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Islamic Law 





Translated and Edited by 

Islamic Publications (Pvt.) Ltd. 

13-C. Shah Atam Market, LAHORE {Pakistan) 



In the name of Allah, the Benefiunt, the Merciful 



THE first edition of this book was compiled while I was in 
prison. As such, neither could I add anything to the book 
nor could my suggestion* be sought in its compilation. Now 
the second 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. Khurahid 
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 thoso persons who 
want to study the nature of the Islamic State, its theory, form' 
and underlying principles, and who wish to understand how 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 aro a demand of its faith and 
conscience. The people want that the Islamic Law should bo 
introduced in their respective countries s* that they may follow 
a law to which they owe their honest and sincere allegiance. But, 
tmfortunatoly, in almost all such countries the reins of power 
have been in the hands of those persons who not only did no* 

»i The Islamic Law and Constitution 

have even an elementary understanding of Islamic Law and Con* 
stitution, but had all their education and training for the run- 
ning of Godlesi 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 
qf the Muslim masses is not very dissimilar in certain respects. 
No doubt they are extremely oagor to re-establish the Islamic 
way of life and this urge of theirs is very real and sincere. But 
they too aro not clear about the nature and form of tho state 

whose establishmet they so sincerely urge. They also do not 
know as to what should they do to establish tho 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 whose 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 becauso of any malice, and as such 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 b*s properly and thoroughly acquainted him- 
eolf 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 am 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 
ti?e Western reviewers and critics. But I would submit that- 

In the name of AllSk the Beneficent, the Merciful vii 

there should be a limit to one's dosiro to see everything in 
accord with one's own- wishes. There, can bo a people who mny 
have very basic differences with the West in respect of human 
values, ideals, culture and oivilization and thoy havo as much a 
right to fashion their collective life in accordance with thoir 
own values and ideals as tho West has to do according to its 
own. l?or a happy co-existenco, tho thru.-itiug. of one's hoiiofa 
and doctrines on tho other is as detrimental and injurious as is 
an hohest endeavour to understand one another's ideology in its 
true lights necessary and helpful. 

Lahore : 15th Oclnhe.r. IQP.O. 







— Why Muslims Want an Islamic State ? ... 2 

—Historical Background of Pakistan f „ n 

— The Ideological Problem <-f j$ 

—The Movement for Islamic Constitution ... 26 

—About this Book m 33 



Chapter 1.— The Islamic Law _ 39 

2. — Legislation and Jjtihad in Islam ... 71 

3. — How to Introduce Islamic Law in 

Pakistan 1 wnt 



yamfflffTOP islam 

Chapter 4— Political Theory of I s ] am _ 123 

5.— Political Concepts of the Qur'an „ m 153 

0. First Principles of the Islamfc State ... 201 

7. — Fundamentals of Islaaic-Coiwtitution ... 253 

8. -~Rights of Non-Muslims in tannic Sfcato ... 273 

9. — The Problem of Electorate • 301 
10.— Somo Constitutional Proposals ... 313 

H ' ■ •' The itlanit Iav *** Co*rf»«fte* ' 


Appendix I.— B*»io Prineiplee of Mamio State : 

by the 'Ufama of Pakistan 

II. — 'Uhimi'i Amendment* to the B.P.C. 


III. -Commenta on the Draft Constitution 


IV. — Comment* on 1956 Conetitution 
|| V.— White Paper on the Problem of 

VI.— Abnl A«Ia Maudodi : A Biographical 
Sketch— by tht Editor 




TSLAM today is passing through one of its most crucial 
periods. In tiio first half of tho twentieth century, a wide- 
spread rovival of Islam has occurred. The chains of political 
servitude have boon brokon at many a pltfoe and nearly eighteen 
Muslim countries have attained independence during the last 
two docados. Intellectual aud cultural movements aiming at 
Islamic renaissance have emerged throughout the length and 
breadth of the Muslim world and are gradually gaining strength. 
Although thoro have been ups and downs because of political 
exigencies, the ovorall movement for Islamic rovival has been 
slowly moving in tho 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. 

Muslims are oo the march everywhere 

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. 

Tho basic problem before the world of Islam is how to re- 
establish the Islamic ideology in the world of the mid-twentieth 
century. This problem poses a great ohallenge, because Islam 
is not a mere collection of dogmas and rituals. It is a complete 
Way of life It is tlio embodiment of Divino Guidance lor all 
fields of human life, may they bo private or public, political or 
economic, social or cultural, moral or legal and judicial. Islam 
if *n all-embracing ideology and the problem that besots the 
Muslim world, which has only recently emerged from political 
slavery, is of translating this ideology into practice aed of 
reconstructing its socio-political life in accordance with it. 

The movement for the introduction of the Islamic law and 
the establishment of the Islamic State is a part and parcel of 
this ovt*r&ll movement tor the rerivat and tho rehabilitation of 

2 The Mamie Law and Constitution 

Mam. The 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 Islamic 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 S 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, it 
seems, therefore, advisable to oast a cursory glance over the 
case of Muslims for the establishment of 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 theio. If they wanted anything else, 
then an explanation would perhaps be 'called for ; and not 
in the case when they want it. But because of a host of 
reasons on explanation to this effect has become necessary. 

Firstly, the intellectual and religious background of the 
world of Islam is very different from Chut of the West and as 
such it becomes difficult for tho Western and tho West-orionted 
observors to grasp and appreciate ttie situation. It is, therefore, 
necessary that the Islamic concept of religion and the Muslim 
outlook on politics should bo clcary understood at tho 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 Muslin* 
world too have been estranged from their own cultural and in- 
tellectual tradition. Under the influence of Western education 
they hare imbibed the Western pohtrcal concepts and are think- 

Introduction 3 

iog of introducing them in the Muslim world without any regard 
for the Muslim tradition 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 the need for a 
precise presentation of the Islamic case has increased manifold. 

Islam holds that Allah has creatod the Universe and con- 
trols and governs it. He created man and provided him with 
all that lie 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 direct the aifairs 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. It looks upon 
life 19, its totality and provides guidance for every field of 
aotivity. The mission of a prophet, according to lalam, is not 
merely to cater to spiritual elevation. His miasion 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 the flux of history. 

This has 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 
cjviH Z ation~iu accordance with this Guidance. It is this 
Guidance which is enshrined in the Qur'an and eunnak. the 
word of God and the example of tho Holy Prophet, and consti- 
tutes the religion of Islam. 


Tte Islamic Lata and GonstiUdion 

Tho Qnr'aa explicitly asks man to submit to God with a 
complete submission and to accept His Guidance in every field 
of activity. The call of the Qur'an is ; 

"O 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 guidance. 

"We verily sent Our messengers uith clear proofs, and 
revealed wiih them the Scripture and the Balance, (i.o., the 
authority to establish Justice), that mankind may observe 
tho right measure ; and He revealed iron (i.e., coercive 
powor) wherein is mighty power and (many) uses for man- 
kind and that Allah may know who hclpeth Him and His 
messengers, though unseen". (57 : 25) 

"He it is Who hath sent His messenger with the Guid- 
ance and religion of Truth, that He may make it supreme 
over all othor ways, however much idolaters may be averse". 

Thus Islam wants to fashion one's 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 othor hand, studies 
the relationship of man with the state and of man with man. In 
Jslam this too is the. domain of wiigiou, which comprehends all 
aspects of life. Islam does not admit of any separation between 
religion and politics; it wants to conduct politics also in accord* 
ance with the guidance provided by religion and Jo use the 
state as the servant of the Lord, The Qur'an lays down that 
Allah is the Sovereign and tho Law-giver and His revealed law 
must be adopted as the law of the J and. According to tho Qur'an : 

"The command is for none but God ; He hath com- 
manded that ye obey none but Him: that is the right "path". 



"Verity, Hip is the Creation end His is the Law". 


" If any do fail to establish and decide by what Cod hath 

revealed, the-j are the unbelievers the unjust the 

evil-doers". (5 : 44, 45, 47) 

Tslam uses political power for the reform of the society and 
does not leave it to degenerate into 'the last resort of % 
scoundrel'. It rather makes the Prophet pray that the rulers be 
converted to the creed and become its support. 

"Say : 0 my Lord ! Let my entry he by the Gate of 

Truth and Honour and likewise my exit by the Gate of 

Truth and Honour ; And grant mo from Thy presence a, 

rwlinrr authority to aid mo". (17 : 80) 

Maulana Maududi, in his Tafsir, explains the above verse 
as follows : 

"That is either grant me power on earth or make any 
ruling authority, any state, my supporter so that I may. 
with the force of the coercive powers of the state, establish 
virtue, eradicate evil, put an end to the surging tide of cor- 
ruption, vulgarity and sin, set at right the disruption which 
has engulfed life and administer justice according to Your 
revealed law". 

This is the real meaning of the verse and this is the inter- 
pretation given by Hasan Basri, Qatada, Ibn Jarir and Ibfl 
Kathir. This view is further supported by the hadifh : 

"Allah through state power puts an end to that what 
1 He does not eradicate through the Qur'an". 

This shows that reforms which Islam wants to bring abont 
cannot be carried out by sermons alono. Political power is also 
essential to achieve thorn. 1 * 

This is the approach of Islam. And the logical consequence 
of this approach is that the state must be moulded on Ishunic 
pattern*. This ia a dictate of the Islamic faith and cannot be 
disregarded. The Western concept of the separation of religion 

L Abiil AKu MbuUviU. Tajhhuul Qvr % un t Vol. II, Lahore 1U54, p. CIS. 

Q The Islamic Law and Constitution 

from politics of secularism-is foreiga to Jalam ^ ^ 

of it would be the very negation of the Islamic concept of polity. 

This problem has become very serious with the spread 
of political freedom. In the past. Muslims were not free to 
fashion their political life according to their own likes and dis- 
hkes. They were under the. yoke of Wesiern imperialism and 
had no freedom to order their affairs accordine to the Islamic 
principles. But after the attainment of independence, they are 
free to adopt whatever way of life they like. If, even after the 
attainment of this freedom, they do not adopt the Islamic way 
and instead of enforcing Islamic law, choose to run their state 
on some other lines, this avoidance of Islam on their part would 
amount to no Jess than a form of national apostasy-something 
of which Muslims cannot conceive. 

This concept of Islam, further supported by the practice of 
the Holy Prophet (peace bo upon him), of the Khihfnt.i.Uashi^a 
and of the multitude of Muslim reformers, impels Muslims to 
strive for the establishment of Islamic State.i Thi, is why this 
move is spreading throughout the world of Islam and has become 
one of the most important topics of our age. 

A perusal of Islamic history reveals that throughout the 
long range of thirteen centuries, no ideal other than Islam has 
ever spurred Muslims to any groat action. Islam is the vcrv 
breath of their life : it alone has moved them to accomplish 
great feats of glory. Any contrary ideal has never caught their 
imagination, has never moved them to berime their entire, 
ex.stence, has never von any popuJar support amongst them. 
Professor Wilfred Smith, while surveyinp the problems of 
nationalism in the Muslim world, admits this unique pheno- 
menon of Islamic history. He observes : 


ot«u ■ a Mush, n W „„«] tt „ .Is| aillk , Stu.e\ A -Muslin, S.a.c is any 
•ft., winch 1S ruled by _V„,,i nis . Islamic S, 0 ,e. on U,c other tan*. i' S 

Z<^Z „rf? t0 co 'r" ,f " ils affnirA in acror< in,we »* ™«*>«i 

gUKtanw orrsln,,, and accepts Ihe sovereignly of AI!„h «>„1 <i ie sum,- 
maey of His Law, aild wllich devolos its resollW;CS (o nchjov£> ^ 



"No Muslim people has 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 politics 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 
end opportunism in diplomacy. Politics has become out.and-out 
machiavellian and this state of affaire has greatly impairedgtho 
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 the 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 raluo 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 conceiveblo that secular 
happiness for the individual may bo 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 religions ; 
the effort to take sides with what is good against what is eyil> 
and the effort (o attain harmony with Absolute Reality or 

1 - Wilfred C. Smith, Islam in Modern HUttfry, Princeton, 1957. p. 77. 
- Ibid, 

8 Tkt Islamic Law and Conetituiio* 

Iqbal has also very forcefully pointed out the real malaise 
of the Western culture. He says : 

"Both nationalism and atheistic socialism, at least in 
the present state of human adjustments, must draw upon 
the psychological forces of hate, suspicion and resentment 
which tend to impoverish the soul of man and close up his 
hidden sources of spiritual energy. Neither the teqhnique 
of medieval mysticism nor nationalism nor atheistic social- 
ism can cure tho 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 ore neither dogma nor ritual, can alone 
ethically prepare tho modern man for the burden of the 
great responsibility which the advancement of modern 
science necessarily involves, and restore to him that 
attitude of faith which makes him capable of winning a 
personality here 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 civili* 
zation which has lost its spiritual unity because of its inner 
conflict of religious and political Tilses". 2 

In this context Iqbal's eall was as under : 

"Humanity needs three things today- — a spiritual in- 

1. Arnold Toynbee, Christianity among the Religion* of the World, Oxford 
University PreHs, London, 105$, p. 562 (Emphasis ours) Speaking nt 
tho Jamsbed Memorial Hull, Karachi, Prof. Toynheo snid : 
"Religion was indispensable for human boings, And without it, tho 
existence of ni^n was not rjo&siblo. Religion *was essential for solving 
the most complicated problems of the individual and tho Socio! v. In 
modern. scientific advancement, religion has still to pl«y a bettor and 

■ important role for tho preservation of the personality of tnrr," 
Quoted in The Islamic Review, London, January 1900. p. 30. 

2. Muhammad Iqbal, Reconstruction of Religious Thought in /«&<*», 
La'ioro, 1054, pp. 183-189 {Emphasis ours). 

Introduction t 

torpretation of the Univerae, spiritual emancipation of the 
individual, and basic principle* of a universal import direct- 
ing the evolution of human sooiety on a spiritual basis... 
Believe me, Europe today is the greatest hindrance in the 
way of man's ethical advancement. The 'Muslim , on the 
other hand, is in possession of these ultimate ideas on the 
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 establishing a political 
order on the moral principles of Islam r an example before a 
world torn by Seoularisxn, Nationalism and Communism. 

Lastly, they are faced with the problem of Communism. 
Communism has shaken the Western world and the spectre is 
now haunting the 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 wjiich .emerged to fill the 
vacuum created by the disintegration of religion in the West, 
Poverty and social disordor there always have 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 essentially 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 rosult 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 Iqbol, Reconstruction of Religious Thought in I*! an*. 
Lahore. 1954, pp. .183-180 {Emphasis ours) 

2- K.^N. Crow-Hunt, The Thrcory and Practice of Communism. London, 
1951, p. 6. 

10 The Islamic Law and Constitution 

Douglas Hyde, a former editor of 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 

hare 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 'them. Social justice is the thing upon which it 
feeds. It is not the originator of Communism" .2 "The 

. spread of 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 values, often all— but no ideas at all." 3 

''Communism is the expression of a deep Spiritual ill. 
The spread of Communist influence can, in the long run, 
only be countered by the spread of the Faith."* 
Muslims believe that the gfestest bulwark against Commun- 
ism is Islam. Islam is the faith and religion of over five hund- 
red million human beings. 8 It is the force which has / moved 
them in the past and which is the sheet-anchor of their present 
existence. It is an ideal which inspires them and can move 
them to action, effort and sacrifice. It is a social philosophy 
whish stands for justice and well-being and has a just and 
moral, political and economic ideology of its own « Islam not 

1. Douglas Hyde, TAa -4n*w«r to Communism, London, 1051, p. 46. 
J. Ibid., p. 47, (EmphasiM M). 

3. 76td.t p; 49 [Emphasis ours), 4. Ibid., p. 50 (Emphasis our*), 

o. See Abdullah Al-Ma&dusi, Muzahib-e-Alam, Karachi, 1958, p. 130 
d. Prof. Wilfred C. Smith, himself a former Socialist, admits in his 
recent book, Islam in Modern Bittory : * 

"Surely Islamic enterprise has been the most serious and sustained 
endeavour -ever put forward to implement justice among men and 
until the rise of Marxism was also the largest and most ambitious. 11 
. Islam in Monism History, op t oft., p. 24. . 

Introduction i\ 

Only gives them an ideal to lire and die for, it also establishes 
social order in which 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 Mm 
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 met on its own grounds. 

This is, in brief, the Muslims' case for an Islamic State and 
herein lies its importance for the Muslims in particular and for 
the world at large in general. 



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 demonstrate the efficacy of the 
Islamic way of life. 

