towards Westernism was also the result o f the .
disappointment which came to the nation from the side of the
Muslim religious leaders. Being themselves the victims of the
wido-spread degeneration that had engulfed the entire Muslim
world they were incapable of initiating any constructive move­
ment or taking any revolutionary step which could combat the
evils afflicting the Muslim society. Quite naturally, this dis-^
appointment* turned the discontented Muslims towards that
: system o f life which bad the glamour of being successful in the
modern world. Thus they succumbed to the onslaughts of
modern thought, adopted the new culture o f the West and began
to ape blindly Western modes and manners. Gradually, the
religious leaders were pushed into the background and were
replaced, as regards power and control ovor the people, by men
bereft o f all knowledge o f their religion and imbued only with
the spirit of modern thought and Western ideals. This is why. we
find that many a Muslim country has, in the recent past, either
completely abrogated the Islamic Law or* confined its operation
to the domain of purely personal matters only—that is, a posi­
tion conferred on the non-Muslims in a truly Islamic State.1
1. The ffrwt country where the abrogation of Islamic L aw started was India,
although the 5 harfa Acontinued ireforce long after the British hadoome
[COflftf,
jit fttanfc Xow wM
Tn all thoae Mnalim conntriw, which roffered from foreign
domination, the leadership o f political and cultural movemen
J r t, r a

fell into the hands of those who w an shorn o f all Islamic back­
ground. They adopted the creed o f Nationalism, directed their
efforts towards the cause o f national independence and pros­
perity along secular lines and tried to copy, step by atop, the
advanced nations of thia age. Consequently if these gentlemen
feel vexed With the demand for Islamic Constitution and Islamic
'Laws, it is quite natural for them. It is also natural for them
to tidetrack or suppress the issue, as they are ignorant of even
the A*B C. of the Islamic Shari*ah. Their education and intelle­
ctual development has alienated them ao completely from the
spirit and the structure of IelamiaJd eoIogy that it is, at least
for the moment, very difficult ior-Hhem to understand suoh
da mands.
As regards the Muslim religious leadership, it has in no
way fared bettor, because our religious institution s are tried to
the intellectual atmosphere of^the fifth oentury A.H ,r as a
consoquence of which they have not been able to produce such
into power. So much so that the penalty o f severing the hand of habi­
tually hardened thief was awarded as late m 17&1 A.D. Thereafter the
process of suppression began till at last by the middle of the nineteenth
century; the whole of the •Short'ah had been abrogated, excepting of
course injunctions regarding; purely personal matters like marriage,
divorce, eto. Other states where Muslims them selvds were in power,
took their cue from the Muslims o f India and the leading pare in this
- transition was taken by the Muslim N ative States of India. In 1884,
Egypt changed over her own laws to Code Napoleon leaving only matter
of divorce, marriage an inheritance to the jurisdiction o f the QadU,
In the twentieth century Turkey and Albania took a further lead over
their fellow Muslim states and not only proclaimed themselves to be
completely secular States and not only proclaimed themselves to be
pattern of those of Italy, Franca, Sw itzerland and Germany, making
such inroads on Muslim personal law itself as no non-Muslim state
would dare do. Albania led the wgy by penalizing polygamy and Turkey
followed her by changing the mandatory provisions of the H oly Qur'an
in respect o f divorce and inheri taboo. There now remain only
Afghanista n and Saudi Arabia where the Shari*ah ie accepted ae the
State Law though even there the spirit o f the Shari'ah has long sinoe
disappeared and the whole of Shari1ah too is not being enforced.
 T*e ta r L’
43
leaders o f Islamic thought atfd action m could be capable of
administering the affairs o f a modern state in the light o f Islamic
principles. This is the situation prevail ling throughout the
Muslim world and is, indeed, a very real obstacle facing the
Islamic countries in their march towards the goal of Islamic
rmuussance.
Notwithstanding certain similarities, the case of Pakistan is
not, however, the same as that of other Muslim countries. This
is so because it has been achieved exclusively with the objeot of
becoming the homeland o f Islam. For the last ten 1 years, we
have been ceaselessly fighting for the recognition o f the fact
that we are a separate nation by virtue of our adherence to
Islam. We have been proclaiming from house-tops that we
have a distinct culture of our own, and that we possess a world
view, an outlook on life and a code of living fundamentally
different from those o f non-Muslim^ We have all along been
demanding a separate homeland for the purpose of translating
info practice the ideals envisaged by Islam, and at least, after
a long and arduous struggle, in which we sustained a heavy
loss of life and property and Buffered deep humiliation in respect
of the honour and chastity of a large number o f our womenfolk,
we have succeeded in attaining our cherished goal—this country
of Pakistan. If, now, after all these precious sacrifices, we fail
to achieve the real and ultimate objective of making Islam a
practical, social, political and constitutional rea lity * live force
to fashion all facets o f our life, our entire struggle and all our
sacrifices become futile and meaningless.
Indeed, if instead of an Islamic, a secular and Godless Con­
stitution was to be introduced, and if instead of the Islamic '
Skari‘a&, the British Civil and Criminal Procedure Codes had to
be enforced, what was the sense in all this struggle for a
separate Muslim homeland ? We could have had them without
that. Similarly, if we simply intended to implement any
*<>cialistie programme, we could have done so in collaboration
^_wjth the Communist and the Socialist parties of India without
*♦ Remember that this speech was delivered in 1948— Editor,
44 T in Itlxm ic and atMMfitwfikm ’ '
" ••* *
plunging the nation into thia grant bloodbath and mtybty
ordeal. - *3
The fiot ia that we are already'committed before God. Man i
and History for the promulgation of Islamic Constitution and-
the introduction of Islamic way of life in this country and no 1
going hack on our words is possible. Whatever the hurdles and •;
howsoever great they may be, we have to continue our march
towards our goal of a full-fledged Islamic 8tate in Pakistan .

No doubt, there do exist many hardships and difficulties in

the way of achieving this goal. But what great goal can be or
has ever been achieved without facing difficulties boldly and
intelligen tly 1 And I must emphatically say that the difficulties
which impede our way are in no way insurmountable. Indeed,
none of them is real exoept the difficulty that many among
those who hold the reins of power are devoid of faith in the
efficacy of the Islamic ideology which, in its turn, is not due
to any defeot in Islam but is purely a product o f their own gross
ignorance of the Islamic teachings.
The first teak, therefore, is to explain to our educated
people the meaning and the implications of Islamic law,—its
objectives, its spirit, its structure, and its categorical and ■
unchangeable injunctions along with the reasons for their per­
manence. They should also be informed o f the dynamic element
of Islamio Law and how it guarantees the fulfilment of the ever*
increasing needs of progressive human society in every age.
Then, they should be enlightened in rogard to the rational •
foundations of the 5Aari‘uft. Finally it is also needed to expose
the hollowness of the vituperative oritioism s against Islam and <
to remove thereby the fog of misunderstandin gs that shroud the J
issue. I f once we succeed in accomplishing this task and coo-J
sequently gaining th? support of Muslim intelligen tsia, we will?
pave the way for the establish ment of an Islamic state and the§
creation of an Islamio society in Pakistan . It is with thil?
intention that I am making this speech before the students of
r
the Law College.
 LAW AND LIFE
The term “L aw ” bears reference to the qu ery
: “What
should be tbe conduct of man l» bls IndivMaal and col
lective life?**
The qoery prteente its elf Id ua in connection with
innumerable
matters. Hence its reply covers a very wide ran
ge of topics,
wider tha n what the term “Law” tec hn ica lly sig
nifies. It in­
cludes our sys tem of education an d tra ining in
the lig ht of
which we str ive to mould the character o f ind
9 ivi du als ; it
comprehends our social sys tem which regulates
our social
relationships ; it encom passes our economic order
• * 4

• .
•
Recording to
wh ■ich •we formulate the principles of production,• dis tribu tio n
“

and exchange of wealth. Thus we possess a va •

st system of
rules which determ ine our conduct in va rio us
walks of life.
Technically speaking, all the se acts of rules are no
t “L aw ”.
The term “Law" is techn ically applied only to suo
h of the
rules as are enforceable by the the coercive power
of the State.
But, ob vio usly, no one who wants to understand
the m, can
afford to confine his atten tio n to the m alone. He
mu st take
into consideration the entire scheme of moral and
sooial gu id­
ance prescribed by a particular ide olo gy , becau
se it is only
then tha t'h e will be able to appreciate the spi rit
and ob jec tiv es
of the “ Law” and to form a critical opinion ab ou
t its merits
and dem erits.
It should no t be difficult to understand tha t the
principles
we recommend relating to a particular system o f
life are basi­
cally derived from and are de ep ly influenced by ou
r conceptions
about the ends of human life and by our no tio ns
•— o f rig ht and
w ron •
g» good and evil and justic e and injustioe. Conse
quently,
the nature o f a legal sys tem depends en tir ely upon
the source
or sources from which it is de riv ed . Th us, the dif
ferences dis-
oernible in the legal and soc ial sys tem s o f different
soc ieties are
mainly due to the differences of the ir sources of
gu idance and
inspiration. *
Th is means tha t unless we are prepared to take
int o con­
sideration the origin s and the background of the
whole system
 T ie ZriMUo I m in ti G aiyt ilvli o*
•
o f life and o f the eooiety which i t brings into existono o and to
appreciate the com plete process o f the dev elop men t o f that
system and the evolutio n of that society? we will not be able to
und erstand , much less to criticise on any rationa l bas k, the
mandatory lega l pro visio ns of the syst em—espe cially when our :
knowledge of those pro visio ns oonsista, in the main, o f hearsay
and conjecture,
. . I do feel that a com parative critical stud y of the Islamic
and the Western system o f life would be the beat way to ex*
plain and elucidate my view poin t. If the differences between
the original sources and the basic postulates of both the syst ems
are kep t in mind! radically different schemes of life that both
env isag e can be easily und erstood . But the pau city o f time
at my disposal does not perm it such a digression, and conse­
quently, I shall confine myself, at present, to the exp osition of
the Isla mic Sha rjah only .
Sources of the Islamic System of Life
The first source o f the Islamic system of life is a book, or to
be more exac t, “ The Boo k1’. The world received several
edit ions o f it under the title s o f the Old Testament, the New
Testament, the Pris ms, eta., the last and the final edit ion being
the one presented to mankind under the nam e of the Qzir'd*.
' The second source of this syst em are the persons to whom
the different edit ions of the Boo k were revealed and who , by
their preachings and their cond uct, interpreted them to the
people. As different personalities, they bore the names of Noah,
Abraham, Moses, Joans and Muhammad (peace be on them all)
r.T»ii
- 4

but as the bearers and upholders o f the same mission o f life,

all stand under the general title of “The Mewengor”.
The Islamic Concept of Life
The view of life whioh Isla m has presented is that this
universe of ours, which follows a set oourse of law and funs-',
tion s according to an inte llige nt and well-laid-out plan is hr
reality the Kingdom of the Ono God—A llah- It is He Who -
created it. It is. Ho Who owns it. It is Ho Who gov erns i t
The earth on whioh we live is juft a small part—a province—
 our tdre *—!.»■> we hum an beiug*—we are noth ing more U m
a ig “ born subject*” . I t to H e Who oreated » , sus taiM us and
0*0*68 ns tp lire . Henoe, ever y not ion o f our oiio ltf* imieptn-
genet to not hin g but a eheer deception and miajadgement. God
oontrole every fibre of our being and none can escape Hie grip.
Eve ry thin king min d to aware of the fact that a very large
sector of our life ia governed and directly controlled by a High
;
Power and with woh abeolntencM tha t wo are practically help.
,^ 7 in resp ect of it. From the tim e we are con ceiv ed in the
wombs of our mothers till the mom ent we breathe our laat, we
are sub ject to God’* inexorable Law* o f Nature to such an exte nt
tha t we can not claim to be free from their control even for a
sing le mom ent.
Of cou rse there is ano ther sphere o f our life in whioh we
possess a certain amount of freedom. Thia ia the moral and
social sphere of life in which we are bestowed with a free-will
and independence of ohoioe in respect of individu al as well as
collective affaire and behaviour. But this independence can
hardly just ify our rejection of the Guidance of our Creator and
His Law s. It is only to give us a ehoioe leading our live s as the
obedient sub jects of God—an attitud e con sistent with the real
order of thio ga—or o f being diaregardful of His commandments
and thu s rebel aga inst Him and our true nature.
A
Obv iously, to the faithfu l, the Guidanoe and Law of God is
the true st and most con siste nt atti tud e for mankind . It sets the
standard for the ord erly behaviour of man both individu ally
add coll ecti vely and in respect of the bigg est as well as the
smallest task he may hav e to face. Having once aooeptbd the
philosophy of life enu nciated by “ Book” and “ The Hesseug er”
as the emb odim ent o f Rea lity , one has no justifica tion for not
obeying God’s revealed Guidance in the sphere of ope choice
also. Indeed, it is bat ratiodhl tha t we should adm it God's
sovereignty in this sphere as well just as we are perforce doin g
in the dom ain of our phy sios ! life. And this for several
<8 T*s Jthmris 4wd OoMlitidion
Firstly, the power and the organa through which our free­
will functions, are gifts from God and not the result o f ohr
own efforts.
Secondly, the independence of ohoioe itself has been delegat­
ed to ua by God and not by us through our personal endeavour.
Thirdly, all those things in which our free-will operates are
not only the property but also the oreation of God.
Fourthly, the territory in which we exercise our indepen­
dence and freedom is also the territory of God.
Fifthly, the harmonisation of human life with the universe
dictates the necessity of there being one Sovereign and a common
Souroa or law for both the spheres of human activity—tho
voluntary and the involuntary, or in other words the moral and
the physical. The separation of these two spheres into water­
tight compartments led to the creation o f an irreconcilable con­
flict which finally.lands not only the individuals but even
biggest nations in endless trouble and disaster.
The Final Book o f God and the Final Messenger stand
today as the repositories of this truth, and they invite the
whole of humanity to accept it freely and without compulsion.
God Almighty has endowed man with free-will in the moral
domain, and it is to this free-will that this acceptance bears
reference. Consequently, it is always an act of volition and not
of compulsion. Whosoever agrees that the concept o f Reality
stated by the Roly Prophet and the Holy Book is true, it is for
him to step forward and surrender his will to the will o f God.
It is this submission which is called 'Islam' and those who do
so i.e„ those who of their own free-will aooept God as their
Sovereign and surrender to His Divine will and undertake to
regulate their lives in accordance with His comthandments are
called 'Jfiulim s’;
All those persons who thus surrender themselves to the will
o f God ate welded into a community and that how the "Muslim
Society" comee into being. Thus, this is an ideological society
—a society radically different from those which spring from
accidents of races, colour o f country. This society is the result
 * . - .• • • • . • ; .• •

o f a deHberate choice and effort ; it is the outcome of i w ion-

tract” which take* place between human being* and theie Crea­
tor. Those who enter into thia contract undertake to recognise
God as their Sovereign,Hia Guidance aa supreme, and His inj a no­
tion* aa absolute law. They alao undertake to accept, without
question, or doubt, Hie claaei&oation o f Good and Bril, Right
and Wrong, the Permissible and Prohibited. In short, the
Islamic society agrees to lim it it* volition to the extent pre­
scribed by the All-Knowing God. In other words, Wt* God and
not Man-whoee will i» IAe Source of Law in a Muslim Society.
When such a Society come* into existence, the Book and the
Messenger prescribe for it a coda of life called' Shori'ak, and
this society is bound to conform to i t by virtue o f the ooatract
into which it has entered. It is, therefore, inconceivable that
any Muslim Society worth the name oan deliberately adopt a
system o f life other than the Skari'ai. If it does co, it* con­
tract is automatically broken and the whole society becomes
"un-Islaraic”.
But we fnust clearly distinguish between the everyday aim
o f individuals and a deliberate revolt against the Shari'ah. The
former may not imply breaking the contract, while the latter
would mean nothing les*. The point that should be clearly under­
stood here is that if an Islamic society consciously resolves not
to aacept the Shariah and decides to enact it* own constitution
and laws or borrow them from any other souroe in disregard
of the Shariah suoh a society breaks it* oontract with God and
forfeits its right to be called 'Islamic’.
1 1 1

THE OBJECTIVES AND CHARACTERISTICS

OF THE SHARJAH
Lot us now proceed to under* t a nd the scheme of life euvi-
aaged by the S h irr ah. To undepUnd that, it if euentiftl that
we should start with a oIoac oom eptiin of the Objeottvee and
the Fundamentals of the Skarr ah.
SO TJte ItH&ric Xav aim )

The main objecdve o f the Shari'ah is f o constract human

life on the basis o f Jfa'rn/bt (virtues) and to cleanse it of the;
Af unkarat (vioes). The term Jfa'rv/o/, denotes all the virtues

the human conscience. Conversely Munkarat denotes all the

sins and evils that have always been condemned by human
nature as “ evil”. In short, the Ma'rufat are in harmony with
human nature and its requirements in general and the Munkarat,
are just the opposite. The SAari'oA gives a clear view of these
J/aru/ai and Munbarat and states them as the norms to which
the individua l and Booial behaviour should conform.
The Shari'ah does not, however, limit its function to provid­
ing us with art inventory of virtues and vices ; it lays dowh the
entire scheme of life in such a manner that virtues may flourish
and vices may not contaminate human life.
To achieve this end Shari'afc has embraced in its scheme
all the factors th i t encourag e the growth of good and hag recom­
mended steps for the removal of impediments that might pre'
vent its growth and developm ent. This process gives rise to a
subsidiary series of Ma'rufal consisting of the causes and means
initiating and nurturing the good and further of Ma'rufat consist­
ing of prohibitions of preventiv es to good. Similarly there is
subsidiary list of Munkaral which might initiate or ijllow
growth of evil.
The shapes the Islamio society in a way conducive
to the unfettered growth of good, virtue and truth in every
sphere of human activity, and gives full play to the forces of
good in ail directions. And at the same time it removes all
impediments in the path of virtue. Alongwith it, this attempts
to eradicate evil from its sooial scheme by prohibiting vice, by
obviating the causes o f its appoaranoe and growth, by closing
the inlets through which it creeps into sooiety and by adopting
di derent measures to check its occurrence.
Msnrfat .
The Shari*ah olaMifiea Jfa’ru/at into three categories :
The Mandatory (J’ard and JFajift)
 . Tibs Iriaww w
The Recommendatory (Mailaty, and
The Permissible (Jfttbah).
The observance o f the mandatory (AfaVuM ) is obligatory
on ■ Muslim society end the Shari'ah has given cleat and bind-
jng directions about them. The recommendatory (Ma'rvfatj are
those which the SAari'ah wants that a Muslim sooiety should
observe and practise. Some o f them have been clearly demanded
o f us while others have been recommended by implication and
' deduction from the Sayings of the H oly Prophet (peace be upon
him). Besides this, special arrangements have been made for
the growth and encouragement of some o f them in the scheme o f
life enunciated by the Shari'ah. Others still have simply been
recommended by the Shari'ah, leaving it to the sooiety or to its
more virtuous elements to look to their promotion.
This leaves u* with the permissible M a'rvfat. Strictly
speaking, according to the Shari'ah everything which has not
been expressly prohibited by it is a permissible M a'rvfat. I t is-
not at all necessary that an express permission should exist
about it or that it should have been expressly left to our choice.
Consequently the sphere o f permissible M a'ntfal la very wide,
so much so th at except for a few things specifically prohibited '
by the Shari'ah, everything is permissible for a Muslim, And
this is exactly the sphere where we have been given freedom
and where we can legislate according to our discretion, to suit
the requirements of our age and conditions.
Maskers t
The Jfa n ia ro i (or the things prohibited in Islam) have been
grouped into two categories : Haram (i-e.f those things which
have been prohibited absolutely) and Mahr ah (i,e., those things
which have been simply disliked). I t has been enjoined on
Muslims by clear and mandatory injunctions to refrain totally
from everything that has been declared Haram. A s for the
Makrahal the Shari ‘ah signifies its dislike in some way or tho
other, i.e ., either expressly or by implication also as to the
degree o f such dislike. For example there are,come Makrahot
bordering on Haram, while others btar affinity with the sots ,
 62 TAe Islamic Law ami OomalitmUom
which ure permisiiblo. O f course, their namber l t very large
ranging between the two extremes of prohibitory and perriiissible
actions. Moreover, in some oases explicit meawrss have,been
prescribed by the Shari'ah for the prevention o f JfetruAoi.
while in others such arrangements have been left to the dis­
cretion of the society or to the individual.
The Characteristic o f the Shari'ah
a

The Shari'dh thus prescribe* directives for the regulation o f

oar individual as well as collective life These directives touch
such varied subjects as religious rituals, personal character,
morals, habits, family relationships, social and economic affairs,
administration, rights, and duties of citizens, judicial system,
laws of war and peace and international reliations. In short, it
embraces all the various departments of human life. These
directives reveal what is good and bad, what is beneficial and
useful and what is injurious and harmful, what are the virtues
which we have to cultivate and encourage and what are the
evils which we have to suppress and guard against, what is the
sphere of our voluntary, untrammelled, personal and social
action and what are its limits, and finally, what ways and
means we can adopt in establishing such a dynamic order of
society and what methods we should spurn. The BharVah is a
complete scheme of life and an all-embracing social order where
nothing is superfluous, and nothing is lacking.
Another remarkable fact about the Shari*a A is that it is an
organic whole. The entire scheme o f life propounded by Islam
is animated by the same spirit and hence any arbitrary division
o f the scheme is bound to harm the spirit as well as the structure
of the Shari ah. In thia respeot it might be compared to the
human body which is au organic whole, A leg pulled out of the
body cannot be called one-eighth or one-sixth man, because after
its separation from the living human body, the leg can no more
perform its human function. Nor can it ba placed in the body
of some other animal with any hope 4>f making it human to the
extent of the limb. Likewise, we oannot form a correct opinion
about the utility, effliiency and beauty of the hand, the eye or
 ■::-.r Tie • -W
$he nose o f • human being separately, wjthcwl Jadgfogtee ph*B
and function within a living body. • ••■<•.?«;?-
The eame can be based in regard to the scheme o f life effri*
flgged by the Shari'ah. Islam signifies the entire scheme o f life
and not any isolated part or parts thereof. Cenaoqaently,
neither can it be appropriate to view the different parte of the
Skari'ah in isolation from one another and without regard to the
whole, nor will it bo o f any use to take any particular part and
bracket it with any other “ ism” , The SAori'oA can function
smoothly and can demonstrate its efficacy only if the entire
system of life is practised in accordance with it and not other­
wise.
Many of the present-day misunderstandings about the
Shari*ah owe themselves to this faulty attitude in judging its
worth, namely, forming opinions about its different aspects
separately. Some injunctions o f it are isolated from the main
body o f the Islamic Laws and thon they are considered in the
prospective of modern civilization, or they are viewed as if they
were eomething completely Self-contained. Thus, people take
just one injunction of the Shari*ah at random, which becomes
maimed after its removal from the context, view it in the con­
text of some modern legal system, and criticise it on the score
of its incongruity with present-day conceptions. But they fail
to realise that it was never meant to be isolated for it forms an
organic part of a distinct and self-contained system of life.
There are some people who take a few provisions o f the
Islamic Penal Code out o f their context and jeer at them. But
they do not realize that those provisions are to be viewed with
the background of the whole Islamic system o f life covering the
economic, social, political and educational spheres of activity.
If all these departments are not working, then those isolated
provisions o f our Penal Code can certainly work no miracles.
For example, we all know that Islam imposes the penalty
of amputating the hand for the commitment of theft. But this
injunction is meant to be promulgated in a full-fledged Islamic
society wherein the wealthy pay Z tkal to the state and the
•tate provides for the basic necessities o f the needy and the
I.
 M Tim M am k Zm p «w4 CtoMfiMfca
'
> • • .•
- . * ’**. • •
•
• •’ • '
des titu te; wherein eve ry tow nsh ip is enjoin ed to pla y h«wt
to
visitors at its awn expense for a min imv ia period of three day
s;
wherein all citizen s are provided with equal -pr ivilege s and
opportunities to seek economic live liho od; wherein monopolis
tic
tendencies are discouraged ; wherein peo ple are God-fearin
g
and seek His pleasure with dev otio n ; wherein the vir tue s
of
generosity, helping the poor, tre atin g the sick , pro vid ing
for
the needy prevail to the extent tha t eve n a small boy is ma
de
to realize tha t he is not a true Muslim if he allo ws
his
neighbour to sleep hungry wh ile he has taken his meal.
In
other words, it is not meant for the present-day soc iety whe
re
you cannot got a sin gle penny wit hou t hav ing to pay in ter est
;
where in place of Xai tvl Ha l there are imp lica ble money-lender
s
and banks which, instea d of pro vid ing relief and suoeour
to
the poor and the nee dy, tre at them wit h callous disrega
rd,
heartless refusal and brutal con tem pt; where the guidin
g
motto is : “Everybody for him self and dev il tak es
the
hindmost” ; where the re are great privileges for the privile ged
ones while others are deprived eve n o f the ir leg itim ate righ
ts ;
where the economic sys tem , propelled by greed and pilo ted
exploitation, only leads to the enrichment of the few at the cos by
t
of .crushing pov erty and into lera ble misery o f the many, and
where the political system serves only to prop up inju stic
e,
class-privileges and distressing economio dispar itie s. Un
der
such conditions, it is doubtful i f the ft should be penalised
at
all, not to speak of cutting off the thi ef’s hands I Because
to
do so would, as a ma tter of fac t, am ount to pro tecting
the
ill-gotten wealth of a few blood-suckers rather than awardi
ng
adequate punishm ent to the gui lty.1
1, Hero it mu st not be mis und erst ood tha t I am defe ndin
g the ft or any
other form of law less nes s. Not the leas t 1 My inte ntio n is only
to show
the vas t and radical differences tha t reign betw een the non text
in which
the pun ishm ent wat and w app lica ble and the stat e o f affa irs
we are to­
day enveloped io. The only logi cal con clus ion tha t foll ows
is the need
for a change in the entire syst em o f life. When the entire
stru ctur e of
society is changed end a new way of life is esta blis hed , the
inco ngruity
between the inju nction and the pre sent con text o f affairs
wou ld be
obi it er a ted and the avenue for its app lica tion wou ld b< opened
.
 z

Tfce Itlam k Sb
.1 •

' On th e other hand, Warn lim* ait W a tia g ^ a society in

which none ia compelled by the force bfoircimftaxjcee to steal.
For, ip, the Islamic social order, apart ftbm th * voluntary help
provided by individuals, the state guarantees the basic
necessities of life to all. Bat, after providing all that Islam
- enjoins a severe and exemplary punishment for those who
commit theft, as their action shows that they are unfit to' live
in such a just, generous ’and healthy society and would cause a
greater harm to it, if left unchecked.
Similar is the case *of the punishment for adultery and
; fornication.- .Islam prescribes a hundred stripes for the
unmarried and stoning to death for the married partners in the
crime. But, o f coarse, it applies to a society wherein every
trace of suggestiveness has been destroyed, where mixed
i gatherings of men and women have been prohibited, where
public appearance o f painted and pampered women is completely
nonexistent, where marriage has been made easy, where virtue,
i piety and charity are current coins and where the remembrance
. of God and the hereafter is kept ever fresh in men’s minds and *
hearts. These punishments are not meant for that filthy
society wherein sex u a l excitement is-rampant, wherein nude
pictures, obscene^books and v u lg a ro n g s have ,become common
: recreations ; wherein sexual perversions have *laken hold of the
cinema and all other places of amusement, wherein mixed,
semi-nude parties are considered the acme o f social progress
and wherein economic conditions and social customs have made
marriage extremely difficult.

IV
LEGAL ASPECTS OF THE SHARI AH
From this discussion, I think, it has become fairly clear
that'what we, at present, technidally call ‘Islamic Law* is only
a part of a complete scheme of life and does not have any
independent existence in isolation from that scheme. It can
neither be uoderstooi* nor enforced separately. To enforce it
separately votM, in fact, be ? g * i n a t t b * ivtertfak o f th *
Lav-Giver. . What ia required of n» ia to trsaaiate into practice
the entire Islamic programme of life and not merely a fragment
of it. Then and then alone can the legal aspects be properly
implemented.

This scheme of the Shari'ah is, however, divided into many

parte. .There are aspects of it whioh do not need any external
force for their enforcement ; they are and can be enforced only
by the ever-awake conscience kindled by his faith in a Muslim.
There aro other parts which are enforced by Islam’s programme
of education, training of man’s character and the purification of
his heart and his morals. To enforce certain other parts, Islam
resorts to the use of the force of public opinion : the general
will end pressure o f the society. There are still other parts
which have been sanctified by the traditions and the conventions
of Muslim society. A very large part of the Islamic system of
law, however, needs for its enforcement, in all its details, the
coercive powers and authority of the state. Political power is
essential for protecting the Islamic system of*, life from
deterioration and perversion, for the eradication of vice and
the establishment of virtue and, finally, for the enforcement o f
all these laws that require the sanction of the state and the
judiciary for their operation.

Speaking from a purely juridical view-point it is this last

part, out of the whole Islamic scheme of life, that the term
F

“ Law” can be appropriately applied. For, it ia only those

injunctions and regulations which are backed by political
authority that are, in modern parlance, termed as “law” . But
as far as the Islamic conception is concerned the entire Shari'ah
stands as synonymous with “ law”, because the whole code o f
life has been decreed by the All-Powerful Sovereign of the
universe. However, to avoid confusion, we shall apply the
term “ Islamic Law” to those portions of the Sharjah only
which demand the sanction o f « the State-power for their
enforcement.
 The Islamic Law B7

M ajor Branches of Islamic Law

The establishment of a political authority which may
enforce Islam io Law requires a Constitutional Law, and the
Shari'ah has clearly laid down its fundamentals. The Sharjah
has provided answers to the basic questions of Constitutional
Law and has solved its fundamental problems, viz., What is
the basic theory of the State t What is the source of the
authority of its legislation 1 What are the guiding principles
of state-policy ! What are the qualifications of the rules of an
Islamic State t What are the objectives of an Islamic State 1
In whom does sovereignty reside and what are the different
organs o f the State ? What is the mode of the distribution of
power between the different organs of the State, viz., the
Legislature, the Executive and the Judiciary 1 What are the
conditions for citizenship ? What are the rights and duties of
Muslim citizens 1 and What are the rights* of non.*Muslim
citizens (Zwmia), 1 The guidance which the Sbari'ah has
provided in respect to these questions constitutes the
constitutional law o f Islam.
Besides laying down the fundamentals of Constitutional
law, the Shari* ah has also enunciated the basic principles of
Administrative Law. Besides that, there are precedents in
administrative practice established by the Holy Prophet
himself (peace be upon him) and the first four rightly-guided
Caliphs of Islam. For instance, the ' hari'ah enumerates the
source o f income permissible for an Islamic State and those,
which, are prohibited. It also prescribes the avenunea of
expenditure. It lays down rules of conduct for the Police, the
Judiciary and the Administrative machinery. It defines the
responsibilities o f the rulers regarding the moral and material
well-being of the citizens, laying particular emphasis on their
obligations as regards the suppression of vice and the
establishment of virtue. It also specifically states as to what
extent the State can interfere with the affairs o f its oitizens.
In this connection, we find not only detective principles but
also many categorical injunctionK The Shari'ah has given us
 58 T ie Isla m ic Law and (Jo nsM uti on

bro ad fra me wo rk of Ad mi nis tra tiv e Law —e xac tly in the

• the
Con stitutiona l
same way as it has giv en the fun dam entals of
slim s to build
Law and has lef t it to the discretion o f the Mu
s of ths age or
up the details in accordance wit h the demand
, to the lim its
cou ntry in which the y live — sub ject, o f course
prescribed by the Shari* ah.
din g us in
Pro ceedin g fur the r, we find the Sha ri'a h gui
— which are
connection with Pu blic as well as Persona! Law
Th is guidan ce
essential for the adm inistr ation o f jus tice .
ers suc h an ext ens ive fiel d th at we can nev er feel the need
cov
our leg isla tiv e
o f going beyond the Sha ri'a h for me eting
tha t they can
requirements. Its detaile d in jun ctio ns are such
ry age and in
alw ays fulfil the needs of human soc iety in eve
entire Isla mic
' eve ry oountry— pro vid ed, o f course, tha t the
hensive tha t
scheme o f life is in operation. Th ey are so compre
ency and every
we can frame detailed law s for eve ry em erg
tur e has been
fresh problem on their basis for which the leg isla
ped are to be
giv en the rig ht o f leg isla tio n. A ll law s thu s fra
. Th at is wh y
considered an integral par t o f the Isla mic Law
o f Isla m for
the laws framed by our jur ists in the early day s
parcel o f the
the sake o f “ Pu blic Good*’ form a par t and
I•

Isla mic Law .

ls with the
Las tlv . we hav e that? part o f the Law wh ich . dea
tes , i»eo the
relations of the Isla mic Sta te wit h other sta
Sha ri'a h gives
Int ern atio nal Law * In thi s con nection, too , the
ce, neu tra lity
us comprehensive regulation relating to war and pea
injunctio ns are
and alliance, etc . Wh ere , however, no specific
o f the general
to be fou nd, the laws can be framed in tho lig ht
directives as laid down in the ir beh alf.
Permanence and Change in Isla mic Law
tha t the
Th is brief classification and elu cid ation shows
branches of law
guidance o f the Sha ria h extend s to all the
need o f the
which hav e been evo lve d by the ing enu ity and
ony to the
hum an mind so far . Th is is a sta nd ing tes tim
nt potentialitie s.
. independence o f the Isla mic Law aftd its inhere
ailed stu dy o f
An ybo dy who tak es the trouble o f ma kin g a det
 Tht Islamic Law 59
the subject will bo able to distin guish between the part of the
Shari4aA which has a permanent and unalterable character and
is, as such, extre mely beneficial for mankind, and that part
which is flexib le and has thus the poten tialities of meeting the
ever-i noreasing requirements o f every time and age.
The unalterable eleme nts of Islam ic Law may be classified
under the follow ing heads :
(I) Those laws that have been laid down in explicit and
unambiguous terms in the Qur’an or the authentic
Traditions of the Prop het, like the prohibition of
alcoholic drinks, inter est and gambling the punishment
prescribed for adultery and theft and the rules for
inheritance eto*
(5) The direc tive principles laid down in the Holy Qur’an
and authentic Traditions, e.g., prohibition of the use
of intox icants in general, or the nullification of all
exchange transactions which are not the outcome of
the free-w ill of both the parties, or the principle that
men are protectors and in charge of women.
(3) The limit ation s imposed on haman aotiv ity by the
Qur’an and the Traditions of the Prop het, whioh oan.
never be transgressed, e.g., the limit ation in connection
with the plura lity of wives where the maximum number
has been fixed at four, or the limit ation that the number
of divor ces.to a wife cannot exceed three, or the
limit ation imposed on a will, the amount of which
cannot exceed one-third of the total inheritance etc.
•
It is these unalterable mand atory provisions of the Islam ic
Law whioh give a permanent complexion to the Islam ic Social
Order and the characteristic features to its Culture. In fact,
one cannot find a single culture in the entire histo ry of mankind
which oan retain its separate entity and its distin ct character ’
witho ut possessing an unalterable and permanent element.
If there are no perm anent elements in a culture and eve^y
part of it is subject to change, amendment and modification, it
is not an idependent cultu re at ail. It is just like a fluid,
 60 The Islamic Law and Oonsiilntion

which can take any and every shape and can always suffer trans-
figuration, and metamorphosis, ’
Moreover, a thorough study o f these directives, injunctions
and lim itations will lead every reasonable man to the conclusion
that they have been given to us by the Sharjah. only for those
matters where the human mind is likely to commit errors and
go astray. On all such occasions, the Sharjah has, so to say,
set the signposts by issuing directives of making categorical pro­
hibitions so that we may proceed along th© right path. And
these signposts far from impeding the march of human progress^
J r*

are meant to keep us along the road and to save us from skidding
away. In this connection, it might not be out o f place here to
refer to the laws of the Shari*ah governing marriage, divorce
and inheritance which were the target o f very bitter criticism
in the recent past. I t is these very laws, however, to which the
world is now turning for guidance, though after innumerable
bitter experiences I
The second part o f Islamic Law is that which is subject to
modification according to the need and requirements o f the
changing times and it is this part o f the Islamic Law which
endows it with wide possibilities of growth and advancement
and makes it fully capable o f fulfilling all the needs o f an
expanding human society in every age.
This part consists o f the following
(a) Ta'weel (Interpretation) : I t consists in probing, into
the meanings o f the injunctions found in th© Qur’an
and the Sunnah. As such, it has always occupied and
still occupies a place o f immense importance in IaUmio
Jurisprudence. When those endowed with penetrating
insight and legal acumen ponder over the injunctions
r
o f the Qur'an and the Sunnah, they find that many o f
them are open to different fruitful and valid interprets*
. ■
* __

tions. Consequently, every one of them accepts some

particular interpretation according to his lights on the
merits of the case. Tn tjtis way, the doors o f difference
o f opinions have always been open in the past, are open
even today, and will continue to remain so in the future.
 The Islam ic Law 61
(b) Qiyas (Deduction hy Analogy) : It con sists in app
lying
to a matter with respect to which there is no cle
ar
guidance, a role or injunction ava ila ble for some sim
ilar
matter.
(c) Ijti ha d (Disciplined Judgment o f Jurists) : It con
sists in
leg isla tin g on matters for wh ich neither an y exp
licit
injunctions nor even precedent* exist, subject*.
of
coarse, to the genera] principles and precepts of
the
SharVah.
(d) Isiihsan (Juristic Preference) : It means frami
ng rules,
i f necessary, in non-prohibited ma tters in confor
mity
with the spirit of the iBlamio leg al system .
Any one who considers the po ssibilitie s inherent
in the
above-mentioned four wa ys of leg isla tio n, can ne ver
reasonably
entertain any misgivings as to the dynamism ,
ad ap tab ility,
progressive nature and power of evo lution ary gro
wth of the
legal system of Islam. Bu t it should be remembered
tha t eve ry
Tom, Dick and Harry is no t en titl ed to exercise
the rig ht of
Ta'weel, Qiyas, ljti ha d. Istihs an . . No bo dy has eve
r recognised
the right of every passer-by to giv e ver dic t on
problems of
national im portance. Un do ub ted ly, it requires pro
found legal
knowledge and a trained mind to enable on e to
speak with
au thority on an y leg al ma tte r.
Similar is the case with the Islam ic Law. Ob vio
usly, to
achieve the sta tus of a jurist one should be fully con
versant with
Arabic language and lite rature. He should also ha
ve a com plete
grasp of the rea l. historica l background of the inj
unctions of
Islam. H e should have special ins igh t into the Qur’a
nic sty le of
expression. He should have a tho rou gh kn ow led ge
of the vast
literature on the Traditions of the Ho ly Prophet
as well as of
the Traditions the mselv es.
In the special held of analogous ded uction , a Muslim
jurist
is required to possess a keen sense of leg al judgm
ent and tho
requisite cap acity for interp retation of fac ts on
the basis of
analogy; otherwise it would not be po ssible for him
to sav e him ­
sel f from fallin g into errors. As regards Ijti ha d,
or original
62 TAe /slamic Law and Constitution

legislation, it requires th? jurist to have not only a deep knowl­

edge of Islamic Law but also a develop ed sense pf interpreting
matters in the true Islamic spirit. Similarly as regards htihsan
or the consideration of public good and legislation for that
purpose it calls for a complete understanding of the entire
Islamic scheme of life as also: a complete grasp of the spirit of
Islam so that he may adopt only those things which can be
appropriately assimilated in the Islamic Scheme and which do
not amount to driving square pegs in round holes.
And, over and above all these intellec tual accomplishments,
there is another thing which is vitally essential, and that is
unstinted devotio n and loyalty to Islam -and a deep sense of
accoun tability before God.. As regards those who care little for
God and of the Fin^l Accoun tability , whose watch-word in life
is sheer expediency, and who prefer the non-Islamio values of
culture and civiliza tion to those given by Islam, they must be
regarded as the last persons to whom the work of Islamic legis­
lation can be entrusted. For, in their hands, the Islamic Law
will only suffer perversion and corruption. It will not grow,
evolve and prosper.
AN EXAMINATION OF OBJECTIONS ON
ISLAMIC LAW
We shall now try to examin e briefly some of the objections
usually raised against the demand for the introdu ction and
enforcement of Islamic Law in Pakista n. These objections are
many but it would be an unnecessary waste o f time to mention
all of them here. Therefore I propose to oonfine to the exami­
nation of those objections only which are of a fundam ental
nature.
1. “ Islamic Laws are Antiquated”
The ffrst objection that is raised is that, as the Islamic
Laws were framed thirteen centuries ago in the light of the
requirements of a primitive society, they cannot be of any use
for a modern state of our age.
I doubt very much whether people who take this stand are
 The Islamic Law 6»
conversant even with the rudiments of the Islamic Law and
possess even an elementary knowledge of it. Perhaps, they
have, heard
k
from somewhere
1
that the fundamentals «
of the
’

Islamic Law were “ *

enunciated more
•
than thirteen hundreds years
ago, and they have assumed that this Law has remained static
since then and has failed to respond to the requirements of
changing conditions of human life. On this misconception
they have further assumed that Islamio Law will be unsuited
to the needs of the present-day society and will clog the
wheels of progress. These critics fail to realize, however, that
the laws propounded thirteen and a half centuries ago, did not
remain in a vacuum ; they formed part and parcel of the life of
Muslim society and brought into being a State which was run in
the light of these laws. This naturally provided an opportunity
o f evolution of Islamio Law from the earliest days, as it had to
be applied to day-to-day matters through the process or Ta'weel
Qiyae, Ijtihad and Isiibsan,
Very soon after its inception, Islam began to hold sway
over nearly half the civilized world stretching from the Pacific -
to the Atlantic and during the following twelve hundred years,
the Islamic Law continued to be the daw of the land in all
Muslim states, This process o f the evolution o f Islamic Law,
therefore, did not atop for a moment up to the beginning of the
nineteenth century, because it had to meet the challenge of the
ever-changing circumstances and face countless problems con­
fronting different countries in different stages of history. Even
in our Indo-Pakiatan sub-continent, the Islamic Civil and Penal
Codes were in vogue up to the beginning of the nineteenth
oentury.
Thus, it is only for the last one hundred years that the
Islamic Law remained inoperative and suffered stagnation. But,
firstly, this period does not form a big gap ahd w© can easily
make .up for the loss with some amount o f strenuous effort ;
secondly, we possess full records o f the development of our
jurisprudence century by century and there can be absolutely no
ground for frustration or despondency. Our path of legal pro-
64 Th e Zdiamio L a w an d O o n sli tu liv n
/*
gross is, thu s, fxilly illu mined.
ce we h ive gra spe d th e fun da me nta l pr inc ipl es an,d the
On
ta do ho em ing the ev olu tio n o f th e Isl am ic Bystem of
baaio the
we can no t rem ain in do ub t th at thi s law sh all be m res­
La w,
th e prese nt and
ponsive to the urges of a progressive soo iety in • *_
* ha s be en in the pa st, On ly tho se who suffer
the fut ur e bb it
ign ora nc e can fal l a pr ey to suc h no ns en se, while tho se who
fro in
ve a gra sp of Isl am an d the Isl& mi o La w, are aware of its
ha
ss ev en a cursory
po ten tia lities of progress and tho se who posse
never su sp ect
knowledge of the his tor y of its de ve lop me nt, can
o f be ing an an tiq ua ted or a sta gn an t sys tem o f law, incapable
it
of keeping pace wi th the march of histor y.
!
2. “Is lam ic La ws are Re lic s of Ba rb arism ”
on d mo st com mo n E jec tio n — an ob jec tio n whioh is
The sec
nner bu t which
pu t forward publicly on ly in a round-about' ma
in pr iva te tal ks —
is presented with much vehemence and venom
! And those who
is th at Islam is jus t a relic of the Dark Ages
o arg ue , wi th an air o f ha ug hti ne ss an d arr ogance, tha t
say so als
res siv e, cu ltu red an d hu ma ne' * ou tlo ok o f the modern,
th e “prog
ne d ag e can ne ve r tol era te au oh “ cru el” pena lties as
enlig hte
nin g to de ath —
the cu tting of the hands, or flogging, or sto
penalties im posed by Islam for cer tain crime s.
is ob jec tio n an d th is all eg ati on , com ing as it does from
Th
Su pp ort ers , of mo de m W est ern civ ilis ati on , makes on e gasp
the
th at th e normal
with wonder. It is, ind eed , am azing to hoar
the pr ese nt ag e are “a dv an oe d” an d “p rog ressive” .
values of
ar tle ssn ess sho wn by the “e nli gh ten ed ” ma n of tod ay to
The he
darkest ages of
his fellow beings hardly finds a parallel in the
ath, but he can
history. He does no t pu nish by sto nin g to de
l pe op le ind isc rim ina tel y wi th the ato m bta nb. He doeet not
kil
t off th e ha nd s of the pe op le bu t ho als o tears their
merely .cu
gg ing , he would
bodies into shreds. He is no t oontent with flo
e to bu rn ali ve the pe op le en m ass e an d ma nu facture soap ou t
lik
rac ted fro m the ir de ad bo die s. 1 Leaving aside
of the fat ext
is wa s don e in Ge rm any , ono of the m ost "p rog res siv e” con utr ios
L Th
in the wo rld —E dit or,
 The Islamic Law «5

these demonstrations o f hoartteesness during the period of war

wherein everythin g is considered fair nowdays, the modern man
brutally chastises — and does it unsparin gly— the political
"crim ittab” : the alleged "traitors” to the national cause and
the rivals in the economic and political fields. The highly objec­
tionable and inhuman modern methods o f investiga tion and
extortion o f confession employed seen before proving the charges,
are. an open secret. In view o f these facts, it is non-tensical to
say that the modern man cannot tolerate the punishments pres­
cribed by Islam for proved and established criminals because he
possesses a more refined outlook ; and it does not lie in the
mouth o f those who can tolerate bloody "purges” after oon-
cocted confessions and phoney trails and who uphold political
inquisitio ns and concentra tion camps, to pour out venom against
the Islamic Penal Code.1
The truth is that it is not the severity o f the punishme nts
in Islam which the upholders of modern civilizatio n abhor, for
they resort to even more tortuous punishme nts themselves. The
reason for their hysteric outbursts against this alleged "b ar­
barism” lies actually in the perversio n o f moral value—th at is,
in the fact that they do not think that crimes like drunkenness
and adultery deserve even a word of. reproach, what to speak o f
painful punishme nts. Had they been opposed to these punish­
ments on humanita rian considerations, they would have like­
wise condemned the brutal punishme nts given to people on
flimsy political and economic grounds. They oomplain in
respect o f Islam only because they do not at all deem as a sin
or crime many a thing condemned by it.
I would like to put a straight question to these varieties of
"modern ity” : "W h a t are the values that you believe in 1 Do

1. Prof. E. F. M. Durbin, after narrating the callous and inhuman treat­

ment which is being meted out in the m ost “progress ive” states of
the world, concludes that : “ such large-scale brutality has rarely been
witnessed. I am thankful to say, in the previous history of the
world” The P olitics o f Democratic Socialism, 1U48, p, 25).
See also Khurehid Ahmad, Fanaticism , Intolerance and I alam.
Islamic Publicatio ns Limited, Lahore, 2nd ed.» 1960—Editor.
 66 Ths Islamic Law and Constitution s -

*
you believe in the Islaznio values o f life and standards of
morality or those o f the modern civiliz ation” I I f you have
made your choiqe and accepted some other values and some
different' standard o f right and wrong, o f virtue and vice, of the
permissible and the prohibited as agains t those envisaged by
Islam, it is then a difference of a very fundam ental nature . It
means that you differ with and disbelieve in the Islamic
ideolo gy itself. In this case you should have the courage to
declare that you reject Islam outrig ht. Is it not foolish to
allege faith in a God Whose laws you consider as barbarous 1
Anyho w nobod y can remain inside the pale of Islam after hold*
ing such an opinion about the law o f G od. 1
3. The Bogey o f Sectarian Differences
We have dealt with two objections so far. The third
objection is that there being many schools o f Islamic
Jurisp ruden ce,. it is not possible to evolve an agreed code of
law which m ight be acceptable to all the schools o f Muslim
though t. I t is this objection on whioh rests the last hope of
the opponents of the Islami c Law , and they seem to feel
confident that on thia count they will be able to score a point
by drivin g a wedge among the Muslim s. Moreover, this
problem also baffles many sincere people who are loyal to Islam
and. who, not being fully conversant with its teachings, fail to

1. Here the learned Author is replyin g to those critics who claim to be

Muslim s but under the spell of alien influences want to amend the
basic tenets o f Islam , withou t any regard for the spirit and ideals of
Islam ic ideolog y. . They are apologe tic in their attitud e and want to
blow hot and cold in the same breath.
A s . to the questio n whether the punish ments are too harsh or not,
ho has already answered in the earlier part of the discuss ion. Islam
creates suoh conditions as may ensure the elimina tion o f the c o u m j
of the commission of crimes . But, if, in spite of it, the evil doers
commi t them, Islam punishes the crimina ls in such a way that others
may not dare to do that. z That is why we find th at when these
punish ments were in vogue, crimes were extinct while today, despite
all the clap-tra p, crimes are on the increase and we hear voices from
social quarters that the standards of punish ments are proving
inoapable of grappling with the problem .—tfd tar.
 Ths Islam ic Law er
understand how the *oompl i cation ’ can. be removed. The fact
is that thia comp licatio n is merely a figment of fertile
imaginatio n, for, the existence o f different schools of law can
never become an obsta cle in the way o f the enforcemen t of
Islam ic Law ,
The first point to be understood in this conne ction is that
the broad outlin es of Islam ic Law , consisting o f mandatory and
unalterable comm andm ents and funda menta l principles and
limita tions have alway s been accepted unanimous ly by . all the
Muslim schools o f thoug ht. Neith er there ever was, nor there
is now, any conflict o f opinion regarding thia portio n of our
f laws. Whatever differences had ever arisen were alway s in
connection with the details .that were to be framed throu gh
interp retation, deduction and ZyHAod— all, of course, within
limits prescribed by Islam .
The hature of these differences can also be understood by
the faot that rules derived by jurists throu gh interp retation,
deduc tion, Ijtiha d or Istihs an oould never acquire the force of
law witho ut either being accepted unanimously (Ijma*) or
havin g the appro val o f the m ajorit y. (Jamho&r), This explains
why the phrases like £ ^ ^ 1 (unanimous agreement),
(majo rity agreement) and (adopted
judge ment) are appended to the expression of final opinions by
our jurist s in disoussing legal matte rs, and it signifies that
their opinio n had finally to obtain legal sanction in order to
beoome a law for Muslims.
These unanimous or major ity decisions can be o f two
. kinds :
F irstly , those which have alway s been accepted by the entire
Muslim world or by the major ity of Muslims,
Secon dly, those based on the unanimous agreement of the
Muslims o f a partic ular country at a particular perio d, or of
their major ity.
Decisions comin g under thq first categ ory, i f based on
unanimous agreement, are not subje ct to review and should
alway s be accepted as part and parcel o f Muslim Law ,
•M •
 68 2%e Islamic Law and Constitu tion

Decisions made by majority agreement can be accepted as

law only if the majority o f the Muslims of the country ’wherein
they have to be promulgated also accepts them, as such. If
the majority o f that oountry accepts them, they will become a
law for this oountry, otherwise not.
So much about the past. Ab for the future, the laws which
are accepted unanim ously by majority of the Muslims of this
country, will be enacted here. In the past too, this has been
the practice and no law used to operate without either the
unanimous approval or the approval of the majority of the
Muslims. And it is this method which is practicable even
today. I do not think that any other prooedue can be
prescribed from the democratic point o f view either.
A question may be asked as to what would be the position
of those Muslims who might not agree with the majority.1
They are entitled to demand the enforce ment of their own Code
in their personal matters and this demand of theirs must be
aooepted. But, of course, the “ Law of the Land” shall be the
one which has the sanction of the majority.
I am sure that no Muslim of any sect would ever adopt the
foolish position o f preferring the continu ance o f un-Islamic Iuwb
in Pakista n on the ground that he is not in agreement with the
views o f the majority o f Muslims on certain points of Islamic
Law, Obviou sly we cannot disoard the Islamic way of life
simply because we are not unanimous on all details of its law.
Has there ever been or can there ever be any law or system of
a
life on all details of which ail its followers were, are or can ever
be unanimous 1 What do you say about the legal system, that
is in force ih the country at present or anywhere else t
a
I. Thia objection was blown up by the com plete agreem ent o f the
'Ufcma’ o f all schools o f thought in the Convent ions held in 1951 and
1963 n t, Karachi. In those C onventio ns, the ‘Ulatna* unanim ously
form ulated th e B asie Principle s of the Islam io State (see Appendi x I)
and also m oved A m endm ents to the B asic Principle s C om m ittee's
R eport (see Appendi x II). This objection , therefore , has absolute ly
? . no ground.—jffdttor.
 Tfce Is la m ic L aw
4, The Problem o f Non-M C9
uslim Minorities
The la st im p orta n t objectio
n in th is respect is th at
ia a substantia) non-Mus there
lims m in or ity livin g in Pak
cannot to le ra te being gove istan who
rned b y the religious law
Muslims. s o f the
This objection is baaed on
a very superficial observat
and shows a lack o f proper ion
an alysis o f th e problem.
a li tt le am ou n t Of cool th For oven
in k in g can d is sip ate th e fo
m isunderstanding. g o f th is
The law w ith which we h av
e been and are concerned he
the law o f the land and n ot th re ia
e personal law o f any com m
In personal m atte rs every unity.
com m unity is welcome to
own personal law . Indeed, ad op t it s
it is on ly Islam which gu
th is righ t in th e m ost liber arantees
al manner to all th e m in or it
in an Islam ic S ta te . It ie s livin g
is Islam which has taugh
modern world the real diff t to. the
erence between th e Haw o f
and th e ‘personal law ’ and the land'
which enunciated th e prin
in a m u ltin atio n al st at e th ciple th at
e personal affaire o f a man
se tt le d according to his sh ou ld he
own P ersonal Law. There
m in or ity group should feel fore, n o
afraid th at wo would th
ow n religious laws on th em ru st our
in their personal m atters,
th u s, vi olat e an inju nction and sh all,
unam biguously la id down
it se lf . by Islam
The question th at now rem
ain s to be d ea lt w ith is :
should be our ‘law o f th e la What
ud" 1 I th in k it is th e de
justice and fairness th at th mand of
e Law w hich commands th
of the m ajor ity alone has e approval
th e righ t to becom e th e Law
Land. of the^
Minorities are en ti tl ed to
demand *safegu ard s fo j th
le gitim ate rights and in te eir
rests and we are bound to
th is demand as Islam it se lf concede
enjoins us to d o so. B u t
fair for th e m inorities to as it is not
k us to th ro w our ideology
and introduce law s which everboard
are ag ain st our con victio
for th e sake of appeasing th ns merely
em . When w e were h elple
of foreign dom ination, we to ss because
lorated^the supremacy of ti
Laws. B u t now when we ar n*Islamic
e masters o f our d es tin y, w
e cannot
TO
Islamic Law and Constitution
replace Isla mic Law by those of any oth er typ e withou t
conscious apo stas y and betrayal of Islam, Are the minorities
rea lly entitle d to ask the majority to give up its religion and
its way of life 1 Hav e the y the righ t to dem and tha t the
majority should give up the principles which it considers righ t
and adopt oth ers which are against its con viction s t Or, is it
reasonable tha t in a mu lti-r elig iou s country all the communities ,
should become irreligious $ If the answers to all the se que stio ns
are in the neg ativ e, I find no reason why 1Islamic Law' should
not become the ‘Law of the-Land’ in a country where Muslims
are in a predominant majority J

Moreover, the true posi tion u that the represen tative* of

the
Christians in the Firs t Con etitu ent Assembly o f Pak istan and som
e of
the Isadora o f the sche dule d oaetee, who form the mos t ixnp
prtant
min ority, hav e demanded the esta blish men t o f an Islam io Stat
e, for
they hold that their right* can be better aafeguarded in such a
stat e.
The y kno w that an Isla mic Stat e doe* not perm it any oha im to
exis t
betw een precept and practice. All Muslim* are under an obli
gation
to do wha t their relig ion command*. And if they viol ate, they
can
do *o only at the oo*t o f their own relig ion—nay, their very faith
and
salv atio n— tfdi ien ’
 Chapter 2

Legislation and 'Ijtihad'

in Islam

M AU LANA ABUL A'LA M AU DU D I read apaper

entitled ‘Role o f Iftihad and Scope of Legislation in
Islam* at the Colloquium on Islamic Culture held at
Lahore in January 1958. He was a delegate from
Pakistan and was also a member o f the Organising
Committee of the Colloquium. This paper constitutes
first section of the present ohapter. Its second section
consists of the reply which he gave to the object ions
raised at his said paper. The third and the last
seotion has been taken from a note o f Maulana
Maududi which he wrote in reply to a query and which
was published in Chigrah*e-V#bt Islami Qanoon Number,
• Vol. II (Vol. 12 No. 7). E d it o r .
 >

LEGISLATION AND ‘IJTIHAIF IN ISLAM

p O R an adequate appreciation of the subject under discussion,

two basic facte have to be clearly borne in mind., via ;
(i) the Sovereignty of God, and
(it) the Prophethood of Muhammad (peace be upon him).
I blain admits of no sovereignty except that o f God and,
consequently, does not recognise any Law-giver other than
Him. The Concept of the unity of God, as advocated by the
Qur’an, is not limited to His being the sole object of worship
in the religious sense alone. Along with it, He is invested
with complete 4legal sovereignty’, in the sense in which the
term is understood in Jurisprudence and Political Science.
This aspeot of the legal sovereignty o f God is as much and as
clearly emphasised by the Qur’an as the one pertaining to His
being the only deity to be worshipped. According to the
Qur’an these twin facets of the Divinity of God are the sine
qua non of the Divine Entity and are so vitally interlinked
that a negation of either ipso facto infringes the very concept
of His divinity. And the Qur’an leaves no room for the •
impression that the divine law may mean merely the law of
nature and nothing more. On the contrary, it rears the entire
edifice of its ideology on the basis that mankind should order
the»afifoirs o f its ethioal and sooial life in accordance with the
law (Shari1ah} that God has communicated through Hia
Prophets (may His blessings be on them). It is this submission
to the revealed law and surrender of one’s freedom to it that
has been assigned the name of Islam (surrender) by the Qur’an.
It denies in the clearBt terms the light of man to exercise any
discretion in such matters as have been decided by Allah and
His Prophet (peace be upon him).
Says the Qur'an :
"It is not for the faithful, man or woman, to decide by
themselves a matter th a| has been decided by Allah
72
 Legislation and Ijtihad tn 73
and Hia messenger, and whosoever commits an affront
to Allah and Hia messenger is certainly on the wrong
• path**. (33 : 36)
I
PROPHETHOOD OF MUHAMMAD (ptah)
The second point which is as fundamental in Islam as is
the Unity of God, is the finality of the Prophet hood of
Muhammad (may God’s blessings be on him). I t is really
because of thia factor that the concept of the Unity of God
transforms itself from an abstract idea into a practical system
and the whole edifice of the Islamic way of life is raised upon
this foundation. According to this concept the teachings of
all the earlier messengers of Allah have been incorporated,
with numerous important additions and alterations in the
teachings of Muhammad (may God’s blessings be on him).
Honco those teachings constitute ibe only source of Divine
guidance and law, as no further revealed guidance is to tomo
to which it may become necessary for mankind to turn. It is
this dispensation by Muhammad (may God’s blessings be on
him) that constitutes the SUPREME LAW which represents
the Will ef God, the real Sovereign. This Law has been
bequeathed to us by the Holy Prophet (peace be upon him) in
two forms :
F irst: the Qur’an which embodies, w ord.by word, the
instruction and commandments of God and is His unadulterated
word. *
Second : the idea] conduct of Muhammad (may God's
blessings be on him), th at is to say Sunnah, which clarifies,
explains and exemplifies the moaning of the Qur'an.
In fact the Holy Prophet was not merely the bearer of a
message having nothing more to do than transmitting the Word
of God to mankind. He wan also the Divinely appointed leader,
the rulor and the teacher J The duty laid on him was to explain2
V—- -- - ,• «
1, Al-Qur’an, fit : 9 ; 3 : 164 j 62 : S—tfdt/or.
2. Al-Qur’ati, 16 : 44 and 64—
 74 The Islamic Law and Constitution
and illustrate the law of God by his words and deeds, to make
people understand its real import, to train, individuals and form
them into a disciplined body, and with their aid to initiate &
struggle for the recons traction of society, and finally, to mould
the society into a reformed and reforming state and thus to
demanstrate how an ideal civilisation, founded on the principles
of Islam, could be established. This entire life-work of the
Holy Prophet, which was completed in twenty-three years of
his prophothood, is the Sunnah which in conjunction with the
Qur’an formulates and completes the Supreme Law of the real
Sovereign and this Law constitutes what is called "Shari'ah” in
Islamic terminology.
SCOPE OF LEGISLATION
From what has been stated heretofore one is apt to think
that these fundamental facts leave no room for human legisla­
tion. in an Islamic State, because herein all legislative functions
vest in God and the only function left for the Muslims lies in
their observance of the God-made law vouchsafed to them
through the agency of the Prophet. The fact of the matter,
however, is that Islam does not totally exclude human legisla­
tion. It only limits its scope and. gudioa it on right lines.
Human legislation, according to Islam, is and should be subject
to the Supremacy of Divine Law and within the limits prescribed
by it.
Now I proceed to describe the scope and limits of this
legislation which, in Islam, takes the following four forms :
1. Interpretation
In oertain matters the Qur’an and the Sunnah have laid
down clear and categorical injunctions and prescribed specific
rules of conduct. In such matters no jurist, judge, legislative
body, not even the UmmaA as a whole, can a alter the specific
injunctions of the Shari'ah or the rules of behaviour expounded
by it. This does not mean, however, that there is no scope left
for legislation in this sphere. The funotion of human legislation
in relation to such matters lies in
(a) finding out exactly and px^cisely what the law is ; its'
nature and extent.
 Legislation and Tjtihad in Islam 75
(h) determining its meaning and intent.
(g) investigating the conditions for which it is intended
and the way in which it is to be applied to the
practical problems,
(d) working out minor details in the case of such laws as
are too brief for a straightaway application in actual
life, and
(e) determining the extent of its applicability or non-
applicability in case of exceptional circumstances.
2. Analogy
Then there are those types of problems about which
although no specific injunctions have been laid down in the
Shari* ah, but provisions have been made about some analogous
situations. In this sphere the function of the legislature would
be to apply such injunctions, after a precise appreciation of the
reasons and causes underlying them, to all those matters
wherein identical causal connections actually exist and to
exempt all such cases from their application wherein these
connections are non-existent.
3. Inference
There is yet another category of human affairs about which
the Shari'ah has prescribed no apeoifio guidance but has laid
down broad principles or indicated the intention of the Lawgiver
as to what is to be encouraged and what is to be discouraged.
In regard to such affairs, the function of the legislature is to
understand the principles of the Shari*ah and the intention of
the Law-giver and formulate such laws about the practical
problems as are based on these principles and fulfil the intention
of the Law-giver.
4t Province of Independent Legislation
Apart from these, there is yet another vast range of human
affairs about which the Sharjah is totally silent. It has neither
made any direct provision iik respect thereof nor is there any
guidance for identical or kindred situation s so as to enable us to
draw an analogical inference therefrom; This silence is by itself
76 Ths Islamic Law and Constitution
indicative of the fact that the Supreme Law-giver has left it t-o
human beings to decide such matters in their own discretion
and judgement. Hence independent legislation can be resorted
to in such eases but it must be in consonance with the real spirit
of Islam and its general principles and, what is more important,
should in no way bo repugnant to the general pattern and
temperament of Islam. It must naturally and appropriately
fit into the general scheme of the Islamic ideology.
IJTIHAD
The whole of this legislative process which makes the legal
system of Islam dynamic and makes its development and evolu­
tion in the changing circumstances possible, results from a parti ­
cular type of acadenrfc reaearoh and intellectual effort which, in
the terminology of Islam, is called Ijtiha d. Literally the word'
Ijlihad means to put in the maximum of effort in performing a
job but technically it signifies 'maximum effort to ascertain, in
a given problem or issue, the injunction of Islam and its real
inten t’. Some persons seem to be labouring under the erroneous
impression that IjKAad means completely independent use of
one’s opinion. But no one conv ersan t. with the nature of the
Islamic Law can imagine that there can be any place for this
bind of independence in the legal system of Islam, The real
law of Islam is the Qur’an and the Sunnah, The legislation that
human being may undertake must essentially be derived from
this Fundamental Law or it should bewithin the limits prescribed
by it for the use of one’s discretion or the exercise of one’s
opinion. For Ijtihad that purports to be Independent of the
Shari*ah can neither be an Islamic Ijtihad nor is there any room
for such an incursion in the legal system of Islam,
Essential Qualifications
It is clear from what has been said above that the purpose
and object of Ijtihad is not to replace the Divine Law by man­
made law. Its real object is to properly understand the Supreme
Law and to impa rt dynamism to the legal system of Islam by
keeping it in conformity with the fundamental guidance of the
 Legislation andijtiha d in Islam 77
Shari*ah and abrea st of the changing conditions of the world. In
▼lew of this basic fact, no healthy Ijlihad is possible unless our
law-makers are equipped with the following qualifications :
(1) Faith in the Shari*ah and conviction of its truthfulness ;
, a sincere inten tion to follow i t ; absence of any desire
to act independently of it : and the will to derive
inspiration and acquire all objectives, principles and
values from it and not from any other source.
(2) A proper knowledge of the Arabic languag^, its
grammar and litera ture because the Qur'an has been
revealed in this language and the means of ascertaining
the Sunnah also depend upon this medium.
(3) Such knowledge and insight in the teachings of the
Qur’an and the Sunnah as would enable one not only
to be conversant with the details of Islamic injunctions
and their application in actual practice but fully to
appreciate the basic principles of the Shari4ah and its -
objectives. One should know’, on the one hand, the
Sharjah's over-all reform scheme from human life and,
on the other hand, the exact place of each aspect of
life within the frame-work of this comprehensive
scheme, the lines on which the Shari*ah. desires to
mould human life and society and the objectives
underlying it* In other words, such knowledge of the
Qur’an and the Sunnah is the sine qua non of ZjhM das
would enable one to grasp the kernel of the Shariah.
(4) Acquaintance with the contributions of the earlier
juris ts and thinkers (Jlfu/ta&uKn) of Islam. Thia is
neoessary not merely for train ing in the technique of
.Ijlihad but also for the sake of ensuring continuity in
the evolution of Jaw. Of course it is not, and should
not be, the purpose of ljiiha d that every generation may
necessarily destroy or discard what previous genera
tions have built and thus try to build the whnfc
structure afresh.
78 The Islamic Law and Constitution
Ac qu ain tan ce wi th th e pr ob lem s an d co nditions of our
(5)
answer is
times—th e new problems of life to which an
e principles
sought and th e new conditions in which th
ns of th e Sh ar ja h ar e to be ap pl ied . A
and in junc tio
ct ap pr ec iat io n of th e cu rre nt pr ob lem is extremely
corre
essential for th e proper exercise of IjtihucL
ble ch ar ac ter an d co nd uc t ac co rd in g to the
(6) Commen da
am ic eth ica l sta nd ar d. Ab se nc e of th is virtue is
Isl
public tru st
bound to affect adversely the quantum of
isl ato rs. A law ma de by th e Ijt ih ad of un ­
in the leg
rth y in di vi du als , de vo id of go od m or al character, is
wo
lik ely to in sp ire re sp ec t an d co nf ide nc e in the
no t
Muslim people.
e ab ov e de sc rip tio n of th e es se nt ial qu alifications does
Th
tai l th at an y on e un de rta ki ng Ijt ih ad should produce a
not en
be fo re th e co m m en ce m en t of hi s as sig nm ent th at he
certificate
po sse sse d of th em . Ra th er th e id ea is merely to show
is fully
alt hy de ve lo pm en t of Ial am io law on proper lines
th at a he tra ining
po ss ib le on ly if th e sy ste m of leg al
through Ijtifiad is
sta rts pr od uc in g lea rn ed me n of su ch ca libre and
and education
y leg isl ati on un de rta ke n wi th ou t th es e re qui­
qualifications. An
ne ith er f t in to th e leg al sy ste m of Isl am nor would
sites would •

be pa lat ab le to th e M us lim so cie ty to accept aud

it ever
digest it.
Technique o f Ijtih ad
thereon depends
Ju st as Ijtihad and any legislation based
ce pt an ce on th e ab ili ty of th os e re sp on sib le for
for its popular ac
cc es s wo uld , t6 a lar ge de gr ee , de pe nd upon
it, similarly its su
em pl oy m en t of a co rre ct m eth od an d pr oper technique. A
the
d, wh eth er he is en ga ge d in th e in te rp re ta tio n of injunc­
M ujtahi inf erences,
in an alo gi ca l re as on in g or in dr aw in g
tions or is busy
ev en t, to ba se hi s re as on in g on th e Qu r’a n and the
has, in any
Ev en wh ile in du lg in g in ‘in de pe nd en t legislation’ in
Sunnah-
he re of pe rm iss ib le (A fuf toZ kA ) he m us t clearly establish
f he sp any rule or
r'a u an d th e Su nn ah ha ve no t lai d do wn
th at the Qu
no r ev en ha ve fu rn ish ed a ba sis fo r an y analogy for th at
•order
 legislati on and Ijtihad in Islam 79

particular issue, Furtherm ore, the methods adopted for putting

construction, on the Qur'an and the iSunnaA should be reasonable
and well-recognised. While arguing from the Qur’an it is imper­
ative to interpret the meaning of a verse in accordance with the
requirements of the language, i.e., Arabic lexicography, grammar
and established usage which should fit into the context of the
verse and may not be in conflict with the observations made
elsewhere in the Qur'an on the same topic. In addition to that,
if it is not positively supported by word or deed of the Prophet,
at least the Sunnah be not contrary to suoh meaning. While
drawing upon the Sunnah in consonance with the considerations
of language, its rules and the context, it is also essential that
the tradition s which are relied upon about a particular matter
are authentic ones in accordance with the principles concerning
thia branch of knowledge (of Traditions), that other relevant tra­
ditions are not ignored and no single citation (Khabar-e-Wahid)
is allowed to hold its own against a Sunnah that has been well-
establish ed on the strength of authentic sources. Any Ijtihad
based on wishful interpretation and in disregard to these
precautions even, if raised to the status of law by dint of politi­
cal power, will neither be aooepted by the collectiv e conscience
of the Muslim commun ity nor can it form an integral part of
Islamic system of law. As soon the political power enforcing
such a law disappears from the political arena, such a law would
begthrown into the dustbin.
How Ijtihad attains the status of law
A number of methode have been reoognised in the legal
system of Islam whereby an Ijtihad acquires the force of law.
Firstly, consensus of opinion (Ijma‘) by the learned men of the
community. Secondly the Ijtihad of an individu al or a group of
individu als may gain wide popularity and people may suo molo
adopt their verdict, for instance, the Ijtihad of the Hanafite, the
Shafe'ite , the Malikite, and the Hanbali te schools of law were
4
voluntar ily accepted by large groups o f Muslim masses. Thirdly,
a Muslim governm ent may adopt a particular piece of /yttitad
80 T Ae Islamic Law and Constitution
as its law, as for example the Ottoman government had adopted
the Hanafi Law as the Law of the Land. Fourthly, an institution
may be constitutionally empowered in an Islamio State to legis­
late and it may enact a particular piece of Ijtihad in the form
of law. Apart from these four methods, any Ijtihad performed
by various Muslim scholars can be no more than a verdict
(fatwa). As regards the judicial pronouncement of the judges
(Qadi*), they are enforceable as law only in respect of the
particular case in which a court may have pronounced them and
they may also have the force of a precedent but they cannot be
classified as law in the true sense of the term so much so that even
the judicial pronouncements of the Right Guided Caliphs—given
by thorn in their judicial capacity as Qadis—did not acquire in
Islam the force of law. The concept of the “ judge-made-law” is
foreign to the legal system of Islam.
II
THE PLACE OF SUNNAH IN ISLAMIC LAW
I will try to answer as briefly as possible the criticism that
has been offered on my paper on ; ‘The Role of Ijtihad and the
Scope of Legislation in Islam?
1. The first criticism relates to the statue that has been
assigned to ‘Sunwaft' along with the Qur’an. In dealing with
this I should like to mention a few points in a certain sequence
so that the problem may be clarified.
(t) It is an irrefutable historical fact that after receiving
the prophetic assignment, Muhammad (peace be upon him) did
not stop at the mere transmission of the Qur’an to the people
but led an all-comprehensive movement which resulted in the
evolution of an organised Muslim society, a new system of
civilization and culture, And the establishment of a state. The
question arises : In what capacity did the Prophet perform those
functions which were in addition to the mere transmission <jf the
Qur’an ? Were these tasks performed in liis prophetic capacity
in which he represented t h r i l l o t God in the same way as it is
represented in the form of the Holy Book 1 Or did his prophetic
 Legislation and Ijtihad in Islam 81

status end with the transmission of the Qur’an and thereafter

he merely acted like an ordinary Muslim individual whose words
and deeds did not possess in themselves any legal authority ? If
the former, then there is no alternative but to accept the
Sunnah as possessing legal authority along with the Qur’an. If
the latter, then of course there can be no ground for treating it
as law.
(tt) The Qur’an gives a very clear verdict in this matter by
stating that Muhmmad (peace be oft him) was not merely a
messenger but a divinely-appointed leader, ruler and teacher as
well, rendering obedience to whom is obligatory on the Muslims
and whose life had been put forward by God as an ideal to be
followed by the faithful. Reason and intellect fail to conceive
that a prophet is to be treated as Buch to the extent merely of
transmitting the word of God and> thereafter, ho is reduced to
the level of a common man. In so far as the Muslims are con­
cerned they have, from the advent of Islrm up to this day,
unanimously upheld, in every age and clime, that the Holy
Prophet was an ideal to be imitated, and his injunctions and
inhibitions were obligatory on the believers. Even a non-Muslim
student of Islam cannot deny the fact that the Muslims have
always assigned
A this position to the Holy Prophet and on this
very basis his Sunnah has been treated, along with the Qur’an,
as a source of law in the legal system of Islam. I cannot indeed
imagine how anyone can challenge this legal aspoct of the
Sunnah unless he takes up the position that the Holy Prophet
was a prophet only in so far as he transmitte d the Holy Book
and his prophetic status ended with the performance of this
duty. And if anyone puts forward such a claim he will have to
state whether he is assigning this position to the Holy Prophet
on his own or whether the Holy Qur’an itself has assigned it to
him. In the first case his stand would be no concern of Islam at
all, while in the second case he vjill have to adduce some proof
of his claim from the Holy Book.
(iff) On accepting the Sunnah as a source of law, the ques­
tion arises as to how it can be ascertained. How can we find
 82 The Islamic Law and Constitution
out what Sunnah had been bequeathed by the Prophet who was
raised so many centuries ago ? In this connection it should be
remembered th at this is not a problem with which we are con­
fronted for the first time after the lapse of 1377 years. The
following two historical facts ace incontrovertible.
The first one is that the community and the society which
were formed on the basis of the teachings of the Qur’an and the
Sunnah of the Holy Proph et, on the very first day of the adven t
of Islam, has been continuously in existe nce; its life was not
interrupted by a single day and its institutions have been work­
ing all the time without any break. The deep similarity which
exists at present among the Muslims the world over in respect*
of their beliefs, mode# of thinking, ethical standards and values,
acts of worship and mundane affairs and in their social concept
and ways of life (wherein the elements of simila rity are more
than those of disparity and which is the largest fundamental
factor in keeping them together a s . an Ummah despite being
scattered all over the surface of the earth) is a positive proof of
the fact that this society was established on a Sunnah and that
tradition has continued withou t interru ption throughout these
long centuries. There is no *'missing link” for which we may
have to search in darkness.
The second historical fact which is equally .poten t is that
the Muslims have, in every age, after the death of the Holy
Prophet, been endeavouring consistently to ascertain what
exactly his established Sunnah is, and whether any novel factor
(bid'a) was entering into their system of life through, some
forged means. They neither were nor could afford to be careless
about investigating and ascertaining the Sunnah because it had
the status of law for them, it formed the basis of judicial deci- .
sions in their law-courts, and all their affairs, were being
managed in accordance with it. The means of this research
and the results thereo f have been*bequeathed to us from
generation to generation, from the time of the first Islam io
Caliphate right up to our own times, and the labours of each
generation havo been.fully preserved. If one understands these
 Legislation and Ijtikad in Islam 83

two historical facta fully and properly and then makes & scien­
tific study of the means by which Sunnah is to be ascertained,
he will never fall a prey to any misgiving that be is faced with
some insoluble puzzle.
(it?) There is no doubt that there have been numerous
differences in the matter o f ascertaining and establishing the
Sunnah and such differences can also arise in future. But then
similar differences have occurred, and many indeed will occur in
future, even in the matter of interpreting a good many rules
and injunctions of the Holy Qur’an. I f such differences cannot
form an argument for giving up the Qur’an why should they be
made an excuse for giving up the Sunnah 1 The principle has been
accepted in the past (and even now there is no alternative but
to accept it) that whoever puts forward anything as the in­
junction of the Qur’an or the injunction of the Sunnah should
produce his arguments in support o f his claim. I f hie argument
is sound, it will be accepted by the learned men of the Ummah
or at least by a large section of them and anything which would
be devoid of convincing argument will itself fizzle out and will
not be able to gain any ground. Thia is the principle on the
basis of which millions o f Muslims in various parts of the world
have agreed on a particular juristic school o f thought and large
blocs of their populations have established their social system
on the strength of a particular interpretation of the Qur’anic
injunctions and'a particular set of the proved Sunnah.
2. The second criticism that has been offered about my
paper is that there is contradiction in it. A certain critio has
sought to point out that on the one hand I have stated that no
one has the authority to change the clear and positive injunc­
tions of the Qur’an and Sunnah, and on the other I have said
that in exceptional conditions and circumstances Ijtihad can be
utilised to ascertain the situations justifying deviations from
these injunctions to suit the exigencies of the time. I have not
been able to appreciate the nature of the alleged contradiction.
Every law in the world makes provision for exceptions from the
general rules in abnormal and extraordinary situations. In the
 84 The Islamic Law and Constitution