Islam came to India through Muslim traders, travellers and 
sufis. With the spread of Islam, the desire to establish an 
Islamic polity in the sub-continent gained strength. Muslim 
rulers, in response to the aspirations of the Muslim masses, 
introduced Islamic Law and established the SKa'air^Mam 
(Islamic Institutions). Although there was monarchy and des- 
potism, institutions alien to the letter and spirit of Islam, but 
the Shari'ak \did constitute the law of the land and thero was 
no mass-deviation from Islam. This was not a very welcome 
situation, for Islam was not being enforced in its entirety. But 
there was also no movement agiinsj Islam and it was expected 
that through sustained effort, things would be corrected in the 
cou r8e of events. It was during the reign of Ahbar that a 
calculated endeavour was nj a de to purge Islam from the socio, 
political life and to evolve a new religion-a hotch-potch of 


The Itlamic Law and Con$Utation 

Hinduism, Buddhism, Paganism and Islam— under the patron- 
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'ah omorged in full force. It was 
pioneered by Shaikh Ahmad of Sarhind, popularly known aa 
Mvjnddid Alf-i-Thani who propagated tho teachings of Islam in 
a systematic way, proclaimed the truth undeterred by threats, 
created public opinion for social and political reforms, fought for 
Islam undaunted by the tempests of adversity and even suffered 
imprisonment in the historic Gwalio* Fort. It was as a result 
of this movement that the anti-Mam policy of Albar fiziledout 
almost immediately after his death and gradually even the 
Mughal emperors became Islam-oriented, so much so that 
history witness Aurangztb who was an ardent soldier of Islam 
and in whose reign codiaoat ion and introduction of Islamic law 
was accomplished. 

The torch which Mujaddid Alf-i-Thani lit was kept burning 
by the later generations and the movement progressed under the 
guidance of different leaders of thought and action. Shah Walt- 
ullah of Delhi reconstructed the Islamic thought 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- 
ment for the establishment of the Islamic State, T*ey fonght 
the Sikhs and the British imperialists and their ultimate objective 
was to establish KUUfat ala minhaj't-Rhilafat-e-Rashidah 
(Islamic State on the pattern 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, which we call the Shari'ah may be enforc- 
ed in all the linda and on all the peoples and there should k 
remain no conflict or tussle in this respect. My objective is 

to accomplish this task this may be achieved through 

my hands or through anybody else's. What I want is that 



this must be done. And I resort to all those means and 
devices which seorcs 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 of the people and the 
Movement continued even after their martyrdom. This move- 
ment left such indelible impressions upon the minds of the 
. Indian Muslims that no amount of British repression could efface 
them. The bloodstains at Balakote continued to inspire the 
people and indeed the movement has survived in all its pristine 
force op 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. Shibli Nu'tnani, Ahul RaXam, Maulana Muhammad 
Ali, Iqbal and Maududi all represent the original renaissance 

movement and each ono of them gave a new impetus to this 
movement. Shibli tried to inspire confidence in Muslim culture 
and brought to light the historical role of Islam and of the 
Prophet of Islam. Abu! Kalatn shook Muslim India from its 
stupor and called it back to the original message of 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 tbem 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 orescendo of history 
and it goes to the credit of Iqbal and Muhammad Ali Jinnah 
that they grasped the slow whisper of history and piloted the 
movement on such lines that within a decade Pakistan became 
areality.. - * 

h Uakaiteb Shah Iamaii, p. quOteJ by Utljlaia Rioai U»hi» , Sayytd 
Ahmad Shahid, Vol. II, Lahore, p. 2tS. 


The Islamic Law and Constitution 

The idea of Pakistan owes ita origin to the belief that 
Muslims are a nation,* an ideological community, and it is a 
dictate of their faith to establish a state, a society and a culture 
in the light of the principles given by the Qur'an and the Sunnah. 

Iqbal, while suggesting the idoa of Pakistan in his Presi- 
dential Address to the Annual Session of All-India Muslim 
League in 1930, said that: 

"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 Muslims of India. ..will eventually solve the problem 
of India as well as of Asia."* 

This was essential so that Indian Muslim may become 
"entitled to full and free development on the lines of his own 
culture and tradition". 8 

1. To have an idea of how old this concept it let us givo a few reference* 

(1) ALBeruni who visited Indo-PakUtan eub -continent in the ninth 

century writes : ■ 
-The Hindus entirely differ from as (i.e. the MueLims), in «very 

respect." Kitab at -Hind. Tr. by 8. Sachau p. 17. 

"One might think that they had intentionally 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 juet the oposite mean- 
ing." {Ibid., p. 197). 

(2) Sir Syed Ahmad said in 1862 : 

"Ib it possible that under these circumstances two nations^ the 
^lohammadans-and Hindus— conld sit on the same throne and remain 
equal in power ? Most certainly not. It is necessary that one of them 
should conquer the other and thrust it down. To hope that both could 
remain equal is to desire the impossible and the inconceivable. ^(Quoted 
by Richard Symond, The Making of Pakistan. London* 1951, p. 31). 

(3) Sir William Hunter, in his book The Indian Mutaalmani, speaks of 

.Muslim* a& a community, a race exhibiting "their old intense 
'* fooling of nationality." (W. W. Hunter, Th* Indian MuMtalmane 

Calcutta 1945 ed., pp. U3-IM). . 

2. Muhammad Iqbal, Spuches and Statements o] Iqbal, compiled by 
"Shaculoo," I**l*re, 1948, p. 13. . 

3. M, p. U. 

. Introduction 

Quaid^Azam based his plea on the same grounds. During 
the Jinnah-Gaud hi talks he said : 

"We claim the right of self-determination as a nation 
and cot as a territorial unit". 1 

In March 1944, while elaborating the concept of Pakistan 
he said ; ; 

"Our bed-rook and sheet-anchor is Islam. We are one 
and we must more as one nation and then alone we shall he 
able to retain Pakistan" 2 

In June 1945, he said : 

"There is only one course open to us ; to organise our 
nation. And it is by our own dint of arduous and sustained 
efforts that we can create Btrength and support our people 
not only to achieve our freedom and independence but to be 
able to maintain it and lire according to Islamic ideals and 

"Pakistan not only means freedom and independence 
btit the Muslim Ideology which has to be pre«erved, which 
has come to us as a precious gift and treasure and which we 
hope others will share with us" .» 
In November, 1945, he said : ■ 

"The Muslims demand Pakistan, where they could rule 
acoordidg to their own code of life and according to their 

own cultural growth, traditions and Islamio laws Our 

religion, our culture and our Islamic ideals are our driving 
force to achieve our independence".* 


Mr. Liaquat AH Khan affirmed the same concept of Pakistan 
when, while moving the Objectives Resolution, he said : 

"Pakistan was founded because the Muslims of this 
subcontinent wanted to build up their lives in accordance 

Muhammad AH Jinnah, JinnaK-Qandhi Talk\, Delhi, 1944, p. 20 
2- MuWmad AH Jinuah, Some Recent Speech** and Writing* of Mr. 

Jtnnah, Lahore, p. ~ 
»♦ Ibid., pp. 386-67. 
4. Ibid. 

16 Th4 Islamic Law and OonstUuion 

with the teachings sod traditions of Islam, because they 
warned to demonstrate to the world that Islam provides 
a panacea to the many diseases which have crept into the 
life of humanity today".* 
Tnis was the real concept of Pakistan. 
The above discussion clearly shows that : 
(a) The movement for the establishment of Islamic State 
has a glorious background and the Muslims' demand 
and support for Pakistan was a part of that very 

(6) The idea behind Pakistan has beon the establishment 
of a country where Islamic State and Islamic society 
oould be established. 
■ (e) The leaders of the movement made this very promise 
with the people whose support: and unbounded 
enthusiasm for the demand was motivated by this very 
Islamic nature of the enterprise.* 




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

I • | 

1. Constituent Assembly of Pakistan, DebaU*, Vol. V. p. 3, March 7, 1040 

2. Mora wo may also quote Prof. Smith who in his book Pahltian as on 

Islamie SiaU k buy* s 

"In tho cue of Pakistan tho whole raittan oVeirs of the elate is 
Islam : it is islam ulouo which holds it togothor." WiJl'rod C. Smith, 
Pakistan at an Islamic Stats, Lahore, 1054, p, 20. 
In his recent hook Islam in Modern Hi* lory, he says ; 
"It is this Islamic nature of the State (quit** independent of its form) 
that explains the joyous and devoted loyalty that it initially aroused. 
The establishment of Pakistan was groetod by its Muslim citizenry 
With a resonant enthusiasm, doapito the catastrophic terror and ohaos 
— of its early mouths. Indeed, without tho stamina and morale gono- 
rated by religious fervour* the now duminiou would hardly iiave 
survived tho devastations of its iirst disorders.** Wilfred 0. Smith, 
Xstem in Modsrn tfwtory, &p> «ff. a p. M2. ~ 

entirety. The support end the Morifioet of the people were 
meant for this objective aad for nothing else. The natural 
demend of this satiation was that effective steps should here 
been taken at the very outset to implement this ideology. The 
support and cooperation of those people who could really 
guide the Government in thia project should hare been enlisted. 
Education, law, administration, commerce and all other fields 
of national life should have been overhauled in the light of 
Islamic principles and to make a beginning in this direction, 
constitution-making should have been expedited and earnestly 
carried on Islamic lines. But. unfortunately, none of these 
steps was taken. The leadership failed to come to grips with 
the ideologioal problem. It could not give a lead to the nation 
in this direotion. It had fed the people on slogans, but when 
the hour for the implementation came, it oould not deliver the 
goods. It was from this situation that the ideological conflict 

People waited for some time. But gradually they began 
to become restless. Protests and demands began to pour in: 
Dissatisfaction and eveo frustration began to mount. This was 
the position of the people, but the rulers on the other hand, 
instead of responding to their call, started dilly-dallying taotics. 
And as the leadership failed to solve even the non-ideological 
problems, the confidence of the people was shaken to its roots. 
Their missionary seal began to evaporate-and the low of this 
spirit has been the greatest loss which the nation has suffered 
since independence. 


* * 

Superficially, the oonfliot iu of a political nature. Bat 
when one peep* beneath the surface one find* that it m 
oasentieUy an ideologioal and a cultural oonfliot and can be 
understood only in a wider per a pec ti ve. 

Although the contact of islam and the Western CiriUaatiou 
began, in the sereotejoth, century, it entered a crucial stage 
only in the nineteenth and twentieth centuries. In these later 
periods the political aupremaoy of the Muslims was on the 
•We, 'Tne Huslim world was lucoumbinz »t a tatHA »-.«. L> 

18 The Islamic Law and Constitution 

the encroachments of Western imperialism. Under the 
sheltering care of imperialism, Wostorn education and Western 
technology were oreeping into the world of Islam. New ideas 
began to fill the air ; 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 this age of 
crisis. One was that of undiluted conservatism and the other 
of unbridled modernism. The conservatives sought refuge in 
the asylum of old tradition. They became rigid in their 
outlook and approach. Every change, they thought, would be a 
change for the worse. So, ia 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 

The modernists, ou the other hand, were swept away with 
the current of the time. They thought that the royal road to 
glory lay ia the imitation of the Wost. The Muslim revival, in 
their view, could bo achieved only through adopting Western 
technique, Western law, Weatern 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 Renaissant 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 Iqbaland Maududi. 

After independence, all these three trends beoafeae 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 
x£ power from the erstwhile British rulers but these people 
totally failed to understand the language of the people. This 
gave birth to an ideological Bohism, the role of Maududi, in 

the constitutional and political history of Pakistan, tic* in 
bridging the gulf between the two extremes and in giving 
classical Islamic thought a new formulation to suit the needs 
of the modern society. 

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 of the fact that life 
is over-changing. History is moving ahead and the society is 
being moulded into newer shapes. New situations are arising, 
new relationships are being formed 'and new problems are 
emerging* It is imperative to take note of this change and see 
how the tenets of Islam can be applied to these new conditions. 
It would be futile to try to put a brake upon change. It would 
be still ' more futile to ignore the change altogether and do 
nothing to meet its demands. The approach whioh fails to 
grapple with the problems of the day is bound to fail. It 
cannot but drive religion out of the flux of life and confine it 
to the sphere of private life. And when an estrangement is 
effected between religion and life, then even the private life 
cannot remain religion's preserve. 

Furthermore the conservative elements had not the full 
understanding of the constitutional, political, economic and 
cultural problems of the day. The result was .that they could 
not talk the language of today and failed to impress the 
intelligentsia and the masies alike. They were unable to give 
a lead in the new ideological situation. * < 

But in alt fairness it must be said that the conservative 
elements did realise their weaknesses and tried to adopt 
themselves to the movement of the Renaissant Islam. A new 
awakening had been among them and some sections from among 
thorn had begun to gravitate to the middle course. They had 
their limitations, but they did try to adjust to the new 

The modernist approach, on the other hand, has been still 
y more Shallow, unrealistic and unsuited to our conditions. 


*0 TU Islamic Law <*nj Constitution 

This approach of the so-called liberals is, in fact, not a 
reform movement, bat a oloaked departure from 111 am. They 
lack ail understanding of Islam and try to import all their ideas 
and concepts from the West. But as they are not bold enough 
to speak their mind openly and frankly, they try to maintain 
the Islamic terminology and twist its meaning to suit their 
ideas. Even a leading Western cri tic of Islam, Professor Joseph 
Schacht had to admit that what these 'progressives' are driving 
at is not Islam, bat the very antithesis of it. He writes ion 
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 

1 the formative period of Muhammaden law ; any opinion 
held at some time in the past is likely to be taken oat of 
its context and used as an argument. On the one hand the 
modernist, legislators are inclined to deny the religious 
character of the eentral chapters of the sacred law ; on the 
other, they are apt to use arbitrary and foroed interpretations 
of the Koran and traditions whenever it suits their purpose. 
Materially, they are bold innovators who want to be 

* modern at all ooats ; formally they try to avoid the 

semblanoe of interfering with the essential contents or the 

saeredlaw. Their ideals and their arguments eome from 

the West, but they do not wish to reject the sacred law 
openly as Turkey has done".* 


We do not say that all modernists lacked sincerity. The 
sincere among them have been many. But they have failed to 
r<*]ise 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 

1. Joseph Sohseht, Tk* Law, Unity and VarUty 1m Mmtim OiviUtaHon, 
£<L, O. E, Von Groftobeam, Unireniity of Chicago Press, IMS. p. 85. 


oonfiurion. ft is the fade of realisation of the t>a*k feet 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 

Secoadly, they do not realise that the co&ditioni in the 
Muslim: world today are essentially different from those that 

S retailed in Europe during the periods of Renaissance and 
leformation. The history, the traditions, the politioo-sooial 

institutions and the cultural , background of Islam and the 

modern West are totally different. In suoh a situation, how 

can the secular Western institutions work in this part of the 

Thirdly, people here have no heart for the imitation of the 
West. They want to hare Islam and not Westernism. Their 
experience of the West has been bitter. The West has 
humiliated them, rode rough shod over them, subjugated thorn 
and trampled their culture underfoot * 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 his Western education 
has set a barrier between him and the common man.' And nowhere id 
this barrier stronger than in the field of mutual understanding of the 
significance of the religion... Pakistan is offered 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 ad minis- 

trators comes very close to Western secularism: " Prof. Keith 

Cellar*, Pakistan t A Political Study, London 1*67, p. 280. 

2, "In the encounter between the world a ijd Xh* West that has been going 

"n^jy now for four or five hundred years, the world, not the W«t» is 

party that, up to now, has had the significant experience. It has not 

been the West that has been hit by the world; it is the world that has 

been hit-and hit hard by tho West .^he West (the world will say) 

has been the aroh-aggreesor of the modern times. And certainly the 

world's judgement on the West docs seem to be justified over s> 

period of about four and a half centuries ending i'n IWri." 

Arnold J, Toynbee, The World and (As Wist (Reith Lectures) 
• • fcoaaon. 1&53, pp. M,- s 

The Mamie Laie ani Constitution 

one i» foredoomed to failure. Not only that midh a poller i* 
bound to fail bat it will also injure the society in many respects. 
For instance : . 

(a) Such a policy is incompatible with democracy, for the 

people do not consent to it. And if it is to be carried 

out, it must be accompanied by despotism and high- 

(fc) Even if it it imposed from above, it will engender a 
social schism in the society. The resources of the 
nation will be wasted in mutual conflict between the 
rulers and the ruled and nothing great can be achieved 
by a people divided against themselves. 

(c) It will lead to the disintegration of the community 
and will throw the society in moral confusion and 
cultural convulsion. Islam is the moral basis of our 
society and culture and if it is weakened, the moral 
basis of the society will automatically disintegrate. 

The modernists have no realisation of all these grave 

Fourthly, the modernists are utterly confused and their 
perspective is totally blurred. There is no agreement among 
them as to what they want and how they want to achieve that. 
Everybody has his own interpretations and the differences 
amongst them are so acute that no one agreed ideology can be 
formulated from their viewpoints. Their mutual disagreements 
have weakened their position beyond repair. 

Laatly, they have not proved good administrators and 
politicians either. The administration of the country has 
become more and more lax. Corruption has mounted high. 
The economy has been thrown into one crisis after the other. 
Political insta bility has inoreased. Even respect for law and 

I. "I believe this i 3 one of the reasons why such law (i.e Secular Law) 
usually has to be put in first by a dictator. .It cannot come in as a 
mass movement because the mama ara in the old tradition" 

p.j ^ mer 8 : °- Northro P- on Ulamio CuUW, 

Prinoeton University Press, 1959, p. 10». 

IntnStuH— » 

the oonatitotion of the country hat dwindled to tbe lowest ebb. 
AH these things and the way that they have again and again 
thrown to the winds the most sacred constitutional conventions 
and modes of doing things and tried to impose by force what 
their people were not willing to accept through democratic 
means, have further lowered the prestige of the ideology they 
want so much to impose. During the last few years all types 
and brands of the modernists and all possible combinations of 
them hare come to the helm of the country's affairs and 
proved an otter failure. Their pronouncements might be of 
some value to a section of foreign observers, but they have 
utterly failed to impress their people and sweep them to their 
side. Modernism haa lost its shine and flavour. It is on the 
decline here, there and everywhere and is bound to decline 
further. 1 As a matter of 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 of whose guidance has 
been Abul A' la Maududi. 

The chief characteristics of this Renaisaant approach are as 
follows : 

(o) The renaissance movement of Islam has as its objective 
the establishment of the Islamic way of life in its 

entirety (Iq&maUe-din). 
{b) 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 of the West, 

—i^—^— ^^^^^^^^^^^^ 


1. , *Th* Westernising middle elans of Pakistan nas failed to evolve a 
Successful ideology. It has not succeeded in putting forward in this 
realm anything winsome and feasible, eliciting the intellectual assent, 
moral commitment, and constructive energy of its o*vn mombere. 
It has not persuaded the nana*** that the programme o» which it has 
embarked is significantly related to their own convictions, aspiration*, 
is calculated to fulfil their hopes". Prof. Wilfred C. Smith, I*hm in 
ttoaer* ffwfory, op. cii. t p. 2S3. 

It is trying to ttplift the individual tod inspire Iq kirn 
the origin*! Islamic spirit. It is trying to reform the 
society and rebuild it on the Islamic pattern. It if 
trying to reconstruct the politioal life in accordance 
with the principles given by God end His Prophet. 
In short, it has been trying to mould the ideas of the 
people and the thought-pattern of the country, to 
educate the masses in the Islamic way of life, to 
mobilise their powers for social and political reforms, 
and to create general consciousness to bring up a 
leadership that can carry on the task of Islamic 
transformation in the country, 
(c) It has avoided the extremes of conservatism and 
modernism. It neither suffers from narrow-mindedness 
nor from the inferiority-complex which engenders 
servile imitation. The renaissance movement has been 
moving ahead with self-control and self-confidence. 
It has a clear vision of its objective. It does not 
w*nt to break away from glorious Islamio traditions. 
It wants to re-establish real Islam in the world of the 
twentieth century. It presents the unadulterated 
teachings of Islam in the language of to-day. It is 
trying to apply the principles of Islam to the problems 
of our age and claims that rslam is capable of meeting 
the challenge of every age and epoch. 
{d) It has been a non-sectarian movement and instead of 
looking upon the problems from the angle of this sector 
or that one, it has looked upon them from a broader 
■ angle of vision and has avoided all sectarian prejudices. 
Instead of involving itself in petty trivials, it has been 
\ devoted to the basic and fundamental problems and 
that is why the leaders of the various schools of v 
thought have lent their support to it. This movement 
has been national in the real sense of the word. 
■ ( . (s) It has adopted democratic and constitutional means to * 
organise the public opinion and bring about necessary 


prewar* upon the ruler* to concedo to the peopled 
demand. Public education and not violent agitation, 
free discussion and not civil disobedience, ballot and 
not ballet have been its means of work 

if) There has been a uniformity of approach and unity of 
thought among the loaders of this movement and on 
every occasion they presented an agroed ideology. In 
the Parliament! and onteide itf they presented the 
same viewpoint. They responded to tho challenge of 
the rulers that the ttlama cannot give an agreed 
concept^of Islamic State. In 1951 the leaders of all 
the schools of Muslim thought unanimously formulated 
the Basic Principles of an Islamic State,* In January 
1953 again they almost unanimously presented their 
comments on tbe Nazimudtlm Report.* And in May, 
I960 they unanimously formulated their answera to 
the Questionnaire of tho Constitution Commission.* 
This shows tho unity of thought and uniformity of 
approach of all tho revivalist groups. 

(9) The platform of the renaissance movement has becomo 
the meeting ground or more or less all the sincere and 
enlightened sections of the country. Tho conservatives 
have slowly but gradually moved toward* it, and the 
sincere from amongst the modernists also are coming 
closer to it. It is becoming tho natural rendezvous for 
the extreme groups. The conservatives are becoming 
less conservatives, and some of the modernists are 
becoming less modernist. A medium course is being 
chalked out hy the renaissance foroea of Islam. 

Reference is to Montana Shabbir Ahmad Umoni, M.P. 

i.e. the public movement of Mav fona Moududi And MouUina Athtr Alt 

See Appendix I. 

See Appendix II. 

See Answers to the Questionnaire of the ^Constitution Commission 
by WUtama of Pakistan, Lahore May, I960, 

TU Ulamic La* **i Q*%*it%tio* 

The above analysis ehowi that as far m tha ideological 
problem is concerned, none but the Renaissan t Islam cm deliver 
the goods. Now let as see how the greatest popular movement 
of the last twelve years— the movement for Islamic Constitqtion 
—grew and developed and what' leadership the renaissance 
forces provided in this reepect. 



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 day* of 
seventeenth century down to this day. The establishment of 
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 eten 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 er*. Consequently, 
as soon as the dust of oivil disturbances had tattled down and 

the atom of refuged problem had subsided a bit, the question 
of constitution-making oame to the forefront. With the 

presentation of this problem the demand for Islamic 
Constitution came up instantly. Maulana Shabbir Ahmad 
Usmani raised tM iwrae in the Parliament. Maulana Abul A*la 
Maududi approached the people, channelised the nation's 
feelings and aspirations a* regards the objectives of the state 
s>nd 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 mstitaent Assembly. The resolution 

was as follows : ^ 

•*Whereaa the overwhelming majority of the citizens 
of Pakistan firmly believe* in the principle* of Islam ; and 


whereas the entire struggle and all the sacrifices ft* the 
freedom movement for Pakistan were for the sole purpose 


of establishing these very Islamic principles in all fields of 
oar life : 

Therefore now, after the establishment of Pakistan, we 
the Muslims of Pakistan demand that the Constituent 
Assembly should unequivocally declare : 

(1) That the sovereignty of the State of Pakistan vests 
in God Almighty and that the Government of Pakis- 
tan shall be only an agent tn execute the Sovereign's 
Will : 

(2) That the Islamic Skari'ah shall form the inviolable 
basic code for all legislation in Pakistan ; 

(9) That all existing or future legialation which may 
contravene, whether in letter or in spirit the Islamic 
Shari K ak shall be null and void and be considered 
ultra virts of the Constitution ; and 
(4) That the powers of the Government of Pakistan shall 
be derived from, circumscribed by and exercised 
within the limits of Islamic Shari'ah alone,* 
As this demand reflected the deepest aspiration of the 
people and represented their general will, there were echoes 

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 tho 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. Maududi and some of 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 within n year of the initiation of 
this demand the Constituent Assembly had to pass the Object- 


1. Abul A-la Maududi, Mutalba Niiam-*I*tami, p. S, 

» Th$ litamic Law tod Constitution 

tives Resolution which embodied all the point* for whUb the 
pcopje of Pakistan, with Mavdudi at their helm, had been pros- 

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 a person is ordered by the Provincial 
Executive without even letting him to know the charge against 

With tlie passing of the Objectives Resolution, the purpose 
of the Stat© 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-making would proceed smoothly- Unfor- 
tunately, however, there was plenty of 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 Soptember 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. Maududi toured the length 
and breadth of West Pakistan to mobilise public opinion against 
it 1 The Jamia't at 0 lama t-Islam took up this work 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 ot Islamic polity. It 

was alleged that there was such a severe conflict of opinions 
among the different schools of Islamic thought that iio unanim- 
ous version of Islamic Constitution was possible, and it was, 
therefore, Utopian to talk of the establishment of an Islamic 


1. Se© Dat/vH 8ifair$hat par Utnqid&tabtrtl, Lahore, 1950. 

Obviowly. it was » ohaUsnge to W»m, The Ftema took it 
upends Conference of renowned scholars of ell schools of 
Islamic thought was convened in Karachi in January, 1951. 
Within three days the Conference formulated unanimously the 
"Principles of the Islamic State" in the form of 22 Article* and 
brought to naught the allegation of the Westernised group.* " +■ 

Then came a lull in the political arena. A full eighteen 
mouths wore off and nobody ever heard during those days even a 
whisper about the Constitution. The people became impatient 
and suspicion quite naturally began to grow as regards the 
intentions of the political leaders. Consequently, Mau&udi once 
again stood up in May 1053 to voice the Muslims* sentiments. 
He oriticised the dilly-dallying policy of the Constitution- 
Makers and put forward his famous demand that the Constitu- 
tion should be framed before the end of 1952 and that it should 
embody the following eight points : 

(t) That the Islamic Shari'ah shall form the law of the 
land ; 

(2) That there shall be no such legislation as would con- 
travene any of the dictates or principles of the 
Shari'ah ; 

(3) That all such laws as are in conflict with the dictates 
or the principles of the Shari'ah shall be abrogated ; 

(4) That it shall be incumbent upon the State to eradi- 
cate the vioea which Islam wants to be eradicated 
and to uphold and enforce the virtues which Islam 
requires to be upheld and enforced ; 

(5) That none of the basic civic rights of the people- 
security of life and property, freedom of speech and 
expression, and freedom of association and movement 
—shall be forfeited except when a crime has been 
proved in an open court of law after affording due 
opportunity of defence ; 

(6) That the people shall hare the rights to resort to a 
oourt of law against transgressions on the part of the 

• 8«o Appendix I. . 


Tk4 Islamic Law and Constitution 

legislative or the executive machinery of the State ; 

(7) That the Jadioiary shall be immune from all inter- 
ference from the Executive ; 

(8) That it shall be tha responaibility of the 8tate to aee 
that no citizen remains unprovided for in reepeot of 
the basic necessities of life, viz, food, clothing, 
shelter, medical aid and education * 

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 Kh. Nazim-ud-din 9 the then Prime Minister presented 
the Basic Principles Committee Report in December 1952. It 
embodied most of the points of demand, but obviously not all of 

them. A Convention of 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. 2 

The nation took up the Ulama's amendments and demanded 
their acceptance. 3 But the movement was just gathering 
momentum when, like a bolt from the blue, came the sudden 
removal of Nazim-ud-din Ministry and the formation of a new 
Government under the premiership of our ex-ambassador to 
the U.S.A., Jfr. Mohammad Ali of Bogra. 

2. Later on a ninth point about Qadianis was also included in his 
demand. This w- * dona to direct into constitutional channels the 
growing public agitation for the declaration of the Qadianis as a non- 
Muslim minority and to concentrate the entire force of the people on 
the constitution problem so that the people may not be sidetracked 
into subsidiary issues as was the attempt of tho high-ups. The ninth 
point was as follows : 

"That the Qadianis shall be included in the list of non-Muslim 
minorities and their seats shall bo reserved according to thoir 
population* through separate electorate'*. 
'2, See Appendix II. 

3. Maudvdi ajjain extensively toured tho country to mobilise public 
opinion. For the historic spoeoft he mad<> on tho occasion, see Abul 

A«ia Maududi, Ttihrihal. Supplement to Ohiraah-9-Rah, Karachi; 
Jaly. 1053. 

Introduction $J 

With the advent of the new Ministry the stunt of "Pro- 
visional Constitution" wm pat forward, a reign of terror was 
let loose and the workers of Ialam were harassed, persecuted and 
imprisoned.' Despite ell this show of tyranny, however, the 
tempo of the' people's demand could not he slowed down. 
Finally, the stunt of the Provisional Constitution proved abor- 
tive and the work of framing a full-fledged Constitution had to 
be started. The deadlock on "parity" between the two wings of 
Pakistan was solved in the shape of Mohammad Ali's formula, 
xvhich was adopted by the Constituent Assembly. Most of tl ie 
Mama's amendments were incorporated in the Report during its 
adoption by the Constituent Assembly, though some of the 
■mportant ones were left out. The work progressed rapidly and 
the Prime Minister of Pakistan promised to give the country a 
Constitution by the end of 1964. Just at the last hour, Low- 
ever, the Constituent Assembly was dissolved, obvious! v to 
enable the Westernista to frame a Constitution of their choice. 
Maududi and his leading supporters were already in jail. 
Maududi was sentenced to death on the flimsy pretext of writing 
a pamphlet, namely, "The Qadiani Problem", which itself was 
nover bannedt All artifices were used to crush the movement for 
Islamic Constitution and create confusion amongst the people,' 
but to no avail. 

Maududi had been put in jail in 1953 for fourteen years, 
but the struggle went on. In 1955 the new Constituent Assembly ' 
was formed and it again started the task of constitution making. 
The demand for Islamic Constitution again began to mount. 
Maududi who was released in the spring of 1955 because of the 
nullification of the very law under which he oould be detained 
'» jail, now presented his detailed comments upon the draft Bill* 
and mobilised the public opinion in favour of his plea. It was 
in this context that Constitution of 1956 was formulated and 
was piloted in the Consembiy hy Ck. Muhammad Ali the then 
I'rime Ministe r of Pakistan It was a compromise document, but 

1 »<•<» Ali Ahmad Khai,, Yeh Qtriftarian Kiun t (Why thine arrets ?). 

: Karachi 1953. 
2- See Appendix III. 

did incorporate the basic demands of the people and at lout 
• provided a good ground to stand upon and move ahead. All 
sections of opinion welcomed it. 1 It was 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 Constitution 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 implementation. And 
at last it was abrogated on 7th October, 1958 by the then 
President Major General Iskandtr Mirza* 

Now the country is once again trying to have a constitution. 

This movement for Islamic Constitution has been a popular 
movement. Thousands of meetings were held to ventilate 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 Prima 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 Pakistan. 3 

This movement is unique in certain respects : 

(n) It was the first popular movement in Pakistan and was 
carried out on purely democratic lines. A very critical ■: 
moment came when certain political interests tried 
to sabotage it by fanning agitation on the Qadiani 

1. For Maududi's comments on it see Appendix VI. 

2. Abul A'la Maududi, /efomto Lav and Constitution. Ed. Khurshid 
Ahmad, Karachi, 1955, p. 204. 

3. Here it may be mentioned in passing that the English press, control* 
led by the ultra-modern minority, totally boycotted this movement and 
did not even had tho guia and conscience in ropon it. If an idea of 
tliy extern and popularity of this movement is to be made, resort roust 
be had to the t/rdu frees, particularly to The Dail y Tomtom, Lahore, 
The Daily KohioUtn, Rawalpindi and Lahore, The Daily Turnout 
KawaJpindi. The Daily Skuthbax, Peshawar, The Daily Jung, Karachi, 
The Daily Anjam, Karachi: and the Daily Paoban, Dacca. 


Problem %o overshadow this movement, bat the leaders 
of the movement very wisely added a new point (the 
ninth point) to the demand and tried to canalise the 
agitation on constitutional lines. Although they could 
not fully succeed in that objective yet the movement 
for a* Islamic Constitution continued to progress on 
purely democratic and constitutional lines. 
(&) It was unique that the interest of the masses was 
aroused on such a wide scale on a debate about eon. 
stitution. Perhaps it can be said without any fear of 
contradiction that in no other country of the world 
did the masses take so muoh interest in constitution- 
making, as was taken by them in Pakistan. 

(c) The movement v as an educative mo vemcnt and brought 
the people nearor to.the Islamic ideology, made them 
understand its moaning aad prepared them to achieve 
it through sustained struggle. 

(d) The democratic tradition began to crystallise in the 

(«) New literature was produced on the political and con- 
stttutional thought of Islam and the Islamic concept 
was presented with greater clarity and precisioo. 
In the present book our concern is mainly with this last 
point and we propose to present in it some of the best writings 
produced in this period. 



Islamic Law and Constitution is a collection of some of 
those writings and speeches of Abul A'la Maududi which deal 
with the politioal and constitutional thought of Islam. Maududi 
is one of the leading thinkers of the world of Islam and his 
ideas have influenced a generation* It would be of interest and 
profit for all to see what he has to say on the problems and the 
prospects of an Islamic State. 