Qur’an also there are numerous examples o f such conecssions

and from these the jurists have deduced the principles which
have to be home in mind in regulatin g the limits and occasions,
for the concessions, e g ., the dictum ‘necessities make certain
inhibition s legal’ ; or that 'difficulties attract concessions’ .
3, The third criticism has been extended to all those who
have mentioned some conditions for Ijtihad in their discourse
and as J am also one of them, it is incumbent on me to answer
it. I would respectfu lly submit that the conditions mentioned
by me may be studied over again and then the particular condi­
tion which is sought to be annulled should be pin-pointed. Is it
desired to rule out the condition that those undertak ing Ijtihad
should be sincerely desirous o f following the dictates of the
Shari'ah and not wanted to overstep its limits 1 Or the condi­
tion th at they should be conversant with the language of the
Qur’an and the Sunnah ? Or the condition that they should
have made suoh a deep study of the Qur’an and the Sunnah as
would enable them to fully understand the system of the
Shari* aM Or that they should be cognizant of the contributions
made by the past M u jta hidin l Or the condition that they should
be conversan t with the problems and affairs o f the world 1 Or
again that they should not be persons of bad conduct and devoid
of Islamic moral standards 1 Whicheve r o f these condition s is
considered to be unnecessary by the critic should be specified
precisely. To say that in the whole Islamic world not more than
ten or twelve persons can be found who fulfil these conditions
and come up to this standard , is, in my view, expressing a very
poor opinion about the Muslims of the whole world. Perhaps
even our opponents do not consider us'to be so degraded as to
think that we Muslims of the whole world cannot produce
more than ten or twelve persons possessing such qualifications.
Neverthe less, if anyone wishes to dash the door of Ijtihad wide
open for every Tom, Dick and Harry, qualified or unqualified for
the job, he may do so. But I shoulH like to know how he will
be able to make the Muslim public swallow the results o f Ijlihad
thus undertaken by men who are devoid of good conduct and
 Legislation and Ijtihad in Islam 85

sound learning and whose motives and sincerity is looked upon

as doubtful and questionable ? Can th e Jjlifcad pci formed by
such poople ovor win the support, confidence and loyalty of the
people 1 And if i t cannot, as it is bound to, then of what value
would it bo for ns and the posterity 1

III
IJTIHAD. IJMA‘ AND SI10RA
Outline :
It seems that the people are going to the opposite extremes in
dealing with the nature and scope of legislation in Islam. Some say
that there is no scope for legislation in Islam, Law has been revealed
by God and H is Prophet and the M uslims are left only io follow the
law in the prescribed farm. Some others hold that there is unlimited
scope for free legislation in Islam and they say that Ike rulers are
entitled even to change or make amends in the forms of - worship
(Ibadaat) determined by the Holy Prophet. For instance, they
permit them to change the form of the prayer, of the fast and the like.
Please let us know what is the real stope of legislation in
Islam and what form can legislation take in an Islamic State.
Please also let us know what is the legal position of the personal
and consultative verdicts of the right-guided Caliphs and of the
opinions of the legists of the past. Also throw some light on the
concepts of Ijma* and Shura.
Answer :
1. In Islam , there is no scope for legislation in the field of
worships. Their forms have been laid and cannot be changed
or amended. B ut in the field of individual and social affairs
(Mu'amalat) there is a limited scope for legislation in m atters
about which the Qur’an and Sunuah are silent.
The basic principle which holds good in Islamic law is th a t
in respect of worships, do w hat has been prescribed and do not
innovate ; while in respect of tlfe general affairs of life, follow
th a t what has been commended, avoid th a t what has been
forbidden, and where the Law-giver has not given any guidance
00 The Islamic Law and Constitution
you are free to act on your own ’dsion and decide accordingly.
Shatibi .in his book Al-I'tisam states this principle in the
following words :
"The rule for worships is a little different from the one
for general affairs of life. In general affaire the law is
th a t where the sovereign is silent, the people are free
to aot on their own vision. This is the field of
permissibles. B at contrary to this, in respect of matters
of worship and prayer no such thing can be adopted
which has no basis in the Sbari‘ah. For 'iiadaat are
directly related to the clear command and the will of
God. The reason for this distinction is that in the
general worldly m atters we ourselves may, with the
help of our own intellect, discover the right path, but
intellect cannot guide us in the realm of worship. It
cannot tell us how to get nearest to the Lord” .1
2. In the realm of the general affairs of life (Mu'amalat)
legislation can be made in four fields, viz :
(i) Interpretation, i.e,, the ascertainment of the intent and
the meaning of the nass (a Qur’anic verse or established
tradition) in respect of matters about which a command
in the nature of order or forbiddance is available from
the Law-giver.
(ti) Analogy. I t consists in applying to a certain case
about which no specifio guidance is provided, a command
which has been given by the Law-giver for a similar or
like case. This is done by discovering the reason or
the effective cause (iUah) of a certain commandment
and to apply it to cases where the same effective cause
is pres out.
(h i ) Inference and Ijtihad. This is the application of the
general principles of the Shari*dh to the ordinary,
minor and day-to-day problems and an endeavour to
formulate, on the basis of suggestions, indications or
<
1. Shatibi. Al-I'tiaarrh Vol. I l , p. 115 (Matha* Mustafa Muhammad, Cairo),
 Legislation and Jjtihad in Islam 87
implications of the injunctions of the Shari'ah, an
overall view of life as the Lftw-givor would like it to be.
(w) New Legislation. To formulate, in respect of those
problems about which the Law-giver has provided no
guidance, new laws which are in conformity with the
ultimate objective of Islam, and are capable of mebting
the real needs of the people and thus are expedient
and are not repugnant to the spirit, temperament and
the overall system of Islam. Muslim legists have called
this 'Masaleh M urxdlah' and 'Iatihsan', By mazaleh
, mursalah are meant ‘all those expediences which have
been left to our own choice and nothing has been pres­
cribed either way’. Zrtifcan, on the other hand is, in &
sense, a concept of equity, wherein although a oertain
commandment is arrived at through analogy [Qiyas).
but because of greater and wider expediences admissi ble
’ in Islam, the dictate of expediency is given preference
over the apparent inference through analogy,
3, The concepts of interpretation, analogy and inference do
not neod any further elucidation, but those of mursalah
and istihsan do need some explanation. Shatibi has discussed
these problems in a masterly way.1 He proves with incontrovert­
ible arguments that legislation under masaleh mursalah does not
amount to totally independent and unfettered legislation. There
are certain conditions which must be fulfilled and they are : .
(a) The legislation so made should bo in conformity with
the objectives oi the Shari'ak and not repugnant to
them in any way.
(b) That it should be intelligible and acceptable to the
people when presented before them 2
(c) That it should be made to fulfil any real and genuino
need, or to remove any genuine difficulty^

1. Sec Shatibi, A l-F tisam , op, sit,

2. T his m eans th a t it should n o t be contrary to tho general notions of
reasons as accepted by the M uslim society—Editor,
S hatibi, Al-VUsam, Vol. IT, pj>. 110-14,
 88 The Islamic Law and Constitution
Shatibi also discusses the principle of istik tan in deta il.
According to him, istihsan consists in the rejection of Qiyas and
the acceptance of the dictate of equity and expediency in a case
where an inference from Qiyas leads to a situation which involves
in the eyes of the juris t, any such tangible inconvenience,
discomfort or loss which the Shari'ah wants to avoid, is against
the express good of the people or is repugnant to an admissible
custom. Thus in oase of islihsan, the apparent dicta te of Qiyas
can be rejected only if there is a genuine case of equity and
there are strong arguments to support and establish it. 1
4. The opinion, fatwa, or research of a legist or juris t, how­
ever high, in respect of the above discussed four fields, will at
best be only an expert opinion or a research conclusion, and will
enjoy as much weight and respect as is commensurate with the
stren gth of the argument and the academic position of the legist.
But such opinion will not amount to LAW. To give it the
statu s of law it is essential that the legislative council of an
Islamic State , consisting, as it must, of the men of auth ority
and learning, should enact that inter pretation , Qiyas, inference
ijtihad, Miksan or istislah into LAW, through its ijma* (consen­
sus) or majority decision.2 I would like to substantiate this
point by some examples from the period of Khilafate-Baekidah,
(/) The Qur’an has prohibited the drinking of liquor, but
no specific punishm ent has been prescribed for the
offence in the Book. The Holy Prop het imparted
different punishm ents to different offenders —■each
suiting the specific case in which it was awarded. As
such, he did not prescribe any specific punishment
(hadd) for this offence. Abu Bakr and 4 Umar gave the
punishm ent of forty stripes to the offender but they
too did not make any Jaw to that effect. During the
reign of 'Uthman, when the number of offenders
increased, the problem was presented before the
Majlie-i-Shura. In the meeting of this council, *AU
L Shati bi* A l- I ‘tieam ,., pp. 118-19, «
2, See also C hapte r N o. V, F irst P rincip les o f an Islam ic State ,
 Legislation and Ijtifiad in Islam 89

made, a brief but impressive speech and suggested that

eighty stripes be laid as punishment for the crime.
They unanim ously adopted this suggestion and through
this ijma' the decision became law.12
(ii) I t was enacted during the Khilafat*e-Rashidah that a
worker or manufacture r was responsible for the com­
modity he had been given to work uppn, and if that
commodity was destroyed while it waj with him', he
would have to make good the loss. For instance, if
some cloth ha$ been given to a tailor or a piece of gold
to a goldsmith and the commodity is destroyed while in
his possession, he will have to make good the Iosb. This
decision too was made on the plea made by He
argued that although, on the face of it, the worker or
the manufacturer does not seem to be responsible for
the loss whioh is not the result of his own negligence,
but if there is no such law of vicarious liability, the
workers will normally become negligent towards the
properties of others and this would involve a greater
nation al loss. Thus it is expediential to hold him
responsible for the goods given to him. This law, too,
was made through ijma'*
(Hi) ‘Umar judicially decided that when in a murder more
than one person were involved, Qisas should be derived
from all the accomplices. Malik and Shaft* i have
adopted this position. But the decision of 'Umar has
not been regarded as a part of the law, for it was a
judicial verdict, and was not enacted into law by an
ijma* or the majority of the Shura.3
The question arose t h a t : If a person whose where­
abouts were not known and whose wife had, with the
permission of the court, contracted a second marriage,
appears, which of the two husbands will have

1, Shatibi, A l-V H n m . Vol, II, p. 101.

2, . Ibid., Vol. II, p. 102,
3, iwd,. ir,
 90 The Islamic Law and Constitution

preferential right upon the wife t Khulafa-e-Rashidin

gave quite different verdicts in such oases. But none
of the deci aions enjoys the status of law, for the
problem wag never presented before the Shura and no
ijma* wag ever arrived at on the same.1
The above discussion clearly shows that the position
given to the judicial verdicta in the legal system o f Islam is quite
different from the one given to them in the English law. In the
English law the verdicts of the Judiciary are precedents and
amount to law as such. But in Islam the decision of a judge,
which involves a certain interpretation of a na&s is the result
o f a Qiyas or an Ijtihad, will definitely be enforced in the case it
deals with, but it will not become an integral part of the law
as such. Similarly, a judge too is not bound by his own earlier
judgments. He can later on give a different decision in a similar ir
case, provided he has changed his views on the subject and has
realised that his earlier view was not correct.
6. After the period of the Khilafat-eRashidah, the institu­
tion of Shura disintegrated. During the later period different
legists and jurists formulated their corpus ju irs. Thes codes of
fiqh began to enjoy semi legal status for the simple reason that
the overwhelming majority of the people o f different regions had
voluntarily accepted the fiqh of a certain Imam. For instance,
Iraq and (eastern provinces adopted the fiqh o f Abu Hanifa,
Spain and North Africa, of Malik, Egypt, of shaft* i y etc. But
the mere popularity of a certain fiqh in a certain region does not
impart to it the status of law in the real sense of the word. If
a certain fiqh has become law, it has become so only if a state
has adopted it as its law, and not otherwise.
There has been some differences of opinion as to the exact
definition of {jma*. According to Shaft* i, ijma* is "a complete
consensus of all the learned on a certain point of law” . Accord­
ing to him, there should not be a single opinion against the
consensus. Ibn Jarir, Al-Tabari and Abu Bakr Al-Razi regard
even a majority decision as ijma 1 . -The position of Ahmad ibn

1. Shatibi, Al-Viisam , Vol I I , p , 126,

 Legislation and Ijtihad in Islam 91

Hanbal is th at when he says "we know of no opposition to this

view” that means that he regards that decision as ijma9.
All am agreed th at ijma* is a final authority. This means
that when the ijma* has been arrived at on a cetain interpreta­
tion of a naes or on a certain ijtihad, Qiyas or expediential
legislation, then such an ijma* is binding on all and must be
followed. Differences arise only as to tho question whether there
has been an ijmaf on a certain legal point or not 1 No one
challenges the authority of ijma* as such. The controversy hovers
round the point : whether it fcos b*en arrived al or nut /
As far as the period of the KhrlafiU^./tushidah i? concerned,
there is no difficulty in finding out the ijmu arrived at in that
period. The institution of Shura was there and all the decisions
made through consensus or majority verdict are enshrined in the
traditions. Such decisions can be depended upon as of the
unimpeachable authority. But as to the later period, when the
institution of Shura disintegrated and when them was no proper
machinery for the achievement of the consensus, it became very
difficult to know whether there had been an ijma* on a certain
point or not. That is why the ijma* of the Khilafat-c-Rashidah
is indisputably aooepted. But when anyone olaiins that there
has been an ijma 1 on a point in any later period, then all

be found out only for the period in which the political system
of Islam has been in operation : without this, it is not possible
to ascertain decisively the existence of an ijma*.
There is a common misconception that Shafe'i, Ahmad ibn
Hanbal and some others do not believe in the existence of
This misconception is the product of a failure to appreciate the
above-mentioned position. When a person claimed that there
had been an ijma* on a certain point and did not produce any
proof of such an ijma', these people refused to accept that
claim. Thus they did not dispute the authority of ijma9 as such ;
they only disputed the occurrence of ijma9 on that specific issue.
Shaft* i has discussed this point in sufficient detail. In his
 92 Islamic Law and Constitution
hook Jami al-‘Hm he says that it has now become impossible to
ascertain all the opinions of the 'Ulama on minor and detailed
problems because the world of Islam has spread far and wide,
the 9 Ulama have dispersed and the close organisation of the
community has shattered. In such conditions it is wrong to
claim any ijma' on points of detail. But as to the basic
principles and the major problems, it can be said that there
has been ijma* on them, for instance, there has been ijma* on
the timings o f the five prayers, or the conditions of fasting etc.
In the words of Ibn T aim iya:
"Ijma* means, that al! the 'Ulama of the Ummah have
agreed upon a certain point. And when it is established
that there has been a consensus of the entire Ummah
on a certain legal point, then it is not rightful for any
person to refuse to accept that. Thia is so because the
entire Ummah cannot have consensus on error. But
there are many problems about which people think
that there is ijma* on them, while in fact there is none.
Rather in some cases even the opposite view is correct
and is upheld” J
The above discussion clearly shows that the ijma* and the
majority decision of the Ummah . on a certain interpretation of
nass or on a certain qiyas, ijtihad or expedientiai legislation do
constitute law and are deemed to be authoritative in Shariah.
I f such a law has been enacted by the men of learning and
authority in the world of Islam, it is binding on all the Muslims
o f the world and if it has been enacted by those of any one
country or region, then it will hold good for them alone.

1. Taimiya, Vol. I, p. 406. MatW Kurdistan-al*llmiah, Cairo,

1326 A J I.
 Chapter 3

How to Introduce Islamic

Law in Pakistan ?

Islam io Law,
W HE NE VE R there ia a discussion. on
is passed is,
one of the m ost im portant questions that
question is,
How wi ll it be introduced ? And th is
er to Islam ic
indeed, a.v er y im portant one* A changeov
lem in . -Ives
Law cannot be made ov er nig ht. The prob
is th e duij of
many a trioky complication* And it
e their be '*•
th e scholars and th e ad ministrators to giv
and adopt
thou gh t to th e problem and su gg est
ic Law in a
practical ste ps to introduce th e.I sla m
ma tic an d sci en tif ic wa y* M aulan a Maududi
sy ste
cu sse d th e pr ob lem s inv olv ed in th e int roduction of
dis
ered on 19th
Islam ic Law in Pa kistan in a speech deliv
re, and also
February, 1948 in th e Law College, Laho
intro du ction
ga ve some practical su gg estion s for its
th at speech is
in Pa kistan . The En glish tra nslation of
— Ed ito r.
presented in the follow ing ohap ter.
 HOW TO INTRODUCE
ISLAMIC LAW IN PAKISTAN ?

Jnmy previous discourse 1 1 had de alt with the sp iri t and the
ties and
fundamental precepts of Islamic Law and ou r du
s in thi s reg ard . I ha d als o rep lie d to the ob jec tions
obligati on
n of Islamic
tha t are generally pu t forward ab ou t the introductio
efficacy as
Law in modern times and to the criticisms about its
al sys tem . Th at ad dre ss of mi ne wa s of an int rod uctory
a leg
ater length
nature. Now I propose to discuss this problem at gre
be adopted
and will explain the course tha t should, in my view,
for the enforcement of Islamic Law in our country.
doubts
I would like, at the very outset, to dispel some of the
considerable
and misgivings which crowd into the minds of a
enforcement
section of our people as soon as the y think of the
intention to
of Islamic Law. Many people on hearing of our
an Isl am ic St ate in Pa kis tan , wh ich wo uld of co urse,
establish
t the very
be governed by Islamic Law, begin to think tha
the prebent
moment Pakistan is declard an Islamic Sta te, all
ing Islamio
laws will be repealed and replaced by correspond
e.
Laws without a minute’s delay and all in one strok
n folk
This misunderstanding is not confined to the commo
It is fou nd am ong pe rso ns of rel igi ou s un de rst anding as
only.
Th ey see m to thi nk the da y we res olv e to mo uld Pakistan
well.
the practical
into an Islamic Sta te, it should also be the day of
the fact tha t
fulfilment of tha t resolution. Such people overlook
. Ra the r,
the legal code of a country does not exist in a vaouum
is de ep ly int erl ink ed wi th the eth ica l no rm s an d the social,
it
no mi c an d po liti cal ord er of the co un try . Th ey do no t realise
eco
no t alter
tha t so long as the social set-up of a country does
ange. They
radically, the legal system can undergo bu t little ch
t tha t vit al cha ng os ha ve bee n wr ou gh t in ou r lives
also forge
rin g the pe rio d of the Br itis h rul e an d tha t the en tire mode
du
ested of its
of our living has been de-lslamised* It has been div
w 1. ~ E d it or.
nce ie to Ch apt er 1, ‘The Tsl amio La
1. The refere
 la m ic La w in Pa ki sta nt 95
How to In tro du ce Is

is be in g go ve rn ed by pr in ci pl es derived
Islam ic character and
an Is la m . C on se qu en tly , w ha t is required
front sources other th
th e en tir e sy st em of our lif e. And th is , in
of ua is to Islam ise an en or m ou s am ou nt of ’
d de m an ds
its turn, is an uphill task an
strenuous effort. s of modern life,
of th e pr ac tic al pr ob le m
H avin g no idea
no ra nt lo ve rs of Is la m ta ke th e task of
these ferv en t but ig
co lle ct iv e lif e of a na tio n ve ry lig ht ly and
revolutionising th e
ey in du lg e in da y- dr ea m in g an d crying
superficially. Hence th
ut su ch an ou tlo ok se rv es on ly th e in te re sts of
for th e moon. B
tr yi ng th ei r be st to pr ev en t th e establism en t of
th ose who are to scoff at the
ov id es th em w ith gr ou nd s
an Isla m ic State and pr
ve ry idea of th is venture.
I
GRADUAL CHANGE
ish to se e ou r Is la m ic id ea ls tr an sla ted in to
If we really w
no t ov er lo ok th e ba sio la w of nature th at all
reality, we should
uh in g ch an ge s in th e co lle ct iv e lif e of people
stable and fa rr ea is , th e more
e m or e su dd en a ch an ge
come ab ou t gr ad ua lly . Th
ge ne ra lly tu rn s ou t to be . For a permanent
sh ort-lived it is t bias *
it sh ou ld be fr ee fr om ex tr em
change* it is necessary th at

The best ex
«
and unbalanced approach.
am pl e of th is gr ad ua l ch an ge is th e re vo lu tio n
t by th e H ol y Pr op he t (p ea ce be upon him) in
brought abou , w ith the
qu ai nt ed , ev en su pe rf ic ia lly
Arabia. One who is ac he did no t
t’s ac hi ev em en ts , kn ow s th at
histor y of th e Prop he
tir e bo dy of Is la m ic La w al l at once. Instead of
enforce the en fo rcement.
ep ar ed gr ad ua lly fo r th eir en
th at , th e society was pr f in th e
fo r re fo rm by in cu lc at in g be lie
H e star ted his efforts
Is la m , vi z, th e un ity of Q od , th e Life after
fundam entals of
st itu tio n of Pr op he t-h oo d an d by inducing the
D eath and the in
ri gh te ou sn es s an d pi et y. Th ose who
people to liv e a lif e of
m es sa ge w er e tw in ed by hi m to believe in *an d’
accepted this ev ed to a
of lif e. W he n th is w as ac hi
practise th e Islamic way him) w^nt a
, th e Pr op he t (p ea ce be up on
considerable degree
 The Islamic Law and Constitution
step further and established an Islamic State in Madinah with
the object of making the entire life of the oountry conform to
tbo Islamic pattern. After gaining political power and taking
the reins of administration in his hands, he (peaoe be on him)
started an all-out campaign for the regeneration and the
reconstruction of the collective life of the community of Islamic
concepts of life : an end for which he had been heretofore
endeavouring by means of preaohing and persuasion only. He
(peaoe be on him) introduced a new system of education—a
system which, in keeping with the conditions obtaining in his
time, consisted mainly of verbal instruction and went on with
the execution of a well-chalked-out and a systematic plan for an
overall reform in the moral, social, cultural and economic life
of the corrupt society of his day. These efforts progressively
brought about a radical ohange in the mental outlook and the
practical conduct of the people. In commensuration with the
progress made in this field the Prophet (peace be on him)
uprooted the practices of the “ Age of Ignorance** one by one and
substituted for them new, moderate and humane principles of
human conduct. Along with these reforms, the Prophet
proceeded with the gradual enforcement of the legal code of
Islam, and the result was that within a period of nine years,
the life of the country was Islamised in all its aspects—social,
political, economic and legal.
A careful study of the Qur'an and the- HadM reveals the
gradual and marvellously effective course adopted by the Prophet.
We find that the Islamic Law of Inheritance was enforced
in the third year after the migration (hijfah). The gradual
enforcement of the rules and regulations regarding mfi.rria.ga and
divorce was completed in the year 7 A.H. The enforcement of
criminal code was spread over a period of many years and got
its final touches in 8 A.H. An atmosphere congenial for the
prohibition of wine was created gradually and its absolute
prohibition was effected in the 8th A.H. Similarly, though the
evils of interest were stressed early in Meccan life (i.eM before
£ the Holy Prophet migrated to Madinah) yet it was not practi-
 Bow to Introduce Islamic Law in Pakistan t 9?

cally prohibited until 9 A.H. when the whole economic structure

of the Muslim society had undergone a complete transformation
and the new social order had been firmly established .
All this can be very well compared to the labour of an
architect who, while erecting a building, proceeds gradually
with his plan. He begins with gathering an adequate number
of masons and other labourers and procuring the required
material ; he then levels the ground, lays the foundation and
raises the walls brick by brick. The roof is laid when the walls
are ready and thus after continuous and extensive hard labour,
he completes the construction of the building.

The British rule over this sub-continent is another such

instance from our recent past. As we all know very well, the
Britishers did not commit the mistake of changing the entire
setup of Indian life including its legal structure all at once.
The Islamic Shari'ah was the law of the land before their
arrival, and it was no easy job to wipe out the current traditions
of living and to bring about a thorough Westernization of the
entire life. Consequently, for a considerable period of time
after the establishment of the British rule, the Islamic Shari'ah
remained in vogue in the country. The courts had the Qadis
to decide the cases in accordance with the Islamic Shari1ah
which was not confined only to the personal affairs o f the
Muslims but constituted the law of the land. The Britishers
tolerated all that and took about a hundred years to replace
the Shari'ah by their own code of law.
All this was done very gradually and systematica lly. First
of all the Britishers strained the people who could serve their
purpose by effecting a change in the educational system o f the
country. Skilfully they propagated their ideas, reinforced their
propaganda with official power and thus revolutionised the
mental attitue of the people. The^ also changed the economic)
order prevailing in the sub-continent. All this resulted in a
gradual change in the collective life of the country followed by
a gradual replacement of old laws by new ones.
98 (Th* M am ie Law and Conititution

Coming to our own times and our own country, Pakistan,

if we wish to promulgate Islamio Law here it would mean
nothing short of demolishing the entire stmeture erected by our
British masters and .the erection of a new one in its place. It is
obvious that this cannot be achieved by just an official proclama­
tion or a parliamentary bill, beoause it is a stupendous task and
demands a good deal of hard and systematic work according to a
well thought-out and all-embracing programme. For instance,
we need a thorough reorientation o f our educational system.
At present we find two kinds of educational institutions running
simultaneously in our country, viz., the old religious ‘madrasah*'
and the modern secular schools, colleges and universities. None
o f them can produce people needed to run a modern Islamic
State. The old-fashioned schools are steeped in conservatism to
such an extent that they have lost all touch with the modern
world. Their education has lost all oontaot with the practical
problems of life and has thus become barren and lifeless. It
cannot, therefore, produce people who might be able to serve,
for instance, as judges and magistrates of a progressive modem
state. As for our modern secular institutions, they prodnoe
people who are bereft of even a rudimentary knowledge of Islam
and its laws. Moreover, we can hardly find such persons among
them whose mentality has not been affected by the poisonous
content and the thoroughly materialistic bias o f modem secular
education.
There io yet another difficulty. The Islamic Law has not
been in force for the last one century or so, Consequently, our
Legal Code has become stagnant and lags behind the time, while
our urgent need is to bring it in level with the latest develop­
ments o f the modem age. Obviously, this would require a
considerable amount of hard work.
There is, however, an even bigger hurdle. Living under the
domination of an alien power and deprived o f the Islamic
influences for a long time, the ^pattern of our moral, cultural,
'social, economic and political life has undergone a radical change
and is at present far removed from the Islamic ideals. Under
 a How fo Introduce Islam ic L aw •in P a kistan t 9ft
9

such circumstanoes it cannot be fruitful, even if it were possible,

to change the legal structure o f the country all at once because
then the general pattern o f life and the legal structure will be
poles apart, and the legal change will have to suffer the fate o f a
sapling planted in an uncongenial soil, facing a hostile environ*
meni. I t is, therefore, inevitable that the required reform should
be gradual and the changes in the laws should be effected in such
a manner as to balance favourably the change in the moral,
educational, social, cultural and political life of the nation.
B u t making a pretext o f this reasonable consideration for
gradation in change, some people plead for the establishment
of a secular state for the time being. They argue that when
an Islamic atmosphere is created, an Islamic state will auto­
matically come into existence and the enforcement o f Islamic
laws will follow in its nutural course. Such statements are ab­
solutely fallacious and misleading. The question is : who will
build up the required Islamic atmosphere ? Can an irreligious
state, with Westernized people at its helm, do this job i W ill
the persona well-versed only in running bars and night clubs and
movie houses spend their energies in constructing and maintain­
ing moseques ? I f the answer is in the affirmative, it will indeed
be a unique experiment o f its kind in human history : ungodli­
ness fostering godliness so that it might ultimately be supplant­
ed by the latter !
I f they have any other interpretation, they may kindly
elucidate as to who will create the “ Islamic atmosphere” and
what will be the resources at his command ? And, during this
interim period, what will be the purpose of the secular state 1
What end will its organs serve ?
I f we reflect for a moment and consider the examples quot­
ed above to support that principle o f gradual ohange in the
transformation o f collective life, whether Islamic or un-Islamic,
can be brought into existence only when the goal is unmistak­
ably clear and a definite plan is chalked out for the achieve­
ment of that goal.
The Islamic revolution brought about by the Holy Prophet
 100 Ths Islamic Law and Constitution
(peace be on him) wag the outcome of years cf toil----- years
spent in producing men suitable for the cause and in changing
the outlook of the people by propagating the teachings of Islam.
And above all, the entire administrative machinery of the small
city state of Madinah was utilized for. the regeneration of the
society and the creation of a now civilization. Thus was the
ground prepared for the enforcement of the Islamic laws.
The Britishers could succeed in bringing about their cherish­
ed changes in India only because the reins of government were
in their hands and because they knew the proper method of
transforming the collective life of a people. They Lad a definite
goal and a dear plan. They worked i □cessantly for it and at
last succeeded in establishing a legal system which was in con­
formity with their ideology and culture. But still some people
are under the delusion that a building can be erected without
architects or by those who are neither competent nor willing to
do the job 1
II
THE CORRECT PROCEDURE
No reasonable person can deny that Pakista n was demand­
ed and established in the name of Islam and for the sake of the
revival of its glory. It is thus potentially an Islamic ideological
state. And this being so, it must be recognized as an incontro­
vertible fact that it is the state which should play a positive
role in the establishment of the Islamic system of life. When
the state is our own and we have placed at its disposal all the
resources of our oountry, there is no reason why we should go
elsewhere to fetch the architects of the Islamic order.
First Step—I f what has been stated above is correct, then
the first step towards our destination would be to Muslimise
(convert to Islam) the state which is still based on and working
according to the same secular bases on which it did during the
British period. The practical shape for the achievement of this
end would be that our Constituent Assembly should unequivo­
cally declare :
 How to Introduce Islamic Law in Pakistan ? 101

(i) That the sovereignty in Pakistan belongs to God

Almighty alone and that the Government of Pakistan
shall administer the country as His agent,
(if) That the basio law of the land is the Islamic Shari* uh
which has come to us through our Prophet Muhammad
(peace be on him).
(tii) That all those existing laws which may be in conflict
with the Shariah shall in due course be repealed or
brought into conformity with the basic law and no law
which may be in any way repugnant to Shariah shall
be enacted in future.
(iv) That the State, in exercising its powers, shall not be
competent to transgress the limits laid down by Islam,
This declaration will have a far-reaching effect on every
department’of our national life. For instance, after such a decla­
ration, our voters will beoome aware of the purpose for which
they have to elect their representatives. Howsoever deficient
the general mass of our voters may be in respect of formal edu­
cation, they certainly possess the sense to decide as to what type
of people can be relied upon for a certain purpose. We have
never seen them committing the folly of seeking the services of
a medical practitioner to plead a legal case for them or to
approach a lawyer for medical treatment I They do know, if not
fully at least to a considerable extent, as to who among their
fellow-countrymen, are God-feajing and virtuous and who are
completely given to worldliuess, self-interest and vice. People
choQse persons according to the ends in view. Up till now they
never had in view the object of electing representatives for
running an Islamic system of government. Therefore, they had
no need of finding out the people suitable for this purpose. The
country had a system of government devoid of religious ideals
and moral values and it required a particular type of people to
administer it. People, therefore, had the same type of men in
view and voted them to power. Now, if we frame an Islamic
constitution and the people are confronted with the question of
electing those who are capable of efficiently running the Islamic
 IM The Isla mic Law and Co nstitu tion
system of government, the y will na tur ally keep Isla
mic stan­
dards before the ms elv es. Their selection may no t
be an ideal
one, but thi s much is certain tha t the y wil l no t
select the
wicked or the corrupt typ e or the blind im ita tor s of
the West.
They are bound to select those persons who are bot
h mentally
and morally equipped for the task.
Second Step—Our next ste p towards the estab lish me
nt of the
Islamic way of life should be the transference of
the reins of
power to the people who are capable of using it eff
ectively for
the rea liza tio n of the above-mentioned ob jec tiv e.
This will of
course be achieved through the well-known democrati
c procedure
of general elections.
Third Ste p—The third step will be to chalk out a
compre­
hensive plan for a thorough reform of all the dep
artments of
our nation al life for which all the resources of the
sta te will
ha ve to be utilize d. Thus the edu cational system
will be
reorientated in all the means of propaganda—the
press, the
pla tform , the cinema and the radio— will be used for
the purpose
o f creating a new Islam ic consciousness, a new hea lth
y outlook ;
and an inc essan t and sys tem atic effort wil l hav e to
be made to
mould the soc iety and its culture into Islam ic pa tte rns
.
Persons who ha ve been incorrigibly affected by the
deca­
den t, sin ful and corrupt Bystem of life can be com
pared to a
fibre of discordant colour which will no t fit into our
pa tte rn.
Th ey are the los t men and are of no use from our po
int of vie w.
Such people will hav e to be replaced everywhere by
those who
oan pro ve helpfu l in the task ahead.
The economic sys tem will also ha ve to be basically
altered
and its whole str ucture which is bu ilt on the Hind
uistic and
Western sem i-feudalistio and aem i-capitalistio fou nd
ation s, will
ha ve to be dem olished.
I am sure tha t if a righteous group of people, pos
sessing
vision and statesmanship, wields po litical power and
, making
full use of the adm inistrative machinery of the gov
• •
ernment,
••
utilize s all the resources at its dispo sal for the exe
cution of a
well-conceived plan of na tio na l regeneration, the col
lec tiv e life
 How to 'Introduce M a m ie Law in Pakistan ? 103

of thia aountry can be totally changed within a period o f ten

years. And aa this change conies about gradually, the British
made laws can be amended or repealed and replaced by the
Islamic laws. This process will continue as suoh for some time
and ultimately all un-Islamic laws will be repealed and our
state will be governed by Islam ic laws alone.

Ill
CONSTRUCTIVE WORK FOR THE
ENFORCEMENT OF ISLAMIC LAW
A t this stage it seems necessary to throw some ligh t on the
constructive work that has to be done in order to change the
existing legal system of the country and to replace it by an
Islamic one. The vast programme o f reform to which I have
referred above demands an enormous amount o f hard work in
almost every walk o f life. After centuries o f stagnation and
inertia, degeneration and mental parasitism and servitude, we
find that every aspect of our national and cultural life has been
reduced to a mess. Here I will confine myself only to the ways
and means necessary for effecting reform in the legal system
and will not deal with the measures that should be adopted for
the reform o f other aspeots of our national life.
I, Academy of Law
The first thing that should be done towards this direction
is the establishment of an Academy of Law which should take
stock of the entire legal literature bequeathed by our ancestors.
This academy should not only translate into our national
language all those books which are necessary for acquiring an
understanding o f Islam ic Jurisprudence and Law but also edit
and annotate them afresh according to modern methods of
editing so that they may become accessible to the modern
educated people and useful for our [present-day needs. As w&
all know, a very great part * of the literature on Islamic
Jurisprudence is still in Arabic and the modem educated of
 104 TAe Islam ic Law and Constitut ion

our people are generally not conversant with thia language.

The result is that owing to inability o f their approaoh to the
real sources and the inimical propaganda of our opponents,
they have come to harbour many a misunderstandings about
Islamic Law . These misunderstandings have in some cases
assumed such proportions that some people have . started even
saying in so many words that the entire mass o f age-old
controversies, legal hair-splittings and long-drawn arguments
should be thrown into the wasto-papor basket and that we
should start work on Islamic Law all afresh. B u t the fact of
the matter is that the people who express such funny ideas
betray not only their lack o f knowledge but also their lack of
vision and imaginat ion. I f such people earnestly and
dispassio nately study the achievem ents of their ancestors in the
field o f jurisprudence, they will shudder at their ignorance.
They will come to know that during the last thirteen centuries,
their forefathers had not been engaged in fruitless controversies :
on th© contrary , they have left a very vast and priceless
treasure o f knowledge and research for the posterity . They
have built for us quite a considerable portion of the edifice ;
— and what a folly it would be if, out o f sheer ignorance,
we insist on demolishing what has already been built and start
constructing all anew. Even common-sense demands that we
should make the best use o f what we have inherited from our
forefathers and spend our energies only on further expansion
according to our present needs. Otherwise, i f every generatio n
of ours were to reduce the labours o f its predecssors to naught
and start anew, we would never be able to make any progress
worth the name.
I have already mentioned in my previous discourse1 that
during the past centuries the various Muslim states which
flourished over a large part o f the then civilized world, had
Islamic F iq h as their 'Law o f the 4land’ . Muslims of those days
were not “ barbarians” . Bather, they had a highly advanced

1, Seo Chapter 1, The Islamic Z/iw

 How to Introduce Islamic Law in Pakistan f 105
culture and their scholars of religious Jew had applied Islamic
principles to all the problems o f their civilization . It were
these experts o f Islamic FigA who held important positions as
magistrates, judges and chief justices and their judgements and
decrees have produced a large volume of legal precedents.
Indeed, these experts have made prodigious contribution to every
branch o f law. Their works evoke one’s highest admiration
not only when they discuss problems of Civil and Criminal Law
but also ^hen they deal with the problems of Constitutional and
International Law. A perusal o f their writings and judgements
gives us an idea of their deep insight in, and their intelligent
and masterly grasp of all these problems. What is really
needed now is that a body of scholars should be deputed to take
a detailed stook of all the writings left by our ancestors and to
re-edit them in the form of modern books of Law.
There are some books whioh must necessarily be translated
into the national language :
(1) The following three books on Ahlcam al-Qur'an (the
Legal Injunction s of the Qur’an) :
(♦) AVJaasas,
(ii) Ibn al--Arabi and
(iit) Qurtubi.
Their study will train our students to deduce injunction s
and laws from the Qur'an. These books present a commentary
on and an explanatio n of all the Quranic verses relating to legal .
commandm ents and also contain all the relevant details from
ahadith (Prophetic Traditions) and the sayings and practices of
the Companions of the Holy Prophet (peace be on him).
Besides these, they give ua the various ‘deduction s made by the
great jurists of the past along with their arguments in favour
of those deductions.
(2) Next to these three books on Quranic injunctions cornea
the great treasure of the commentaries on the books o f Hadith.
In these books, apart from commandments and laws, we find
the best material on legal precedents and their explanations.
From this treasure the following books should particuariy be
106 The- Islamic Law and Constitution
translated :
(i) On aLBukhari : 'Aini and Fath al-Bari.
(ii) On Muslim : Nawawi and Fath al-Mulhim.
(m) On Abu La ud : ' Aunul-Ma'bud and Badhl al-Majhud.
(it?) On Muwalta : Shah Wali-ulldh’s Musawwa and Mutaffa,
and Avjaz al-Masalik by a contemporary Indian scholar.
(v) On Muntaqa al-Akhbar : Shaukani’s Nail al-A'wtar.
(m) On JfisAfcat : Atfaliq-u&^Sabeeh.
(vii) On 'Ilm-al-Athar ; Ma'ani al-Athar by Imam T&hawi.
(3> After this we should turn to the fundamental books of
Fiqh from whioh the following must particularly be translated :
.(<) On Hanafl Fiqh :
ALMabsut and Sharh alrSifW ab Kabir by Imam
Sarakhsi
Bada’i' al-Sana’i' by Kashani ;
Ibn Hum bin’s Fath al-Qadir ;
Ridayah and . •
Fatawa*i*Alamgiri,
(ii) On Bhafe<i Fiqh : . ,
Kitab al-Umm ;
Sharh al-Muhadhdhab and
Mughni al-Muhtaj,
(Hi) On Maliki Fiqh :
Al-Mudawwanah and any other important book that
might be selected by scholars.
(it?) On Hanbali Fiqh,:
, ALMughni by I bn Qudamah ;
(0) On Zahiri Fiqh ;
Al-Muhalla by Ibn Hazm ;
(vi) On Madhahib-e-Arbal ah (the Four Schools of Thought);
Bidayat al-Mujtahid by Ibn Rushd and AL Fiqh fit-
Madhahib aLArba'ah compiled by Egyptian scholars*
(vii'f On certain special problems :
Kitab aLKharaj by Imam Abu Y usuf;
A^-Kharaj by Yahya Ibn Adam ;
Kitab aLAmwal by Abu ‘Ubaid al-Qasim ;
 How i& Introduce Islamic Law in Pakista n f 107
• • «

Ahkam al-Wafcf by Hilal Ibn Yahya and,

Ahkam al-Mitw arith by Dimya ti.
(4) We must also transla te some important books on
Jurisprudence and on the philoso phy of law, so that our legal
experts may acquire a deep insight into and gain a correct
understanding of the spirit of Islamic Fiqfr. In my opinion the
followin g books should be selected for this purpose :
(*) Usui al*Ahkcm by Ibn Hazm.
(is) Al-Ihkam li-Usul al-Ahta m by Amidi.
(lii) Usui al-Fiqh by Khadari.
(iv) Al-Muw afaqat by Imam Shatibi.
(v) P la n al-Muwaqqi‘in by Ibn al-Qayyim.
(tri) H ujjat Allah al-Eolighah by Shah Waliullah.
As I have already said, our need is not only to translate
these books, but also to-arrange their contents on the pattern
of modern books of Law\ New headings will have to be set,
scattered discussions on legal problems will have to be gathered
and collected under relevan t headings, and indices will have to
be prepared. Unless we take pains to effect these improvements
these books will not becoine fully useful for our present-day
needs. The method of compili ng a book in olden
• • •days was
quite different from that of the present age. Moreover, in those
days such detailed classification of Law as exists today had not
yet come into existence. For instance, our jurists had no
separate branch of Constitutional Law or Interna tional Law.
No doubt, they dealt with these problems but under headings
like Jihad (Laws o f War and Peace), Kharaj (Revenue and.
Finance), Marriage and Inheritance. Likewise, they had no
separate branch of Criminal Law. They dealt with such
problems under the headings of Hudud (Punishments), Jinayat
(Crimes) and Diyat (fine-money or blood-m oney). They were
used to discuss a subject at different places, therefore material
on a certain subject often scattered under so many headings.
They also did not discuss Econom ics and Finance a* separate
subjects. They severally dealt with these subjects under headings
lik e : 'the book of sales’, 'the book o f land-cu ltivatio n' etc.
 108 Islam ic Law and Constitution
k Iti the same way, they did not use mode m terms like Law of
Evidence, Civil Procedure Code, Penal Code, Criminal Procedure
Code etc. Questions relating to these aspec ts of law were dis­
cussed by them under headings like 'the etiqu ette for the judges',
•the book o f claims*, 'the'b ook of agreements’, and so on. Now.
y.
irthe se books are merely translated they cannot be of much use
to us. It is, therefore, impe rative that persons havin g knowl­
edge of modern legal syste ms should work on all such materials
and rearrange them to fulfil the modern requirements. I f this is
considered to be a very laborious and lengthy task, we should at
least prepare oomplete and exhau stive indices of all these works
and should also compile detailed bibliographies for the guidance
of a student of law. These should cover all the branches of
modern Law so that one may not experience any difficulty* in
finding out material on a required topic .
•
«

IT. The Codification of Law

The next impo rtant step in this connection is to appoint a
body of Islam io scholars and exports of modern legal thought
who should be entrusted with the task of codification- of the
Islam io Law sectio n and clause-wise according to the modern
patterns. In my discourse on the Islam ic Law I have already
1

explained, at length that, from academic and Islam ic points of

view, it i s . not binding to accept any and every sayin g or
expression of opinion by an autho rity on Fiqh, or anyth ing and
everything written in a book . of Fiqh. This is so because
every thing contained in a book o f Fiqh does not constitute
Ielatnio Law. .It is only the follow ing four thing s that constitute
Islam ic Law :—
(i) An explicit commandment of God laid down in the
Qur’an ; or .
(it) An expla natio n or elucidation of a Quranic command­
ment or an explicit order or prohibition from the Holy
Prop het (peace be on him) ; or
(ui). An interpretation, inference, Qiyas (anal
■ •
ogy), ijtiha d, or
I. See Chapter l-’-ffditor.
 Bow io Introduce Islamic Law in Pakistan i 109
istihsa n (juristic preference) on which there has been a
consensus (ijma 1) o f the ummah ; or it may be a
major ity decisio n of the ‘ulama whioh has been accepted
by an overw helming major ity of our own people ; or
(tv) An ijm a‘ or a major ity decisio n o f the nature discussed
in (m) above arrived at by our own men of learning
and author ity.
My proposal is that a body o f experts o f Islamic laws
should compile the first three categories of laws and command­
ments into a Code. Additions to it will contin ue to be made
as fresh laws are framed by general consent or major ity decision.
If and when such an exhau stive code has. been compiled, it will
be the basic book o f Law and all the current books of F ijh will
serve as comm entaries for this book. Thus the enforcement of
Islamic Law by our courts and its teaching in our Law Colleges
will be greatly facilita ted.
III. Reform of Legal Education
The third impor tant measure will be to change the prevail­
ing system of legal educa tion. It is imper ative that both the
courses of study and the methods of teaching should be
radically changed and overhauled so that our law colleges may
prepare the studen ts academ ically as well as morally for the
enforcement of Islamic Law in the country.
The type of education which is being impar ted in our law
colleges at present is worthless from our point of view. Students
who receive this education not only fail to develo p any insigh t
in the Islamic Law, but their menta lity and mode of though t
also become anything but Islamic. Moreover, the atmosphere
of these colleges is such that the Btudents are deprived of the
opportunity of imbib ing those moral qualities which are needed
to run an Islamic state. Consequently unless we change this
state of affairs and radica lly reorient the curricula and the
methods of teaching to suit our peed of producing legal experts
of a high mental and moral calibre who are well-versed in
Islamic as well aa modern legal though t, we oannot have good
 i l O ' (The Islamic Law and Constitution
lawyers, magistrates and judges for the court® of an Islamic
Btate.
For this purpose 1 would like to make certain suggestions
for the consideration of the scholars and the educationists :
, " .1*

(1) The first and basic reform is to deoide that the knowl­
edge of Arabic shall .be a pre-requisite for admission to a law
college. This knowledge of Arabic should be such as to enable
the students to study the Qur’an, the Hadith and the Fiqh.
Though we desire to make our own language the medium of
instruction in Law as much as in other subjects and want all the
relevant books to be translated, nevertheless the necessity of a
fair knowledge of the Arabic language is immense. An insight
into Islamic Law cannot be gained unless one knows the language
of the Qur’an, and that of the Prophet (peace be on him). In
the initial stages we shall no doubt experience difficulties in
obtaining Arabic knowing students for law colleges. We might
even have to start Arabic classes in law colleges themselves for
the first few years and might also have to increase the period of
education by one year but later oa> when Arabic becomes
compulsory in our educational system, Arabic knowing studedts
for our law colleges will be easily available.
(2) Along with the teaching of Arabic, the students must
• also be made to study the Qur'an and the Hadilh before beginn­
ing their education in Law so that they become capable of
understanding the spirit and the broad outlines of the system of
life envisaged by Islam. Our theological institutions have been
following since long the wrong method of beginning their educa- *
tion with Fiqh. In these institutions, the followers of the
various schools of thought teach Hadith according to the view
point of their particular school. One or two longer chapters
of the Qur’an are included in the curriculum just as a sacred
relic and even the study of these chapters, only the literary
beauties of the Qur’an are stressed. The result is that although
graduates from these institutions are well aware of many
particulars and details of the Mamie law, they are not fully
conversant with the real spirit, the ideals and the overall
 How to Introduce Islamic Law in Pakistan ? Ill
system of Islam, which these laws seek to safeguard.
Sometimes they do not even know the relation between Din
and SharPah, on the one hand and between the Skari'ah
and the problems of Fiqh on the other.1 The result of
this typ e of education is tha t most of these people believe
as if the minute details of law and the doctrine stressed
by or peculiar to the ir own school of tho ugh t alone is the real
essence of religion. And it is this erro r tha t has created
sectarian controversies and bigotry among the Muslims. Again,
as a result of this some of the basic objectives of the SAari'aA
have sometimes been overlooked in applying the rules of Fiqh
to the problems of everyday life. We wish this situ atio n to
come to an end. A stu den t must acquire an understanding of
Islam as a system through a stu dy of the Qur’an and the Hadith
before he begins the stu dy of Figh,
We will, no dou bt, be confronted with difficulties for the
first few years because we will not get graduates with good
knowledge of the Qur’an and Hadith and hence we might have
to sta rt classes of the Qu r’an and Hadith as weft in the law
colleges. Bu t gradually, as our general educational reforms
will bear fru it, we wiil be able to lay down the condition tha t
only those students who had Tajsvr (Interpretation of the
Qur’an) and Hddilh in degree classes as the ir optional subjects
will be eligible for admission to law colleges or else they will
have to spend an extra year to study these subjects.
(3) The curricu la of law colleges mu st necessarily include
the following three subjects :
(a) Principles of Islamic Jur isp rud enc e;
(ft) His tory of Islamic Jurisprudence ; and
(c) Fiqh, an unprejudiced stu dy of all the major
schools of Fiqh,
Witho ut mastering these three subjects, the students can
neither gain^a ^ complete understanding of Fiqh nor can they
develop those qualities of sound reasoning which are a pre-
I- Por a d iscu ssio n of the diff eren ce betw een Z)>n and
Sha ri*a h see Abu l
A ’la Mau dud h Tow arde s Und erstand ing Isla m , Tr-a nd
ed. K har ah id
A h m a d ,Isla m ic P ubl icat ions L td ,, I960, pp, 162-55,
112 TAc Islam ic Law and Constitution

requisite for becoming good lawyers and jurists. They cannot

also become experts in law, capable o f framing new rules and
regulatio ns for our progressive state and capable of employin g
the correct modes o f interpretation and analogou s reasoning.
Without that they cannot pronounce judgments o f the standard,
clarity, vision, and depth evinced by the legists o f the past.
And i f the judgments of our modern legists lack in these respects,
they will never be able to command respect and wholesome
approval of the people. N ot only th a t, without fully understand*
ing the principles o f their own law, they cannot apply them to
the new problems which will be cropping up every day and will
be creating altogethe r new situation s. I t is only the history of
Fiqh which reveals the evolution o f Islamic Law and also points
out the lines along whioh this law can develop in future. Con­
sequently , unless the students o f law are fully conversan t with
all the importan t contributions o f the scholars o f the past, they
cannot benefit from other schools o f Fiq h in cases where they
are unable to solve a certain problem with the help of the
approach and literature of some particula r school. This is
essential also because they should as a rule make use o f this
guidance and get assistance from the works of the past before
making an independ ent effort and pronouncing a final judgment.
I t is for these reasons that I consider the inclusion of the above-
mentioned three subjects essential in the list of compulsory
subjects in the curricula o f our law colleges.
(4) Along with reforming the curricula o f legal education we
will also have to give due importance to the moral training and
character-building of the students. From the Islamic point of
view, the law colleges should not serve as factories for producing
unconscientious lawyers, unscrupulous magistrates and unjust
judges ; on the contrary, they should produce lawyers and
jurists of high moral stature, o f unimpeachable integrity and
strength o f charaoter. They should be the living emblems of
honesty, fairness and justice.
O f all professions, the dispensation o f justice requires the
highest degree o f piety, the acutest sense of responsib ility and
 How to Introduce Islamic Law in Pakistan 113

the greatest measure of the fear of God. Graduates from our

law colleges must, therefore, be persons fit to take the place of
such luminaries of our history like Qadi Shurayh, Imam Abu
Hanifah , Imam Malik, Imam Ahmad Ibn Hanbal, Imam Shafe'i
and Qadi Abu Yusuf. These colleges must produce persons of
strong and dependa ble character who, while deciding a case in
the light of the Sharjah , have their eyes fixed on God and are
not at all swayed by greed, fear, personal interest or individu l
likes and dislikes, and who may not deviate from what they
believe and know to be right out o f any consideration
whatsoever.
IV . Reform of Judicial Systc
In order to prepare the ground for the enforcem ent of
Islamic law, we will have to introduce many reforms in our
judicial system also. Leaving aside other less importa nt
factors, I will mention only two of them which are most
importa nt from the Islamic point o f view.
(1) The first problem which deserves attention is the legal
profession which is one of the worst and probably the greatest
banes of the present judicial system. From the moral point of
view not a single argument can be put forward in its favour and,
in the practica l field, there is not a single genuine requirement
of court procedure for which a better alternative cannot be
provided for. This profession stands in such contrast with the
principles of Islam that as long as it exists, it would be extremely
difficult to enforoe the Islamic law in its real spirit. Moreover,
if the same jugglery is practised with the Law of God as is being
practised day in and day out with the man-made law, that may
not only deprive us of justice but may also rob us of our faith.
It is, therefore, imperative that this profession in its present
form is gradually abolished.
Theoretically speaking, the task of the lawyer is to help the
court in understanding the law and applying it to the case under
trial. In principle, such a need cannot be denied. It can also
be accepted that two experts of law may hold different opinions
 114: The Islamic taw and Constitution
regardingAthe same case. It is also possible that in the opinion
of one of the experts the case of a certain party may be stronger
than that of the other and vice versa. Thus, in order to arrive at
a sotind judgment, it may be useful for the court to know and
hear the arguments put forward on behalf of both the parties.
But the question is : Are these ends achieved in actual practice
and does this profession really meet this just requirement '?
Actually, the situatio n is very different. A, person possessing
legal knowledge and insight sells his services in the market.
Such a person is always ready to think out and produoe legal
points in favour of the highest bidder, irrespective of the merits
of the case. Thus a lawyer is not at all concerned whether hie
client is in the wrong, whether he has committed a crime or is
innocent, whether he wishes to get what is rightfully due to him
or wants to enoroaoh upon the rights of others. Again, a lawyer
has also no concern with the spirit and the real objeot of the law
itself and whether, in that sense, the case of his client is just or
unjust. What concerns him is that a certain person has paid him
his fees for pleading the oase on his behalf. Consequently, he
prepares the case and gives it a legal shape. He hides its weaker
points, plays up the favourable ones and picks out from the facts
of the case and from the evidence only such points as strong*
then the side taken by him. He also tries to influence and confuso
the witnesses so that the actual facts of the case—if they go
against his client—remain in the dark or at least become
doubtful. I t is the supposed duty of a lawyer to put forward
only such interpretation s of the* laws as serve his client’s
purpose and to strengthen it by referring to legal precedents.
Thus, he tries, in a way, to mislead the judge and circumvent the
process of justice. All this is done only to extract from the
judge a judgment which- ><wln favour of his client/ and not the
one which is desirab le from the point of view of justice.
A lawyer does not worry at all whether a criminal is being
acquitted or an innocent person ia \>eing convicted, whether a
person loses his right or usurps someone else s. I t is not his
business to support truth and uphold a. just cause. He is not
 How to Introduce Islamic Law in Pakistan . 116
the re to have justice don e ; his sole aim is money I For him
,
anyone prepared to pay the hig hest am ount is always in the
rig ht. Can a legal profession of aush a nature be declared rig
ht
and jus t if we have even the least regard for Islam 1 Can any
man with moral values, a healthy conscience and the fear
of
God, tak e such an awful responsibility upon himself as to hav
e
a wronged man deprived of justice and to see tha t the wrongdoer
continues to enjoy the fru it of his wickedness 1 And can the
advice of such legal experts who are paid to present a one-sid
ed
picture be of any help to the court in deciding a case jus tly
1
Who can believe tha t the difference of opinion in the
interp retatio n of the lawyers “ hired” by opposing parties, can
reasonably be honest and genuine 1 Surely, both of them would
have pu t forward jus t the con trary argum ents with the sam
e
vehemenoe, had the ir clients bepri exchanged between them.
I t is, therefore, app are nt tha t inoaloulable disservice has
been done to the cause of law and justice by making law a pro
­
fession. It has given premium to the violation rather tha n the
observance of Jaw. It has corroded the entire oollective life and
has made over politics extremely dir ty. In fact it is during the
lawyer’s educational life itse lf tha t the seeds of an immora
l
attitud e are sown, College debates make them hab itu ate d
to
speak aga inst the ir convictions; The real qualification of a goo
d
debator is considered to be his capacity to speak with the sam
e
vigour and eloquence both for and against a propositio
n, •
regardless of his personal views. The edge of his proficiency
in
speaking and arguing against tru th is fur the r sharpened during
the course of his practice in law and he becomes perfect in usi
ng
his mind and. his tongue against the dic tate s of his conscience
.
Then, thi s malady does no t stop here. When these people, wit
h
this moth-eaten character, enter the arena of public life and
politics, the y poison the academic, cultural and political life,
of
the whole nation.
Islam is in no way prepared to tolera te such an ugly sta te of
affairs, and the re is no place within, its legal and judicial stru
c­
tur e for thi s profession, as it is prevalent now-a-days ; for in
its
 116 Islamic Law and Constitution
present form it is quite oontrary to the spirit and traditions of
Islam. Muslims have ruled almost half the then-known world
during the last ten or twelve centuries but one cannot find even
a trace of the legal profession in their judicial system. • On the
contrary, the muftis of the past had always had independent
means of livelihood and used to render the servioe of issuing
edicts and helping the courts in the elucidation of points of law,
gratis, In view of the increased need of our time, we can per­
manently engage the required number of legal experts including
specialists in different branches of Law in cities, towns and
villages; and give them reasonable salaries from the government
exchequer. But every effort should be made to keep them
immune from any obligation to any of the contending parties.
The approach to them by any of the parties to a case should be
prohibited and none of them should be allowed to render any
“service” to them in any form, thus keeping them all the time
completely immune from every type of pressure or allurement.
Even the government should not have the right of putting any
pressure on them, just as it is not entitled to influence the
opinion of the judges. The courts can refer cases to them and
solicit their opinion. If there is any difference of opinion, they
can be asked to appear in courts and argue their respective view­
points. During the proceedings of a case, besides the cross-
examination of the witnesses by the oourt, these legal experts
should also*be entitled to extract facts from them which throw
any light on the case. This will really help the courts in the
correct interpretation and application of law. Honest differences
of opinion among legal experts will still be there. But his will
help in solving many a knotty legal problem : this will also save
' much of the time that is wasted due to the cleverly made-up
cases and false evidence. And, above all, this wll go a long
way in effectively checking litigation which is so rampant in our.
society, mostly due to this legal profession,
a

There is, however, one important gap that we shall have to

fill up in the absence of the lawyer#. This concerns the prepara­
tion of the cases for presentation to the courts. This is a genuine
 How to Introduce Law in Pakfaa* 117

necessity of litigant public and witbout a.proper machinery for

they will , not only them Belves experience much
tnoonvenienoe but also waste much of the valuable time of our
courts and confuse them by putting up their cases in an irregular
and incomplete form. A solution of this problem is that we
may revive the old institution of 4<Mvkhta rifi which existed in
the past and still continues in a deteriorated form in some parts
of our country. Our law colleges should hold subsidiary classes
to teach the procedural law to the people of average education
and make them conversant with the practioal aspects of the
judicial business. The duty of such persons would be to give a
legal shape to a case so that it may be properly presented in a
court of Hw.. They would also instruct the parties regarding
judicial procedure at the various stages of a case. These people
may be allowed to charge fees for their services. This will not
lead to the evils that we find in the present-day legal profession.
(2) In order to make the country ’s judicial system conform
to the Islamic standards, another importa nt reform is needed,
and that is the abolition of the court-fee. This is a pernicious
innovation and we Muslims were not even acquain ted with it
before the domination of the Western political thought and
values over us. It is foreign to the very spirit of Islam that our
courts of law, instead of rendering the service of dispensing
justice, should be tnrned into ‘shops of law’ whose doors are
closed for the persons who are not in a position to pay the price
of their services. This state of affairs is reminiscent of the
British regime and now that foreign rule has come to an end, we
feel that this evil should also go. We want to see our courts
functioning on Islamic concepts, according to whioh dispensing
of justioe is not a ‘business’ but a religiou s duty of every
Muslim and of their state most of all—a duty for whioh no fees
should bo charged.
One might say that if the court-fee is abolished, how will
the expenses incurred on the* judiciary be met ? I wish to
mention the followin g two points in this regard t
Pirstty, finder an Islamic dispensation the present heavy
118 Tbt Itlamfo Law and Oonttiitdion
judicial estab lishm ent, rendered indisp ensab le by the current
state o f affairs, will no longer be necessary. Abolition of the
lawyer’s profession will also play its part in reducing litiga tion.
Moreover, the duration of the cases will be considerably reduced.
Social> economic and moral reforms will go a long way in curtail­
ing the number of cases. Adequate training of police and jail
officials and reforms in these departments will also indir ectly
contribute to reducing the number of crimes. Thus we will not
be in need of as many judges and magistrates and as heavy a
judicial estab lishm ent as we need at present, consequently, there
will be quite a remarkable decrease in the expenditure of our
judicial depa rtme nt/ Besides that, in an Islamic state the scales
of pay also will not be the same as they are today .
After all these reforms and other curtailments of expenditure
and the burden of expen diture o f the judiciary on our national
exchequer will become much lighte r and, instea d o f imposing it
on those who need and seek justic e, wo can distribute it over
those persons who go to the courts to serve their unjust ends or
those who are greatly benefited by them . For instan ce, we can
fine such persons who try to evade summons or file fictitious
suits. The fine imposed upon criminals can also be used for the
same purpose. Besid es this, a person who gets a decree from a
court worth more than a certa in amount of money may be taxed
according to a certain fixed rate. If, in spite of all this, the
judic ial department has a deficit balance of expenditure, the
deficit can be met from the national exchequer, because to
dispense justic e among the people is, as has been said earlier,
one of the basic oblig ation s o f an Islam ic state. If the exchequer
bears the burden of police, education and health services, why
should it not finance the administration o f justic e t
' The above are a few suggestions which, I think , must be put
into practioe in order to make the enforcement of Islam ic law
possible in this country. I request the scholars and those who
have practical experience in legal and judicial matters to thrash
out these sugge stions and try to supplement them wherever need
be. In the mean time I hope that this explanation of mine will.
 How to Introduce Islamic Law in Pakistan 119

to some extent, satisfy those who entertain the wrong notion

that the enforcement of Islamic law is not possible at present,
and will make them understand that this work can be done. It
will also enable them to-have an idea of the ways and means of
doing this important task. But the enforcement o f the Islamic
law requires primarily an urge—an irrepressible urge—to do the
job. What we need is a group of people—a leadership—which
is imbued with the spirit of Islam and which is determined to
establish Islam, oome what may. We all know that if a
building has to be constructed, the objective cannot be achieved
e

if the architects who know the design o f the building and have
the will to construct it and possess the requisite resources* are
o
not available. On the other hand, if they are available, anything
can be built—be it a temple or a mosque*
 Part II

POLITICAL AND CONSTI­

TUTIONAL THOUGHT OF
ISLAM
 Chapter 4

Political Theory of Islam

WHAT is Islam and how does it approach the
political problem 1 What is its political philosophy ?
What are the Quranic foundations of the Islam io
state 1 What are its basic characteristics ? its
fundamental principles $ its ultimate objectives 1
—-These questions had begun to agitate the minds of
the Muslim India at the very outeBt of its contemporary
political awakening. In the tumultuous years of the
pre nineteen forty era, Muslims were in a bewildered
state of mind. They had not clear-cut destination
before them. Emotionally they were all for Islam but
they lacked a clear idea of the Islamic political order.
They were, to borrow the words of Tennyson, like :
An infant crying in the night
An infant orying for the light
And with no language but a ory.
Maul ana Maududi tried to present the Islamic
scheme of life to the Muslim India which was crying
for it. In this connection he also wrote a paper on
the? Political Theory of Islam’ which was read at a
meeting of the Inter-Collegia to Muslim Brotherhood,
Lahore in October 1939, The paper wta published
in the form of a pamphlet. We are presenting here
its English rendering. {The paper has also been
revised in accordance with he instructions of the
author. _ Editor.
 POLITICAL THEORY OF ISLAM
I
ITH certain people it has become a sort of fashion to
somehow identify Islam with one or the other system of
life in vogue at the time. 80 at this time also there are people
who say that Islam is a democracy, and by this they mean to
imply that there is no difference between Islam and the demo­
cracy as in vogue in the West. Some others suggest that Com*
munism is but the latest and revised version o f Islam and it is in
the fitness of things that Muslims imitate the Communist experi­
ment of Soviet Russia. Still some others whisper that Islam has
elements of dictators hip in it and we should revive the oult of
“obedience to the Amir” (the leader). All these people, in their
misinformed and misguided zeal to serve what they hold to be
the cause of Islam, are always at great pains to prove that
Islam contains within itself the elements of all types'of contem­
porary social and political thought and action. Moat o f the
people who indulge in this prattle have no clear idea of the
Islamic way o f life, They have never made nor try to make a
systematic study o f the Islamic political order—the place and
nature o f democracy, social justice, and equality in it. Instead
they behave like the proverbial blind men who gave altogether
contradictory description of an elephant because one had been
able to touoh only its tail, the other its legs, the third its belly
and the fourth its ears only. Or perhaps they look upon
Islam as an orphan when sole hope for survival lies in winning
the patronage and the sheltering care of some dominant creed.
That is why some people have begun to present apologies on.
Islam 1s behalf. As a matter of fact this attitude emerges
from an inferiority complex, from the belief that we as Muslims
can earn no honour or respect unless we are able to show that
oqr religion resembles the modern creeds and it is in agreement
 Political Theory of Islam 125

with most of the contemporary ideologies. These people have

done a great disservioe to Islam ; they have reduced the political
theory of Islam to a puzzle, a hotchpotch. They have turned
Islam into a juggler’s bag out of which can be produced anything
that holds a demand I Such is the intellectual plight in which
we are engulfed. Perhaps it is a result o f this sorry state of
affairs that some popla have even begun to say that Islam has
no political or economic system o f its own and anything oag^ fit
into its scheme.
In these circumstances it has become essential that a careful
study o f the political theory o f Islam should be made in a scien­
tific way, with a view to grasp its real meaning, nature, purpose
and significance. Such a systematic study alone can put an end
to this confusion of thought and silence those who out of ignor­
ance proclaim that there is nothing like Islamic political theory,
Islamic soaial order and Islamic culture, I hope it will also
bring to the world groping in darkness the light.that it urgently
needs, although it is not yet completely conscious o f such a need.

II
FPN DAMENTALS OF ISLAM
< I t should be clearly understood in the very beginning that
Islam is not a jumble o f unrelated ideas and incoherent modes
o f conduct. I t is rather a well ordered system, a consistent
whole, resting on a definite set o f clear-cut postulates. Its
major tenets as well as detailed rules of conduct are all derived
from and logically connected with its basic principles. All the
rules and regulations that Islam has laid down for the different
spheres of human life are in their essence and spirit a reflexion,
an extension and oorollary o f its first principles. The various
phases of Islamic life and activity flow from these fundamental
postulates exactly as the plant sprouts forth from its seed. And
just as even though the tree m ay spread in all directions, all its
leaves and branolies remain firmly attached to the roots and
derive sustenance from them and it is always the seed and the
126 The Islamic Law and Constitution
root which determine the nature and form of the tree, similar is
the case with Islam. Its entire scheme of life also flows from
its basic postulates. Therefore whatever aspect of the Islamic
ideology one may like to study, he must, first of all, go to the
roots and look to the fundam ental principles, Then and then
alone he can have a really correct and satisfactory understanding
of the ideology and its specific injunctions and a real
appreciation of its spirit and nature.
The Mission of the Prophets
The mission of a prophet is to propagate Islam, disseminate
the teachings of Allah and establish the divine guidance in this
world of flesh and bones. This was the mission of all the divinely
inspired prophets who appeared in succession ever since the
man’s habitation on earth up to the advent of Muhammad
(peace be upon him). In fact the mission of all the prophets
was one and the same—the preaohing- of Islam. And Prophet
Muhammad (peace be upon him) was the last of their line*
With him prophethood came to an end and to him was revealed
the final code of human guidance, in all its completeness. All
the pi ophets conveyed to the mankind the guidance which was
revealed to, them and asked it to acknowledge the absolute
sovereignty of God and to render unalloyed obedienoe to Him.
This was. the mission which each one of the prophe ts was
* • •
assigned to perform.
At first sight this mission appears to be very simple and
innocuous. But if you probe a little deeper and examine the
full significance and the logical and practical implications of
Divine Sovereignty and the concept of Tawheed (the Unity of
Godhead), you will soon realise that the matter is not so simple
as it appears on .the surface, and that there must be something
revolutionary in a doctrine which roused such bitter opposition
and sustained hostility on the part of the non-believers. What
strikes us most in the long history yf the prophets is that when-
ever these sorvanta of God proclaimed th at “ there is no ifah
(object of worship) except Allah”, all the forces of evil made
 Political Theory of Islam 127

common cause to challenge them. Xf it were merely a call to

how uown in the places of worship before one God with perfect
freedom outside these sacred preoincts to owe allegiance to and
carry out the will of the powers that be, it would have been the
height of folly on the part of the ruling classes to suppress the
religious liberties of its loyal subjeots for a minor matter which
had no bearing on their altitude towards the established
government. Let us therefore try to explore the real point of
dispute between the Prophets and their opponents.
There are many verses of the Qur’an which make it
absolutely dear that the non-believers and polytheists too, who
opposed the prophets, did not deny the existence of God nor
that He was the sole Creator of heavens and earth and man, nor
that the whole mechanism of nature operated in accordance with
His commands, nor that it is He Who pours down the rain,
drives the winds and controls the sun, the moon, the earth and
everything else. Says the Qur’an :
“Say: unto whom (belongeth) the earth and whosoever
is therein, if ye have knowledge ? They will say : unto
Allah. Say ; W ill ye not then remember 1 Say : Who is
Lord o f the seven heavens, and Lord of the Tremendous
Throne 1 They will say : Unto Allah (all that belongeth).
Say : Will ye not then keep duty (unto Him) 1 (Say): In
Whose hands is the dominion over all things and He pro­
tec to th, while against Him there is no protection, if ye
have knowledge 1 They will say ; Unto Allah (all that
belongeth}. Say : How then are ye bewitched” 1
(23 : 84-89).
“And if you were to ask them : Who created the>
heavens and the earth, and constrained the bud and the.
moon (to their appointed task) I they would say : Alisha
How then are they turned away 1...........And if thou wert
to ask them : Who causeth water to come down from the
sky, and therewith reviveth the earth after its death ?
they verily would asv : Allah”. (29 : 61-63)
"And if thouiflBk^l them who areated them, they will
 128 *Tht Islamic ta w and Constitution
surely say : Allah. How then are they turned away” . .
(43 :8 7 )
These verses make it abundantly clear that the dispute was
not about the existence o f God or His being th e Creator and
Lord of heavens and earth. All men acknowledged these truths.
Hence there was no question of there being any dispute on what
was already admitted on all hands. The question arises, then
what was it that gave rise to the tremendous opposition that
every prophet without any exception had to face when he made
this call 1 The Qur’an states that the whole dispute centered
round the uncompromising demand o f the prophets that the
non-believers should recognise as their ra&5 (Lord) and ilah
. (Master and Law-giver) also the very Being whom they
acknowledged as their Creator and that they should assign this
position to none else. But the people were not prepared to
accept this demand oF the prophet.
Let us now try to find out the real cause of the refusal and
what the terms ilah and rabb mean. Furthermore, why did the
prophet insist that Allah alone should be recognised and
acknowledged as ilah and rabb and why did the whole world
range itself against them upon this apparently simple demand 4
The Arabic word ilah stands for ma'bud (<.«., the object of
worship) which in itself is derived from the word ‘abd, meaning
a servant or slave. The relationship which exists between man
and God is that o f ‘the worshipper* and ‘the worshipped’. Man
is to offer *ibadat to God and is to live like His *abd.
And ‘ibadal does not merely mean ritual or any specific
form of prayer. It means a life of continuous service and
unremitting obedience like the life o f a slave in relation to his
Lord. To wait upon a person in service, to fold one’s hands in
reverence to him, to bow down one’s head in acknowledgement
of his elevated position, to oneself in obedience to his
commands, to oarry out his orders and cheerfully submit to all
shhe toil and discipline involved therein, to humble oneself in the
i tresence of the master, to offer what he demands, to obey what
e commands, to set one’s face steadily against the cause of his
 Political Theory o f Jslam 129

displeasure, and to sacrifice even one's life when such is his

pleasure— these are the real implications o f the term ‘ ibadat
(worship or service) and a man’s true ma'bvd (object o f worship)
is he whom he worships in this manner.
And what is the meaning o f the word 4rabb1 1 In Arabic it
literally means “ one who nourishes and sustains and regulates
and perfects” . Sinoe the moral consciousness o f man requires
that one who nourishes, sustains and provides for us has a
superior claim on our allegiance, the word rabb is also used in
the sense o f master or owner. For this reason the Arabic
equivalent for the owner o f property is rabb al-mal and for the
owner o f a house, rabb al-dar. A person's ‘rabt* is one whom he
looks upon as his nourisher and patron ; from whom he expects
favour and obligations ; to whom he looks for honour
advancement and peace ; whoso displeasure he considers to be
prejudicial to his life and happiness ; whom he declares io be
his lord and master ; and lastly, whom he follows and obeys,1
Keeping in view the real meaning o f these two words c ilaW
and <rabb' it can be easily found who is it th at may rightfully
claim to be man’s Hah and Rabb and who can, therefore, demand
th at he should be served, obeyed and worshipped. Trees, stones,
rivers, animals, the sun, the moon and the stars, none of them
can venture to lay claim to this position in relation to man. It
is only man who can, and does, claim godhood in relation to his
fellow-beings. The desire for godhood can take root only in
man's mind. I t is only man's excessive lust for power and desire
for exploitation that prompts him to project himself on other
people as a god and extract their obedience ; force them to bow
down before him in reverential awe, and make them instruments
o f hie self-aggrandisement. The pleasure o f posing as a god is
more enchanting and appealing than anything else that man has
yet been able to discover. Whoever possesses power or wealth
or cleverness or any pt her superior faculty, develops a strong

1.. For detailed discussion over the Jneaxung

I And concept of ilah and r M
see : Abul A*la Maududi, Q u A t* K i Char B u n yid i (Four
Basic Terms of the Qur'an) Islam ic Publioations, L td ., Lahore.
130 T ie Islamic Law and Constitution
inclination to outstep his natural and proper lim its, to extend
his area o f influence and thrust hie godhood upon such of his
fellow-men as are comparatively feeble, poor, weak-minded or
deficient in any manner.
Such aspirants to god hood are of two kinds and accordingly
they adopt two different lines of aotion, There is a type of
people who are comparatively bold or who possess adequate
means of forcing their claim on those over whom th ey wield
power and who consequently make a direct claim to godhood.
For instance, there was Pharaoh who was so intoxioated with
power and so proud of his empire that he proclaimed to the
inhabitants of Egypt : "Ana rabbakum al*a'W 9 (I am your
highest Lord).
and "Mtfalimiu lakum min ilahin ffhairi" (I do not know
of any other 'ifaV for you but myself).
When Prophet Moses approached him with a demand for the
liberation of his people and told him that he too should surrender
himself to the Lord of the Universe, Pharaoh replied that
since he had the power to cast him into the prison-house, Moses
should rather acknowledge him as 'ilah.1 Similarly, there was
another king who had an argument with Prophet Abraham.
Ponder carefully over the words in which the Qur’an has
narrated this episode It says ;
“ Bethink thee o f him who had an argument with
Abraham about hie Lord because Allah had given him the
kingdom ; how, when Abraham said : My Lord is He Who
giveth life and causeth death, he answered : I give life
and cause death. Abraham sa id : Lo 1 Allah oauseth the
sun to rise in the East, so do thou cause it to come up from
the West. Thus was the disbeliever king flabbergasted19.
(2 : 258)
Why was the unbeliever king flabbergasted ? Not because
he denied the existence of God. He did believe that God was
the ruler o f the universe and that He Aloifb made the sun rise

1. 4J-Qur*a» : 26 i 2® ; 28 : 33 ; 79 : 24.
 Political Theory of Islam 131
and set, The question at issue was not the dominion over the
sun and the moon and the universe bub th at of the allegiance of
the people ; not that who should be regarded as controlling the
forces of nature, but th at who should have the right to claim the
obedience of men. He did not put forth the claim that he was
Allah ; what he actually demanded was that no objection should
be cast over the absoluteness of his authority over his subjects.
His authority as the ruler should not be challenged. This claim
was based on the fact that he held the reins of government:
he could do whatever he liked with the property or the
lives of his people ; he had absolute power to punish his subjects
with death or to spare them. He, therefore, demanded from
Abraham that the latter should recognise him as his master,
serve him and do his bidding. But when Abraham declared
that he would obey, serve and accept no one but the Lord of
the universe, the king was bewildered and shocked and did not
know how to bring such a person under hie control.
This claim to godhood which Pharaoh and Nimrod had put
forth was by no means peculiar to them. Rulers all over the
world in ages past and present have advanced such claims. In
Iran the words 'Khuda (Master) and 'Khudawand' (Lord) were
commonly employed in relation to the king and all the
ceremonies indicative of servility were performed before him,
in spite of the fact that no Iranian, looked upon the king as the
lord of the universe, that is to say God, nor did the king
represent himself as such. Similarly, the ruling dynasties in
India claimed descent from the gods, the solar . and lunar
dynasties are well known down to this day. The 'raja' was
called 4an*data' (the provider of sustenance) and people
prostrated themselves before him although he made no pretenoe
of being God and his subjects never recognised him as such.
Much the same was, and still is, the state of affairs in all other
countries.
Words synonymous with ‘ilah' and ‘rafcfr’ are still used in
direct reference to rulers of many places. Even where this is
not customary, the attitude of the people towards their rulers
 132 The Islamic Law and Constiiul icn

is similar to what is implied by these two words. I t is not

necessary for a man who claims godhood that be should openly
declare himself to be an SZaV or ‘ro6i’ . A ll persons who
exercise unqualified dominion over a group o f men, who impose
their will upon others, who make them their instrume nts and
seek to oontrol their destinies in the same manner as Pharaoh
and Nimrod did in the hey day o f their power, are essentially
claimants to godhood , though the claim may be tacit, veiled and
unexpressed. And those who serve and obey them admit their
godhood even if they do not say so by word of mouth.
In contrast to these people who directly seek recognition o f
their godhood there is another type o f men who do not possess
the necessary means or strength to get themselves accepted as
‘ifaA’ or *fa W . B a t they are resource ful and cunning enough to
cast a spell over the min.de and hearts of the common people.
B y the use of sinister methods, they invest some spirit, god,
idol, tomb, plant, or tree with the characte r o f 'ilah' and dupe
the common people successfu lly into believing that these objects
are capable o f doing them harm and bringing them good : that
they can provide for their needs, answer their prayers and afford
them shelter and protection from evils which beset them all
around. They tell them in e ffect: ‘I f you do not seek their
pleasure and approval, they will involve you in famines, epide­
mics and affliction s. B ut i f yon approach them in the proper
way and solicit their help they will come to your aid. We know
the methods by which they can be propitiated and their pleasure
can be secured. We alone can show you the means o f aocess to
these deities. Therefore, acknowledge our superiority, seek our
pleasure and entrust to our charge-y our life, wealth, and
honour*. Many stupid persons are caught in thi>4cap and thus,
under cover o f false gods, is establish ed the godh&ctf and
supremacy of prieBts and shrine keepers.
There are some others belongin g to the same category who
employ the arts of soothsay ing. * astrology , fortune-tettingr
charms, incantations etc* There are yet others who, while
owing allegiance to G od, also assert that one cannot gain direct
 Political Theory of Islam 133
aocess to God. They claim that they are the intermediaries
through whom one should approach his threshold ; that all cere*
monials should be performed through their mediation ; and that
all religious rites from one’s birth to death can be performed
only at their hands. There are still others who proclaim them­
selves to be the bearers of the Book of God and yet they de­
liberately keep the common people ignorant oi its meaning and
contents. Constituting themselves into mouthpieces of God,
they start dictating others what is lawful (AaZal) and what is un­
lawful (haram). In this way their word becomes law and they
••
force people to obey their own commands instead of those of
God. This is the source of Brahmanism and Papacy which has
appeared under various names and in diverse forms in all parts
of the world from times immemorial down to the present day
and in consequence of which certain families, races and classes
have imposed their will and authority over large masses of men
and women.