The chief contribution of Maududi is that he has devoted 

34 The Islamic Law and Constitution 

himself to the socio-politico-oultural aspect of Islam and has 
discussed those problems which the writers on Islam ware avoid* 
ing for a long time in the reooat pt*t. He has tried to meet the 
new intellectual challenge of the Wast and has presented Islam 
in the language of today. In political thought, . his main con- 
tribution is that he ha.H not only presented the teachings of 
Islam in a clear, preeise, cogent and convincing way but has also 
interpreted them for our times and has tried to suggest the form 
which the Islamic tenets can take to crystallise in the world of 
twentieth century. This has been a difficult task and he has 
come to grips with it in an admirable way. 

The editor compiled some of his writing* on law and con. 
ntitution in 1955 under the title of Islamic Law and Constitution. I 
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 tho party-meet- 
ings. The need of the second edition was pressing for a long 
timo, but the editor was so absorbed in other works that he 
could not find out sutfioieat time to devote to this work. He 
was eager to revise the book thoroughly, because the first 
edition was prepared while ho was a university 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 Maududi's writings on political and con- 
stitutional thought. 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 Islamic political thought. 

The book is being presented with the hope that it will help 
the people m understanding the concept of Islamic Constitution 
and of Islamic State. A large number of our own people, who 
have acquired modern Western education and who are not well. 
versed in Inlam io literature, have not understood properly the 

I. Abul A«U iUududi, Islamic Law and Constitution, Ed. Khuwhid \hmad 
Karaclii, 1950, p. 214. 

introduction V jar- 

real nature and meaning ofu Islamic Constitution. Many of 
them harbour falaa notion* aboat Islamic policy and ita practice. 
This book can help them in grasping meaning of (he Mimic 

Then, too ideological character of Pakistan hat aroused the 
interest of foreign students and scholars and they are eager to 
know what an Islamic Constitution is. This book will enlighten 
them on this question. 

Moreover, throughout the Muslim world there are move- 
ments demanding the establishment of the Islamto Skari'ah ; 
this book may act as a guiding star to them. 

■ It is hoped that this book may serve the above outlined 
purposes. A clarification is, however, needed at this stage, 
Islamic Law and Constitution is a collection of some of those 
writings and speeches of Abul A'la Maududi whioh throw light 
on the problems of Islamic law and polity. The essays were 
penned from time to time and the speeches were delivered on 
different occasions and before different typaa of aadienoes, 
ranging from the uneducated masses to select gatherings of 
lawyers, legists and students. In spite of that, however, a 
common thread runs through them all and links them into a 
unity of purpose. The reader may find some repetition here 
or there but that is quite natural in a work of this kind. 

In the preparation of this book several persons have helped 
me and I am thankful to them all for their labour of love. I 
am particularly indebted to Maulana Zafar Ahmad Ansari for- 
mer Seoretary, Board of Taleemat-e-Islamiah, Constituent As- 
sembly. Pakistan, Mr. Zafar Ishaq Ansari. Lecturer in Islamic 
Hwtory, University of Karachi and Khwaja Abdul WaUtd, 
Editor, Al- Islam, Karachi, for the immense assistance they pro- 
vided me in translating and revising the manuscript. My thanks 
are also due to my brothers Anis Ahamad and Muslim Sajjad 
for checking the references and verifying the quotations from 
the Qur'an. Mr. Sh-xkzad Muhammad typed ungrodgingly my 
badly written manuscript again and again. I must also eonfess 
that the book is seeing the light of the day only beoause of the 

TU Islamic Law and Constituti 


never-iailing endeavour of CAaudAri MmIm, Ar*A«m m «d ,S'aA»i> 
who hu been the main aouroe of atimulua and encouragement; - 
The book is being presented with the sole purpose of dis- 
neminating the view-point of Islam before a world torn by con- 
foots and devastated by war.. Let it be hoped that it will be 
received without any biaa. 

1, New Queens Road KHURSHID AHMAD 

Karachi, 14th July, I960 





Chapter 1 




At the rtidko of midnight, on August 14, 15H7 when 

The world wu Paki.t.n wa. bom »to e* s- 

teL-P.kl.tW the bomel.nd of Mi-. But the 

Moment of • f«H.fledg<d Islamic .ociety reined , 
distant hope, because the road wa. .trcwn hard- 
. m >. Minds were riddled * itk many a ser.ous nnsun- 
demanding and confusion- What, in fact, „ Is Unuc 
kwl I. it practicable in the twentieth century 1 
Would it not mar material progress 1 Such and the 
like questions were disturbing many of our modern 
educated people. Maulana M.Mi reahsed the .». 
portanee of the*e question, and did not » 
answer them and ^u, refut. the mistaken notion, of 
the -educated folk'. H. delivered a speech on the 
Mamie Uu> on January 6. 1948 at the Law Col ege, 
Lahore, »nd delineated the real nature of LUtmo Law. 
The following i. the English rendering of that speech. 




This an irony of fate that, now a days, the demand for the 
enforcement of Islamic Law has become surrounded by such 
a thick mist of misgivings that a mere reference to it, eten in a 
Muslim country like Pakistan, raises a storm of criticism. Thn«, 
for instance, the questions are asked : Can a centuries-old legal 
system bo adequate to fulfil the requirements of our modern 
state and sreiety ? Is it not absurd to think that the law 
which had been framed under certain particular circumstances 
in by -gone clays, can hold gocd in every age and every clime ? 
Do you sericrpjy propose to start chopping off the hands of 
thieves and iVgping human beines in this modern, enlightened 
age ? Will our markets again alornd in slaves and deal in the 
sale ard purchase of human beings as chattels and playthinga ? 
Which particular sect's legal system is going to be introduced 
here 7 What about the non-Muslim minorities who will never 
tolerate 'the dominance of the Muslim religious law and will 
resist it with all the force at their command ? One has to face 
a volley of such questions while discussing the problem, and, 
strangely enough, not from non-Muslim" but from the Muslim 
educated elite ! 

To be sure, these queFtions are not the outcome of any an- 
tagonism towards Islam but mostly of sheer ignorance which 

must quite naturally breed suspicion. And to our utter 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, that they labour under strong prejudices. 

This state of degradation, however, has not 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- . 
covfiy and tr.cugtt and cultuie, it finally culminated in ow 

political bfUkdoini, making wmy a Untitm eowtty the sla*s 
of Q<m-Hi?*Hia iraperiaUst power*. Political slavery gaw birth 
to aii jjtf etfori ty-coinptex and the reial tan t intellectual sstrStom 
e ve*ttt-fly swept the entire Muslim world off its feet, to jugfe 
so that eveo those Muslim countries w}ycb were able to retain 
their political freedom could not pscape its evil influence. The 
ultimate consequence of, this evil situation wm that when 
Muslims woke up again to the call of progress, they were incap- 
able, of looking at things except through the coloured glasses of 
Western Thought. Nothing which was not Western oould 
inspire confidence in them. Indeed, the adoption of Western 
Culture and Civilization and aping the West even in the most 
personal things became their craze. Eventually, they succumbed 
totally to the slavery of the Weat. 

This trend towards Westernism wan also the mult of the 
disappointment which came to the nation from the side of the 
Muslim religious leaders. Being therneolves the victims of the 
wido-sproad 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 of life which had the glamour of being successful in the 
modern world. Thns they succumbed to the onslaughts of 
modern thought, adopted the new culture of 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 over the people, by men 
boreft of a^l knowledge of their religion and imbued only with 

the spirit of modern thought and Westernjdeals. This is why, we 
find that many a Muslim country has, in the recent past, eitner 

completely abrogated tho Islamic Law or confined its operation 
the domain of puroly personal matters only— that is, a posi- 
tion conferred on the non-Muslims in a truly Islamic State. 1 

i. The flr»t country where the abrogation of Islamic Law started was India, 
although the SharTak continued iiaforoe long after the British had oome 

m The Mimic L**m*4 0*%*it*io* 

In all those Mnslim countries, which suffered from fowdgn 
domination, the leadership of polities*! Mid cultural movements 
fell into the hands of (hove who were thorn of ell Islamic back- 
ground. 'They aabpt*! the creed of Nationalism, directed their 
effort* towards the causo of national independence* and pros- 
perity along secular linee and tiled to copy, step by step, the 
advanced nations of thii 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 sidetrack or suppress the issue, as they are ignorant of even 
the A.B C. of the Islamic SharVah. Their education and intelle. 
otnal development has alienated them so completely from the 
spirit and the structure of Islamioideology that it is, at least 
for the moment, very difficult lor«rthem to understand suoh 

As regards the Muslim religions leadership, it has in no 
way fared bettor, because our religious institutions are tried to 
the intellectual atmosphere of 4he fifth oentury A.H,, as a 
consequence of which they ha*e not been able to produce such 

into power. So much so t hat the penalty of severing the band of habi- 
tually hardened thief was awarded aa late aa 1791 A.D. Thereafter the 
prooess of suppression began till at last by the middle of the nineteenth 
century; the whole of th© tfhqci'ah had been abrogated, excepting of 
course injunctions regarding* purely personal matters like marriage, 
divorce, etc. Other states where Muslims themselvds were in power, 
took their cue from the Muslims of India and the leading part in this 
transition was taken by the Muslim Native States of India, In 188*. 
Egypt ohanged ov*r her own laws to Cads NipoUan leaving only matter 
of divorce, marriage an inVritsnee to the jurisdiction of 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. France, Switzerland and Germany, making 
such inroads on Muslim personal law itself as no non- Mnslim state 
would dare do. Albania led the way by penalizing polygamy and Turkey 
followed her by changing th© mandatory provisions of the Holy QorW 
in respect of divorce and inheritance. There now remain only 
Afghanistan and Saudi Arabia where the SkaH'ah is accepted as the 
State Law though even there the spirit of the Shari'ah has long sine* 
disappeared and the whole of SaaWcA too is not being enforced. 

leaders of Mamie thought and action as could be capable of 
administering the affairs of a modern state in the light of Islamic 
principle*. This is the situation prevailing throughout the 
Muslim world and is, indeed, & wy real obstacle facing the 
Islamic countries An their march towards the goal of Islamic 

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 object of 
becoming the homeland of Islam. For the last ten* years, we 
have been ceaselessly righting for the recognition of the fact 
thjat we are a separate nation by virtne of oar 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 of con-Muslims. We have all along been 
demanding a separate homeland for the purpose of translating 
into 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 suffered deep humiliation in respect 
of the honour and chastity of a large number of our womenfolk, 
wc 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 reality-a live force 
to fashion all facets of our life, our entire struggle and all our 
sacrifices become futile and meaningless. 

Indeed, if instead of an Islamic, a secular and Oodless Con- 
stitution was to be introduced, and if instead of the Islamio ■ 
Skari'ah, the British Civil and Criminal Procedure Codes had to 
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 
"ocialistie programme, we could have done so in collaboration 
_yith the Commnniwt and the Socialist parties of India without 
*. Remember that this speech was delivered in Editor. 

44 Tht Islamic Law and eorutUution 

plunging the nation into this grant bloodbath and; mighty 
ordeal . 

The hot is that we are already committed before God. Matt 
and History for the promulgation of Islamic Constitution and 
the introduction of Islamic way of life in this country and no 3 
going Lack on our words is possible- Whatever the hurdles and 
howsoever great they may be, we have to oontinue our march 
towards our goal of a full-fledged Islamic State in Pakistan. 

No doubt, there do exist many hardships and difficulties in 
the way of achieving this goal. But what groat goal can be or 
has ever been achieved without facing difficulties boldly and 
intelligently T And I must emphatically say that the difficulties 
which impede our way are in no way insurmountable. Indeed, 
none of them i" real exoept the difficulty that many among 
thoae who hold the reins of power are devoid of faith in the 
effioaoy of the Islemio ideology which, in its turn, is not due 
to any defcot in Warn but is purely a product of their own grow 
ignorance of the Islamic teachings. 

The first task, therefore, is to explain to our educated 
people the meaning and the implications of Islamic law, — its 
objectives, its spirit, its struoture, and its categorical and 
unchangeable injunctions along with the reasons for thoir per- 
raanenoe. They should also be informed of the dynamic element ii 
of Islamic Law and how it guarantees the fulfilment of the ever- 
increasing needs of progretsive human society in every age. 
Then, they should be enlightened in regard to the rational » 
foundations of the SharVah. Finally it is also needed to expose • 
the hollownesa of the vituperative oritioiams against Islam and * 
to remove thereby the fog of misunderstandings that shroud the | 
issue. If once we succeed in accomplishing this task and con- J 
sequently gaining ths support of Muslim intelligentsia, we wiUj 

pave the way for the establishment of an Islamic state and thas 
creation of an Islamic society in Pakistan. It is with ^biij 
intention that I am making this speech before the student* ot 
the Law College. 

* v J * 

■ 46 


Hi© term "Law" bears reference to the qaery: "What 
saonld he the conduct of maa la, his indirfdaal art collect!™ life?" 
Hie qaery present* itself td u« ia connection with innumerable 
matters. Hence its reply covers a very wide range of topics 
wider than what the term "Law" technically signifies, ft in- 
cludes our system of education and training in the light of 
which we strive to mould the character of individuals ; it 
comprehends our social system which regulates our social 
relationships ; it enoompasses our economic order according to 
which we formulate the principles of production, distribution 
end exchange of wealth. Thus we possess a vast system of 
raleB which determine our conduct in various walks of life. 
Technically speaking, all these acts of rules are not "Law". 

The term "Law" is technically applied only to such of the 
rules as are enforceable by the the coercive power of the State. 

to understand them, can 
afford to confine his attention to them alone. He must take 
into consideration the entire scheme of moral and social guid- 
ance prescribed by a particular ideology, because it is only 
then that'he will be able to appreciate the spirit and objectives 
of the Law" and to form a critical opinion about its merits 
and demerits. 

It should not be difficult to understand that the principles 

caMy derived from and are deeply influenced by our conceptions 
scout the ends of human life and by our notions of right and 
wrong, g 0p d and evil and justice and injuatioe. Consequently 
«e nature of a legal system depends entirely upon the source 
or sources from which it is derived. TJiua. the difference, dis- 
^^.^^V*** of different societies are 
3«£ d,ff — of their sources of guidance and 

^TS^r ™r»»* s: •*? - 

4* The Idamc lem **& 0<mstttiaie* 

of life «nd of the society which H brings into existence and to 
appreciate the complete process of tbo development of that 
gyBtem end the evolution of that society, we will not be eble to 
understand, mqch less to criticise on any rational bads, the 
mandatory legal provisions of the system— especially- when our 
knowledge of those provisions consists, in the main, of hearsay 

Had conjecture. . 

I do f Bel that a comparative oritical study of the Islamic 
and the Western system of life would be the best way to ex- 
plain and eluoidate my view-point. If the differences between 
the original sources and the basic postulates of both tha systems 
are kept in mind, radically different sshemes of life that both 
envisage can be easily understood. But the paucity of time 
at my disposal does not permit such a digression, and conse- 
quently, I shall confine myself, at presant, to the exposition of 
the Islamic Shari ah only. 
Sources of the Islamic System of Life 

The first source of the Islamic system of life ia a book, or to 
bo more exact, "The Book". The world received several 
editions of it under the titles of the Old Testament, the Now 
Testament, the Pslams, etc., the last and the final edition being 
th* one presented to msnkind under the name of the Qur'Sn. ^ 

The second source of this system are the persons to whom 
the different editions of the Book were revealed and who, by 
their preachings and their coaduot, interpreted them to the 
people. Ah different personalities, they bore the names of Noah, 
Abraham, Moses, Jesns and Mahammad (peaoe be on them all) 
but as the bearers and upholders of the same mission of life, 
all stand under the general title of "The Messenger". 

The Islamic Concept of Life 

The view of life which Islam has presented is that thtt 
universe Of ours, whioh follows a set course of law and func- 
tions according to an intelligent and well-laid-out plan is tf 
reality the Kingdom of tuo One God— Allah. It is He WW 
created it It is Ho Who owns it. It is Ho Who governs i£ 
The earth on which w* live is just a small part— a provinoe—flt 


ouraelvea — i.e., w© human beings^- we are nothing mor« then 
His "bora subjects*'. It is He Who oreeted us, suateina us «d 
causes ™* Kv*. Henoe, every notion of oar abtoluu imUptn- 
itnce is nothing but a sheer deception and misjudgement God 
controls every fibre of otir being and none can eeoape Hie grip. 

Every thinking mind it aware of the faet that a very large 
aector of our life ia governed and directly oontrolled by .* High 
Power and with snob abeolateneas that we are practioally help- 
leas in reapeot of it. From the time we are eonoeived in tho 

wombs of our mothers till the moment we breathe our . last, we 
are subject to God's inexorable Laws of Nature to aueh an extent 
that we oannot claim to be free from their control even for a 
single moment. 

Of oourae there ia another sphere of our life in which we 
possess a certain amount of freedom. This is the moral and 
social sphere of life in which we are bestowed with a free- will 
and independence of choice in respect of individual as well aa 
collective affairs and behaviour. But this independence can 
hardly justify our rejection of the Guidance of our Creator and 
His Laws. It is only to give as a ehoioe leading our lives as the 
obedient subjects of God— au attitude consistent with the real 
order of things— or of being diaregardful of His commaudjlitate 
and thua rebel againat Ham and our true nature. ^ 

Obvioualy, to the faithful, the Guidance and Law of God ia 
the truest and moat consistent attitude for mankind. It seta the 

•tandard for the orderly behaviour of man "both individually 
wid collectively and in respect of the biggest as well as the 

«mail w fcta»ithe m»yli»vetofaoe. Having once aooepted the 
phitoaophy of life enunciated by "Book" and "The Messenger" 
•s the embodiment of Reality, one has no justification for not 
obeying God'* revealed Guidance in the aphere of one ohoioe 
*l«o. Indeed, it is bat rational that we ahould admit God'* 
J^f^ *» tbU sphere as well just as we are ptrforoo doing 

pbyaioai life. And this for several 

48 Tks hl tm it l**A»d Constitution 

Firstly, the power and the organs through which our f re** 
will functions, we gift* from God and not the result of o*r 
own efforts. 

Sccoadly, the independence of choice itself has been delegat- 
ed to us by God and not bj as through our personal endeavour. 
Thirdly, all those things in whiph oar free-will operates are 
' not only the property but also the creation of God. 

Fourthly, the territory in whioh 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 
Source of 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 of an irreconcilable con- 
flict which finally. lands not only the individuals but even 
biggest nations in endless trouble and disaster. 

The Final Book of 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 of Reality 
stated by the Holy Prophet and the Holy Book is true, it is for 
him to step forward and surrender his will to the will of God, 
It is this submission which is called 'Mam' and those who do 
so i.e.a those who of their own free-will accept God as their 
Sovereign and surrender to His Divine will and undertake to 
regulate their lives in accordance with His oomlnandments are 

called 'Muslims'. 

All those persons who thus surrender themselves to the will 
of God are welded into a community and that how the "Muslim 
Society 9 ' comes into being. Thus* this is an ideological society 
—a society radically different from those whioh spring from 
accidents of races, colour of country. This society is the result 

of a deliberate choice ud effort ; itia the o ut so ae of -» - ! «6on* 
tra^t" which takes pbM between human being* sad their Crea- 
tor. Those who eater into this contract undertake to reoognis* 
God ** their Sovereign p Hii Guidance ft* supreme, 4nd His injunc- 
tions as absolute law. They ftleo undertake to accept, without 
qa oat ion, or doubt, His classification of Good wad Evil, Bight 
ud Wrong, the Permissible end Prohibited. In short, the 
Islamic society agrees to limit its volition to the extent pre- 
scribed by the All-Knowing God In other words, it is Ood and 
not Man- whose will is the Source of L%w in a Muslim Society. 

When such a Society comes into existence, the Book ftnd the 
Messenger prescribe for it a cods of life called' JSharVmk, and 
this society is bound to conform to it by virtue of the contract 
into whioh it has entered. It is, therefore, inconceivable that 
any Muslim Society worth the name can deliberately adopt a 
system of life other than the Skari'ak. If it does *o, its con- 
tract is automatically broken and the whole society becomes 
"un-Islamic". 1 

But we ihust clearly distinguish between the everyday sins 
of individuals and a deliberate rerolt against the Sharx'ak. The 
former may not imply breaking the contract, while the latter 
would mean nothing less. The point that should be clearly under- 
stood here is thst if an Islamic society consciously resolves not 
to accept the Shari'ah and decides to enact its own constitution 
and laws or borrow then) from any other source in disregard 
of the Shari'ah such a society broaks its contract with God and 
forfeits its right to be called 'Islamic 9 . 


* * 



■ * 

Let us now proceed to understand the scheme of life envi- 
saged by the Skirrah, To understand thst, it is essential that 
we should start with a ole*r ojaupton of the Objectives and 
the Fundamentals of the Shari'ah. 

ft* Mami e L*w mnd Conttttuiion 

The main objeccive of the fflfcari'afc ia t q construct bumatt 
life on the basis of Ma'rufa* {virUm ) and to cleans© it of : 
Jf wntwttt (vioes). The tern Ma'rufat, denotes all the virtue* 
and good qualities that have always been accepted as "good" by 
the human conscience. Conversely Munkarat denotes all the 
sins and evils that have always been condemned by human 
nature as "evil". In short, tbe Ma'rufat are in harmony with 
human nature and its requirements in general and the Munkarat 
are just the opposite. Tbe Shari'ah gives a clear view of these 
Marufat and Munkarat and states them ae the norms to which 
the individual and social behaviour should conform. 

The Shari'ah does not, however, limit its function to provid- 
ing us with an, 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 lifo. 

To achieve this end Shari'ahs has embraced in its scheme 


all the factors that encourageHhe growth of good and has recom- 
mended steps for the removal of impediments that might pre- 
vent its growth and development. This process gives rise to a 
subsidiary series of Ma'rufat consisting of the causes and means 
initiating and nurturing the good and further of Ma'rufat constat- . 
ing of prohibitions of preventives to good. Similarly there is 
subsidiary list of Munkarat which might initiate or a^iow 

growth of evil. 

The Shari'ah shapes the Islamic society io« 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 iu all directions. And at the same time it removes all 
impediments in the path of virtue. Alongwith it, this attempts 
to eradicate evil from its social scheme by prohibiting vice, by 
obviating the causes of its appearance and growth, by closing 
the inlets through which it creeps into society and by adopting 
diderent measures to check its occurrence. 


. . 

The Shari'ah olawifiw Ma'rufat into three eategories : 
. The Mandatory (Fard and Wajib) 

fk* Idamic Law M 

The R>oomm«id«tory (Jfaflrffl, and 
The Permissible (JfntoA). 

The observance of the mandatory (JfaVu/al) ii obligatory 
on » Muslim society md the Shot i'ah has given clear and bind* 
ing direction* abonfc them. The recommendatory {Mo'rufat) are 
thoae which the Skari'ak wants that a Muslim society should 
observe and practise. Some of them hare been clearly demanded 
of na while others have been recommended by implication and 
deduction from the Sayings of the Holy Prophet (peace be upon 
him)- Besides this, special arrangements hare been made for 
the growth and encouragement of some of them in the scheme of 
life enunoiated by the SkarVah. Others still hare simply been 
recommended by the SkarVah, leaving it to the society or to its 
more virtnons elements to look to their promotion. 

This leaves ns with the permissible Ma'rufat. Strictly 
■peaking, according to the Shari'ah everything which has not 
been expressly prohibited by it is a permissible Afa'rufaL It is. 
not at all necessary that an express permission should exist 
about it or that it should have been expressly left to oor choice. 
Consequently the iphere of permissible Ma rufai Is rery wide, 
so muoh so that except for a few things specULoslly prohibited ' 
by the Shari<ah, everything is permissible for a Muslim. And 
this is exactly the sphere where we have been gi ven freedom 
and where we can legislate according to our discretion, to suit 
the requirements of our age and conditions. 


The MmnkanU (or the things prohibited in Islam) have been 
grouped into two categories : Baram (i-e., those things which 
have been prohibited absolutely) and ifaJbrnA (i.e., those things 
which have been simply disliked). It has been enjoined on 
Muslims by clear and mandatory in junctions to refrain totally 
from everything that has been declared Haram. As for the 
Mairmhai the Shari 'ah signifies its dislike in some way or the 
other, i.o., either expressly or by implication also as to the 
degree of such dislike. For example there are some Makruhai 
bordering on Bar am, while othera btfar affinity with the acta 

02 Th* Islamic Law *nd OantiiMiom 

which are permissible. Of course, their number ft v«ry large 
ranging between the two extreme* of prohibitory tad permissible 
actions. Moreover, io some oases explicit measure* have ^been 
presoribed by the SAari'ah for the pronation of Mairuhat, 
while in others such arrangements hare been left to the dis- 
cretion of the society or to the individual. 

The Characteristic of (he Short* oh 

The SharVak thns prescribe) directives for the regulation of 
onr 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 Shari'ah is a 
complete scheme oi life and an all-embracing social order where 
nothing is superfluous, and nothing is lacking. 

Another remarkable fact about the Shari'ah is that it is an 
organic whole. The entire scheme of life propounded by Islam 
is animated by the same spirit and hence any arbitrary division 
of the scheme is bound to harm the spirit as well as the structure 
of the Sharrah. In this respect it might be compared to the 
human body which is an 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. Njr can it be placed in the body 
of some other animal with any hop* *>f unking it human to the 
extent of the limb. Likewise, we cannot form a correct opinion 
about the utility, efficiency and beauty of the hand, the eye or 

fh* nose of a komtn being e^ftwrtely, witboet inlglng Hi jpMte 
and function within a living body. 

The mw cm be based in regard to the scheme eg Ufa envi- 
saged by the ^Aart'oA. Islam signifies the entire scheme of life 
and not any isolated part or parts thereof. Consequently, 
neither can it be appropriate to view the different parts of the 
Short' ah in isolation from one another and without regard to the 
whole, nor will it bo of any use to take any particular part and 
bracket it with any other "ism", The Shari'ah can function 
smoothly and can demonstrate its effieaoy only if the entire 
system of life is practised in accordance with it and not other- 

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 of it are isolated from the main 
body of the Islamic Laws and thon they are considered in the 
prospective of modern civilization, or they are viewed as if they 
were something 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 forma an 
organic pert of a distinct and self-contained system of life. 

There are some people who take a few provisions of the 
Islamic Penal Code out of 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 of life covering the 
economic, social, political and educational spheres of activity. 
If all these departments are not working, then those isolated 

provisions of our Penal Code can certainly work no miraoles. 

For example, we all know, that Islam imposes the penalty 
of amputating the hand for the commitment of theft. Bat this 
injunction is meant to be promulgated in a full-fledged Islamic 
society wherein the wealthy pay Zukai to the state and the 
•tate provides for the basic necessities of the needy and the 

*t Tht Mamie U* wwd GmtHhOim 


destitute; wherein every township is enjoined to play boat to 
visitors at it* own expense for a mini mam period of three day*. ; 
wherein all citizens are provided with equal privilege! and 
opportunities to seek economic livelihood; wherein monopolistic 
tendencies are discouraged ; wherein people an God-fearing 
and seek His pleasure with devotion ; wherein the virtues of 
generosity , helping the poor, treating the si ok, providing for 
the needy prevail to the extent that even a small boy is made 
to realize that he is not a true Muslim if he allows his 
neighbour to sleep hungry while he has taken his meal. In 
other words, it is not meant for the present-day society where 
von cannot got a single penny without having to pay interest ; 
where in place of Uaitul Mai there are implicable money-lenders 
and banks which, instead of providing relief and succour to 
the poor and the needy, treat them with callous disregard, 
heartless refusal and brutal contempt ; where the guiding' 
motto is : '.'Everybody for himself and devil takes the 
hindmost" ; where there are great privileges for the privileged 
ones while others are deprived even of their legitimate rights ; 

where the economic system propelled by greed and piloted by 
exploitation, only leads to the enrichment of the few at the cost 

of .crushing poverty and intolerable misery of the many, and 
where the political system serves only to prop up injustice, 
clsss-privileges and distressing economic disparities. Under 
such conditions, it is doubtful if theft should be penalised at 
all. not to speak of ontting off the thief's hands I Because to 
do so would, as a matter of fact, amount to protecting the 
ill-gotten wealth of a few blood-suckers rather than awarding 
adequate punishment to the guilty .1 

1. How it must not be misunderstood that I em defending theft or any 
other form of lawlessness. Not the least I My intention is only to show 
the vast and radical differences that reign between tha nontext in whioh 
the pno.shment M , and is applienbl. end the state of affairs we «re to- 
day enveloped in. The only logical eonelnsion that follows is the need 

iZL ^1 " tl ? ***** " TBtmm * f When «» stmoture of 

th 22 * T ^ * * ******* ineongruity 
nt ,w « d «»• P«-ent eonta rt of aft*, would be 

' awsa Md »• *vemie for it* application would be opened. 

*"\»* • • The I*lamtcLm • « 

■ M ■ 
_ ■ 

' On «^ bftar k«d, Mam Ma^. #Mh r» 
which none is compelled by the fow^<4jpcw to 
For, hvthc Islamic social order, a|*W* '-wMife'^^ help 
provided by individual*, the atat© 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 cafle'of the punishment for adultery and 
fornioation.- .Islam prescribes a hundred stripes for the 
unmarried and stoning to death for the married partners in the 
crime. But, of coarse, it applies to a society wAerejn every 
trace of suggestiveness has been destroyed, where mixed 
i gatherings of men and women have been prohibited/ where 
public appearance of painted and pampered women is completely 
non-existent, where marriage has been made easy, where virtue, 
pioty 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 aexaal excitement is- rampant, wherein nude 
pictures, obsoene- books and vulgar isengs have become common 

recreations ; wherein sexual perversions have taken hold of the 
cinema and all other places of amusement, wherein mixed, 
semi-nude parties are considered the acme of social progress 
and wherein economic conditions and social customs have made 

■ * 

marriage extremely difficult. * 



From this discussion, I think, it has become fairly clear 
that what we, at present, technically 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 
AeitUer be understood* nor enforced separately. To enforce it 

separately would, in ftusfc ke againat hrteation of tha 

I*w~ Giver. What is required of t>» in to translate into practise 
the entire Islamic programme of life and not merely a fragment 

of it. Then and then alone can the legal aspect* be properly 



This scheme of the Shari'ah is, however, divided into many 
parts. .There are aspeets of it which 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 arc 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 and pressure of 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 Islsmio 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 o^ life from 
deterioration and perversion, for the eradication of vice and 
the establishment of virtue and, finally, for the enforcement of 
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 
"Law" can be appropriately applied. For, it is 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 of 
life has been deoreed by the AH-Powerfal Sovereign of the 
universe. However, to avoid confusion, we shall apply the 
term "Islamic Law" to those portions of the Shari'ah only 
which demand the sanction of* the State-power for their 

The Ulamic Law 


Major Branches of Islamic Law 

The establishment of a political authority which may 
enforce Islamic Law requires a Constitutional Law, and the 
Shari'ah has clearly laid down its fundamentals. The Shari'ah 
has provided answers to the basic questions of Constitutional 
Law and has solved its fundamental problems, viz., What is 
the basio theory of the State ? What is the source of the 
authority of its legislation 1 What are the guiding principles 
of state-policy I What are the qualifications of the rules of an 
Islamic State 1 What are the objectives of an Islamic State 1 
In whom does sovereignty reside and what are the different 
organs of the State 1 What is the mode of the distribution of 
power between the different organs of the State, viz., the 
Legislature, the Exeoutive and the Judioiary ? What are the 
conditions for citizenship 1 What are the rights and duties of 
Muslim citizens 1 and What are the rights of noa- Muslim 
oitixens (Zitntnis) ! The guidance which the Shari'ah has 
provided in respect to these questions constitutes the 
constitutional law of Islam. 

Besides laying down the fundamentals of Constitutional 
law, the Shari'ah has also enunciated the basio 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'oh enumerates the 
source of income permissible for an Islamic State and those, 
which are prohibited. It also prescribes the avenunes of 
expenditure. It lays down rules of conduct for the Police, the 
Judiciary and the Administrative machinery. It defines the 
responsibilities of 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 virtuet. It also specifically states as to what 
extent the State can interfere with the affairs of its citizens. 
In this connection, we find not only detective principles but 
also many categorical injunctions. The Shari'ah ha* given ua 

Sg The Islamic Law and Ooiutitotion 

the broad framework of Administrative Law-exactly In the 
same way as it has given the fundamentals of Constitutional 
Law and has left it to the discretion of the Muslims to build 
up the details in accordance with the demands of the age or 
country in which they live-subject, of course, to the limits 

presoribed by the Shari'ah. 

Proceeding further, we find the Shari'ah guiding us in 
connection with Public as well as Personal Law-which are 
essential for the administration of justice. This guidance 
covers such an extensive field that we can never feel the need 
of going beyond the Shari'ah for meeting our legislative 
requirements. Its detailed injunctions are such that they can 
always fulfil the needs of human society in every age and in 
every country-provided, of courae, that the Islamic 
soheme of life is in operation. They are so comprehensive that 
we can frame detailed laws for every emergency and every 
fresh problem on their basis for which the legislature has been 
given the right of legislation. All laws thus framed are to be 
considered an integral part of the Islamic Law. That is why 
the laws framed by our jurists in the early days of Islam for 
the sake of "Public Good" form a part and parcel of the 
Islamic Law. 