If you were to look at the matter from this angle, you will
find that the root-cause of all evil and mischief in the world is
the domination of man over man, be it direct or indirect. Thia
was the origin of all the troubles of mankind and even to this
day it remains the main oause of all the misfortunes and vices
whioh have brought untold misery on the teeming humanity.
God, of course, knows all the secrets of human nature. But the
truth of this observation has also been confirmed and brought
home to humanity by the experiences of thousands of years that
man cannot help setting up someone or other as hie ‘god’, ‘Hah*
and and looking up to him for help and guidance in the
complex and baffling affairs of hie life and obeying his com­
mands, This fact has been established beyond question by the
historical experience of mankind that if you do not believe in
God, some artificial god will take^Hia place in your thinking and
behaviour. It is ©ven poaaible that instead of one real God, a
number of false gods, Slabs' and ‘raWs’ may impose themselves
upon ybu.
IM The Islam ic Law and ConsMniw n
Even toda y man is enchained in the slave ry of many a false
god. May he be in Russia or America, Italy or Yugoslavia,
England or China, he is generally under the spell of some party,
some ruler, some leader or group, some money-m agnate «or the
like in such a manner that man’s control over man, man’s
worship of man, man’s surveillan ce of man continue unabated.
Modern man has discarded nature-w orship, but man-worship he
still does. In fine, wherever you turn your eyes, you will find
that one nation dom inate s another, one class hold s another in
subjection, or a polit ical party having gained complete ascend*
ancy, constitute s itsel f as the arbiter of men’s destiny ; or again
in some places a dicta tor concentra tes in his hands all power
and influence setti ng hims elf up as the lord and master of the
peop le. Now here has man been able to do with out an ‘ilah* I
Wha t are the couaequences o f thia domination of man by
man, of this attem pt by man to play the role of divin ity 1 The
same that would follo w from a mean and incom petent person
being appointed a polic e comm issioner or some ignor ant and
narrow-m inded polit ician being exalted to the rank of a prim e
minister. For one thing , the effeot of godhood is so intox icating
that one who taste s this powerful drink oan never keep hims elf
under control. Even assum ing that self-control is possible, the
vast knowledge, the keen insig ht, the unquestioned impa rtiality
and perfect disin terestedn ess which are required for carrying out
the dutie s of godhood, will alwa ys remain out of the reaoh of
man. That is why tyran ny, desp otism , intemperance, unlawful
explo itatio n, and ineq uality reign supreme, whenever man ’s
overlordship and dom ination (ilah iyyat and rabubiyyat) over
man are estab lished. The hum an soul is inevitably deprived of
its natural freedom ; and man’s mind and heart and his inborn
facu lties and aptitudes are subjected to such vexa tious restric­
tions that the proper grow th and developm ent o f his perso nality
is arrested* How truly did the Holy Prophet observe ;
"God, the Alm ighty says : ‘I created men with a
pliab le nature ; then the devfls came and contrived to lead
them astra y from their faith and prohibited for them
 Pol itic al Theory of Islam 135
what I had made lawful for the m’. ’*1
As I have ind icated above, this ia the sole cause of all the
miseries . and conflicts from which man has suffered during the
long course of human history . This is the real impedim ent to
his progress. Thia is the canker which has eaten into the vita ls
of hia moral, inte llec tua l >politic al and econom ic life , destroying
all the valu es which alone make him human and mark him off
from anima ls. So it was in the remote past and so it is tod ay.
The only remedy for this dreadful malady lies in the repudiation
and renunciation* by man o f all masters and in the exp lici t
recognition by him o f God Alm igh ty as his sole master and lord
(ilah and rabb). There is no way to his salv atio n exc ept thia ; for
even if he were to become an ath eist and heretic he would not be
able to shake him self free of all the se masters (ilah* and ruths).
This was the radical reformation effected from tim e to time
by the Prophets in the life of hum anity. They aim ed at the
dem olition of man's supremacy over man. Their real mission
was to deliver man from this inju stic e, this slav ery of false
gods, this tyra nny of man over man, and this exp loitatio n of the
weak by the strong. Their object was to thr ust back into the ir
proper lim its tho se who had over-stepped them and to raise to
the proper leve l tho se who had been forced dow n from it. They
endeavoured to evo lve a social organisation based on human
equ ality in which man should be neither the slave nor the
master of his fellow-beings and in which all men should become
the serv ants o f one real Lord. The message of all the Prophets
tha t came into the world was the sam e, nam ely :
“ 0 my people, worship Allah. There ia no ilah what­
ever for you except He’*. (17 : 59, 75, 86 ; also 11: 50,
61, 84) .
This was precisely what Noah said ; this is exa ctly what
Hud declared ; Salih affirmed the same tru th ; Sho aib gav e the
same message, and the same doctrine was repeated and confirmed
by Moses, Christ and by Prophet Muhammad (peace bq upon
1. Al-Madani, Al^ItUhafat alsanyya fil-Ahadith al-Qud&iyy<*, Hadith
No. 343, Daira’t al-Ma*arif, Hyderabad (Deooan), 1323 A.H.
 *
136 Ths Isla mic Law and Oon stiM ion
them all), The last of the Prophets, Mohammad (God’s blessing
and peace be upon him) Baid ;
“I am only a Warner, and ther e is no God save Allah,
the One, the Absolute Lord of the heavens and the earth
and all that is between them ” . (38 : 05-66)
“ Lo 1 Tou r Lord is Allah Who created the heavens
and the earth in six day s, then mounted He the Throne,
He covereth the nigh t with the day, which is in hast e to
follow and hath made the sun and the moon and the stars
subservient by His command. His verily is all oreatfcm
and (His verily is the) com mandment” . (17 ; 54)
“Buch is Alla h, your Lord. There is no God save
Him , the Creator.of all thin gs, so worship Him . And He
take th care of all thin gs”, (16 ; 102)
“And they are not enjoined any thin g except that
they shou ld serv e Alla h, keeping relig ion pure for Him , as
men by natu re upright” . (98 : 5)
“ Come to a word common between ns and between
f

you , that we shall worship none but Allah, and that we

shall ascribe no partner unto Him and that none of us
shall take others for lords beside Alla h” . (3 : 64)
This was the proclam ation that released the human soul
from its fette rs and set man's inte llectual and material powers
free from the bonds of slav ery that held them in subjection. It
relieved them of the burden that weighed heav ily upon them and
was breaking their backs. It gave them a real charter of libe rty
and freedom. The Holy Qur’an refers to this marvellous achieve­
men t o f the Prop het o f Islam when it says :
“And he (the Prophet) relieves them of their burden
and the chains that were around them ” . (7 : 157)

III
FIRST PRINCIPLE OF ISLAMIC
POLITICAL. THEORY
The beli ef in the Uni ty and the Sovereig nty of Allah is the
foundation of the social and moral system propounded by the
 Politic al Theory of M em 137

Prophets. It is the very startin g-poin t of the Islamic politic al

philosophy. The baflic principle of Ielam is that human beings
must, individually and collectively, surrender all rights on
overlordship, legisla tion and exercising of authority over others.
No one should be allowed to pass orders or make commands in
bis own right and no one ought to accept the obliga tion to carry
out such commands and obey such orders. None is entitle d to
make laws on hia own author ity and none is obliged to abide by
them. This right vests in Allah alone ;
“The Autho rity rests with none but Allah, He com­
mands you not to surrender to any one save Him. This is
the right way (of life)”* (12 : 40)
“They ask : ‘have we also got some author ity V Say;
‘all autho rity belongs to God alone*.” (3 : 154)
"Do not say wrongly with your tongues that this is
lawful and that is unlawful” . (16 : 116)
" Whoso does not establieh and decide by that which
Allah hath revealed, Buch are disbelievers.” (5 : 44)
According to this theory , sovere ignty belongs to Allah. He
alone is the law-giver. No man, even if he be a prophet, has the
right to order others in His own right to do or not to do certain
things. The Proph et himse lf is subject to God’s commands :
<fI do not follow anythi ng except what is revealed to

me”. (6: 50)

Other people are required to obey the Proph et because he
enunoiatee not his own but God’s commands :
“ We sent no messenger save that he should be obeyed
by Allah's leave” , (4 r 64)
if

“They are the people unto whom We gave the Scrip­

ture and Command and Proph ethood ”. (6 : 90)
“ It is not (possible) for any human being unto whom
Allah has given the Scripture and the Wisdom and the
Prophethood that he should have thereafter said unto
mankind : Becom e slaves o f me instead of Allah ; but
(what he said was) be ye faithfu l servan ts of the Lord” .
(3: 79)
 138 The Islamic Law and Oonstiitdion
Thus the main characteristics of an Islamic State that can
be deduced from these express statements of the Holy Qur’an
are as follows :—
(1) No person, class or group, not even the entire popula­
tion of the state as a whole, can lay claim to sovereignty, God
alone is the real sovereign ; all others are merely His subjects ;
(2) God is the real law-giver and the authority of absolute
legislation vests in Him. The believers cannot resort to totally
independent legislation nor can they modify any law which God
has laid dow, even if the desire to effect such legislation or
change in Divine laws is unanimous ;2 and
(3) An Islam io state must, in all respects, bo founded upon
the law laid down by God through His Prophet. The govern­
ment which runs such a state will be entitled to obdienca in its
capacity as a political agency set to enforce the laws of God
and only in so far as it acts in that capacity. If it disregards
the law revealed by God, its commands will not be binding on
the believers.

THE ISLAMIC STATE

ITS NATURE AND CHARACTERISTICS
The preceding discussion makes it quite clear . that Islam,
speaking from the view-point of political philosophy, is the
very antithesis of secular Western demooraoy. The philosophic
cal foundation of Western democracy is the sovereignty of the
people. In it, this type of absolute powers of legislation—of
the determination of values and of the norms of behaviour—
rest in the hands of the people. Law-making is their preroga­
tive and legislation must correspond to the mood and temper of
their opinion. If a particular piece of legislation is desired by
the masses, however, ill-conceived, it may be from religious and
1. Here the absolute right o f legislation is being discussed. In th e Islamic
political theory this right vests in Allah alone. A s to the scope and
ox ten t o f hitman legislation provided^by the Shari f ah itse lf please see
Chapter 2 ‘Legislation, and Ijlih a d in Islam' and Chapter 6 ‘First
. Principles o f Islam ic State’.—E ditor,
 Political Theory of Islam 139
moral viewp oint, step® have to be taken to place it on the
statu te book ; if the people dislik e any law and demand its
abrogation, howsoever just and rightful, it migh t be, it has to
be expunged forth with. Thia is not the case in Islam . On this
count, Islam has no trace of Western demooraoy. Islam , as al*
ready expla ined, altogether repudiates the philosophy of popu­
lar sovereignty and rears its polity on the foundations of the
sovereignty of God and the vicegerenoy (Khilafat) of man.1
A more apt name for the Islam ic polity would be the
“kingddm of God” which is described in English as a "theo-
oraoy”. But Islam ic theocracy is something altogether different
from the theocracy of which Europe had a bitter experience
wherein a pries tly class, sharply marked off from the rest of the
population, exercises unchecked domination and enforces laws
of its own making in the name of God, thus virtu ally imposing
its own divin ity and godh ood upon the common people.2 Such
a system of gover nmen t is sat an io rather than divin e. Contrary
to this, the theocracy built up by Islam is not ruled by any
particular religious class but by whole comm unity of Muslims
including the rank and file. The entire Muslim population runs
the state in accordance with the Book of God and the practice
of His Prophet. I f I were perm itted to coin a new term, I
would describe this system of government as a u theo-demo- •
oracy”, that is to say a divin e democratic government, because

1. Here it must be clearly under stood that democracy as a 'philosophy’

and democracy as a 'form of organ isation ’ are not the aarno thing. In
the form of organ isation , Islam has its own system of democracy as is
explained in the follow ing pages. But m a philos ophy, the two
Islam and Western democracy are basica lly different, rather opposed
to each other.—HPdi tor. •
2. “Theo cracy : a form of govern ment in which God (or a deity) is
reoogn isod as the king or immed iate ruler, and his laws are taken as
the statut e book of kingdo m, these laws being usually admin istered
by a priest ly order as his ministers and agents ; herioo (loose ly) A
system of govern ment by a sacerd otal order claiming a divine commie*
.T fa Shorter Oxford Dictio nary t Vol. II, Oxfor d, 1066, p. 216^.
140 Tfce Isla mic Law and OonstUutwn
under it the Muslims hav e bean given a lim ited popular sover­
eign ty under the suzerainty of God. The exe cutive under this
system of government is con stit ute d by the general will of the
Muslims who have also the righ t to dep ose it. All administra­
tive matters and all questions about which no exp licit injunc­
tion is to be found in the Shari*ah are settled by the consensus
of opinion among the Muslims. Every Muslim who is capable
and qualified to give a sound opinion on matters of Isla mic
law , is entitled to interpret the law of God when such interpre­
tation becomes necessary. In this sense the Isla mic pol ity is a
democracy. But as has been exp lain ed above, it is a theocracy
in the sense tha t where an exp licit command of God or His
Prophet already exis ts, no Muslim leader or legislature, or any
religiou s scholar can form an independent judgment, not even
all the Muslims of the world put toge ther , have any righ t to
make the least alteration in it.
Before proceeding further, I feel tha t I should put in a
word of explanation as to why these lim itat ion s and restrictions
have been placed upon popular sov ereignty in Islam, and what
is the nature of these lim itat ion s and restrictions.. It may be
said tha t God haB, in this manner, taken away the liberty of
human mind and inte llec t instead o f safeguarding it as I was
trying to prove. My reply is tha t God has retained the righ t of
legislation in His own hand not in order to deprive man of his
natural freedom but to safeguard tha t very freedom. His purpose
is to sav e man from going astr ay and inv itin g his own ruin.
One ean eas ily understand this poin t by atte mp ting a littl e
ana lysis of the so-called Western secular democracy. It is
claimed tha t this democracy is founded on popular sovereignty*
But everybody knows tha t the people who con stit ute a stat e do
not all of them take part eith er in legislation or in its adm inist­
ration. The y have to dele gate their sov ere ign ty to their elected
representatives so tha t the latt er may make and enforce laws
on their behalf. For this purpose an electoral system is set up.
But as a divorce has been effected between politics and religion,
and as a resu lt of this secularisation, the soc iety and particu­
larly its politica lly active elem ents hav e ceased to atta ch much
 Political Theory of Islam 141
or any importance to morality and ethics. And this is also a
fact that only those persons generally come to the top who can
dupe the masses by their wealth, power and deceptive*propa­
ganda. Although these representatives come into power by the
votes of the common people, they soon set themselves up as an
independent authority and assume, the position of overlords
(ilahs), They often make Jaws not in the best interest of the
people who raised them to power but . to further their own
s cotion al and class interests. They impose their will on the
people by virtue of the authority delegated to them by those
over whom they rule. This is the situation which besets people
in England, America and in all those countries which claim to
be the haven of secular democracy.
Evep if we overlook this aspect of the matter and admit
that in these countries laws are made according to the wishes
of the common people, it has been established by experience
that the great mass of the common people are incapable of
perceiving their own true interests. I t is the natural weakness
of man that in most of the affairs concerning his life he takes
into consideration only some one aspect of reality and loses
sight of other aspects. His judgments are usually onesided and
he is swayed by emotions and desires to such an extent that
rarely, if ever, can he judge important matters with the im­
partiality and objectivity of scientific reason. Quite often he
reject the plea of reason simply because it conflicts with his
passions and desires. I can <$ite many instances in support of
this contention but 'to*avoid .prolixity I shall content myself
V

with , giving only one example : the Prohibition Law of

America. I t had been rationally and logically established that
drinking is injurious to health, produces deleterious effects on
mental and intellectual faculties and leads to disorder in human
society. The American public accepted these facts and agree to
the enactment of the Prohibition Law. Accordingly the law
was passed by the majority A>te. But when it was put into
effect, the very same people by whose vote it had been passed,
revolted against it. The worst kinds of wine were illicitly
142 T ie Islamic Law and Constitution

manufactured and consumed, and their use and consumption

became more , widespread than before. Crimes increased in
number. And eventually drinking wee legalised' by the vote
o f the same people who had previously voted for its prohibiti­
on. This sudden change in public opinion was not the result
of any fresh scientific discovery or the revelation o f new facts
providing evidence against the advantages of prohibition , but
because the people had been completely ensalved by their habit
and could not forego the pleasure of self-indulgence, They
delegated their own sovereignty to the evil spirit in them and
set up their own desire and passions at their (gods) at
whose call they all went in for the repeal of the very law they
had passed after having been convinced of its rationality and
correctness. There are many other similar instances which go
to prove that man is not competent to become an absolute
legislator. Even if he secures deliverance from the service of
other ilahs, ho becomes a slave to his own petty passions and
exalts the devil in him to the position of a supreme Lord.
Limitations on human freedom, provided they are appropriate
and do not deprive him of all initiative are absolutely necessary
in the interest of man himself,1
That is why God has laid down those limits which in
Islamic phraseology, are termed ‘Divine Limits’ (Hudud-A.Uah)
These limits consist of certain principles, check and balances
and specific injunctions in different spheres of life and activity,
and they have been prescribed in order that man may be
trained to lead a balanced and moderate life. They are intended
to lay down the brosd framework within which man is free to
legislate, decide his oWu affairs and frame subsidiary laws and
regulations for his conduot. These limits he is not permitted to
L The question however is : Who igt to im pose thcao restrictions ?
According to the Islam ic view it is only A llah thu Creator, the
Nourisher, the All-Knowing W ho is entitled to im pose restrictions on
human freedom and not any man, N o m an is en titled to do so. I f
any m an arbitrarily im poses restrict ions on human freedom, that is
despotism pure and sim ple. In Islam there is n o place for such
despotism .—Editor, *
 Politic al Theory of Islam 143
overstep and if he does so, the whole scheme of his life will go
away.
Take for example man's economic life. In this sphere God
has placed certain restrictions on human freedom. The right to
private property baa been recognised, but it ia qualified by the
obligation to pay Zakat (poor dues) and the prohib ition of
interest, gambling and speculation. A specific law of inheritance
for the distrib ution of property among the largest number of
surviving relations on the death of its owner has been laid
down and oertain forms of acquiring; accum ulating and spending
wealth have been declared unlawful. If people observe these
just limits and regulate their affairs within these boundary
walls, on the one hand their personal liberty is adequa tely safe­
guarded and, on the other possib ility of class war and domin a­
tion of one class over another, which begins with capitalist
oppression and ends in working-olass dictato rship, is safely and
conven iently elimina ted.
Simila rly in the sphere of family life, God has prohibited
the unrestricted interm ingling of the sexes and prescribed
purdah, recognised man’s guardianship of woman, and clearly
defined the rights and duties of husband, wife and children.
The laws of divorce and separation have been clearly set forth,
conditional polyga my has been permitted and penalties for
fornication and false accusations of adultery have been pres­
cribed. He has thus laid down limits which, if observed by
man, would stabilis e his family life and make it a haven of
peace and happiness. There would remain neither that tyranny
o f male over female which makes family life an inferno of
cruelty and oppression, nor that satanio flood of female liberty
and licence which threatens to destroy human civiliza tion in
the West. .
In like manner, for the preservation of human culture and
society God has, by formulating the law of Qisas (Retaliation),
commanding to out off the hands for theft, prohib iting wine­
drinking, placing limitations on uncovering o f one’s private
parts and by laying down a few similar permanent rules and
regula tions, dosed the door of social disorder for ever. I have
144 TAe Ialcm ic Law and Conttiiutwn

no time to present to you a oomplete list of all the Divin e

Limits and show in detai l how essen tial eaoh one of them is for
maintaining equilibrium and poise in life. What I want to
bring home to you here is that through these injun ctions God
has provided a permanent and immu table code o f behaviour for
man, and that it does not deprive him of any essen tial liberty
nor does it dull the edge of his mental faculties^ On the con­
trary , it sets a straig ht and clear path before him, so that he
may not, owing to his ignorance and weaknesses which he
inherently possesses, lose himse lf in the maze of destru ction and
instead of wasting his faculties in the pursuit of wrong ends, he
may follow the road that leads to success and progress in this
world and the hereafter. I f you have ever happened to visit a
mountainous region, you must have noticed that in the winding
mountain paths which are bounded by deep caves on the one
side and lofty rocks on the other, the border of the road is
barricaded and protected in suoh a way as to prevent travellers
from straying towards the abyss by mista ke. Are these barri­
cades intend ed to deprive the way-farer of his liberty $ No, as
a matter of faot, they are mean t to prote ct him from destruc­
tion ; to warn him at every bend of the dangers ahead and to
show him the path leading to his destin ation . That precisely
is the purpose of the restrictions (hudud} which God has laid
down in His revealed Code. These limits determine what
direction man should take in life’s journey and they guide him
at every turn and pass and point out to him. the path of safety
which he should stead fastly follow .
As I have already stated , this code enacted as it is by God,
is unchangeable. You can, if you like, rebel again st it, as some
Muslim countries have done. But you cannot alter it. It will
continue to be unalterable till the last day. It has its own
avenues of growth and evolu tion, but no human being has any
right to tamper with it. Whenever the Islam ic State comes into
dista nce, this code would form i^p fundamental law and will
constitute the mainspring of all its legislation . Everyone who
desires to remain a Muslim is under an obliga tion to follow the
 Political Thtory of Islam 145
■>
■ 1

Qur’an and the Sunnah which must constitute the basic law of
an Islamic State.
The Purpose of the Islamic State
The purpose of the state that may be formed on the^basis
of the Qur’an and the Sunnah has also been laid down by God.
The Qur’an says :
41 We verily sent Our messengers with clear proofs, and

revealed with them the Scripture and the Balance, that

mankind may observe right measure ; and We revealed
iron, wherein is mighty power and (many) uses for man­
kind” . (57: 25)
In thia verse steel symbolises political power and the verse
also makes it clear that the mission of the prophets is to create
conditions in which the mass of people will be assured of social
justice in accordance with the standards enunciated by God in
His Book which gives explicit instructions for a well-disciplined
mode of life. In another place God has said
“ (Muslims are) those who, if We give them power in
the land, establish the system of Salat (worship) and Zakat
(poor dues) and enjoin virtue and forbid evil and inequity”.
(22 : 41)
“ You are the best community sent forth unto man­
kind ; ye enjoin the Right coduo t and forbid the wrong 1
and ye believe in Allah,” (3 : 110)
It will readily become manifest to anyone who reflects upon
these verses that the purpose of the state visualised by the Holy
Qur’an is not negative but positive. The object of the state is
not merely io prevent • people from exploiting each other to
safeguard their liberty and to protect its subjects from foreign
invasion. It also aims at evolving and developing that well-
balanced system of social justice which has been set forth by God
in His Holy Book. Its object is to eradicate all forms of evil and
to encourage all types of virtue and excellence expressly men*
tioned by God in the Holy Qur’an. For this purpose political
power will be made use of as and when the occasion demands ;
all means of propaganda and peaceful persuasion will be
146 The Islamic Law and OonsMuiion

employed ; the moral education of the people will also be under­

taken ; and social influence as well as the force of publio opinion
will be harnessed to the task.
Islamic State is Universal and All-Embracing
A state of this sort cannot evidentl y restrict the scope of its
activities . Its approach is universal and all-embracing. Its
sphere of activity is coextens ive with the whole of human life.
It seeks to mould every aepeot of life and activity in consonance
with its moral norms and programme of social reform. In suoh
a state no one can regard any field of his affairs as personal and
private. Considered from this aspect the Islamic State bears a
kind of resemblance to the Fascist and Communist states.
But you will find later on that, despite its all-inclusiveness, it is
somethin g vastly and basically different from the totalitar ian
and authoritarian states. Individu al liberty is not suppressed
under it nor is there any trace of dictatorship in it* It presents
the middle course and embodies the best that the human sooiety
has ever evolved. The excellent balance an£ moderation that
characterise the Islamic system of governm ent and the precise
distinctions made in it between right and wrong elicit from all
men o f honesty and intelligen ce the admiration and the admis­
sion that such a balanced system could not have been framed by
anyonedrtit the Omniscient and All-Wise God.
Islamic State Is an Ideological State
Another characteristic of the Islamic State is that it is an
ideological state. It is clear from a oareful consideration of the
Qur’an and the Sunnah that the state in Islam is baaed on an •
ideology and its objective is to establish that ideology. State
is an instrument of reform and must act likewise. It is a dictate
of this very nature of the Islamic State that suoh a state should
be run only by those who believe in the ideology on which it is
based and in the Divine Law which it is assigned toadmin ister.
The administrators of the Islamic State must be those whose
whole lifo is devoted to the observance and enforcement of this
Law, who not only agree with its reformatory programme and
fully believe in it but thoroughly comprehend its spirit and are
 Political Theory of lelam 147
acquainted with it® details, Islam does not reoogniae any geo­
graphical, linguistic or colour bars in this respect. It puts for­
ward its oode of guidance and the scheme of its reform before all
men. Whoever accepts this programme, no matter to what race,
nation or oountry he may belong, can join the community that
runs the Islamic State. But those who do not acoept it are not
entitled to have any hand in shaping the fundamental policy of
the state. They can live within the confines of the state as non­
Muslim citizens {zimmie). Specific rights and privileges have
been accorded to them in the Islamic Law. A zimmi’# life,
property and honour will be fully protected and if he is capable
of any service, his services will also be made use of. He will
not,, however, be allowed to influence the basic policy o f this
ideological state. The Islamic State is based on a particular
ideology and it is the community which believes in the Islamic
ideology that pilots it. Here again, we notice some sort of
resemblance between the Islamic and the Communist states.
But the treatment meted out by the Communist states to per­
sons holding creeds and ideologies other than its own bears no
comparison with the attitude of the Islamic State, Unlike the
Communist state, Islam does•not impose its social principles on
others by force, nor does it confiscate their properties or unleash
a reign of terror by mass executions o f the people and their
transportation to the slave camps o f Siberia. Islam does not
want to eliminate its minorities, it wants to protect them and
give them the freedom to live according to their own culture.
The generous and just treatment which Islam has accorded to
non^Muslims in an Islamic State and the fine distinction drawn
by it between justice and injustice and good and evil will con­
vince all those who are not prejudiced against it, that the
prophets sent by God accomplish their task in an altogether
different manner—something radically different and diametri­
cally opposed to the way of the false reformers who strut about
here and there on the stage of history”.1
■ mi, - ...... ■
L Thia paper w written in and fn. it the author has dealt with the
theoretical aspect o f the problem only. In his Uter articles ho haft
 The Islamic Law and Constitution

THE THEORY OF THE CALIPHA TE

AND THE NATURE OF DEMOCRACY IN ISLAM
I will now try to give a brief exposition of the oompoeition
and structure of the Islamic State; I have already stated that
in Islam, God alone is the real sovereign. Keeping this cardinal
prineiple in mind if we consider the position of those perrons
who set out to enforce God's law on earth, it is but natural to
say that they should be regarded as representatives of the
Supreme Ruler. Islam has assigned precisely that very position
to them. Accordingly the Holy Qur'an says :—
"Allah has promised to those among you who believe
and do righteous deeds that He will assuredly make them
to succeed (the present rulers) and grant them vicegerency
in the land just as He made those before them to succeed
(others).” (24 : 55)
9

dieouaed the practical aspects aa well. In his article on the ‘Rights

of Non-Mualinas in Islamic State* (see Chapter VI11) he writes -
“However, in regard to a parliament or a legislature of the
modern conception, which is considerably different from in its
traditional sense, this rule could be relaxed to allow non-Muslims to
become its members provided that it has been fully ensured in the
Constitution t h a t :
(♦) I t would be ultra v i w of the parliament or the legislature to enact
any law which is repugnant to the Qur’an and the •
(ft) The Qur’an and'the Sunnah woujd be the chief source of the public
law of the land,
(in) The head of the state or the assenting authority would neoessarily
be a Muslim. With these provisions ensured, the sphere ■of
influence of non-Muslims would be limited to matters relating to
the general problems of the country or to- the interest^ of
minorities concerned and their participation would not damage
the fundamental requirements of Islam”.
The nori-Muslims cannot occupy key-poets—po sts from , where the
ideological policy of the slate can be influenced—but they can occupy
general administrativ e posts and oan aot in the service of the state.
For a detailed discussion of their position see Chapter VTII,—Editor .
 Politica l Theory of Mam 149

The verse illustra tes very clearly the Islamic theory o f

state. Two fundam ental points emerge from it :
1. The first point is that Islam uses the term ‘vicegerency’
(khilafai} instead of sovereig nty. Since, according to Islam,
sovereig nty belongs to God alone, anyone who Jidda power and
rules in accordance with the laws of God would undoubtedly be
the vicegerent of the Supreme Ruler and will not be authorised
to exercise any powers other than those delegated to him.
2. The second point stated in the verse is that the power
to rule over the earth has been promised to the whole community
of believers ; it has not been stated that any particular person or
class among them will be raised to that position . From this it
follows that all believers are repositories of the Caliphate. The
Caliphate granted by God to the faithful is the popular vice-
gerency and not a limited one. There is no reserva tion in favour
of any family, class or race. Every believer is a Caliph o f God
in his individ ual capacity. By virtue of this position he is in­
dividua lly responsible to God. The Holy Prophet has said :
4 ‘Everyo ne of you is a ruler and everyon e in answerable for his

subjects”. Thus one Caliph is in no way inferior to another.

This is the real foundation of democracy in Islam. The
followin g points emerge from an analysis of this conception of
popular viceger ency:
(a) A society in which everyon e is a caliph of God and an
equal particip ant in this caliphate, cannot tolerate any olass
division s based on distinctions of birth and social position . All
men enjoy equal status and positioo in such a society. The only
criterion o f superiority in this social order is personal ability and
character. This is what has been repeatedly and explicitly
asserted by the Holy Prophet :
“ Ro one is superior to another except in point of faith
and piety. All men are descended from Adam and Adam
waa made of clayf \
"An Arab has no superio rity over ft pon-Arab nor a non-
Arab over an Arab ; Deitber does a white man posse^ any
superio rity over a black man nor * biadt over a white
 150 Ths Islam ic Law and Constitution
one, exce pt in point of piet y”.
Afte r the conq uest of Mecca, when the who le of Arabia
came under the dom inion o f the Islamic State, the Holy Prophet
addressing the members o f his own clan, who in the days before
Islam enjoyed the same statue in Arabia aa the Brahmins did in
anoient India, said :
” 0 people of Qurayish ! Allah has rooted out your
haughtin ess of the days o f Ignorance and the pride of
ance stry . O men, all of you are descended from Adam and
Adam was made of clay . There is no pride whatever in
ancestry; there is no mer it in an Arab aa against a non-Arab
nor in a non-Arab as against an Arab. Verily the most
meritorious amo ng you in the eyes of God is he who is the
most pion s’1.
(6) In such a socie ty no individu al or group of individuals
will suffer any disa bilit y on account of birth, social statu s, or
profession that may in any way impede the grow th of his
faculties or hamper the deve lopm ent of hia personality* Every
one would enjoy equal oppo rtun ities of progress. The way would
be left open for him to make as much progress *as possible
according to his inborn capa city and personal merits with out
prejudice to similar righ ts of other people. Thus, unrestricted
scope for personal achievem ent has alwa ys been the hallm ark of
Islamic socie ty. Slaves and their descendants were appo inted as
military officers and governors o f provinces, and noblemen
belongin g to the high est fam ilies did not feel ashamed to serve
under them . Cobblers who used to stitc h and mend shoes rose
in the social scale and became leaders of high est order (u m w ) :
Weavers and cloth selle rs became judges, muftis and jurists and
to this day they are reckoned as tho heroes of Islam . The Holy
Prop het has said :
“Lis ten and obey even i f a negro is appointed as a ruler
over you” . '
{c} There is no room in such a soci ety for the dicta torship of
any person or group o f persons since everyone is a caliph of God
herein. No person or group of persons is entitled to become an
 Political Theory of klam 151
absolute ruler by depriving the rank and file o f their inherent
right o f caliphate. The position of a man who is selected to
conduct the affairs of the state is no more than this : that al!
Muslims (or, technically speaking, all caliphs of God) delegate
their caliphate to him for administrative purposes. H e is
answerable to God on the one hand and on the other to his fellow
‘caliphs’ who have delegated their authority to him. Now. if he
raises himself to the position o f an irresponsible absolute ruler,
that is to say, a diotator he assumes the character o f a usurper
rather than a caliph, because dictatorship id the negation of
popular vioegerenoy, No doubt the Islamic State is an all*
embracing state and comprises within its sphere all departments
of life, but this all-inclusiveness and universality are based upon
the universality of Divine Law which an Islamic ruler has to
observe and enforce. The guidance given by God about every
aspect of life wi certainly be enforced in its entirety. But an
Islamic ruler cannot depart from these instructions and adopt a
policy of regimentation of his own. He cannot force people to
follow or not to follow a particular profession ; to learn or not
to learn a special a r t ; to use or not to use a certain script ; to
wear or not to wear a certain dress and to educate ot not to
educate their children in a certain manner. The powers which
the dictators of Russia, Germany and Italy have appropriated
or which Ataturk has exercised in Turkey have not been granted
by Islam to its Amir (leader). Besides this, another important
point is that in Islam every individual is held personally answer­
able to God, This personal responsibility cannot be shared by
anyone else. Hence, an individual enjoys full liberty to choose
whichever path he likes and to develop his faculties in any direction
that suits his natural gifts. If the leader obstructs him ofc obst­
ructs the growth of his personality, he will himself be punished
by God for this tryanny, That is precisely the reason why there
is not the slightest trace o f regimentation in the rule of the
Holy Prophet and of his rightly-guided Caliphs ; and

(d) In such a society every sine and adult Muslim, male or

female, is entitled to express his or her opinion, for each one of
152 Tfa Islamic Law and Ocn^iintion
them is the repository o f the caliphate. God has made this
caliphate conditional, not upon any particular standard o f wealth
or competence but only upon faith and good conduct. Therefore
all Muslims hare equal freedom to express their opinions.
Equilibrium Between Individualism and Collectivism

Islam seeks to set up, on the one hand, this superlative

democracy and on the other it has put an end to that indivi­
dualism which militates against the health o f the body politic.
The relations between the individual and the society have been
regulated in such a manner that neither the personality o f the
individual suffers any diminution, or corrosion as it does in the
Communist and Fascist social system, nor is the individual
allowed to exceed his bounds to such an extent as to become
harmful to the community, as happens in the Western demo­
cracies. In Islam , the purpose o f an individual’s life is the same
as that o f the life o f the community, namely, the execution and
enforcement o f D ivine Law and the acquisition o f G od’s plea­
sure. Moreover, Islam has, after safeguarding the rights o f the
individual, imposed upon him certain duties towards the
community. In this way requirements of individualism and
collectivism have been so well harmonised that the individual is
afforded the fullest opportunity to develop his potentialitie s and
is thus enabled to employ his developed faculties in the service
o f the community at large.
These are, briefly, the basic principles and essential features
o f the Islamic political theory.1

--- • ’ 1 1 A
1. To avoid repetition, the Editor hat deleted those portions of the essay
related to the problems, discussed in detai l i t Chapter 7—
 Chapter 5

Political Concepts of
the Qur'an

THE Qur’an is a complete code for mankind and

provides guidance for man in all walks of his life.
It has its own ooncepte of ethics, politics, economics
and sociology. In the following artiolea an attempt
has been made to present some of the basic political
concepts of the Qur’an.
Maul ana Maududi has written a Taftir (Commen­
tary) of the Qur’an under the title Tafhim al-Qur'an.
This great work has been completed in six volumes
and published recently. Tafhim al-Qur'an contains,
inter alia, very valuable discussion of all the moral
and social concepts of the Qur’an. The present art­
icle is in the nature of a logical compilation of the
discussions, in so far as they relate to the political
concepts, The Editor has added
• some notes here and
there to maintain the continuity and to distinguish
the editorial notes from the text, the two have • been
aligned differently. —Editor.
 POLITICAL CONCEPTS OF THE QUR’AN
■

^ n H E chief ohracteristic of Islamic ideology is that it does

*- not admit a conflict, nay, not even a significant separation
between life spiritual and life mundane, It does not confine
itself merely to purifying the spirit and the morals. Its domain
extends to the entire gamut of life. It wants to mould indivi­
dual as well as the social behaviour upon healthy pattern, so
that the Kingdom of God may really bo established on the
earth and so that peace, contentment and well being may fill the
world as wafer fills the oceans. The political concepts of the
Qur’an spring from.this unique approach to life and its concept
of man's place in the universe. That is why it is necessary that
before we proceed to discuss the major political concepts of the
Qur’an we ought to have a clear idea of the Quranio ooncept
of life.

I
THE QURANIC'CONCEPT OF LIFE
There are certain basic postulates which must be under­
stood at the very outset. These postulates are as follows :
Basic Postulates
1. God, Who is the Creator, the Ruler and the Lord of the
Universe, created man and provided him with temporary abode
in th at part of His vast kingdom (cosmos) which is known as
the earth.. He has endowed man with the faculties of thinking
and understanding and has given him the power to distinguish
right from wrong, Man has also been invested with freedom of
will and choice and the power to use the resources of the world
in any manner he likes. In short, man has been given a sort
of autonomy while being appointed God’s vicegerent on earth..
2, Before assigning to man th£ vioegerenoy on the earth,
God made it explicitly clear to him that He alone is the Lord,
 Polit ical Concepts of the Qur'an I55
the Ruler and the Deity . Ab such the entir e Universe aud all
the creatures in it (including man) must subm it to Him. alone.
Man must not think hims elf total ly free and should know that
this earth is not his permanent abode He has been made t<i
live upon it only during the period of hie probation and in due
course he will return unto his Lord, to be judged according to
the way he has utilised the period of probation. The only
right course for man iB to acknowledge God as the only Lord,
the Sustainer and the Deity and to follow Hie Guidance and
His precepts in all aspects of life. Man must live this life with
the realisation that he is to be judged and his solo objective
shou ld be to merit the pleasure of Allah so as to emerge success,
ful in the final test. Conduct contrary to this would lead man
on to the evil path . If man follows the course of pioty and
godliness (which he is free to choose and follow ) ho will succeed
in' this world and in the next—in this world he will have a life
o f peace and contentment and in the hereafter he will qualify
hims elf for th® heaven of etern al bliss, al-Ja nnah . And if he
chooses to follow the other course; i-e M that of Godlessneas and
evil (which he is equally free to choose and follow ) his life will
be one of corruption, disruption and frustration in this world
and he will meet colossal misfortune in the life to come—tha t
abode of pain and misery which is called Hell.
3. After administering this warning God sent man upon
the eaith and prov ided the very first human beings (Adam and
Eve) with His Guidance in accordance with which men were to
live on the earth. Thus man’s life on this earth did not begin
in utter darkness. The very first man was provided with a
burning torch of light and guidance so that humanity may
attain to its glorious destiny. The first man received revealed
know ledge from God Himself. He had know ledge of the reality
and was given the code of life by follow ing which he could have
a life of bliss. This 00 de of life was Islam , the attitu de of com­
plete subm ission to Allah , the Creator of man and the whole uni­
verse, It was this religion whicji Adam, the first man, passed
down to posterity. B it later gene ratio ns grad ually drifted away
trom the right path and adopted different, erroueoas ways of
156 TAe Islamic Law and Constitution
life. Out o f negligence they lost their original religion or out
of misohief they adulterated and perverted it. They associated
with God innumerable human beings, non-hum an objects and
imaginary beings as deities and indulged in shirk (polytheism)
of the worst type. They mixed up the pure teachings of God
with strange myths, ideas and philosophies and thus produced
a jungle of religions and cults. They discarded the God given
principles of social ethics and oolleotive morality, the Sharjah,
and deprived the human life of peace and tranquillity.
4. Although men departed from the path of truth, disre­
garded and perverted the Shari* ah and some of them even
revolted against the code of Divine Guidance, yet God did not
forthwith destroy them or force them to the right course.
Forced conversion to the right path was not in keeping with
the autonomy he had given to man. Instead, God appointed
certain virtuous persons from amongst the people themselves,
to discharge the responsibility of recalling and guiding men to
the right path during their sojourn on the earth. These men
believed in God and lived in a life of obedience to Him. He
honoured them by his revelations and gave them the know­
ledge of reality. These men, known as prophets, were assigned
the job of presenting the message of truth to the humanity ask­
ing the people to the path of the Lord.
5. These prophets were raised in all epochs, in all lands
and in all nations. Their number exceeds many thousands. All
of them brought the same message, all of them advocated the
same way of life (Deen) i.e. t the way which was revealed to man
on the first day o f his existence. All of them followed the same
guidance : the guidance which was prescribed by the Lord for
man at the outset of civilization. All of them stood for the
same mission : they called men to the religion of Islam, asked
those who accepted the Divine Guidanoe to live in accordance
with it and organised them into a movement for the establish­
ment of the Divine Law and for putting an end to all deviations
from the Right Path. Every prophet tried to fulfil this mission
in the best possible way. But a great number of people never
accepted their guidance and those who acoepted it, gradually
 Political Concepts of the Qur'an 157
drifted astray and after a lapse of time lost the guidance or
distorted it with innovations and perversions. ’*
6. At last God raised Prophet Muhammad (peace be on
him) in the land of Arabia and assigned to him th6 completion
of the mission for which earlier prophets were ordained. The
message of Muhammad (peace be on him) was for entire man­
kind. He presented anew the teachings of Islam in their pris­
tine form and provided humanity once again with the Divine
Guidance. He organised all those who aocepted his message
into one ummah which was charged with reconstructing its own
life in accordance with the teachings of Islam, with calling
humanity to the path of righteousness and with establishing
the Word of God on the earth. This guidance is enshrined in
the Holy Qur’an whioh constitutes the only right code of con­
duct for the mankind.1
Islamic Concept o f Life
These are the basic postulates which, on the one hand,
reveal God’s design for providing guidanoe for man in this
world and, on the other, define the nature, position and status
of man in it. Now let us study the foundations on which the
Qur'an rears man’s relationship with Allah and the concept of
life which naturally follows from that relationship.
The Qur’an deals with this problem on many an occasion
but the entire concept of life envisaged by it is epitomised in
the following verse :
4 ‘Verily Allah hath bought
of the believers their lives
and their properties for the price that theirs shall be the
Paradise : so they fight in the way of Allah and slay and
are slain. It the promise of the Paradise) is a promise
whioh is binding on him in the Torah and the Injtel and the
Qur'an,. And who is more faithful unto his covenant than
Allah 1 Rejoice then in you* in bargain that ye have mado,
for that is the supreme t r i u m p h (9 ; 111)
In the above verse the nature of the relationship which
comes into existence between man and God because of ImHit
I. Abul A ’lti Maududi, Tafbim alQur'cm, Vol. J, Lahore, 1U51, pp, 16-l ’J.
 >
158 The Islamic Law and Constitution

(the act of reposing faith in Allah) has been called a ‘bargain’.

Thia means that Iman in Allah is not a mere metaphysical
concept ; it is in the natur e of a contract by which man barters
his life and his belongings with Allah in exchange for the pro*
miae of Paradise in the life-hereafter. God, so to say, purchases
a believer’s life and property and promises, by way of price, the
award of Parad ise in the life after death . ThiB concept of
bargain has impo rtant implications and we should therefore
first of all clearly understand its nature and meaning.
V
A

Ths fact of the natur e is that each and everything in thia

world belongs to Allah. He is the real owner of it all. As such,
man’s life and riches which are part of this world, also belong
to Him, because it is He Who created them and it is He Who
has assigned them to each man for his use. • Looking at the
problem' from this angle the question of any sale or purchase
does not arise a t all. God is the real owner, there is no question
of Hia purchasing what is already His. Mao is not their real
owner, he has no title to sell them . But there is one thing
which has been conferred on man and which now belongs fully
to him, and that is hia free will, the freedom of choice follow­
ing or not following the path of Allah. As man has been
endowed with free will in this respect, he is free to acknowledge
or not to acknowledge the reality of things. Although thia
freedom of will and choioe that man possesses, doea not auto­
matically make him the jeal owner of all the energies and
resources of which he has command, nor does he acquire the
title to utilise them in any way he likes, not his acknowledg­
ment of reality or refusal to do so does in any way affect the
reality as such, yet it does mean that he is free to acknowledge
the sovereignty of God and His overlordship on his own life
and belongings or refuse to acknowledge it and to arrog ate to
•*

himself the position of independence. He may, if he likes, deem

himself free from all obligations to the Lord and may think
that he enjoys the rights and powers over all that he has and
may use thorn according to his own wishes, unfetter**! by any
higher command. This is how and where the question of
 Political Concepts oj the Qur'an Ib’J

bargain comes in. This bargain does not mean that God is
purchasing something whioh belongs to man. Its real natu re is
this : All creation belongs to God but he has bestowed certain
things on man to be used by him as a trust from God. And man
. has been given the full freedom to honestly fulfil the trust or
to betray it. Now God demands that man should willingly and
voluntarily (and not under duress or compulsion) acknowledge
those things as His which really belong to Him and should use
them as a trust from God and not as his own to do with as he
pleases. Thus a man who volu ntarily renounces the freedom to
. refuse God’s supremacy and inste ad acknowledges His overlord­
ship, so to say, 'sells* his ’autonomy’ (which too is a gift from
God and not man’s own) to God and gets in return God’s pro­
mise of eternal bliss that is Paradise. A man who makes such
a bargain is a Mo'm in (believer) and Iman (belief) is the Islamic
name for this contract ; and the one who chooses not to enter
into this contract or after making such contract adopts a be­
haviour in contravention thereof amounting to breach of that
contract, •is a Kafir and the attem pt to avoid or abrogate this
contract is technically known as Kufr.
Such is the natu re of the contract. Now let us briefly study
its various stipulations*
1. God has put man to serious trial on two counts r—
(a) He has left man free, but even after giving him that
freedom He wishes to soo whether or not man realises
his true position ; whether he remains honest and
stead fast and maintains loyalty and allegiance to the
Lord or loses his head and revq lts against his own
Creator ; whether he behaves like a gentleman or
tramples underfoot all values of decency and starts
1
playing such fanta stic tricks as make the angels weep.
__ _ __ r-- —_-V
1. The trans lator as here tried tp borro w the word s o f fthak espea re who
has beaut ifully p rot rayed th is a ttitu d e of man in the folio wiiige oupfe t:
Moria proud man.
<
160 !the Islamic Law and Conttiluticm

(6) He wants to see whether man is prepared to have such

confidence in God as to offer his life and wealth in
return for what is a promise that is to materialise in
the next world— and whether he is prepared to surren­
der his autonomy and all the charms whioh it has, in
exchange for a promise about the future.
2. It is an accepted principle o f Islamic law that Iman con­
sists in adherence to a certain set o f doctrines and whosoever
reposes faith in doctrines becomes a M o'm in, N o one has a
rigiit to denounce such a man as non-belie ver or drive him out
o f the fold o f thd ummah, eave when there is oxplicit proof of
falsity or o f renunciation of the belief. This is the legal aspect
of the problem. But in the eyes o f the Lord, only th at Iman
is valuable whioh consists in complete surrender of one’s will
and choice to the will of Allah. I t is that state of thought and
action wherein man submits himself fully to A lla h , renouncing
all claim to his own supremacy* I t is somethin g that comes
from the heart. I t is an attitude of the mind and prepares man
for a certain course o f action. I f a man recites Kalima* owns
the contract and even performs hia prayers and other acts o f
worship, but in his heart he regards him self as the owner and ’
the dispenser o f his physical and mental powers and o f his
moral and material resources, uses them to his own liking and
upholds his freedom of will, then, however much the people
may look upon him as wjo’min, in the eyes of God he will be a
non-believer, for he has, in fact, not really entered into the
bargain which according to the Qur’an is the essence o f
I f a man does not use his powers and resources in the way God
has prescribed for him and instead uses them in pursuits which
God has prohibite d, it clearly shows that either he has not
pledged his life and property to Allah or even after pledging
them to H im , he falsifies the pledge by his conduct.
3. This nature of Iman makes the Islamic way o f life
distinct from, nay, the very opposite o f the non-Islam ic way of
Plays such fantastic trick* before heavon.
As make the angels weep. — Shakespear e. Measure /o r Measure
(Isabella), A ctX f, So. II.
 Political Concepts of the Qur'an 161

life. A Muslim who has real faith in Allah , makes every aspect
of his life subservient to the Will o f Allah. Hia entire life is
one o f obedience and surrender and he never behaves in an
arrogant or an autonomous way, eave in a moment of
forgetfulness. And after such a lapse as soon as he becomes
oonscious of it he again readdresses himse lf to his Lord and
repents of his error. Similarly a group of people or a society
which consist of true Muslims can never break away from the
Law of their Lord. Its political order, its social policy , its
culture, its economic ideolo gy, its legal system and its
intern ational policy must all be in tone with the Code of
Guidance revealed by Allah and must, in no way, contravene it.
And if ever through errror any contravention is comm itted, it
must on realising this, correct this imme diately and return
forthw ith to the state of subservience to the Law of God. It
ia the way of the non-believers to feel free from God’s
Guidance and to behave as one’s own maste r. Whoever adopts
such a policy is, even though he may bear a name silmilar to
that of a Muslim, treading the Satanic path and follow ing the
way of the non-believers.
4. The Will of God, which it is obliga tory upon man to
follow , is the one which God Hims elf has revealed for man’s
guidance. The Will of God is not to be determ ined by man
himself. God has Hims elf dearl y enunciated it and there is no
ambig uity about it. Therefore if a person or society is honest
and steadfast in its contract with Allah, it must scrupulously
fashion its entire life in accordance with the Book of God and
the of the Proph et (peace be on him),
A little reflection will show that these stipul ation s are
logica lly implicit in the bargain and it is also clear from the
above discussion why the paym ent of the 1price’ has been post*
poned to the life after death . Paradise is not the. reward for the
mere profession of the bargain, it is4he reward for the faithful
execution of the contract. Unless the oontraot ia fully execu ted
and the aotual life-be havio ur of the ‘vendor’ complies with the
terms of the contract he does, not beoome entitled to the reward.
Thus the ‘sale* is concluded only at the last moment of vendor’s
 162 The Islam ic Law and Constitution
life and aa such it is natural that the reward shou ld be given to
him in the life-hereafter.
There is another significant point which emerges for the
stud y of the verse quoted above with reference to its context.
In the verses preceding it. reference has been made to the people
who professed Iman and prom ised a life of obedience, but when
the hour of trial came they proved unequal to the task . Some
neglected the oall of the hour and betrayed the cause. Others
plaved open tricks of hypo crisy and rofused to sacrifice their
lives and riches in the Cause of Allah. The Qur’an, after
exposing these poople and criticising their insin cerity and
hypocrisy, makes it clear that Iman is a contract, a form of
pledge, between man and God. It does not consist in a mere
profession of belie f in Allah . It is an acknowledgem ent of the
fact that Allah alone is our Lord, Sovereign and Ruler and
that ever ythin g that man has, inclu ding his own life, belongs
to Him and must be used in accordance with His direc tives.
If a Muslim adopts a contrary course, he is insincere in his
profession of faith . True believers are only those who have
really sold their lives and all that they possess to God and who
follow His dicta tes in all fields of activ ity. They stake their
ajl in obedience to the Commands of the Lord, and do not
devia te even an inch from the path of loya lty to God* Such
alone are the true believers.
Some people object that the promise referred to in the verse
does not occur in Jnjeel (Gospel) or Taural (Torah). So far as
Injeel is concerned we find the. following verses in i t :
“UluBsed are they which arerpersecuted for righteousness’
sake : for their ’s is the Kingdom of heaven*’.1
“ Ho that findeth hie life shall lose i t ; and ho that loseth
his life for my sake shall find it”.2
"And every one that hath*forsaken houses, or brethren,
ur sisters, or father, or mother, or wife, nr children, or

1. New T & lamen t, St. Matth ew. : h».

2. St. M a tth ew . 19 r 39.
 Political Concepts of the Qur'an 163

lands, for my name's sake, shall receive an hundredfold,

and shall inher it everlastin g life” .12
This is what we find in the Injee l as it exist s at present and
the above verses conv ey more or loss the very aaxne idea as is
given by the verses quoted from the Qur’an. As to the Taurat
(the first five books of tho Bible) it is correot that it does not
contain a clear state ment to this effect. But that is not all
impo rtant, for the Taural as it is today , is devoid of even clear
concept of life after death , of the Day of Judg ment and of the
Reward and Punishment in tho next world, although those have
always bean an inseparable part of the religion of God. It is in
no way correct to think, that tho real Taura t too was devo id of
these concepts. The fact is that Jews became so materialistic
in their approach in the days of their deoadenco that they could
not think of any greater reward than material and worldly
prosperity. So in the rewriting of the Taural they reduced the
concept of Paradise and reward in the hereafter tn that of
material bliss of this world and regarded the promised land of
Palestine as the paradise. Thus we find in the Taurat that
“ Hear, O Israel : The Lord our God is one Lord ; and
thou shalt love the Lord thy God with all thine heart, and
3
with all thy soul and with all thy migh t”.
“Is not He thy Fath er that hath bought thee 1 Hath
13
He not made thee and estab lishe d thee”
But the reward for this devo tion to the Lord, described in
the Taurat, is th a/ you shall become the owners of the land
wherein milk and honey flow i.e., Pales tine 1 The renasn for this
is that firstly* the Taurat available to us is incom plete and many
of its parts have been lost and destr oyed and secondly, it does
ated teachings of God ; instead
not consist o f the unad r ulter
there have been intermingled in it the teach ings of God and the
national traditions, racial prejudices, myth s, aspirations,
> interpretations oto., of the Jewish people. That is why it is
1. N w testament, St. M atthew , 19 : 29.
2. Old Testament, Deute ronom y, 6 : 4-5.
3. Ibid., D euter onom y,.32 : 6.
 164 The Islamic Law and Constitution
not generally possible to distinguish the word of God from the
word of man, In such a situ atio n the absence of a clear
statement in the present Taural does not affect the claim of the
Qur'an as to God’s promise to man.1

II
NECESSITY FOR AN ISLAMIC STATE
The Islamic conoept of life as envisaged in the Qur'an is tha t
man should devote his entire life to the causes of Allah, Whose
injunctions should be followed in all the Helds of human activity .
The Qur’an not only lays down principles of morality and ethics,
but also gives guidance in the political, social and economic
fields. ' It prescribes punishments for certain crimes and
enunciates principles of monetary and fiscal policy. These
cannot be tran slated into practice unless there is a State to
enforce them. And herein lies the necessity of an Islamic State.
. This concept is presented in the following verses of the
Qur'an :—
“ The adulterer and the adulteress, scourge ye each one
of them (with) a hundred stripes. And let not pity for tho
twain withhold you from obedience to the dm of (i.e., way
of life prescribed by) Allah, if ye beliovo in Allah and the
Last Day” . (24 : 2)
A very basic point emerges from thia verse. Here the
criminal law of Islam has been called Din-Allah i.e the religion
fi
of God. It means that religion does not merely moan prayers,
and fasting and Hajj and Zakat, it also includes tho law of the
land and tho institutions of the State. If we want to establish
religion of God, the objective will not be achieved by merely
establishing the institutions of Saum (fast) and Salat (prayer).
We shall have to establish side by side with them tho Divine
Law and make the Shari*ah the law of the land. If the latter is
not established, then oven if the institutions of Salat etc., ia in
force, it will not amount to the estabishment of din. It would
I ■I - _ v
1. Tafh im al Qur'an, Vol. I l , pp.
 Political Concepts of the Qur’an 165

only he a partial enforcement of it and not a tota l one. And if

instead of God-given laws some other laws are adopted, it means
1
nothing short of rejection of the din as suc h.
Another verse of the Qur’an which throws light on this
problem is as follows :—
“Say : 0 my Lord I let my entry be by the Gate of
Tru th and Honour • and likewise my exit be by the Gate of
Tru th and Honour ; And gra nt me from Thy presence a
ruling authority to add me” . (17 : 80)
That is, eith er gra nt power to me or gra nt me the assistance
of any ruling author ity, or state, so tha t I may with, the force
and the resources of the coercive power of the Sta te establish
virtue, eradicate evil, put an end to corruption, vulgarity and
sin, sei at righ t disruption which has spread thro ugh out social
life and adm inister justice according to Thy revealed law. This
is what this verse means so is also clear from the interpretation
placed upon it by Hasan Basri, Qatada, Ibn Jar ir and Ibn Ka thir,
This view is furthe r supported by the hadith : “ Allah brings to
an end thro ugh the State what He does not eradicate through
the Qur’an” .
This shows tha t reforms which Islam wants to bring about
cannot be carried out merely by sermons. Political power is
essential for the ir achievement. And as the above prayer has
been tau ght by none oth er than Allah to His own pro phet, it also
shows tha t the struggle for obtaining control over the organs of
the State, when motivated by the urge to establish the din and
the Islamic Shari*ah and to onforoe the Islamic injunctions, is
not only permissible but is positively desirable and aa such
obligatory. Those who regard such an endeavour as something
mean and Mis worldly or characterise it as “ power-seeking” are
totally mistaken. If a person strives for personal glory and wants
to gain power for personal ends, |h a t is certainly to be condemn­
ed. It is un-Islamic. But if power is being sought to establish the
din of Allah, then it is an undisputed act of Godliness and

L Maududi, l'afh im til'Qur’an, Vol, Hl, Suvak al-Xur, p. 343.

 166 The Islam ic Law and Constitution
piety and must not be confused with pow er thirs tines eJ

III
SOVEREIGNTY OF GOD
The next and the most fundamental and most revolutionary
political concept of the Qur’an is the sove reign ty of God over
the entire life of man. So far as the concept of the sovereign ty
of God over the uni verso is concerned, it io accepted by most
of the people but wha t the Qur'an dem ands is that they must
also acknowledge Him as the Sovereign in his moral, social,
cultural, economic) and polit ical sphere o f life.
Stud ents of political science know how vexe d the issue of
sovereignty has become in the pres ent age. It is perhaps the
most-disputed issue of polit ical science, and a good many
thinkers have even pleaded that the problem is ao confusing
that it would be better if the poiitioal theo rists discard it
altogether. Not only are there theo retic al and logical anomalies
but also the developm ent of inter natio nalism seems to have
more or less rendered the concept of natio nal sovereign ty
obsolete. The root cause of al] the difficulties in respect to
this question is a basic fallacy ; the political philosophers have
tried to place the cap of sovereignty on man a being for whom it
was never intended and whom it can therefore never fit. Keeping
in view the attributes of the sove reign , no human being or
human organisation oan really claim title to it. And when
sove reign ty is forced upon human beings, it results in confusion
on all hands.
The Quranic concept of sovereignty is simple. God is
the Creator o f the Universe. He is it* real Sustaiaer and
Ruler. It Is His Will that prevails In the cosmos all around.
As all creation is His, His command should also be established
and obeyed in man’s society. He is the real Sovereign and
His Will should reign supreme as the Law.
The above view of sove reign ty is presented in fhe
I. ’ Ta/Aim <d-Qur'ant Vol. If, p. 638.
 PofihcffZ Concept# of tht Qur'ttn 167
following verses of the Holy Qur*an :
(a) Prophet Joseph (God’s blessing be on him), on announc­
ing the mission entrusted to him, declared ;
“ Verily I have abandoned the creed on a people who
believe not in Allah and who are disbelievers in the Here­
after. And I have followed the religion of my fathers,
Abraham and Isaac and Jacob, It xiover was for us to
attribute aught as partner to Allah. This is the bounty of
Allah unto us and unto mankind ; but most gi ve not thanks.
O my fellow prisoners t are diverse lords better, or Allah,
*. the One, the Snhdure P Those whom ve worship beside
Him are but names which yo have named, ye and your
fathers. Allah hath revealed no sanction for them. The
Authority rests with Allah alone, Who hath Commanded
you that ye obey none save Him. This is the right religion,
but most men know not”. (12v: 37—40)
This is one of the Lest and most eloquent arguments
for 'AMrA/fr? and contains many important points for con­
sideration $
(1) This, perhaps, is the first public speech of Joseph as a
prophet. The earlier verso* of the Qur’an, in so far as they relate
to him deal with his unblemished character and his life of virtue
and integrity. Now we find that he lias begun his practical work
as a prophet. It also seems to be the first occasion for him in
Egypt to reveal his real identity, /'.fl., being the kin of Abraham
and Isaac and Jacob, ft is here that he tells the people that he
is not propounding anything new—that his message is the same
as that of the earlier prophots. He also tells the people that he
belongs to the same international movement for Tawkeed whose
1. The original word is al-Zahhart which according to 'Arabio-
English Lexicon* means : The subduer of his creatures but His so*
veroign authority and power, and th© Disposer of them as ho please th,
with and against their wilP’. W ehava rendered this word ae ‘the
Subduor’.
2. This discussion has been abridged. Only pointe having a direct bear­
ing upon the political ocnoepis have^een dealt with, th© others being
left out,—Editor.
168 TAe Islamic Law ant ConttiMion
leaders had been Abraham and Isaac and Jacob—m entioning
only those whom the people must have known because of
geographical and historica l proximity,
(2) It shows that the Prophet started his work not by go*
ing into petty trivialitie s, but by presenting the basic postulate s
of Islam. In hie very first discourse he clearly expounded the
differences between Tawheed (monotheism) and Shirk (polythe­
ism) and called the people to the path of Tawheed in a befitting
manner. The message was so dear, bo truthful and so well-
presented that it must have gone straight to the hoart of his
list Hers. As the listeners were slaves, they could very well
understand the underlying truth of the question : “ Are diverse
lords better, or One Powerful Master!” They knew how difficult
it was to serve more than one master. The message, in a nutshell,
was that of denunciation o f shirk in all its forms, apd acknow­
ledgemen t of the overlordship of one God in all fields of
existence. Joseph (peace be on him) tells his listeners that gods
they worship are more names and do not possess any attribute
of real lordship or sovereignty, He stressed that whoa they too
acknowledged that the real sovereign of entire creation is Allah
Who is the Creator and Sustainer of the universe, why then
avoid ita natural and logical consequences. It naturally follows
that He alone should and as a matter of fact does, enjoy real
authority and He had not provided any sanction, for the worship
and obedience of any of the gods before whom they bowed. He
alone is the Law-giver. Rule and authority belong to Him. All
these prerogatives are exclusive ly His. And he has enjoinod
that His Command should reign supremo. Man is to worship
none except Him, to obey non© except Him, and to follow none
except Him, He is the real sovereign and His Law must prevail1
(6) ^The concopt of sovereign ty is further explained ' in the
following verse :
“ Verily, your Lord iB Allah Who created the heavens
and the earth in six Days, then mounted He the Throne.
He covereth the night wifh the day, which is in haste to
1. Tajhim ol-Qur'an, Vol. IL PP.
 Political Concepts of the Qur’an 169

follow it, and hath made the sun and the moon and the
stars subservient by Hie Command. Verily His is all creation
and His is the Command (the Law). Blessed be Allah, the
Lord o f the Worlds.” (7 : 54)

It is difficult to precisely understand what is meant by

isiawa 4alal 'arsh (Mounted He the Throne). It is possible that
God appointed a certain place as the centre of this limitless
oosmos and made it the centre'—and the control-house o f the
universe. And it is this place, from where the universe is being
governed, which has been called 'arsh (the Throne). It is also
possible that the word has been used as the symbol o f authority
and suzerainty and ‘to mount the Throne’ implies that after
creating the universe God took hold of the reins o f power and
became its Ruler and King. Whatever be the actual nature of
the happening., the real import and significance o f 'mounting of
the Throne* is that God is not the mere Creator of the Universe,
He is also its Ruler and Governor. This is a very important
ooncept and the Qur’an wants that this point should be fully
realised by man.

God is not the one who created the world and then retired.1
This concept of retirement is fallacious. The Creator has not
severed His connection with the universe after having created it.
He still controls it and provides for its maintenance. He controls
its every aspect. All authority and all power rest in His hands.
From the smallest particle o f dust to the gigantic nebulae every*
thing is subservient to His Will and obeys His Commands.
The destiny o f this entire creation is dependent upon Him.
Thus the Qur’an demolishes the very foundation^ of shirk
(polytheism), atheism and selLworship. If a man does not

I. The Hindu concept is that God retired after creating the Univorse.
According to Encyclopedia Britannica, th a Hindu view i* that He
•♦having porformed his legitimate part in the mundane evolution by His
original creation of the Universes, has retired into the background'*
(Vol. X I, page 077). The philosophy of modern deism is also bason
on a similar misconception-*Editor,
170 The Islamic Law and Constitution

regard Allah as the Creator and the Governor and thinks that
God has severed His connection with the universe and now haB
no practical say in its running, the natural result of this concept
would either be the arrogance of all authority by man to himself
or the association and acknowledgment of other powers as
deities. The Qur’an has totally banished the possibility of either.
The Qur’an repeatedly uses the political terms like King-
ship, Lord and Sovereign to explain the relationship of God with
man and His other creation. It most unambiguously lays down
that the real King of the heavens and of the earth is Allah and
to Him alone belongs tho sovereignty over the Universe. The
entire universe is one organic system which is being controlled
by one Authority. Thus, whoever else claims partial or total
sovereignty, whether for himself or for any group or organisa­
tion, is labouring under delusion. The only reasonable course for
man is to acknowledge the Creator and the Lord as the Deity
and the object of worship in the religious sense of the word and
as the only Sovereign, Ruler and King in the political and
social meaning of it.
The point is further clarified by the expression lahu ab
Khalq w(i al •Amr (Verily His is the Croation and His is the
Command). This clearly states that God is not only the Creator
but also the Commander and the Ruler. He has neither left His
Creation to the mercy of others to command it as they like, nor
granted any section of it the freedom and autonomy to do
whatever it chooses. God is the real and virtual Ruler and
exercises real control over his Kingdom. Day and night do not
follow each other of their own, nor do seasons change accident­
ally, but it is the Will of God which regulates all this : He can
make the change anywhere He likes. Everything is subservient
to His Will and obeys Him implicitly. All act in the manner
God Wills them to act. It is a natural demand of Hie being the
Creator that His Will and His Law should reign supreme.1
(c) Another verse of tho Qur’an also throws light on this
concept :
1. To/JUm al-Qur*a*t Vol. I I . pp. 36-37,
 Po lit ica l Co nc ep ts of the Qur'an
f
in
"H e un to Whom belongeth th e so ve
re ig nty of the
heaven s and th e earth. H e hath ta
ken unto H im se lf no
son nor ha th He an y partner in th e So
vere ign ty . He hath
created ev er ything and ha th meted ou
t for it a measure” .
(25 : 2)
Here th e word employed is H ul k whioh
is used in Arabic to
convey the meaning of supremacy,
so ve re ig nty and kingship.
According to th is verse Allah alone is th
e Governor, K in g and
Ruler of th e entire universe and no on
e else shares even a shred
of H is au th or ity . He is th e absolute
So vere ig n. Th is clearly
brings home to one th e tru th th at He
alone can be th e De ity ,
because one offers hie worships on ly
to one who commands
power and au th or ity , can bless or repr
ove him , and change his
de stiny favourably or ad ve rsely . No
t even a fool would be
prepared to bow before one whom he
kn ow s to be devo id of all
power and au th or ity . If men would on
ly realise th at all power
rests with Allah, no on e would be prepar
ed to bow before anyone
else or to ob ey and follow others
or so lio it th eir help and
guidance. H is au th or ity alone would
he acknowledged and His
Commands alone would be obeyed
and no such law would be
followed as in vo lv es H is disobedience.
To acknowledge th is au th ority of Allah
is the kernel o f the
Islam ic concept of So ve re ig nt y.1
(d) The po in t in disp ut e betw een the pr
ophets of Allah and
th e non-believers has alw ays been th at
th e prophets demanded
ab so lu te obedience to Allah and co m
plete acknowledgment of
H is so ve re ign ty in th e social, po lit ica l,
cu ltu ra l and all other
fields, but th os e in power whether th
ey were th e heads or the
elders of tr ib es or were th e kings an
d monarchs, refused to
forego th eir au th or ity and acknow led
ge th at of Allah. The
following verse of the Qur’an illustr ates
th is po sition :
"And Moses said : My Lord is beet aw
are of him who
bringeth guidance from H is presenoe,
and whose will be the
sequ el of th e Ho m e (o f bliss). Lo 1 wr
ong-doers will no t be
successful.
I . Ta/him al*Qur\m pp. 433.
f
172 The Islamic Law and Comtifation

"And Pharaoh said : O chiefs I I know not that ye

have a god other than me» So kindle for me a fire, 0
Haman to bake the mud, and set up for me a lofty tower in
order th at I may search the God of Moses and lo 1 I deem
him of the liars?’ (23 : 37, 38)
The Pharaoh thus claimed godhood. But he could not have
by that meant that he was the Creator of the heavens and the
earth. Nor any man in his senses could claim that. The
Pharaoh j^ould not eVen mean that ho was the only object of
worship, for the Egyptians worshipped a host ef deities. In fact
the Pharaoh himself worshipped many, a god and owned his
exalted position to his being regarded as the descendant of the
Sun-god.
This being the position, the Pharaoh’s claim to god hood
could only mean that he wanted to bo obeyed as the King and
the Sovereign of the people of Egypt* And from this viewpoint
his position was not very dissimilar to that o f the states which
claim legal and political sovereignty for themselves independent
of the law of God. Such states may assign the sovereign position
to any one individual or to the will of the demons, but so long
as they olaim the laws made by them and not those laid down
by Allah and His Prophet are to reign supreme, there is no
difference, in principle, between them and the Pharaohs. The
nature of the claim is the same, and there is no difference bet­
ween a Pharaoh who called himself ilah and the modern secular
states which regard themselves sovereign in this respect?
According to Islam sovereignty belongs to Allah alone and
Ho is the only Law-giver.
(e) It is as a logical consequence of thia concept of sovere­
ignty, that the political organisation of the Islamic State
has been called Khilafat (vicegerency). Man is God's vicegerent
on earth and as a vicegerent his n^ssion in life is to carry out
and establish the command of the Sovereign. According to the
Qur’an :
1. Tafhim Vol. I l l , pp. 637-^8,
 Political Concepts oj the Qur'an 173
“ Thy Lord said unto the angels : Lo I I am about to
place a viceroy on the earth” . (2 : 30)
means one who enjoys certain rights and powers,
not in his own right but as representative and viceroy o f his
Lord. His authority is not inherent ; it is a delegated one. He
is not free to do whatever he likes, but has to act according to
the directives of his Principal. If he disobeys the latter, arro­
gates to himself power whioh does not belong to him, and acts
in contravention of the directives o f his Sovereign, then his
behaviour is not in keeping with his real position and amounts
to rebellion.
The purpose of Hie relevant injunctions of the Qur'an is
that man should realise his real status of vicegerency> and as
such, his duty to obey his Lord, follow His instructions and
establish His Will on Earth. I f man does the contrary, he will
fall a prey to Satan—the eternal foe of man and will go astray.*1
This vicegerency is a popular vicegerenoy. Basically it
belongs to all mankind and is not the exclusive privilege of any
individual, family, tribe, class or sect. But as it implies acknow­
ledgment of God as the Sovereign, only those who acknowledge
this (e.e., Muslims), to whatever class or clan they may belong,
have the right to exercise it. That is why in an Islamic State,
vioegerency is confined to the Muslims alone, but is enjoyed by
all of them and is not confined to any clan, class or dynasty.2
( / ) As we have said earlier, it follows from the concept of
the Sovereignty of God and the vioegerency o f man that the
latter should follow the law revealed by the Lord. This is what
the Qur’an emphasises time and again,
“And say not concerning that wherein your tongues
utter a lie : this is lawful, and this is unlawful that ye may
invent a lie against Allah ; verily those who fabricate lie
ajainst Allah shall not suooeed” . (16 : 116)
This verse clearly states that the authority to deciare one
thing to be lawful and another to be unlawful rests with Allah
____ ___ • w
1. Tajhim al*Qu*r<mt Vol. L, p.
2. Al-QuScm. 24 : W.
174 Tke Isla mic Law and Con stitu tion

alone and no one else enjoys even a fragment of it. This means
tha t the authority to legislate ves ts in Him alone. Whoever
else tries to declare or adjudge abo ut the law fuln ess or otherw ise
of thin gs of his own authority is a transgressor, unless ho does
so on the author ity of and wit hin the lim its proscribed by God.
Unabashed legislation —th e act of declaring, withou t any
let or hindrance, certain things lawful and oth ers unlawful—
has been described as 'inv ent ing lies against Allah’. It has
been called so because this can be the resu lt of one of the
following two thin gs only : Eith er the person doing so alleges
tha t what he is declaring lawful or unlawful withou t showing
any basis therefor in the .Book of God, has a matter of fact,
been so ordained by God Him self or tha t God has abdicated
His author ity in his favour and left him free to legislate as and
what he likes. Whichever of the se two positio ns he claims for
him self is a lie pure and sim ple and a false imputation to God J
Not only tha t, at another place the Qur'an sa y s:
''Those who do not make decisions in accordance with
tha t which Allah has revealed, ver ily they are the disbe­
liev ers ..... . the unj ust ..... .the transgressors” . (5 : 44, 4o, 47)
Here God warns those who do not adm inister their affairs
in accordance with His revealed law and do not enforce it tha t
the y are (a) disb elie vers (6) unjust and (c) transgressors. This
means tha t one who diso bey s the law of the Lord is gui lty of
three orimea JTw/r, Zulm and Fis q. Fir stly this disobeyal
means tha t he is flouting the author ity of Allah and is refusing
to aocept His Command—which is Kufr. Secondly it amounts
to perpetration of inju stic e, for the Command of the Lord is
justice, pure and com plete and any dev iation from it results in
nothin g but tyra nny and inju stic e, or in the words of Qur’an in
Zulm. Lastly, man being the sub ject of God,- by disobeying
the Command of the Lord, he step s out of the am bit of loya lty
and obedienoe to Him , and this act of his is an act of
transgression. And tha t is Thus whenever a man

1. Taftiim aJ-Qur’a*. Vol. I, p. 578.

 Political Concepts of the Qur'an 175

deviates from the Shari*ah he commits all the three Crimea. It

is impossible that one may disobey a directive of Allah and not
be guilty of these three crimes. The extent of guilt will, of
course, depend upon the extent of the deviation and disobeyal.
If a man regards a command of God as WRONG or doubtful
or outmoded and deems his own opinion or that of somebody
else as correct, he is a Kafir, a Zalim and a Fasiq of the highest
order and goes outside the pale of Islam» If*a man acknowledges
the authority of Allah and professes hia belief in it, but in the
practical affairs of life does not care for His Commands, then,
although he does not go outside the fold of the ummah his
/man definitely gets mixed' up with Kufr and Zulm and Piaq
and ho is not a real and pure Muslim. And if there is a man
who obeys God in certain fields and disobeys Him in others,
then his Zmdn too gets mixed up with Kufr and Zulm and Fieq
to the extent he disobeys the Lord.
The moral of the above verse is that the only correct, the
only just, and the only prudent course for a Muslim is to follow
the law of the Lord and establish it over his entire life and in
that of the society.1
(g) The above is the natural dictate of the Islamic concept
of sovereignty and this concept is not only the cardinal concept
of the Qur’an but all the prophets of God were raised to
propagate it and establish it. The message of all the prophets
was one and the same : ‘acknowledge God’s Sovereignty and
follow me’. According to the Qur’an Prophet Jesus said :
“ And (I come) confirming that which was before me of
Torah, so that I may allow some of what was (formerly)
forbidden unto you. I come unto you with a sign from
your Lord, so keep your duty to Allah and obey me. Lo !
Allah is my Lord and your Lord, so worship Him, That
ia the straight path”. (3 : 50-61)
This verse clearly lays down that lite all the prophets of
God1 the message of Jesus was also the same and comprised
three basic points, viz. *
1. ToJMm al.Qur'bn, Vol. I , pp r 4?<U?«.
176 T ie Islamic Law and Con^tilulion

(0 Sovereignty belongs to Allah alone—it is He who is io

be worshipped and it is His Guidance on which the
entire structure of morality, society and culture is to
be reared.
(••) The Prophet is to be obeyed as the representative and
the messenger o f God, the Supreme Ruler,
(*•<) The law which is to decide the legality and correctness
or otherwise (tatal and haram} of the things, most be
the Law of the Lord. It is His Shari'ah alone which
is to prescribe the lawful and the unlawful. None else
can have any say in this respect.
Thus the mission o f Moses, Jesus and Muhammad (peace be
upon them all) was one and the same. All of thorn stood for
the same ideology. People who have ascribed different missions
to different prophets are utterly wrong and make a baseless
allegation. Whosoever came as the Messenger o f the Lord,
asked the people to desist from His disobeyal, from associating
partners with Him, from deviating from His guidance, and
called them to a life o f unconditional obadienoe, loyalty and
submission to Him.
It is unfortunate that Bible as we have it to-day does not
present this mission of the Prophet Jesus (peace be on him) as
precisely and as clearly as is presented in the above verse o f the
Qur’an. Nevertheless, even in the Bible as it exists we find
references, though scattered here and there, to all the three
points mentioned above.
About the first principle, relating to sovereignty and
worship, the New Testament says t h a t :
“ Then saith Jesus unto him, Get thee hence, Satan ;
for it is written, thou shalt worship the Lord thy God, and
Him only shalt thou serve” .8
And he further stated that the Will of God must prevail in
the domain o f human world —the field in which man has been

1. AJ-Qur’an, 26 : 108, 12«, 144, 163, 178.

2. New T u lament, St. Matthew, 4 : 10.
 Political Concept* of the Qur'an 1TI

given freedom and autonomy—as it prevails in the realm of

nature.
* "Thy Kingdom oome. Thy Will be done in earth, os it sb
in heaven”*1
The seoond principle that Prophet Jesus presented himself
as the Messenger and the Agent of God the Real Sovereign and
asked the people to obey him in this very capacity, is supported
by many verses in the New Testament. When he began to
deliver his message and call the people of the Nazareth to the
religion of God and his own kith and kin stood in revolt to him,
he declared : So we are told on the authority of saints Matthew,
Mark and Luke that a prophet is never honoured in his own
country. And when conspiracies were hatched in Jerusalem to
do away with him and when his friends and associates requested
him to leave the place, he said that the prophet shall not die out
o f Jerusalem. And when he entered Jerusalem for the last tim e,
his disciples were saying : “ Bleseeth be the King that oometh
in the name of the Lird" 1 On that some o f the Pharisees were
enraged and they said to Jesus to "rebuke thy disciples”. Jesus
said : " I tell you that, if these should hold their peace, the
stones would immediately cry out” .2 On another occasion Jesus
said :
“ Come unto me ye that labour and are heavy laden,
and I will give you rest. Take my yoke upon you, and
learn of me ;........... For my yoke is easy and my burden is
light”?
And, lastly, that Jesus wanted people to revolt against
man*-made law and to obey Diving Law, is upheld by the
following passage in the Gospel, according to 8 t. Matthew :
“ Then came to Jesus scribes
•
and Pharisees, which
were o f Jerusalem, saying, Why do thy disciples transgress
the tradition o f the elders F for they wash not their hands

)« New S t. Matthew*, 6 : 10.

2. IH d .. St. L ake, IS t 38-46.
X I M . , S t. M atthew, 11:28-30.
 178 The Islamic Law and ConviiMion
when they eat bread. But he answered and said unto them,
Why do ye also transgress the commandment of God by
your traditions! ...Thus have ye made the commandment of
God of non-effect by your tradition. Ye hypocrites, well
did Esau as prophesy of you saying :
“This people draweth nigh unto mo with their mouth
and honoureth me with their lips ; But their heart is far
from me. But in vain they do worship me, Teaching for
Dootrine the commandments of men” .1
There is a similar passage in St. Mark 23
All those references gQ to prove that the mission of Jesus,
like that of all other prophets before him, was to preach the
sovereignty of God and to establish His law on the earth.8

THE PRINCIPLES OF LOYALTY TO

THE STATE

The Qur’anic concept of sovereignty is very clear and un­

ambiguous. It automatically follows from the concept that the
centre of loyalties, in the state founded on this concept, can
only be Allah and under His sanction, His Prophet. This
prinoiple is further elucidated by the Qur’an in the following
verse :
“ O you who believe, obey Allah and obey His Mes­
senger and those from among yourselves who hold authority;
then if there is any dispute between >you concerning any
matter, refer it to Allah and His Messenger if you really
believe in Allah and the Last Day. This is the best course
(in itself) and better as regards the result”. {4 : 59)
This verse sets down the basis for the entire religious,
political, social and cultural system o f Islam and comprises the
first principles of an Islamic constitution. It lays down the
following fundamental and unalterable principles :

), N ew T t t l a w n f , S t , M atth ew , 16 ; 3-0.
2. Ib id ., S t. M ark, 7 : 5-J3, *
3. Tafh-im af-Q w 'tinj V ol. I, pp. 254.66.
 Political Concepts of the Qur'an 170
1. The real and sole object of our obedience is Allah, the
Real Sovereign. He alone is to be obeyed in His own right. A
Muslim is first and the last, the subject o f God, His 'abd (Slave}.
All other positions are just secondary. The centre o f loyalty
and obedience for a Muslim>in his individual as well as collective
life, is God alone. All other loyalties muBt be subject to and
totally within the sanction of God, None of them should, aven
in the minutest degree, amount to a repudiation of the loyalty
we owe to Him. This idea has been expressed by the Holy
Prophet in these w ords:
°There is no (permission for) obedience to the creature
if it involves disobedienoe to the Creator”.
2. The second fundamental basis for the Islamic Order is
loyalty and obedience to the Prophet. This obedience is not
demanded in its own r ig h t; it is in faoi, the practical manifes­
tation of obedience to God. The Prophet is obeyed because
he is the only authentic source through which the directives
and commandments of our Lord are communicated to us. As
such we can obey God only by obeying His Prophet.1 There is
no reliable authority other than the Prophet to make us know
the Will of God and the way of His obedience. As such any
form of obedience not sanctioned by the Prophet is unauthentio
and therefore, untrustworthy. Thus the disobeys! of the Prophet
is tantamount to disobeys] of God. The Holy Prophet
enunciated this principle when he said :.
"Whoever followed me followed God and whoever
disobeyed me disobeyed God”.
3. This third object of the Muslims’ obedience the Islamic
Order of life are the ulul-amr, ».e», the men in authority, the
government. But obedience to ulul-amr comes only next to
obedience to Odd tend His Prophet and is subservient to both of
Them. And futhermore, the ulul-amr must according to the
very <verse wherein this term occurs, be from amongst the
Muslims themselves. « *

I, Cf. “ Whoso obeys the Messenger, obeys Allah*** (AZ-Qur'an, 4 : W),

 180 The Islamic Law and Constitution

Ulul-amr is a term o f wide connotation. It in cl a dee all

those leaders of the Muslim society who control and administer
its affairs, m ay they be leaders o f thought or literature, religious
divines, political leaders! administrators, judges, commanders or
ohiefs o f social, cultural, tribal, municipal or Local organisations,
Thus whoever be in charge of any facet o f the affairs of the
Muslims, deserves to be obeyed and followed in his own sphere.
I t is not permitted that one should, by unnecessarily raising
issues with them and creating atmosphere o f strife and conflict,
disturb the life of the community. The obedience to the
ulul-amr is, however, subject to the following two essential
conditions :
(») These ulul-amr should be from amongst the Muslim
community.
(i>) They should themselves be obedient to God and His
Prophet and their policies and actions must conform to
the letter and the spirit of the Sh a rja h .
The H oly Prophet (peace be upon him) has expressed and
elucidated thia principle in many o f his sayings. For instance:
(а) “ A Muslim must listen to and obey the ruler whether
he approves o f what is ordered or abhors it, provided
he is not ordered to sin. In that case, he should neither
listen nor obey” .1
(б) "There is no obedience in sin. I t is only in virtue” /2
(c) 14You will be governed by people some o f whose acts
and commands would be virtuous and some others
sinful. Then whoever expresses his open . disapproval
over the munkarai (the sinful acts) will not be held
responsible for them and whosoever disapproves of
them and dislikes them (at heart, although he does not
express his disapproval in so many words) will aho
save his skin ; but whosoever approves o f them and
follows them would be held accountable for them” .
The Companions asked : "W hen the days o f such rulers

1. Bukhari, AbSakih.
2 Muslim. Al-Sah b
 Po litica l Concepts of the Qur'an 181
The
come, sh ou ld we no t wage war against them 1° 1
o ! No t as lon g as the y off er sal at” .
Prophet said : “N
to God and
According to thia hadith the sym bol of obedience
d it also, then
to His Prophet is salat. If the ulul-amr discar
ste p ou t of the ba sic loy alt y to Go d an d His Prophet,
they
d the n it be com es pe rm iss ibl e to str ive to rem ove them.
An
(d) The Ho ly Prophet said :
and who
“ Your worst rulers are those whom you ha te
o ourse
ha te you and tho se whom you ourse and wh
het of
yo u” . Asked the Companions ; “ O, the Prop
not rise
God I If such is the situa tio n, then should we
op he t:
in rev olt again st them ?” . Replied the Ho ly Pr
among
“N o I No t as long as the y estab lish prayer
yo u” .2
in (c) above.
This hadilb further confirms the one mentioned
tha t even if the
The first hadith migh t be construed as meaning
rig ht to exact
rulers offer prayer in pr iva te, they retain the
y. Bu t the lat ter ha dit h cle arl y en un oia tee tha t wh at is
loy alt
uir ed is est ab lish me nt of the ins tit uti on of salat in the
req
, not only they
co lle ctive life of the Muslims. In other words
also uti lis e the
should the mselv es offer pravers, bu t should
r of the Sta te to est ab lish the ins tit uti on of salat in the
powe
ain s its Islam ic
com munity. If the Sta te do es this, it ret
it would mean
character. Bu t if eve n thi s much is no t there,
Sta te is no t pre pa red to ful fil eve n the fir st essen tia l
tha t the
would become
requirement o f Islam. In such a ’case it
ge the order of
perm issible for the Muslims to atrivo to chan
sod by the Holy
things. The po int has been further emphasi
Prophet in the follow ing hadilh :
We sh all no t dis pu te an d str ive ag ain st the rul ers save
(c) “
in the
when we see open Ku fr in the ir affairs—Ku fr
e our
presence of which we will ha ve no thing to eav
3
face before the Lord,
1. Muslim , *
2. ZMtf,
3. Bu kha ri, Al-Sahih* ah o Muglira.
 18i TAe Isla mic Law and Constitution
The fourth principle which too has been dea rly and
definitely expounded in the above verge of the Qur’an is tha t in
An loh inic Sta te the Command of God and the Sunnah of the
Prophet are the final author ity. Whenever there ia a dispute
■ ’• "r •
* am ong the people or between the people and the rulers, it eha
ll
■be referred to the Book o f Allah and the Sunnah of the Prophe
t
and whatever Judgm ent follows therefrom should be accepted
as binding on all. Thus the fundam ental and distinc tive
characteristic of the Isla mic Sta te, which distinguishes it from a
non-Islamic Sta te, is that it accepts God and His Prophet as the
fina l authorities. I f this be lacking the State is not Islamic.
Some people ask how a modern sta te can look to the
Qur’an and the Sunnah for the solu tion o f all its problems.
There are Jots of problems concerning Municipalities, Rai l­
ways, Pos ts and Telegraphs etc ., abo ut which the Qur’an and
the Sunnah hav e nothin g to say . Wh at will the Sta te do in
respect of the se 1
The objection is miscon ceived. The factor whioh dis­
ting uish es a Muslim from a non-Muslim ie the difference o f their
approach to life . The non-Muslims, even tho se who believe in
God and in Prophethood, have ceased to loo k to His guidance
in reg ula ting the ir affairs. They regard themselves free to ohalk
ou t the ir own solu tion s for the ir problem s. A tru e Muslim, on
the other hand, regards him self subject to the Law of God in
all tha t he does and exercises his will to regulate his affairs
only to the ext ent he has been premitted to do so by Allah. He
first o f all turns to the guidance provided by God and His
Prophet and aots according to his own ligh ts only when and
where no specific or imp lied guidanoe is ava ilab le in the Qur’an
and the Sunnah. And this action in accordance wit h his own
ligh ts too is based on the principle tha t the sile nce of God and
His Prophet in a certain ma tter imp lies tha t They hav e left
tha t ma tter to the good sense of the Muslims.
5. The verse alto gives the people the right to differ with
their rulers and is a charater of the ir politic al freedom . In case
of disouto, however, the ver dict of Allah and His Messenger is
 Politic al Concepts of the Qur'an 183

This
to be taken as final, both by the rulers and the ruled.
iding
clearly imp lies tha t there must be some ins titu tion for dec
In
such dispute in the ligh t of the Qur’an and the Sunnah.
epen­
other words, the judiciary in an Islamic Sta te must be ind
dic t
den t, com petent and bold enough to giv e an impartial ver
dis­
irrespective of the position and power of the parties to a
put e.1

V
THE PURPOSE OF THE STATE
Now we come to the purpose o f the Sta te. The Qur’an
lays down the follow ing dir ective in this respect :
“(Muslims are) tho se who, if We giv e them power in
the land, esta blish the sys tem of Salat (worship and
prayers) and Zakai (poor-due), enjoin rig ht and virtue
and forbid wrong and evi l.” (22 : 41)
The above verse epitom ises the purposes of the Islamic
inis­
Sta te and the basic characteristics of the rulers and adm
the
tra tor s. This one verse alo ne is sufficient to giv e an idea of
nty"
nature and the objective s of the Isla mic Sta te. God’s bou
act
and assistance are for tho se people wh o, when giv en power,
in the follow ing way :—
(а) In their personal live s the y adopt the way of pie ty and
obedience. Their character is free from the blemisheB
of sin , disobe dience to God, van ity and arroganoe
They behave like real gen tlem en, offer prayers to their
Lord, act hum bly and esta blish the sys tem of Salat in
the collective life of the people.
(б) Their wealth and resources are not wasted on sensua­
lities and luxuries. Instead the y esta blish the institu ­
tion o f Zakat (poor-due) the y pay the ir own Zakat
and organise the ins titu tion o f -Zdfeit so tha t the
wealth of the com mu nity may hav e an equ itab le dia.
trib ution and the Sta te ma y fulfil its wolfare functions.
1. Tnfhim al'Q ur’an Vol. I, pp. 363-66..
 184 TA« Islam ic Law emd Constitution
( c) They use the powers of the State for the eradication of
evil and of ein and for the prom otion and establish*
meat o f virt ue and goodness.
These are the objectives of the Islam ic State .1 2

VI
THE PRINCIPLE S OP GOVERNMENT
In the Islam ic State the Government is democratically
cons titute d and is run with mutual consu ltation. The Qur'an
•Ays ;—
(a) "God has promised to those among you who believe
and work righteous deed s that Ho will surely grant
them viceg eren cy in the lan d /’ (24 : 65)
The verse is quite clear on the poin t that this vicegereney
is promised to the entir e Muslim comm unity. Therefore it is a
popular vicegerenoy and is not limit ed to any particular indiv i­
dual or group of peop le. Consequently, the entire comm unity
is responsible for the affairs of the State8 and as such only that
government can legitimate ly carry on the business of the State ,
that has been cons titut ed by popu lar will and works in confor-
■
with the powers deleg ated to it by the comm unity.
(d) " It was by the mercy of Allah that thou hast been
gentle with them (O Muhammad}, for if thou h&dst
been stern and hard-hearted, they would have surely
dispersed from around abou t thee. So pardon them,
and ask forgiveness for them and consult with them
upon the conduct of affairs. And when thou (O Muham­
mad) art resolved, then put thy trust in Allah . Lo I
Allah lovet h those who put their trust (in Him )” .
( 1 : 169)
(c) “ TAey manage their affairs by mutual consultation.”
(42 : 38)
It follo ws from the above verses that the approach of
1. Ta/W m al-Qw?an> Vol. I l l , p, 235.
2, Based on $ Tajhim al-Qur'an, Vol. H I, Surah pp. <17-420.
 Political Concepts of the Qur’an 186

governm ent towards the people should be based on love, sympa-

thy and forgiveness. It should try to lighten their burden and
provide for them the nooesftitiea as well aa the comforts of life.
It should look to their welfare, betterment and prosperity.
Furtherm ore, the governm ent' should be constituted and
run in consultation with the people. Its structure must be aiioh
that the people are able to express their viewpoin t.1 It is their
will which should prevail. Anti this ean take place only in a
state that is democrat!# in structure and in its working.

CONCEPT OF CITIZENSHIP
•. ’l l . x , « f !' v . r * . v j*

(a) Although the Islamic State is an ideologic al state, it

* * • < • • c ’ • * v
o : • . , « * • • • • » ■ ■ s-
confines its citizensh ip to only those persons who Eve on its
territory or migrate to it, It is not an extra-ter ritorial state.
This is borne out by the following verse of the Qur’a n :
“Verity those who "believed and migrated and struggled
hard in Allah’s way With their property and their souls,
and those who gave (them) shelter and help—th ey are
guardians of ehchothe r, and (as for) those who believe but
did not migrate *(to the Islamic State), you'have nothing
to do witft iheir guardianship until’..they migrate; but if
they Beet help from you in the matter of faith then it is
your duty to help (them) exoept against a folk between
wham and you there is a treaty. Allah is Seer of what ye
d o ’ ..
(fr:
*■ .
72) ' ■ !r A ■ ’
This verse lays down another basic principle of the Con-
stitution al law of Islam, viz., Only those persons will be under
the guardianship of the Islamic State who either live in dar al-
Islafnor who migrate to it. As for those Muslims who live out­
side the territory of the Islamic State, it will not assume their
guardianship; The relationship o f Islamic brotherhood will bo
there, but nJot the legal responsibility of guardian ship/ If they
migrate Io it, then alone they will be entitled to its guardian­
ship. If they comb only as visitors and retain their citizensh ip
1S6 The Islamic Law and Constitution
of a non-Jslaruic State, they will be regarded as the citizens of
that non-Islamic State and will not become entitled to the
guardianship of the Islamic State.
Wilayat is an Arabic word and it meaus support, assis­
tance, protection, friendship, relationship, patronage, guardian­
ship and the like. In its context the above quoted verse clearly
denotes the relationsh ip subsisting between the State and its
citizens and among the citizens themselves. Thus it limits th©
political and constitutional guardianship (/.«,, the citizenship)
to the territorial limits of the State and excludes from this
guardianship those Muslims who live outside the dar ah Islam.
The legal consequences of this distinctio n are far-reaching.1
This will also affect the foreign policy of the Islamic State.
Tn the light of this verse the direct responsibility of the State
is limited to the Muslims who reside in its territory and does
not extend to those who do not live in it. This is what the Holy
Prophet meant when be said
“ I am not responsible for the protection of a Muslim
vrho lives among the Mushrite (Polytheists).”
This is how the Islamic law has cut the gordian knot which
has been at the root of many an internatio nal complication.
For when a state takes upon itself the protection and guardian­
ship of the minorities which live outside its territory, it invol­
ves itself in such complications that even consecutive wars oan-
not help it to wriggle out of them.
The Qur’an does not hold the Islamic State politically
responsible for the protection and guardianship of those Mus­
lims who live outside its territory. But it docs emphasise the
relationship of religious fraternity and takes cognizance of its
implications. If Muslims are being subjected to tyranny, if
genocide is being perpetrated upoa them and if they invoke the
help and assistance of the Islamic State on the basis of their
memheship of the Islamic fraternity , it is obligatory on the

I. Maud nd i, Rata'^Ma sait. Vol. IX, Islamic* Publications Ltd.,

Lahore* pp. 150-184
 Po liti cal Concept# vf the Qur'an 187
Sta te to go to the ir help and to protect them. Bu t thia
function
must be discharged with due regard to international
com mit­
ments and moral obliga tio ns. The Isla mic Sta te ia not
free to
behave in any manner it likes. If it is bound in an agr
eement
with the tyr ant nation , the n the Isla mic Sta te cannot
extend
such a help as may contravene the agreem ent or its mo
ral obli­
gation s withou t first repudiating the agreem ent openly
.
The word whioh has been used for agreem ent in the
verso
is meethdq whioh is used in the sense o f trust and und
erstand­
ing. By meeihdq is meant any un dersta nd ing which sho
ws tha t
one sta te is not at war with another. If thi s understan
ding is
there, even though there be no wr itte n tre aty of allianc
e or of
friendship or a non-aggression pact or a no-war tre
aty the
Islamic Sta te would be deemed to have a meeth&q wit
h suab a
Sta te.
The words used in this verse are : bainakum wa bain-a
hum
meethaq (between whom and you there is a tre aty ). Th
is shows
tha t the tre aty between the Islamio and the non-Islam
io Sta te
is not merely a tre aty between two sta tes ; it is a
covenant
between the two peoples as well, and the Muslim nation
is also
morally responsible for the tre aty along with its gov
ernment.
The Shari* ab does not adm it of a situ ation in which
the Mus-1
lim people may be deemed to be absolved of the moral
responsi­
bil ity of the tre aty entered into by their sta te. Bu t
the moral
respon sib ility of the tre aties of the Islamic Sta te wil
l dev olv e
only on the Muslims who are citizen s of the Islamic Sta
te. It
will not extend or apply to tho se Muslims who are not
citizen s
of the Sta te binding itse lf by a tre aty . Th at is why the
Treaty
of Hudaybiah was not deemed to be binding on those
Muslims
of Mecca (e.p .t Abu Ba sir and Abu Jandal) who had
not yet
become the oitize ns of tl}e Isla mic Sta te.
Thus it follow s tha t the Sta te can help the other Mu
slim
brethren outsid e its ter rito ry only in ways which do
A not con-
travene the tre aty between the Isla mic and the non
-Islamio
Sta te or can help them after openly den oun cing the tre
aty , if it
so deems fit. It can not do sq in any manner con
trary to
 188 Tht Islamic Law and Constitution
reoognized standards of international ethics and morality4
• " S '- - -.* :? ? • ? M a ’< 1
: ' n /■ * / •. i . < V .P
(&) As the Islamio State is an ideological state it classifies
its citizens into two categories, viz. Muslims and Zfimmis. This
differentiation ia essential in view of the ideological nature of
the State. But it does not lead to I the division of the people
into different cases, nor is any group deprived of basic Human
rights. The Qur’an says :
“ L o | the
*S* Pharaoh
I .•.H’Cbx’?’ exalted
.* himself
1*-V •*'' ' in the earth and ’ .•••- { if 'A P j
made its people castes. A tribe among them he oppressed^
JzUhng their sons and sparing their women. Lo ! He was of
those who spread disruption and corruption (faaaad).
(2? ' f)
Thus in the eyes of his government all citizens were not
equal in law. All did’ no^ enjoy similar rights. Instead he
adopted the policy of dividing people into groups and castes
and of oppressing one group aid exalting another, making one
the subject and the other the overJord.
_• • . ■• .1 i •
Here some one may raise an objection and say tha^ the
Islamic State too classifies its citizens into Muslims and Zimmis
and docs not give each one of them rights and privileges similar
in all respects. But this objection does not hold good because
the grounds of classification in an Islamic State are radically
different from those on the basis of which the non-Muslizh
states of the past aii4 present have been making this classifica­
tion. Islam does not1 divide people on the basis of tribe, race,
oolour, language or class. It differentiates between them on the
• • » • } • .;; .i 1 .\ \ • • •• • •• ; > *t ’
basis of a principle and an ideology. And whoever accepts the
ideology Which is its basic principle, its raison d'etre governing
all its aotions etc, bocomes entitled to the rights of full citizen­
ship. “ ‘ •••
Further, the Islamic State confers alj basic human rights
on its non.Muslim citizens as well and there is no distinction as
* • • ’• * • •• J , * 4 .* • ’ • • •’ * * ,
to rights and privileges between Muslims and non-Muslims in
this respect. Whatever distinction is mado between the two, is
in the realm of political responsibilities only. Since an Islamio
L Tafhim al-fyir*ant Vol. II, pp, 1Q1-G3.
 Political Concepts of the Qur'an 189
State is based on an ideology, it is evident that only those who
believe in that ideology can be entrusted with the responsi­
bility of running its affairs. Only those of its people can herein
bear the responsibility of policy-making who believe in the
ideology which must necessarily govern its policies and pro­
grammes. And* as already .explained, whoever accepts the
ideology, becomes one oi the governing class ana^ whoever
spurns it, steps out of tHeir foid. Thus there is absolutely no
similarity between this classification arid the one .made arid
maintained by the Pharaoh under which no one from the aiib-
jeot race could ever enter the fold of the ruling class, in which
f * * » '* . * ¥ * • 7 * * • * ■ • * *- * • **>* * • • • • ,

the subject race was deprived of all human rights and was with­
out any guarantee of life or honour, in which all economic bene-
fitp were reserved for those who were born among the group of
rulers and all avenues of progress were closed upon the rest
who were subjected to servitude so that their life became an
unending woe of misery and deprivation.1

vin
bi&fecHVkffiiNfcihtfeSor state frbticY
N

Alongwith the bft3ic political concepts, the Qur’an has also

given some cogent directives for state policy. A careful study
of these directives throws ample light on the objectives of the
Islamic State. The following verses of the Qur’an are very
important in inis respect: ■ • i . * * • %• •

“Set not up with Allah any other god (O man) lest

thou sit down reproved, forsaken. Thy Lord hath decreed
that :
(1) Ye worship none save Him ;
(2) (Ye show) kindness to the parents. If one of them or
both of them attain old age with thee, say not “ Fie”
unto them nor repulse them, but speak unto them a
gracious word. And lower unto them the wing of

1. Tafhim akQ ur'an, Vol. H I , pp. 613-14.

190 The Islamic Law and Constitution
submission through mercy and kindness and say : My
Lord ! Have mercy on them both as they did care for
me when I was little. Your Lord is best aware of
what is in your minds. If ye are righteou s, then lo !
He was ever Forgivin g unto those who turn unto Him ;
(3) Give the kinsman his due, and the needy and the way­
farer :
(4) Squander not thy wealth in wantonness and extrava ­
gance. Lo I the squanderers were ever brothers of the
devils and the devil was over an ingrate to the Lord ;
(5) But if thou turn away from them (i.e., the deserving
kinsmen, the needy and the wayfarer) seeking mercy
from thy Lord, for whioh thou hopest, then speak unto
them a reasonable and kind word ;
(6) And let not thy hand be chained to thy neck nor open
it with a complete opening, lest thou sit down rebuked,
denuded ; Lo I thy Lord enlargeth the provision for
whom He Will, and straiten eth (it for whom He Will).
Lo I He was ever Knower, Seer of His subjects ;
(7) Slay noi your ohildren, fearing a fall to poverty, (it is)
We (Who) provide for them and for you, Lo ! the slay*
ing of them is great Bin ;
(8) And gd'not near unto adulter y. Lo I it is an abomina­
tion and an evil way ;
(9) And slay not the life which Allah hath forbidden save
with right. Whoso is slain wrongf ully, We have given
9
power unto his h6ir, but let him not commit excess in
slaying. Lo 1 he will be helped ;
(10) Come not near the wealth of the orphan save in a be­
fitting manner till he comes to strength ;
(11) Keep the covenan t. Lo ! of the covenan t it will be
asked ;
(12) Fill the measure when ye measure and weigh with a
right balance ; that is neat and better in the end ;
(13) (0 man), follow not that whereof thou hast no know-
 Political Concepts of the Qur'an 191
ledge. Lo ! the hearing and the sight and the heart of
each of these it will bo asked ;
(14) And walk not in earth exultant. Lo ! thou canst not
rend the earth, nor canst thou stretch to the height of
the hills.
The evil aspect of all these is hateful in the sight of
thy Lord/ This is pkrf of that wisdom wherewith the Lord
hath revealed unto thee (0 Muhammad I)” . (17 : 29-39)
In the above verses the Qur'an has presented those basic
principles which constitute the bedrock of the Islamic Order.
The verses were revealed at a moment of historic significance,
t.e., on the eve of the beginning of Madianite period. The
Meccan period was coming to a close and a new chapter was
going to be opened in the life of the Islamic movement. On
this historic oooasion the Manifesto of Islam was revealed : a
manifesto which was to act as the source of policy and conduct
for the new Islamic State of Medinah. I t sets down the guiding
principles for the moral, religious, social, economic, political
and cultural reconstruction of the new state and society.
(а) The real meaning of the first principle is that none
except Allah should be worshipped and bowed before, and
also that He alone and no one else should be unconditionally
obeyed in all fields of life. His Command alone should be taken
as the Command and His Law alone should be accepted as the
Law and He alone should be acknowledged as the sole Ruler,
Sovereign and the King. The principle is not meant to be
merely as a private belief and article of faith for the individual
but also constitutes the veryfoundation of the Islamic system
of life and it was on this very pillar th at the Prophet (peaoe be
upon him) Bet up the society and state of Islam at Madinah.
The Islamic Staft^of Madinah was founded upon an ideology
and this ideology was none other than this : that Allah is the
supreme Ruler, the Sovereign and the King and it his Shari*ah
which constitutes for man the code of conduct and for the State
the law of the land.
(б) According to the second principl^the rights of the
parents come first among those of alL human relations and are
192 The Islamic Law and Constitution
' ' ■ i ■'■ . ■ . - ■ . . ■■ ■ r f :

ne^t only |o the rights of God Himself. » People must be res­

pectful and obedient to their parents and should serve them to
the best of their capacity. The moral climate of the society
should be such as to make the sons and daughters respectful to
the parents and not disobedient to. them. I t should inculcate in
them the spirit of service and induce them to look after . their
parents in the same way as they were themselves looked after by
them when they were young and in need of it. This verse is
not merely in the knature of a moral precept ; rather it was the
foundation upon which the legal rights of the parents were later
determined as is clear from the relevant portions of the books
of Hadith and Fiqh. Similarly because of this injunction, an
honoured position has been assigned to the parents in Islamic
society and culture, and it is the duty of the community as well
as of the State .to take measures to protect and maintain thia
position. Moreover, in the sight of this injunction, the principle
has been laid for ever that the Islamic State will so fashion its
legal, educational and administrative policy that the institution
of the family is upheld and strengthened and is provided with
state protection.

(c) The real import of articles 3, 4 and 5 of this Manifesto

is that a man should not reserve his earning exclusively for his
own
■’ ’ -
needs.
*
Rather he should
•
maintain
.
an unostentatious
• • • • > .1 • V. .
and
B

balanced standard of life and devote his surplus wealth for

helping his relatives and the needy and the destitute to meet
their needs, so that the spirit of co-operation, mutual sacrifice,
economic cohesion and deep regard for each other’s rights may
permeate Hie whole social climate of the history. Every person
should M p and assist his relatives, The rich should come to
of the poor and assist them in pieetiog the ups and
downs
.'••• of life.•" Every wayfarer"should always be assured • •of a
square meal wherever he may be in a Muslim land. The people
should be so imbued with the Islamic-concept o f'rig h t’ that
they should always feel that in their wealth is a share for the
people who live around them and if they help and assist them,
they merely give them something which was the latter’s ‘right’
 Political Concepts of the Qur'an 103

(as distinguished from 'dole* or oharity).1 And if a person is not

in a position to assist others, then he should regard it as a oause
: .* • . •• n r * . .> .• • : V - % -M : p . P • J T * , < v. • • *

for regret . and seek the bounty o f Allah so that he :may serve
. “ «. • t ; j '. f t . . .-• * • > : tT * ‘ 4 \ . : i. j 3 • . *

other people and assist them in procuring the amenities of life,

1 ® . s* ' • - . ?* • • • 1 * •' •»*. .* * * * • *? • • > • • • , • %• l • L• - '- • % . * • • " • ' •’ •

Like the first provision, these provisions of the Islamic Mani*

feato, too, were not meant to bo mere moral tenets. The Islamic •* * * • " * • • . * • * " . > •

State o f Madinah translated these injunctions into practice and

it was in their light th at a system o f compulsory contributions
sadaq^i-e-wdjibah} and of voluntary ; contributions (tadaqiit-e-
nafliah) was evolved, that a system o f waelyah (Will), wirasah
(Inheritance) and awqOf (Trusts) was devised and proper safe­
guards were provided for maintenance of the rights and proper­
ties o f the orphans. It was made obligatory on every habitation
to play host for three days, at least, to any traveller who comes
to i t . Moreover, every endeavour was made to infuse to the
community the spirit of sacrifice, generosity, philanthropy and
co-operatiOn so much so th at the people came to attach as much
importance to the moral rights and responsibilities as they did
to the legal rights and duties.

(d) In the 6th item it has been suggested that people should
. z ' • . I* * • . . . • • . •
*•

neither become too tight-fisted nor top open-handed. Instead

they should adopt a via media and should so expend their •* • . • • ■►’ • I l l ' * •’ * ’.

wealth that they neither hinder the proper and equitable cir-
culation o f wealth by acting miserly nor fritter away economic
strength by adopting ways o f extravaganoe.. They should main­
tain a balance in their expenditure — neither hesitate to spend
where necessary, nor indulge in avoidable or uncalled for ex­
penditure. All those who, 1q their spendings, are motivated by
hypocrisy, ostentation and exhibition o f wealth, or who spend
in the cause o f luxury, vulgarity, or corruption or needs other •. • *
* . "

than genuine, divert wealth into wrong, wasteful and unpro­

ductive channels and are guilty o f abuse o f God’s blessings.

J. Tho Qur'an Haya : . . .

♦•Im thoir wealth the beggar and the destitute have their due
(Al-Qur'm, 51 : 19) — Editor.
194 The Islam ic Late and Constitution

According to the Qur’an those who misuse their wealth on evil

pursuits act as Satan's accomplices.
These injunctions too have their legal and social bearing
and clearly suggest that a healthy Society should, through
moral education, social pressure and legal restrictions, check
the waste o f wealth. I t was in pursuance o f these injunctions
that the Islamic State of Madinah legally prohibited certain
forms of expenditure , stopped the flow oi money into certain
channels and through social reform abolished many a wrong
custom which involved extravaganc e and over-expenditure.
The State was empowered to put a stop to pronounced forms of
public extravaganc e. Through all these measures wastage of
wealth was checked.
Side by side with th is, through Zakat and Sadaqdt a smash­
ing blow was administere d against miserliness. Through them
the possibility of hoarding of wealth was eliminated and it was
ensured that there was proper circulation o f wealth in the
community. Through social education people were made to
understand the difference between philanthrop y and extrava­
gance, benevolence and reckless Bpending, miserliness and
austerity and niggardlines s and th rift. In the social climate so
engendered the spend-thrift and the miser were looked down
upon, while the philanthrop ic and the generous and those, who
maintained a balance in their life were looked upon with honour.
And it is a result o f this very moral and mental training that
ever since then Muslim society has loved and respected the
generous and philanthrop ic and despised the mi&erly and the
greedy.

I t is further suggested in the passages quoted above that

the disparities of wealth are not necessarily unnatural. Dia
parities due to natural oauses and not due to artificial barriers
raised by man are not essentially an evil and hence it is in no way
advisable to try to eliminate them by enforcing an unnatural
equality. Equality of the unequals is no equality at all I
Neither is it proper to change natural inequality nor to extend
inequality to unnatural limits and make them inequitable.
 Politica l Concepts oj the Qur'an 195

Both the extrem es are equally reprehensible, A healthy econo*

inic system should maintain justice and keep the distribution
of wealth within the limits prescribed by the Lord of the
universe.
It was as a result of this directive that the concept of
“ class struggle” could never gain ground in the economic policies
of the Madinite State. Differences in income and wealth were
■ • •• .

never regarded as an evil in themse lves which must at all

costs be elimina ted. Thus the Islamic State recognised the
natural differences whioh are inherent in men and instead of
enforcing an unnatural equality it tried to so fashion the society
through moral education and legal processes that econom ic dis­
parities, instead of becoming an instrum ent o f oppression or
exploit ation, became agencies of the promotion of many a social,
moral and economic virtues . •

(e) The seventh princtple gives tho lie to the basis on which
the movement for Birth Control and Family Planning has been
raising its head from time to time. In old times the fear of
poverty led the people to resort to the killing of their offspring
or to abortion, and now the method of contraception has been
added to it by modern science. This seventh clause of the
Is lam io Manifesto directs people to totally avoid all those efforts
which aim at curtailing the number of the people and instead
to devote heart and soul to tho constru ctive effort of multip ly­
ing the means o f econom ic sustenance. According to this pro­
vision, it is one of the greatest follies of human beings that
they resort to the curtailment of their numbers merely out of
an imaginary fear of the insufficiency of econom ic resources.
God says that the provision p f econom ic resources does not lie
with man, it is solely in His Hands . He made the world, He
endowed it with all necessary resources, and He has been feed­
ing those who have gone before and will feed those who are to
come in future. It is He Who has taken upon Himself the
feeding of His oreatiou. History also tels us that the economio
potential has increased in the countries whose population has
increased and often tho rate of growth of the economy has been
 196 The Isla m ic Law and Constitution
m ore rapid. Ev er yb od y who is
■’ ' ••’ <borp on th is earth does no t
> ! . . {
J Jt L ■ •• ' . • * ••
arrive ju st w ith a ‘mouth and a stom i - i < s. * * *<z

aoh—he comes also endow­

ed with two hands and a .brain.
It is fo olish to thin k th at
Nature's plan is de fe ctiv e and th at
we m ust de str oy or check
human progenoy to correct th e sit ua
tio n.1
It is a result of th is very teaching of
th e Qur’an th at Birth
Control has never applied much to M
uslim so ci et y and has never
gained currency am ong th em .
( / ) <rGo no t near adultery** is a com
mand addressed to th e
in dividu al and th e so ciety al ik e. Fo
r the in dividu al it means
th at he should no t only avoid ad ulte
ry but should also avoid ail
th ose prelim inaries which may lead
to it. He sh ou ld avoid all
th os e thin gs which become a stepp in
g-stone to zina (fornication
and ad ul te ry ).. For th e so ciety as su
ch it means th at it should
no t on ly forbid zin a but should also
elim in ate th e causes, incen-
tiv es and au xilia ries of zin a so th at
: . 44 i * * * ’ th e ev il should be banished
• * •
root and branch. Thia purpose is to , • • * • • * . ■ • r • •
be achieved through proper
reconstruction of th e social lif e, thro
ugh moral training, social
eduoatidn, legal measures and all ot
he r effective de vice s. The
in dividu al and th e so ciety both mus
t be free from th e ev il of
zin a. • .
This injunction beoame th e souroe of
• * _ many social laws and
rules of conduot in Islam . For insta
’ • • • . • * .a Z
*

nce zin a and false accus­

atio n of zina were made cognizable of
fences ; purdah was in tro­
duced and its rules la id down, str in
ge nt step s were ad op ted to
stop vu lg ar ity and corruption, drinki
ng was forbidden ; and so
were instrum ental musio, dancing
and the making of human
likenesses — (ail the kith and kin of
zin a 1) ; and a fa m ily law
was evolved by which marriage
was made easy and a sim ple
affair and the social causes of zin a we
re to ta lly elim in ated .
(g) The ninth principle forbids the sla
ying of human beings.
Th is applies as much to suicide as it
applies to th e killing of
I. M au du di, Iti o tn au r Za bl e-v ala da t
(Is lam a n d B irt h C o n tro l) ; Islax
P u bli ca tio ns L td ., 13 -E , Sh ah A nto
lam ‘M ark et, L a h o re , 1960. T ho
in te re ste d in th e ec on om ic re fu ta se
tio n o f th e ple a fo r b irt h -c o n tro l
se e ; J . D. B ern el, Wo rld W ith ou m ay
t War, L on do n. 1958. an d A rth
M cO urm ac , P eo p le Sp ac e, Pood, ur
L on do n, 196V.
 Political Concept of The Qwr'an 197

others. According to the Law of Islam the slaying of human

I

li fe—whether of others or of one’s own self—is the greates t 'erime

and a Muslim must never over think of it. Man has harboured
tjie illusion th a t hie own life belongs to him anc( he is enti tled
to put end to it. It is a misconception, pure and simple. All
life belongs to Allah and mail has no right even to misuse it,
much less to destroy it. God has by bestowing life and other
resources on man put him on trial and fie should always be pre­
pared to face this trial to the Iasi breath, whatev er the con­
ditions th a t he may have to pass through during the period of
th istrial. *Jo run away from the trial is folly,’ And to commit
this folly bv means of suicide—a gruesome crime—is worst of all.
When foj]y and crime are wedded togethe r, nothing but ’igno­
miny in the world and worst punishm ent in the hereafte r can
reau]£ from it, Can anythin g be more futile than to court
eternaj pain $rid inglory to avoid tempora ry misfortunes arid
frustrat ions of this world ?
Taking of human life has been forbidden save with right.
According to Islamic law this right is limited to five occasions,
viz :
W Qtsas {Retaliation) from a murderer,
f t) Killing of enemies in an Islamic war, .
(tH). punishm ent for those who try to overthr ow the Islamic
way of hie,
(»>) punishm ent for adulter y by married males or females,
and
,(t>) punishm ent for irtidad, i.e., high, treason .
These are the five grounds on which alone is the taking of
human ijfe^ustifed and legal and not otherwise.
It has further been said :
“ Wo have given power unto his (deceased’s) heir but let
him not commit excess in slaying” .
•. ,< r J J ' r, * * • ’ J' ! * . ’• ' *
* V ..4

By “ Power” (w#an) is meant justifica tion to demand Qua*

(retalia tory killing) . From this arises a principle of Islamic
law that in a case of murder the real plaintif f is not the fetate
>' *•'*•"•* •e ••• v y •*J•x• • • •. ’• •
but the heirs of the murdered person—and they are empowered
 198 The Islamic Law and Consfifation
to forgive the murderer and to take blood-money from him in­
steed, or forgive him altogether . The State itBelf does not
have the right to grant pardon.
There can be many kinds of excesses in slaying and they
are forbidden in Islam, e.g. t to kill persons other than the mur*
derer, to kill him by torture or by excessively painful methods,
or to mulilate his body after his [death ; or to kill him even
after taking the blood-money, and so on. \
It has been said : “He will be helped”, but as at the time,
of the revelation of this verse the Islamic State had not yet
come into existence it was not explained who would help him.
Later on when the State was established, it was decided for all
times that the punishmen t will be imparted by the Islamic
State through its judiciary. No individual or group or clan or
tribe is entitled to take the Jaw into its own hands to avenge a
murder. Only the State can do that. The hair of the murdered
persons is to seek justice from the State which shall provide it
in full measure.

(A) The principle adumbrated by the 10th clause was also

not a mere moral precept ; it inspired the Islamic State of
Madinah to devise legal and administr ative means to safeguard
the rights of the orphans, the details of which are available in
books of Hadith and Fiqh, And from it was derived the general
principle that the Islamic State is responsible for the protection
of the right of those citizens who cannot look after their own
interests. The following hadith of the Holy Prophet refers to
this very point and constitute s the source of great many laws
in Islam
“ I am the guardian of one who has no other guardian'1.
(i) The U th clause also became the corner-stone of the
internal and foreign policy of the State. It too was a moral
precept as well as a directive for state policy.
( j) The 12th clause presents the view that honesty is not
only a good moral quality, it is also the best economic policy.
It is good for this world and for the hereafter. In this world it
will build up good reputation and will enable the vendor to wip
 Political Concepts of the Qur'an 199

the eonfidence of the buyer. This will automatically lead to the

promotion of trade and fostering of mutual prosperity. And in
the hereafter, the honest will prosper, for therein entire reward
would depend upon man's honesty and his fear of God,
Like the other injunctions, this one too is not meant as a
moral precept only. It has acted as a directive state-policy and
it was held to be the responsibility of the Islamic State to keep
an eye upon trade-practices and to see that right measures were
being used. And it was from this injunction that the general
rule was derived that it is a function of the Islamic State to
check malpractices and exploitation in the economic field and
enforce justice therein.
(k) In clause thirteen it has been said that Muslims should
not base their actions on suspicion or doubt. They should
always fashion their individual and social policies in the light
of “ reliable knowledge"’. This dictum too had many far-reach­
ing effects. In the realm of ethics it came to be a principle that
one should avoid casting suspicions and doubts upon others and
should never make.any allegation against others without proper
investigation and verification. In the field of law, the principle
was adopted that no aotion would be taken against anyone
merely on the basis of suspicion. Similarly it was forbidden to
arrest a person, to beat him or imprison him merely on suspicion.
In foreign relations it was not permissible to take any step
against anothor people or state without just cause ; nor was it
proper to give currency to rumours merely on ground of sus­
picion. In education those subjects were not encouraged which
are not based on sound foundations and which rest on mere
conjectures. And above all, it led to the eradication of all
superstition in religion. Muslims were asked to form their belief
on what was revealed to them by God through His Prophet and
on what was taught by the latter—in other words, on surest
Knowledge and not upon myth or ignorance.
(/) Lastly, Muslima are told that they should shun the ways
and the manners of the arrogant and the tyrant. This precept
too is moant for individual and national life alike. And it was
 200 77U Islam ic Law and Constitution
a resu lt of thia very inju nctio n that the live* o f the rulers, the
governors and the generals of the Islamic Staid of Madinah ward
free of ail artificial pomp and show wfrioh is a okifa dteriatlc of
lives of the arrogant and the tyra nt and the decadent. They
lived a hum ble life. T h oir manners were simp le and straightfor*
ward. Courtesy and kindness were their ways. The y behaved
with the peop le in the best of ways : with love and sym path y
and understanding. Even in war they neve r uttered words of
pride or arrogance. And' when victo riou s, they never tried to
overwhelm others by pomp and show . This was how 'the Islam io
socie ty followed the above inju nctio ns. ru
This was the'M anifesto o f the Islam ic movement led by
Prop het ^uii am inad (G di’s blessings be upon him) and in it
were laid the dire ctive principles of an islam io State.1

1. Msududif T^fhim Vol. II> pp. 60MT,

 Chapter 6

First Principles of
•“ •
the Islamic State
«

The movement for the adoption of Islamic

Constitution was at its climax in the last quarter
of 1952 when Manlana . Maududi visited Karaohi
' in November. He was invited by the President
of the Karachi Bar Association to address a
gathering of the lawyers and the intelligentsia of
the metropolis. As it was a discussion forum,
Maulana Maududi prefaced the discussion with
a brief but comprehensive talk on the basic
principles of the Islamic State and the nature
and contents of Islamio Constitution, This talk
was given to enlist the support of the upper
intelligentsia to the cause o f the movement for
the establishment of an Islamic State in Pakistan.
It also possesses a historic significance, for it was
given at Karachi at a time when the Basic Princi­
ples Committee Report was being finalised. The
Report was going to be presented before the
Constituent Assembly in November 1952, but at
the last hour its presentation was postponed
for one mouth and material changes were made
in its text to incorporate some of the demands
of the Islamic elements. A resume of the said
talk is given in the following pages.—Editor.
 FIRST PRINCIPLES OF THE
ISLAMIC STATE

E should, at the very outset, clearly understand the

nature of the problem that confronts us. When we aay
that this country should have an Islamic Constitution, we do
not mean that we possess a Constitution of the Islamic State in
a written form and that the only thing that is required to be
done is to enforce it. The core of the problem is that we want
an unwritten constitution to bo transformed into a written one.1
What we term as Islamic Constitution is in reality an unwritten
constitution. It is contained in certain specific sources, and it
is from this that we have to evolve a written constitution in
keeping with the present-day requirements of our country.
An unwritten constitution is nothing unique or strange for
the world. Indeed, up to the middle of the 18th century, the
structure of Governments throughout the world rested on un­
written constitutions ; and even today the British Government
is functioning without a written constitution. Just as if the
people of Britain ohooso to have a written constitution instead
of an unwritten one, they will have to take recourse to the
various sources of their unwritten constitution, to colleot
material therefrom and then codify it article-wise,.sim ilar is the
course that we shall have to adopt for the ’ifioation of an
Islamic Constitution.

1, All th® im plications o f the term « written co n stitu tio n 11 ehould bo very
clearly understood hero, A “ writ ten con stitu tion 0 m eans a. document
wherein aJl the bad io principles o f state organisation have been reduc.
6'1 into writing an d which is accepted ha the only authoritative
docum ent for th is purpose. W hen a country does n o t possess a
constitution. written in a form o f sileh a docum ent, it i*» en-id to have
an unwritten constitution, aven though all th e constitutional laws and
practices which go to con stitu te the unw ritten constitution of that
country, m ay be p resent in black and w hite,
 Firaf Principle* of the Ielamic State SOS

I
SOURCES OF ISLAMIC CONSTITUTION
There ere four sources o f the unwritten Islamic Constitu­
tion :—
1. The Qur’an r -
It 18 the first and the primary source, containing aa it does
all the fundamental directives and instructions from God Him­
self. These directives and injunctions cover the entire gamut
o f man’s existence. Herein are to be found not only directives
relating to individual conduct but also principles regulating all
the aspects of the sooial and cultural life o f man. It has also
been clearly shown therein as to why should Muslims endeavour
to create and establish a state of their own.

2. The Sunnah

This is the second source- It shows the way in which the

Holy Prophet (peace be upon him) translated the ideology of
Islam in the light of Qur’auio guidance into practical shape,
developed it into a positive social order and finally elevated it
to a full-fledged Islamic State. These things we can know from
the Sunnah and Sunnah alone. It will also guide us how to
ascertain the precise sense, purport and meaning of the Qur'anic
directives. In other words, the Sunnah is the practical applica­
tion of the Qur'anic principles to the various problems of life.
Therefore it contains invaluable precedents and very important
material relating to the Constitutional practices and conven­
tions.

3. The Conventions of Khilafat-e-Rasbidah

These conventions constitute the third source o f Islamic

Constitution. How the Right-guided Caliphs managed the
Islamic State after the passing away of the H*oly Prophet (peace
be upon him) is preserved in the books of Hadith, History and
Biography which are replete with glittering precedents of that
2M Tht Islamic Law and OcnsMuiwn

golden era. It has been accepted in Islam from the very begin­
ning that interpretatio ns of the Qur'an and the Sunnah having
the unanimous approval of all the Companions (technically
known as Zjm5‘) and the decisions of the Caliphs relating to
constitutiona l and judicial problems accepted by the Compan­
ions, are binding on all and for all times. In other words, such
interpretations and such decisions must be accepted in M o t
because the consenus of opinion of the Companions on any
matter is tantamount of an authoritative exposition of the law.
Where there has been a difference of opinion among the Com­
panions, that is a sufficient proof of the fact that two or even
more interpretatio ns are aotually possible and any one of them
oan be preferred to the other on the basis o f sound reasoning.
But where there is a general consensus of opinions among them,
that shows that ono and only one interpretatio n or decision is
the correct and authoritative one. The reason being that as the
Companions were the direct disoipleB of the Holy Prophet (peace
be on him) and were trained by him personally, it is simply un­
thinkable that even all of them combined failed to grasp the
real purport of the Prophet’s teachings or could be unanimous
in giving a decision against the real spirit of Islam.
4. The Rulings o f Great Jurists
These rulings which comprise the fourth sourco, are the
decisions of top-ranking jurists in regard to various constitu­
tional problems o f their times. They may not be conclusive on
this subject, yet it cannot be gainsaid that they contain
fundamentally the best guidance for a proper understanding of
the spirit and principles of Islamic Constitution.
These ate the four sources of our constitution. Whenever
we have to reduce the Constitution of an Islamic State into
writing we shall have to collect relevant material from all of
them, in the same way as the people of England, were they
inclined to reduce their constitution into writing, would have to
refer to their Common Law, their constitutiona l conventions,
various statutory provisions and infer a number of points from
the judgments of their courts relating to constitutiona l problems.
 First Principles of the Islamic State 205

DIFFICULTIES
No doubt, all these four sources of Islamic Constitution exist
in a written form. The Qur’an is a written book. The Sunnah
and the conventions of the Caliphs too are present in detail in
the books on Hadith and the biographical literature of early
Islam, The rulings of all Jurists of Islam are also obtainable in
authoritative publications. Nothing is missing, no part is vague
or wanting ; and yet at the very outset of our quest of reducing
this unwritten constitution into a written one*1 a host of
difficulties and obstructions confront us. Before proceeding
further it is necessary that we should understand the true
nature of these difficulties.
(a) Novelty
• of
% Terms•
The first difficulty is linguistic, The Qur’anio terms relating
to constitutional matters, as also those of Haditb and Fiqb, have
long been out of use and have by now become incomprehensible
even to the learned amongst us, let alone the commoners.
Unfortunately, Islam has been a dosed book for all practical
purposes, the most of us for a long time and, consequently,
these terms are no longer in vogue. There are numerous words
in the Qur’an which we read and repeat every day without ever
realising that they have some constitutional import, kaftan,
Mulk, Hul&n, Amr, WHayat, etc., may be quoted by way of
example. The exact constitutional purport of these terms is
understood, if at all, by a few people. When translated into
other languages, they become almost lifeless or even distorted.
That is why, on hearing of the constitutional concepts and
directives of the Qur’an, even fairly well-read people ask in
wonder as to which verses of that book relate and refer to
constitution,1 Their amazement or ignorance is not ^uprising,
for, in the Qur’an they find no chapter with 'Constitution’ as its
title.
1. A leading law yer of P a k is ta n had even declared, in an artiele publi­
shed in the D aily Dawn, Karachi, th at the Qur’an cannot give a
'C on stitu tion 1 and had challenged that do one can produce an article
■ o f the C onstitution from the Qur'an—Editor.
 206 The Islamic Law and Constitution

{&) Odd-Editing of the Ancient Juristic Literature

✓
The second difficulty arises from the unfam iliar method of
compilation of our old literature. In the old jurietio literature,
the constitutional problems have not been reported under
separate heads. On the contrary, the purely constitutional and
the purely legal discussions are inextricably mixed up therein.
Everyone knows that the consideration of constitutional
problems, as a subject apart from the purely legai matters, is a
recent innova tion and the use of the very word 'constitution ’
*
in its current sense is comparatively modern. Problems called
'constitution al’ have nevertheless been dealt with in detail by
all eminent Muslim Jurists. But all their learned dissertations
on this subject are to be found in the ordinary book of
dispersed in different chapters and mixed up with other allied
problems. For instance, one-of these problems you will find
dealt with in the chapter on 'Marriages’, while anoth er will be
found in the chapter on 'Inheritance ’ and a third in the chapter
on 'War’ and a fourth ifi a chapter dealing with some other
problem, and so on and too forth. Likewise, one question may
have been discussed along with the problems of 'Criminal Law’
while another would pr<ft>ably be encountered in the treatise
on ‘Public Finance’. Besides this, the language and the ter*
minology used therein are so different from the terms in vogue
today that unless the studen t possesses sufficient erudition in
various branches of law and the problems arising therefrom,
and is, in addition to that, a versatile scholar of Arabic (both
modern and ancient), he can hardly discern where a problem of
international law has been discussed cheek by jowl with a
common law point or where a problem of personal law has been
dealt with in the course of discussions on constitutional law. *
The fact, however, remains that even in the early centuries of
Islam, our best brains thoug ht over these problems and have
left behind them a legacy of valuable material relatin g to cons­
titutio nal law and practices. To edit all this material properly,
after reviewing, sifting and cataloguing it and then to present
it accurately to the world in modern terms is the work of great
 First Principles of the Islam ic State 207
diligence and elaborate research. And most of the Muslim
scholars of the present generation, who have been for long con­
tent with the left-over of others, are hardly competent for thia
task. What is even more tragio, is that witho ut knowing or
trying to realise the true value of this great heritage, the pre­
sent generation has developed a tendency to look down upon it.
(c) Defects of Our Educational System
The third difficulty is due to the defective system of our
education. Under this system of education those who choose
the theological branch of learning, generally keep themselves
utterly ignorant of such modren subjects as Political Science,
Economics, Constitutional Law and the problems arising there­
from. Consequently, even though they spend most of their
time in leading and teaching the texts and interp retations of
the Qur’an and Hadith and the Fiqh they do not possess even
an elementary understanding and grasp of current political and
constitutional problems enunciated in the simplest modern
terminology, let alone making a deep and scholarly study of
them. Thus they remain incapable of giving any lead to the
people by regarding the modern political and constitutional
problems in the light of their knowlodge of Islam. Instead of
approaching the front of learning themselves, they await that
these problems bo enunciated and explained to them in -the
terminology that they understand .
The other class consists of those people who have acquired
modern education and who are practically in full control of all
branches of State organisation. This class, though quite fami­
liar with most of the modem probloms of life, actually knows
very little, if at all, of the glorious heritage of Islam. Most of
them are unfam iliar with even the fundamental principles and
the basic directives of Islam much less th at they should possess
any knowledge of their necessary details and other implica­
tions. Whatever they know of Islamic constitutional law or
political science or jurisprudence, they acquire it through the
medium of Western education and consequently, all their know­
ledge of the Qur’an and tho Sunnah is not only exceedingly
 208 The Islamic Law and Constitution

poor, sketchy and inadequate but also is indirect and some*

times third or even four th-hand. And it is for this reason that
even such o f them a£ sincerely and genuinely long for a renaia-
sance of Islam are hardly capable o f affording guidance to
others* They search for a verdict of the Qur’an on all modern
problems only in the language which they can understand. This
is indeed a very groat difficulty and is perhaps the biggest one
amongst those which are hindering the framing of a truly
Islamic Constitution.
(d) Ignorance Run Amuck
The fourth stumbling-block in our way to Islamic system
of life is the claim of some people wielding influence to give
rulings without requisite knowledge of Islam. And the tragedy
of the matter is that this tendency is assuming alarming pro­
portions with tho passage o f time. The slogan of these people
is that Islam does not recognise priesthood and therefore the
Mulla cannot be the sole interpreter of Islam, Everybody has
an equal right to interpret the directives of the Qur’an and to
draw inferences therefrom. There is no reason, they say, why a
M ulla’s word should be taken as being more weighty than that
of a layman. Thus speak those who are conversant neither with
the language of the Qur’an and the Sunnah nor possess any in­
sight in Tfilamio traditions* None of them has seriously devoted
even a day of hia life to the study of Islam and its vast liters*
ture. Instead of honestly realising their weaknesses and defi­
ciencies and making an effort to remove them, they, deny the
very need for acquiring knowledge and insist that they should
be given a free hand to interpret Islam as they like.
Evidently, if this kind of ignorance is allowed to have its
way in any one department of collective life, there would be no
end to mischief. Somebody would stand up tomorrow and say
that there being no “ Lawyer-hood” in Islam, even the most
ignorant has the same right to pronounce authoritative verdicts
on points of law, even though he knows nothing about it. Then
another person may stand up and say that there being no
‘Engineer-hood’ in LJam, therefore he has as much a right to
 First Princ iples of the Islam ic State 20®

meddle with the Engin eerin g problems o f the country as a

qualified engineer. This may be follow ed by a third one's
assertion that there being no ‘ Physi cian-h ood’ in Islam , there*
fore every body has an equal right to prescribe for the sick, no
matte r if it means havin g more people inside the graveyards
than out o f them I
I am really surprised to find even some well-read and other­
wise intelligent people giving vent to such like ohildish ideas.
Do they presume that the whole nation consists merely of
ignoramuses and would applaud all such senseless assertions !
N o doubt , Islam does not recognise priesthood as a class. B ut,
have the prota gonists of this slogan ever tried to understand
what it implies ! I t only means that Islam neithe r recognises
the Jewis h and Br&hmanic principle of giving the monopoly o f
religious know ledge and spiritual work to a partic ular privileg­
ed race or tribe, nor does it uphold the Christ ian doctrine o f the
separation o f the secular and the religious into two water tight
comp artme nts. Nobo dy can, therefore, claim in Islam to enjoy
spiritual mono poly and the “ M u lla ” or the is not a
titula r head claim ing any inherent and exclusive rights of inter­
pretin g religious laws and doctrines. On the contra ry, just as
anybo dy may become a judge or a lawye r or a docto r by proper­
ly qualif ying for these professions, simila rly whosoever devotes
his time and energy to the study of the Qur’an and the Sunna h
and becomes well-versed in Islam ic learning is entitled to speak
aa an expert in matte rs perta ining to Islam .
I f there is any sense and mean ing in the assertion that
there is no priesthood in Islam , it is only what has been stated
above . . I t does not and canno t mean that Islam licenses every ­
body to start pronouncin g autho ritativ ely regarding the Qur’an
and its directives and instru ctions , witho ut trying to have any
insigh t in it . Indee d, i f an empty claim to be an autho rity on
matte rs secular is not acceptable anywhere, how can it be so in
religious matte rs which pertain not only to the most impor tant
aspects o f onr life in this world but also to our Im&n and the
life after death 1
210 TAe Islamic Law and Constitution
Thia fourth diffioulty in our path has become the most real
difficulty for the moment. For, in the case of the first three,
we can hope to remove them by dint of hard work and honest
labour. In fact, we have already removed them to some extent.
But the solution to this last one is not so easy to find, more so
because it is being wilfully used as a handle by those who
happen to hold the reins of power one way or the other.

II
FUNDAMENTAL PROBLEMS
OF POLITICAL THOUGHT
I will now disouss the fundamental problems of constitution
and try to present before you briefly what guidance is available
to us in this behalf from the original sources of Islam. Thia
will help you to judge for yourselves whether Islam gives any
guidance io us in the field of constitution or not and whether
that guidance is merely of a recommendatory oharaoter or of a
mandatory nature—so fundamentally mandatory that we can*
not overlook or by*pass it, if we olaim to be and wish to remain
Muslims. In order to finish the disoussion within the time at
my disposal I propose to confine myself to the following nine
basic points of an Islamic constitution :
(1) Who is the Sovereign I Any king or body of people !
Any class, clan or the whole nation ? Or God Almighty
Himself ?
(2) What are the functions and scope of an Islamic
State ? To what extent can it command allegiance from its
citizens and whore and when the State will lose this right I
(3) What are the powerB and functions of the various
organs of this state, i.e.» the Executive, the Judiciary and
the Legislature ? What are the rights, duties and Limita­
tions of each, and what are their relations inter sc 1
(4) What is the real purpose of the State I That is,
what are the objectives that it will strive to achieve and
what are the fundamentals of its overall policy ?
 J
State f ill
P in t Pr in ci pl es of the Is la m ic
ve rn m en t of th is st at e to be co ns tituted!
(o) How is th e go
t w ill be th e qu al if ic at io ns of pe rs ons consider­
(6) W ha
le fo r ru nn in g th e go ve rn m en t of th is state ?
ed elig ib
be th e co nd iti on s of its ci tiz en ship and
(7) W hat will
this righ t ?
how will a person acquire and lose
ill be th e fu nd am en ta l ri gh ts of it s citizens? and
(ft) W hat w s citizens
th e ba si c ob lig at io ns of it
(9) W hat will be
towards th e St at e 1 eo ry and
ar e th e ke y- po in ts of po lit ic al th
These questions sw er s to th em .1
e cl ea r-cu t an
a co ns titutio n is expected to provid

iti es on C on st itu tio na l [L aw have defined it as

I. Some of the auth or
under : ed in En gl and, appears to
w, as th e te rm is us
(a) “Constitutional La re ct ly affect the distribu­
ru les wh ich di re ct ly er in di
include all in th e State* Hence it
of th e so ve re ig n po we r
tion or exercise ru les wh ich define the mem­
e ot he r th in gs ) al l
includes (among th
ve re ig n po we r, al l ru les wh ich regulate the relation
bers of the so de te rm in e the mode in
rs to ea ch ot he r, or wh ich
of such membe rs th er eo f, exercise their
po we r, or th e m em be
which the sovereign r of su cc es sio n to the
es or i be th e or de
authority. It s rules pr ie f magistrate, deter­
th e pr er og at iv es of th e ch
throne, regulate
rm of th e le gi sla tu re an d its m ode of eleotion. These
mine the fo re sp on sib ility , with
ith M in ist er s, wi th th eir
rules also deal w ry ov er wh ich the so ve r­
n, , de fin e th e te rr ito
their spheres of actio ar e to bo deemed, sub*
at e ex te nd s an d se ttl e wh o
eign of the St to th e Stud y of the
V- Di ce y, In tro du cti on
jeote or citizen s.” —A. ed iti on), p- 23,
tit ut io n, Lo nd on , 19 41 (9 th
Law of the Cons to lim it the arbi­
ut io n, in sh or t, ar e
(5) The objeobs of the Constit an te e th e righ ts of the
go ve rn m en t, to gu ar
trary action of the th e sovereign power.’*—
d to de fin e th e op er at io n of
governed, an n, Lo nd on, p, 10.
em Po lit ica l Co ne lil ut ia
(X F. Strong, Mod of laws, cu stom s and
tit ut io n of a st at e is th e sy st em
(o) “ The co ns sit io n and power of organs of
wh ich de fin e th e co m po
conventions
d re gu la te th e re la tio ns of th e various State organ#
the State an /* ... ,.. H oo d Ph illip s, J’Ae
an d to th e pr iv at e ci tiz en
to one another on we al th, London,
ita in an d . th e Co mm
Ctofts/iluftoncif Law of Br
1957 (2nd edition), p. S. ar ra ge m en t an d distribution
n sig ni fie s th e
(d) “The term C on stitu tio ity , or the form of the
po we r in th e co m m un
of the sovereign
t” ... ... G eo rg e Co rn © wa ll Le wi s, Use and Abuse of Politic
governmen
oat Terms, p, 20—Ed ito r.
212 The Islamic Law and Constitution
We must, therefore, try to find out Islam's answer to those
questions,

HI
ISLAMIC CONCEPT OF SOVEREIGNTY
Let us start with the first question as to who enjoys the
right to sovereignty in an Islamic State. The Qur’an furnishes
an unequivocal reply to this question. It says that sovereignty
in all its aspects, is only for God. He alone is the Creator and
the real Ruler of this universe. Therefore to Him belongs the
sole right of being the sovereign over all this creation. To
understand thia point fully, we would be well advised to first
grasp the exact purport of the word ‘Sovereignty’ itself.
The Meaning of Sovereignty
In the terminology of Modern Political Science, this word
is used in the sense of absolute overlordship or complete suzer­
ainty. If a person or a group of persons or an institution is to
be Sovereign, it would mean that the word of that person,
group or institution is law. A Sovereign has the undisputed
right to impose his orders on all subjects of the State and the
subjects are under an absolute obligation to obey them, be it
willingly or unwillingly. No outside agency, excepting his own
will, imposes any limitations or restrictions on his power to
rule. No subject has any absolute right against him or in
contravention of hia orders. Whatever rights anybody enjoys
emanate from him and whatever rights he withdraws become
extinct forthwith. It is a universal legal axiom that every right
in law comes into existence only beoause the Lawgiver desires
to be so. If, therefore, the Law*Qiver withdraws it, its very
existence is obliterated and it cannot be demanded thereafter.
Laws come into existence by dint of the will of the Sovereign
and place all subjects of the State under an obligation to obey
them ; but no law binds the Sovereign himself. In other words,
he is the absolute authority, which means that, in relation to
bis orders, questions of good and evil and right and wrong can-.
 First Principles of the Islamic Stale
4
213

not and should not arise at all. Whatever he does, is just and
nobody can question his conduct or his orders and their enforce­
ment. H is behaviour is the criterion o f right and wrong and
none can question it. I t ia thus inescapable that the sovereign
should be accepted as being absolutely above all aberrations and
errors, even though he may not actually be so.
Such is the nature and meaning of the concept of sovereign­
ty as enunciated by the modern 4lawyers and jurists 1. 1 Nothing
short of this can be termed as sovereignty. This sovereignty,
however, remains a mere legal supposition so long as some
active paramount capable of enforcing it is not available. In the

1. "Sovereignty**, is derived from the Latin word suptrnuw which means

supreme. The definitions of the term are varied but "it always signi­
fies a highest, governmental and legal authority o f some sort/* (Francis
W. Coker, "Sovereignty/* Encyclopaedia o f Social Science*> Vol. 14,
p. 265). Jean Bodin who first developed the concept in modern politi­
cal thought defined it as "Summa in civie oc cabditoe legtbusque eoluts
poteetee” i.e., the supreme power of the State over citizens and sub­
jects, unrestrained by law. Grotis defined it as "the supreme political
power in him whose acts are not subject to any other and whose will
cannot be overridden”. Blackstone conceives it to ba "the supreme
irresistible, absolute, uncontrolled authority in whioh the jura summi
imperi reside.” Jullinck defines it as that "Characteristic by virtue
of which it Cannot be legally bound except by its own will, or lim it by
any other power than itself.” Burges characterises it as "original,
absolute, unlim ited power over the individual subject and over ail
associations of su b jects/’ He calls it <‘the underived and independent
power to command and compel obedience.” The attributes and
characteristics o f sovereignty are said to ba permanence, exclusive*
noss, all-comprehensiveness, indivisibility and- absoluteness. See
Edward McChesney Sait ('Ed.), Matter* o f Political Thought, Vol. II,
London, 1949 ; James Wilford Garner, Political Science and Govern­
ment t ATnerman HooU Co, A World Press (Private) Ltd., Calcutta
1958: Bryce, "The Nature o f the Sovereignty” Studies in Jurispru­
dence and History, Vol. I I , 1901'• Harold. J, Laski,. The Problem of
Sovereignty, London, 1917, and Grammar o f Politics, London (for a
critique of the concept of absolute sovereignty) j Mattern, History of
Theory o f Sovereignty since Roueeeau, London, 1910; Mahajan and
Bethi, Recent Political Thought, Delhi, 1930, and Jacques Martin, "Tha
Concept qf Sovereignty/* Man and the State, Chicago, 1951.—Editor.
214 TAe Islamic Law ant Constitution

language o f Political Science, therefore, legal sovereignty with­

out political sovereignty bafl no practical existence. Political
Sovereignty thus naturally means ownership of the authority
o f enforcing legal sovereignty.
‘ The questions that now arise are : Does such sovereignty
really exist within the bounds of humanity ? If so, where 1 And
who can be construed and treated as being invested with it 1
Is there any monarchical system where the monarch posses­
ses all these attributes of sovereignty today, or has ever
posHofied them in the past, or can be expected to possess them
in the future ? We may take the case o f any of the most
powerful monarchs and analyse the myth of his sovereignty
only to find that all the authority enjoyed by him was in
practice always limited by a number o f external factors which
were beyond his control.
If not in monarchy, can we name any democracy which
might be regarded as being fully sovereign in the real sense of
the term ? Here again the reply must be in the negative. For
it will be found on close analysis that, behind all the parade o f
absolute power, there are a number o f factors variously quali­
fying and restraining it and which are beyond the control o f
the so called “ sovereign”.1
It is exactly for this rerson that whenever the experts o f
Political Science, imbued with this ideological sense o f soverei­
gnty, had endeavoured to locate the possessor of suoh soverei­
gnty in human society, they have invariably failed. . For they
1. ‘‘But in the political sphere, and with respaot to men or agencies, in
charge of guiding people towards their earthly dostiniee, there is no
valid use o f Sovereignty...If the State is accountable and subject to
the supervision, how Oan it be sovereign ? ■ What can possibly be the
concept o f a sovereignty liable to supervision and accountable !
Clearly, the State is not sovereign. Nor are the people* Mordo they
•zeroise a power without accountability...the power they exerojse,
either by mass reflexes and extra-legal means or through regular
channels of a truly democratic society i> in no way a power without
accountability,” ...... Jacques Martin, -Man and tAe Chicago, WW,
pp. 00-63...ifcHtor.
 First Princ iples of the Islam ic State 21®

can find nobody of the size whom thia cap would fit—t hat fa,
nobody from amongst the human beings. Even in the entire
gamut of creation, there is no creature who oan rightly claim to
possess all the attrib utes of sovereignty. The Qur’an stresses
this very truth when it says repeatedly that sovereignty belongs
to God and God alone. He is Omnipotent, t.e,,
He can whatever He likes j1
He has to refer to none and to render account to none ;2
He is the source and fount of all autho rity ;34
He is the only one whose autho rity and power nothing can
limit or restrain ;< and
He alone fa above all abberration and error.5
Secondly, even if we close our eyes to this truth and invest
somebody other than God with this sovereign status, would it
really become a human being to be so invested that his mere
word should be law, that there should be no right in contraven­
tion of or in contradiction to hia will, that he should have to
be implicitly and explicitly obeyed, and th at no question of
right or wrong, virtue or vice, should be possible to be raised
in respect of his words or wishes.
Whoever actually enjoys these attrib utes, whether an
individual or an institution or a people, the question will in­
evitably be asked : what justification is there for the investment
of those powers and for that sovereign autho rity ? The most
that can be said in reply to this would be that a general
consensus of opinion justifies such a course. But, aro we pre­
pared to accept Buch a contention ? Suppose a person willingly
auctions himself. Does the purchaser really become his owner?
If it is not ao, we may well ask : how can then mere acceptance
by the people of such an investment justify this alleged sover­
eign statue? The Qur’an unravels this knot by declaring that no

1. A l-Q ur'an, 11 : 107,

2. I b id ., 21 : 23.
3. I b id ., 2 9 : 8 3 .
4. JH d ., 23 : 88.
5. I b id ., CS: 23-^4.
 b

216 The Islamic Law and ConstiMion

creature has the right to impose bis will or words on other
creatures and that this is &right exclusively reserved for God
Himself and is inherent in Him by reason o f His being the
Creator. It says :
“ Verily, His is the Creation and His is the Law*’. (7 : 54)
This is such a rational and convincing position that none
can reasonably contest it, and surely not those who accept God
as the Creator of the universe.
. The third point which automatically arises is that if we
invest some human agency with this superhuman mantle o f
sovereignty, overlooking the inherent shortcomings, would it
be o f any service or advantage to humanity ! No human being,
whether invested with thia status individually or collectively,
can easily digest such a huge dose of sovereignty, wherein he
has unlimited powers to enforce his will over large numbers of
people. Such authority, whenever and wherever invested in a
human agency, has invariably resulted in injustice and malad-
ministration of the most contagious type.
Evil is inherent in the nature o f such a system and when­
ever humanity has adopted it, evil has inescapably raised its
head. For, he who is really not sovereign, and has no right to
be sovereign, whenever made so artificially cannot but use his
powers unjustly. This is exactly what the Qur’an enunciates in
these words ;
<‘And those who do not make their decisions in a 4-b-TI rd-
ance with that revealed by Allah, are (in fact) the
unjust’*. {5: 45)
God’s de jure Sovereignty
That is why it has been definitely laid down in Islam that
de Jure sovereignty also belongs to Allah whose de /u<do soverei­
gnty is inherent and manifest in the working o f the entire
universe and Who enjoys exclusively the sovereign prerogative
over all oreation. The Qur’an repeatedly stresses it with an
increasing emphasis. At one place it says :
“The Command is for none but God ; He hath com­
manded that ye obey none but Him : that is the right
path.” (12; 40)
 First Principles of the Islamic State 217

At Another place it enjoins :

“ Follow the revelation sent unto you from your Lord,
and do not follow the (so-called) guardians other than
Him.” (7 :3 )
At a third place, any deviation from thio position o f accept­
ance of his de jure sovereignty has been described as plain and
unadulterated Kufr (i.e., disbelief) ;
*t “ And those who do not make their decisions in accords
ance with that revealed by Allah, are (in fact) the dis­
believers.” (5 : 44)
These injunctions clearly show that the acceptance and
admission of the de jure sovereignty of God is Islam and its
denial is Kufr.