Lastly, we have that part of the Law which deals with the 
relations ot the Islamic State with other states, i.e., the 
loternatlooal Law. In this connection, too, the Shari'ah gives 
us comprehensive regulation relating to war and peace, neutrality 
and alliance, etc. Where, however, no specific injunctions are 
to be found, the laws can be framed in the light of the general 
directives as laid down in their behalf. 
Permanence and Change in Islamic Law 


This brief classification and elucidation shows that the 
guidance of the Shari'ah extends to all the branches of law 
which have been evolved by the ingenuity and need of the 
human mind so far. This is a standing testimony to the 
independence of the Islamic Law and its inherent potentialities. 
Anybody who takes the trouble of making a detailed study of 

Tht lalamic Law 


the subject will be able to distinguish between the part of the 

Shari'ah which has a permanent and unalterable character and 

is, as such, extremely beneficial for mankind, and that part 

whioh is flexible and has thus the potentialities of meeting the 

ever-increasing requirements of every time and age. 

The unalterable elements of Islamic Law may be classified 
under the following heads : 

(I) Those laws that have been laid down in explicit and 
unambiguous terms in the Qur'an or the authentio 
Traditions of the Prophet, like the prohibition of 
alcoholic drinks, interest and gambling the punishment 
prescribed for adultery and theft and the rules for 
inheritance etc 


(5) The direotive principles laid down in the Holy Qur'an 
and authentio Traditions, e.g., prohibition of the use 
of intoxicants in general, or the nullification of all 
exchange transactions whioh are not the outcome of 
the free-will of both the parties, or the principle that 1 
men are protectors and in charge of women. 

(3) The limitations imposed on human activity by the 
Qur'an and the Traditions of the Prophet, which oan 
never be transgressed, e.g., the limitation in connection 
with the plurality of wives where the maximum number 
has been fixed at four, or the limitation that the number 
of divorces to a wife cannot exceed three, or the 
limitation imposed on a will, the amount of which 
cannot exceed one-third of the total inheritance etc. / 
It is these unalterable mandatory provisions of the Islamic 
Law whioh give a permanent oomplexion to the Islamic Social 
Order and the characteristic features to its Culture. In fact, 
one cannot find a single oulture in the entire history of mankind 
which oan retain its separate entity and its distinct character 
without possessing an unalterable and permanent element. 

If there are no permanent elements in a culture and every 
part of it is subject to change, amendment and modification, it 
is not an idependent culture at all. It is juni like a fluid, 


The Islamic Law and OonHUnHon 

which can fair* any and every shape and can always suffer trans- 
figuration and metamorphosis. 

Moreover, a thorough study of these directives, injunctions 
and limitations will lead every reasonable man to the conclusion 
that they have been given to us by the Shari'ah only for those 
matters where the human mind is likely to commit errors and 
go astray. On all such occasions, the SharVah has, so to say, 
set the signposts by issuing directives of making categorical pro- 
hibitions so that we may proceed along the right path. And 
these signposts far from impeding the march of human progress* 
are meant to keep us along the road and to save us from skidding 
away. I*i this connection, it might not be out of place here to 
refer to the laws of the Shari*ah governing marriage, divorce 
and inheritance which were the target of very bitter criticism 
in the recent past. It is these very laws, however, to which the 

world is now turning for guidance, though after innumerable 
bitter experiences I 

The second; part of Islamic Law is that which is subject to 
modification according to the need and requirements of the 
changing times and it is this part of the Islamic Law which 
endows it with wide possibilities of growth and advancement 
and makes it fully capable of fulfilling all the needs of an 
expanding human society in every age. 

This part consists of the following : — 

(a) Ta'ureel (Interpretation) : It consists in probing into 
the meanings of the injunctions fonnd in the Qor'an 
and the Sunnah. As such, it has always occupied and' 
still occupies a place of immense importance in Islamic 
Jurisprudence. When those endowed with penetrating 
insight and legal acumen ponder over the injunctions 
of the Qur'an and the Sunnah, they find that many of 
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. lot tjtfs way, the door* of difference 
of opinions have always been open in the past, are open 
even today, and will continue to remain so in the future. 

The Islamic Law 61 

(6) Qiyas (Deduction by Analogy) : It consists in applying 
to a matter with respect to which there is no dear 
guidance, a rule or injunction available for some similar 

(c) Ijtihad (Disciplined Judgment of Jurists) : It consists in 
legislating on matters for which neither any explicit 
injunctions nor even precedents exist, subject* of 
oourse, to the genera] principles and precepts of the 

(d) Istihsan { Jnristic Preference) : It means framing rules, 
if necessary, in non-probibrted matters in conformity 
with the spirit of the Islamio legal system. 

Any one who considers the possibilities inherent in the 
above-mentioned four ways of legislation, can never reasonably 
entertain any misgivings as to the dynamism, adaptability, 
progressive nature and power of evolutionary growth of the 
legal system of Islam. But it should be remembered that every 
Tom, Dick and Harry is not entitled to exercise the right of 
' Qiyas, Ijtihad, Istihsan, 

the right of every passer-by to give verdict on problems of 
national impprtanoe. Undoubtedly, it requires profound legal 
knowledge and a trained mind to enable one to speak with 
authority on any legal matter. 

Similar is the case with the Islamic Law. Obviously, to 
achieve the status of a jurist one should be fully conversant with 
Arabic language and literature. He should also have a complete 
grasp of the real historical background of the injunctions of 
Islam. He should have special insight into the Qur'anio style of 
expression. He should have a thorough knowledge of the vast 
literature oh the Traditions of the Holy Prophet as well as of 
the Traditions themselves. 

In the special field of analogous deduction, a Muslim jurist 
is required to possess a keen sense of legal judgment and tho 
requisite capacity for interpretation of facts on the basis of 
analogy; otherwise it would not be possible for him to save him- 
self from falling into errors. As regards Ijtihad, or original 

6t (The Islamic Law and OoTtsUtvtion 

legislation, it requires tin jurist to have not only a deep knowl- 
edge of Islamic Law but also a developed sense pf interpreting 
matters in the true Islamic spirit. Similarly as regards Istihsan 
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 intellectual accomplishments, 
there is another thing which is vitally essential, and that is 
unstinted devotion and loyalty to Islam and a deep sense of 
accountability before God, As regards those who care little for 
God and of the Fin^I Accountability, whose watch- word in life 
is sheer expediency, and who prefer the non-Islamic values of 
culture and civilization 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. 



We shall now try to examine briefly some of the objectigna 
usually raised against the demand for the introduction and 
enforcement of Islamic Law in Pakistan. These objections are 
many but it would be an unnecessary waste of time to mention 
all of them here. Therefore I propose to confine to the exami- 
nation of those objections only which are of a fundamental 

1. "Islamic Laws are Antiquated" 

The Srst 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 

tth* Islamic Law 

conversant even with the rudiments of the Islamic Law and 
possess even an elementary knowledge of it. Perhaps, they 
have heard from somewhere 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 Islamic Law will be unsuited 
to the needs of the present-day sooiety and will clog the 
wheels of progress. These oritios 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 sooiety and brought into being a State which was run in 
the light of these laws. This naturally provided an opportunity 
of evolution of Islamic Law from the earliest days, as it had to 
be applied to day-to-day matters through the prooess or Ta'weet 

Very soon after its inception, Islam began to hold away 
over nearly half the civilised world stretching from the Pacific- 
to the Atlantic and during the following twelve hundred years, 
the Islamic Law continued to be the -law of the land in all 
Muslim states. This process of the evolution of Islamic Law, . 
therefore, did apt stop 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 oountless problems con- 
fronting different countries in different stages of history. Even 
in our Indo-Pakistan sub-oontinent, the Islamic Civil and Penal 
Codes were in vogue up to the beginning of the nineteenth 
century. ^-.^ 

Thus, it is only for the last one hundred yea^s that the 
Islamic Law remained inoperative and suffered stagnation. But, 
firstly, this period does not form a big gap and we can easily 
make np for the loss with some amount of strenuous effort ; 
secondly, we possess full records of 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= The Islamic Law and Constitution 

greasis, thus,** 

vuw , „„ — grasped the fundamental principles and the 
basic facts concerning the evolution of the Mamie system of 
Law, we cannot remain in doubt that this law shall be as res- 
ponsive to the urges of a progressive society in the present and 
the future as it has been in the past. Only those who suffer 
from ignorance can fall a prey to suoh nonsense, while those who 
have a grasp Of Islam and the Mamie Law, are aware of its 

potentialities of progress and those who possess even a cursory 
knowledge of the history of its development, can never suspect 
it of being an antiquated or a stagnant system of law, incapable 
of keeping pace with the march of history. 
2. "Islamic Laws are Relics of Barbarism" I 

The second moBt common Dejection— an objeotion which is 
forward nubliclv onlv in a round-about' manner but which 

is presented with much vehemence and venom in private talks- 
is that Islam is just a relic of the Dark Ages ! And those who 
Bay so also argue, with an air of haughtiness and arrogance, that 
the "progressive, cultured and humane" outlook Of the modern, 
enlightened age can never tolerate suoh "cruel" penalties as 
the cutting of the hands, or flogging, or stoning to death- 
penalties imposed by Islam for certain- crimes. 

This objeotion and this allegation, coming as it does from 
the supporters, of modern Western civilisation, makes one gasp 
with wonder. It is, indeed, amazing to hear that the normal 
values Of the present age are "advanced" and "progressive . 
The heartlessneBS shown by the "enlightened" man of today to 
his fellow beings hardly finds a parallel in the darkest ages of 
history. He does not punish by stoning to death, but he can 
kill people indiscriminately with the atom bomb . He doest not 
merely out off the hands of the people but he also tears their 
bodies into shreds. He is not oontent with flogging, he would 
like to burn alive the people en masse and manufacture soap out 
of the fat extracted from their dead bodies* Leaving aside 

1. This was done in Germany, ono of tho most "progressive" conntrios 
in the worW— Bditor. 

The Islamic Law 


tfaete demonstrations of hearties Bness daring the period of war 
wherein everything is considered fair nowdaye, the modern man 
brutally chastises— and does it unsparingly— the political 
"etimhsmbt" : alleged "traitors" to the national cause and 
the rivals in the economic and political fields. The highly objeo- 
tionable and inhuman modern methods of investigation and 
extortion of confession employed even before 'proving the charges, 

are. an open secret. In view of these facts, it is non-sensical 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 of those who can tolerate bloody "purges" after con- 
cocted confessions and phoney trails and who uphold political 
inquisitions and concentration camps, to pour out venom against 

the Islamic Penal Code. 1 

The truth is that it is not the severity of the punishments 
in Islam whioh the upholders of modern civilization abhor, for 
they resort to even more tortuous punishments themselves. The 
reason for their hysteric outbursts against this alleged "bar- 
barism" lies actually in the perversion of Snoral value— that is, 
in the fact that they do not think that crimes like drunkenness 
and adultery deserve even a word of. reproach, what to speak of 
painful pimiahmenta. Had they been opposed to these punish- 
ments on humanitarian considerations, they would have like- 
wise condemned the brutal punishments given to people on 
flimsy political and economic grounds. They complain in 
respect of 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 
"modernity" : "What are the values that you believe in 1 Do 


1. Prof. E. P. M. Durbin, after narrating the callous and inhuman treat, 
merit whioh is being meted out in the most "progressive" states of 
tin* world, oouoludes that ! "such large-scale brutality has rarely been 

witnessed. I am thankful to say, in the previous history of the 
world" The Polities of Democratic Sohiali*m> p. 25) . 

See also -Khurehid Ahmad, Fanaticism, Intolerance and Ialam A 
Islamic Publications Limited, Lahore,* 2nd ed. ( 1960— Editor. 

58 Tht Islamic Law and Constitution 



yon believe in the Islaznio values of life and standards of 
morality or those of the modern civilization" ! If you have 
made your choice and accepted some other values and some 
different standard of right and wrong, of virtue and vice, of the 
permissible and the prohibited as against those envisaged by 
Islam, it is then a difference of a very fundamental nature. It 
means that you differ with and disbelieve in the Islamic 
ideology itself. In this ease you should have the courage to 
declare that you rejeot Islam outright. Is it not foolish to 
allege faith in a God Whose law* you consider as barbarous I 
Anyhow nobody can remain inside the pale of Islam after hold- 
ing suoh an opinion about the law of God.l ' 

3. The Bogey of Sectarian Differences 

We have dealt with two objections so far. The third 
objeotion is that there being many schools of Islamic 
Jurisprudence, it is not possible to evolve an agreed code of 
law which might be acceptable to all the schools of Muslim 
thought. It is this objection on whioh rests the last hope of 
the opponents of the Islamic Law, and they seem to feel 
confident that on this count they will be able to score a point 
by driving a wedge among the Muslims. 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. Hero the learned author is replying to those oritios who claim to be 
Muslims but under the spell of alien influenoes want to amend the 
basio tenets of Islam, without any regard for the spirit and ideals of 
Islamic ideology. They are apologetio in their attitude and want to 
blow hot and oold in the same breath. 

As to the question whether the punishments are too harsh or not, 
he has already answered in the earlier part of the discussion. Islam 
creates suoh conditions as may ensure the elimination of the eaute* 
of the commission of crimes. But, if, in spite of it, the evil doers 
commit them, Islam punishes the criminals in suoh a way that others 
may not dare to do that. ' That is why we find that when theae 
punishments were in vogue, orimes were extinct while today, despite 
all the clap-trap, crimes are on the increase and we hear voices from 

of punishments, are proving 
inoapable of grappling with the problem.— Editor. 

The Islamic Law W 

understand how the 'complication' can he removed. The fact 
ia that this complication is merely a figment of fertile 
imagination, for, the existence of different schools of law can 

never become an obstacle in the way of the enforcement of 

Islamic Law. 

The first point to be understood in this connection in that 
the broad outlines of iBlamio Law, consisting of mandatory and 
unalterable commandments and fundamental principles and 
limitations have always been accepted unanimously by all the 
Muslim schools of thought. Neither there ever was, nor there 
is now, any conflict of opinion regarding this portion of our 
, laws. Whatever differences had ever arisen were always in 
connection with the details .that were to be framed through 
interpretation, deduction and Ijtihad— all, of course, within 

limits prescribed by Islam. 

The nature of these differences can also be understood by 

the fact that rules derived by jurists through interpretation, 
deduotion, Ijtihad or Ittihtan oould never acquire the force of 
law without either being accepted unanimously {Ijma') or 
kaving the approval of the majority (Jamhoor). This explain* 
why the phrases like ^L^l ^ (unanimous agreement), 
J>f -*Jl V* (majority agreement) and ^ (adopted 

judgement) are appended to the expression of final opinions by 
our jurists in discussing legal matters, and it signifies that 
their opinion had finally to obtain legal sanotion in order to 
beoome a law for Muslims. 

These unanimous or majority decisions can be of two 

' r w 

Firstly, those which have always been accepted by the entire 
Muslim world or by the majority of Muslims. 

Secondly, those based on the unanimous agreement of the 
Muslims of a particular country at a particular period, or of 
their majority. 

Decisions coming under the, first category, if based on 
unanimous agreement, are not subject to review and should 
s>lways be accepted as part and parcel of Muslim Law, 


The Islamic Law and Constitution 

Decisions made by majority agreement can be accepted as 
law only if the majority of the Muslim! of the country wherein 
they have to be promulgated also aceepts them, as such. If 
the majority of that oountry accepts them, they will become a 
law for this country, otherwise ndt. 

So much about the past. As for the future, the laws which 
are accepted unanimously 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 of view either. 

A question may be asked as to what would be the position 
of those Muslims who might not agree with the majority.! 
They are entitled to demand the enforcement of their own Code 
in their personal matters and this demand of theirs must be 
accepted. But, of oourse, the "Law of the Land" shall be the 
one whioh has the sanction of the majority. 

I am sure that no Muslim of any sect would ever adopt the 
foolish position of preferring the continuance of un- Islamic laws 
in Pakistan on the ground that he is not in agreement with the 
Views of the majority of Muslims on oertaiu points of Islamic 
Law. Obviously we cannot discard 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 
life on all details of vhioh all 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 I 


I. This objection was blown up by the complete agreement of the 
•Utoma 1 of all schools of thought in the Conventions held in 1051 and 
1963 at, Karachi. In those Conventions, the <Uktma' unanimously 
formulated the Basic Principles of the Islamic State (see Appendix I) 
and also moved Amendments to the Basic Principles Committee's 
■ Report (see Appendix II). This objection, therefore, has absolutely ' 

.} ' . no ground — Editor. 