The Role of the Prophets

The Prophets alone are the true agencies through whom the
directives and the commands of the Almighty are communicated
to mankind. That ia why it ia ordained in Islam that the Pro­
phets must be obeyed implicitly and without any rifs’ and ‘bats’*
You will note in the Qur*an that whosoever has claimed to have
come from God as His Messenger, has unequivocally proclaimed;
“ Fear God aad obey me.” (26 : 108, 126, 144, 163, 279).
The Qur'an enunciates this as definite principle in these
words :
“ Each and every messenger who was sent by U b was
sent for the sole purpose that he should be obeyed under
the sanction of Allah” . (4 : 64)
And again :
* I *

“He who obeys the Messenger obeys God.” (4 : 80)

The Stress on this faot is so definite that the Qur’an refuses
so recognise him as a Muslim who declines to accept the Prophet
as the final adjudicating authority. Thus it says ’
“ Nay, (0 Muhammad !) by the Lord, they will not be
believes until thoy aooept you as the final arbiter in all
their disputes and submit to your decision whole-heartedly
without any heartache/1 (4 66)
218 TAs Mamie Law and OonrtiMion

Again, the Qur’an prescribes thus i

“It is not for a believing man or a believing woman to
have a say in any affair when it has been decided by Allah
and His Messenger ; and whoever disobeys Allah and His
Messenger, he goes astray manifestly.” (33 : 36)
Viewed against this background, there is no room to doubt
the premise that in Islam de jure sovereignty exclusively and
solely belongs to God and under HIb aegis to His Prophet (peace
be on him). As a matter of fact the Prophet (peace be on him)
is the physical* manifestation of God’B de jure sovereignty on
earth and His mouthpiece for this purpose.
The Position of the State
After this interpretation of the basio constitutional problem
of sovereignty, the only question that remains to be answered is
as to who enjoys the political sovereignty in this set-up ?
Unhesitatingly the reply would be that political sovereignty too,
as a matter of fact, belongs to* God and God alone. Whatever
human agency is constituted to enforce the political system of
Islam in a state, will not possess
• • real sovereignty in the legal
and political sense of the term, because not only that it does
not possess de jure sovereignty but also that its powers are
limited and circumscribed by a supreme law which it can neither
alter nor interfere with. The true position of thia agency has
been described by the Qur’an itself. The terms used by the
Qur’an for this agency is “ KhilafaV’ which means that such an
agency is not sovereign in itself but is the vicegerent of the de
jure and the de facto sovereign viz., God Almighty.
The Doctrine of Democratic* Khilafat
By the word “ vicegerency” your mind should not turn
towards the Divine Right o f Kings, or to Papal authority.
According to the Qur’an the vicegerency o f God iB not the
exclusive birthright of any individual or dan or class o f people:
it is the collective right o f all those who accept and admit
God’s absolute sovereignty over themselves and adopt the
Divine Code, conveyed through the Prophet, aa CAe law above
all laws and regulations. It says :
 Pirst Principles of the Islamic State 219
4'Allah
has promised suoh of you as have become beli-*
evers and done good deeds th at He will most surely make
them His vicegerent in the ear th” . (24 : 55)
This concept of life makes the Ialamie Khilafat a demo*
oTaoy, which in essence and fundamentals ig the antithe sis of the
Theocratic, the Monarchical and the Papal form of Government,
as also of the present-day Western Secular Democracy. For,
according to the modern Western concepts, democracy is tha t
philosophy of politic al org anisatio n in which it is presumed
tha t the people possess absolute sovereignty. On the oth er
hand, what w© Muslims call democracy is a system wherein the
people enjoy only the righ t of Khilafat or vicegerenoy of God
Who alone is the Sovereign. In Western Secular Democracy, the
Government is established or changed by the exercise of the
will of the common voters. Our democracy also envisages the
same ; but the difference lies in the fact tha t whereas in the
Western system a democratic state enjoys the righ t of absolute
authority, in our democracy the Khilafat is bound to keep with­
in the lim its prescribed by the Divine Code.

TH IS STATE : ITS OR GA NS AN D ACTIVITIES

The foregoing discussion ovoi the Islamic concept of Khila*
fol automatically brings us to the question : what is the scope
of activities of an lslamio State and the nature of lim itations
imposed thereo n ? And the answer is tha t as this Sta te is a
vicegerent of God and accepts His de jure, sovereignty, the scope
of its activities will natura lly be restricted within the lim its
ordained by the Alm ighty Himself. Thia means tha t the Sta te
can act only within the framework of the lim itations and is not
empowered to infringe ar overstep them . This is not only an
inference deduced from the acceptance of God’s sovereignty but
the Qur’an emphasises it directly also and warns repeatedly in
clear wo rds :
220 Tfte Isla mic Law and Constitution

"T hese are the lim its ordained by God ; so do not

transgress the m.
If any do transgress the lim its ordained by God, such
persons ere the unj ust .” (2 : 229)
The pos itiv e and comprehensive principle which the Qur’an
Jay8 down in thia respect is :
“ 0 you who believ e,.o bey Allah and obey His Messen­
;
ger and tho se from among yourselves who hold aut hor ity
then if there is any dispute between you concerning any
ma tter , refer it to Allah and His Messenger, if you (really)
believ e in Allah and the Last Da y. Th is is the beet course
(in itse lf) and better as regarde the res ult.” (4 : 59)
According to the above inju nction , obedience to the Sta te
not
is subject to the obedience to God and His Pro phe t and
to
independent of it ; which clearly means tha t on ins isting
d by «
vio late the commands of God and the lim itat ion s prescribe
t of
the Prophet (peace be on him ), the Sta te loses the righ
been
claiming obedience from the people. This very tru th has
exp lain ed by the Pro phe t in the se words :
d.”1
“ There is no obe die nce for him wh o dis obe ys Go
“There is no obedience to any creature if it inv olv es
2
disobedience to the Creator.”
The other principle which follow s from the abo ve injunc­
of
tion of the Qur’an is tha t wh ate ver dis pute and difference
ivid ­
opinion may arise in the Muslim Soc iety , be it between ind
st
uals or groups, or between the people and the Sta te, or among
be
the variou s organs and dep artments o f the Sta te, it should
tB
referred to tha t fundam ental Law which God and His Prophe
ands
has giv en to us. Thus the very nature of this principle dem
uld
tha t there sho uld be an ins titu tion in the Sta te which sho
k of
undertake to adjudicate in str ict accordance with the Boo
God and the Sunnah of the Prophet.
Legislature, Executive and the Judiciary
Now we com e to the fourth question : What are the powers
1. TibT Rni ,
2. S h a rk al-S u n n ah : M ish k a t N o . 35J5,
 First Principles of tie Islamic State 221
and functions of the various organs of the State and what are
their respective fields of action ? Let us discuss this in little
detail.
Function o f the Legislature
The Legislature is what in the old terminology of Fiqh was
known as the “ Body which resolves and prescribesM (Ahl al-Hal
wa al-'Aqd). It is quite clear that a State established on the
basis of God’s de jure sovereignty cannot legislate in contra­
vention of the Qur'an and.the Sunnah even if the consensus of
opinion of its people demands it. I have just elated the Qur’anic
injunction which lays down that where Allah and His Prophet
have given a ruling in a matter, no Muslim has any right to
decide it on the basis of hia own opinion1 and th at those who
do not decide in accordance with the Divine Code, arc Unbeli­
evers, It automatically follows from the injunctions, that it
is beyond the purview of any legislature of an Islamic State to
legislate in contravention of the Directives of God and His
Prophet, and all such pieces of legislation, even though approv­
ed by the Legislature would ipso facto be considered ultra vires
of the Constitutio n.
One may pertinently ask here that is this the state of
affairs in an Islamic State ? The reply is that in spite of this
limitation the Legislature in an Islamic State has a number of
functions to perform :
(i) Where the explicit directives of God and His Prophet
. are available, although the legislature cannot alter or
amend them, yet the legislature alone will be compe­
tent to enact them in the shape of sections, devise
relevant definitions and details and make rules and
regulations for the purpose of enforcing them.
(h ) Where the directives of the Qur'an and the Sunnah are
. capable of more than one interpretation, the legislature

1. Al-Qut'dn, 33 : 36. 5

X Ibid., 5 ; U .
222 Islam ic Law And Constitution
would decide which of these inter preta tions should be
placed on the Statu te Book. To this end, it is indis­
pensable that the legislature should consist of a body of
such learned men who have the ability and the capacity
to interpret Qur’anic injunctions and who in giving de­
cisions, would not take liberties with the spirit or the
lette r of the Shari'ah. (This point really falls under the
purview of Elections). Fundamentally, it will have to
be accepted that for the purposes of legislation, a legis­
lature has the auth ority to accord preference to one or
the othe r of the various interpreta tions and to enact
the one preferred by it into law, provided of course
that it is only an inter preta tion and not a perversion
and camouflaged deviation from the law.
. If'
(m) Wherever there is no explicit provision in the Qur’an
or the Sunnah, the function of the legislature would be
to enact laws relating to the same, of course always
. keeping in view the general Bpirit of Islam , and where
previously enacted laws are present in the books of
Fiqh, to adopt any one of them .
(iv) Wherever and in whatever matt ers even basic guidance
is not available from the Qur’an or the iSuw-naA, or the
conventions of the Righ teou s Caliphs, ft vpould be
taken to mean that God has left us free to legislate on
those points according to our best lights. In such
cases, therefore, the legislation can form ulate laws
without restriction, prov ided such legislation is not in
contravention of the lette r and the spirit of the
Shari* ah—the principle herein being th at whatever has
not been disallowed is allowed.
We have deduced these four functions from the Qur’an, the
Sunnah, the usages of Khilafai-t- Rashidab and the opinions and
rulings of eminent juris ts of Islam . If need be, I can quote their
sources but 1 think that whosoever has grasped fully the funds-*
jnental principles of the Islamic State , can also realise by mcle
commonseuse that in a state of thia character, these should
 Principles o/ ike Islamic State 223
constitute the functions of the legislature.
Function o f the Executiv e
We now come to the Executive. In an Islamic State, the
real purpose of the Executive is to enforce the directives of God
conveyed through the Qur’an and the Sunnah and to bring
about a society ready to accept and adopt these directives for
practical application in its life. It is this characteristic of the
Executive of a Muslim state which distinguishes it from the
executive of a jion-Muslim • • state. The woittg Ulul-Amr and
Umara* have been used for the Executive in the Qur’an and the
Hadith ^respectively, which enjoin obedience to it on the condi­
tion that it obeys God and His Prophet (peace.be on him) and
avoids the path of sin and transgression.
The Qur’an is explicit in this connection when it says :
“ And obey not a person whose heart We have per­
mitted to become unmindful of Our remembrance, one who
is following the dictates of his own desires and his case is
that in which due limits are transgressed.’1 (18 : 28)
And again:
"Obey not those who overstep the limits (We have set)
and create trouble on the earth, and have no tendency to
reform themselves.” (26 : 151, 152)
The Holy Prophet has also repeatedly stressed it very
clearly and emphatically. He says :
(i) "Even if a defaced slave is made your Amir, listen to
him and obey him as long as he leads you in accordance
with the Book of God”*1
(u) “ Obedience is obligatory on every Mnslim, whether he
likes the command or not, unless he is ordered to
commit sin,—in which case the obligation lapses
automatically” .2

1, Muslim, al-Sahth.
2. Multaflq 'A laJi u.e., Both the authentic books of hadith, Bukhari wid
Muslim quote it.—-Editor.
224 Tta Islamic Law and Constitution

(Hi) “ There is no obedience in an act of sin. Obedience is

obligatory only in virtue” . 12*
(w) “ Whosoever innovates anything contrary to the spirit
of this order o f Ours, is everlasting ly cursed*’.*
(v) °Whosoeve r honours and reveres an innovator, helps
in bringing down the edifice of Islam”.8
JTo duobt can exist, after these clear directives, as to the
4 nature of the functional limits of the executive and the
exact
administra tive powers is Islam.
Function of the Judiciary ■ i
The scope of the Judiciary (which in the terminolog y of
Islamic Jurisprudence is called Qada) also becomes well peescribed
by the acceptance of the de jure sovereignty of God Almighty.
When Islam established its state in accordance with its eternal
principles, the Prophet himself was the first judge of that state,
and he performed that function in strict accordance with the
Law of God. Those who succeeded him, had no alternative
but to base their decisions on the Law of God as transmitted
to them through the Prophet, ' ;
In the Qur’an. one full section of the fifth chapter, AL
W i d a l , deals specifically with this very subject.4 There the
narration begins with the history of Israel, going next to the
Christians, and finally refers to the Muslims. We have been
told that God revealed the Toral to Moses, after, which, all the
Israelite Prophets and the Jewish Rabbis .followed it as the
Code of Law in all their affairs, settling the disputes of the
people in accordance with it. 5 * Afterward s came Jesus with a
1. Mutlaflq *Alaih Both the •uthowbiw books o f Kadith, Bukhari and
Muslim quote it.—E ditor.
2. Ibid. . . : ’
3.. AbBaihaqi, ol-Iman.
4. AI-Qur'an, 6 : 44-50.
5. One finds the following reference in the Old Testament : MI f they
3peak not according to this word, it is because there is no light in
them” (Inaiah, 8 : 20} and '‘cursed be that conflrmeth not all words of
this law to do them." {Deutero an my :: The F ifth Book*Of Moses* 27 :
26)—Editor.
 Principles o f t&s Mamie Stale 225
fresh Revelation, and the Qur'an tells ns that his followers too
were ordained to decide their affairs in accordance with that
revelation.. Then comes the reference to the Holy Prophet
(peace be upon him). Addressing him directly God Almighty
••
says : ' [ y : ■
• • F * • • •

“ So judge between th en u b y th a t which Allah hath

revealed, and follow not their desires away from the truth
that has come unto thee’*. (5 : 48)
The discourse finally ends with these words :
it the judgment of the time o f Ignorance that they
are seeking f Who is better than Allah for judgment for
1
: < people who have certainty (in their belief’ !). (5 : 50)
- During the course of his peroration, it has been stated with
emphasis that those who do not adjudicate in accordance with
the Divine Code, are not believers and they are unjust and rebels.
: After this, it need hardly be stressed that the Courts o f
Law in an Islamic State are established for the purpose of
enforcing the Divine Code and not to violate it as they are doing
at present in almost all the Muslim States.
».a • • t • •
’
Relations among the Different Organs of the State
* __ , • * • • 0 •

■ discussed about
thevarioug organs of the State is, In what form are these organs
of the Islamic; State —* the legislature, the executive and the
judiciary — related to one another ? There are no clear - cut
instructions on thia point. But the conventions o f the Prophet’s
period and of the period o f the Righteous Caliphate afford us all
the necessary guidance. From these conventions we learn that
the. Head of an Islamic State is, as such, the supreme head o f all
these three different organa. The Prophet enjoyed the same
status and this position was maintained by all the Righteous
Caliphs. '■
'' ' • ' A ’

But under the Head of the State the three organs functioned
separately and independently of one another. The body called
• • • . • ' * *• . " . * . • •, f , •

. al-Hal wa al-'Aqd” whose function it was to advise the

Head of the State in matters o f law r administration and state­
policy was a separate entity. Then there were the executive
226 TAe Islamic Law and Constitution
officers who had no say in judicial matters which were dealt
separately and independently by the Judges (Qadis).
In all important matters of the State, such as formulating a
policy or giving a ruling in some intricate administrative or legal
problem, the Caliphs invariably consulted the AM al-Ilal wa
al-'Aqd and as soon as the requisite measure of agreement was
reached, the work of this body was over.
Executive officers worked direotly under the Caliphs. They
appointed them to carry out the administration under their
direct supervision and guidance.
The Qadis were also directly appointed by them. But the
Caliphs could not ordinarily terminate their services nor
influence their decisions, so much so that if in their personal
capacity or in their capacity *as the executive head, anybody
brought a suit against the Caliphs, they had to appear and plead
their cases before the Qadi like any commoner.
We fail to encounter even a single instance where the same
person was simultaneously a Qadi and a Collector of the same
area : or where 1any Collector or Governor or even the Head of
the State interfered with a judicial decision. Nobody, not even
any of the most important dignitaries of the State, was exempt
from appearing before the Qadi for pleading in-his own civil or
criminal case.
We can amend or alter the details of this set-up according
to our existing requirements. But the fundamental principles
wo will have to keep intact. For instance, we can' reconsider
the powers of the Head of the State and alter them as much as
necessary. I t ia evident that at present we can hardly expect to
have a Head of the State of the same moral calibre and spiritual
standard as the Righteous Caliphs. We can, therefore, consider
and restriot, his administrative powers in order to safeguard
against, dictatorial tendencies. We may also restrain him from
hearing and deciding oases, so that ho may have no opportunity
 First Principles of th^ Islamic Stale 227

to obstruct the course of justice.1

Likewise we make some other changes also in this set-up,
as for instance :
(1) We may make fresh rules and regulations to suit
our present needs for the election of the Head of the State
and may also enact bye-laws for conducting the business of
the legislature.
(2) We may specify and fix the powers and the status
of the various courts.
Two questions may be asked at this stage. Firstly, whether
there is room in Islam for the Judiciary to rejeot or to restrict
the powers of tile legislature in respect of enacting law in cont-
ravention of the Qur’an and the Sunnah. I know of no specific
ruling on thip question, but the conventions established during
the reign of the righteous Caliphs go to show that the Judiciary
did not enjoy or exercise such powers at that time. At least,
there is no instance of any Qadi taking suoh an action. But
here again the reason, in my opinion, ia that the members of
the legislature at that time had a very deep and true insight in
the Qur’an and the Sunnah and almost all the Caliphs too wore
the most reliable persons in all respects. Under them, therefore,
1? On this point, a listener asked as to what was the source and authority
for this opinion. The speaker replied that he derived support for this
argument from the fact that during the period of the Righteous
Cal ip b^, tho E xecutive and the Judiciary were entirely separate and
even in the person of the Head of the State these two branches of the
Governm ent were amalgam ated not by virtue o f any explicit injunc­
tion of the Qur’an, or the Sunnah but by reason of people’s absolute
faith in the integrity, honesty and devotion to God and His Prophet
of these persons and beoauso of the assurance that they would nover
permit exeoutivo exigencie s to influence their judgments and decisions
as a judge. The people had so much faith in the Caliphs that they
positively wanted them to be the “courts of last appeal” in order to
be sure that even if justice was denied to them elsewhere , it would:
ultim ately ba available to thorn from there. .If ws have no longer
am ongst us personalities worthy of aueb reliance and faith, we cer­
tainly are not compelled by any injunction of the Qur'an and the
Sunnah to keep the two importan t positions of the Chief Justice and
the H ighest E xecutive amalgam ated in tho per ion of the Head of the
State.
 228 The Islamic Law and Constitution
there was no real danger of any such legislation taking place
which, was contrary to the spirit of the Qur’an and the Sunnah.
Even today, if we could ensure that no legislature will enact
laws in contravention of the spirit of the Qur’an and the Sunnah,
the Judiciary need not have the authority to reject the decisions
of the legislature. But if it cannot be so, then the only
satisfactory course would bo to give the Judiciary power to
declare void and ultra vires of the constitution all laws and
legislations enacted in contravention of the Qur’an and the
Sunnah 1
The other question that may be asked is : What, in Islam,
is the correct position of the legislature? It is only an advisory
body for the Head of the State, whose advice oould be accepted
or rejected by him'at his discretion, or, is the Head of the State
bound to accept their unanimous or majority recommendations?
In this respect, the Qur’an prescribes thus :
• "They manage their affairs by mutual consultation”. (42:38)
Addressing the Prophet as the Head of the State, the
Qur’an ordains thus :
“Consult them in the conduot of affairs. And when
thou art resolved, then put thy trust in Allah.” (3 : 159)
These two verses make consultation compulsory and also
direct the Head of the State that when, after mutual consulta­
tions, a decision has been taken by him, he should enforce it
with determination, having full faith in God. However, even
this does not furnish a clear reply to our query, and I have been
unable to discover any definite ruling on thia point in the books
of Hadith either. It is the convention of the Caliphs and the
judgment of the eminent Jurists of Islam that finally guide us to
the conclusion that the de facto responsibility of all adminis­
tration rests with the Head of the State. And the Head of the
State, although obliged to consult his advisers (<e,, the legis­
lature), yet is under no obligation to sanction, follow or adopt
their unanimous*or even majority verdict or opinion. In other
L Thia stand has also been endorsed by aU the leading ^Ulama of
\ Pakistan, See Appendix II.—Editor,
 First Principles of the Islamic Slate 229

words, he can always exercise his "veto” .

But thia, when expressed in that precise form, can cause
extensive misunderstanding because in modern society, people
try to interpret these things with reference to present-day
environments, ignoring entirely the background attending the
establishment of the conventions. In the period o f the Right­
eous Caliphs, persons who were acting as advisers were not the
leaders or members of separate organized parties, nor were they
hemmed in by parliamentary procedures which is a feature of
the modern parliamentary system. They did not come fore­
armed with policies and programmes drawn up in advance at
party meetings. In their case, whenever asked to assemble and
advise, they came with unbiased hearts and open minds and in
their individual capacity, and the Caliphs themselves attended
the sitting with them. The problem was freely discussed and
opinions both for and against were fearlessly given. In the end,
the Caliph weighed all the arguments and exercised his own
judgment, after which he gave his final verdict,—a verdict which
was generally such that the entire assembly accepted if. Seldom
did it happen that someone refused to be converted to it ; but
even so, he would respect it, because it came from the Caliph.
In practice, however, despite their disagreement, they used to
accept his final verdict without mental reservation and followed
that whole-heartedly.
During the whole period o f the there is
not a single instance where the differences o f the advisers could
force a voting ; and there arc only two instances where a Caliph
ignored the unanimous opinion o f his advisers and decided to
act against it on his own. One was the case of permitting Uso*
xnah to proceed on his military campaign, and the other was the
matter of waging war against the "apostates”. But even in
those two oases, the basis on which the Companions ungrudg­
ingly accepted the decisions of the Caliph was not so much the
right o f veto of the Caliph, whereby they would be compelled to
accept it, but the fact that the Companions had absolute faith
in his deep Islamic insight and wisdom. Hence, when they ob­
served him preferring his own individual opinion o f his advisers
230 Tfce Islam io Law and Constitution
mainly in the interests of the State, they reconciled themselves
to hia opinion with very good grace. And not only that. After*
wards they freely admitted that his opinion was certainly the
better one and that had he not been so firm, immense harm
would have been done to Islam at that early stage. I t is now, an
undeniable faot of Islamic history that Caliph ‘Umar who in the
beginning was opposed to the opinion of Caliph Abu Bakr ih the
matter of the “ apostates” , openly accepted his error of judgment
later on and declared that God Almighty had endowed the first
Caliph with better insight and judgment and that whatever he
had decided was really the right course.
. We oan judge from these oases how the system of veto
developed in Islam and in what environment were these prece­
dents established. If, therefore, the method of consultation is
observed in its true spirit today also and the character of “ the
people who are consulted” is similar to that wbioh existed in the
days of the Caliphs, undoubtedly there would be no better line
of action than the one adopted then. Following it to its logical
conclusion, however, we oan say that, in a consultative body
of this kind, if the Head of the State and his advisers stick to
their own individual opinions and neither of them is prepared
to recode in favour of the other, recourse may then bo had to
referendum after which the one whose opinion is rejected by the
people should resign. But so long as it is not possible in our
country, to create a consultative body of that calibre and to -
foster that spirit and that mentality, there is no other alter­
native but to restrict and to subordinate the executive to the
majority decisions of the legislature.
The Purpose of the State
We now come to a very important point : What are the
fundamental objects for which Islam advocates the establish-
ment of an Islamic State? These objects, as defined and explain­
ed in the Qur’an and the Sunnah, are as follows ;
The Qur’an says :
“Certainly We sent our MesHengors with clear proofs,
and Bent down with them the Book and the Balanoe, so
 First Principles of the Iskmio State 231
that people may oonduct themselves with equity” . (47 : 26)
At another place it has been said :
“ (Muslims are) those who, if We give them power in the
land, establish the system of Salftt (worship) and Zakat
(poor-due) and enjoin virtue and forbid evil”. (22 : 41)
The Holy Prophet (peace be on him) said :
“ Allah brings to an end through the State what He
does not eradicate with ths Qur’an”1 ,
In other words, the evils which are not eradicated through
the preachings of the Qur’an need the ooeroive power of the
State to eradicate them. *
This means that the main objects of an Islamic State or to
enforce and implement with all the resources of its organised
power that reformatory programme which Islam has given for
the betterment of mankind. Mere establishment of peace, mere
protection of national frontiers, mere endeavour to raise the
standard of living of the common man do not form its ultimate
goal, nor do they constitute the characteristics which distinguish
the Islamio State from the non-Islamic states. Its distinction
lies in the fact that it has to encourage and popularise those
. good practices which Islam desires humanity to adopt and to
discourage, eradicate and crush with full force all those evils of
which Islam aims to purge mankind.

THE INSTITUTION OF GOVERNMENT

How, then, should the Government of a state based on
these foundations be formed 1 In this connection the most im­
portant point is the appointment of the Head of the State ter­
med as Imam or Amir or Khalifa (Caliph) in Islamic termino­
logy. In order to fully understand the stand-point of Islam
with regard to this we will have to refer to initial history.
Election of the Head of the State
As all of us are well aware, it was more than 1300 years
1, Quoted, lbn at-Kaihir,
232 The Islamic Law and Constitution

ago, that the corner-atone o f what is oalled Islamic society was

laid in the town of Mecca under circa instances intensely inimi­
cal and highly hostile. To initiate and then gradually to
develop an Islamic society, in the face of that stem opposition,
was the life-mission of our Great Prophet (peace be on him)*
And, when, after considerable development this Islamic society
had achieved political independence and its internal organiza­
tion had progressed to the stage of a regular state, our Great
Prophet Muhammad (peace be on him) became and was accepted
as its first Head. He ^as not elected by anybody/ He had been
chosen for this very task by God Almighty Himself.
For ten years he performed the duties o f the Head of that
State and then his mighty soul went to its eternal abode. He
left behind no explicit instructions or nomination for the elec­
tion or appointment of his successor* On aooount of this
abstinence on his part, and by reason o f the explicit Qur’anic
injunction that all. matters affecting the Ummah should be
decided by consultation, the Companions rightly inferred that
with the passing away of the Prophet, selection and appoint­
ment of the Head of the Islamio State had been left to the
elective discretion of the Muslims, which was to be exercised in
accordance with the spirit o f the said Qur’anio injunction J
The first Caliph; Abd Bakr, was thus elected publicly* And
when hie last moment came, although he was personally con­
vinced that ‘Umar was the fittest person to be the Caliph, he
did not forthwith nominate him as his successor but consulted
the most prominent among the Companions, jointly and sever-

1. No doubt, the Shi's sect o f the Muslims hold the belief that, like the
■Prophet, the I main a too are chosen and nominated by God Almighty
H im self, This divergence o f belief from the rest of the Cfynmnfc
the AM al-Sunnah has, however, no practical value now, as with the
disappearance o f th® 15th Imam, the Imamate remains in abej’anoe
until he reappears. For all actions in respect of the collective pro­
blems o f Muslims, therefore, reference has got to be made to some
Such person who has not been directly ohosen by God Al n ig h tly but
fleeted by the Muslims themselves,
 Fir st Prin ciples of the Islamic State 233

ally , and then dictated his wil l in favour of ‘Umar. Thereafter,

despite hie serious illn ess, he addressed the Muslim masses thu s:
"Are you willing to aooept him you r Am ir whom I no­
min ate as my successor 1 God is my Jud ge, I har e left no
ston e unturned in com ing to (the beat) conclusion in this
matter, I am not nom inating anybod y related to me. I
nom inate ‘Um ar son of Khaftab as my successor. There­
fore, listen you all to him and obey him .’*
From the crowd the people cried : “ We have heard
and we aocept.”! f *
__
Here we find that* Abu Bakr only suggested and recom­
mended the name of *Umar afte r con sultatio ns with those in
whom the people had confidence, and then it was put tp the
vote of the Muslim masses who accepted him.
Again, when 'Um ar was on the point o f leav ing this world,
he not iced 'tha t out of the large number of the mo st reliable
Companions of the Pro phe t, only six persons were the n aliv e
to whom the Muslim masses could look for guidance and from
amongst whom his successor could be chosen. He, therefore,
created a Con sultativ e Bod y of tho se six persons and delegated
to them the task of sele ctin g the nex t Caliph from amongst
the mse lves, prescribing tha t whosoever trie d to become the
Am ir withou t the approval of the Muslim masses was to be
beheaded.9
This con sult ativ e bod y ulti ma tely delegated its task to one
of its mem ber s,'A bd al-Rehman Ibn ‘Au f, who wen t round
Madinah to gauge the feeling s of the general public in the
tow n. He ascertained the opinio ns of the wom en-folk and the
reactions of the stud ent s of sch ools also and even of the pilg ­
rims from various parts of the cou ntry , who visited Madinah
after the ir pilgrim age at Mecca. After this thorough survey, he
oame to the conclusion tha t the Muslim masses had the greatest
possible fait h in two persons, ‘ Ali and 'Ut hm an, of the se two,
1. Tabari, Tarikh al-Umam wa'al-l/faltik, Vol. II, Cairo, p. 61A
8. Muhammed Hussain Haykel, ALFaroo? 'Umar, Cairo, Vol. JI, p. 313,
234 The Islam ic Law and Constitution

the opinion being sligh tly more in favour of ‘Uthm an. So the
vote was oast in his favour and he was openly accepted as the
Caliph.
4
Then oocurred the tragic and deplorable incid ent of Uth-
man’s brutal assassination which created a serious situa tion.
Some of the Companions, there fore, assembled in the house of
‘Ali and told him that nobody was there more suited than him
to be the Amir af the Muslims and he should, therefore, shou l­
der that respo nsibility. 4All declined to do so. Bat when these
people insis ted, he, at last, agreed saying.
“ If you wish it to be so, then come to the mosque, for
my acceptance as Amir cannot be secret nor witho ut the
approval of the Muslim masses®” .1
Consequently, 'Ali went to Prop het’s Mosque where people
were assem bled. And it is an incon trove rtible fact that the
majo rity of the people accepted him as their Caliph, even
thou gh this acceptance was not unanimous.
Last ly, when •Ali was murderously attacked and the time
of his death drew near, he was asked if he perm itted the
Muslims to accept his son Hasan as their next Amir, his reply
was clear :
“I neither ask you to do so, nor forbid you from doing
2
bo. You can decid e according to your light s.”
Thia, therefore, is the accepted convention of the period of
the Caliphate regarding the appointm ent and election of the
Head of the Islam ic State , and this is also the sum-total of the
colle ctive conduct of the Companions in this impo rtant matter.
It ie baaed as much on the Prop het’s abstinenc e from nominat­
ing his successor as on the Qur’anie injun ction that all impor­
tant decisions in matters of colle ctive inter est should be taken
by consu ltatio n. The poin t, that can be clearly inferred from
these auth entic constitutio nal precedents are : •
(1) In an Islam ic State , the eleotion of its Head depends
entir ely on the will o f the general public and nobody
1, Tabari, op. oil., Vol, III, p. 450.
2. Ibid., Vol. IV, p. 112.
 First Principles of the Mamie State 230

has the right to impose himself forcibly m their

A m ir *1 2
(2) No clan or class has a monopoly o f this offloe *
(3) The election should take place with the free-will o f
the Muslim masses and without any coeroion or
foroe.
How is this opinion o f the masses to be determined is a
point where Islam does not limit its scope by prescribing speoifio
methods. Different methods can be adopted in different places,
on different occasions, and under different circumstances, pro­
vided such methods are designed only to determine as to who
enjoys the greatest measure of nation's confidence and regard.
The Formation of the Consultative Assembly
After the problem o f the election o f the Amir the next most
important problem is : How are the members o f the Consult-

1. There are some people who say that this be accepted as the principle
of Tel am, what about the verdiot of eminent jurists and learned men
of the days of the Muslim kings who acoepted the authority of those
who became the rulers through sheer force of arms. As a matter of
fact ‘ aych people mix up and confuse the following two entirely
different and distinct positions adopted by the Muslims scholars of
the p a st:
(1) All the eminent scholars are unanimously of the opinion that
the only proper and psrmiW&fe method is that of election in which the
will of the Muslim masses should express itself freely.
(2) Even the most modest attitude adopted by our learned men
does not go beyond the fact that such tyrants can only be tolerated in
the common interests of collective security, provided such an Amir
doss not interfere with the fundamentals of Islam. Tn other wordB,
the most that these people do is not to concede a right to revolt, be­
cause that would lead to anarchy only. This does not all mean that
persons holding this opinion upprove of such tyrants and prefer them
to properly elected Amirs
2. In relation to thia matter also, certain people raise doubts as to how
to reconcile it with the Hadith in which the Quraysh have been declar­
ed to be the fittest for the ofiice of the Caliphate. I have already
replied to this in my book : ZtasaM wo Afaea’tl. Vol, I, p. 76, 3rd
impression, Lahore.
236 The Islam ic Law and Constitution

ative Assembly (Ma jlis^ cShu ra) to be eleoted and who shall
elect them 1
From a superficial stud y of the problem it has been erron­
eously concluded that because, during the period of the Caliphs,
the members of the Consultative Assembly were not chosen
through organized general elections, there is no place of elections
in Islam and it has been left solely to the discretion of the
Khalifah as to whom he should consult. This error is due to the
fact that the preceden ts of thes e time s are applied to modern
„practices with out referenoe to the then prev ailin g conditions.
The oorreot way would be to apply them only with reference to
the then exist ing circumstances and to make an hone st attem pt
to understand the spirit of thos e principles and their deta ils
as interpreted with in the framework of the then existing condi­
tions.
Islam arose in Mecca as an ideological movement. And it
is an inherent feature of all ideo logical mov ements that persons
accepting that movement first, are counted sb the true compani­
ons and friends as well as advisers o f the Leaders of that move­
men t. Likewise in Islam, persons who were the first to associate
them selves with the Prophet and his movement, naturally and
auto matically beoame his advisers whom he invariably consult­
ed in all cases wherever clear and defin ite inju nctio ns of the
Qur’an were not available . When, how ever, new blood entered
the Islam io body polit ic and the stru ggle with the opposing
force increased, those who rendered outstand ing services by
virtue of their sacrifices, insig ht and wisd om, natu rally beoame
prominent with out any conscious effort on their part. This
election, therefore, took place not by means of vote s but by
virtue of practical tests and performance which are indisput­
ably a more natural and reliable meth od. Thus even before the
Prop het migrated to Madinah, two kinds of people had already
become members of hie Con sulta tive Assembly, viz.
(а) Those who had been associated with him from the very
beginnin g, and
(б) Those who subseque ntly became prom inent by virtue of
 First Principles of the Islamic State 237
their sacrifices, insight and ability.
The members of both these groups enjoyed the confidence
of the Muslim masses also to the same extent to which they
enjoyed the confidence of the Prophet himself.
Then occurred the historical event of Migration {hijrah)
and it took shape in the following way. A year or two before
migration, certain influential personalities of Madinah had
embraced Islam and through their labours, Islam had establi-
shed a secure foothold in th at city among the tribes of Aus and
KKazraj, I t was at the instance and request of these people of
Madinah that, leaving their hearths and homes, the Prophet
and his followers migrated to that city where the Islamic
movement naturally grew into a political organization and
blossomed into a full-fledged state. I t was, therefore, only
natural that these very people, with whose services Islam had
prospered and progressed in Madinah Bhould be the leaders of
the newly-formed society and its political organization. And
naturally again, it was most befitting th at these very people
should be included in the Consultative Assembly of the Prophet
along with his very first associates and tested comrades from
Mecca. These people thus beoame the representatives of people
and the members of the Consultative Assembly through a
natural process of selection, and they enjoyed the confidence of
the Muslim masses to such a degree that if elections of the type
current in modern days would have been held, these and these
people alone would have been chosen.
Later on, in this society of Madinah, two kinds of people
began to become prominent. The first were those who during
the next eight to ten years rendered yeoman’s service in
political, military and missionary fields to such an extent that
practically in al) important matters every body automatically
looked to them. Tho second group consisted of those persons
who gradually became well-known for their wide knowledge and
deep insight in the Qur’anio jurisprudence and literature. After
the passing away of the Prophet, the people naturally treated
them as being tho most reliable authorities in these matters.
238 The Islamic Law and Constitution

The Prophet himself, by saying that the Qur'an should be learnt

and understood from such and such persons, put his seal on
their erudition. Thus, those two groups also were elected as a
matter of course, like those before them, by the same process
of natural selection and became autom atically included in the
Consultative Assem bly of the Proph et’s successors. There was,
thus, no need to take a vote for them and even if vote was
taken, there was nobody else in that society who would have
been preferred by the voters. And those constitutiona l conven­
tions under which fresh nominees continued to be incorporated
in the Consultative Assem bly by virtue of their services, exper­
ience and outsta nding intellectual attribu tes, autom atically
received universal approval.
This was the class of people which was known as Ahl al-IIa l,
wal-'Aqd (».«., those who could “tie” and “ untie”), and it was
these people withou t whose advice no decision was ever taken
in any important matter . As to their constitutiona l status , some
opinion can be formed by the fact that when, after the unfortu­
nate assassination of Hadrat ‘Uthm an, some of the Companions
came to Hadrat f Ali to ask him to accept the office of the
Caliphate, Hadrat ‘Ali said :—
“This is not a matter whereon you can take a decision.
1'his is a task for all those who can advise and have fought
in the battle of Badr (AM al-Shu ra wa ahi al-Bad r). Whoso­
ever is approved by them will be the Caliph and let us,
therefore, congregate and oonsider it.” 1
It is thus clear that at that time there were certain specific
persons called “AM al-Hal wal-'A qd” who had been contin u­
ously holding the positio n of great trust for a very long time
and were thus entitle d to take collective decisio ns in all impor­
tant matter s affecting the Ummah. There is, therefore, no
valid ground to presume that the Khalifah could cal 1 for consul­
tation s whomsoever he liked or that it was not generally known
as to who were his advisers (AM al-Shura) entitle d to give
advice to him in the most impor tant matter s affecting the
1. Ibn Qntnib ah, al-Irtiam ah wa ul-Siya tfyyah, Cairo, p. 41.
 First Principles of the Islamic Stale 239

collective good.1
From the conventions of the Caliph a, nay, even from the
oonduct of the Prophet himself, the inferred rule la that the
Amir*s Consultative Assembly is not to con sistof his hand­
picked men but only of those persons who enjoy the confidence
of the masses. They should be such whose sincerity, ability and
loyalty is above reproach in the eyes o f the publio and whose
participation in the major decisions of the State would itself be
a guarantee of the fact that free and willing co-operation of the
masses would be available to the State in the implementation of
all the decisions thus taken.

]. Here the question naturally arises : W hy were these A Al al-Hal wa aJ-

Mffd comprised only of people from Madinah, although the frontiers
of the Islamic State had extended beyond Arabia up to Afghanistan
in the East and North Africa in the West during the period o f the
Righteous Caliphs, and why were not loyal representatives from other
parts o f the State summoned far this purpose t The answer is that it
was due to two very valid reasons, namely :—
(a) The Islamio State was not a mere National State. It had come
into existence in a unique fashion. With the preliminary pro*
pagation of the Islamio ideology in the minds and morals of the
people an ideal society was first created, which subsequently
developed into an ideal state. In Such a state, naturally, the
load-centre of all devotion was the individual
«
who had initiated.
and then perfected the revolution. N ext to him,'.the body of his
assooiate9 and right*hand men became the repository of all pub*
Ho confidence and faith. Their leadership was thus meet natural
and nobody else from amongst the society could possibly be
anyway more worthy of yie confidence o f the public. That is
exactly the reason why, in spite of complete freedom of expres­
sion, even in that ora,’ nobody from any corner of the country
raised even a single voice of protest against the selection o f
only the people from Madinah for inclusion in the Consultative
Assembly.
(A) Secondly, it w m not possible -in the then existing conditions of
life to hold general elections in an area extending
to from Afghan-
istan to North Africa and thereafter to expect that all elected
members of the Consultative Assembly could attond all its
ordinary sittings and meetings.
240 trht Itlamic Law and Constitution
It may well be asked as to how the persons enjoying such
confidence of the masses are to be determined today. I t is
evident that the shape of things which existed, in the special
circumstances of the early days of Islam is not to be found to­
day, nor do the obstacles existing in the civio conditions of that
era exist now. Consequently, after considering the circumstances
and needs of modern times, we can adopt all such possible and
permissible methods whereby we might be able to find out truly
as to which persons enjoy the confidence of the masses in great­
est measure. The modern system of elections is one of these
permissible methods, provided it is not tarred with these
corrupt practices which render democracy a sheer farce.
The Form and Nature of Government
We now come to the third important p o in t: What should
be the form and nature of the Government of an Islamic State ?
If we closely study the convention of the Caliphs to obtain
guidance on this point, we will notice that the Amir was the
only person to whom obedience and loyalty were enjoined and
to whom the people delegated in the fullest possible measure
their right of taking decisions in all matters concerning their
collective existence. His status Was, therefore, entirely different
from the status of the British Monarch, or the French Presi­
dent or the British P riii\ Minister, or the American President,
or the Head of the Soviet Union. He was not only the President
of the State, but also the Prime Minister. He attended the
parliament himself and presided over all its sittings. He used
to take the fullest part in its discussions and was responsible
not only for his own acts and opinions but also for all the
decisions of his Government. In his parliament there was
neither any specific Government Party nor any specific Opposi­
tion Party. The whole parliament was his party as long as he
kept,io the right path. But as soon as he deviated from it, his
whole party automatically turned into opposition. Every mem­
ber of hiB parliament had full freedom to vote for or against
him on any point and even his Ministers were free to oppose
him if they felt impelled to do so honestly and sincerely. And,
 241
First Principles of the Islam ic State
of all thi s, the Mi nis ter s an d the He ad of the State
in spite
all alo ng wo rki ng in co mp let e co -op era tio n an d harmony
were
qu est ion of an yb od y res ign ing in pro tes t ne ver arose
and the
at all.
rliam ent
The Caliph was not only answerable before the pa
for his public
bu t also before the people ; and th at no t only
Five times
acts bu t also for his priva te and personal conduct.
y he ha d to fac e the pe op le in the mo squ e* an d he had
every da
ss the m ev ery we ek on Fr ida ys . Ea oh an d ev ery mem­
to addre
stree ts of
ber of the public had the rig ht to atop him in the
to qu est ion him on his co nd uc t or to de ma nd any of
Madinah
fro m him , an d he wo uld do bo a t all tim es an d at all
his rig hts
urs . No suc h rul e ex ist ed th at if a qu est ion wa s to be asked
ho
m the Go ve rnm en t, som e me mb er of the pa rli am ent must
fro
clamation of
give a previous notice about it. The general pro
the Head of the Islamic State was :
put
“ Assist me when I aot rig htly ; bu t if I go wrong
ain loyal
me on the right pa th. Obey me as long as I rem
lah an d Hi s Pr op he t ; bu t if I dis ob ey Al lah an d His
to Al
ation to
Prophet, then none is under the sligh test oblig
1
accord obedience to me.”
with any
This form of government cannot be identified
stands in the
modem form of government. But it is this which
ord wi th the ide olo gy of Isl am . I t is, the ref ore , our
fullest acc
Bu t it can be ach iev ed on ly wh en the soc iet y ha s been
ideal too.
de velop ed in acc ord an ce wi th all the rev olu tionary
already
s of Isl am . An d th at is ex ac tly wh y no soo ne r tha n the
teaching
ent could not
Islamic society de teriorate d this idea of governm
he red to. As to the pre sen t tim es, if we de sir e to
be fully ad
ert to it, it wo uld be ess en tia l to ad op t the following four
rev
in accordance
basic principles initia lly , and then to adjuBt them
with our subsequent requirem ents and needs :
lities of
(1) Whosoever is en tru sted with the responsibi
the
government should be required to faoe not only
Cairo, p. 07.
1, Muhammad Hu ssa in Ha yk el, Al~Siddiq>
 242 The Islamic Law and Constitution
representatives of the public but the public itse lf;
further, he should not only discharge his duties in
consultation with those entrusted with the job but
also should be answerable for all his actions.
(2) We should reform the prevalent system of strict party­
loyalties—a Bystem which instead of remaining
an agency of public opinion becomes the standard of
truth and untruth» Such a system pollutes the govern­
ment with a false sense of loyalties, and it carries
within it the possibility that once a group of self­
seeking people comes, into power, it may manoeuvre
party polities;-at public expense itself, in such a way
as to continue in the saddle ad infinitum,
(3) The system of government should not be based on such
complicated rules and regulations as may render it
extremely difficult for the earnest workers to work, for
the critics to criticise and for the people in general to
find out the root cause of the evils that might arise
from time to time.
(4) The last and the most importan t principle should be
that only those elected as Head of the State and as
members of the Consultative Assembly, who possess
those qualities and are equipped with those qualifica­
tions which have been prescribed by Islam for th©
office-bearers.

VI
RULERS AND THEIR QUALIFICATIONS
From the Islamic point of view, the qualifications of office­
bearers is very importan t. In fact, this alone can guarantee the
proper functioning of the Islamic Constitution.
As regards the eligibility for membership of the Consulta­
tive Assembly or for the post of the Head of the State, there is
one aspect which might bo termed as legal eligibility, on the
basis of which an Election Tribunal or a Judge, after due con-
 First Principles of the Islamic State 243

eideration and verification , may declare a person eligible or

non-eligible for election. There is yet another aspect of eligi­
bility on which the selectors, the proposers and the voters base
their judgment. The first aspect of eligibility may be possessed
by everyone of the millions o f citizens of a state, but it is the
second which actually elevates a very select few to the top.
Criteria with regard to the first aspect are to be included in a
few operative clauses of the Constitutio
• n. But the standards of
the second aspect o f eligibility must permeate the spirit of the
entire Constitutio n. The success or otherwise of any conBtitu*
tion would depend on the fact that the minds of the masses
have or have not been trained properly to elect only those who
are eligible for those august positions in accordance with the
spirit of the Constitution rather than i t s / o m only.
Both the Qur'an and the Hadith givo.olesr guidance about
these two aspects of eligibility. As regards the first, the
following four conditions have been prescribed :
(1) Should be a Muslim—The injunction o f the Qur’an is :
“ 0 ye who believe I Obey Allah, and obey the Prophet
and (obey) those who are in authority from among
y o u ” (4 ; 59)
(2) Should be a Male—The Qur'an says :
“ Men are in charge of women.” (4 : 34)
And the Prophet declares :
“ Verily, that nation would not prosper which hands
over the reignB of its government to a woman?*1
(3) iSAowid be sane and adult—The Qur’an lays down :
11And do not make
over your property, which Allah
has made for you a (means of) support, to the weak
of understand ing.” (4 ; 5)
(4) Should be a citizen of the Islamic State—The Qur’an
declares : ’.
“And those who have declared their belief in Islam
but have not migrated (to the Islamio State), you

1. Bukhari, al-Sahih.
244 (the Islamic Law and Constitution
have nothing to do with their guardianship until
they migrate.” (8 : 72)
These are the four legal qualifications which determine a
person’s eligibility to the membership of the Consultative
Assembly or to the post of the Head of an Islamic State. But
the question is : Whom, among the countless legally eligible
persons, should we elect and whom should we ignore for those
important offices of State ? A clear reply to this most important
question also is to be found both in the Qur’an and the Hadith,
The Holy Qur'an says :
(a) “ Verily Allah commands you to make over trusts (i.e.,
positions of responsibility) to those who are trust­
worthy J ’ (4 : 58)
(b) “ Verily the most respectable of you in the sight of
Allah is the one who is most God-fearing.” (49 : 13)
(c) “ He said : Verily Allah has ohosen him (to rule over
you) in preference to you, and He has increased him
abundantly in knowledge and physique.” (2 : 247)
(d) And obey not a person whose heart We have permitted
to become unmindful of Our remembrance, one who is
followed by the dictates of his own deBires and his
case is that in which due limits are transgressed.”
(18 28)
The Holy Prophet (peace bo upon him) says :
(a) “ Whosoever honours and reveres an innovator (in
religion), helps in bringing down the edifice of Islam.” 1
(b) “ By God we do not assign the affairs of our govern­
ment to any one who aspires for it or is greedy in
respect of it.”23
(o) “ Wo consider the seeker after a post (of trust and
responsibility) as the moBt untrustworthy.”2
Some of those qualifications can be easily incorporated as
operative clauses in our Constitution. A self-styled candidate
1. Quoted by Al-Baihaqi.
2. Quoted by Bukhari and Mutton.
3. Quoted by Abu Da'ud.
 JMrtf Principles of the Islamic State 24S
for election should be declared ineligible. As regards other quali­
fications for which no legal limit can be prescribed, wo can cer­
tainly include provisions for them in the chapter on Directives,
The duties of the Election Commissioner would, thereby, have
to include the obligation to inform and educate the masses re­
garding the qualifications which are essentially and indispensab­
ly required and prescribed for Ulul-amr in Islam.

VII
CITIZENSHIP
We now come to the question of citizenship. Since Islam is
a system of both thought and oonduct and sinoe it aims at creat­
ing a state on the basis of its ideology, it prescribes two types
of citizenship. Furthermore, because straightforwardness and
truthfulness form the very quintessence and soul of Islam, this
idea of dual citizenship is plainly prescribed in its political
structure without any beating about the bush. It does not, for
instance, try to mislead the world by adopting methods of giv­
ing full and equal rights to all its citizens on paper, and yet all
the time disejiminating between them in practice and withhold­
ing even the fundamental human rights from a considerable
Bection of the population, like Russia. In fact, in all modern
countries the national and the Ideological minorities1 are invari­
ably treated in this very fashion. The course adopted by Islam
in this respect too is most rational, jusi and honourable.
The two kinds of citizenship that Islam envisages, are the
following :
(0 The Muslims ; and
(2) The Zimmis.
(1) As regards the Muslim citizens, the Qur’an speaks
thus : 4>
“ Verily those who believed and migrated and struggl­
ed hard in Allah’s Way with their property and their souls,
1, I t must not be forgotten that there is a world of difference between a
political minority and an ideological cultural of national minority.
 246 The Islamic Law and Constitution

and those who gave (them) shelter and help—they are

guardians o f each other ; and (as for) those who believed
and did not migrate (to the Islam io State), you have noth­
ing to do with their guardianship until they migrate”*
(8 : 72)
From, this verse it is clear that the basic qualifications for
citizenship as prescribed by the Qur’an are two, faith in
Islam and original or acquired domicile in an Islamic State* If
a person, even though he may be from amongst the faithfill,
does not renounce his allegiance to a non-Islamic State and
migrate to Islamic State, he is not and cannot be its citizen.
Contrary to this, all those believers who, whether they wcto
bom in the Islainio State or have migrated to it, are its oitizens
at par and helpers o f one another.1
Upon the shoulders of the Muslim citizens o f an Islamic
State devolves the main burden of running it in accordance with
Islam’s best traditions : as they alone are supposed to believe
in it implicitly. On them alone it enforces its laws as a whole
and enjoinB them to carry out all its religious, moral, cultural
and political directives. It invests them with all its obligations,

realm,"Concurrent with this, it gives them the right to choose

the Head of their State and to be the members of its Parliament.
It also entitles them to be appointed to the keyposta, so that the
basic policy of this ideological state remains in oonformity with
the fundamentals of Islam. That is the standpoint o f Islam is

I. A precautionary measure prescribed by the Qur’an in the case of the

people who migrate to the Islamic territory is to test their fonojScte/L
This, though spoken with reference to immigrant ladies, forms the
basis of the general inference that the people who migrate to an Islamic
State prove their bono/dea i.e», that they are truly Muslims and im­
migrants. This is to safeguard against evil-doers entering the Islamic
State under the guise of immigrants. Although the truth of one’s
faith is known only to God. the State in all such cases should try to
verify the antecedents of immigrants to the best o f its resources and
means.
 First Principles of the Islamic State 247
proved by the utterabsenoe of even a single instance in the
days of the Holy Prophet (peace be on him) or the Caliphs
where a Zimmi (non-Muslim citizen) may have been made a
member of the Parliament, or the Governor of a province, or the
Qadi, or the Director of any Government department, or the
Commander of the Army, or a Minister of the Government; or
may have been ever allowed to participate in the election of the
Caliphs, although the number of Zimmis even in the days of the
Prophet was considerable and during the days of Khilafat~e-
Sashidah it had gone up to millions. As suoh, were it right to
give them a share in the Government, we . fail to understand
how the Prophet of God (peace be on him) could have done in­
justice to them in the first instance, and how the persons direct­
ly and diligently trained by the Prophet himself could have
continued to “ deprive” them of their “due rights” for the next
thirty years.
(2) By Zimmi8 are meant all those non-Mnslims who have
affirmed to remain loyal and obedient to the Islamic State
wherein they propose to live, regardless of the country they
were born in. For all oitizens of this kind, Islam furnishes a
guarantee of protection of life and limb, property and culture,
faith and honour. I t enforces only its law of the land on them
and it gives thorn equal rights with Muslims in all civil matters.
They are eligible for all kinds of employment except for key­
posts : they have an equal share with Muslims in the matter of
all civil liberties, and even in eoonomio matters. No discri­
mination is made between a Muslim and a Zimmi „Furthermore,
the Zimmis are exempt from the responsibility of the State,
which devolves exclusively and entirely on the Muslim
citizens.
If any one has any objection with regard to these two kinds
of citizenship in an Islamic State and their distinctive features,
he should try to acquaint himself with the dotails of the treat­
ment meted out praotioally by other ideological states to the
people who do not believe in their ideology and with the dis­
abilities attaching to all national minorities %f the national
248 The Islamic Law and Constitution
states. Tn truth, it can be categorically stated that, compared
with other systems of government, Islam has definitely enjoined
the most just, the most tolerant and the most generous treat-
meat to the minorities who choose to stay within the borders
of its state and lead a life directed and governed by those
principles which are different from and even hostile to the
ideology of the majority.
In fact, the beat and most just solution of the unusual com*
plioations arising out of the existence of a foreign element in
the body politic of a natio n or an ideological state is offered by
Islam alone. Others have resolved this difficulty in one of the
two ways : They have either wiped out the minorities or have
kept them under perpetual bondage as untouchables. Islam, on
the other hand, adopts a very humane and equitable method.
It prescribes a line of demarcation between its adherents and
nonadherents and on its followers alone it enjoins ooipplete and
absolute adherence to its basic and fundamental principles with
all their details. In addition to that, it places only on its adhe­
rents the responsibility of defending and running the State in
accordance with those principles.
To those who do not submit to its principles, Islam gives
ample latitu de to lead their lives in their own way, binding
them only to that extent which is the minimum essential for
maintaining State Administration. And although it absolves
them from the liabilities of running or defending the State, it
guarantees them all cultural and human rights.
Rights o f Citizens
The next question relates to tb« fundamental rights of
oitizsns in an Islamic State,
In Islam, the first and foremost right of the citizens is the
protection of their life, property and honour, together with the
assurance that this right would not be interfered with, oxoept
on valid legal grounds. The Prophet has explicitly and repeat­
edly enunoiated this thing. In his well-known address giren on
the occasion of the Farewell Pilgrimage, wherein the details of
the Islamic way of life were stressed, he said :
 First Princ iples of the Islamic State

"You r live®, your properties, and your honour are as

sacred as th is day* (of the H ajj)” A
There is only one excep tion to it, which the Prophet him-

demand for life, property or honour according to any law of

Islam , it shall have to be realised in accordance with the pre-
scribed procedure. -
The second impo rtant right is that of the protection of
personal freedom. Tn Islsm , personal freedom cannot be viola t­
ed, save after prov ing delinquency in accordance with t e
procesa of law and never without- givin g an opportunity to
accused to put up his defence. It has been related t
people were arrested in Madinah, in the days of the ’
being of doubtful anteceden ts. Subsequently, while t e p
was delivering the Friday Sermon, a Companion go up a
enquired of him as to why and on what grounds has his neig ■
hours been arrested. The Prophet kept quiet while t e qnes ion
was repeated twice, thus givin g an ample opportuni y _
Polic e Officer present there to explain the legal position,
the question was put a third time, and it again failed to
the reply from the Police Officer, the Prop het directed that
U B i y® Pr 0 °
those people should be released.12 This is a cone
the fact that as long as a specific charge is not laid again
person, he cannot be detained or imprisoned. Imam Khattabi,
while expla ining this Badi tk in Ma'a lim al-Su n^n,
that in Islam deten tion is only of two kind s :
(а) deten tion under orders of the court, namely, w e
person is sentenced by the court and is kept in prison,
till the expiry of the term of his sentence ; and
(б) deten tion for inves tigat ion. Besid es these , there can
be no other ground for depriving a person of his

Imam Abu Y o u « f, in hi, Kitob hw ,i«o

the poin t. nohody enn hn impr i.one d on fn lx or
1. Muslim : Farew ell Pilgrimage : Ibn Hw/w m, pp. 389-391.
2, Abu Da’ud'
 250 T ie Islamic Law and Constitution
unproved charges. The Holy Prophe t did not imprison people
on mere accusations. It was necessary th at the two parties
should appear in the court and if the complainant failed to
prove his allegation with all the evidence at h’is disposal, the
defendant was acquitted.
'Umar, the second Caliph, while pronouncing judgment in
a famous case, said :
"In Islam no one can be imprisoned withou t due
course of justice.” 1
The third important right is that of freedom of opinion and
belief. 'Ali, the fourth Caliph, has given the best exposition of
Islamio law in this respect. During his period, the party known
as the Kharijites reared its head in revolt. This group was very
similar to the modern anarchists and nihilists. Its members
defied the State openly and denied the need for its existence in
Islam, and they were making preparations, to wipe it out by
sword. *Ali (God bless his soul) sent the following message to
them : <
“ You may live wherever you like, the only condition
between; us being that you will not indulge in bloodshed
and will not practise cruel methods?’2
On another occasion, ‘Ali addressed them thus :
"As long as you do not indulge in aotual disruption
and disorder, we will not wage war against you.”3
This ihakes it quite clear that even, an organised group may
entertain any set »xof ideas and may also peacefully practise
them ; and an Islamic State would not hinder or harm it. But if
it tries to foiaf its ideology on others r by violent means and
endangers the security of the State or its administration,
necessary action shall certain ly be taken against it.
Another right which has been greatly emphasised in Islam
is that of the (provision of basic necessities of life to all citizens
------------------V
1. Im am Malik, Muwatla , Baab Sharon I al-Shah id, K itab Ahkam al-
K hi!a fa t.
2. ^ Shaukan i, NaH al^Autar, Vol. V III, p. 139.
$7 Ibid., p 133.
 First Principles of the Islamic State 251

without distinction of caste or creed. Zakdt was made compul­

sory for Muslims for this very purpose and the Prophet himself
says :
“ It shall be taken from the rich and distributed
amongst the poor and the needy/* 1
At another place he (peace be on him) enunciates the
following principle :
“The Government is the guardian (helper) of everyone
who has no guardian.” 2
And again : M
“Whoever leaves liabilities (such as debts or destitute
families at the time of his death), the burden (of all suoh
liabilities) is upon us (i.s., the State).”3
In this matter, Islam has made no distinction between the
Muslims and non-Muslims. It gives to the Zimmis the same
guarantee as it gives to the Muslims, that the State would not
let anybody be without food and clothing or a place of resi­
dence. Caliph 1Umar once found a Zimmi begging alms. He
granted a pension to him, absolved him from the payment of
Jizyah and wrote to his Treasury Officer :
“ By God, we fail to do justice if we leave people
unprovided for in their old age, while making the fullest
use of their services in the prime of their life/* 4
The Covenant that Khalid, the Sword o f God, gave to the
non-Muslims of Hirah, contained the condition that whosoever
became old or afflicted or destitute, would not be required to
pay the Jizyah, and that, on the other hand, ha and his family
would be looked after from the funds o f the State Treasury.
I

Duties of Citizens
As against these rights of the citizens, thera are certain
rights of the State upon its citizens. Among these, the fost is
that of obedience, for whioh the technical term o f flsrt-o-T a’at

1. Related by Bukhari and Muslim.

2, X&u-Dw’wd, Tirmizi.
8. Related by Bukhari and Muslim.
4, Abu Yousaf, Kitab al-Kharaf p. 72,
2S2 TAe Islam ic Law and Constitution

is used in Islam , The Prophet has explained it thus -

“The State shall have to be heard and shall have to be
obeyed, in adve rsity and in prosperity, and whether, it is
pleasant or unpleasant to do so” .1
Tn other woTds, the order of the State , be it palatable or
unpalatable, easy or arduous, shall have to be obeyed under all
circumstances (save of course when it invo lves God's disobe­
dience, as discussed earlier).
The second obligation on the citiz ens vis-a -vis an Islamic
Stat e is that they should be loya l to it and work for its welfare.
In the Qur'an and the Hadilh the term has been
used for this purpose, which in Arabic means more than what
is conveyed by the words loya lty and alleg iance. It inherently
dem ands that a person should, truly and faith fully and with all
his heart, wish and work for the good , prosperity and the
betterment of the Stat e, and should not toler ate anything likely
to harm its inter ests.
It is also obligatory on the citiz ens of the Islam ic State to
co-operate whole heartedly with the governm ent and to make
sacrifices of life and property for it, so much so that if any dan­
ger threaten s the State , he who wilfu lly refrains from making a
sacrifice of his life and property for warding off that danger has
been called a hypo crite in the Qur'an.
Broa dly epeaking, thes e are the salie nt featu res of that
ideal form of governm ent whioh we call an slamio State . You
T

may describe it by any modern technical term you choose. You

may call it secular, or dem ocratic, or theocratic. We will not
fight for givin g it a particular name. Wha t we do insis t upon is
the cont ent. So long as we olaim to believe in Islam and to
accept it as our way of life, our syste m of gove rnm ent should
essen tially be based on the fundamentals prescribed by the
Qur'an and by the Holy Prophet Muhammad (blessings of Allah
be with him for all time s to come).

BtiftAari and Jfueh'm.

 Chapter 7

Fundamentals of Islamic
Constitution
(as enunciated. in the Qur’&n and the Sunnah)
t

In the las t quarter o f 1952, when the Ba sic

Principles Committee Report was roaching com ple
­
tio n, a very vicious campaign was launched in the
press against Ifliamio Co nstitu tio n. It was alleged
tha t the dem and for Islam ic Co nstitu tio n wa
s
merely a po litical stu nt and tha t the Qur’an and the
Sunnah throw no lig ht on problems of Constitu*
tio na l Law, Maulana Maududi wrote thia article in
Novem ber 1952 an d showed tha t the fundamentals
of the Islam ic Co nstitu tio n are cle arly sta ted in the
Book of God and the Traditions of the Ho ly
Prophet (peace be on him ). It was a tellin g rejoin
­
der to the protagonists of the plea tha t ‘th e Qur’an
cannot giv e a Constitution*, and left the opponents
dumb-founded. It was published in Ur du , Bengali
,
and English and is now being includod in the pre
­
sen t volume to show the sal ien t featuros of Islam ic
Co nstitution as enunciated in the Qur’an and the
Sunnah —Ed ito r.
 FUNDAMENTALS OF ISLAMIC
CONSTITUTION
)
(m euunaiated in the Qur’&n end the tiuunab

g of ou r C on st itu tio n is en te rin g its final stage,

S th e fram in
A it is th e du ty of
to assist th e Con st
al
itu
l
en
wh
t A
o
ss
ar
em
e
bl
co
y
nv
in
er
fr
sa
am
nt
in
w
g
ith
an Is
th
la
e subject
mic Con­
th e ve ry be gi nn in g we ha ve be en try in g to
stitu tio n. From Th e re pr esents
to th e be st of ou t ab ili ty .
discharge our du ty t ha ve rendered
al l th e M us lim , sc ho ol s of th ou gh
tiv e *Ulamd of
se rv ic es in th is co nn ec tio n; In Ja nu ary 1951 th ey
meritorious
fo rm ul at ed th e ba sic pr in ci pl es of the Islamic
unanimously le ha ve all
sa d to no te th at so m e pe op
State. B ut it is very
1
pe op le and th e
g to co nf us e bo th th e co m m on
along been try in e fu nd am entals
st itu en t A ss em bl y ab ou t th
members of th e C on pe at ing tim e and
on sti tu tio n. Th ey ha ve be en re
of iBlamio C th e fo rmula*
no gu id an ce in th e Q ur ’an fo r
again th at there is an y speoial
n, th at Is la m do eB no t pr es cr ib e
tion of a Constitutio th in g as an Is la m-
th at th er e is no su ch
form of government and e st at em en ts are
In sp ite of th e fa ct th at th es
mio Constitution. pe rs is te nt propa­
is ju st po ss ib le th at th is
absolutely baseless, it th ose who are
od uc e co nf us io n in th e m in ds of
ganda might pr
in th e Q ur ’a n an d th e Su nn ah . It ha s, therefore,
no t well versed
ss ar y to ci te ve rs es of th e Q ur ’a n an d th e Traditions
become nece un te r th is propa­
ce be on hi m ) in or de r to oo
of th e Prop het (pea rward by th e
H th at th e pr in ci pl es pu t fo
ganda and to b ow
st itu tio n are based
ul at io n of an Is la m ic C on
‘Ulama for the form nt ally , th is will
al Bo ur oe a of Is la m ic La w . In ci de
on th e origin m em be rs of
e on ly po ss ib le ex cu se of th e
also do away w ith th in fo rm ed in time
A ss em bl y th at th ey w er e no t
th e Constituent an d H is Messenger
ds of th e A lm ig ht y- G od
about th e comman
ate.
concerning th e C on stitu tio n of th e St
*
I. Beu Ap pe nd ix li--E di to r.
 ’ Fundamentals of Islamic Constitution 256
We reproduce below the relevan t Qur’anio verses and the
authentic Traditions of the Prophe t (peace be on him), along
with the constitu tional princip les which are deducible from
them :

I
The Holy Qur’an says :—
“The (right of) Command is for none but Allah. He
hath commanded that ye follow none but Him. That is the
. right way (of life)”* (12 : 40)
This verse dearly points out that the authority of giving
commands and the title to sovereig nty is the sole preroga­
tive of Allah. There is nothing in the text to confine His Sover*
eignty merely to its metaphysical aspects. It is direotly address*
ed to mankind and is obviously all inclusiv e. It comprehends
all spheres of human life : the doctrinal, moral, legal as well as
politica l. The Qur’an itself specifically states that all these
spheres of sovereig nty belong to Allah alone, and i t puts it in
very clear termB that Allah is not only the Sustainer and the
Lord of mankind but also its Sovereign and Ruler :—
“ Say (0 Muhammad) : I seek refuge in the Sustained
of mankind, th’e»Sovereign (Ruler) of mankind, the Lord of
mankind ” (114 : 1-3)
The Qur’an further IayB down that Allah is the Master of
the land and has no partner in His Sovere ignty.. Thue says the
Qur’an : ’
“Say : 0 Allah 1 Owner of the Kingdo m I Thou giveat
kingdom to whom Thou wilt and takest it away from whom
Thou wilt”. (3 :2 6 )
“ None is a partner in His Sovereignty”. (18 : 111)
The Qur’an declares very explicit ly that God is the sole
. Creator and, therefore, to Him alone should and does belong
the right to rule over His Creation. The Qur’an says :
“ Beware I His is the creation and His is the (right to)
4 Rule”. (7 : 54)
Obviously, the sovereignty which the Qur’an claims for
God id not merely of the metaph ysical type but is also legal and
256 I’M laiemtc Law and Constitution

political. The Qur'an states this fact specifically in the folio w-

verses :
“ Follow the revelation sent unto you from your Lord
and do not follow the (so called) guardians other than
Him” : (7 :3 ) ’
“And those who do not make their decision in accord­
ance with what has been revealed by Allah, are (in fact)
disbelievers’', (5 : 44)
This conception of the political and legal sovereignty of
God is one of tbe • fundamental principles o f• Islam. Indeed, all
Muslim jurists are agreed that legal sovereignty is the exclusive
prerogative of God. Thus, for instance, in his famous book :
Al-Ihkam fi Usui al-Ahtam, which deals with the principles of
Fiqh 9 f All a ma Ami di writes as follows :
“Know that none but Allah is the Sovereign and no
command is worthy o f obedience except that which is given
by Him”,
Shaikh Muhammad Khadhiri, a modern Egyptian writer on
Islamic Jurisprudence; says in his book Usui al-Figh ;
“ As Command is the exclusive prerogative of Allah,
none is entitled to give any Command but He. This is a
point on which all Muslims are agreed” .
It is quite clear from the above that state beoomes Islamic
only when it recognises in dear terms the political and legal
sovereignty of Allah and binds itself to His obedience and
acknowledges Him as the Paramount Power Whose commands
must be upheld, come what may.

II
All the prophets in general and the Holy Prophet
Muhammad (peace be on him) in particular are the representa­
tives of this political and legal sovereignty of God. As a corol*
lary to this, the prophets of God are entitled to the obedience
of those who accept God as their Sovereign. It is. therefore,
the bounden duty of every such individual, community and
nation as believe in Divine Sovereignty to follow the pattern
 /tmiomenla J* of Islamic Constitutio n 257

Bet by them and to submit to their decisions without demur.

This principle has been very clearly enunciated in the Qur'an
over and over again. A few verses are quoted below in proof
thereof:
(a) “ Whoso obeys the Messenger, obeys Allah”. (4 : 80)
(h) “ We never sent any Messenger, but for the sole par-
pose that he should be obeyed under the sanotion of
Allah”. (4:64)
(c) “ And take whatsoever Messenger gives you and abstain
from whatsoever he forbids” . (59 : 7)
(d) “ O Muhammad ! We have revealed this Book to you
with Truth that you may judge among mankind by
(the light) which Allah has shown to you” . (4 : 105)
(e) “Nay, O Muhammad 1 by thy Lord, they will not be
believers until they aooept you as the final arbiter in
all their diaputea^and submit to your decision whole*
heartedly without any heartache” . (4 : 65)
From these verses we derive the seoond fundamental
principle of the Islamic Constitutio n, namely, that it must also
recognize the Sunnah of the Prophet as the source of law and
must incorporate a specific article to the effect that neither the
Executive, nor the Legislature nor the Judiciary can issue order
or enact laws or pronounce verdicts contrary to the Sunnah.
I ll
The Qur'an says : •
“ Allah has promised to those among you who believe .
and work righteous deeds, that He will most surely make
them His vicegerents in the earth as He had made the like
people before them His Vicegerents.” (24 : 55)
This verse enunciates two very important constitutional
principles :
(1) The real status of an Islamio State is not that of a
Sovereign but of a vicegerent.
(2) In an Islamic State, the powers of “ vioegerency” are
vested not in any one individual or family or group
but in the whole Muslim community—of course, when
 258 The Islam ic Law and Con stitu tion
it is blessed with the possession of an independent state .
. The concepts of ‘Sov ereig nty 1 and ‘Vicegerenoy’ need some
elucidation. It is inherent in the very conception of sove reig nty
that -the auth ority of the sovereign power shou ld neith er be
limited by any power other than its own free-will nor bound
by any law imposed from outside. Thus if a state acknowledges
that the injunctions of God and His Messenger are abov e ques­
tion , and neither its exec utiv e can issue any*order nor ita legis ­
lature can pass any laws nor its judiciary can give any verdict
repugnant to them ; i t means that it has surrendered its claim s
to sove reig nty in. favour of God and Hia Messenger. On thia
acknowledgement ita position auto matically becomes that of an
agent or vice gere nt of God and His Messenger. To say that
such a state possesses absolute sove reig nty (exc ept with refe­
rence to other state o f the world) would be a contradiction in
term s. No doub t, an Islamio Stat e is a sove reig n state in the
real sense of this term vis-a -vis the other state s of the world,
but if it tries to assert its sove reig nty vis-a -vis the commands
of God and His Messenger, this will amo unt the clear negation
of its Islam io character.
As to the second principle, it would be noted that Islam
vests all the Muslim citizens o f an Islamio State with ‘vioege-
renoy’. Thus the ‘vicegerency’ in an Ielamio Stat e is popular
and not limited to any person, class or clan. And it is the
'popular vicegerency’ that forms the basis o f democracy in an
Islam ic Stat e while ‘popular sove reig nty’ is its basis in a secular
state . In the Islam ic poli ty, the term ‘vicegerenoy’ has been
adopted beoause the auth ority that* vests in this soci ety and its
state is dele gate d by God and can be wielded only with in the
limits prescribed by Him . But as explained abov e, the auth o­
rity is delegated to the Muslim com munity o f the Stat e as a
whole and not to any particular individu al or group. As a
result of this, the governm ent can bo formed only with the
consent of all the Muslim com mun ity of the Stat e as a whole
and not to any particular individu al or group. As a resu lt of
this, the government can be formed only with the consent of
 Fundamentals of Islam ic Co nstitu tio n
259
ail the Muslim s or the ir majority and can functi
on and remain
in power on ly as long as it enjoys the ir con
fidence. This is
why Caliph Abu Bakr refused to be ca lle d the
‘vicegerent of
God’ as he was no t dir ectly ap po inted by Go
d but was elected
by the Muslim com mu nity to wield the deleg ate
d au tho rit y on
the ir behalf.
These tw o principles demand, tha t tho co ns tit
ution o f an
Islam ic Sta te mu st forsake all claims to absolute
sov ere ign ty and
declare in unequivocal term that it is merely the
vic eg ere nt of
God and its function is to ex ecu te His will and
commandments.

IV
How thi s principle of ‘Popular Vioegerenc
y’ should be
translated into action has been described clearl
y in the follow ­
ing :
“ They manage their affairs by mutual consu lta
tion’*.
(42 : 38)
Th is verse tells us the dis tin cti ve fea ture of
the Islamic
way of life , namely, tha t all the co llective affair
s are performed
by mutual co nsultation . From th e co nte xt
where this verse
occurs, it is ev ide nt tha t it is no t a mere sta tem
en t of fact but
an injunction and a command. In thi s co nn
ection Kh atib al-
Baghdadi quotes the follow ing from Caliph f Al
i :
“I said, ‘O Messenger of Allah 1 what sh ou ld we
do if,
after your demise, we are confronted with a pr
oblem about
which we ne ith er find an yth ing in the Qu
r’an nor ha te
anything from you* t He replied : ‘Get
togeth er the
ob ed ien t (to God and His Law) people from
amongst my
followers and place the matter before them
for consu lta­
tion. Do no t make decisions on the ba sis of the
opinion of
an y sin gle person’/ ’1
Po inting ou t the true sp iri t of co nsultation
, the Holy
Prophet (peace be on him) says ;
“ The man who giv es a counsel to his brother
knowing
I. Alual, Huh ul^ lu* uui.
 260 Th* Islamic Law and Constitution
full well that it is not right, does most surely betray his
trust’*.1
As regards the mode of consultation, it has been very
wisely left to the discretion of Muslims. Islam does not pres­
cribe any definite form for the formation of the consultative
body or bodies for the simple reason that it is a universal religion
meant for all times and dimes. I t does not, therefore, lay
down whether the people should be consulted directly or
through their accredited representatives ; whether the represent
tatives should be elected in general elections or through electo­
ral colleges ; whether consultative body should have one house
or two houses, eto. Obviously, these are matters of detail and
can vary with different societies and under different conditions.
That is why the Skari'ah leaves these problems open for solu­
tion according to the needs of the time. The following three
things, however, are essential in the light of the Qnr’anio verse
and the Traditions of the Prophet cited above :
(1) As no collective matter of the Muslims should be con*
ducted without consulting the people concerned, this
rule will apply in the very first instance to the appoint­
ment of the Head of the State. As such, it rules out
monarohy, despotism and dictatorship. Incidentally, it
does not permit the Head of the State to enjoy the
power suspending the constitution at hie will, for
. during the period of suspension he would be nothing
short of an autocrat.
(2) All the people concerned should be consulted directly or
through their trusted representatives.
(3) The consultation should be free, impartial and genuine.
Any consultation held under duress or temptation is in
reality no consultation at all.
Thus, whatever the details of the Constitution, these three
principles of the Shari'ah must be observed, and no loophole
should be left whereby anyone g6ts the opportunity at any time
to govern without consulting the people or their accredited

I Belated bi' Abu ifa ’ud.

 Fundamentals of Islamio Constitution 261

♦representative s Furthermore, the Islamic Constitution must

devise such a system of election as may enable the whole com­
munity to give their verdict without any tinge of fear, favour
or fraud.
0

V
Aa regards the qualifications of the Head of the State, the
Ministers, the members of the Consultative body and the
officers in general, the following instructions are found in the
Qur’an and the Sunnah :
The Holy Qur’an says :
(a) “ Verily, Allah Commands you to make over trusts
(i.e,, positions of responsibility) to those who are trust­
worthy”. (4 ; 58)
(t) As a matter of fact, the noblest of you in the sight of
Allah is the one who is most Godfearing” . (49 : 13}
The Holy Prophet (peace be on him) says :
(а) “ Your best leaders are those whom you love and who
love you and for whom you pray and who pray for
you, (while) your worst leaders are those whom you
hate and who hate you and whom you curse and who
curse you”.l
(б) “ By God, wo do not assign the affairs of our govern­
ment to any one who aspires for it or is greedy in
respect of it” .*2
(c) “ We consider the seeker after a post (of trust and res­
ponsibility) is the most untrustworthy.” 3
Not only the Qur’an and the Sunnah but also our history
testifies that Islam abhors the very idea of *a person seeking
after positions of trust’. Thus we are told by Qalqashandi :
“ It is related of Abu Bakr that he onquirod of the
. Messenger of Allah about appointments on posts of trust,
L R elated by M uslim.
2. R elated by Bukhari and Afeeftm.
3, Related by Abu D g'u4,
 262 Ths Isla mic Law and Constitution
He replied : ‘Th ey w e for tho se who do not aspire for them
and not for tho se who are greedy afte r the m ; they are for
tho se who run away from them and not for tho se who
scramble for them ; they are for tho se to whom they are
offered (withou t asking) and not for those who claim them
as their righ t’*.1
Alth oug h the instruction s contained in the above-m ention­
ed quotations are of a general nature and do not specify any
particu lar machinery of elec tion for bringing the right typ e of
people to the helm of affairs, it is the dut y of the con stitu tion ­
makers o f tod ay to dev ise practical means for putting these
injunctions into practice. They should evo lve suoh a system of
election s as would ensure the app ointmen t of only those who are
trustworthy and piou s, are loved by the people and are their
well-wishers. They should also dev ise effective measures to
defeat the designs and machinations of tho se who scramble for
posts of truth and are consequently hated and cursed by the ’
people in spite of their BO-called “ victorie s” in the elections.

VI
The Holy Qur'an Bays :
“ Men are in-oharge of women” . (4 : 34)
And in a Bad ith we have been told :
*
“ A nation tha t entrusts its affairs (of the Sta te) to a
woman can never prosper?*2
These injunctions of the Qur’an and the Sunnah categori­
cally declare tha t the posts of resp onsibility in an Islamic Sta te
(whether it be its pre side ntsh ip, min iste rsh ip or membership of
its legislature or the directorship of some department) cannot
be eutrusted to a woman.
In Islam there is a fun ctional distribu tion between men and
women and according to tha t the fields of politics and adm inis­
tration belong to the men’s sphere of resp onsibilities. There­

in Qalqashaiidi, Subh al-A'8 ha, Vol. T, p. 240.

2. Related by Bukhari,
 Fundamentalsof Islamic Constitution 263
fore it wilt not bo in keeping with the teachings of Islam to
drag women into these affairs. And to do so would bo clearly
against the lnjuctions of Allah and His Prophet (peace lie
on him)? z

The Qur’an states t h a t :

“ (Muslims are) those who, if Wo give them power in
the land, establish the systems of Salat (worship) and Zakat
(poor-due) and enjoin virtue and forbid evil.” (22 : 41)
Thia verae states clearly the aims, objeots and duties o f an
Islamio State. Unlike a Secular state, its duty is not merely to
maintain internal order, to defend the frontiers and to work for
the material prosperity of the country. Rather, its first and
foremost obligation is to establish the systems o f Salat and
Zakat to propagate and establish those things which are consi­
dered to be ‘virtues’ by God and His Messenger, and to eradi­
cate those things which have been declared to bo ’vice’ by
them. In other words, no state can be called Islamic if it does
not fulfil thia fundamental objective of an Islamic State. Thus
a state which does not take interest in establishing virtue and
eradicating vice and in which adultery, drinking, gambling,
obscene literature, indecent films, vulgar songs, immoral display
of beauty, promiscuous mingling of men and women, co-
education, etc. flourish without let or hindrance, cannot be
called an Islamic State. An Islamic Constitutio n must declare
the above mentioned objective as the primary duty of the
State.
V III
We have been told in the Qur’an :
“ 0 you who believe, obey Allah and obey His
Messenger and those from among yourselves who hold au-
1. As this is one of the m ost vexed problems of our age, the reader is
requested to study those works of the learned author which deal with
this problem in detail* The reader is particularly reforr n! to Purdah
'and the Status o f Woman in Islam by Maulana Mau du di, Published by
Islam ic Publication* Ltd,, Lahore.—Editor.
264 The Islamic Law and Constitution
thority, and if there is any dispute between yon concerning
any matter, refer it to Allah and the Messenger, if you
(really) believe in Allah and the Last Day* This is the best
course (in itself) and better as regards the result (4 : 59)
This verse enunciates three most important constitutional
principles
(1) Muslims are bound to obey Allah and His Messenger
individually and as a community, and this obedience
must be given priority to every other obedience. Con­
sequently, obedience to everybody else comes after this
and not before that, and it is subject to it and not
independent of it.
The following verses and traditions also support the same
point:
(a) “It is not for a believing man or a believing woman to
have a say in any affair when it has been decided by
Allah and His Messenger ; and whoever disobeys Allah
and His Messenger, he goes astray manifestly.0 (33 : 36)
(b) “ Thsoe who do not make decisions in accordance with
that whioh Allah has revealed are disbelievers . . . un­
just . . . transgressors/* (5 : 44, 45, 47) '
(c) “ A Muslim must listen to and obey the ruler whether
he approves of what is ordered ot abhors it, provided
he is not ordered to commit sin. In that case, he
should neither listen nor obey.”1*
(d) “Even if an ugly and deformed slave is elected as your
ruler and he conducts your affairs in accordance with
the teachings o f the Book and the Sunnah, you must
listen to and obey him.”a
(e) “There is no obedience in sin ; it is only in virtue.’*8
( f ) “ There is no obedience for those who disobey Allah.”4

1* Related by Bukhari and A M im .

2. Related by Muslim.
3. Related by Bukhari and Muslim.
4. Tibrani.
 Fun&me ntaU of M am ie Constitution KR5

(g) “There is no obedience to the Creature if it involves

disobedience to the Creator.” 1
The above-m entioned injunctions of the Qur’an and the
Sunnah definitely point out that in an Islamic State the legis­
lature has no right to make laws, the executiv e has no right to
issue orders and the law courts have no right to decide eases in
contrave ntion o f the teachings of the Qur’an and the Sunnah ;
and if they do so, the Muslims have no obligatio n to obey
them. Not only that, the fact of the matter is that if they
disobey them, they will bo perfectly within thoir right and will
not be committing any sin. Furthermore, if anything is proved
to be right in the light of the Qur’an and the Sunnah,. it cannot
be rejected by any judge or authority on the ground that it is in
conflict with any order of the Government of any law enacted by
the legislatu re. In such a case it is that order or the legislativ e
enactment which is in conflict with Shari'ah —and not the
Shari* ah—that should be declared ultra vires of the constitu tion
and set aside.
(2) Muslims alone can be the rulers in an Islamic State.
The verse (4 : 59) quoted above clearly layB down :
‘obey those from among yourselves who hold authority.’
It means that it is the Muslim rulers whom the Mus­
lims have been asked to obey. Moreover, in case of a
dispute between the rulers and the ruled both have
been ordered to refer the matter to Allah and His
Messenger and it is only a Muslim ruler who can agree
to refer the dispute to Allah and His Messenger.
In addition to this the tradition already quoted also
supports the above conclusion.
£ ’
Jn another tradition ‘Ubadah bin Samit relates that the
Holy Prophet took the following pledge from us :
“We will not dispute and fight with our rulers unless
we see signs of (such) open disbelief in their deeds which
may provide us with a justification from Allah (to stand

1. Shark al-Sunnah.
966 TAc Mamie Law and Constitution
up) against them.’11 >
Another tradition says that when the Companions asked
the Prophets permission to rise against bad rulers, he replied ;
%4No (you cannot rebel against them) so long as they

continue to establish Salat among you.’*12

After these clarifications, no shadow of doubt is left that
there is absolutely no Hoope for making any provision in the
constitution of an Islamic State for a non* Muslim to become a
ruler. And, as a matter of fact, to do so would be as irrational
and impracticable as would be a non-Communist’s becoming
the ruler of a Communist state or a Fascist’s becoming the
ruler of a democratic state.
(3) The verse (4 : 6&) also gives the people the right to
differ with their rulers. In that case, the verdict of
Allah and His Messenger is to be taken as final both by
the rulers and the ruled. This implies that there must
be some institution for deciding such disputes in the
light of the Qur’an and the Sunnah. But the Shari ah
does not prescribe any definite form for this purpose.
I t may be a body of ‘Ulamd or it may be in the form of
a Supreme Court. The verse demands that there must
be some institution for this purpose.3

IX
The Qur’an says ;
“ Lo ! Allah commandeth you to repose truth with the
trustworthy and when you judge between people, judge
justly.” (4 ; 58).
H Let not the enmity of any people. seduce you from

doing Justice (to them). Do justioe (in every ease) for it is

nearer to piety.” (5 : 8)
1. Related by Bukhari and
2. Related by Muslim.
3. Maul an a Maududi has preferred the Supreme Court aS the repository
of thi« authority. This is ckar from hit “ Constitutional Proposals”—
See Chapter X..—Editor.
 Fwn<la»«wtai» JafamiaCowtiiwiiw 207
'S •• • • • . - - • - \ • V• •

These versea enjoin the Masiima to dp justice individually

as well »a collectively,. Au Islamic State is, therefore, bound to 4

be just, for it is the most powerful institution for administering

justice among people. If there is no justice in its own affairs,
there can be no justice in the society in general.
The Holy Prophet (peace be on him) and his Rightly
Guided successors (Khulafa^^a^htdeen) also have impressed
the importance of doing justice between the people, as for
instance :
(1) Tn his well-known address on the occasion of his last
pilgrimage to Mecca, the Holy Prophet enijneiate.d
some fundamental principles of the Islamic State. Ono
of thorn was :
“ Most surely, your life, your property and your
honour are as aacrod as this day of Aajj (pilgrimage)/*1
This declaration o f fundamental human rights binds an
Islamic State to scrupulously safeguard the life, property and
honour o f all its citizens.
(2) At the aamo time, the Holy Prophet himself has
specified as to when this sanctity can be set aside. He
says :
(a) “ When people do this (that is, stand witnesses for the
sovereignty of Allah and the truth of Prophethood,
establish Saldi and pay Zakat). they will save their
lives from me the State) except when they commit
a crime against the law of Islam. Andas regards the
assessment of their intentions, Allah alone can be the
judge.”2
(d) “ Their lives and their properties are sacred to us
except when they violate the sanctity of the life and
property of others and Allah alone is the judge of
intentions.” 3

1. R elated by Hukhari and Afo.Zim

2. Ibid.
3. Ibid.
M8 Tfe M amie Law and Conetitviion
(c) "Then any one who recites it (the Kalimah of Tawheed)
is entitled to the protection of his life and property bo
long as he does not make himself liable for their for­
feiture before Allah’s (Law) and Allah alone is the
judge of intentions?’1
These traditions guarantee the sanctity of life, property
and honour within the limits of Islamic Law and though, in
their context, they refer to Muslims only, it is an agreed prinei-
f

pie of Islamic Shari'ah that all noh-MuHlims who live under the
protection of an Islamic State are entitled to the same civic
rights that the Muslims enjoy.
(3) As regards the procedure to be adopted for the admin^
istratio n of justice, tho Holy Prophet (peace be on him)
has laid down the following rule ;
"When two persons bring a dispute to yen for decision,
do not deliver a judgment unless you have given an equal
hearing to both of them.” 2
In a case decided by Caliph ‘Umar, ho makes the following
elucidation : |
“ According to the Islamic Law, none can be imprisoned
without {doing full) justice (to him).” 3
We learn from the details as given in Muwatta that, in the
newly conquered territo ry of Iraq, some people began to back­
bite and make false allegations against one another and in this
way, wore responsible for sending many persons behind the
bars. When such complaints were brought before the Caliph
4Umar, he passed the above order. It meant that no one could
bo imprisoned without a regular trial in a law court and without
giving him full opportunity to defend himself.
(4) When, the KharijiUs who did not believe in any stite,
rose in revolt during the Xhilafat of Caliph 'Ali, ho
wrote to them :

L Related by Bukhar i.
2. R elated by Abu Da’ud, T irm iti and
3. R elated by M alik, M uwatta.
 Fundamentals of Isla mic Constitution M9

“ You may live and mo ve about wherever you like

provided you d > not shed,blood or spread chaos and resort
to terrorism. But if you are gui lty of any of these, I will go
to war against you .” *1
This means tha t no action would be taken aga inst anyone,
whatever political ideas he might hold, so long as he does not
try to overthrow th© government by vio len t means.
From these details it mu st hav e become perfectly dea r tha t
the Islamic conception of jus tice does not at all allow tha t the
exe cutive be given the powers to arrest or imprison or exil e or
y
suppress the rights of belief, opinion, expression of any bod
withou t the due process of law tha t meets the end of justice .
Moreover, we learn from authen tic tra ditions tha t Islam
does not allow any differentiation or discrim ina tion between the
rulers and the ruled or the high and the low in matters of law
and justice. There is and can be one and the same law , the
same procedure and the same courts for all of them. Before his
demise, the Holy Prophet (peace be on him) presented his own
e
self for the satisfac tion o f any claim tha t any one mig ht hav
against him. Sim ilarly, Caliph ‘Umar forced Jabalah bin Aiham
a
Ghaseani, the ruler of a native stat e, to satisfy the claim of
common man aga inst him . He also categorically refused to
comply with the request of ‘Amr bin al-‘As for lega l safeguards
for the Governors. Not only tha t, he gav e to everyb ody the
t
righ t to sue in ordinary courts any Governor and the hig hes
officers of the Sta te.

. The Holy Qur’an says :

(a) <4In their wealth the beggar and the des titu te have
their due .” (51 : 19)
(b) "Pu rify them (of vice) and develop them (in virtue) by
taking Zakdt from their wealth and pray for the m” .
(9 : 103)
— yr -
1. lieL t tod by Sbu uka ni, N ail-a l-A uiar .
270 The Islamic Law and Constitution
• •*
The Holy Prophet says :
(а) “ Allah has made Zakat obligatory upon the Muslims.
It is to be collected from the wealthy among them and
distributed among their needy ones.” 1
(б) “The Government is tho guardian of any one who haa
no other guardian.”234
(c) “ If any one dies while he owes a debt and does not
leave behind any property for its payment, then the
responsibility for its payment is mine. But if any one
leaves any property behind, (the responsibility devolves
i^)on) his inheritors.”^
♦ ’ •
According to another tradition :
(d) Anyone who dies in the debt or leaves behind depen­
dants who arc in danger of becoming destitutes, they
should come to mo because I am their guardian.” *
In the words of yet another tradition :
(e) “ If anyone leaves behind property,- it will go to hii
heirs, but if anyone leaves behind some liabilities
(instead), the burden of their responsibility falls on us
ti e., the State) ;”5
A similar tradition is related by Abu Da’ud :
( / ) “ If a person leaves behind no inheritor, I shall be his
inheritor, both for paying off his liabilities and inherit­
ing his property.” 6
These verses and traditions clearly point out that one of
the major duties of an Islamic State is to establish the system
of Zakat and that it carries on its shoulders the responsibility
of providing for all those who are destitute and helpless.
L R elated by E uiA sri and Jdta/im.
2. R elated by Abu Da'ud, Tirmizi* I bn D arm i 9 -iMu^nad-9'Ahfnad>
3. Related by Bukhari and Mtwhm.
4. Ibid,
5. Ibid.
6. R elated by A M ,
 Fundamentals of Islamic Constitution 271

THE LAST WORD

We have presented, in the foregoing pages, some funda­
mental constitutional principles from the Qur’an and the Sunnah
for the benefit of those who are interested in the subject.
Now it is the duty of general Muslims to study them carefully,
from independent opinions of their own and say honestly whe­
ther or not these principles can form the basis for the Constitu­
tion of an Islamic State. We shall be thankful if anyone proves
scientifically and logically that these principles have nothing to
do with the Constitution of the State or points oxit any funda­
mental constitutional problems (not their details) for which no
guidance is available in the Qur’an or the StaHnaft. If, however
neither of these is possible, only the following two courses
remain open for all honest people. Either submit to the demand
for Islamic Constitution or say frankly : “ We do not recognize
the Qur’an and the Sunnah as the final authority.” To choose a
middle course between “ Jmtfn” and “K ufr” is neither honest
noT honourable nor fruitful in the long run.
 C h ap ter 8

Rights of Non-Muslims
in Islamic State

qu es tio n o f th e rig ht s of no n- M us lim s in an

TH E
am ic St at e ha s be en on e of th e m os t burning
Isl
in to being.
questions ever since Pakistan came
ued a ques­
In 1948 th e Constituent Assembly iss
of ex perts as
tionnaire to ascertain the op in io ns
of th e ge ne ra l pu bl ic ab ou t th e po sitio n of
well as
aududi has
m inorities in Pa kista n. Maulans M
ic view point
discussed th e pr ob lem /to m th e Is la m
ar tic le wh ich ap pe ar ed in th e Ta rjw nan
in th is
ur 'a * in its iss ue of Au gu st, 19 48 .— Xd ito r.
al-Q t
 RIGHTS OF NON-MUSLIMS
IN ISLAMIC STATE
I
discussing the rights of non-Muslims in an Islamic
State, it should be clearly borne in mind that an Islam ic
State is easoatially an ideological state, and is thus radically
different from a national state. This difference in the very
nature of thwe two types of states has an important bearing on
the problem under discussion, and can be best understood by a
comparative study of the following points :
(1) An Islamic State olassi­ (1) A national state classi­
flea the people living within fies its citizens into groups of
its jurisdiction in the light of people in accordance with
their belief or disbelief in the their belonging or not belong­
ideology which constitutes ing to the nation or race which
the basis of the State. In has established the State in
other words, the people are question or which dominates
divided into Muslims (who over it and is responsible for
believe in the ideology of the running it. Herein the torms
State) and non-Muslims (who ‘majority* and ‘minority’ are
do not believe in that ideo­ used for the two respective
logy). groups.
(2) It ie obviouB from the (2) The task of guidance
ideological nature of an Isla­ and policy-making in a
mic State that responsibility national state always remains
to run the State should rest in the hands of the majority
primarily with those who community. As for the mino­
believo in the Islamic ideo­ rity communities (whether
logy. Those who do not social, cultural or religious) of
believe in the ideology of the the same nationality, they e
State can, no doubt, be asked not trusted with nor deemtxi
to cooperst**, if they so like, capable of shouldering this
 Right* of Non-Muslims in Islamic State 275

with the Muslims in the task responsibility. This position

of administration ’ but they may not be explicitly declared
should be neither called upon or even admitted. Nay, the
to undertake nor can be en» constitution of the country
trusted with the responsibility may categorically abolish aU
of policy-making. discrimination* amongst the
citizens but that is what is in
vogue practically in every
national state. Even if any
member of the minority com­
munity is entrusted with auy
keypost, it is almost always a
subterfuge or as a special deal
with an individual. In reality
the minorities have nowhere
any say in important matters
of the State.
(3) An Islamic State, as (3) On the other hand, a
already stated , is by its very national state can and in prac­
nature bound to distinguish tice does follow the hypocriti­
between Muslims and non- cal policy equating all its
Mushms and it, in an honest citizens on paper and still
and upright manner, not only actually retaining the unfair
publicly declares this state of discrimination between the
affairs but also precisely majority and the minority.
states as to what rights will Nobody can deny the fact that
be conferred upon its non* the minorities are almost
Muslim citizens and which of everywhere deprived of even
them will not be enjoyed by their basic human rights in the
them. so-called modern national
states.
(4) To solve the problems (4) A national state, on the
•rising out o f the presence of other hand, generally adopts
non-Mutdims (» s., the people any one or more of tho follow­
ttot subscribing to the basic ing courses for the solution uf
principles o f tho State) within its minority problem ;
 276 T k h km ic law
its boundaries, an Islamic ( 0 to gradually destroy the
State guarantees them oertain separate entity o f the mino­
specifically state rights. Be­ rity community ;
yond those rights it does not (ii) to exterminate it physj.
permit them to meddle with oally by means o f genocide; or
the affairs of the State which (tti) to allow them to exist,
is based on an ideology to as untouchables.
which they honestly do not All these three methods
subscribe. Nevertheless, as have been and are still being
Islam does not believe in false largely employed by national
distinctions o f race, colour, states all over the world.
or territory, it always keeps Muslims o f India are now hav­
the door open for them to ing a very bitter experience of
ombrance Islamic principles this solution of minority
of life and become equal problem.
participants in all matters
concerning the State and the
government.
(5) An Islamic State is (5) Whatever rights are
bound to ooufer all those actually granted to the mino­
rights on its non-Musliaj rity under a national state,
citizens which have been con­ depend on the sanction of the
ferred upon them by the Isla­ m ajority. Thus the fate of
mic Shari'ak. No one has the the minorities depends on
right to effect the slightest the whims and caprices of
curtailment in them 1 . Mus­ the majority who always
lims have, however, been has the power to cartail them
empowered to confer upon and even to deprive them at
them additional rights subject will o f even the fundamental
only to their not being repug­ human rights.2
nant to the teachings o f Islam*

1. Hence the word "Ztmmi" which literally means •*gus ran toed
2. Foreign reviewers and oritios have particularly criticised this U is w -
siozi over the approach and policy of a national state and have
described it as inaccurate and even **burlesque.**
 Rights aj ffon-ifiuNmi In ItlomZe State 9 ft

These Are poin ts o f distinction show very clearly how

Islam trea ts it* non-Muslim subjects and how a national state
trea ts its racial and cultural min orities. H these distinctions
are ignored, one cann ot escape falling a prey to many a mis­
understanding due to the hypocritical pretensions of the
present'day national state s of gran ting equal righ ts to all
a
But this criticism of theirs is totally unfounded, The description
of national minorities givon by the author is based on most authentic
sources. We would refer the learned critics to 399 C. A. Macartney ,
National States and National Ah’norttfer, wherein the author, on unim­
peachable evidence, describes the fate of national minorities in
national state s. He obse rves:
"A national state and national mino ritie s are incom patibly
Whore fate has put a natio nally conscious minority in a state , there
are only three poss ible solutions and (although few government hr.
lieve this) forcible denationalization is not one of them. Per Imps
fourth should bs counted physical slaughter : but al though this effective
of all remedies is still in vogue in certain countries, it shall not be dis­
cussed here. The three poss ibilit ies which can be considered arc ;
either the theoretical basis and exisi ting populations may ho left
untouched, but the frontiers may be revised in such a way as to leave
tho alien elem ents outside them ; or the bases of the 8tate may be
retained, and its frontiers left intact, but the mino rities may ba oli-
ruinated byem igration (perhaps through exchange of popu latio n); or
thirdly, existing population and frontier® may be retained, but the
baftis of the State may be alter ed” (p. *28)
This is the theo retic al position, but in practice, the second (».«..
elimination by migration) and the fourth (».«., physical extermination)
remedies have usua lly been adopted. An idea of the position of mino­
rities can be had from the following extract from the above-quoted
book of Prof, Macartney who acted as Secretary to cho Minorities
Committee of the League of Nations :
“ Tho minorities say : Our charter of liberties is thus blatantly in­
adequate, It represents only a fraction of our minimum needs. But
even those have been made a dead letter, our Governments have vio­
lated their treaties again and again. They have deprived ua of our
land, our schools, our churches, and th© League lias let them do it. It
has winked at flagrant viola tions of the Treaties. It has put us off
with mealy-mouthed resolution s about our duties...The mere fact
[Conld.
♦
278 TAt Manne Law oM CaaMtaUaa

o itise u of the State on paper on the one hand and leaving none
o f them unviolated in practice on the other.
We now revert to the problem under consideration.

II
THE CLASSIFICATION OF NON-MUSLIM
CITIZENS
The Islamic Shari1ah divides its non-Muslim citizens into
three categories, vis.
(a) Those who become the subjects of an Islamic State
under some treaty or agreement ;
(b) Those who become its subjects after being defeated by
the Muslims in a. war, and
(c) Those who are there in the Islamic State in any other
way.
So far as the general rights of non-Muslims (t.e., the funda­
mental human rights) are concerned, all are treated alike,

Mint from the inauguration of the League procedure up to February

1931 no less than 525 petitions had been submitted to the League
(excluding those submitted under the Upper Silesian procedure)
indicate no l.e.-.Ity state of things...... It is, moreover, notorious that
certain of the minorities whose case has been the most di3 0 al have
b«en afraid to petition the League at all for fear of incurring reprisals
...the subject-matter of the petitions which have been received ranges
from comparatively trivial cases of insulting words to cases of rap.
ing, torture and murder ; from injustices inflicted on individuals to
the systematic oppression of communities hundreds of fhousands
and even millions strong (pp. 381-394).
The author admits in clear words th a t:
"Genwilly speaking, the fate of minorities has been one of suffer­
ing. Almost every state has committed, and every minority suffered
under, flagrant violations of the Minority Treaties, And these have
boon committed, to all intents and purposes, with impunity ,” (p»
390). (Emphasis mins)
Other authorities can also be quoted in support of the bitter facts
presented above—Editor.
 Rigkto of N<m-Muslims m Mamie State X79

However^ the respective instruction! relating to the first two

groups being slightly different from eaoh other as well as from
those concerning the third group, we propose to deal first with
the specific instructions relating to groups (a) end (6) before em­
barking upon a discussion on the general rights of all Zimmit.

“ Coutractees”
For those who accept the hegemony of an Islamic State
without or even during a war, and enter into a Bpecifio contract
with it* Islam prescribes that all matters relating to them
should invariably be decided in accordance with tho terms pf
the treaty or agreement* To offer generous treatment to oppo­
nents in order to persuade them to lay down arms and then to
throw them overboard, is the everyday practice of all the so-
called civilized nations of the world ; but it militates against
tho injunctions of Islam which cannot brook such deception.
Islam considers such feats of strategy as fraudulent and mean
and prohibits them totally. It enjoins that once the terms have
been settled with any group or community, they must be fully
adhered to, even if the-v seem to be distasteful later on. *Iu3-
lima are bound by their faith to abide by them and to carry
them out in letter and spirit. The Holy Prophet (peace bo ou
him) has clearly enjoined :
“ If you fight against a people and overpower them, and
they agree to pay a fixed indemnity or annual revenue
(kharaj) to you in order to save their lives and 111930 of
their progenies, then do not take a penny more than the
fixed amount, because that will not be valid,”12

(i.e., “ contractees”) or curtails their rights, or burdens

them with more than they can endure* or realise anything
from them against their f.ee-will. I shall myself be a
complainant against him on the Day of JudgementV2

1. Related by Abu Da.'udt The Book of Jih&dy

2. Ibid,
280 The Islamic Law a * t Conritatfto*
Those injunc tiers of the Holy Prophet (peace be bn him)
clearly and unambiguously proclaim that no arbitrary change
or alteration is permissible in the terms and conditions o f any
agreement that is entered into with the Zimmis. Neither can
the amount of their annual levy bo arbitrarily increased nor
their lands and their buildings be confiscated against that agree*
merit. Besides that they cannot be subjected to undue and harsh
treatment and their religion and their personal law shall remain
immune from state interference. Their Jives, honour and pro­
perty are as sacrod as those of tho Muslims. Their rights cannot
be curtailed, nor can they be tyrannized. They are not to be
deprived of their lawful belongings, nor made to bear a burden
which is beyond their capacity.

Thus, in the case of the contracts* non-Muslims the funda­

mental principle is that the relatione between them and the
Islamic State shall be based on the terms o f the agreement. As
such no specific laws have been formulated by the Muslim
jurists in regard to the treatment to be meted out to them
except laying down the general rule that such non-Muslims
should be treated according to the terms o f the agreement or the
treaty that might have been entered into. Imam AbQ Yousuf1
writes :
“ We shall take from them only what was mutually
fixed at the time of peace-making. All terms o f the treaty
shall be strictly adhered to and no additions would be
permitted.”2
The “ Conquered”
People who continue to fight against the Muslims till they

1. Imam Abu Y ousuf was one of-tho greatest Jurists of lel&m. Ho wee
the Chief Juelice o f the Abbas id empire during the reign of Harun
al-Reshid. He was the chief disciple o f the groat legist, Imam Abu
Hanifa and he has been regarded, throughout Muslim history. as an
authority on Muslim Law. Hie great work, K itab al-Kbarty is counted
as one of the sou roe-book s on the Hanaflto law.—Editor.
2. Abu Yu,usuf, KiAib al-Kharoj, Cairo, p, 35,
 Rights of Non-Muslims in Islamic State 281

are overpowered and lay down arms only when Muslim armies
have entered their cities and towns as conquerors, come under
this second category. When such people are made Zimmis, they
are given oertain specific rights, details of which oan be found
in all the standard books on this subject. Here we state briefly
all those relevant injunctions on this point, which explain the
constitutio nal status of Zimmis belonging to thia category :
(a) As soon as the State accepts Jizyah from them, i t be­
comes the obligatory responsib ility of every Muslim to
protect their lands and properties and their life and
honour. The acceptance of Jizyah establishes the sanc­
tity of their lives and property, and, thereafter, neither
the Islamic State nor the Muslim public have any right
to violate their property, honour or liberty. ‘Umar,
the second Caliph, clearly enjoined Abu *Ubaidah, the
Commander-in-Chief of Islamic armies, as follows :
“The moment you accept Jizyah from them you forego
the right to take liberties with them or with their
properties.”

(5) After the agreement the Zimm* continue to enjoy the

ownership of their properties and their heirs have full
rights of inheritance in it. They possess full power of
sale, transfer, grant and mortgage in respect of all such
properties and the Islamic State has no right to dis­
possess them of any of these rights.
*
(c) The amount of Jizyah is to be fixed in accordance with
their financial position. Those who are rich have to
pay more, while those who belong to the middle class
pay less, and the least amount is charged from the
poor class. Those who are destitutes and do not have
any fixed source of income or depend on others for
their livelihood , are completely exempted. No fixed
amount has been proscribed for Jizyah, and it has been
enjoined that only that much should be taken which
does not involve undue hardship in payment. Caliph
2*2 TAe M am ie Law and Oonrtitntion
4 Umar in bit time, fixed the amounts which were equi­
valent t o rupee one12 per month for the rich people,
fifty paisas per month for the middle classes and only
t twenty-five paisas per month for the poor*
(d) Jizyah is levied only on those who have actually
fought against Muslims or who are able-bodied and can
participate in a war against Islam. Noncombatante like
women, children, lunatics, blind, lame, age-stricken or
physkaHy disabled persons are exempt from Jizyak.
Similarly the clergy, the monks and the servants of the
monasteries are exempt therefrom.)
(e) Muslims do have right to confiscate the places of
worship in such towns as have been taken by storm.
But to forgo this right willingly and to allow such
places of worship to remain intact as a gesture of good
will, is generally held to be more pious. In all the
countries conquered in the days of Caliph 'Umar, not
a single place of worship was ever desecrated or inter­
fered with. Abd Yousuf writes :
“ All such places of worship were left as they were.
They were neither raxed to the ground nor were the
conquered deprived of their goods or property”.3
Ancient places of worship are never permitted to be des­
troyed.

Ill
GENERAL RIGHTS OF THE ZIMM1S
We will now discuss those rights of the Zimmis which cover
all the three groups categorised above.
The blood of a Zimmi is considered as sacred as that of a

1. A rupee ie approximately equal to 4.S pence and there are 1U0 paisas
in a Rupee,—Editor.
2. 8©e: Kamaluddin Ibn Ham roam, Fatk al-Qadir and Abu Yousuf, KitaZ>
ol.K haraj,
3. AbS Yousuf, I bid.
 Rights of Non* Muslims in Islam ic Slats 283

Muslim. If a Muslim kills a Z im m i,retribu tion and rest itution

frill hare to be made just ae for killing a Muslim, A Muslim
killed a Zim mi in the day s of the Holy Prophet (peace be on
him).
The Holy Prophet ordered his execution sayi ng:
1
° I am responsible for obta inin g redress for the weak”.
In the days o f Caliph ‘Um ar a person of the trib e of Bakr
bin Wa’il killed a Jfftmwii of Hi rah. The Caliph ordered that
the murderer be handed over to the kith and kin of the deceas­
ed. This was don e and the successors o f the deceased executed

During the reign of ‘Uth man , the third Caliph, an order

was issued for the executio n of Obaidullah, son of Caliph ‘Umar
because he was said to have killed Hurmuzan, the assassin of
‘Umar and the daughter of Abu Lulu under the impression that
they had conspired to murder his illustrio us father. Both of
them were Zim mis.
In the day s of *Ali, the fourth Caliph, a Muslim was accus­
ed of murdering a Zim mi. The oharge being proved, ‘Ali
ordered the executio n of the Muslim. The brother of the de­
ceased subm itted , how ever, that he had forgiven him . But ‘Ali
was not satisfied and that perhaps the people had threatened
him . It was only when the brother of the deceased sought
pardon for the murderer, persisten tly insis ting that he had
received the blood-m oney and that the deceased would not
return to life by the execution of his murderer, then and only
then did *Ali gave his oonsent ta release the murderer and said :
“ Whosoever is our Zim mi his blood is as sacred as our own
and his property is as inviolab le as oiir own property/*
In another reference, ‘Ali is reported to hav e said : “ They
have accepted the position o f Zim mis on the explicit under­
stan ding that thei r properties and their lives will remain sacred
like those of ours, t.«., o f the Muslims)”.
Tha t is.w hy the Muslim jurists have inferred that if a

L Shau kani, Nail al-A uiar t

 384 TAe Islam ic Law and Constitution
Muslim, even unintentio nally , kills a Zimm i similar compensa­
i
tion must be paid as is fixed in the case of the unintentional
murder of a Muslim.
Zimm is and the Criminal Law
The Penal Laws are the same for the Zimm is and the
Muslims and both are to be treated alike in this regard. The
Zimm is are subjected to the same penalties as are the Muslims.
Thus, for instance, whether, it is a Zimm i who steals or a Mus­
lim, the hands of the thief will be chopped off in both cases.
Similarly, whether it is a Zimm i or a Muslim who levels an
unproved charge of adultery again st any male or female, the
same punishment would be meted out to both. The punishment
or adultery is also the same in both cases. In the matter of
drink ing wine, however, the Zimm is are exem pt from punish­
ment.1*
Civil Laws
The Civil Laws, too, are the same for both the Zimm is and
the Muslims. There is thus oomplete equality between them in
this respect. In fact, this was exact ly what 4Ali meant when
he said that their properties are as sacred as are the properties
of the Muslims. A natural corollary of this equality of status
is that whatever restrictions are placed on the Muslims under
the Civil Laws, the same are applicable to the Zimm is.

Whatever objects, forms and means of tT&de are prohibited

for the Muslims, the same are also prohibited for the Zimm is.
For instance, interest is unlawful (haram) for the Muslims and
similarly it is unlawful for the Zimm is. But in the case of
drinking wine and eating pork the Zimm is are free to take
them . They can prepare, drink and deal in wine and they can
also rear, eat and sell pigs. Not only that, if any Muslim harms

1. Accor ding to Im am M alik, th e Zinwn is are exem pt from th e punish ­

m ent for adulte ry also. He infers th is from the decisi ons pf 'U m ar
and ‘Ali which lay down th a t if a Zim m i comm itfl adulte ry hie case
should be referre d to his co-rel igioni sts,
 Rights of Hon-Muslim 8 in Islamic State 285

or destroys their liquor or their pigs, he will be made to pay

compensation for that loss. According to the Durr al-Mukhtar :
"If a Muslim spoils the wine of a Zimmi or harms his pigs,
he will have to pay for them’*.1
Protection of Honour
To assault, injure or abuse a Zimmi or even to backbite
him is considered just as immoral as is doing such things in
respect of,a Muslim, According to the'Islamio Law :
“ It is imperative for Muslims to refrain from causing in­
convenience to a Zimmi and to backbite him, for backbiting .a
Zimmi is as muoh prohibited as is to backbite a Muslim”.2
a

The Inviolability of Guarantees

The responsibility which Muslima take upon themselves in
respect of jion-Muslims, has an abiding value and they are not
permitted to break the bond. But the Zimmis have, on the
contrary, the right to renounce it as and when they like.
According to the Muslim legists, so far as Muslims are concern-
ed, the responsibility of Zimmis if once accepted becomes obli­
gatory and it oanuot be forsaken. But for the Zimmi a, it is
discretionary, if they desire to forego it, they can do so.3
A Zimmi may oommit the greatest of crimes and yet it
will not disqualify him from being treated as a Zimmi. Even
if he refuses to pay the Jizyah or kills a Muslim or abuses the
Holy Prophet (peace be on him) or attacks the honour of a
Muslim woman, he will not be considered to have lost his right
of protection. He will only be punished for the crime he com­
mits but he will not be declared a rebel, nor deprived of the
privileges accorded to him as a Zimmi. There are only the

1. Alaaddin, al-Mukhtar. It is an authentic collection of the

judgments /uni fatwas (verdicts)- of the Ilanafi school of thought.—
Bditor,
2. ^ ia u d d in , Durr dl-Mukhtar.
3. Alauddin Abu Bakr bin 6a‘ud al-Kusdui, Bad di' al-Bandi*; a souroo-
book of the Hnnafi school of Islam ic Law,—jRWifor.
286 Tbs Islamic Lan and

following two erime8 which deprive the Zimmis of their right

to protection, namely :
(1) When they leave the Muslim State and go over to it*
enemies, and
(2) When they openly revolt against the State and try to
overthrow i t
Personal Law
Ail personal matters of the Zimmis are to be derided in
accordance with their own Personal Law. The corresponding
law of Shari'ah are not to be enforced on them. If anything
is prohibited for the Muslims in their Personal Law but the
same is not forbidden to the Zimmis by their religion, they
will have the right to use that thing and the courts in the
country will decide their cases in the light of thsir Personal
Law. For instance, marriage without witnesses and without
fixation of Mshr (dower money) or marriages within the period
of 'Iddal^ or marriages in contravention of consanguinity , if
permitted in the Personal Law of the Zimmis z will be allowed
to stand. Thia has been the rule of all Muslim Governments
since the dayB of the early Caliphs, ‘Umar bin’ 4 Abd al-*Aziz
once asked for Jalwa in thia respect from Hasan al-Basri,
saying :
“How is it that the Caliphs left the Zimmis free in the
matters of marriages regardless of consanguinity and in the
matters of drinking wine and eating pork 1”
Hasan replied :
tCThe Zimmis accepted to pay Jizyah only because

they wanted to be free to live in accordance with their

own Personal Law. You have only to follow what your
predecessors did. You are not to deviate or to innovate”.
But if from amongst the Zimmis both the parties request
that their disputes be derided in the light of the Islamic

1. T his period is norm ally four m o n th s and ten. days. Tn the case of pre­
gnancy, it exten d s to and expires. on do!ivory.
 ate 2S7
Righte of N on -M utlim s in M am ie St
la m ic Co ur ts w ill en fo rc e th e Sh ar i'ah on them .
Shari'ah, th e Is
in a m at te r of Pe rs on al La w, on e of th e pa rtie s is a
Further, if
e ca se w ill ha ve to be de al t w ith in aooordanse w ith
Muslim, th
h. Fo r in sta nc e, if a Ch ris tia n woman
th e Islam ic Shar i'a
us lim an d be co m es a wi do w, sh e oa nnol be pe rm itt­
marries a M 1Id io t. If
th e ex pi ry o f th e fu ll pe rio d o f
ed to marry un til
m ar ria ge wo ul d be re ga rd ed as nu ll and
she do es so, such a
vo id .1
Religions Rites
an d pr ac tic e re ga rd in g th e pu bl ic perfor­
The Is la m ic Law
lig io us ri te s an d co m m un al fe st iv al s by th e Zim m te
mance of* re
In th ei r ow n to w ns an d ci tie s, th ey are
are equally generous.
to do so w ith th e fu lle st fr ee do m . In purely Muslim
allowed
2 3 ve r, an Is la m ic G ov er nm en t ha s fa ll discre­
ha bita tio ns, howe
re st ri ct io ns on th ei r ob se rv an ce as it deems
tion to put such
necessary.
In Badai' it is sa id :
ie s no t co ve re d by th e te rm 'p ur el y Muslim
“ In lo ca lit
*, th e Zi m m it wi ll no t be st op pe d from selling
habitations
po rk or fr om ta ki ng ou t pr oc es sio ns of th e Cross or
wine or
no he s, al th ou gh th e nu m be r o f M uslim in ­
from blow in g oo
er ein m ay no t be ne gl ig ib le . Th ese matter#
ha bita nt s th
we ve r, be co ns id er ed ob je ct io na bl e in to w ns and
will, ho
wh ich m ay be te rm ed as 'p ur ely Muslim habitation*
places
er e Fr id ay an d *l d co ng re ga tio ns ar e he ld ” .
i.e ., th ose wh
rd in g ac ts wh ich ar e pr oh ib ite d by their codes
“ Rega
fo r in st an ce ad ul te ry , th ey ar e to be restrained from
also ,
ev en w ith in th e lim its of th ei r ow n to wn s
co m m ittin g them
8
and ha bi ta tio ns ”.

1. Al-Mah rut t Vo l. V, pp* 88-40. of th e tec hn ica l term

us lim ha bi ta tio ns ” lb a tra ns lat ion
2. “P ur ely M rd co nn ot es ha bita­
mr ar al- M vr lim in .” Th is wo
of th e Shari*ah "A
ne d by M us lim s an d co ns ec ra ted for de m on str at in g
tio n on lan ds ow
m ic way of lif e.
th e glo ry and su pr em ac y of th e Is la
nai*, Vo l. V ll, p. TI3.
3. Alaud din Abu Bakr, Badfii' at-Sa
288 The Islamic Law and Constitution
And even in purely Muslim cities and towns, they are only
restricted from taking out public processions of the Cross and
of the idols and from openly blowing conches in the markets
and along the roads. Within the boundaries of their own. places
of worship, they can perform all these rites and no Islamic
Government will interfere therein.1
Places of Worship
Even in purely Muslim areas, the non~Muslim places of
worship built in the past are not to be interfered with, and if
they are damaged or destroyed, the Zimmis have the right to
rebuild or repair them. But they are not entitled to build new
places of worship in these areas. In places which are not purely
Muslim area, there is no such restriction on them. Similarly,
in those cities and places which may have previously been
purely Muslim areas, but have ceased to be such areas and
where Friday and ‘Id congregational prayers and enforcement
of hudud are no longer in vogue, the Zimmis can build new
places of worship and demonstrate the performance of their
religious rites,23
Ibn *Abbas has said :
MIn towns founded by the Muslims, the Zimmis have

no right to build new places of worship or to blow conches

in the market or on roads or to sell wine or pork openly.
But in cities originally established by non-Muslims and
only subsequently conquered by the Muslims, the right of
the non-Muslims will be decided in accordance with a treaty
and it is obligatory on the Muslims to abide by it” .5
Concession in the Realisation of Jizyah and Kbaraj
The use of violence and coercive methods in the realisation
of Jiyzah or Kharaj is prohibited and kindness and benevolence
are enjoined in this respect. It is also forbidden to impose

1. Sharah aV Siyaf oh K a tin Vol.*III* p. 25 i.

2. A i M V ol. V II, p. 114 ; BiUrdA aWJiyar abK abir, V ol. I l l , p. 557,
3. Abu Youflus, K i lab ttf-K karttj, p, 8S.
 b
Rights of Non-Muslims in Islamic State 280

" amounts which may bo beyond their means. Caliph ‘Umar had
clearly ordered that they should not be made to pay more than
what they could actually afford.12
And even for that are not to be put to any undue in con*
venienoe. Thus, their properties cannot be auctioned in case of
failure to pay Jizyah. Caliph 'Ali himself directed one of his
governors not to auction or sell their apparel or cattle for the
realisation of Kharaj* On another occasion he gave the
following instructions to one of his governors at the time of
deputing him for hi a office :
“ Their winter and summer apparel, their utensils and
agricultural implements and their cattle should not be sold
to realise Kharaj, nor should anybody be beaten or kept
standing in the sun, nor should any of their properties be
auctioned for this purpose. Now that we have been made
their rulers wo should treat them with mildness and
lenienoy. If you disobey these orders of mine, God will
take you to task for it, and if I learn of your disobedience,
I shall remove you from office’*.3 45
In the realisation of Jizyah also, every form of coercion is
strictly forbidden- In his directive to Abu ‘Ubaidah, the
Governor of Syria, Caliph 'Umar said that Muslims should not
be permitted anyway to harm the Zimmis or put them to in­
convenience or illegally deprive them of their properties
When, during his journey to Syria, Caliph ‘Umar learnb/of
governor’s punishing the jSiwttnw for non-payment of Jizyah, he
said :
“Do not chastise them, for if you do bo, God Almighty
will do the same to you on the Day of Judgment”-3
Hisham bin Hakam found a Government officer punishing
a Qibli for failure to pay Jizyah by making him stand in the

1. Jdtd., pp. 8, 32.

2. Fath al-Bayan, Vol, 4, p. 93.,
3. Abu Yousuf, K ita b al-K h araj, p. 9,
4. Ibid,, p. 82.
5. Abu Y ousuf, K ita b a b K h a ra j p, 71.
 290 The Islamic Law and Constitution

sun. He scolded him and Mid :

“ I have heard the Prophet (peace be on him) saying
that God will chastise (in the Hereafter) those who chastise
human, beings in this world* \ 1
In regard to the defaulters of Jizyah, the Muslim Jurists
have permitted the awarding o f only simple imprisonment as a
corrective measure.2 3
Those Zimmis who become bankrupt, are not only
exempt from the payment of Jizyah, but are entitled to
help from the Bait al-Mal (State Exchequer). Khalid bin
Walid, in his famous “Covenant of Peaoe” given to the
people of Hirah, wrote :
I have stipulated that if any one of them becoi M L -
unfit to work on account o f old age or some other cause, or
if anyone who was formerly rich becomes so poor that his
co-religionists have to support him by giving him alms,
such parsons will be exempt from paying the Jityah and
they, together with their dependents, will be helped from
the Islamic Treasury (Bait al-Mal)” .*
Once Caliph 'Umar noticed an old Zim m i begging in the
streets. He asked him as to the reason for doing so. The
Zimmi replied that he did so in order to be able to pay the
Jizyah, whereupon the Caliph exempted him from its payment,
sanctioned a pension for him and directed his Treasury Officer
in the following words :
“ By God, it zb undoubtedly not just that we derive
benefit from a person in the prime of his youth but leave
him to beg in the streets when he is stricken with old
age” . 4 5
During his journey to Damascus, Caliph ‘Umar ordered
the fixation of pensions for the invalid and the aged ZimmisS>

1. Abu Dffc’ud, K ita b ul»Khur*qjt Baah al-Fae* wa at-Itnarah.

2. 2M4., p. 70.
3. ZMd., p. 85.
4. Ibid., p. 72 ; Fath al-Qadir, V ol. 4, p. 273.
5. Futuh al-Buldan (European udilton), p, 129.
 Rights of Non-M uslim s in Islam ic S M s 291

I f any Zim m i disc leavin g arrears o f Jiz y a h , those arrears

canno t be realised from the property he has Left nor can they be
olaimed from his successors. Abu Yous uf writes :
° I f any Zim m i has to pay Jizya h and dies before pay­
ing it, the same will not be realisable from his succeMora
12
nor from the propo ty left by him” .

Trade T ax
Zimm i traders also have to pay a trade -tax as is charged
from the Muslim traders on trade goods oi the value o f X)0
dirhams or more or i f they own 20 miihgals or more o f gold.*
No doub t, in the begin ning, the Juris ts levied 5% trade -tax on
Zim m i basinem-m en whereas only 2 was realised from the
Muslim trade rs. Thia was, however, not on the basis o f any
Qur’anic injun ction but solely on the exige ncies of time. The
position was th at Muslims had been most ly busy in the defence
o f the country and business had almo st entir ely passed into the
hands o f the Zimtn is. The tax was reduced in the case of
Muslim traders only to enoourage and prote ct them from undue
comp etitio n.
Excm ydan from M ilitar y Service
Zim m is have been exem pted from milit ary d u ty, because
the defence o f State again st its enemies has been made the res­
ponsibility of its Muslim popu lation only. Evide ntly only
those people who believe in the basic ideology of the State
sincerely can and should fight for its protection* A gain, only
the believers in that ideology can be expected to honour the
moral principles whioh have been prescribed by Islam for war­
fare. Other s can fight for it only as mercenaries and, conse ­
quen tly, they canno t be expected to observe the Islam ic ethic al
code in the heat of the battle . These are the main reasons

1. Abu Y ousuf, K ita b a l-K ha raj, p. 70 ; Vol* X , p, SI.

2. Z 6id.,p . 70. B ut thia ceiling for trade goods or owner ship can be
revise d. I t was fixed w ith respec t to the condi tions preva iling at th©
tim e.
 292 The Islam ic Law and Constitution
why the Zimm is have been exem pted from military service and
have only been enjoined to pay their monetary share in the
defence of the State . Jizya h is thus not only a symb ol of
loyalty to the State but it is also the contributory compensa­
tion for exem ption from military service, and that is why it is
imposed only on males, capable o f military service. When-
• * •
•
ever Muslims are unable to prote ct the Zinw iis, the Jizya h and
Khar aj that migh t have been realized from, them , have to be
returned.1 At the time of the battl e of Yurmuk, when the
Romans gathered huge armies to fight again st the Muslims and
the Muslims had to forego their occupation of most of the towns
of Syria in order to concentrate at a single poin t. Abu ‘Ubaidah ,
the Commander-in-Ohief, ordered his subordinates to return the
Jizya h and the Khar aj already realised from the Zinm is and to
inform them that as the Muslims were unable to prote ct them ,
they were returning whatever they had realised from them. It
need hardly be added that all officers prom ptly did so. Balazuri,
describing the reactions of the non-Muslim popu latio n of these

1. For a detai led discu ssion on thia subje ct refer to ; Mabaul, Vol. X,
pp. 78-79 ; Ha (lay a, Kitab al-Siy ar fi Kaifl yat Qitma l al-Gh waem and
Boat al~Ji*yah ; Fath al-Qadirt Vol. IV, pp. 827-28 and pp. 369-70.
It shoul d, however, be remem bered that if the Zimm is offer their
Services volun tarily in ease of war, the persona doing so will be ex ­
empt ed from paym ent of Jityah . Furth ermo re, the fact that should
also be kept in view in this respect is that the obno xious ness that the
non.-Muslims gener ally feel by the very mention of the term Jizya hi
is the resul t of persistent, basel ess propaganda that the antag onists
o f Islam have been carry ing on for the last so many centu ries. As a
matter of fact there is absol utely no basis for this feelin g. Jizya h iff
the consi derat ion for the prote ction and the safegu ard o f their rights
that an Islam ic State guara ntees to the nun-M uslim s. Then , this is
realis ed from the Rblo-bodied adult raak.i only. The people who mis­
chiev ously call it ‘a fine for not accep ting Islam *, can be pertin ently
asked : what name will they give to Zaka which is charg ed from all
adult Muslims—m ales as well as fem alos—and the rate of which is
much highe r than that o f Jizya h ?■ Is that the 'fine for accep ting
Islam 1 T .
 IWpAfa of Non-Muslims in Mamie State 293
towns, writes that when the Muslims refunded the amounts of.
Jizyahin Hums, the people unanimously declared :
“ We prefer your Government and its keen sense of
justice to the cruelty and injustice of our own co-religionists
and we are not going to allow their agents to enter the
gates of the city unless we are overpowered by them”.1

IV
MUSLIM JURISTS AND THE Z IM M IS
In the foregoing pages we have briefly disoussed the details
of some of the laws which were adopted to protect the rights
and privileges of non-Muslims in an Islamic State. Before
proceeding further we wish to stress that under all Muslim
governments since the days of the Righteous Caliphs, whenever
any injustice were perpetrated on the the Muslim
Jurists stood up with one voice to champion their cause and
they emphatically condemned all such acts of high handedness.
A well-known event of history is that the Umayyad Caliph
Walid bin ‘Abd al-Malik had forcibly incorporated a portion of
a Cathedral in Damascus into bis mosque. When ‘Umar bin
’Abd al-‘Aziz became the Caliph, the Christians reported thia to
him and he at once wrote to the governor of the province to de­
molish thoBe portions of the mosque which stood on the land of
the Cathedral and to hand it over to the Christians.2
Walid bin Yazid, fearing a Roman attack, had exiled the
Zimmi of Cyprus to Syria. Muslim Jurists and the Muslim
publio protested strongly against the measure and condemned it
as a great sin ; so much so that when his son Yazid bin Walid
became Caliph, he had to send back all the exiles to Cyprus, for
which he was highly praised both by his friends and foes.
Isma'il bin ’Ayyash has mentioned this. He says :

1. F uluh al-Buldan (European ed.), 137,

Ibid., p, 132.
294 TAe Islamic Law and Constitution

“ Muslims in general dissociated themselves from this

act and ail well'known Jurists declared it to be a great sin.
And when Yazid bin Walid became Caliph and sent them
back to Cyprus, Muslims generally . approved of it and
praised him for being just and good**.12
Balaauri tells us that once some of the hill tribes of Lebanon
rose in revolt against the State. Thereupon, the governor, Saleh
bin f AIi bin 'Abdullah, despatched an army to crush it and the
army put all the male combatants o f the revolting band to
death. As for the citizens, he exiled some oi them and allowed
the remaining to live there. Imam Auza'i was alive in these
days. When he learnt of it he reprimanded Saleh vehemently. *
The following extract from the letter that he wrote to him
speaks for it s e lf :
“Zimmis of the hi 11-tracts of Lebanon have been exiled
and you know the fact. Amongst them are men who had
not taken part in the revolt. I fail to understand why
common people should be punished for sins of particular in­
dividuals and be deprived o f their homes and properties.
The Qur'anic injunction is quite clear that ultimately every­
body will have to account for hia own actions and nobody
shall be held responsible for anybody else’a actions. This
is an eternal and universal injunction, and the best advice
therefore, that I can give to you is to remind you o f one of
the directives of God’s Prophet (peace be on him) that he
himself will stand up as complainants against all such
Muslims who are unkind to those non-Muslims who have
entered into an agreement with them and tax them beyond
endurance”.*
History is replete with countless instances of the same
nature, which go to show that Muslim Jurists—the same people
who are now-a-days oalled “ Mulla”—have always stood for the
rights o f ZimmiS) and if at any time the rulers dared to be cruel
to them, they ia well as all the 'UlamU o f the age invariably

1. .FutuA ol-Jta&tm, p« 156.

2. IMd., p. 169.
 Sights of Non-Muslims in Islamic State 295
stood up to defend the rights of the Zimmte and to condemn
such action in the strongest possible verms.

V
ADDITIONAL RIGHTS AND PRIVILEGES
So far we have referred to those inalienable
■
rights which
must necessarily be bestowed upon the Zimmis by an Islamic
State, as they have heen conferred upon them by the Islamic
Shari'ah t Muslima are not entitled to ourtail them in any way
whatsoever. They are, however, permitted to grant them other
rights and privileges to an extent that is not repugnant to the
spirit or the commandments of the Shari* ah.
Here we attempt to lay down some additional rights that
may be granted to the non-Muslim subjects of an Islamic
State :
■
(I) Political Representation
Let us take the matter of elections first. An Islamic Govern­
ment is an ideological Government. Therefore it cannot afford
to indulge in the deceptive measures which are commonly
employed by secular national states with regard to the rights of
national minorities. \ The Head of an Islamic State is bound by
law to conduct the administration of the State in accordance
with the Islamic principles and the primary function of Shura
(Council) is to assist him in doing so. It is thus obvious that
those who do not aocept the ideology of Islam as their guiding
light cannot become the Head, of the Islamic State or the
members of the Shura (Council).
However, in regard to a Parliament or a Legislature of the
modern conception, which is considerably different from the
Shura in its traditional sense, this rule could be relaxed to
allow nomMuslims to become its members provided that it has
been fully ensured in the constitution that :
(i) It would be ulira vires of the Parliament or the Legis­
lature to enact any law which is repugnant to the
. Qur'an and the Sunnah.
296 TAe Islamic Law and Constitution

(tt) The Qur'an and the Sunnah would be the chief source
of the public law of the land.
(m ) The Head of the State or the assenting authority would
necessarily be a Muslim.
With these provisions ensured, the sphere o f influence of
non-MusIim minorities would be limited to m attenfrelating to
the general problems of the country or to the interests of
minorities concerned and their participation would not damage
the fundamental requirements of Islam.
It is also possible to permit the sitting up of a separate
representative Assembly for all non -Muslim groups in the
capacity of a Central Agency through which all the demands for
their collective needs may be submitted to the Parliament.
The membership and voting rights of such ah Assembly will be
confined to non-Muslims and they would be given the fullest
freedom within its framework. Through this agency :
(a) they may exercise the right to propose law in connec­
tion with their Personal Law and the amendments
thereto. All such proposals and amendments could be
placed on the Statute-Book after receiving the assent f
of the Head of the State ;
(b) they may submit representations, objections, sugges-
tions etc., with the fullest freedom in regard to the
general administration of the Government and the
decisions o f the Parliament. The Islamic Government
would be bound to consider them sympathetically and
justly ;
(c) they will be allowed to raise questions with regard to
matters relating to their specific groups as well as the
problems affecting the State as a whole. A representa­
tive of the Government may always be there to furnish
replies to all such questions.
(2) Freedom o f Expression
In an Islamio State all non-Muslims will have the same
feeedom^of conscience, o f opinion, o f expression (through words
 Rights of Non*Muslima in Islamic State 297

spoken and written) and of association as the one enjoyed by

the Muslims themselves, subject to the same limitations as are
imposed by law on the Muslims. Within those limitations, they
will be entitled to criticise the Government and its officials,
including the Head of the State.
They will also enjoy the same rights of criticising Islam as
the Muslims will have to criticise their religion.
They will likewise be fully entitled to propagate the good
points of their religion and if a non-Muslim is won over to an­
other non-Ialamio creed there can be no objection to it. As
regards Muslims, none o f them will be allowed to ohange creed.
In oase any Muslim is inclined to do so, it will be he who will
be taken to task for such a conduct and not the non-Mualim
individual or organization whose influence might have brought
about thia change o f mind.
The Ziiwmis will never be compelled to adopt a belief
contrary to their conscience and it will be perfectly within their
constitutional rights if they refuse to act against their con­
science or creed, so long as they do not violate the law of the
land.

(3) Education
They shall n urally have to accept the same system of
education as the G ermnent may enforce for the whole country.
As regards religio education, however, they will not be com­
pelled to study If m, but will have the right to make arrange­
ments for impart g knowledge o f their own religion to their
children in their own schools and colleges or even in the
National Universities and Colleges.
(4) Government Service
With the exception of a few keyposts all other services will
be open to them without any prejudice. The criteria o f compe­
tence for Muslims and non-Muslima will be the same and the
most competent persons will always be selected without any
discrimination.
298 The Islamic Law and Constitution
A list of keypostB can be easily drawn up by a body of
experts. We can only suggest as a general principle that all
posts connected with the formulation of State policies and the
control of impo rtant departments should be treated as keyposts.
In every ideological state , such posts are invariably given only
to such persons who have the fullest faith in its ideology and
who are capable of running it according to the lette r and the
spirit of the ideology. With the exception of these keypoata,
however, all othe r posts will bo open to the Zimmis. For
instance, nothing can debar them from being appointed as
Accountant-General, Chief Engineer or Postm aster-General 'of
an Islamic State ,
Likewise in the army, only the posts relating to actual war­
fare should be treated as keyposts, while other appointments,
not directly connected with the conduct of war, can be thrown
open to the Zimmis.
(5) Trade and Profe ssion

In an Islamic State , the doors of industry, agriculture, trade

and all other professions are open to all, and Muslims have no
special privileges over non-Mualims in this regard, nor are the
non-Muslims dabarred from doing that Muslims are perm itted
to do. Every citizen, be he a Muslim or a non-Muslim, enjoys
equal rights in the field of economic enterprise.

VI
THE LAST WORD
It is necessary to emphaeize before closing the discussion
that an Ialamio State ie bound to give to the non-Mualim citizens
whatever rights Islam prescribes or perm its, regardless of what
rights and privileges are given to or withheld from Muslima in
the neighbouring or othe r non-Muslim state s. Islam does not
believe in the faot that Muslims should draw up their social or
economic policies only with reference to the policies of non-
 Bights of Non-Muslims in Islamic State 299
Muslims, nor does it tolerate that if non-Muslims act unjustly,
the Muslim states should make thoir innocent non^Muslim sub­
jects the victims of wrath and vengeance* Islam has its own
definite and clearly-defined ideology and Muslims have to
observe its code to the best of their ability. Hence, whatever
we give, we shall give with an open heart. Moreover, the rights
conferred upon the non-Muslims by the Taiam io State shall not
be simply meant to adorn the statute-book but it shall be
the duty of the State to translate them into actual
practice.
It is hardly necessary to stress in the face of the above
facts that the establishment of an ideological Islamic State is
the greatest guarantee for non-Muslims in Pakistan. Then, and
then alone, can that vicious oirole of injustice be broken which
ia unfortunately going on in India with full vigour. And only
in this way can Pakistan become the harbinger of truth and
justice and show the right path to India also. The pity, how­
ever, i s - that many non-Muslims of Pakistan who have been
paying heed io distorted interpretations of Islam and have been
experiencing its perverted practice, feel greatly perturbed when
they hear of the establishment of an Islamic State in this
country. .Not knowing the true facts, some of them start
raising slogans th at a Secular Republic like the one in India
should be established in Pakistan. Is it not surprising that
they insist on making an experiment which has already borne
bitter fruits in India ? Is that really something pleasant
enough to be coveted ? And, would it not be more reasonable
to try and test a system of life based on godliness, honesty and
observance of unalterable ethical principles than to follow one
that has been tried and found wanting 1
 Chapter 9

The Problem of Electorate

MUSLIMS in our country havo always stood for

Separate Electorate. It wai unfortunate that a
question which was settled long ago, was reopened
and as a result of political machinations it assumed
great importance. Maul ana Maududi discussed the
pros and eons of the problem in an article which
was published in 1955. The artiole xs being given
in the following pages.—Editor.
 R O B L E M O F E L E C T O R A TE
THE P

in g w ith co ns tit ut io n- m ak in g has

IJ lH E continuous dilly-dally st fruits we
’fr ui ts ’. A nd on e of th e bi tte re
started bearing le m s de fy in g all
th er to ex is tin g pr ob
find in the. form of the hi nu m be r of new pro­
tio n an d an in cr ea si ng
attem pts at th ei r solu
g of time.
blems oropping up with th e passin
es w hi ch ha d al l al on g be en ta ke n for
Not only th at th e issu . The la te st
e no w be in g di sc us se d af re sh
granted as settled, ar te w hi ch had up till
is th at of se pa ra te el ec to ra
instance in point n in th is sub­
by un an im ity of M us lim op in io
now been sanctified nt roversy and
it ha s en te re d th e re al m of co
continent. B ut now lim s also have
ou ps fr om am on gs t th e M us
debate, as certain gr ra te.
es in fa vo ur of th e jo in t el ec to
expressed themselv
is a m os t de pl or ab le st at e of affairs. B ut
This, indeed ,
n ha s to fa ce it , th e m er e ex pr ession of
since th e entire natio is an objective
t su ffi ce . W ha t is ne ed ed
grief and pain will no al ua tio n of th e
le m an d an un bi as ed ev
analysis of th e prob n an d a ve r­
th e tw o sy st em s of el ec tio
m erits and dem erits of en ta l slogans and
as on ra th er th an se nt im
dict based on re
political catch-words.
Some Pertinent Questions
a so un d co nc lu si on , w e m us t take into
To arrive at
er at io n th e fo llo w in g fo ur qu es tio ns :
consid op po se d to th e
e M us lim s so bi tt er ly
Firstly , why were th gi m e in the
te du ri ng th e B ri tis h re
system of jo in t, electora N at io na l Congress
nt in en t w he n th e In di an
Indo-Pakistan sub-co na lis m ? And
th e ba si s of te rr it or ia l na tio
was advocating it on po litical situation
ange s ha ve oc cu rr ed in th e
vhat radical ch d ac ce pt s thing
an ge th ei r de ci si on an
vhich may make them ch
hey had opposed all along ?
 The Problem of Electorate 303

Secondly, we should consider quite independently on the

merits of the case, which system of eleotion—joint or separate —
is more suitable foT a country whose population is composed of
a number of elements differing from one another in respect of
religion, culture and mode of social life 3
Thirdly, can there be any practical consideration, any sub*
stantial national expediency which may make the introduction
of joint electorate desirable 1 What are the practical benefits
that may accrue from its introduction and would they be accept,
able to the people or not 1
Lastly, what practical results are expected to follow in the
wake of the introduction of tho system of joint electorate and
what are the merits and demerits of the system of separate
electorate.
The following is a brief discussion of some aspects of these
pertinent questions:
Why Now ?