The Islamic Lav, M 

4, The Problem of Non-Mimltai Mluorltlei 

The last important objection in th; a l • 

SI * Kovernod by the religioUB Uwof the 

riS ~ ~ - f= -= 

miBonderZSng ^ ^ di »^ the fog of thia 

, w according to h» own Personar Law Th«r»fo^ 
^orit ygro houM feol ^ ^ ' - . 

own rehgious laws on them in their personal m^w lI ™ «« 
Minorities are entitled to demand ' safeffnard. ft,. * K • 

'0 The Islamic law and Constitution 

replace Islamic Law by those of any other type without 
conscious apostasy and betrayal of Islam. Are the minorities 
really entitled to ask the majority to gire up its religion and 
its way of life 1 Hare they the right to demand that the 
majority should give up the principles which it considers right 
and adopt others which are against its convictions 1 Or, is it 
reasonable that in a multi-religious country all the communities 
should beoome irreligious ? If the answers to all these questions 
are in the negative, I find no reason why -Islamic Law' should 
not become the 'Law of theXand* in a country whew Muslims 
are in a predominant majority. 1 

Moreover, the true position is that the representatives of the 
Christies in the First Constituent Assembly of Pakistan and some of 
the leaders of the scheduled oastee, who form the most impprtant 
minority, hive dwnandtd the establishment of an Islamic State, for 
they hold that their rights oan be better safeguarded in such a state 
They know that an Islamic State does not permit any chasm to exist 
between precept and practice. All Muslims are under an obligation 
to do what their religion commands. And if they violate, they can 
do .so only at the cost of their own religion-nay, their very faith and 
salvation.— jgtKttr. ' 

Chapter 2 

Legislation and 'Ijtihad' 

in Islam 

entitled 'Role of Ijtihad and Soope of Legislation in 
Islam' at the Colloquium on Islam io Culture held at 
Lahore in January 1058. He was a delegate from 
Pakistan and was also a member of the Organising 
Committee of the Colloquium. This paper constitutes 
first section of the present chapter. Its second section 
consists of the reply which he gave to the objections 
raised at his said paper. The third and the last 
section has been taken from a note of Maulana 
Maududi which he wrote in reply to a query and which 
was published in Chigrah»e-r4th r Islami Qanoon Number; 
/ • : Vo], II (Vol. 12 : No. 7).- Editor. 




TpOR an adequate appreciation of the subject under discussion, 

two basic facta have to bo clearly bo me in mind, via ; 
(i) the Sovereignty of God, and 

(ft) the prophethood of Mnhummad (peace be upon him). 

Islam admits of no sovereignty except that of 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 Hk being the sole objeot of worship 
in the religious sense alone. Along with it, He is invested 
with complete 'legal sovereignty', in the sense in which the 
term is understood in Jurisprudence and Political Science. 
This aspect of the legal sovereignty of God is aa much and as 
olearly 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 faoets 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.affaira of its ethical and aooial life in accordance with the 
law (Shari'ah) that God has communicated through His 
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 tha| has been decided by Allah 


Legislation and Ijtihad in Islam 


and His messenger, and whosoever commits an affront 
to Allah and His messenger is certainly on the wrong 
path". (33 :'M) 



The second point which is as fundamental in Jul am as is 
the Unity of God, is the finality of the Prophefchood of 
Muhammad (may God's blessings be on him). It is really 
because of this 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 Ihe only source of Divine 
guidance and law t as no further revealed guidance is to como 
.to which it may become necessary for mankind to turn. It is 
this dispensation by Muhammad (may God's bloseings be on 
him) that constitutes the SUPREME LAW which represents 
the Will ef God, the real Sovereign. This Law hag boon 
bequeathed to us by the Holy Prophet (peace be upon hi in) in 
two forms : 

First; the Qur'an which embodies, word by word, the 
instruction and commandments of God and is His unadulterated 
word. * 

Second : the ideal conduct of Muhammad (may God** 
blessings be on him), that is to say Sunnah, which clarifies, 
explains and exemplifies the meaning 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 ruler and the teacher. 1 The duty laid on him was to explain 2 

I, AI-Qnr'ati, 01 : 9 ; 3 : 164 ; 62 : 2— .Editor. 
3. Al-Qur'an* 16 : 44 and 64-»J£cttfor, 


The Islamic Law and Oonttitution 

and illustrate the law of God by his word* and deeds, to make 
people understand its real import, to train individuals and form 
thorn into a disciplined body, and with their aid to initiate a 
struggle for the reconstruction 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 prophethood, 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 callec! "Shari'ah" in 
Islamic terminology. 


Prom 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 gudies 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 certain matters the Qur'an and the Sunnah have laid 
down clear and categorical injunctions and prescribed specific 
rules of conduct. In suoh matters no jurist, judge, legislative 
body, not even the Ummah as a whole, can 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 function of human legislation 
in relation to such matters lies in 

(a) finding out exactly and precisely what the law is ; its* 
nature and extent, 

Legislation and Ijtihad in Warn 


{h) determining its meaning and intent, 


(c) 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 

{ft) 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 speoiflo 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 aotually 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 SharVah has prescribed no specific guidanoe 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. 

4. Province of Independent Legislation 

Apart from these, there is yet another vast range of human 
affairs about which the Shari'ah is totally silent. It has neither 
made any direct provision introspect thereof nor is there any 
guidance for identical or kindred situations so as to enable us to 
draw an analogical inference therefrom. This silence is by itself 


The Islamic Law and Constitution 

indicative of the fact that the Supreme Law-giver has left it to 
human beings to decide such matters in their own discretion 
and judgement. Henoe independent legislation can be resorted 
to in such cases but it must he in consonance with the real ajyiit 
of Islam and its general principles and, what is more important, 
should in no way ho repugnant to the general pattern and 
temperament of Islam. It mmt uaturally and appropriately 
fit into the general scheme of the Islamic ideology. 


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 academic researoh and intellectual effort which, in 
the terminology of Islam, is called Ijtihad. Literally the word < 
Ijtihad 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 
intent 1 . Some persons seem to be labouring under the erroneous 
impression that Ijtihad means completely independent use of 
one's opinion. But no one conversant with the nature of the 
Islamic Law can imagine that there can be any place for this 
kind of independence in the legal system of iBlam. 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 inipart dynamism to the legal system of Islam by 
keeping it in conformity with the fundamental guidance of the 

Legiilaiion anSIjtihad in Ulam 77 

Skari'ah and abreast of the changing conditions of the world. In 
view of this basic fact, no healthy Ijtikad 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 intention to follow it ; absence of any desiro 
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 langua$, its 
grammar and literature 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 Shari'ah and ita 
objectives. One should know, on the one hand, the 
Shari'ah's over-all reform scheme from human life and, 
on the other hand, the exact place of oaoh 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 nan of Ijtihadw 
would enable one to grasp the kernel of the Shari'ah. 

(4) Acquaintance with the contributions of the oarlior 
jurists and thinkers (Mujtahidin) of Islam. This is 
necessary not merely for training in the technic ue of 
Ijlihad but also for tho sake of ensuring continuity in 
the evolution of Jaw. Of course it is not, and should 
not be, the purpose of Ijiihad that every generation m&y 
necessarily destroy or discard what previous genera 
tiona have built and thus try to build the wf>oU 
structure afresh. 

•78 Tht Islamic Law and Constitution 

15) Acquaintance with the problems and conditions of our 
times-the new problems of life to which an answer >s 
sought and the new conditions in which the principles 
and injunctions of the Shari'ah are to be applied. A 
correct appreciation of the current problem is extremely 
essential for the proper exercise of Ijtihad. 

(6) Commendable character and conduct according to the 
Islamic ethical standard. Absence of tins virtue ,s 
bound to affect adversely the quantum of public trust 
in the legislators. A law made by the Ijtihad of un- 
worthy individuals, devoid of good moral character, is 
not likely to inspire respect and confidence m the 

Muslim people. 
The above description of the essential qualificat.ons does 
not entail that any one undertaking Ijtihad should produce ^a 
certificate before the commencement of his ass.gumen that he 
ZLly possessed of them. Rather the idea » merely to show 
that a healthy development of Islam.c law on proper hues 
through Ijtihad is possible only if the system of legal tra m 
and education starts producing learned men of such calibre and 
qualifications. Any legislation undertaken without these requi- 
res would neither ft into the legal system of Islam nor would 
it ever be palatable to the Muslim society to accept and 

digest it. 

Technique of Ijtihad 

Just as Ijtihad and any legislation based thereon depends 
for its popular acceptance on the ability of those responsible for 
it, similarly its success would, to a large degree, depend upon 
the employment of a correct method and proper technique. A 
whether he is engaged in the interpretation of inmnc 
wm !□ busy in analogical reasoning or in drawing inferences, 
has, in any event, to base his reining on the Qur an and the 
S„»„nh. Even while indulging in ' independent leg. Nation m 
Habere of permissible {M vbak*) h, must clearly establish 
that the Qur au and the Hunvah h»v« not laid down any rule or 
x»rder nor even have furnished a basis for any analogy for that 

Legislation and Ijtihad in Islam ?9 

particular issue. Furthermore, the methods adopted for putting 
construction on the Qur'an and the Sunnah 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 6t 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 oonsonanoe with the considerations 
of language, its rules and the context, it is also essential that 
the traditions whioh are relied upon about a particular matter 
are authentio ones in accordance with the principles concerning 


this 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- 
established on the strength of authentio 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 collective conscience 
of the Muslim community nor oan it form an integral part of 
Islamio system of law. As soon the political power enforoing 
such a law disappears from the political arena, such a law would 
bejthrown into the dustbin. 
How Ijtihad attains the status of law 

A number of methods have been recognised in the legal 
system of Islam whereby an Ijtihad aoquireB the force of law. 
Firstly consensus of opinion (Ijma 1 ) by the learned men of the 
community. Secondly the Ijtihad of an individual or a group of 
individuals may gain wide popularity and people may suo moto 
adopt their verdict, for instance, the Ijtihad of the Hanafite, the 
Shafe'ite, the Malikite, and the Hanbalite schools of law w*re 
voluntarily accepted by large groups pi Muslim masses. Thirdly > 
a Muslim government may adopt a particular piece of Ijtihad 


the Islamic Law and Constitution 

as its law, as for example the Ottoman government barf adopted 
the Hanafi Law as the Law of the Land. Fourthly, an institution 
may be constitutionally empowered in an Islamic 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*) t 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 Qalis — did not acquire in 
Islam the force of law. The concept of the "judge-made-law" i* 
foreign to the legal system of Islam. 



I will try to answer as briefly as possible the oriticism that 
has been offerod on my paper on : 'The Role of Ijtihad and the - 

Scope of Legislation in Islam. 1 

I. The first criticism relates to the status that has been 
assigned to 'Sunnah* 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. 

(i) It ia 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 trausmisHion of the 
Qur'an \ Wero those tasks jmrformed in his prophetic capacity 
in which he reprosrntwi thrill oY God in the same way aw it is 
represented in the form of the Holy Book \ Or did his prophetic 

Legislation and Ijtikad in Islam 


status end with the transmission of the Qar'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 
Sunnak 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. 

(it) The Qur'an gives a very clear verdict in this matter by 
stating that Muhmmad (peace be on 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, he is* reduced to 
the level of a common man. In so far as tho Muslims are con- 
oerned 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 this position to the Holy Prophet and on this 
very basis his Sunuah has been treated, along with tho Qur'an, 
as a source of law in the legal system of Islam. I cannot indeed 
imagine how anyone can challenge this legal aspoot of the 
Bunnah unless he takes up the position that the Holy Prophet 
was a prophet only in so far as ho transmitted tho Holy Book 
and his prophetic status ended with the performance of this 
duty. And if anyone puts forward such a claitu he will have to 
state whether he is assigning this position to the Holy Prophet 
on hia own or whether the Holy Qur'an itself has assigned it to 
him. In the first ease his stand would bo no concern of Islam at 
all, while in the second case he w^ill have to adduce some proof 
of his claim from the Holy Book. 

(iii) On accepting the Sunnah as a source of law, the ques- 
tion arises, as to how it can be ascertained. How can we find 


The Islamic Law and Constitution 

out what Sunnah had boeu bequeathed by the Prophet who was 
raised so many centuries ago ? In this connection it should be 
remembered that this is not a problem with which we are con- 
fronted for the first time Ufter the lapse of 1377 years. The 
following two historical facts are iucontrovorti ble. 

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 Prophet, on the very first day ot the advent 
of Islam, has been continuously in existence; 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 similarity are more 
than those of disparity and which is the largest fundamental 
factor in keeping them together as an Umtnah despite being 
scattered all over the surfaoe of the earth) is a positive proof of 
tho fact that this society was established on a Sunnah and that 
tradition has continued without interruption 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 .potent 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 
ibid<a) was entering into their system of life through some 
forged means. They neither were nor could afford to be careless 
aboat 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 thereof have been* bequeathed to us from 
generation to generation, from the time of the first Islamic 
Caliphate right up to our own times, and the labours of each 
generation have been fully preserved. If one understands these 

Legislation and Ijtihad in Islam 83 

two historical facts fully and properly and then makes a scien- 
tific study of the means by which Sunnah is to be ascertained, 
he will never fall a prey to any misgiving that he is faced with 
some insoluble puzzle. 

(iv) There is no doubt that there have been numerous 
differences in the matter of ascertaining and establishing the 
Sunnah and such differences can also arise in future. But then 
similar differences have occurred, and many indeed will ocour in 
future, even in the matter of interpreting a good many rules 
and injunctions of the Holy Qur'an. If suoh 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 of his claim. If his argument 
is sound, it will be acoepted by the learned men of the Ummah 
or at loast 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. This is the principle on the 
basis of whioh millions of Muslims in various parts of the world 
have agreed on a particular juristio' school of thought and large 
blocs of their populations have established their social system 
on the strength of a particular interpretation of the Qur'anio 
injunctions and- a particular set of the proved Sunnah. 

%. The second criticism that has been offered about my 
paper is that there is contradiction in it. A certain oritio 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 Tie Islamic Law and Constitution 

Qur'an also there are numerous examples of such concessions 
and from these the jurists have deduced the principles whioh 
have to be borne in mind in regulating the limits and occasions, 
for the concessions, e.g., the dictum 'necessities make certain 
inhibitions 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 respectfully 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 undertaking Ijtihad 
should be sincerely desirous of following the dictates of the 
Sharif ah and not wanted to overstep its limits 1 Or the condi- 
tion that 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'aht Or that they should be cognizant of the contributions 
made by the past MujtahidinX Or the condition that they should 
be conversant with the problems and affairs of the world * Or 
again that they should not be persons of bad conduct and devoid 
of Islamic moral standards ? Whichever of these conditions 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. 
Nevertheless, 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 shouM like to know how he will 
be able to make the Muslim public swallow the results of Ijtihad 
thus undertaken by men who are devoid of good conduct and 

Legislation and Ijtikad in Islam 


sound learning and whose motives and sincerity is looked upon 
as doubtful and questionable 3 Can tlio Jjfihad performed by 
such people ovor win the support, confidence and loyalty oP the 
people % And if it cannot, as it is bound to, then of what value 
would it bo for ns* and the posterity 1 



Outline : 

It seems that the people art going to the opposite extremes in 
dealing with the nature and scope of legislation in Islam. Some say 
thai there is no scope for legislation in Islam, Law has been revealed 
by God and His Prophet and the Muslims are left only to follow the 
law in the prescribed form. Some others hold that there is unlimited 
scope for free legislation in Islam and they say that the rulers are 
entitled even to change or make amends in the forma of - worship 
{Ibadaat) determined by the Holy Prophet. For instance, they 
ptrmit them to change the form of the. prayer, of the fast and the like. 

"Please let us know what is the. real seopc 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 fwrsonal 
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. But in the field of individual and social affairs 
{Mu'amalat) there is a limited scope for legislation in matters 
about which the Qur'an and Sunuah are silent. 

The basic principle which holds good in Islamic law is that 
in respect of worships, do what has been prescribed and do not 
innovate ; while in respect of ttio general affairs of life, follow 
that what has been commended, avoid that what has been 

forbidden, and where the Law-giver has not given any guidance 

Tte Islamic Law and Constitution 

you ara free to act on your own vision and decide accordingly. 
Shatibi in his book Al-Vlimm 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 affairs the law is 
that where the sovereign is silent, the people are free 
to act on their own vision. This is the field of 
permissibles, Bat contrary to this, in respect of matters 
of worship and prayer no such thing can be adopted 
which has no basis in the SKari'ah. For Hbadaat are 
directly related to the clear command and the will of 
God. The reason for this distinction is that in the 
general worldly matters we ooreelves 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".* 
2. In the realm of the general affairs of life (Mu'amalat) 
legislation can be made in four fields, viz : 

(t) Interpretation, i.e., the ascertainment of the intent and 
the meaning of the naes (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. 

(ii) Analogy. It consists in applying to a certain case 
about which no specific guidance is provided, a command 
which has been given by the Law-giver for a similar or 
liko case. This is done by discovering the reason or 
the effective cause (illah) of a certain commandment 
and to apply it to cases where the same effeotive cause 
is present. 