What the protagonists of joint electorate can say in regard

to the first question is that the system of joint electorate was
wrong and unacceptable to Muslims in undivided India because
they were a minority the Hindus who were in an over­
whelming majority, and thus they were bound to suffer if the
system of joint electorate was introduced. But now Muslims
are in a majority in Pakistan and the non-Muslims are a mino«
rity and thus the system of joint electorate will be to the
advantage of the Muslims.
. The protagonists of the joint electorate cannot defend it on
any other basis. This means that they hold sheer “expediency”
as the criterion of right and wrong.
A
A thing was wrong yesterday merely because it was detri­
mental to Muslim interests, just because it was Inexpedient. But
today they are prepared, nay, they insist, to adopt it because it is
consistent with their alleged national interests !
No doubt, these people have every right to unveil their
character and tho working of the irown mind. But in it or was
■304 Isla mic Law and Constitution •

it ever the nation al mind o f the Muslim s 1 Was this the ir line
of thin kin g in pre-partition days ? Did the general Muslims’
minds mo ve in these overt grooves i We are confident tha t the
Muslims neither subscribed to this view in the past nor hold
the view -po int tod ay. Our nation al psy cho logy has neither
been bo corroded in the past nor is it by the grace of God so
polluted tod ay.
Their rejection of the Congress stan dpo int was not merely
because its adopt Bn would have led to cata stro phic results for
the Muslim minority inh abiting the Ind o-P akistan sub-continent
but prim arily because the very idea that geography was the basis
of nationhood was not acceptable to them. It was incompatible
with their fundamental creed, their culture, their social philosophy
and their traditions.
Ths history of this very sub -con tine nt knocks the bottom
out of the idea of territorial nation alis m. Innumerable Hindus
of India embraced Islam many centuries ago and aa soo n aa
the y did this , the y cut off all their affinities with the Hindu
soc iety in spite of the fact tha t the se con ver ts to Islam and
the ir former kith and kin belonged to the same race, expressed
themselves in the same language and live d on the same terri­
tory . On the contrary, Muslims coming from various distant
countries were soon absorbed into the loca l Muslim soc iety
despite geographical, racial and ling uistic differences. They
become one with the local converts— members of one Islamic
fratern ity. .
All this was not just a mere acc iden t. It was the resu lt of
. a peculiar concept of ideo logical nation hood and of the centur*
ies old trad itio ns of Muslims—a concept and trad itio ns which
out accross all barriers of race, colour and language.
It was due to these factors tha t Muslims star ted demanding
separate elec tora te as soon as dem ocratic inst itut ion s were set
up in the sub -con tinent. They trampled the Congrossite one-
nation theory under the ir feet and rejected the system of join t
electorate which was intended to weld all the com munities in-
 The Prob lem of Elec tora te . 300

habiting Hin dustan into one nation. And it was a product of

this very nationa l consciousness that they ultim ately came for­
ward with their demand for Pak istan in spit e of the fact that
they wore not unaware that it would enta il trem endous saorifioe
in life and property.
The only change that has occurred due to partition is that a
new oountry has appeared on the map of the world com prising
of Muslim-majority areas. But it is obvious that this political
change has in no way altered the foundations of nationhood. And
how can one believe that this politica l change has so radically
affected the nationa l psychology as to make the nation succumb
to the concept o f territorial nationa lism which was an anathem a
for them just a few years back !
Dlsi ntegr ati ng Factors
Now we mov e on to the second question. It is evid ent that
the system of join t elec tora te is feasible only in a country differ­
ent sections of whose population differ from one ano ther only in
deta ils and not on fundamentals.
But everyone will acoept that religious creed/ moral valu es,
concept of life and patterns o f culture and civi lisat ion are not
matters of secondary importance. They are of prime and funda­
mental significance. Moreover, when these different sections
hav e been separated* from each othe r to Buoh an exte nt that
their social spheres have become tota lly different and dist inct ,
the consciousness of separate nationhood is bound to deve lop
and thrive.
To make such vary ing sections of population of a country
vote together can never be held as prudent and proper. For
this would mean the assumption o f a unit y that does not exis t.
This unfounded assu mption cannot change the throbbing facta
and realities ; it cann ot weld these dive rgen t elem ents into one
organic whole.1

1. It would be instr uctiv e hero to remind tho render of wha t Quutd-e-

Azam Muhammad AU Jinn ah said abou t this issue . In a spee ch in
[con id.
 306 The Islamic Law and Constitution
Despite this baseless and unwarranted assumption of
national unity, the factors that separate them will still be there
and will continue to work as before. Every community will still
be overwhelm ingly inclined to vote for the members of its own
community* The majority community will be satisfied as it
will succeed, to its heart’s content, in getting its own people
elected. If the minority is numerically weak in every constit­
uency. it will be deprived of representation altogether. And
this will lead to their perpetual unrest and discontent. And if
the minority is a little powerful, it will start bargaining with
the minority which, in turn, will generate worst tendencies and
lead to bitter discord and an endless conflict.
All this will result in bringing to the fore a group of mor­
ally depraved people pickforked into power by intrigues and
conspiracies, and who will, in fact, represent none. And this
will demolish the very basis of democracy. Instead of adopting
this erronoous and ill-conceived method, based on a false and
baseless assumption, will it not be better and wiser to face
facts, to recognise the differences that do exist and to confer
upon every community the right to elect its own representatives
who can beat represent their view-poin t ? No one can deny that
this method is more natural, more reasonable and more just.
The Diversity
As for the third question, the only practical advantage
that the protagonists o f joint electorate may claim for that
system is that it will suppress the feelings of separation and
diversity, reduce the distinctiv e characteristics o f these hetero­
geneous elements and ultimately transform them into one
nationhood.
November 1946 he declared
"W e (the Hindus and tho Muslims) are different in everything . We
differ in our religion, our civilization and culture, our history, langu­
age, our architecture, music, jurisprudence and our society, our dress
r—in every way we are different—we cannot get together only in the
ballot-box” —Editor.
 The Problem of Electorate 307

B ut our point of view is that we are not desirous o f elimi­

natin g the distin ctive features o f the different comm unities of
Pakis tan. We ere not at all keen to destroy their separate
entity and coerce them to submerge their cultu ral indiv idual ity.
And even i f somebody considers this objec tive desirable, the
method suggested for its achie veme nt is absolutely wrong,
The fundamental factor that has divid ed and separated
various sections of people in our count ry is the difference of
religion. I t is religion that has raised a huge wall that sepa­
rates Muslims and non-M uslim s. I t is th ii that has given them
different principles o f condu ct, different objec tives o f life,
different values o f mora lity and different modes of living . I t is
religion alone that has separated their social orbits and has
divid ed them into separate comm unities.
One effective method o f removing the factor s that divid e
them can be to absorb the non-M uslim s in the Muslim
comm unity .
Howsoever desirable this end may seem, we should not
stoop down to political machinations to achie ve it. I f somebody
has a liking for the Islam ic ideolo gy, he can embrace the
brotherhood o f Islam and bocom e a part and parcel o f our
natio n. B ut i f he does not agree with the Islam ic ideology, he
has every right to do so and we shall still be prepared to
confer upon him hie rights as a non-M uslim citize n of our
country. We are firmly of the view that resorting to the use
of crooked means for the attain ment o f such an objec t is un­
fair and un-Is lamic and should be condemned by all fair-m inded
people.
The only other course that remains to unify and integrate
these diver se comm unities is to relegate religion and faith into
the lumber-room of insign ifican ce, to destroy religion as the
main facto r shaping culture and civiliz ation and foster a com­
mon secular culture s the basis o f Pakis tani Natio nalism .
I f this be the end, joint electorate is definitely a step forward
to this direction.
 308 fAe Islamic Law and Constitution
»

Bat in this case the next step—a step that most follow—is
to frame a secular constitutio n, which will lead to a still fur-
ther step—to let religion live by suffer anoe and remain strictly
oonfined to the narrow domain of beliefs and devotional
practices and even to enoourage intermarriages between diffe­
rent communities in order that Pakistanis may not remain
divided into separate societies which eventually divides them
into separate nationalities.
Is this the object of the protagonists of joint electorate I
If this is their objective, they should at least have the moral
courage tQ say it frankly.
But this may be the view of a few secularists. As for the
millions of Muslims o f Pakistan) they have nothing but con­
tempt for it. Because, if this was what the Muslims wanted,
what was the harm in a United India (Akhand Bharat) 1 What
was tho need of offering a heavy price of life and property for
the establishm ent o f a separate state 1
Dangerous Consequences
Now we come to the last question and would like to deline­
ate the practical results of introducing joint electorate. It is
certain that this will lead to the growth of two separate nation­
alities on territorial foundations and thia will prove suicidal
for the integrity of Pakistan.
We should not forget that it is tho religious spirit alone
which was responsible for the partition of this sub-continent,
and it is the religious spirit alone that has made the two
regions which are separate from each other by a distance of no
less than a thousand miles, the parts of one single country.
Race, geography, language and mode of living—none of these
factors can unify them. The only unifying factor is the religion
o f the majority which initially led to the establishm ent o f this
State and which alone can work as a unifying factor.
The day the religious spirit and consciousness o f the people
are cooled down and people Login to feel in terms of any other
linguistic and cultural differences are bound to gain strength
 The Problem of Electorate 309

and momentum* If this happens, none can stop the growth of

Bengali nationalism in East Pakistan and the same will happen
j n West Pakistan,
Thus the notion that the issue o f separate electorate is just
a matter of choosing between two systems of election, is fallaci­
ous and deoeptye. This, in fact, is a matter of life and death
for the State of Pakistan.
If we want to keep the two wings o f the country joined
togethor, the only course can be to keep the consciousness o f
Muslim nationhood alive and fresh and to further strengthen
and foster it by establishing the Islamic system of life. And it
is obvious that this necessitates the introduction of the system
of separate electorate.
But if, on the contrary, we are keen to tear the integrity of
Pakistan into shreds, the introduction of joint electorate will
definitely be an effective step in that direction.
This will strengthen, in both the geographically distant
wings of the State, the consciousness o f territorial nationhood
at the cost o f Islamic fraternity. And, as this feeling will grow
in strength and intensity, Muslims of the two different areas
who have nothing common except religion, will be driven
farther and farther away from their own brother«in*faith and
nearer to the people belonging to their own territory who have
almost every factor common with eaoh other except religion/
The Case for Joint Electorate Considered
Now let us have a cursory glance at the arguments advanc­
ed by the protagonists of joint electorate.
Firstly, the claim that when the minority community is
itself insistent on the introduction of joint electorate, there is
no reason why the majority should shun it. Does this mean
that Muslims are suffering from some sort o f fear-complex, the
fear of Hindu domination which is unf ounded in view o f the
superior numerical strength of the Muslims !
Secondly, due to separate electorate we find a strong block
of Hindu members in East Pakistan Legislative Assembly and
 310 The. Islamic Law and Constitution
whenever there is an internal dissension in the ranks o f Muslim
members, they hold. the balance of power in their hands.
Separate electorate will only prepetuate this unfortunate state
o f affairs.
Thirdly, the system of separate electorate will perpetuate
the division of the country into separate nationalities, although
the integrity, solidarity and progress of Pakistan are dependent
upon the consciousness belonging to one nation.
Fourthly, if the two-nation theory is to hold good even
after the establishment of Pakistan, the Hindus of Bengal may
well say : *If you consider us a separate nation, then give us a
separate national homeland.’ Will this ‘just/ and ‘fair’ demand
be acceptable to us ? And if we turn down this demand, will
we not be only demonstrating our moral bankruptcy as we have
ourselves achieved our own homeland on this very ground 1
The four arguments quoted above exhaust the entire stock
of arguments of the protagonists of joint electorate.
So far as the first argument is concerned, both the founda­
tions on which it rests are extremely weak. It rests on two
wrong assumptions : (1) that the Muslim majority of East
Pakistan demands separate electorate out o f fear-complex and
(2) that the Hindu minority is exposing itself to a number of
risks, inherent for it in the system of joint electorate, just out
o f love for the greater good of the country.
We have already thrown light on the causes o f Muslims*
insistence on separate electorate. As for the Hindus, their
keenness for joint electorate is the outcome o f their desire to
fan the fire o f Bengali nationalism in Bengal, to sabotage the
Muslims’ aspirations to make Pakistan an Islamic State and to
put Pakistan along the road to secular democracy, and last, but
not the least, to use Muslims from behind the scenes lor the
fulfilment of all their designs.1
The Hindus who were most influential in Bengal during the
British rule have realised the futility o f the method of direct

1, See Appendix Vadito*,

 TAs Problem of Electorate 311

and open work. Now they want to Bit behind the screen and
pull wires. They know that those Muslima who are elected with
the backing of Hindus will be far more useful and effective for
the achievement of their aims than the Hindus thems elves.
These are the reasons which have prompted them to come
out with this stunt of joint electorate and therein lies a formid ­
able danger to Pakistan.
The second argument has no weight unless we presume
that the unity among the Hindus of Bengal and dissen sions in
the ranks of Muslims will persist as a permanent featur e of
Bengali politic s. Will those of our Muslim brethren who are
so vociferous in their demand for joint electorate, let us know
as to why this state of affairs should continue to persis t in the
future ?
As for the third argument, we have already dealt with it
earlier in this article.
With reference to the last argument, we have to point out
that had there been any considerable area in Bengal which
could be made the national home of Hindu s, it would have
already gone to the share of India at the time of partition.
Now there is no area which the Hindu s may legitim ately
demand. If the members of a oommunity are in a major ity in
some small town or sub-district, can any sane person demand!
on this basis, that comm unity ? .
This brief discussion brings us to the conclusion that joint
electorate is totally opposed to the needs of our country and
our people and the system of separate elector ate alone is in
consonance with the ideolo gy and n
 Chapter 10

Some Constitutional Proposals

(Subm itted to the F irs t Constitue nt Assem bly o f Pakistan)

In 1952, Constitution* ma king entered its moat

cruoial stage. The various Sub "Committees had finalis­
ed their reports and the blue-print of the Constitution
was being given the last touches.
At that moment, Maul ana Maududi put forward
some very concrete and elaborate Constitu tional pro­
posals. These proposals were drafted in August 1952
and were submitte d to the first Constitu ent Assembly
of Pakistan . This ia a very, importa nt essay and
throws a flood of light on the oontents of the Con­
stitution which the Islam-lo ving people demand for
Pakistan . An idea of the detailed provisions of an
Islamic Constitu tion can be had by a thorough study
of this artiole.— Editor.
 SOME CONSTITUTIONAL PROPOSAL S

T the very outset, we wish to declare in the clearest possi­

ble terms that our first and foremost concern is to
make Pakistan a truly Islamic State, For this purpose, either the
mere insertion of the Objectives Resolution in the Preamble of
the Constitution, nor the inclusion of an article in the Directive
Principles to the effect that no legislation will bo made against
the Qur’an and the Sunnah, nor even the formation o f a Com­
mittee of ‘Ulama for consultative purpose (but not having a
final voice) in oase of disagreement as to whether particular law
is or is not against the Qur’an and the Sunnah, will serve that
purpose-
This purpose cannot be achieved unless a provision is made
in the body of the Constitution itself that no legislature, Central
or Provincial, shall have the power to enact any law which
conflict with the teachings o f the Qur’an and the Sunnah.
Moreover, there should be a specific provision in the Constitu­
tion that every citizen will have the right to challenge in the
Supreme Court any law passed by a legislature on the ground of
its being repugnant to the teachings o f the Qur’an and the
Sunnah and therefore ultra vire* o f the Constitution.
I

In addition to^hese provisions in the body of the Consti­

tution, the following should be included as the Directive
principles ;
(1) All the existing law of the land shall be. brought in
conformity with the Islamic Shari'ah with a prescribe
ed period which shall not exceed 10 years in any
oase.
(2) Moral training in acorodanoe with the Islamic principles
and standards of conduct shall be made compulsory for
all services: Centra], Provincial, Military and Civil
and all that is not in tune with the Islamic teachings
 Some Const iiutio M l Proposals ‘ 315

and the tenets of Islamio ethic s should be strictly

excluded from that train ing ;
(3) All the departments of the State shall prov ide for their
Muslim personnel every facility necessary for the
observance of the oblig ation s prescribed by Islam and
all the hindrances in this respect shall be banished root
and branch ;
(4) The Government shall estab lish and prom ote all that
is good according to Islam and suppress and eradicate
all that is evil according to it and the polioy o f the
State and its execu tion by the Government in its
various spheres o f activ ity shall be moulded and man­
aged in a way that fully conforms to the Islam ic way
of life, both in letter and in sp ir it;
(5) The system of education shall be go reformed as to
. enable the Muslims to get their moral and intellectua l
train ing in strict accordance with the Islam ic ideology
and all that is again st that ideology shall be eliminated
there from ;
05 (0) The Government shall comp lete, within a prescribed
time- limit, not excee ding 10 years, all the necessary
arrangements for takin g over legal respo nsibility to .
provide every need y citizen with the basic necessities
of life, viz., food, cloth ing, hous ing, medical aid and
education.
Fundamental Rights
The Constitution of an Islam ic State must guarantee fund a­
mental rights to all citize ns. In this conn ectio n, we regret to
note that the report on fundamental rights prepared by the
Fundamental Righ ts Com mittee and passed by-th e Constituen t
Assem bly in 1950, was a gross and flagrant viola tion o f Islam ic
tenets and clear ly betrayed the evil desig ns of those who hold
the reins of powers. If the members of the Constituent
Assem bly still oontinue to adop t the same attitu de towards
these rights, it will not augur well for anyb ody in this country.
316 TAe Islamic Law and Constitution

In order to gain the real co-operation and good-will of the

people and to make Pakistan a really peaceful and prosperous
State all the citizens must be guaranteed—of course, within the
limits of law—the following fundamental rights -—
(а) Protection of life, honour and property ;
(б) Freedom of thought, expression, belief and worship :
(c) Freedom of movement throughout the country •
(d) Freedom of assembly and association;
(e) Freedom o f adopting any profession or occupation and
the right to own, acquire and dispose o f property ; and
( / ) Equality of opportunity in all walks of life and equal
right o f benefiting from all public instruct ions.
In addition to these rights, the Constitution should further
guarantee that :
“ No citizen of the State shall be deprived of the fun­
damental rights without his guilt being judicially establish­
ed in an open court of law according to the common law of
the land'*.
Without this guarantee nobody can feel secure Against the
high-handedness of the executive and the feeling of constant
insecurity capnot but breed discontent and even hatred against
the Government itself- This, in its turn, will be most dangerous
and harmful for the largest interest of national solidarity and
sincere co-operation between the Government and the people.
We, therefore, have no hesitation in declaring that if our
Constitution-makers try to take away or abridge or limit these
Tights, they will be guilty of causing discontent and disruption
in the country and it will be an unpardonable act o f perfidy, on
their part, towards the people and the State of Pakistan.
Preventive De ntention
As for the reservation of the power of "preventive deten­
tion” for the executive, we opposed this when the Basic Princi­
ples Committee’s Report was published in I960.1 We still stiok
to that position and are definitely of the opinion that these
powers, in the form in which they were proposed in the Report,
l» Abul A 4 la Maududi, DotioQfi Bifarithal par TanqMd, Lahore, 1950.
 Some. Constitutional Proposals 31?

ar© a complete violatio n not only of Islamic Jurisprudence but

also of the fundamental principles and common notion of justice.
Anyhow, if the Constitu tion-ma kers of this country insist on
the power of preventive detentio n being granted to the Execu­
tive, they should not do so without the followin g provisions :—
(1) Every law (whether an Act or an Ordinance) enacted
under the powers of preventive detentio n must clearly
define the offences that it seeks to prevent ;
(2) Every person arrested under this law must be produc­
ed before a court of law and a definite charge brought
against him ;
(3) The Executive should not be given the privileg e of
withholding any piece of evidenc e considered essential
by the court for giving its decision on the charges made.
Mere satisfac ti on of the Executive should in no case be
a ground sufficient for the detentio n of a citizen.
Only a court of law, if satisfied as to the guilt of a
person, should have the power to order detentio n ;
(4) The person so accused must be afforded every reason­
able faoility and opportu nity to prove hia innocence ;
(5) A court of law and not the Executi ve should have the
right to decide the period o f detentio n ;

(6) No extensio n of the period of detentio n should be

allowed.
In this connection one is impelled to say that it is most
cruel to detain a person for consecu tive periods of six months ;
his detentio n being extended after every term by another term
on the very day on which he and his near and dear ones expect
his release, This revengeful method is so mean that no gentle­
man could have invented it. If some member of the Consti­
tuent Assembly do not realise its meanness today, a time might
come when they themselves may learn it through personal
experience. Moreover, the way that the term ‘’emergency” has
been exploite d by our rulers in the past few years of indepen-
318 The Islamic Law and Constitutio n
dtmoe, oonatraius us to urge in the strongest possible terms
'hat the Executive should in no ciroumatancea be allowed to
possess the power of suspending either the fundamental rights
or the writ of Habeas Corpus. The maximum allowance that
can be made in this respect is that in ease o f actual war,
rebellious persons who are charged with high treason, conspi­
racy against the State or armed revolt may be tried in camera.
But the power of detention without judicial trial or of suspen­
sion of fundamental rights or of the writ o f Habeas Corpus,
should in no case be granted to the Executive. And let it be
known at this very moment that i f any such attempt is made
in our Constitution we are determined to resist it with all the
force at our command.
The only excuse advanced by or on behalf of the rulers of
the country in favour o f these powers is, that if "saboteurs ’3
and "disruptio nists” and "spies" and "agents o f the enemy"
are tried in open oourts, the state-secrets which Government
intends to guard through their arrest and detention, will be*
oome known to the enemy and this would defeat the very pur­
pose for which such action is taken. The hollowness of this
argument can be exposed by a cursory look at the list and the
type of people so far arrested and detained under these powers.
Moreover, even leaving aside this aspect of the matter and
taking the argument at its face value, the following two
pertinent questions remain unanswered ;—
(1) If state secrets do not become known to the enemy
while they are in the knowledge of the police, the
C.I.D. and the Home Department, why does the
' Government apprehend that they will leak out as soon
as they oome within the knowledge o f our Courts 1
(2) Does the Governmen t mean to imply that the person­
nel at present presiding over the courts of Pakistan
consists mostly of spies or agents of the enemies and
they are so keen to transmit the secrets of the State
to them ? Are the judges and magistrate s of Pakistan
 ifome Oonsiiiu iiondl Proposals 319

really leas reliable, in the eye s of the Government than

the personnel of the police and the C.I .D. t
JIM

It is the independence and imp artiality of the judiciary

which ensures the internal peace of a cou ntr y and the tran quib
lity of its people. No am ount of rights and privile ges written
in the Con stitutio n can giv q^h e people any satisfac tion if the
oourts, owing to the interference o f the people in power are
not free to adm inister unfettered justice. As the ver y existen ce
of a Sta te depends on the con ten tme nt of its people, the
following pro visions must be specifically made in the Constitu­
tion
(1) The Jud icia ry sha ll be com ple tely independent of the
Exe cut ive. A maxim um tim e-li m it, say a couple of
yea rs, may be fixed for imp lem enting this separation •
(2) All the subordinate courts sha ll be under the Hig h
Court both jud icia lly and adm inis tra tive ly. The ap­
pointm ent, dism issa l, suspension, pro mo tion , demotion
and transfer of the judges and oth er officers of the
lower cou rts and the ma gist rat es sha ll be com pletely
in the hands of the Hig h Court ;
(3) The oourts sha ll hav e unlimited powers to summon
eve ry kind o f evid ence which the y consider necessary
for the adm inistration o f jus tice . No t eve n the
Government sha ll hav e the privile ge to withho ld any
ovidence required by a Court o f Law ;
(4) Neithe r the legislature nor the Government nor the
Head of the Sta te should hav e the power to compel
__ /

any law -court’t o try any case in camera. The holdin g

•

of a trial ope nly or in camera should be left to the

discretion of the cou rts themselves ;
(5) All ma tter s requiring adjudication shall be heard by
oommon oourts of the oountry even though the
Government, its Ministers, or its officials are inv olv ed.
Moreover, neithe r the Central nor the Proxim al
Governments nor the ir legislatures sha ll hav e the
320 TKs Islamic Law and Constitution
als for any matter
power to constitute r special tribun
requiring adjudication. Such a power should vest in
the Supreme Court and the High Courts which shall
* make use of it if they deem i t . neoesa arj. Election
Tribunals, too, if and when necessary, shu.dd be
constituted and appointed by the Supreme Court or a
High Court ;
(6) The Supreme Court of Pakistan shall have the inherent
and original jurisdiction to enterta in and decide cases
’ challenging the validit y of the legisla tion enaoted by
the Head of the State or the Central or Provincial
Legislatures, if such legisla tion is considered to be in
contravention of the letter or the spirit of the Consti­
tution ;
(7) All legal protections against suits that had been grant­
ed by the former British Government to its employees,
should be withdrawn in toto and the citizen s should be
granted the right to use the Government employees
withou t any let or hindrance. It should not be for­
gotten that our former alien rulers had resorted to
this method of protecting their emplo yees in order to
overawe and suppress the “nativ es” ;
(8} Thia should also be provided in the Constitution that
no coifrt shall have the power to try a case of its own
contem pt unless the contem pt is of a general nature ;
(9) All Court-fees should be abolish ed through an article
of the Constitution. Throughout their long history
Muslims never dreamt of this method of converting the
law-courts into “ law-sh ops.” As a matter of faot we
are not aware of any other civilize d Government under
the sun except the former British Government of un­
divided India which ever though t of makin g its court
a business concern. It will really be extrem ely dis­
graceful on our part to retain this shameful practice
which negates the very conception of Islamic justice .
 Same Constitutional Proposals 321

Election and Legislatures

I t is a truism that the very existence o f a democratic
system depends on the nature of elections and the constitution
and powers o f the legislatures. A democratic system can never
develop and flourish on healthy lines i f elections are not held
in a fair manner and the constitution o f the legislatures is not
just and equitable and their powers are not so limited as to
prevent them from impairing the freedom and impartiality of
elections.
To ensure this the following things should be incorporated
in the Constitution * *

(1) In addition to the various constitutional and legal

qualifications for the membership of a legislative body,
the mental and moral qualifications prescribed by the
Qur’an and the Sunnah for holding such offices should
also be included among the Directive Principles. The
Head o f the State should, on the eve o f elections, draw
special attention o f the voters to these qualifications,
give them the widest publicity through the radio and
the press and devise ways and means o f ensuring that
these instructions are actually observed ;
(2) Self-candidature should be abolished and made a
disqualification for the membership o f an Assembly,
We urge its abolition on the ground th at it is against
the Shari'ab. The experience of elections has also
brought vividly to the surface the evils of this practice.
The self-seekers who come forward as candidates have
demoralized, to the very core, the whole o f our politi­
cal and social life ; .
(3) The rule of ‘ unopposed elections’ should be stopped
forthwith, because it is against commonsense and has
also been responsible for many malpractices in the
. elections. Tn all such cases the votes must be cast
“ for” and “ against” the “ candidate” on the basis of
“ yes” and “ no” . In the case o f the “ no’s” being in
the majority, it is far better that the constituency
32S TAs Islamic L aw and C onstitution

remains unrepresented instead o f being represented by

one who does not represent i t ;
(4) N o legislature should have the powers to make any
each rules or laws concerning elections which may, in
any way, imapair the free and impartial holding of
elections or favour any particular party or parties as
against others ;
(6) The department or the commission responsible for the
conduct o f elections should be duly-bound to conduct
them with complete im partiality. Every citizen should
have the right to challenge, in a law-court, the Impar­
tia lity and fairnebs o f elections as a whole or in any
one or more constituencies and to have it set aside i f
he is able to prove and culpable negligenoe, dishonesty
or partiality therein ;
(6) The right o f vote given to women should be qualified,
at least for the present, by a certain standard o f
education. Experience has shown that adult franchise
for women under the prevailing conditions has proved
unsuitable for them and harmful to the welfare o f the
country ;
(7) As regards the election o f women ,to the legislative
assemblies, it is absolutely against the spirit and
precepts o f Islam, and is nothing more than a blind
im itation of the W est. According to Islam, active
politics and administration are not the field o f activity
o f the womenfolk. I t falls under the men’s sphere of
responsibilities. The proper method o f solving this
problem is to constitute a separate Assembly whose
membership should be confined to women only— all o f
them elected by female voters. The main fa nation
o f thia Assembly should be to look after the special
affairs o f the women such as female education, female
hospitals, etc. O f course, it Bhould have the full right
to criticise matters relating to the general welare of
the country. Moreover, this Assembly must be con-'
 jSomc Constitutional Proposals - 323
suited by the legislature on all matters that ooncem
the welfare of women ;
(8} The formation of parties and cliques within the Legis­
lative Assemblies should be constitutio nally prohibit­
ed. Various parties in the country may take part in
tho election as parties for sending to the Assemblies
the most suitable members in their opinion but after
the election the members of the Assembly should owe
allegiance solely to the STATE, its CONSTITUTION,
and the entire NATION, and should vote and act
according to the dictates o f their own conscience ;
(9) If dismissed Government servants are to be disqualified
for elections on the ground o f misoonduetr the term
"misoondn ct” should be defined.
• «
The Qadlani Problem
We demand with all the foroe at our oommand that, along
with other non-Muslim groups, the Qadianis should be included
in the schedule of minorities having the right to elect their own
representatives, by the method of separate electorates , for the
seats fixed in proportion to their population. The entire Muslim
is unanimous on the point that the Qadianis are a separate
Ummah and the Muslims o f all shades of opinion with the
exception of a few Westernised people who attach no impor­
tance to religion, have already declared this from the press and
the platform. Under these ciroumstatoes, if the Constituent
Assembly insists on maintaining the status quo of the pre­
partition days and treats the Qadiania as a part of the Muslim
nation in the future constitution of Pakistan, this will imply
abuse of the trust it holds on behalf of the nation.1 The
Qadianis themselves have taken the stand which makes them a
separate Ummah. For, according to their declared religious

1. I t may be m entioned here that before partition, the Qadiaats them ­

selv es demanded from the B ritish G overnm ent that they should be
declared a m inority and given separate scuts in the A ssem bly—*
Editor.
324 TAe Islamic Law and CvTutiiution
:
beliefs, and creed :—
(1) All those Muslims who do not accept Mirza Ghulam
Ahmad M a prophet of God, are “ Kafirs” ;
(2) A Qadiani is prohibited from giving his daughter in
. marriage to a Muslim ;
(3) They are prohibited from joining the congregational
prayers led by a *Muslim Imqm ; and
(4) They do not and cannot attend even the funeral
prayers offered for a Muslim.1
In brief, their new “prophet” has raised a wall between
them and the Muslims, so much so that nothing which could
unite them—neither the religious belief nor its praotice (s,?.,
prayers etc.) nor the social relations—has been left unaffected.
And the matter does not stop here, They have actually organiz­
ed themselves as a separate and parallel Ummah, which has been
in oonfiict with the Muslims in every walk of life for the last
fifty years. If, in spite o f all this, they are not prepared to be
declared as a separate Ummah it is because they wish to retain
all the benefits they are deriving as a section of the Muslim
nation side by side with those which their organization as a
separate Ummah gives them. We do not expect that the
Constituent Assembly will become a party to this fraud which
is being perpetrated on the Muslima of this oountry.^
Powers of the Executive and the Head of the State
Another m atter of fundamental importance from the consti­
tutional point of view is that of the powers of the Executive
and of the Head of the State, because even the longest list of
fundamental rights and privileges and the best o f constitutions
can be set at naught by an unfettered Executive or Head of the

l t I t is common knowledge that a Qadiani Central Minister in spite of

being present at the spot, did not join the funeral prayers even of the
Quaid-e-Azam.—Editor.
2. For a fuller appreciation of the problem see Abul Ada Maududi : TAe
Qudiuiti Prvbkm, Islamic Publications Ltd., Lahore.
 Some Constitutional Proposals 32K

State* In 1950, when the first Basic Principles Committee

Report was published, we had pointed out that it had commit*
ted a blunder in granting unlimited powers to the Executive
and to the Head of the State. We do not know whether the
Committee has now realised the horrible consequences of its
proposals. As a precautionary measure, therefore, we submit
the following proposals to serve as safeguards :—
(1) The Head of the State should in no circumstances be
5 given the power to suspend the Constitution* The
countries whioh committed the folly o f giving suoh
powers have generally landed themselves in trouble
and therefore it cannot be expected to bring any
good to Pakistan. The utmost that can be conceded
in this respect is that in times of grave emergency he
may be empowered to suspend the Constitution, at
the most in a province and for a specified period. The
absolute power of suspension of the entire Constitution
inevitably leads to dictatorship.-
Nobody in the State, not even its Head—and in no
capacity, neither private nor public—should be above
law or beyond the jurisdiction of the courts o f law.
Moreover, the.oitizens should have the right freely to
seek redress against every officer o f the State (includ­
ing its Head) for any injury oaused by him in his
official or private capacity. The argument generally
advanced against this is that it will give rise to malici­
ous and harassing litigation against the State L»J« oials
and will hamper their work. But this argument carries
little weight. Leaving aside the faot that this evil can
be checked by adopting several legal means, the actual
faot is that it is not the rulers but the ruled who are
usually at the mercy o f the other party. The right to
sue any one for causing injury to a person is such an
inherent and fundamental right o f citizens in an Isla-
mio State, that the Muslims and the Zimmie alike have
enjoyed it not only against the Caliphs but against the
326 The Islamic. la w and Constitution

Holy Prophet himself. That no power can teke *w»y

p
this right from the oitisens o f *n Islamic State.
(3) The Head of an Islamic State oannot be granted the
unlimited power or prerogative o f clemency. All that
he may be permitted to do in thia respect is that :—
(а) he may grant pardon, in the interest o f pnblio
good, for sentences awarded for political or admin­
istrative offences ; and
(б) he may change a death sentence into some other
sentence, not, however, on the ground of clemency
but on the real merits o f a case. I t would be
advisable that a higher judioial committee be for­
med to help and advise the Head of the State in
such cases.
Beyond this the Head of an Islamic State should have no
powers, because he is there to uphold justice and not to undo it.
As a matter o f fact clemency or mercy to proved criminal has no
place in the Islamic conception o f justioe. Buch powers were
devised and assumed by despotic monarchs e for asserting their
"divine right’1 and unlimited powers over their subjects.
Princely States
The states that have acceded to Pakistan must be brought
in line with the provinces. We are not going to tolerate despo-
tic or semi-despotic powers o f anybody in any form and any­
where in the country. It must be specifically provided in the
Constitution that the type and pattern o f government and
administration o f the states shall be like that o f the provinces.
Amendment of the Constitution
Two principles should be adopted in regard to the amend­
ment of the Constitution :—
(1) The amendment o f such parts of the Constitution as
are of fundamental importance should be made as
difficult as possib^, so that the real nature o f (the
Constitution may remain intact ;
(2) The amendment the remaining parts o f the Cbnstitu-
 Some C otM tdvm al Proposals 327
/
tion should, on the other hand, be made easy, so that
it may be improved in the light of practical experi­
ences whenever necessary.
As to what is of fundamental importance and what is not,
can only be decided when the blue-print of the Constitution
comes before us in its oomplete form.
A P P E N D IC E S
 Appendix I

Basic Principles^bf
Islamic State

Critics hare often tried tn play upon the myth '

that there abound gross differences of opinion
amongst the ‘ZHepnA of the various sects of the
Muslims as to the nature o f the Ielamie Constitu­
tion and. have asserted that, in the absence of
unanimous statem ent by them, the nature of the
Islamic Constitution will remain “a riddle, wrap­
ped in a mystery inside an enigma” . This myth
was fully exploded when the challenge thrown by
such critics was accepted by the (Sunni and
Shi'ah both) and the thinkers of Pakist an. A Con­
ventio n of the ‘Ulamd representing all the schools
of Islamic though t was held from 21st to 24th
January, 1951, in Karachi, and it formulated the
fundamental principles o f the Islamic State. The
Convention was attend ed by thirty-one 'U law l
and all their decisions were unanim ous. These
basic principles of Islamic State are reproduced
here in Appendix I.—Editor.
 BASIC PRINCIPLES OF ISLAMIC STATE

HE Constitution of an Islamic Sta te should comprehend the

T following Basic Principles :—
1. Ult ima te Sov ereignty over all Nature and all Law vests in
Allah, the Lord of the univer se, alone.
2, The law of the land sha ll be based on the Qur’an and the
Sunnah, and no law shall be ena cted nor any adm inis trative
order issu ed, in contravention o f the Qur’an and the Sunnah.
Explanatory N ote:
I f there be any laws in force in the cou ntry which are
in conflict wit h the Qur’an or the Sunnah, it would be
necessary to lay down (in the Con stitu tion ) tha t such
laws shall be gradually, within a specified period, re­
pealed or amended in conform ity with the Isalmic Law,
3. The Sta te sha ll be based not on geographical, racial, lingu­
istic or any other materialistic concepts, but on the princi­
ples and idea ls of Islamic ideo logy .
4, It shall be incumbent upon the Sta te to uph old and esta b­
lish the Rig ht (Ma'ruf} and to suppress and eradicate the
Wrong (Jfu niar ) as presented in the Qur’an and the Sun­
nah t to tak e all necessary measures for the rev ival and
advancement of the cultural pattern of Isla m, and to make
provision i for Islamic education in accordance with the
requirements of the various recognised schools of. Islamic
tho ugh t.
5. It shall be incumbent upon the Sta te to strengthen the
bonds o f uni ty and brotherhood among the Muslims of the
world and to inh ibit the growth of all prejudicial tend en­
cies based on distinctions o f race or language or territory
or any other msherialistic consideration and to preserve and
strengthen the uni ty of the M illa t al-I&lamiah.
6, It sha ll be the responsibility of the Government to guaran-
 Basic Principles of Islamic Stale 333
tee the basic necessities of life, i.e.r food, clothing, housing,
medical relief and education to all oitizens without distinc-
tion of race or religion, who might temporarily or perma­
nently be incapable o f earning their livelihood due to un­
employment, sickness, or other reason.
CITIZENS1 RIGHTS
7. The citizens shall be entitled to all the rights conferred up­
on them by the Isamic Law i.e. t they shall be assured
within the limits o f the law, of full security o f life, pro­
perty and honour, freedom of religion and belief, freedom
o f worship, freedom o f person, freedom o f expression, free­
dom of movement, freedom o f association, freedom of
oocupation, equality o f opportunity and the right to benefit
from public services.
8. No citizen shall, at any time, be deprived of these rights,
except under the law and none shall be awarded any
punishment of any charge without being given full opport­
unity of defence and without the decision of a court of law,
9. The recognized Muslim schools of thought shall have,
within the limits o f the law, complete religious freedom.
They shall have the right to impart religious instruction to
their adherents and the freedom to propagate their views.
Matters coming under the purview of Personal Law shall
be administered in accordance with their respective codes
of jurisprudence (fiqh)* and it will be desirable to make
provision for the administration of such matters by judges
(Qadis) belonging to their, respective schools of thought.
10. The non-Muslim citizens of the State shall have, within the
limits o f the law, complete freedom o f religion and worship,
mode of life, culture and religious education. They shall
be entitled to have all their matters concerning Personal
Law administered in accordance with their own religious
code, usages and customs.
11. All obligations assumed by the State, withiu the limits of
tbo Shari'ah, towards tho non-Musiim citizens shall be fully
334 The Islamic Law and CanctiM ian

honoured. They shall be entitled equally with the Muslim

oitizeus . to the rights of citizensh ip as enunoiated in para­
graph 7 above.
12. The Head of the State shall always be a male Muslim in
whose piety, learning and soundness of judgment the people
or their elected representatives have confidence.
13. The responsibility for the adminis tration of the State shall
primarily vest in the Head of the State although he may
delegate any part of his powers to any individu al or body.

GOVERNANCE OF THE STATE

U. The Head of the State shall funot ion not in an autocratic
but in a consulta tive (Shura’i) manner/ i.e,> he will dis­
charge his duties in consulta tion with persons holding
responsible position s in the Governm ent and with the
elected represen tatives of the people.
15/ The Head o f the State shall have no right to suspend the
Constitution wholly or partly or to run the administration
without a Shura.
16. The body empowered to elect the Head of the State shall
also have the power to remove him by a majority of votes.
17. In respect of civic rights, the Head of the State shall be
on the level of equality with other Muslims and shall not
f

be above the law.

18. All citizens, whether members of the Government, officials
same laws and
the jurisdiction of the same courts.
19. The Judiciar y shall be Separate from and independ ent of
the Executiv e, so that it •may not be influenced by the
Executiv e in the discharge of its duties.
20. The propagation and publicity of such views and ideolo­
gies as are calculated to undermine the basic principles and
ideals on which the Islamic State rests, shall be prohibited.
21. The various zones or regions of the country shall be con*
sidered adminis trative units of a single State. They shall
not be racial, linguistic or tribal nuita but only adininistra’
 Basic Principles oj Islamic Stale 335
tive areas which may be given such powers under the
supremacy of the Centre as may be necessary for adminis­
trative convenience. They shall not have the right to
secede.
22. No interpretation o f the Constitution which is in conflict
with the provisions of the Qur’an or the Sunnah shall be
valid. /

NAMES OF THE ' ULAMA PARTICIPATING IN

THIS CONFERENCE
1. Maulana Sayyid Suleman Nadvi (President o f this Con­
ference).
2. Maulana Sayyid Abul A'la Maudtidi, Amir Jamaet-e-Ielami,
Pakistan.
3. Maulana Mufti Muhammad Shafi, Member, Board o f Ta4Zi-
mat-e-Islamia, Constituent Assembly of Pakistan.
4. Maulana Mufti Ja'far Husain, Mujtabid, Member, Board of
Ta‘limat-e-Ialamia» Constituent Assembly of Pakistan.
5. Prof. Abdul Khaliq, Member, Board of Ta'limat-e-Islauria,
Constituent Assembly of Pakistan. .
< 6. Maulana Muhammad Zafar Ahmad Ansari, Secretary, Board
of Ta'limat-e-Islamia, Constituent Assembly o f Pakistan.
7. Maulana Shams-ul-Haq Afghani, Minister, Religious Affaire,
Kalat State.
8. Maulana Ihtesham-ul-Haq, Mohtamim, Dar-aPUloom ah
Islamia, Tando Allah Yar, Sind.
9. Maulana Badr-e-Alam, Head of Hadi th Department, Bar al*
‘Uloom al-Islamia, Tando Allah Yar, Sind.
10. Maulana Muhammad Yousaf Binnori, Shaikh al-Tafsir,
. Bar al-‘Uloom al-Islamia, Tando Allah Yar, Sind.
11. Maulana Muhammad Abdul Hamid Qadri Badayuni, Presi­
dent, Jazniat-‘Ulama-e-Pakistan,
•* z Sind. *
12. Maulana Muhammad Idris, Shaikh al-Jamia, Jamia Abba-
sia, Bahawalpur,
13. Maulana Khair Muhammad, Mohtamim, Madrasah Khair
al-Mftdarib, Multan.
336 •Tke Mamie La* CviutUaiwa
14. Manlana Mufti Muhammad Hasan, Mohtamim, Medrash
Ashrafia, Lahore.
Pir Sahib Muhammad Amin al-H at, Pir of Manki
Sharif.
161 Haji Khadim al-Islam Muhammad Amin, Khalifa, Haji
Taring Zai, Peshawar District.
17. Qadi Abdos Samad Sarbaai Qddi, Kalat State.
18. Maulana A fter ‘Ali, Sadr Amil, Jam iat al-* Ulama-e-Ialam,
East Pakistan.
10. Maulana Abu Ja'far Muhammad Saleh, Amir, Jamiat
Hizbullah, East Pakistan.
20. Maulana Raghib Ahsan, Vice-Preaident, Jamiat al-
‘Ulama-e-Islam, East Pakistan.
21. Maulana Muhammad Habib-ur-Rehman, Vice-President,
Jamiat al-Mudarrasin, Sarsina Sharif, East Pakistan.
22. Maulana Muhammad AM Jullundari o f Majlis-e-Ahrar-e-
Tslam, Pakistan.
23. Maulana Sayyid Muhammad Da’Ud Ghaznavi, President,
Jamiat Ahle-Haditb, West Pakistan.
24. Maulana Mufti Hafiz Kifayat Hussain, Majtahid, Idarah-e-
Alia Tahaffuz-e-Huquq-e-Shian-e-Pakistan.
25. Maulana Muhammad Ismail, Nazim, Jamiat Ahle-Hadith,
West Pakistan.
' 26. Maulana Habibullah, Jamia Diniah Dar-al-Hfida, Terhi,
Khairpur Mirs.
27. Maulana Ahmad Ali, Amir, Anjuman Khuddam-al-Din,
Lahore.
28. Maulana Muhammad Sadiq, Mohtamim, Madrasah Mazhar
al-‘Uloom, Khaddah, Karachi.
29. Maulana Shams-ul-Haq Faridpuri, Sadr Mohtamim
Madrasah Ashraf al-*Uloom, Dacca.
30. Maulana Mufti Muhammad Sahibdad, Sind Madrasat-al*
Islam, Karachi.
31. Pir Sahib Muhammad Hashim Mtijaddidi,Tando Seconded,
Sind.
 Appendix II

'Ulama's Amendments
to the Basic Principles
Committee's Report

BASIC Principles Committee’s Report was publi­

shed in December 1952 and a Convention of the
representing all schools of Islamic tho u­
ght coming from both the wings of the country was
held in Karachi from 11th to 18th January, 1953,
The Convention formulated its amendments to the
Nasimuddin Report unanimously. These amend­
12

ments of the 'Ulama are a historic document and

are indispensable for those who want to stud y
the developments of Constitution-making in Pakis­
tan. An idea of the constructive contribution of
the *Ulama to Constitution-making oan be had
from a comparative study of the original Nazimud-
din Report, these amendments, the Muhammad
Ali Report and the 1956 Constitution. Similarly a
careful comparative study of these amendment and
to this
1. All the ’t/lomd who se nam es appear in App endix I were invited
­
conv entio n and alm ost all of them atte nded , so much so that the num
of ’’
ber of *Ulamd who part icipa ted in th* ConvaatiOn, was 33 inste ad
3L
Their
2. There was only one poin t on which three dele gate s disagreed.
a*
view s on this poin t arc appended at the ond of this app endix
Ann exure No. 1.
338 Tie Islamic Law and Constitution
the constitutional proposals presented by Maulana
Maududi in August 1952 (Chapter X) also reveals
the part which Maududi has played in the making
of the. mind of the intelligentsia of Pakistan on
constitutional problems*
These amendments also show that the 'Ulamd
were not concerned merely with the apparently
religious aspects of the Constitution. They gave
concrete proposals for all the aspects of the Cons*
titution and did not fall a prey to any\ narrow­
mindedness. The Islamic concept of religion is a
wide one and the amendments reflect that the
'Ulamft have upheld the real Islamic concept which
does not admit of any separation between 'the
religions’ and “the secular/—Editor.
 'ULA M A'S amendments
TO THE
BASIC PRINCIPLES COMMITTEE’S REPORT
1
(WitA Original Text and Proposed One of Relevant Sections)
Chapter II—D IREC TIVE PRIN CIPL ES OF STAT E POLICY
2. The follow ing should be the Direc tive Princ iples of
State Polic y. „ ■
Section Clause (2), Sub-Clause (a)
Facilities should be provided for them. to understand what life
in accordance with the Holy Qur'an and the Sunn %
ah means, and the
teaching of the ' Holy Qur'an to the Muslims should be made
compulsory.
The text o f this sub-clause of the Report loads itself to the
meaning that, while keeping intact the found ations o f the sys­
tem of education as obtaining during the Britis h regime, the
Government should endeavour to make the teach ing of Holy
Qur’an compulsory for Muslims and to prescribe a course of
theolo gy to enable them to know what life in accordance with
the Holy Qur’an and Sunnah means. This provision would in
no way prove effective in removing those evils of the existi ng
system of educa tion and training which have their roots in the
un-Q odly bases that form the bed-rock o f the present system of
education and training. We, there fore, deem it necessary that
the follow ing words be subst ituted in place of the existing
words of this Sub-Clause.
“ The teaching of the Holy Qur’an and Islamiyat be made
compulsory for every Muslim and the system of education be so
reformed that it may enable the Muslims to mould their lives in
accord with the Holy Qur'an and the Sunn ah”

L The origin al te x t o f the R eport is given in ita lics apd the propon ed
me in bold type. Chapt ars, sec bions and clause s referre d to are those
nt the Basic Princi ples C om m ittee’? Repor t,
 340 T ie Islamic Law and Constitution
Section 2, Clause (2), Sub-Clause (b)
Prohibition of drinking, gambling and prostitution in alt their
various forms.
The recom mendations contained in thia sub-clause of the
Report are defect ive in two respects. Firstl y , they prohibit
only drinking and not the Bale or manufacture o f liquor and are
even silent in regard to other intoxic ants. Secondly, they do
not fix any period for the eradication o f the evils of drinking,
gambling and prostitution . This lends to an apprehension that
these evils may contin ue for an indefinite period in the Islamic
State o f Pakistan. We, therefore, deem it essential that the
follow ing be substituted in place of the existin g words
“ Intoxicants, gambling and prostitution in alt their various
forms . be completely prohibited through proper legisla
T '-lb tion within
a maximum period of three years from (he date of enforcement of
the Constitution.'’
Section 2, Clause (4)
Suitable steps should be taken for bringing the existing laws
into conformity with the Islamic Principles, and for the codifica­
tion of such injunctions of the Holy Qur'dn and the Sunnah as can
be given Legislative effect.
In this Clause, the authors of the Repor t have not prescrib­
ed any period for bringing the existin g laws of the land into
confor mity with the Holy Qur’an and the Sunnah ; henoe it is
apprehended that the existin g un-Islamio laws might be allowe d
to remain in force for an indefinite period . This is intoler able
and we, therefore, consider it necessary that thia clause be
amended to read as follow s ;—
(a) “ Suitable steps should be taken to bring the existing laws
into conformity with the Holy Qur'an and Sunnah within five
years.”
(b) “ Arrangements should be made for the codification and
enforcement of all such commandments and injunctions of the
Holy Qur'an and the Sunnah as are enforceable through legisla­
tion. Provided that laws regarding the personal matters of
Muslims should be made in the light of such interpretations of the
 *XJlama's Amendments 341

Holy Qur’an and the Sunnah as are held valid by the respective
schools o f thought among Muslims and the followers of one school
of thought should not be bound to follow the interpretation of an­
other, and that no such law should he made as may create obstruc­
tion in the performance of its religious rituals and duties?’
Section 2, Clause (6)
The State should endeavour to secure basic necessities of life
like food, clothing , education and medical relief for those citizens
of Pakistan, irrespective of caste or creed, who are temporarily or
permanently incapable of earning their livelihood due to unemploy*
merit, infirmity, sickness or any other sim ilar reason.
The following wording in place of the present wordings o f
thja clause would, in our opinion, be more appropriate.
“ The State should endeavour to secure basic necessities of life
like food, clothing, housing, education and medical relief for all
citizens of Pakistan, irrespective of caste or creed, and particular­
ly for those who are temporarily or permanently incapable of
earning their livelihood on account o f unemployment, infirmity or
sickness or any other similar reason.”

Section 2, Clause (7), Sub Clause (a)

c a

The economic policy of the State should be so directed as to

secure an all-round well-being of ths people irrespective of creed,
race or colour and should be so operated as—

(a) to improve the standard or livin g of the common man ;

In this Clause it hag not been specified th a t the economic

policy of the State should be based on the Islamic principles of
social justice ; hence the following should be substituted in
place o f the existing words :—
“ The economic policy of the State should be based on the
Islamic principles of social justice. It should be so directed as to
secure an all-round well-being of the people irrespective of creed,
race or colour and should be so operated.......
 342 The Islamic Law and Constitution .
Section 2, Clause (7), Sub-Clause (c)
To ensure equitable adjustm ent of the rights of labour and the
peasan try in order to prevent their exploitation.
In thia Clause, although the existin g phraseology, i.e., 14the
rights of labour and the peasan try” lends itself to quite a wide
interpretation , the questio n of compensation to the labour and
peasan try being of great significance its separate treatm ent and
exposition is essential. The standard of the compensation
should be so fixed as to enable them to meet their basio require­
ments of life. We, therefore, are of the opinion that the sub-
clause should as under :
“ An equitable standard of the rights and compensation of the
labour and peasantry be laid down to ensure that they are not
deprived of their necessities of life or exploited?*
Section 2, Clause (10)
The State should endeavour to discourage amongst the Muslim s
of Pakistan parochial, tribal, racial and other sim ilar un-Islamic
feelings and inculcate in them the spirit to keep foremost in their
minds the fundam ental unity and solidar ity of the M illat and the
requirements of the ideology and the mission for implem entation of
which Pakista n came into being.
In this Clause the present wording of the Report is defec­
tive particularly in so far as there is no mention of linguis tic
prejudices. We, therefore, think that the following should be
substituted in its place •—
“ The State should discourage amongst the Muslims of Pakis­
tan, the geographical, tribal, racial and linguistic and other
similar un-Islamic feelings and inculcate in them the spirit to
keep foremost in their minds the fundamental unity, integrity and
solidarity of MilM- i-Islam ia and the requirements of the Ideology
and the mission for the implementation of which Pakistan came
into existence?*
Additions:
Besides the above amendments, we deem it necessary that
the following additio ns bo also made in the Directive Principles
of the State Policy ;
 4 Ula
ma 's A m endmenis 343
Sec tion 2, Sub-Clause (f)
“ Proper and effectiv e arrangements should be made for
the
promotion o f Isla mic learning and culture,”
Clause 7, Sub-Clause (d)
“ The difference in the pay o f hig h and low em ployees o f
the
Sta te should be brought to an equ itab le lev el.”
New Clause

(a) The Sta te should ensure that in the sec tion , appofnmen
t
and promotion of Muslim candidates and em ployees,
Isla mic
character and observance o f the ten ets of Isla m are given
due con­
sideration alo ng with abi lity , efficiency and other relevant
fac tors,
(b) “ In the tra inin g of the Mu slim em ployees of the Sta
te
whether civ il or militar y, spe cial arrangements for the
ir moral
and religio us trainin g and education should be made, so
that the
moral standard o f the Sta te em ployees of Pak ista n, as also
their
standard of efficien cy, be hig h eno ugh .”
(c) “ Alt fac ilit ies should be provided to the Muslim
em­
plo yee s o f the Sta te for carrying out their religio us dut
ies and
observing the tenets of Islam ”
New Clause
“ The propagation of ath eism and infidelity and the insu ltin
g
or ridiculing of the Ho ly Qur’an or the Sun nah should
be pro­
hibited through leg isla tion .”
Chapter III— PR OC ED UR E FO R PR EV EN TIN G LE
GIS LA ­
TIO N RE PU GN AN T TO TH E QU R’AN AN D
the su n n a h . -
Sec tion 3
No legislature should enact any law which is rep ugn ant to
the
Ho ly Qur’an and the Sun nah ,
I t is not eno ugh to pro vid e onl y in a neg ativ e manner tha
t
no law sho uld be ena cte d wh ich is rep ugn ant to the Qu
r’an and
tho Sun nah . W hat is required is tha t it sho uld be laid
dow n
344 The Islamic Law and Constitution

te * matter o f principle that the dictates and directives o f the

Qur’an and the Sunnah should be the chief source of legislation
in this State. Therefore the following should he added at th e
end o f th is section
uaad the Qur’an and the Sunnah bv the chief source o f the
law o f the land?'
Sections 4, 5» 6 and 8
4. No objection on the ground that a legislation is in contraven­
tion of the provisions of paragraph 3 should be taken except in
the Legislature concerned and in the manner provided for in
the next two succeeding paragraphs.
5. (1) The Head of the State should constitute, for a period of
five years, a Board consisting of not more than five persons
well versed in Islamic Laws. ■

(2) When a B ill is discussed in a House o f the Federal Legis-

lature, if any M uslim member raises an objection, at any
stage of the discussion* that the B ill or any provision
thereof is in contravention of the provions of paragraph 3,
the Chairman of the House should record that objection.
(3) I f the B ill to which reference has been made in sub-para­
graph (2) of this paragraph comes up for discussion before
the other House of the Federal Legislature the Chairman
of the House should inform the House of any objection
taken in the House in which the B ill has been initiated.
(4) When a B ill is finally passed by the Federal Legislature
the authority concerned should forward the B ill together
with any objection* taken in either or both the Houses of
the Federal Legislature, to the Head of the State for
assent.
(5} The Head of the State should consult the Board to ascer­
tain whether the B ill of any provision thereof to which
objection has been taken, is in contravention of the pro­
visions of paragraph 3. The Board should send their
views to the Head of the State within seven days of the
receipt of suck reference.
 'U lama’s Amendments 345
(6) I f a difference of opinion arises amongst Ike members of
the Board lAe Head of the Stale should give his assent to
the B ill or withhold his assent therefrom,
(7) I f the Board is unanimously of the opinion that the B ill
or any provision thereof is in contravention of the provi­
sions of paragraph 3, the Head of the State, should return
the B ill to a jo in t sitting of the two Houses of the Federal
Legislature together with the views of the Board and a
message that the B ill or any provision to which objection
has been taken should be reconsidered on the lines sugge-
sled in the message.
(8) (a) I f the Federal Legislature amends the B ill on the lines
suggested by the Head of the Stale in his message, the
authority concerned should forward the B ill to th .
Head of the State for his assent.
(6) If the objection is to the whole of the B ill it should
not be deemed to have been passed unless it is passed
by the m ajority of the members present and voting
which should include the m ajority o f the M uslim
. members present and voting.
(c) I f the abjection is to certain provisions of the B ill,
amendments in respect of suck provisions should not
be deemed to have been passed unless passed by the
m ajority of the members present and voting which
should include the m ajeriiy of the M uslim members
present and voting,
(9) When the points raised in the message are disposed of in
the manner prescribed in sub-paragraph (£) above, the
B ill, unless it is withdrawn by the leave of the House,
•
should be resubmitted to the Head of the Stale for his
assent and it should be assented to by the Head of the
State.
6. (1) The Head of the Unit should constitute, for a period of
five years, a Board consisting of not more than five per­
sons well versod in Islam ic Laws.
346 TA« Islam ic Law and Constitution

(2) IFAen a B ill is discu ssed in the Legislature of the U nit,

if any M uslim member raise s an objection, al any stage
of the discu ssion , that the B ill or any prov ision thereof is
in contravention of the prov ision s o f para grap h 3, the
Chairman of the Legis latur e concerned shou ld record that
. objection and when the B ill is final ly passe d by the
auth ority concerned shou ld forw ard the B ill together with
any objec tion taken in the Legis latur e to the Head of the
Unit for assent,
(3) The Head of the Unit should consu lt the Boar d to ascer­
tain whether the B ill or any prov ision thereof to which
objection has been taken is tn contravention of the proviso
ions of para grap h 3. The Board shou ld send their views
to the Head of the Unit within seven days of the receipt of
such reference, .,
(4) I f a difference of opinion arise s amongst the members of
the Boar d t the Head of the Unit shou ld give assen t to the
B ill or withh old his assent therefrom or m ay reserve the
B ill for the cons idera tion of the Head of the State• .
(5) I f the Board is unan imou s of the opin ion that the BUI or
any prov ision thereof is in contravention of the provisions
of prag raph 3, the Head of the U nit shou ld return the B ill
to the Legis latur e of the Unit together with the views of
the. Board and a message that the B ill or any prov ision to
which objection has been taken shou ld be reconsidered on
the lines suggested in the message.
(6) (a) I f the Legislature of the Unit amends the BUI on the
lines suggested by the Head of the Unit in his message
the auth ority concerned should forw ard the B ill to the
Head of the Unit for his consent.
(&) If the objection is to the whole of Che B ill it should
not be deemed to have been passe d unles s it is passe d
by the m ajori ty of the members prese nt and voting
which shou ld inclu de the m ajori ty o f the Musl im
members prese nt and voting.
 4 UlamiTs Amendments 347
(c) 7 / the objection is to certain provision s of the Bill,
amendments in respect of such provision s should not
be deemed to have been passed unless passed by the
majority of the members present and voting, which
should include the majority of the Muslim members
present and voting.
(7) When the points raised in the message are disposed of in
the manner prescribed in sub-paragraph (6) above, the
B itt unless it is withdrawn by the leave of the House,
should be resubmitted to the Head of the Units for hi.
assent and it should be assented to by the Head of the
Unit or he may reserve it for the consideration of the
Head of the State.
(8) The provision s of this chapter relating to assent should
have effect notwithstanding anything to ths contrary
relating to assent to Bitt in other parts of the Constitution.
The device of setting up a Board of ' Vlama, as proposed in
thia section, to avoid legislatio n repugnant to the Qur’an and
the Sunnah, far from being reasonable or effective is likoy to
prove a source of many a new evil. We fail to understand why
the very same method which has been adopted to check legisla*
tion in contraven tion o f the various provision s of the constitu­
tion, i.e. p empowering the Supreme Court to interpret constitu^
tion should not be adopted in regard to the provision s of
Section 3 as well. Of course, for the duration of such period as
may be required to produce judges fully conversant with the
Qur’an and the Sunnah, in keeping with the new constitutional
requirements, some transition al provision should be made to
ensure correct interpretation of the Qur’an and the Sunnah, for
purposes o f the provisions of Section 3. Therefore we demand
that Sections 4 to 6 as well as Section 8 related therewith be
deleted altogether and the following be substitute d in their
place :
1. To deal with constitutional objections raised tinder
Section 3 against laws enacted by a legislature or other issues
concerning interpretation of constitution in this behalf, there
 348 Th s Isl am ic La w an d Co nst itu tio n
urt who, along
should bf appointed five 'Vicuna in the Suprem e Co x
the Head of
with son ^ judge to be nominated for the purpose by
taq wa ' and his
the Sta te in consideration of his 'ta day yun and
ide whether or
knowledge of Isl am ic law and learning, should dec
Qur'an and the
not the law In dispute Is in conformity, with the

am a should
2. The appointm ent of the above-mentioned 'Vl
ed fin the Ba sic
be made fin the sam e manner as has been propos
judges of the
Principles Co mm itte e's Report in regard to the
Suprem e Court.
3. On ly such should be qualified for appointm ent to
. this office as :
Mu fti
(a) has worked in som e religio us institu tio n as a
for a minimum period of 10 yea rs ; or
mini­
(b) has been an accepted Mu fti in som e area for a
mum period of l^ pe ars ; or
ished
(c) has worked as a Qadi in som e duly establ
Ma hak am a-e-Qa da ; or
som e
(d) has been a teacher of T ajs ir, Hadith or Fiq h in
religio us institu tio n.
Sec tio n 7
to Money
Th e pro vis ion of thi s cha pte r sho uld not ap p ly
B ills .
n of the
We were ext rem ely sur prised to see thi s sec tio
ve aooepted in
Re por t and to no te tha t the ver y person s wh o ha
cte d wh ich is
Sec tio n 3 the principle tha t no law sho uld be ena
ha ve stip ula ted
rep ugn ant to the Qur’an and the Su nn ah sho uld
wo uld be in­
tha t the dic tat es of the Qur’an and the Su nn ah
f the Sta te. I f
op era tiv e in reg ard to the fin anc ial ma tte rs o
com ma nd ­
the Sta te acc ept s the sup rem acy o f the dic tat es and
m the wording
me nts o f Allah and H is Pro ph et, as is evi den t fro 2

ed on this point.
l. Three of the par ticipan ts o f the Co nventio n disagre
se Am end ments as
Th eir vie w-p oin t is app end ed at the end of the
Annexure No. I,
 ‘Ulama^s Amendments 349
o f Section 3, there is no reason why the financial matters of the
State should be placed beyond the jurisdic tion of Allah and His
Prophet. Islam is the best guide for us in all matters. It is so in
the case of financial problem s too. We are not at all prepared
to accept a dear rote of no-confidence against Islam in one of
the Section s of our Constitution.
However, we do concede that for some time to come there
might be some practical difficulties in adjustin g the financial
matters of the State aooording to the principles of Islam and for
that it would suffioe to provide that the provisio n o f Section 3
should apply to money bills only after the expiration of a
period of 5 years. Therefore, the present wordings of Section 7
of Chapter 3 should be substitu ted by the followin g :
4 ’The provisio
ns of this chapter should apply to money bills
after the expiry of 5 years from the date of enforcement of the
Constitution?’

Part II
THE FEDER ATION AND IT S TERRI TORIE S
Section 9 (1)
The name of the State should be Pakistan which should be a
Federation, of the Provinces including Baluchistan, the Capital of
Federation, such States as hove acceded or may accede to the
Federation and such other areas as formed part of Pakistan
immediately before the commencement of the Constitu tion or may
hereafter be included in it. *
In Clause (1) o f thia aeotion, ‘Pakista n’ baa . beeh, proposed
to be the name of the State. In our opinion this 1* not enough
and the name should be Islamic Republic of Pakistan.
The presence of non-Muslim commu nities in Pakista n
cannot be put forth as a valid objection against this name be­
cause if the presence of innumerable non-sooialiets in Russia
does not prevent its being named • Union of Soviet Socialists
Republics’ why should it stand in the way of Pakista n being
called an Islamic Republic ? The appella tion of Islamic Repub-
360 The Islamic Law and Oonstitniion
lio is just to indicate that it is a Republic which is based on the
principles of Islam—something which has already been specified
in the Objectives Resolution, and Section 3 of the Report too
leads to the same conclusion.
Apart from this, the followin g addition s should also be
made in this section. After Clause ())» the followin g Clause
should be added :
2. “ The various zones or regions of the country shall be
considered as administrative Units of a single State. They shall
not be racial, linguistic or tribal units but only administrative
areas which may be given such powers under the supremacy of the
Centre as may be necessary for administrative convenience.
3. "The Units of the State shall not have the right to secede."
Existing Clause (2) would thus be renumbered as (4).

Part III
THE FEDER ATION
Chapter I—THE EXECUTIVE
Section 23, Clause (2)
Appointment of the Election Commission and Election Tri­
bunals.
The power to appoint Election Tribunals has been categoris­
ed with powers which are to be exercised by the Head of tho
State in his discretion. In our opinion thia is not proper. The
maintenance of justice and fairness in election s is of immense
significance to the existenc e of our State and like other matters
requiring justice, this too should be entruste d to the Judiciary
and kept immune from the interference of the Executive.
Therefore the words ‘and Election Tribunals9 occurring in this
Clause should be deleted.
Our alternative proposal in thia behalf is to be found in
the chapter relating to elections in Part X II.
Section 23, Clauses 2 and 3
(2) The Prime Minister who, for a period of six consecutive
months. I* not a number rf the Ilouse of the People should at the
 *Ulamd's Amendments 351
expiration of that period cease to be the Prime Minister,
(3) Provision should be made for app oin ting as Min ister a
person who is not a member of either Houser provided that a per
son
should cease to be a Min iste r unless he gels elected within a per
iod
of six months fro m the date of his appointment.
These two clauses pro vid e tha t eve n such persons as hav
e
not been eleoted to the Legislature ma y be appointed as Pri
me
Minister or Minister and tha t the y should try to got themse
lves
elected after the y are well in sad dle for 6 mo nth s. Thi
s is
hig hly objectionable and harmful. To place a person in aut
ho­
rity and then provide him a chance to win his elec tion mig
ht
lea d to the moral deterio ration of the adm inis tra tive machi
nery
as well as of the voters. Therefore this door muBt be clos
ed
and both these clauses should be deleted.
• Th e same wrong has been repeated in Clause (2) o f Section
89 wherein provision has been made for uneleoted persons
to be
appointed as Chief Minister or Minister in a U nit and
to be
giv en a chance to get elected.
Therefore Clause (2) of Section 89 should also be deleted*

Chapter II—FE DE RA L LEGISLATURE

The manner in which the House of Un its and the Ho use of
People hav e .'been proposed to be con stitute d is, in the opi
nion
o f this Conference, hig hly objectionable and exh ibit s the
lack
of principle in many respects. However, in vie w of the fact
tha t
the politic al leaders of the various provinces are carryi
ng on
neg otia tion s in this beh alf we do not deem it proper to
stand
in their way in any manner and propose to reserve our opi
nion
on thia issu e.1

1, A s th is Con fere nce was held in Jan uar y 1953 and the ind
icat ions of an
acco rd betw een the pol itic ians wer e ava ilab le, the
Con fere nca ref­
rain ed from givi ng any sug gest ion in thia resp ect.
Later on the
con flict was reso lved in the form o f the P arit y For m ula
of Muhomnuid
AH of D ogr a.—E dito r.
352 Islamic Law and Oonstilution

Section 40, Clause (1)

A person should not be qualified to be chosen to fill a seat in
the Mouse of Units unless he—
(i) ta a citizen of Pakista n :
(ii) has attained the age of thirty years ;
(W) ft able to read and write in some language ; and
(ip) is entitled to vote in the choice of a member to fill a seat
f
in the Legislature of the Unit by which he seeks to be elected :
Provided that the provisions of clause (»v) should not apply in
the case of a Unit which has no legislature of its own. In that
case he must' be a voter in a territorial constituency in that Unit
for the House of the People,
In this clause four disqua lifying conditions have been enu­
merated in regard to a person proposed to be elected to the
Legislature. So far as Muslim members are concerned, a fifth
condition should also be added in the following words
"is an observer of tfaraiz > and desists from 'fawahish* ”
Section 40, Clause (1) sub-clause (iv)
The wording of this sub-olause is obociio nable in aamuoh as
this implies that a member of the House o f U nits must neces­
sarily be a resident of the very same Unit, from where he is
elected . This would be conduc tive to the perpetuation of pro­
vincialism among Pakistanis and therefore we propose that the
present construction be substituted by the follow ing; —
“ is on the electoral roll of any place in the State of
Pakist an/'
The same is to be found in Clause 4 of Section 47 and it
should also be modified on the above lines.
Section 42, sub«clause (e)
42. A person should be disqualified for being chosen as, and
'or being, a member of the House of Units—
<?) I f he has been convicted of any offence, oilier than those sped-
ed under sub-paragraph (d) above, before or after the cowmen*
 ‘ Ulama's Amendments 363

cement of the Constitution, by a competent court in Pakistan and

sentenced to life imprisonment or imprisonment for not less than
. two years, unless a perio d of five years has elapsed since his release.
According to this sub-clause anyb ody who has been con- *
riote d o f any offence and sentenced to imprisonm ent for a
period of 2 years or over, would be disqu alified for being ohosen
as a member of the House of .Units?- The term ‘any offence’ is
too wide and would cover oases of persons oonvioted for polit i-
. cal reasons. Therefore, we propose that the words ‘any other
offence’ should be replaced by the words ‘offence involving moral
turpitude’ .
Amendments on the same lines should be made in Section
48, sub-clause (e) and Section 102, sub-clause (e).
Section 42, sub-clause (g)
If he has been dism issed for misconduct from service or from
apos t in connection with the affairs of the Federation or of a Unit
unless a period of five years or such less period as the Head of the
State may allow in any parti cular case, has elapsed since his
dism issal.
Thia sub-clause disqualifies a person for being chose n as a
member o f the Bous e of Units, if ho has been removed, from
Government service on aooount of ‘miao ondu ot\ ‘Misconduct’
is too wide and vagu e a term and would cover cases of persons
dism issed by a Part y Government for political reasons even
though they may not have been guilt y of anything involving
moral turpitude. Therefore, after the word ‘misconduct’ the
following should be added :—
“ Involving moral turpitude,”
Amendments on the same lines should also be made in
Sections 48 and 102, sub-clause (g)
Section 50, sub-clause (d)
No person should be included in the electoral roll for vote at
any election in any constituency—
(d) i f he has been convicted of any offence other than those speci­
fied under sub-paragraph (c) above before or after the
commencement of the Constitution by a competent court in
354 Islamic Law and Constitution

Pakistan and sentenced to life imprisonment or to imprison ­

ment for not less than two years, unless a period of five years
has elapsed since his release.
This sub-olauae also disqualifies anybody who has been
convicted, by a competent oourt, of ‘any offouoe* and sentenced
to an imprisonment of 2 years or over. We have the same
objection in this behalf as in regard to the provisio n of Section
42, sub-clause (e). Therefore, after the word ‘offence* the words
‘involving moral turpitude* should be added.
Section 106,. sub-clause (d) should also be amended accord­
ingly.
Section 66, Clause (1)
A member of the Federal Legislature should be required to
take an oath of allegiance to Pakistan , No member should take
his seat in either House of the Federal Legislature until he has
taken the prescribed oath.
This clause provides for an oath of allegian ce to Pakistan
to be taken by the members of the Legislature. The members,
we propose, should also affirm on oath that in all the proceed­
ings of the Legislature they would exercise their vote honestly .
Therefore after the words ‘oath of allegian ce to Pakistan’ the
following should be added :—
“ and also to the effect that he would exercise his vote honestly.”
The above should be added to Section t!8 , Clause (1) also.

JUDICI ARY
The new sections to the following effect should be incor­
porated somewhere in this chapter ;
(1) “ In the appointment and promotion of every officer
entrusted with adjudication, along with other relevant factors, the
qualities of 'taqwa and tadayyun 9 and knowledge of Islamic laws
and learning through original sources, should be given due weight
and treated as preferential factors.
This is necessary in view of the fact th a t in respect of the
 •V lama's Amendments 3M

qualities of 'fagwa* and ‘tadayyun' Islam lays even greater

emphasis in the ease of offioers entrusted with the dispensation
of justice than in the case of the members of the Executive or
of the Legislature. And once the principle has been acoepted
that the laws of the State are to be based on the principles and
dictates of tslam, it is but imperative that those administering
justice according to Islamic Law should possess adequate
knowledge of those laws.
(2) “ The Legislature or the Executive shall not have the
power to appoint tribunals?’
This is necessary because it is absolutely against the dic­
tates of justice that the Executive should have the power,
directly or through the Legislature, to set up, to serve its .own
interests, special Courts for specific cases or for cases o f a parti­
cular nature, or to impose arbitrary restrictions upon their
right of unfettered administration of justice. Many a bad
example o f'th e objectionable manner in which such power has
been exercised is before us. Therefore this method of appoint­
ment of tribunals should be constitutionally stopped and all
sorts of suits should be referred to the duly established oourts
o f justice in the country.
Chapter I—SUPREME COURT
Section 182
The Supreme Court may, in its discretion, grant special leave
to appeal from any judgement, decree, final order or sentence in
any cause or matter passed or made by any court or tribunal in the
territory of Pakistan ; provided that it should not be open to the
Supreme Court to grant special leave to appeal against any sentence
or order passed by any court or tribunal constituted by or under
any law relating to the Armed Forces.
This section deprives the Supreme Court of the power to
grant leave to appeal against the decision of any court or tribu­
nal constituted by or under any *law relating to-the Armed
.Forces. In our opinion, this restriction is against the dictates
 356 The Islamic Law and Constitution
o f justice. I f the Supreme Court is to be the final Court of
justice in our country, there is absolutely no reason why any*
body in the State, whether civilian or belonging to the Military
or any common citizen should be debarred from any aocess to
that court for seeking justice the reform. I f a person is dissatis­
fied with the decision of Military Tribunal why, after all,
should he not have the right to appeal to the highest Court of
justice t Therefore the following portion of Section 182 should
be deleted :
“ Provided that.......relating to the Armed Forces.”
Section 186
Subject to tfce provisions made by the Federal Legislature ths
Supreme Court should, as respects the whole territory of Pakistan^
nave the power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any docu­
ment of the investigation or punishment of any contempt of court.
This section provides for restrioting, through legislation,
the Authority of the Supreme Court to call for any person or
document for purposes of evidence. This dearly implies that if
the legislature enacts any law to stop the Court from calling for
evidences or documents of a particular nature, the Supreme
Court would be unable io do so, howsoever necessary its exami­
nation may be for purposes o f dispensation of justice. Accord­
ing to Islam, the Court has the right to call for evidence which
is necessary for the dispensation of justice and it is not per­
missible for anybody in possession of suoh evidence to conceal
it. Therefore, the following words occurlng in this section should
be deleted :
“subject to the provisions made by the Federal Legislature .1*
'■Also, the following should be added at the end of the
section :
"Provided that the Executive should have the right to request
the court to make proper arrangements to ensure the secrecy of an
evidence or document, the publicity whereof is, in the opinion of
Executive, prejudicial to the safety and integrity of the State.”
 'U lam a’s Amendments 357

Chapter II- H IG H COURTS

Section 205, Clause (2)
ing to a
Nothing in this paragraph should be construed as giv
Co urt an y jur isd ict ion to que stio n an y jud gem ent of an in­
High
ior cou rt wh ich is not oth erwise sub jec t to ap pea l or revision. .
fer
ion of a
The section is inten ded to curtia! the jur isd ict
ion the jud ge­
High Court to the effect tha t it should no t qu est
erw ise eubjeot
ment of an y subordinate court which is no t oth
ap pea l or rev isio n. In ou r op ini on , thi s lim ita tio n upon the
to
per fulfilm ent
hig he st court of a Un it is detrimenta l to the pro
ve the fulles t
o f the demands of justice* A High Court should ha
rtcom ing in
power to tak e cognizance of, and rem edy, and sho
e come to its
the dispensation o f justic e tha t may at an y tim
e in res pec t of its sub ord ina te oou rts . Th erefore, this
no tic
clause should be deleted altogether*

Part XI
IO N
SB RV IC BS AN D PU BL IC S8 RV IC B COMM ISS
TION
Chapter I—SERV IC ES UN DE R TH E FEDERA
AN D TH E UN ITS
Section 222, Ch ose (1)
protection
No Bi ll or amendment to abolish or restrict the
by Section 197
afforded to certain servants of the State in Pa kistan
Co de of Cr im ina l Pro ced ure , 189 8, or by Sec tio ns 80 to 82 of
of the
uced or moved
the Code of Civ il Procedure, 1908, should be introd
it without the
in the Federal Legislature or the Legislature of a Un
ad of the Unit,
previous sanction of the Head of the State or the He
as the case ma y be.
nable. If
In our op inion, thi s clause is extrem ely objectio
ser va nts of the Sta te of Pa kis tan are pu bli c serva nts and
the
Head of the
no t the servants of the Head of the Sta te or o f the
representatives
Un its , the re is no reason wh y the rig ht of the
peo ple to mo ve an y bil l or am en dm en t to int roduce any
of the
leg es o f such
change in respect of the rig hts , powers and privi
r
 358 The Islamic Law and Constitution
ser van ts should be con ditioned by previous a&notion of the
Head o f the Sta te or of the Head of the Un its.
As a ma tter of fac t it is ignoble enough tha t so flagrantly
unjust a pro visi on as is contained in Sec tion 197 of the Crimi­
nal Procedure Code or in Sections 80 to 82 o f the Civil Pro
ce­
dure Code should be allowed to rem ain on the Sta tut e Book of
a
free Pak ista n ; And it is eve n more ign oble tha t in order
to
protect the se Sec tion s, the power of the leg isla tor s should be
so
restricted tha t the y may not even move, except with the pre
­
vio us permission of the Head of the Sta te or the Un its, a Bill
to amend or abolish any of the se provisions.
Therefore this clause must be deleted.

Part XII
EL EC TIO NS
It is necessary tha t it should be provided by means of new
section in this chapter th a t:
(a) It should not be permissible for the Head of the Sta te or
the Head of the Units or Government officials to try to
influence public opinion for or against any party or per­
son in matters of election.
(b) It should not be permissible, in matters of election, for
the Prime Minister, the Chief Ministers, Ministers,
Ministers of State, Deputy Ministers and Parliamentary
Secretaries to use official resources or official pressure or
influence public opinion for or against any party or per­
son by means of official resources or official influence,
(c) Sea ts falling vacant in the Central or Un it Legislature
should necessarily be filled through by-election within a
maximum period of 4 months from the date of their
falling vacant.
Section 234, Clause (2)
The A lection Commission should consist of the Chief Election
Commissioner and such number of other Election Commissioners}
if
any, as the Head of the State ma y in his discretion from time
to
 'Ulam a's Amen d/rents 359

time fix and the appoin tment of the Chief Election Commissioner
and other Eledio n Comm ission ers should , subject to the provis ions
of any law made in that behalf by the Federal Legislature, be made
by the Head of the State in his discretion.
This oiause leaves the autho rity to appoi nt Electi on Com­
missio ners to th e discre tion of the Head of th e State just as in
the case of the Chief Electi on Comm ission er. So far as the
appoi ntmen t of the Chief Electi on Comm ission er is concerned
there appea rs to be no altern ative, but with a view to ensure
fairne ss and freedo m in m atters o f electi on it would be proper
to ensur e th a t th e entire Electi on Comm ission is not so const i­
tuted as to be prote ge of the Head of th e State.
There fore we propo se that the portio n ^and the appoin tment
........... in his discre tion,” be substituted by the follow ing :
“ and the appointment o f the Chief Election Comm issioner
and other Election Comm issioners should subject to the provisions
o f any law made in that behal f by the Federal Legislature, be
made by the Head of State respectively in his discretion and on
the recommendation of Chief Election Comm ission er.”
W ith a view to ensuring fair and free electi ons it is also
necessary to add the follow ing at the end of Clause (2) of Sectio n
234 :
“ (1) The office o f Chief Electi on Comm issioner should be a
permanent one and he should be entrusted not only with the work
of general electio ns in the Centre and the Units but also with by­
electio ns in respect of seats fallin g vacant from time to time. It
should also be his duty alway s to maintain an up-to-date list of
voters.”
. “ (2) The status of the Chief Election Comm ission er should be
the same as that of a judge of the Supreme Court and he should be
subject to the same disab ilities as have been laid down in Clauses
(2) and (3) o f Sectio n 227 in respect o f the Chairman of the
Public Servic e Comm ission ?9
“ (3) Only such person should be appointed as Chief Election
Comm issioner as has worked ns a Judge o f a High Court for a
mininimum period o f three years ? 9
360 . Tfce Islamic Law and OonsiiMio n
Section 239, Clause (2)
The Election Tribunal should be appointed by the Head of
the Slate or the Head of the Unit, as the case may be. in his dis­
cretion.
This clause empowers the Head o f the State and the Head
of the Units to appoint Election Tribunals in the Centre and
the Units respective ly. As stated by us in the oontext of
Section 23, this is detrimenta l to the free conduct o f elections
and therefore the existing Clause should be substituted by the
following :
“ The power to appoint Election Tribunals for the Centre and
the Units should vest respectively in the Supreme Court or the
High Court concerned as the case may be.”

SCHEDUL E I
LIST I (FEDERA L)
*
The following additional items should be included in List I :
(1) The determin ation, co-ordination and direction of the
educational policy in accord with the Directive Principles of State
Policy and the estabishment of academic and educational Instltu-
tions.
(2) The protection of the basic ideology and mission of the
State in accordance with Directive Principles.

LIST II (FEDERAL)
Item N o. 3
Preventive detention ♦« the territory of Pakistan for reasons
connected with defence, external affairs or the security of Pakistan,
persons subjected to preventive detention under the authority of the
Federation.

LIST III (CONCWRRINT)

Item No. 3
Preventive detention for reasons connected with the mainten-
 ‘Ulama's Amendments 361

ante of pu blic order > or the maintenance of supplies and services

essential to the community ; persons subjected to such detention.
Item No. 3 as existin g in these two Lists is highly objec­
tionable. The power o f preventive detention as exercised up till
now has manifested itself in laws like the Safety Act and other
Acts o f similar nature which are not only repugnant to the
Shari'ah but are also against commonsens e and the universal
concept o f justice. Even those so eager to retain.these powers
have, during the days when th ey were powerless, been most
vociferous in their protest against th e use of laws like Safety
Act. Therefore if the retention of Item No. 3 of Lists I and III of
this Schedule is at all considered necessary, the following must
be incorporated somewhere in the body of the Constitution.
° I f any person is detained for reasons mentioned in item No.
3, Lists I and III of Schedule I, he should be produced before a
court of law within 15 days of his arrest and given full opportunity
o f defence and it should be the authority of the court alone to
determine the period for which he is to be held under preventive
detention? 9
I
SCHEDULE I I

TABLE OF SEATS—HOUSE OF THE PEOPLE

In this schedule the figure 88 in the column 6 seats reserved
for Muslims’ against Punjab should be substituted by 87 and a
new column, ‘seats reserved for Qadianis1 should be added. In
this new cbfamn, figure ‘I’ should he inserted against Punjab.
The following should be added to the notes to this schedule :
*‘(1) For filling up the seats of Qadianis in Punjab, Qadianis
of other areas in Pakistan should also be entitled to vote and
should be eligible for election.”
u(2) A Qadiani is a person who professes to believe in M irza,
Ghlum Ahmad of Qadfan as bis religious leader.”
This is a very important amendment upon which we insist
with all th e em phaaisat our command. I t is in no manner
362 The Islam ic Law an d Co nstitution

er for th e co ns tit ut ion -m ak er s of oa r country to be ob li­

prop
us of th e pe cu lia r co nd iti on s an d th e so cia l problems con­
vio
in th is re sp ec t an d to fra me a co ns tit ution on th e
fronting us
eir pe rso na l vie ws . Th ey m us t no t be un awaro of how
basis of th
e an d ten se th e sit ua tio n ha s be co me in areas where a
de lic at
ide ra ble nu mb er of Qa dia nis ar e liv in g along with Muslims.
cons
sh ou ld no t be ha ve lik e ou r er stw hi le ru’ers who did no t
They
co gn iza nc e of th e Hi nd u- M us lim pr ob lem un til the
care to ta ke
rn er s of un di vid ed In dia ha d be co m e blood-stained on
four co
nd u- M us lim dis tu rb an ce s. Fo r ou r constitu­
account o f th e Hi
be lon gin g to th is co un try as th ey do , it would bo
tion-makers,
er th at th ey sh ou ld re fu se to ta ke notice o f a
a tragic blu nd
wh ioh ne ed s an m ge nt so lu tio n an d wait un til such
problem
e as th ey fin d th at it ha s gr ow n in to a wild fire. W hat has
tim
bly to th e de lic ac y o f th e pr ob lem is th at while,
added considera
, Qa dia nia try to po se th em se lve s as and mix
on the one hand
s, on th e oth er ha nd , th ey sta nd no t only alo of
with Muslim
riv als of M us lim s by vir tu e of th eir cr eed, religious
from, but as
tic es an d co lle cti ve or ga nis ati on an d op en ly dub all the
prac
lim s as ‘JC afi rs* . Th e re me dy ev en to da y lies in declaring
Mus
a m in or ity alt og eth er sep ar ate fro m th e Muslims as had
th em
en pr op os ed by th e lat e ‘A lla ma Iq ba l tw en ty years back.
be
ld be added to the
Similarly, the words ‘and Qadianis’, shou
of Se cti on t of th e Re po rt of M in or iti es Committee.
end
e Re po rt on Fu nd am en tal Ri gh ts to o, wh ich was presented
Th
sti ly ad op ted , mu st be am en de d to th e effect that
in 1950 and ha
g po rti on oc cu rri ng in Se cti on 3 th er eo f is deleted :
the follow in
nal threat to the
“except in case of an ex terna l or inter
ency?*
security of the State or other grave emerg
o f r
su sp en d th e rig ht
The above proviso is intended to
. Isl am ic Sh ar ja h do es no t all ow , in any circum­
habeas corpus
wh ats oe ve r, th at an y M us lim or no n-Muslim citizen
stances
ld be de pr ive d of hi s rig ht to m ov e th e high est court for
shou
redress ag ain st unwarranted deten tion.
ce ssa ry th at Se cti on s 4, 7 an d 9 of th e ‘Funds-
It is also ne
 ‘Ulama's Amendments 363
mental Principles of an Islamic State9 (Appendix No .
I) formu­
lated a t Karachi in January, 1951, by accredited *Ulam8
of
various sohools of tho ugh t are incorporated at some suit
able
place tn the Constitution. .

Annexare No. 1
In our opinion Section 4 should read as under :
“In the eve nt of an objection being raised aga inst the
interpretation and definition of the Qur’an and the Sunnah
, the
ma tter should be referred to a Board of exp erts of Islamic
Law
t'U lam a-e-Pa kisa n) and the Legislature ahiould be bound by
the
ver dic t of thi s Boa rd.”
Sim ilar ly in Clause (1) of Sec tion 6 rela ting to the com ­
positio n of the Board our am endments are as under :
“ Pakistan Government should call for the name of the
Ulama of Pak ista n from such religio us organisations of ‘Ul
ama
as have been working on Central and Provin cial lev els
in a
regular manner since after the establishm ent of Pak ista n
and
whose organisations are int act up till now and the Head of
the
State should notify the ir nam es.”
If by the ter m ‘exp erts of Islamic Law ’ are to be meant
‘ U lam a-i-Din ', the n the y should have this much of dig nity
and
power tha t their ver dic t is treated final and dec isiv e. We
do
not agree with the proposal in its present form tha t just for
the
interpreta tion o f the Qur’an and the Sunnah ‘Ulamd should
bo
associated wit h the Supreme Court as it is futile tha t
they
should he associated with the judges of the Supreme Court
only
for the interpreta tion of the Qur’an and the Sunnah. Howev
er,
if 'Ulam a are appointed as Jud ges, t.e. , Qadift to adjudi
cate
upon imp ortant religio us ma tter s which become an impend
ing
necessity then it would be proper enough,
Signatories :—
Maulana Abul Hasan at Qadri.
Maulana Mohammad Abdul Hamid AI-Qadri Badauni.
Mufti Muhammad Sahib Dad,
 %

Appendix III

Co m m en ts on th e Dr aft
Co ns titutio n of 19 56

AFTER the esta blishme nt of the second Constituent

Assembly in 1955 the task of Con stitution-making
was restarted. Chaudhri Muhammad Ali presented
his Dra ft Con stitu tion in the beginning of 1956,
Maulana Maududi, in con sultatio n with his associates
prepared deta iled com ments on the Dra ft and for-
mulated concrete amendm ents to it.
Before releasing thes e comments for publication
Maulana Maududi trie d to ascertain the view poin t
of other imp orta nt sections of the oountry and . wag
satisfied tha t no material difference exis ted between
their view poin t and tha t of his own as contained in
these com men ts» These comments and amendments
are give n in the follo win g pag es.— Editor.
 COMMENTS ON THE DRAFT
CONSTITUTION OF 1956
Part II.—FUNDAM ENTAL RIGHTS
Preventive Detention
In Port IT the following things ore highly objectionable :—
Under Article 7, Clause (4) o f the Constitution Bill a party
in power can arm itself with such, repressive laws under which
it may detain a person for any length of time without a trial
and without providing him any opportunity for defence. This
ArtioJe gives unqualified licence to the Executive to detain
anybody for three months without any let or hindrance what­
soever. And for a longer detention the only restriction im­
posed is that hia ease will be put up (evidently e* parte) before
an Advisory Board. Now, if the Board, appointed for thia
purpose by the Executiye itself, opines that there exists suffi­
cient cause for arich detention, the Government may keep the
accused in jail for as long as it may desire. Moreover, this
Article authorises the making of laws under which people may
be kept under detention for an unlimited period of time even
without obtaining the opinion o f an Advisory Board. We
may be excused for this if we say that this article is much
more oppressive than Article 22 o f the Indian Constitution on
which it appears to be based. Under the corresponding Indian
Article, the Executive is at least bound to let the detenus know
the grounds o f his detention and to provide him with an
opportunity to clarify hia position before an Advisory Board.
But here, in our Islamic Republic, which should have been
more liberal and just than a non-Islamio State, the detenus is
not being given even that much opportunity. We are o f the
view that detention of a person without trial and without
providing him any, much less full, opportunity to defend him-
wolf is the very negation of justice. As a matter of fact
there should be no place for preventive detention in an Islamic
 Comments on the Draft Constitution of 1956 3«7
Constitution. But if our rulers insist upon possessing
this power it must necessarily by subject to the following
condition
♦ s :—
(i) that the person arrested under any such law shall be
produced before a court of law within a period of 15
days and a definite charge brought against him ;
(ii) he shall be afforded full facilities of defence ; and
(iii) -qply a court of law, if satisfied as to the guilt of the
accused, shall have the power to order detention and
decide the period for which he should be detained.
An Advisory Board, even if consisting of High Court
Judges, cannot and should not, be gi ven the power to
express ex parte opinion against a detenue on the
basis of mere police reports and without hearing the
other side.
Restriction on Freedom
ArticTM 8, 8, 10 and 11 provide on the one hand, freedom
of speech, assembly , associatio n, movement and right to hold
property, and on the other, power has been reserved for the
making of laws whioh may impose all sorts of restrictions on
these freedoms. In this connection too we may be exoused
for the statemen t that these four Articles of our draft Con­
stitution are much inferior as compared with the correspond •
ing Article 19 of the Indian Constitution. While the Consti­
tution of India allows the impositio n of only “reasonable
restrictions*1 on these freedoms, our draft Constitution allows
•
full liberty for the impositio n o f "any restrictions*’ on them.
And this makes a world o f difference in the two. It is evident
that if the word " res trie t ion b” is qualified by the word
‘♦reasonable” the matter beoomes justifiable and the courts of
the country can nullify or set aside any restriotio ns whioh are
not found to be reasonable. On the other band if allowance
is made for the impositio n of "any restrictio ns”, as has been
proposed in the said Articles, the matter will fall outside the
jurisdiction of the courts and an unscrupulous party or group
in power can get unlimited licence to suppress its opponents
368 The Islam ic Law and Co nstitu tio n
ir freedom of
by imposing “any res tri cti on s’* it lik es on the
exp res sio n, ass em bly , ass oci ati on , mo vem en t and rig ht
speech,
ld and dis po se of pr op ert y. It can eve n confiscate
to ho
er it likes.
their property and crush them in wh atever mann
the 'words
TT«, therefore^ demand that in dur Co nstitu tio n
na ble res tric tio ns” sho uld be sub stit ute d for 'an y
“reaso
resriclions” ,
rt III —D IR EC TI VE PR IN CI PL E OF ST AT E POLICY
Pa
The Question of Interest
made
In Pa rt III the follow ing amendments should be
t the elimi­
Article 25 of the Constitution Bill is sil en t ab ou
of Rib a (in ter est ) wh ile the cor res po nd ing Ar tic le of
natio n
nst itu tio n pre pa red by the pr evi ou s Co ns tit ue nt Assem bly
Co
en it may be
provided for the “elim ination of Riba as and wh
am ic point of
po ssible to do bo” . Considered from purely Isl
a crime than
view, pr actisin g of Riba is much more heinous
, use of liq uo rs an d pr ost itu tio n. Isl am vie ws it
gambli ng
so mu ch ab ho rre nce tha t its cu lpr its ha ve been given
with
m of wa r on be ha lf of Go d an d Hi s Pr op he t. Tn fact,
ultim atu
no oth er sin suo h a ser iou s vie w ha s bee n taken by the
of
lib era tely ex ­
Book of God. W hat then is the reason for de
Po lic y 1
cluding it from the Directiv e Princ iples of Sta te
Separation of Judiciary and Executive
of Ju dic iar y
• Ar tic le 30 which provides for the separation
Ex ecu tiv e, do es no t giv o an y tim e lim it for the im ple ­
from the
en t Assem bly
me nta tio n of this clause. The former Co nstitu
thr ee yea rs for thi s pu rp ose . W hy sho uld no t tha t
had fix ed
be adhered to 1
MENT
Pa rt IV : Chapter 1—TH E FE DE RA L GOVERN
tionable in.
The follow ing provisions of thia part are objec
for the coun­
our op ini on and we regard them very da ng ero us
We urg e wi th all the em ph asi s at our com mand tha t
try .
the y should be properly amended :—
 Comment on the Draft Constitution oj 1956 369

In clause (3) of Article 32 it is provided that notwithstand­

ing the expiration of his term, the President ehall continue to
hold office until his successor enters upon his offioe. No doubt
there is a similar provision in Article 66 of the Indian Consti­
tution also but that can be no argument for its incorporation
in our Constitutions. We must frame our Constitution accord­
ing to our own genius and the light of our own experience and
our own principles of political behaviour. It will be enor­
mously dangerous to constitutionalize the continuance in office
(even for one single day without election) of a parson who has
been empowered to dissolve all and each of the three Assem­
blies which jointly constitute the electoral college for his
election. The President must neoeasarily vaoate his office on
the expiry of his term. And in case the election for the Presi­
dentship is not complete by the end of his term, the vice­
President may temporarily take over his duties. And in order
te avoid the possibility of both the offices falling vacant at the
same time the term of office of the President and the Vice-
President may differ. (For example, the first vice-Preaident
may remain in office for 2 | years).

President’s Unlimited Powers

Articles 35, 37 and 49 empower the President to dissolve
9

the National Assembly and dismiss the Prime Minister. This

is obviously the way of dictatorship and not of democracy. As
provided in the Bill the President will not be directly elected
by the people, but indirectly by the National and Provincial
Assemblies. And to give him an unqualified and unlimited
power to dismiss the Cabinet, and dissolve the National
Assembly elected by the people (which is the electoral college
for his own election), amounts to no less than arming him with
the power to instal himself as a dictator. Any scheme which
gives so much power in the hands of a single individual is
absolutely unjustifiable and cannot be tolerated even for a
single moment much less keep the door open to this danger
for full six months’ These provisions can at any time turn
 370 TAe Islamic Law and Constitution

the country into a hot-bed of conspiracies and intrigues, and

an ambitious President with the support of a few ambitious
highups in the servioes of the country oan at any time turn
the Cabinets and the Assemblies into mere plaything s. The
experience that we hare had in the recent past of the use of
this power should be sufficient to open our eyes* The pro­
visions made under Article 35 to impeach the President and
remove him from office cannot be relied upon as an affective
safeguard against this danger. On the contrary, they may
have a diametric ally opposite effect and may incite a President
to dissolve the National Assembly simply to forestall a move
for his impeachm ent.

We, therefore, plead that the President should not al all be given
the power io dissolve the National Assembly or dismiss the Prime
Minister. As regards the Prime Minister it should on the contrary
be explicitly provided in Article 37 that he shall continue in office
so long as he enjoys the confidence of the majority of the members of
the National Assembly.
President’s Assent

Artid e 56 as proposed in the Constitution Bill oan cre­

ate ties in legislatio n. It should be so worded as to provide
that in case the President wants to withhold his assent to any
Bill; he should make a declaration to that effeot within 15 days
and should return the Bill to the Assembly with his message,
if any, within a period of 30 days, It should also be explicitly
provided that if the Bill is again passed by the Assembly with
or without an amendment the President shall give his assent
within a period of 15 days. Under the Article in its present
form a President may * delay a Bill passed by the National
Assembly for any length of time.
Furthermore, it is nowhere provided that the President
will exercise his powers other than his discretionary powers, on
the advice of his Council of Ministers. This is a grave omission
which should be rectified.
 Comments on the Draft Con stitu tion of 1956 371

p f t r t V.—THE PRO VIN CES

Gov erno r’s Powers

In this part the follo win g changes are necessary :—
Clause (6) of Article 69 empowers the Governor to rem ove
the Chief Minister of the Province from his office at pleasure.
And Clauses (1) and (2) of Article 81 auth orise the Governor
to dissolve the Provincial Assembly Indus discretio n. The
bestowal of these auto ora tio powers on the Governor is as wrong
M the bestowal of these powers on the Presiden t under the
aforesaid Articles 35, 37 and 49. In fact suoh unlimite d powers
of the Pro vinc ial Governors enhance the danger of dictator ship
in the country manifold. Under the proposed Con stitu tion the
Governors are not to be elected by the people or even by
Assemblies. They will be appointed by the Presiden t presum­
ably in his discretion and hold office during hia pleasure. It is
not mentioned anywhere in the Bill that the President shall
appoint or dismiss them on the advice of his Council of Minis­
ters. Thus the Governors will be com pletely in the hands of the
”Presiden t who will exeroise com plete oontrol over them* Now
just imagine : the Pres iden t is empowered to diss olve the
Nationa l Assembly, dism iss the Prim e Minister at pleasure and
has the Provincial Governors with the auth ority to dism iss their
Chief Ministers and dissolve the Pro vinc ial Assemblies comple­
tely under hia thumb; furtherm ore, notw ithstand ing the expira­
tion of his term, he can legally continue in his office until a
successor who can be elected by the said Asse mblies alone, is
there to enter upon hia office. Does it require any argument to
make one understand that with the help of these prov ision s demo­
cracy can be put to an end by one stroke of jten, and a period of
six mon ths which can lega lly interven e between the dissolution
of Assemblies and their re-eleotion is sufficient for manoeuvring
the election s to the desired end ! Will it be advisable to keep
the door open for such dangerous poss ibilities ? Therefore, here
too, we plead that the Governors should not have the powers to
dissolve the Prov incial Assemblies or dism iss a Chief M eiste r.
 372 T ie Islamic Law and Constitution
The, Chief Ministers must continue in office as long as they
enjoy the confidence of the majority of their Assemblies,
Governor's Assent
Article 88 does not make it binding on the Governor that in
case they wish to withhold their assent to a Bill they should
make a declaration to that effect and return the Bill to the
Assemblies with their message within a specified period. More­
over, no time limit is fixed during which the Governor must
assent to a Bill which has been reoonsidered and passed again by
the Assemblies with or without amendment. Therefore, here
loo, amendments similar io those suggested under Article 56 should
be made in order to check undue delay in the passage of Bills,
Part IX .—THE JUDICIAR Y
Appeal Against M ilitary Courts
Article 170 empowers the Supreme Court to grant special
leave to appeal from any judgment, decree, order or sentence of
any oourt or tribunal in Pakistan. But it expressly bars the
Supreme Court even from looking into the decisions and orders
of the Military Courts and Tribunals. This is clearly contrary
to justice. If the Supreme Court is to be the final repository of
justice in the country, every aggrieved person whether a civilian
or a military man should have the right to appeal for redress to
the Supreme Court if he feels that any lower oourt (civil or
military) has failed to do him justice. So far as we are aware,
both in England and in America the highest courts o f appeal
have this power and there is no earthly reason why the Supreme
Court of a oountry striving to become an Islamic Republic should
not bo given this power. Therefore, the words “ other than a Court
or Tribunal constituted by or under any law relating to the Armed
Forces” should be deleted from this Article.
Appointment of Judges
Article 174 lays down that the High Court Judges shall be
appointed by the President after consultation with the Chief
Justice of Pakistan and the Governor of the Province to which
 Comments on the Draft Con stitu tion of 1956 373

the appointment relates. We consider the inte rre ntio n of the

Provincial Governor in the appointment of the Judges of the
Hig h Courts to bo very objectionable. If the Judiciary is to be
independent of the Exe cutive, there is no reason why the heads
of the Provincial Governments should hav e any thin g to do with
the appointment of the High Court Jud ges who have to safe ­
guard the rights of the people aga inst the Pro vin cial Executive
also. It ia wrong in principle as well as derogatory to the dig ­
nity of the High Court and may eve n exerciae an unhealthy
influence over the Court’B powers to dispense justice in a free
and unfettered manner. Therefore, the words “ the Governor of
the Province to which the appointment relates" should be deleted
from Article 174 (/).

Par t X L —EMERGENCY PRO VISION S

In this part o f the Bill the following Articles are objection­
able and should be properly amended :—

Suspension of Fundamental Rights

Article 200 empowers the Pre side nt to suspend certain or
even all the fundam ental righ ts as well as the righ t to move any
court including the Supreme Court for the enforcement of righ ts
conferred by Part II of this Con stitutio n. We are of the opinion
that this, in conjunction with certain other Article s of this Con­
stitu tion completes the scheme which makes the establishment of
dictatorship possible at any moment. Jus t imagine the stat e of
thin gs : the President dissolves ths Central and the Pro vinc ial
Assemblies and dism isse s the Min iste rs ; if the people try to pro­
test against this he proclaims an emergency and imposes “an y
restrictions" on freedom of speech, expression, assembly, associa­
tion, procession, and put s behind the bar “the more dangerous
elements" including the deposed Min iste rs and influen tial mem­
bers of the Assemblies ; bans the par ties , if any , in the country
and confiscates all their property. And if the people try to knock
the door .of jud icia ry for redress, the President under this Article
suspends even this right of the people and this power of the
 374 The M amie Law and Constitution
Courts inclu ding the Supreme Court. Perh aps only a miracle can
sate the country from dictatorship under these circumstances.
Hav e the Hon’ble Members of the Constituent Assembly
presumed that angels alone will be elected to the Presidentship
o f the coun try and that none throughout the country excepting
the President—n ot even the Central Ministers, nor any of the
300 members of the National Assembly, nor the Judg es of the
Supreme Court—can be trusted in times o f emergency 1 I f the
Hon’ble Members of the Con stitu ent Assembly really hold this
opinion about them selve s and their natio n what is the necessity
of stag ing this show of democracy \ The best thin g in this case
would be to just elect som e angel as President and entr ust to
him with full confidence all “the judicial, executive and legisla­
tive powers for life and then beseech him to nom inate another
angel to succeed him after his death.
We are fully alive to the need of setti ng some sort of rest­
rictions on the fundamental rights and o f the nece ssity of em­
powering the Exec utive , in times of emergency, with powers
wider than those enjoyed by it in pormal time s, but no human
being should be given such absolute powers a little misuse
whereof may endanger the very freedom and liberty of the
entir e nation.
Proc lama tion of Emergency
Under Clause (2) of Article 203 it*has been provided that
the valid ity o f any proclamation o f emergency shall not be
questioned in any court. We are o f the view that the jurisdic­
tion of the Supreme Court to see into the valid ity of this mat­
ter should not be barred. "When the circumstances which can
justi fy the proclamation of an emergency have been described in
Article 199, there must necessarily be some court in the country
which should have the powers to judge whether these circumstances
did or did not in fact exist at the time of the proclamation. Further­
more, ther e should exist some remedy in the Constitution
against an unjust proclamation of emergency specially when the
National Assembly too is not in existence . Therefore, the words
 Comm ents on the Dr aft Co nstitu tio n of 1956
S75

at the end of
"other than the Su pre me Court” should be added
Clause (2) of Ar ticle 203.

Pa rt X II. —G ENER AL PROVISIONS

Islamic Provisions
ovisions,
Chapter I of this Pa rt deals with the Islamic Pr
will rest the
and Article 205 forms the on ly basis an which
am ic Order in
po ssibility or oth erw ise o f estab lish ment of an Isl
cou ntr y. Th ere for e, thi a Ar tic le des erv es our special atten-
the
whether this
tion and it is our du ty to oarefully consider
em ent of the
Ar tic le helps and if so, to what ext en t, the ach iev
an Islamic
ob jec tiv e whioh "prompted the demand for
Co nstitu tio n.
shall be
Clause (1) of thi s Article declares tha t ‘no law
Islam as laid
enacted whioh is repugnant to the Injunctions o f
n in the Ho ly Qu r’an and the Su nn ah and the existing laws
dow
ctions*. This
sha ll bo brought int o con formity with such ‘Injun
ry. Bu t the
provision in its elf is no doub t mo st satisfa cto
given to the
follow ing Clause (2) lay s down tha t effect sha ll be
ed in Clause
provisions of Clause (1) ONLY in the manner provid
(3). And Clause (3) is as under :—
Presi­
“ (3) Within one yea r of the Constitution Da y, the
den t shall appoint a Commission :—
of the
(a) to compile, in a suitab le form, for the guidance
such
Na tio na l Assem bly and Pr ovincial Assem blies
ect,
Injun ction s of Islam as can be giv en leg isla tiv e eff
and
(5) to make recommendations : —
unc­
(•) as to the steps and sta ges by which the Inj
tio ns of Islam sho uld be giv en effect ; and
for­
(li) as to the bringing of the existing laws into con
mity with the said Injunctions.
5 years
Th e Comm ission shall submit its'fin al report within
ort earlier.
of its ap pointment, or may sub mit an y interim rep
 *
376 TA« Islam ic Law and Constitution
The report, whether interim or final, shal l be laid before the
National Assembly with in six months of its receipt, and the *
Assembly after consider ing the report shall enact laws in res-
peot thereof,**
When we ponder over the procedure enumerated in Clause
(3) of this Article we feel that this Clause take s away almost
all that was provided for in Clause (1).
In this scheme the following four drawbacks are quite
evid en t;—
Firs tly, even after the Con stitution Day for at least
seven year s ther e will be 4 full liberty* for the making of
laws repu gnant to the Holy Qur’an and the Sunnab and
Clause (1) o f this Article with all its comprehensiveness
will not be able to affect such legislatio n in the coun try in
any way.
Secondly, even after the lapse of this period o f seven
years it will not be open to anybody to challenge any Jaw
in any court on the ground of its repugnancy to the Qur’an
and the Sunnah, because the word “ON LY” in Clause (2)
prohibits that also.
'Thi rdly , the Injunctions of tho Qur’an and the Sunnah
once compiled by the Commission appointed by the Presi­
dent, will presumably serve as the sole source of Islam ic Law
and it will not be open to argue against any law from out­
side it even on the basis of the Holy Qur’an and the
Sunnah, as the word “ ONL Y” appearing in Clause (2) will
preclude that also .

Fourthly, it is true that after six and a half years the

report of the Commission shall be laid before the National
Assembly, but it will still depend on the sweet will of that
Assembly as to what exte nt it should take cognizance of
that report in enacting laws, and how long it should take
in bringing the exis ting laws into conformity with the said
'njunctions.
 Comments on the Draft Constitution of 1956 377

These are the reasons which compel us to submit that the

proposed Article in its present form instead of meeting the de­
mand of the people for an Islamic Constitution practically
amounts to an attemp t to hoodwink or at least delay it for an
unknown period. We do not at all allege that this is the result
of any such deliberate attem pt. On the other hand we are
confident that the framers of this Bill had no such intention.
Therefore, we hope that they will welcome suggestions to make
this Article more effective and practicable for securing the
desired end. It is with this and in view that we suggest the
follow ing form for this Article :—
“Artic le 205. (1) No law shall be enacted which is
repugnant to the injunc tions, directives and the basic teach­
ings of the Holly Qur’an and the Sunnah (hereinafter
referred to as the Injunctions of Islam) and if any objec­
tion is raised in any legislature that a Bill or any part of
it ia repugnant to the Islamic Injunctions, it shall be
decided upon by the majority of the Muslim members of
that Assem bly.
(2) In the case o f Money Bills effect shall be given to the
provisions of Clause (I) of this Article in the manner
prescribed in Clause (4) below.
(3) The existin g laws shall be brought in confor mity with
the Islamic Injunctions, in the manner prescribed/ in
Clause (4) below.
(4) Within a year of the Constitution Day the President
shall appoin t a Commission consisting of equal number
of experts of Islamic law and experts of modern law
and admin istratio n toa :—
(а) compile in a suitab le form an authen tic code of
Islamic Injunctions for the guidance of the Nation ­
al Assem blies, and
(б) make recommendations :
($) as to the steps and stages by which Clause (1)
of this Article may be applied to the Money
378 The Islamic Law and Constitution

Bills, and
(h ) as to what improvements are desirable in the
existing laws from the Islamic point of view
and the steps and stages by which they should
be brought in conformity with the Islamic
Injunctions within a maximum period of ten
years.
Thia Commission shall present a report each year, and
. will complete its work within five years o f its appointment.
The annual reports of the Commission shall be presented
before the National Assembly within six months of their
receipt and the Assembly, after studying them, shall enact
such laws as may be necessary under Clauses (2) and (3).
The Clause (4) of the existing Article 205 may ba numbered
as Clause (5) and the last explanatory note retained as
such.
Our above-mentioned proposal, on the one hand, solves all
those difficulties for the solution whereof authors o f the draft
Constitution have worded Article 205 in its present form and,
on the other hand, it does away with all the drawbacks that we
have pointed out above. Now the only question that remains
to be solvol is as to who should act as a final authority to
decide whether a law is or is not in conformity with Islam ; the
Supreme Court or the Legislature itself 1 We are of the view
that the best solution is the same which was unanimously propos­
ed by the Conference of 33 ( Ulama in 1953, i.e,, like all other
constitutional disputes, the dispute as to whether a law is or is
not in conformity with the Islamic injunctions should be
decided by the Supreme Court and for tho first 10 or 15 years
five ‘Ulama should bo appoited to help the Supreme Court in
deciding suoh disputes. Anyhow, if the members of the Consti­
tuent Assembly are not at all prepared to accept this proposal
thon only acceptable solution is to leave it to the decision
of the majority of the total number of Muslim members of the
Legislature x
 Comments m the Draft Constitution of 1958 379
PART X I I : CHAPTER V—MISCELLANEOUS
The following Articles too, are objectionable and should be
suitably amend ed:—
Martia l Law
Article 214 will, for the first time in our constitutional his­
tory, confer constitutional basis for the imposition of Martial
Law in the country. Even in the British days the Constitution
was silent in this respect. A provision in the Constitution for
the imposition of Martial Law is not objectionable in itself,
what is being objected to is the way it is being provid ed for.
On the one hand the Article is silent as to the circumstances in
whioh Martial Law may be imposed, and does not impose any
restrictions on its nature, extent or duration, and on the other,
it empowers the parliam ent withou t any restric tion not only to
indemnify any person in respect of any act done during Martial
Law but also to validat e all sentences passed, punishments
inflicted, forfeitu res ordered or other acts done by the Martial
Law author ities. The fact becomes all the more painfu l when we
observe that our constituion-makers do not seem prepared to allow
even a.s much latitude to their own naiion as its British conquerors
allowed it in the worst of times. Regulation 10 o f 1804 which
the British Government promulgated at a time when it was at
war. with the people of India, empowered the Government to
impose Martial Law only in the following two cases
(♦} In case of war, or ..
(it) open rebellion in the country.
And even under these circumstances it permitted the mili­
tary courts to try only those persons who were arrested while
taking part in an armed revolt against the Government or were
caught ' openly helping the enemy. With the exception of these
two types of people, with respect to all others, howsoever
seriously involve d, Lord Wellesley issued cloar instructions that
the militar y officials could only arrest and detain them for
delivery to the civil authorities for trial. Moreover, Indem nity
380 TAe Islamic Law and Constitution

Acts passed by the British Government always indemnified only

those acts of the authorities which might have been performed
in good faith. But our Constitution Bill neither prescribes any'
conditions for the imposition o f Martial Law, nor places any
limit on the powers of the Military Courts, nor qualifies the acts
to be indemnified with the epithet of *' done in good faith S'
The Hon'ble Const i tut ion^makers should not forget that they
are making a Constitution not only for their country and nation
but also for themselves and their coming generations. We, there­
fore, request them to amend this Article in the light o f the
following suggestions :—
(1) Only those acts should bo allowed to be id e n ti­
fied which may have been performed in goad faith and were
necessary for the restoration of law and order.
(2) There should either be no provision for validation
of sentences, punishments and confiscations indicted or
ordered by the Martial Law authorities ora right o f appeal
against them in the High Court or Supreme Court must be
granted ; and
(3) At the end of this Article, the following clauses
should be inserted :—
(a) Martial Law can be imposed through a proclama­
tion by the President:
(i) in case of open rebellion in the country and
when the civil authorities have failed to restore
order or,
(it) in tim es of war for purposes of defence.
(ft) Martial Law shall remain in force only so long as
the civil authorities are not able to take over the
administration,
(c) The Martial Law authorities shall do no more than
the restoration of law and order,
(d) The Martial Law Courts shall have no jurisdiction
over civilian ojtizens unless arrested in an armed
 Cotnmenis on the Draft Constitution of 1956 381

revolt or found actually helping the enemy.

(e) Martial Law regulation or orders shall not apply

to aots done before the promulgation of Martial
Law.

WITHOUT THESE AMENDMENTS THIS ARTICLE

CANNOT BE ACCEPTABLE,
Art iola 216 gives absolute powers to the President to par­
don or commute sentences passed by any court or authority.
Thia power of the President, too should be exercisable within
the limits prescribed by the Holy Qur’an and the Sunnah. This
was what the former Conatitutent Assembly had provided in its
draft and there is no reason why the present Assembly should
depart from that.

Part X I I : CHAPTER 6—INTERPRETATION .

Oath
Article 224 lays down that where under the Constitution* a
person is required to take or subscribe an oath, he may make
and subscribe an affirmation. This Article should apply to the
non-Muslims only. A Muslim must take the prescribed oath.
Therefore, the words “other than a Muslim" should be inserted
after the word “person" in this Article.

SECOND SCHEDULE

/The forms -of oath proposed herein require revision. Many

important components of the oaths prescribed by the previous
Constituent Assembly have been omitted from the forms pro­
scribed by this Schedule. There is no reason why the Muslim
signatories should avoid the taking of these oaths. We, there­
fore, demand that the forms of Oaths prescribed in this
schedule be brought in conformity with those proposed by the
former Constituent Assembly,
382 TAe Islamic Law and Constitution

FOURTH SCHEDULE : PART II

Disqualifications
All persons sentenced to two or more years o f imprison­
ment have been disqualified for being elected as members of the
National and Provincial Assemblies. This disqualification should
be limited to only those persons who may have been imprisoned for
committing any offence “ involving moral turpitude.” The former
Constiutent Assembly had accepted this proposal in. the pro­
posed draft.

SOME ADDITIONS
Pacts an<LAgreements
It should be expressly provided in the Constitution .that
Pacts and Agreements with foreign countries shall be placed
before the Parliament for approval and ratification.
General Elections
The Constitution should also lay down the time-limit
within which after the Constitution Day, general eleotiona shall
be held throughout the country.
 Appendix IV

Co m m en ts on
19 56 Co ns tit ut io n

The Second Con stituen t Assembly of Pak ista n

passed l The Con stitutio n of the Isla mic Republic of
Pakistan* on 29th February, 1956 and the Governor-
General gav e his asse nt to it on 2nd March; 1956,
This Con stitution was enforced from 23rd Marah,
1956. Maulana Maududi’s view s on it can be known
from the Resolu tion moved by him in and adopted
by the Majlis-e-Shura (Central Exe cut ive Council)
of ex-J am aat -e-lslam i, Pak ista n on 18th March
1956 in Lahoro. Because of ita historic valu e this
Resolution (which w&e released to the Press in the
form of a stateme nt of the said Majii ) reproduced
here in this Appennix,—Editor.
 COMM ENTS ON 1956 CONST ITUTION

LAHORE, March 18 ; Majlis-e-Shura, Jamaat-e-Islami,

Pakistan , has issued the following Press Stateme nt on Pakistan 's
Constitu tion :
MAJLIS -E-SHUB A, Jam&at>e-lslami, Pakistan , offers
thanks to Almighty God that after a long struggle stretchin g
over eight years and passing through various dangerous stages
the question of the future Constitution of the country has, at
long last, been settled in a manner which, to a great extent,
the aspirations of Islam-lo ving democratic people. In spite of
all its drawbacks the Constitution of the Islamic Republic of
Pakistan as passed by the Constituent Assembly on 29th
February and assented to by the Governor-General on
2nd March, 1956 is for several reasons acceptable and
satisfact ory.
Firstly, with the coming in force of this Constitu tion the
period of our slavery in thia country finally comes to an end.
The sovereignty that was transferred to us in August 194? from
the British Parliam ent, did not directly devolve on the people
of Pakistan . Instead of that it was entruste d to the Constituent
Assembly and it was left to that body to decide in what manner
or shape it should be transferred to the people. For a number
of years the Constituent Assembly felt reluctan t to relinquish
this sacred trust to its rightful recipien ts. When at last under
public pressurp. it was just on the verge o f transferring the trust
to the real beneficiaries, the then Governor-General dissolved
it in October, 1954 and, as a result of a judgmen t of the
Federal Court, the sovereign power o f the country was declared
to vest not in the Constituent Assembly which could be said to
possess some representative character, but in the Governor-
General who represented nobody and was him self appointed by
tho British Grown. Thus our Freedom was, as a matter of
fact, mortgaged, first, with the Constitu< Assembly and
 Couraen/e o/ iAe 2>ra/ Constitution of 1956 385

thereafter with the Governor-General. Now the assent o f the

Governor-General to the Constitution o f Pakistan is tanta­
mount to an act of redeeming the mortgaged freedom of the
country after which we are, now for the first time, to really
have our share of the blessings of freedom* Consequently,
should such an opportunity present itself even with some dis­
count, no well-wisher of this country will refuse to avail o f it.
Secondly, the Preamble of the Constitution, its Directive .
Principles and Article 198 o f the Constitution have finally and
unequivocally settled the 8-year old struggle between the
.Islamie and anti-Islamic trends in favour o f the former. And
the fact that the future system of life in 'this country has to be
shaped on the basis of Islam and that the Qur’an and the
Sunnah shall ever reign supreme here has been so firmly em­
bodied in the Constitution of the oountry that no worldly
power shall, Insha Allah t be able to obliterate it. This in
itself is a great victory for which all Ahle-Iman (believers
Muslims) should feel felicitated and thank Almighty God.
After nearly 200 years o f domination o f 4Ku fr' it is for the
first time that the sovereignty o f Almighty God and the legal
supremacy of High faith (Dm) has been acknowledged in our
Constitution» Again, it is for the first time that this epoch-
making decision has been incorporated in the Constitution of
tbe State that un-lslamio laws will not be valid, that all laws of
the British period will be brought in conformity with the Qur’an
and the Sunnah, and that no legislation which is repugnant to
the Holy Qur'an and the Sunnah shall be enacted in future^ Not
only that, it is for the first time after the Khilafat-e-Rashidalx
that the governmental authority of an Islamic State has passed .
into the Hands of the common people instead of royal families.
This great revolution has indeed changed the course of history
and has given birth to new era which, if we desire (and God
helps us) can, with the grace of God, be turned into a second
golden age in the history o f Islam. No doubt, the method of
implementing these provisions is not commensurate with their
grandeur ; and it is a pity that the methods o f making these
 386 TAe Islamic Law and Constitution
provisions effective as suggested by the Islamic parties have
not been accepted. Furthermore, the methods proposed in the
new Constitution ie such as will be effective only if rffcht sort
of persons are elected by the electorate. Anyhow, if the
Islamic ideology is supported by an awakened and strong
public opinion, and the people continue to return such re­
presentatives in the coming elections as arc capable of and
determined to work for Islam, then even this method can be
utilised to achieve suoh results as would transform Pakistan
into an ideal Islamic State in a few years.
Thirdly, from a democratic point of view too the Constitu­
tion is to a large extent satisfactory. The balance between the
Executive, the Legislature and the Judiciary has been almost
equitably and fairly maintained ; in the form of an Election
Commission, a very good provision has been, made for holding
elections ; proper checks have been provided to prevent the
political parties from unduly interfering with and influencing
the Services ; and not much niggardliness has been shown in
conceding the fundamental rights to the people and guarantee­
ing their enforcement. Although along with these bright
spots the Constitution has a good many objectionable features
also—some of which are very dangerous indeed —for instance,
preventive detention, complete suspension o f fundamental rights
during an emergency, unlimited powers of promulgating
Martial Law and enaciog indemnity laws disqualifying a person
sentenced to imprisonmen t of two years or more from being
eleoted to the Assembly irrespective of whether he may have
been sentenced for committing an offence involving moral
turpitude or on political charges, and absolute powers of the
President to grant pardon and reprieve which may even
transgress the limits prescribed by God, yet all these and
other deloots (not enumerated here) cannot constitute a suffi­
cient or valid ground for rejecting the Constitution especially
as the methods provided for amending the Constitution is
quite easy. It is oppn to tho people at*any tim e in future to
elect such representatives as are prepared to run the admiuis-
 Comments of the Draft Co g lu tto n of 1956 387
tration of the country without the i Jp of repressive laws and
undue authority and thereby remove these black spots of the
Constitution.
Fourthly, this Constitution has to a very great extent
satisfacto rily settled the controversy over the distribution of
powers between the Centre and the Provinces which had been
raging for a long time and which had particular ly created dan­
gerous condition s in East Pakistan. The distribution of powers
has now been effected in such a balanced manner that, while
the Provinces have been given practically all the necessary
powers, the Centre has not been allowed to be weakened so as
to endanger the solidarity of the country in any manner. AH
the same, if experience shows any defects in this distribution
of powers and the practical requirem ents of any part of the
country call for a change therein such a change will not
be very difficult due to the flexibility of the Constitution.
Hence no present or future defect of the Constitution can be
reasonably made a ground for rejecting the whole o f the
Constitution,
It is for these reasons that Majlis-e-Shura of Jamaat-e-
Ialami, Pakistan accepts this Constitution and would also
advise all well-wishers of the country to accept it in all sin­
cerity. At the same time the Majlis appeals to all those
people who are anxious to see Pakistan develop into a full-
fledged Islamic State, that, in order to ensure the successful
working of this Constitution and to make it an effective
means for the achievem ent of the real objeot in view, namely
the establishm ent of the Islamic Order, they should oontinue
working with the same unanimity of opinion and unity of
action which has brought this success to them in their struggle^
for the framing o f an Islamic Constitution.
The Constitution would produce no useful results unless
and until our entire social set-up, with all its various com­
ponents, is morally prepared to see that the Constitution does
work as a successful Islamic Constitution and unless our
masses develop the ability to elect the right type of persons
38H Th* M am ie Law and Constitution

translating it into action. This calls for concerted effort* on

the part of all sincere Muslims. Mutual recriminations
a
amofagst •various groups over petty triflee would prove dis*
astrons. Unity and solidarity are all the more neoeesary now
especially as an all-important constitutional issue, the nature
of electorates, still remains undecided. And this question
has not only been left undecided to be tackled by the National
Assembly only, but it has been made incumbent upon the
Assembly to ascertain and consider the views of the Pro­
vincial Assemblies also. . In this disconcerting state of affairs
those who stand for an Islamic Constitution cannot in any way
afford to relax their efforts at this stage. We should all stand
as one man and work hard to see that the issue is conclusively
decided in favour o f separate electorate and the designs of
introducing the system of joint electorate are buried deep
once for all. This would be impossible o f achievement unless
public opinion is so thoroughly mobilized against joint
electorate in Pakistan as well as in West Pakistan that none
but those prepared to commit political suicide should dare to
vote for it.
 Appendix V

White Paper on the

Problem of Electorates
THE Jamaat-e-Islami, Pakistan issued, a “ Whit®
Paper on the Problem of Electorates” in January
1958. As this docum ent has became a part and
parcel of the political histor y of Pakistan and as it
presents the electorate problem in its manifold aspects
we deem it advis able to include it as an Appendix in
the present yolum e.—Editor.
 WHITE PAPER ON THE PR
OBLEM OF
ELECTORATES
1. The country is faced w ith a
critical situ atio n today,
Po lit ic al horizon is overlaid w
ith dark and dismal clouds.
In st ab ili ty has become th e orde
r of th e day. D ecisio ns ir e
being taken in utter disregard
of the wishes of the people."
People, th e real de ciding fa ctor ,
th e real au th or ity , have been
relegated into ob liv io n, while th
e so-called representatives of
th e demons are ruling ju st thro
ugh intrigues, conspiracies and
unholy alliances. E conom ic situ
atio n is worsening every da y.
Po litic al sc en e is beconfing mor
e and more confused. Social
conditions are deterioratin g lik e
an ything . D isruption within
and disrepute abroad, thia is th
e situ atio n today.
The confidence of th e people ha
s been shaken to it s very
roots. They have no fa ith in
th e leadership. T hey ha ve a
deep and sincere fe el in g th at th
ey ha ve been betrayed. N ot
on ly th ey have no t been give n th
e chance of electin g th eir own
leadership during th e last ten ye
ars but conspiracies have been
hatched to perm anently de priv e
them of their right of choosing
their real representatives in an ho ,
nest, clear and fa ir way, by
clamping upon them a system of
electorate which so confuses
elections th at m os tly the intrigue
rs and th e vested in te re st will
emerge successful ou t of it . Thia
is the m ig htie st and th e m ost
outrageous conspiracy to corrupt
the political system and vi tia te
elections for all tim es to come.
It w ill deprive the people of
ever getting a chance to have a gove
rnment of their own choice. The
tim e has com e when th e facade of
th is ugly conspiracy should be
torn asunder and a united effort
be made to protect th e con­
st itu tio n and la y th e foundatio
ns of real democracy in th e
oountry.
2. Muslim India has always stoo
d for th e id ea l of it s sepa­
rate nationhood. In Islam ther
e is no place for th e narrow,
ch auviniatic idea of territorial na
* tionalism . Muslims realised
 TFJifte Paper on the Problem of Electorates 391
their separate entity and in 1906 demanded separate elector­
ates. The demand was accepted fin 1909) and despite all the
machinations and manoeuvrings of the Hindus, the Muslims
succeeded safegarding this system. Mr. Jinnah’s famous
Fourteen Points included the demand that “ the representation
should continue to be by means of separate electro atea. as at
present” and a farther elucidation of the point was made in
the fifteenth point added later on, which unequivocally declar­
ed that the system of “Separate Electorate is inevitable” .
This demand was not based merely on any time-bound regard
for political protection but was definitely an outcome of the
realisation of the separate nationhood of Muslims. It is clearly
borne out in what Quaid-e-Azam said in November, 1915 :
“ We (the Hindus and Muslims} are different in every­
thing. We differ in our religion, our civilization and
culture, our history, language, our architecture, music,
jurisprudence and our society, our dress—in every way we
are different—We cannot get together in the ballot box'\
That is why after partition the issue naturally remained
settled. People never had even the slightest idea of effecting
any change in the system. Elections in the Punjab, N.W.F.P,,
Sind and East Pakistan were hold on this basis. The Liaquat
Ali Khan Report (1950) presented this principle. The Nazim-
uddin Report (1952) was based on it. Muhammad Ali Bogra
Report (1954) envisaged this very principle, In the East
Pakistan elections, held in March 1954, no reference was made
to it and the twenty-two points of the United Front do not
mention it directly or indirectly. The principle of parity was
adopted during this period but no mention of any change in
the principle of electorate was made in that either. After the
dissolution of the first Constituent Assembly Mr. Suhrawardy
joined the cabinet and got the principle of parity accepted by
his East wing colleagues, but not the slightest reference was
made to the reopening of the issue. The formation of one
Unit was effected in 1955 and here too no reference was made
to the issue of electorates. Even when the Awami League
392 The Islamic Law and Constitution

opposed the One U nit bill, no mention wm made of this i

The only thing with which the One Unit bill wee linked, was .
the principle of parity. So the history shows* that the issue of
electorates was never a disputable issue in the eyes of the
Muslims of Pakistan and even in their political circles it never
arose for reconsideration. Nor was this issue linked up with
any other question, be that of Parity or One Unit or any
thing else.
3. It may be asked that if this is so then how and when
did this question arise and assume so much importance 1
The fact is that the Hindus have been trying to impose
joint electorates over the Muslims o f the sub-continent from the
very outset. Like us, for them too the problem o f electorates
is an ideological issue. They want to erect the polity on the
foundations of secularism and territorial nationalism, and joint
electorate is an important and effective device in their scheme
of things. Not only that ; the system o f electorate is o f sig*
niScant imortance in a modern state. It aots as the very
foundation upon which the political institutions are baaed. It
is an integral part of the political structure and cannot be
detached from it, because it is the ladder by means of which
the political leadership emerges in a modern polity and con­
trols all the organs of the state. Hindus realised this signi­
ficance of the electorates and fought tooth and nail against
the Muslims’ demand for separate electrorate*, so much so
that when the. Muslims succeeded in getting this demand
accepted in 1909, they devoted all their energies to undo it.
Andwhen they formulated their draft constitution o f the
country in the form of the 'Nehru Report’, they incorporated
therein the principle of joint electorates and were not prepared
to effect any ohange in that.
Despite the partition of the country and the vindication
o f the Muslim view-point they refused to reconcile themselves
to the basio approach of the Muslims of Pakistan. . Thia was
fully realised by Qup.id-e-Azam himself and after carefully
studying the trends that set in, he declared that ;
 s 393
JFMte Pa pe r on the Problem of Electorate
ioe, non-Mus­
“B efo re we could assume th e reins of off
which subsequent
lim s sta rted pulling out of Pa kista n,
pr ov ed , wa s pa rt of a we ll- or ga ni se d plan to
ev en ts ha ve
oripple Pa kista n , (October 1947).
0
laid and well-
“ We ha ve been th e vic tim s of a deeply
ns pi ra cy ex ec ut ed wi th ut te r dis re ga rd of the
planned co
ry pr in cip les o f ho ne sty , ch iva lry an d honour” .
ele m en ta
(October 1947),
re words but
“ M inority Com m unities m ust no t by me
ly loy al and they
by ac tio ns show th is th at th ey are tru
ke m aj or ity co m m un ity fee l th at th ey are true
m ust ma
cit ize ns of Pa kista n” . (June 1948).
is no w pe rfe ctl y ob vio ns th at , ha ving fa ile d to
“ It
us lim s fro m ac hi ev in g Pa kis tan , the se agencies are
prevent M
w try in g to dis ru pt Pa kis tan fro m with in by insidious
no
aim ed at se tti ng br oth er M us lim against
propaganda
brother M u sli m s( M a r o h , 1948).
ad of re co nc ilin g th em se lve s to th e basic id eo -.
Thus, inste
Pa ki sta n is ba se d, th ey be ga n to as sa il it from
logy on which
Th ey tri ed to ra ise th e slo ga n of jo in t electorates on
with in .
rtu ni ty th at th ey go t. In 19 51 wh en an amend*
th e first op po
nt to th e fif th an d six th so he du le of th e Government of
me
t, 19 35 , wa s be in g dis cu sse d in th e Constituent
India Ac
bl y an d th e pr in cip le of ad ul t su ffr age was being ad op t­
Assem
de rs gir de d up th eir loi ns an d Ur . Raj Kumar
ed Hindu lea
, wi th ou t pa yin g an y he ed to th e re lev ancy of th e
Chakravarty
issue, deol&red :
we all wa nt — es pe cia lly th e m in or ities—jo in t
“Sir,
cto ra tes , no r on ly in Si nd bu t als o in Ea st Bengal. Bu t
ele
more of th e Bi il
I find th at an im po rta nt om ission .......The
o ha ve m ov ed for th e sy ste m of jo in t ele cto ra tes
should als
re se rv at ion .... ...I wa nt to ra ise he re th e question
with ou t
Be ng al we ar e ve ry ke en ab ou t the sy stem of jo in t
that in
on 11.1
electo ra tes wi th ou t re se rv ati
vie w-po in t. But
They failed to convert an ybod y to th eir
As sem bly of Pa kis tan Ptb ate #, Volume TXf No. 2» p. 31.
L
 394 The Islam ic Law and Constitution
despite the failure they continued their campaign singlehandod.
Then came that unfortunate period of our histor y when political
wranglings and power-politics divided the Muslims into half-a-
dozen groups and the balance of power went into the hands of
the Hindus. Being in posse ssion of the balance o f power they
tried to cull out a heavy price of their support. In August 1955
Central as well as East Pakistan Ministries were formed with
the support of the Hindus. And the Muslim partie s which
joined these Ministries were prepared to-ba rter away even the
ideology of Pakistan for the votes of the Hindu s I Mr. B.K.
Das, leader o f the Congress Party , while . givin g reasons of
their participatio n in Government said on September 6, 1955 :
"The Pakistan National Congress baa throughout been
fighting for the acceptance of the princ iple of Joint Electro­
rates and a constitutio n for the country fully democratic in
outlo ok..... . At present, however, there are signa discernible
that the reasonableness of our demand from the stand point
of the larger interests o f the state stand s recognised by the
parties as they have recen tly emerged in both the wings...
J7e were eager to take advantage of the changed circumstances
and decided to work in co-operation with all sections and
comm unitie s”. (Dawn. Sept, 6, 1955).
That was how and when the electo rate issue was raised.
And it was done at the instan ce of Hindus and Hindus alone.
The "changed circumstances” were more congenial to them and
they "took advan tage” of this situat ion. Now they had with
them from amongst the Muslims them selves certain advocates
of their viewp oint.
4. On the very first signs of this deal Jam&at-e-Islami
raised its voice again st it. Maulana Maududi warned again st
this secret compromise and asked the people to defea t this
maohination of the saborteurs. On 2nd September 1955 he
issued a statem ent again st this move and condemned it in un«
equivocal terms. In Novem ber, 1955, on the occasion of the
Aunual Conference of Jama at-e-Island , Maulana Maududi again
warned again st the dangers of this move. The public opinio n
 White Paper on the Problem of Electorates 395

was so vehem ent against this move that the framers of the
Constitution had to defer final decisio n on this issue. A pro­
vision was made in the Constitution that the system o f electro­
rat® will be decided by Nation al Assem blies. The West Pakistan
Aasemblo voted in favour o f separate elector ates and the vote
was almost unanim ous, only 10 persons dissen ting in a House
of 310. The East Pakistan Assem bly is alleged to have decided
in favour of joint electorates. But this decision (if at all
taken) was made with a very small margin and that too with
support of about 60 Hindue votes, against the wishes of a large
majority of the Muslims members of the Assem bly, and worse
of all, in a House which was in a state of utter chaos because
of coercion, intimidation , and even manual interference from
the galleries filled with Hindus and goondas of the ruling
clique.
Then a week later when the matter came before the
Nation al Assem bly it evolve d a most dangerous and nonsen-
Bible formula. It adopted Joint Electo rates for East Pakistan
and Separate Electo rates for West Pakistan. This was done
at a time when practic ally the whole of the country was de­
manding separate electorates. Seotion 144 was dampe d on
Dacca to stop the people from voicing their views and goondas
unleashed upon them to give them some lessons in law and
order. The Republican Party which only a couple of dayet
earlier had most unequ ivocally assured to stand by its own and
the nation ’s unanim ous decisio n in favour of separate elector­
ates, overnight took a somerBault under pressure from the
President and the West Pakistan Governor who had flown to
Dacca. It colluded with people bent upon undoin g Pakistan
and its basic ideology simply to retain power and voted for the
said foolish formula. Everyb ody knows how oven the open
enemies of Pakistan laughed at this and questioned the justi­
fication for Pakistan thereafter. And finally in April 1957 the
Republican-Awami Ministry, disregarding all the public
demands, amended the elector ate formula and imposed joint
electorates over the antiro country. All this was done to
396 T ie Islamic Law and Constitution
appease the Hindu members and thereby keep themselves in
power. This was the shameful w a y -o u t and oat despotic—in
which the system of joint electorate was thrust upon the
country. Last of all, in October 1957 when after the fall of
the Suhrawardy Ministry, the hope of the re-adoption of
separate electorates dawned, all the vested interests again
eonspired lo sabotage the move, and once again with the
treachery of Republican Party, this constructive attempt was
defeated, and the system of joint electorate remained tied to
our necks.
5. People have condemned this tyrannical and Hindu-
inspired move of the power-thirsty politicians. They have criti­
cised it in unambiguous terms. They have agitated against it
in all the accepted democratic ways. They have used all
vehicles of democratic expression to voice their disapproval of
it. Their opposition to it has been so thorough and so over­
whelming that the so-called Fact Finding Committee of the
Republican Party did not dare to publish its report. But, all
this has not been able to move the unscrupulous politicians
who rule the country through intrigues and alliance and pay
not the least beed to the will of the people.
6, The imposition of the joint electorates is the most
dangerous conspiracy that has been perpetrated upon the
people of Pakistan. This is generating very grave oonsequences
for Pakistan and is loaded with more explosive dangers for the
future. The fact is that even a cursory appraisal of these
dangers is sufficient to stagger a real patriot. The joint electro­
ate is not only a negation of the two-nation theory—th e very
raisan d'etre of Pakistan—it is also a gross and flagrant vio­
lation of the principles of Islam, and is in clear conflict with
the tenets and the basic scheme of the Constitution of the
country. Nay, it is bound to endanger the very existence of
Pakistan.
These are the consequences which must flow from it :
(a) It will weaken the Islamic consciousness of the
I f iHotand will inject alien ideas into the minds
 e Pr ob le m # of El ec to ra te# 397
White Pa pe r on Ik
in g ge ne TS tio na . W ea ke ni ng of the*
of th e coin
fe el in gs w ill au to m at ic al ly result in
Islam ic
of th e bo nd s of in te gr at io n of Pakistan.
weakening
st an co ns is ts of so m an y ot he rw ise hetero­
Pa ki
s el em en ts — w hi ch ha ve be en un ite d in to a
gene ou
m un it on ly by Is la m * A ny th in g th at weakens
fir
is bo un d to ao t as a fo rc e of disinte­
th is tie ,
at io n. Th is id ea of jo in t el ec to ra tes is based
gr
of te rr ito ri al na tio na lis m an d not
on th e th eo ry
on Isla m ,
el ec to ra te is , as a m at te r of fa ct , the first step
(6) Jo in t
th e sc he m e of its pr om ot er s. T he y are fanning
in
* And th ey have
th e flames of Bengali nationalism
e th an su ffi ci en t in di ca tio ns th at their
give n mor ss io n. T he jubi­
real aim s are se cu la ri sm an d se ce
ch w as de m on st ra te d by th e H in du leaders
lance whi
e H in du pr es s of B ha ra t on th e im po sitio n of
and th
ec to ra te s an d th e fe lic ita tio ns whioh none
jo in t el
ister expressed on
othe r than th e Bh arti Prim e M in
io n of N oo n M in ist ry ar e fir m in dicators
th e format
fu tu re . Th e jo in t el ec to ra te is th e door
of th e
ug h w hi ch th e de m an d fo r U nite d Bengal
thro
an ts to en te r. Th ey ha ve er ec ted th e door and
w
ou sly gu ar di ng it. M on ey , in fluence,
are now jeal
, ev er yt hi ng is be in g la vi sh ly us ed in keep­
pressure
e do or in ta ct . Th is is th e gr eatest crack
ing th
ha s oc cu rr ed in ou r de fe no e w all—th e next
th at
w ill be th e de m ol iti on of th is w all.
st ep
w hy H id us , C om m un ist s an d th e vested
(c) Tho reason
ar e so ea ge r to re ta in jo in t el ectorates
in te re sts
m es cr ys ta l-c le ar w he n, on e st ud ie s th e influ­
beco
ar e go in g to co m m an d ov er th e elec tio ns
ence they
th is sy st em . St at is tic s sh ow th at Hindus
un de r/
d th e M us lim po lit ic ia ns of th ei r choice w ill gain
an
nt ro l ov er th e po lit ic al lif e of E ast Pa kistan and,
co
ro ug h it , w ill be co m e a de ci siv o factor tn the
th
398 The Islamic Law and Constitution
National Assembly. A careful study of the follow­
ing data shows that Hindus are not demanding
joint electorates out of any love for Pakistan, but
in order to enable themselves to wield real autho­
rity in the political life of the country. Their new
strategy is to prevail over Pakistan through this
subterfuge. And the Communists are working hand
in glove with them, for they also see into a sure
chance for infiltrating into the political life of
Pakistan.
The facts are as follows :
The East Pakistan Provincial Assembly will have 300
general and 10 women seats. An analysis of the position of
Hindus in different Constituencies shows that :
In fourteen constituen cies Hindu votes are in majority and
here they are bound to get representatives of their own choice
elected. These constituen cies a r e :
1. Khulna Sadar South East.
2. Khulna Sadar South.
3. Satkhira East.
4. Bagerhat South.
5. Dinajpur Sadar North.
6. Gopalganj South West.
7. Gopalganj East.
8. Piroojpur North West.
9. Gopalganj West.
10. Thakurgaon Central.
11. Chittagong Hill Tracts North.
12. Chittagong Hill Tracts South. .
13. . Madaripur South West.
14. South Sylhet South West.
In thirty.five constituencies the non-Muslim population
varies from 36% to 4949% . As such, they, without the support
of any Muslim votes, can get their candidates elected because
(i) very few Muslim . women vote while most of Hindu
. women cast their votes ; ,
 Pr ob le m of .Electorates 399
IFAtte Pa pe r <yn the

w ill be co ns ol id at ed w hi le Muslim votes

(it) Hindu vo tes
w ill no t bo so ;
lim vo te rs do no t us e th ei r vo te s w hile Hindus
(i ii) all the Mus
and
are po lit ic al ly much advanced,
co m m un ic at io n an d tr an sp or t are also
(it;) the difficulties of
di sa dv an ta ge to th e M us lim vo te rs.
a
ws :
These constituencies are as fo llo Percentage of
ie e no n-M us lim
N am e of th e C oM titue nc
Po pu la tio n
... 49.19
1. Gopalganj N or th
h E as t ... 47.5
2. Jessore Sadar So ut
al ... 49.9
3. B agerhat Cen tr
r W es t ... 49 .0
4. Dinajpur Sada
th W es t ... 38.0
5. Habibganj N or
or th ... 45.0
6. B agerha t N
r So ut h W es t ... 45 .5
7. K hulna Sa da
es t ... 44 .5
8. Satk hi ra W
Sa da r N or th ... 41 .0
9. Sa tk hi ra
da r N or th ... 47 .0
10., K hu ln a Sa
So ut h ... 42 .3
11. . Thakurg ao n
as t ... 41 .0
12. B agerha t E
da r N or th W es t ... 47 .0
13. Baker ga nj Sa
or th E as t ... 40 .0
14. Piro oj pu r N
ai l So ut h E as t ... 40.3
15. N ar
ag on g Sa da r G en er al N or th E ast ... 42.0
16 . C hi tt
Sa da r C en tr al So ut h W es t ... 40.5
17. Dacca
N or th Ea Bt ... 43.0
18. Sa tk hi ra
m ga nj So ut h W es t ... 48.0
19. Su na
... 38.9
20 . H abibganj South
ib ga nj So ut h W es t ... 37.3
21. H ab
an j N or th W es t ... 39.0
22. Munsh ig
Sa da r N or th ... 37.5
23. Ban gp ur
lo nd o So ut h ... 37.06
24 . G oa
ro ko na N or th ... 38.0
25 . N et
nj N or th W es t 36,8
20. Sunam ga
400 The Ielamic Law and Constitution

Percentage of
Name of the Constituencies non-Muelim
Population
27. Magurah North ... 40.0
28, Narail Central ... 49.0
29. South Sylhet East ... 48.0
30. South Sylhet South ... 47.0
31. South Sylhet North East ... 40.6
32. South Sylhet North West ... 40.0
33. Khulna Sadar North East ... 40.0
34. Bakerganj Sadar West ... 39.0
35. Brahmanbaria East ... 36.3
In eighty-nine constituencies Hindus have a consolidated,
vote of 20% to 35.45% and calculations show that they can win
the elections with the support of very few Muslim votes. In the
constituencies they are the deciding factor and need from .05 to
12.1% other votes to sweep the polls. These constituencies are
as follows :
•
Percentage of
Name of the Constituencies non-Muelim
Population
I. Netrokona South East ... 35.43
2. Nilphamari North ... 35-43
3. Rajshahi Sadar West ... 35.37
4. Feni North ... 35.37
5. Piroojpur West ... 35.0
6. Chittagong Sadar East ... 34.56
7. Chittagong Sadar Central South East ... 34 56
8. Bakerganj Sadar Central West ... 34.56
9. Faridpur Sadar West ... 34.56
10. Nilphamari West ... 34.0
11. Brahmanbaria North ... 34.0
12. Manikganj West ... 33.43
13. Thakurgaon West ... 33.33
14. Habibganj North ... 33.0
15. Magurah South ... 32.19
 Ut Pa pe r <m the Problem of El ec to ra l* an
Percentage of
non-M uslim
Name of the Conrtiiuenciee•
Population
... 32.11
16. Brahmanbaria South Ea st
... 31.84
17. K ishorganj No rth Ea st
... 31.84
IB. Mymensingh Sadar No rth
... 31.04
19. Satkhira N or th W est
... 31 .0 4
20. Ch ittagon g Sadar Central
... 30 .0 6
21. Dinajpur Sadar Central
... 30.06
22. Dinajp ur Sadar So uth
... 30.06
23. Habibganj W est
... 29.95
24. Sunamganj No rth
... 29 .0
25. Dacca Sadar W es t
... 29 .0
26 . Dacca Sadar Central North
... 29 .0
27 . Narayanganj W est
... 29 .0
28. Nougaon No rth
... 29 .0
29. Nougaon Central
... 29 .0
30. Netrokona No rth Ea st
... 28.93
31 . Rangpur Sadar No rth Ea st
... 28.3
82. Na ra il Ea st
... 27.76
33. Jh in aidah North
... 27.54
34. Kurigram N or th W est
h ... 27.54
85. Ch ittag on g Sadar Central So ut
... 27.54
36. Tangail So ut h Ea st
... 27.29
37. Faridpur Sadar.. North
... 27.29
38. Manikganj Ea st
... 27.29
89. K ishorganj South Ea st
... 27.17
40 . Bogra No rth W est
... 27.16
41. Chittagong Sadar No rth W est
... 27.16
42 . Dacca Sadar No rth W es t
... 26.67
43. Nilphamari Ea st
... 26 .0
44 . Madaripur South
... 26 .0
45 . Manikganj Central
... 26 .0
46 . Dacca Sadar So uth
... 26 .0
47. Sunamganj South
»«•
48. Bagerhat So uth Ea st
409 Tin Islamic Law and Constitution
Per ssntaps of
Name of Un OonMiintncitt t

49. Jessore Ssdar Booth 25.2

60. North Bylhet North West 25.2
51. Thskorgaon North te a 24.52
62. Jhinsidsh Central •H 24.52
63. Nstors North m * 24.52
54. Nougaon North West • • ia 24.52

55. Brahmanbaria Central Went 23.8

56. Goalondo North West • • 1 23.6

57. Tangail Central • It 23.6

58. Jessore Sadar Central • • • 23.6

59. Brahmanbaria Central 23.16

60. North Bylhet North East ■ • ■ 23.16

61. North Sylhet North e a o 23.16

62. Brahmanbaria West 22.77

63. Faridpur Sadar North East 22.77
64. Tangail Booth ••• 22.73
65. Netrokona East e a t 22.59

66. Narayanganj Sooth • • • 22.59

67. Chittagong Badar Central North West an 22.55

68. Tippers Badar North a t a 22.55

69. Tangaii Central East • ■ ■ 22.23

70. Dacca Sadar South West <»e • 22.02

Mani kg an j North •*’ A 4I 21.92

71.
Tipper* Sadar East 4 • • 21.9
72.
73. Rangpur Sadar Central 21.85
74. Sirajganj North Weat 21.85
75. Jamalpur North East • 21.85
76. . Chittagong Sadar Central South West m i 21.66
77. Barkerganj Sadar Central 21.66
78. Earidpur Sadar South East «« a 21.58

79. Nawabganj North eat 21.7

80. Rajahahi Sadar South » • • 21.43

81. Kiahorganj Central South * * a 21.0

 403
FJWte Btpcr os Ue Problem c f PU dw aU s
/
Percentage of
JfQK» of the CoHtlUviio* non-mtulim
Population

No rth Sy lh et So ut h ... 31 .0
82 .
..; 21.0
83, Chittagong Sadar No rth Ea et
Sa da r So ut h Ea st ... 20.88
84. Pa bn a
ag on g Ba da r ... 20.5
85. Ch itt
... 20 .3
86. Faridpur Sadar Eaat
... 20.0
87, Faridpur Sadar So uth
ah So ut h ... 20.0
88. Jb in aid
... 20 .0
89. Dinajp ur Sadar So uth Eaat
n co ns tit ue nc ies no n- M us lim vo tee ra nge fn>m
In fo ur wome
AD th es e fou r se at s ar e Hi nd u su re sh ota. Thus
34% to 39.7%.
t ele cto ra te sy ste m » Hi nd us ar e su re to get 142
under th e jo in
he r for th em se lve s or for th eir no mi nees wh ile under
seats eit
te ele cto ra tes th ey we re ha rin g 70 se ats on ly . In other
separa
nc ies als o th eir co ns oli da ted vo tes m ay pa y them
constitue
handsome divid en ds .
ia eo nd us iee Zy sA ow t M at Hi nd us w ill wi eld decisive
TA
kis tan po lit ics an d thr ou gh it up on ths Centre.
influence in Pa st Pa
be the co ns eq ue nc es of it; is no t dif fic ult to im agine.
What would
is fu rth er sh ow s th at ev en i f on e ge ne ra l election is held on
Th
ba sis of jo in t ele cto ra tes it wo uld be su fficient io give the anti*
the
am ple op po rtu ni tie s to ad mi ni ste r, Go d fo rb id, a
Pa kistan forces
l of Pa kis tan ,
shattering blow to the in teg rit y an d su rv iva
w, wh at is th e wa y oa t o f th is da ng erous im pa sse t
■7. No
cts — dr ive us to th e co nc lu sio n th at th e issue
All facts— hard fa
sh ou ld be fin all y de cid ed ac co rd in g to th e will of
o f electorates
be fo re th e fir st ge ne ra l ele cti on s ar e he ld . And th is
th e peop le
if th e.i ssu e is ref err ed io the pe op le fo r decision.
can be done
Hence our demand is for a Referendum. o
• *

sh ou ld be im m ed iat ely he ld , be ca us e th is is th e
Referendum
e th is iss ue pe ac efu lly an d am ica bl y and With­
only way to so lv
for de lay wi ll giv e up pe rh an d to those elements
ou t delay —
in ua no e in po we r m ay en da ng er th e ve ry ex isten ce of
whose oont
404 Ths Islamic Law and Constitution
the country.
Referendum is the only way to decide the issue democrati­
cally. People have been very cunningly deprived of their basic
political rights. Decisions are being oontinuoualy made by the
ruling coterie in a dictatorial way and the voioe df the people
is not being given the least importance. Referendum means
reference of an issue to the people, a Partial demonstration of
their sovereign right. It wilt strengthen democracy in the coun­
try and will sound the death-knell of the anti-democratic forces
who are bragging about revolutionary councils and the like.
As a matter o f fact, referendum is the only way out.
It will not delay the general elections, rather it will ensure
their early occurrence. If the public pressure and publio censure
exert themselves fully, no power on earth can delay the elec­
tions, - The referendum will establish the supremacy of the
people and strengthen their force, power and pressure. In the
faoe of their aroused interest and united force, there is no
question o f delay in elections. •
Lists should be prepared comm unity-wise so that they can
equally serve under both systems. Delimitation will have to
be done simultaneously on joint and separate basis. This may
entail a little more expenditure but it is of no significance in
the face of the importance of the problem. With the help of more
staff all arrangements can be made without causing any delay.
According to the schedule o f the Elections Commission all .
this work would be finished by June 1958. On the new arran­
gement the tame schedule can be strictly maintained. Referen­
dum should be held in October 1958. Its result can be compiled
within a fortnight. Preparations for general elections should
continue unabated. And the general elections can be held with­
in two or at the most three months of the referendum date.
This is how we can come out o f this dangerous situation without
delaying the general elections.
 Appendix VI
ABUL A*LA MAUDUDI
A BIOGtLAPHICAL SKETCH

st think ­
SA YY ID AB UL A4LA MA UD UD I is one o f the gre ate
s born in
ers and soc ial reformers o f the world of Isla m. He wa
tember,
Aurangabad (Hyderabad, De cca n, India) on 25th Sep
At the
1903 and sta rte d his pub lic life as a journalist in 1920.
Jabalpur
age of sev enteen , he bec am e the editor of dai ly T aj,
most
and later on edited the Al* Jam iait Delhi—one of the
of the
influential and popular Muslim newspapers of Ind ia
he pub­
nin eteen-twenties* In 1929, when he was 26 yea n old,
al^ Isk m
lished his scholarly and mo num ental work Al-Jih ad Fi-
Islamic
(Holy War in Isla m). Th is book is unprecedented in the
abic.
lite rature and the equal o f it cannot be found eve n in Ar
d
Maududi, late r on, shifte d from Delhi to Hyderaba
month ly
(Decoan) and in 1932 sta rte d Tarjum an al- Qw 'dn , a
. Th is
journal dedicated to the cause of Isla mic Renaissance
awaken­
journal has pla yed the pio nee r’s role in stirring the new
Indian
ing among the educated eli te o f Muslim Ind ia and an
Muslim
historian rig htly declares tha t no future histor ian of the
India can ignore the part pla yed by thi s journal.
na
It was in 1937 tha t Dr . Muhammad Iqbal wrote to Maula
in the
Maududi to shi ft to Punjab and oo-operate with him
ification
gig ant ic researoh work of the reconstruction and the cod
ow ed by
o f Isla mic Jurisprudence. Th is correspondence was foll
it was
two meetin gs between the se lum ina ries o f Isla m. Fin ally
jab and
decided tha t Maulana Maududi should shi ft to Pun
Maulana
direct an ins titu tio n of Isla mic research—Dar al-Islam.
1938.
Maududi lef t Hyderabad and set tled in Punjab in March
"B at alas in the words o f Maududi him self, "he (Iqbal) was
breathed
ip the las t day s o f hjs life , The very nea t month he
 406 T*s Islamic Law out OofwWwtfo*
his last and I was left alone for the uphill task we had decided
to undertake jointly 0 .
At Lahore Maulana Maududi also worked for nearly two
y ea n as the Dean o f the Faculty o f Theology, Islamia College,
Lahore. In 1941 he organised the Renaissance Movement—
Jamaat-e-Islami—and was elected its chief. After Partition
he launched the movement o f Islamic Constitution and the
f

Islamic way of life and was arrested on 4th October, 1948. After
20 months o f imprisonment he was released in May, 1950. Again
in 1953 he was sentenced to death for writing a pamphlet which
itself was never proscribed. This sentence was commuted to life
imprisonment, which meant rigorous imprisonment for fourteen
years and was released on 28th April 1955 under a deoisiqn o f
Supreme Court. Again on 6th January 1964, he was arrested for
the third time, when Jamaat-e-Islami, Pakistan was banned
under Ayub Regime. He was released by Punjab High Court on
9 th October 1964.
Fourth time, he was arrested on 29th January 1967 for
opposing Ayub Khan’s regime for celebrating Eid-ul-Fitr one
day before the moon sighting. In consequence o f a writ petition
the Government released Maulana Maududi after 2J months
detention on 15th March 1967.
Maulana Maududi started writing hia Tafhim al*Qur’an
(Towards Understanding the Qur’an—Translation and Com­
mentary on the Qur’an) in February 1942. This is the most
revolutionary and epoch-making book o f our age. It has been
completed in six volumes after 30 years 4 months on 7 th June
1972.
Maududi is a prolific writer and is the author o f nearly
sixty works on Islam. His approach is scientific and logical. His
vast knowledge of Islam and o f modern thought has given him
the unique quality o f presenting Islam in the most systematic
way having a special appeal for the educated people. He has .
given a jvery realistic interpretation o f Islam and inspired the
Muslim youth to translate the Islamic way of life into practice.
He is a great thinker and man of action. Ia short, he ia a
‘practioal idealist’.—EPITQR.