(m) Inference and Ijtikad. This is the application of the 
general principles of the Shari'dk to the ordinary, 
minor and day-to-day problems and an endeavour to 
formulate, on the basis of suggestions, indications or 

1. Shatibi, Al-Ptiaam, Vol. II, p. 115 (M&tba' Mustafa Muhammad, Cairo). 

Leginlaiion and Ijtikad in Islam 


implications of tho injunctions of the SKari'ah, an 
overall view of life as the Lawgiver would like it to bo. 
(iv) New Legislation. To formulate, in respect of those 
problems about which the Law -giver has provided no 
guidance, now laws which are in conformity with tho 
ultimate objective of Islam, and are capable of mefeting 
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 'Ma/taleh Mursalah' and 'hlihaan'. By mamleh 
. mursalah are meant 'all those expediences which have 
been left to our own choice and nothing has boon pros- 
cribed either way 1 . Istihsan, on the other hand is, in a 
sense, a concept of equity, wherein although a certain 
commandment is arrived at through analogy (Q it/as). 
bat because of greater and wider expediences admissible 
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 need any further elucidation, but those of masaleh 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'ah and not repugnant to 

them in any way. 
(£>) 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 genuine 

need, or to remove any genuine difficulty* 

1, So© Shatibi, AlPtitom, op. cit. * 

% This means that it should not be contrary to tho general notions of 

reasons as accepted by th^ Muslim society— Editor, 
3, Shatibi, AUrHmm, Vol. II, pj>. 110-14, 

88 Tht Mamie Law and Constitution 

Shatibi also discusses the principle of istihmn in detail. 
According to him, istihsan consist* 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 jurist, any suoh tangible inconvenience, 
discomfort or loss which the Skari'ah wants to avoid, is against 
the express good of the people or is repugnant to an admissible 
custom. Thus in case of iMksan, the apparent dictate of Qiyas 
can be rejected only if there is a genuine case of equity and 
there are strong arguments to support and establish it.i 

4. The opinion, fatua, or research of a legist or jurist, 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 
strength of the argument and the academic position of the legist. 
But such opinion will not amount to LAW. To give it the 
status of law it is essential that the legislative council of an 
Islamic State, consisting, as it must, of the men of authority 
and learning, should enact that interpretation, Qiyas, inference 
ijtikad, istiksan or istislah into LAW, through its ijma 1 (consen- 
sus) or majority decision.2 I would like to substantiate this 
point by some examples from the period of Khilafat € -Ra*hidah. 
{i) The Qur'an has prohibited the drinking of liquor, but 
no spocifio punishment has been prescribed for the 
offence in the Book. The Holy Prophet imparted 
different punishments to different offenders — eaoh 
suiting the specific case in which it was awarded. As 
such, he did not prescribe any specific punishment 
(ha&d) for this offence. Abu Bakr and 'Umar gave the 
punishment 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 
Maj lis-i-SKura. In the meeting of this council, *Ali 

1- Shutibi, Al-I'tUam,., pp. 118-19, * 

2. So© also Chapter No. V, Firtt Principle* of an Mimic Stole. 

Legislation and JjUhad in Islam 


made, a brief but impressive speech and suggested that 
eighty stripes be laid as punishment for the crime. 
They unanimously adopted this suggestion and through 
this ijma* the decision became law. 1 
(it) It was enacted during the KhilafaUt-Rashidah that a 
worker or manufacturer was responsible for the com- 
modity he had been given to work uppn, and if that 
commodity was destroyed while it wap with him', he 
would have to make good the loss! For instance, if 
some cloth has 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 loss. This 
decision too was made on the plea made by 'Ali. He 
argued that although, on the face of it, the worker or 
the manufacturer does not seem to be responsible for 
the loss which 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 

national loss. Thus it is expediential to hold him 
responsible for the goods given to him. This law, too, 

was made through tjma'. 2 

(lit) l Umar judicially decided that when in a murder more 

than one person were involved, Qisa* should be derived 

from all the accomplices. Malik and Shafe'i have 

adopted this position. Bui the decision of 1 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* 
(%v) The question arose that : 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, AUVtUam, Vol, It, p, 101. 

2. IMA, Vol. II, p. 102, 

3. Ibid,. II, 

90 The Islamic Law and Constitution 

preferential right upon the wife 1 Khulafa-e-Rashidin 
gave quite different verdicts in such oases. But none 
of the decisions enjoys the status of law, for the 
problem was never presented before the $hura and no 
ijma 1 was ever arrived at o» the same. 1 
5, The above discussion clearly shows that the position 
given to the judicial verdicts in the legal system of 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, 
whioh involves a certain interpretation of a nass is the result 
of 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 oan later on give a different decision in a similar * 
case, provided he hat change^ 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 juirs. Thes codes of 
fiqh began to enjoy semi legal status for the simple reason that 
the overwhelming majority of the people of different regions had 
voluntarily accepted the fiqh of a certain Imam. For instance, 
Iraq and {eastern provinces adopted the fiqh of Abu Hanifa, 
Spain and North Africa, of Malik, Egypt, of skafe'i, 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 exaot 
definition of ijma*. According to Shqpi, ijma 1 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 Jar it, AUTabari and Abu Bahr Al-Razi regard 
even a majority decision as ijma'. -The position of Ahmad ibn 

U Shatibi, AUVtiaam, Vol II, p, 126, 

Legislation and Ijtikad in Islam 91 

Hanbal is i hat when he says "we know of no opposition to this 
view" that means that he regards that decision as ijma'* 

All are agreed that ijma* is a final authority. This means 
that when the ijma 1 has been arrived at on a cetain interpreta- 
tion of a it a** or on a certain ijtihai, Qiyas or expediential 
legislation, then such un ijma* is binding on all and mnst be 
followed. Differences arise only a* to the question whether there 
has been an ijma' on a certain legal point or not ? No one 
challenges the authority of ijma* as such. The controversy hovers 
round the point : whether it has b*>*n arrived at or not f 

As far as the period of the KkUnfa-fi-ttaAidah i* concerned, 
there is no difficulty in finding out the i jmu arrired 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. Suoh decisions can be depended upon as of the 
unimpeachable authority. But as to the later period, when the 
institution of Shura disintegrated and when there was no proper 
machinery for the achievement of the consensu*, 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 Kkilafut-c-Ra&hidah 
is indisputably accepted. But when anyone olaiins that there 
has been an ijma' on a point in any later period, then all the] 
scholars do not accept the claim. In our own opinioJfcyVn« can. 

be found out only for the period in which the politioaPsystem 
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 ijma*. 
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 1 , these people refused to accept that 
claim. Thus they did not dispute the authority of ijma' as such ; 
they only disputed the occurrence of ijma' on that specific issue. 

Shaft* i has discussed this point in sufficient detail. In his 


Th* Mamie Law and Constitution 

book Jami al-'Tlm be says that it has now become impossible to 
ascertain all the opinions of the 'Utama on minor and detailed 
problems because the world of Islam has spread far and wide, 
the 1 Vlama have dispersed and the close organisation of the 
community has shattered. In such conditions it is wrong to 
claim any ijma 1 on points of detail. But as to the basic 
principles and the major problems, it can be said that there 
has been ijma 1 on them, for instance, there has been ijma* on 
the timings of the five prayers, or the conditions of fasting etc. 
In the words of Ibn Taimiya : 

"Ijma* means, that all 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 aooept that. This 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". 1 
The above discussion clearly shows that the ijma' and the 
majority decision of the Ummah on a certain interpretation of 
na$s or on a certain qiyas, ijtihad or expediential legislation do 
constitute law and are deemed to be authoritative in Shari'ah. 

I i 

If 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 
of 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, Patawa, Vol. I, p. 406. MatbV Kurdist&n-al-Ilrai&h, Cairo, 
IS26 A,H, 

Chapter 3 

How to Introduce Islamic 
Law in Pakistan ? 

WHENEVER there is a discussion on Islamic Law, 
one of the most important questions that is passed is, 
How will it be introduced? And this question is, 
indeed, a . very important one. A changeover to Islamic 
Law cannot he made overnight. The prohlem in . Ives 
many a tricky complication. And it is the dm., of 
the scholars and the administrators to give their be 
thought to the problem and suggest and adopt 
practical steps to introduce the . Islamic Law in a 
systematic and scientific way. Maulana Maududi 
discussed the problems involved in the introduction ot 
Islamic Law in Pakistan in a speech delivered on 19th 
February, 1948 in the Law College, Lahore, and also 
gave some practical suggestions for its introduction 
in Pakistan. The English translation of that speech is 
presented in the following ohapter. —Editor. 


IN my previous discourse* I hud dealt with the spirit and the 
fundamental precepts of Islamic Law and our duties and 
obligations in this regard. I had also replied to the objections 
lhat are generally put forward about the introduction of Islamic 
Law in modern times and to the criticisms about its efficacy as 
» legal system. That address of mine was of an introductory 
nature. Now I propose to discuss this problem at greater length 
and will explain the course that should, in my view, be adopted 
for the enforcement of Islamic Law in our country . 

I would like, at the very outset, to dispel some of the doubts 
ft nd misgivings which crowd into the minds of . considerable 
section of our people as soon as they think of the enforcement 
of Islamic Law. Many people on hearing of our intention to 
eatablish an Islamic State in Pakistan, which would of oourse, 
be governed by Islamic Law, begin to think that the very 
it Pakistan is deolard an Islamic State, all the present 
-ill be repealed and replaced by corresponding Islamic 
Laws without a minute's delay and all in one stroke. 

This misunderstanding is not confined to the common folk 
only. It is found among persons of religious understanding as 
well. They seem to think the day we resolve to mould Pakistan 
into an Islamic State, it should also be the day of the praotical 
fulfilment of that resolution. Suoh people overlook the fact that 
the legal code of a oountry does not exist in a vacuum. Rather, 
it is deeply interlinked with the ethical norms and the social, 
economic and political order of the country. They do not realise 
that so long as the social set-up of a oountry does not alter 
radically, the legal system can undergo but little change. They 
also forget that vital changes have been wrought in our lives 
during the period of the British rule and that the entire mode 
of our living has been de-Islamisod, It has been divested of its 

^^s^sl^^s^r ^ — ^ ^^^"^^w^^ 

1. the ref«enoe Chapter 1, «T«ie Islamic Law\— Editor. 


How to Introduce 



Islamic character and is being governed by principle* derived 
from sources other than Islam. Consequently, what is required 
j- T»i««ia« t.hA nntire system of our life. And this, m 

mormous amount of 

its tarn, ie an uphill task and demands an ei 

these fervent but ignorant lovers of Islam take th task of 
revolutionising the collective life of a nation very lightly and 

« 11 Wence thev indulge in daydreaming and crying 
superficially. Hence they jna g , g q{ 

for the moon. But such an outlooK serves «ui, . 
hose who are trying their best to prevent the «tabhsment of 
an Islamic State and provides them with ground, to scoff at the 
very idea of this venture. 


If we really wish to see our Islamic ideals translated into 
reality we should not overlook the basic law of nature that a 1 

b fand far-reaching changes in the collective life of peop 
come about gradually. The more sudden a change «, the more 
short livea it generally turns out to be. For a permanent 
Tang! Itls nelary that it should be free from extremist - 
and unbalanced approach. . 

The best example of this gradual change » the revo ut on 
brought about by the Holy Prophet (peace be upon bw) fat 
Hla Ononis acquainted, even superficially wit i *h. 
history of the Prophet's achievements, knows that he did not 

enforcl the entire body of Islamic Law all at once. of 
Lt, the society was prepared gradually or their 
He sterted his efforts for reform by inculcating behef in th 
fandlentals of Islam, the unity of God the lafcrf* 
Death and the institution of Prophet-hood and by xnduc ng th 
people to live a life of righteousness and piety. Those who 
!l p ted this message were twined by him to beheve an an 
p aoL the islamic way of life. When this was achieved • 
.- considerable degree, the Prophet (peace be upon him) went a 


The Mamie Law and Constitution 

step further and established an Islamic State in Madinah with 
the object of making the entire life of the country conform to 
tho Islamic pattern. After gaining politioal 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 
(peace be on him) introduced a new system of education — a 
system whioh, in keeping with the conditions obtaining in his 

time, consisted mainly of verbal instruction and went on with 
the exeoution of a well-chalked -out and a systematic plan for an 
overall reform in the moral, sooial, cultural and economic life 
of the corrupt society of his day. These efforts progressively 
brought about a ra^ioal change in the mental outlook and the 
practical oonduot of the people. In commensuration with the 
progress made in this field the Prophet (peaoe 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 — sooial, 
politioal, economic and legal. 

A oareful study of the Qur'an and the Hadith 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 (hijrah). The gradual 
enforcement of the rules and regulations regarding marriage 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 earl? in Meccan life (i.e., before 
Ethe Holy Prophet migrated to Madiaah) yet it was not practi- 

Sow to Introduce islamic Law in Pakistan t 9? 

oally 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 proouring 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 SKari'ah 
remained in vogue in the country. The courts had the Qadis 
to decide the oases in accordance with the Islamic Shari'ah 
which was not confined only to the personal affairs of the 
Muslims but constituted the law of the land. The Britishors 
tolerated all that and took about a hundred years to replace 


the Shari'ah by their own code of law. 

9 All this was done very gradually and systematically. First 
of all the Britishers strained the people who could serve their 
purpose by effecting a change in the educational system of the 
country. Skilfully they propagated their ideas, reinforced their 
propaganda with official power and thus revolutionised the 
mental attitue of the people. Thev also changed the economic 
order prevailing in the sub-oontinent. 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, 

88 The Islamic Law and Comtitution 

Coming to our own times and our own country, Pakistan, 
if we wish to promulgate Islamic Law here it would mean 
nothing short of demolishing the entire structure 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, because 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 of 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 
of 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 touoh with the modern 
world. Their education has lost all contact 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 modern 
state. As for our modern secular institutions! they produce 
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 of modern secular 

There is yet another difficulty. The lslamio 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* 
merits of the modern 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 of 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 

Bow to liUroduce litamic Law in Pakistan t 99 

such circumstances it cannot be fruitful, even if it were possible, 
to change the legal structure of the country all at once because 

then the general pattern of life and the legal structure will be 
poles apart, and the legal change will have to suffer the fate of a 
sapling planted in an uncongenial soil, facing a hostile environ- 
ment. It 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. 

But making a pretext of 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 of Islamic 
laws wffl follow in its nutural course. Such statements are ab- 
solutely fallacious and misleading. The question is : who will 
build up the required Islamic atmosphere 1 Can an irreligious 
state, with Westernized people at its helm, do this job 1 Will 
the persons well-versed only in running bars and night olubs and 
movie houses spend their energies in constructing and maintain- 
ing moseques ? If the answer is in the affirmative, it will indeed 
be a unique experiment of its kind in human history : ungodli- 
ness fostering godliness so that it might ultimately be supplant- 
ed by the latter ! 

If 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 ? 

If we reflect for a moment and consider the examples quot- 
ed above to support that principle of gradual ohange in the 
transformation of collective life, whether Islamic or un-Islamic, 
can be brought into existence ooly 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 


The Islamic Law and Constitution 

(peace be on him) was the outcome of years of 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 new civilisation. Thus was the 
ground prepared for the enforcement of the Islamic laws. 

The Britishers could sucoeed 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 had a definite 
goal and a clear plan. They worked incessantly for it and at 
last succeeded in establishing a legal system which was in con- 
formity with their ideology and oulture. 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 



No reasonable person can deny that Pakistan 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 Bhould play a positive 
role in the establishment of the Islamio system of life. When 
the state is our own and we have placed at its disposal all the 
resources of our country, there is no reason why we should go 
elsewhere to fetch the architects of the Islamic order. 

First Step-If 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 : 

Row to Introduce Islamic Law in Pakistan ? 101 


(i) That the sovereignty in Pakistan belong* to God 
Almighty alone and that the Government of Pakistan 
shall administer the country as His agent. 

(ii) That the basio law of the land is the Islamic Short* ah 
which has come to us through our Prophet Muhammad 
(peace be on him). 

(Hi) That all those existing laws which may be in conflict 
with the Shari'ah shall in due course bo repealed or 
brought into conformity with the basic law and no law 
which may be in any way repugnant to Shari'ah 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 become aware of the purpose for which 
they have to eleot 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 1 They do know, if not 
fully at least to a considerable extent, as to who among their 
fellow-countrymen, are God-feaiing and virtuous and who are 
completely given to worldliness, salf-interest and vice. People 
cho9se persons acoording 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, ha*d 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 

/, 1M The lalamic Law and Constitution 

system of government, they will naturally keep Islamic stan- 
dards before themselves. Their selection may not be an ideal 
one, but this much is certain that they will not select the 
wicked or the corrupt type or the blind imitators of the West. 
They are bound to select those peraons who are both mentally 
and morally equipped for the task. 

Second Step—Oar next step towards the establishment of the 
Islamic way of life should be the transference of the reins of 
power to the people who are capable of using it effectively for 
the realization of the above-mentioned objective. This will of 
oourse be achieved throogh the well-known democratic procedure 
of general eleotions. 

Third Step-The third step will be to chalk out a compre- 
hensive plan for a thorough reform of all the departments of 
our national life for which all the resources of the state will 
have to be utilized. Thus the eduoational system will be 
reorientated in all the means of propaganda— the press, the 
platform, the cinema and the radio— will be used for the purpose 
of creating a new Islamic consciousness, a new healthy outlook ; 
and an incessant and sjstematio effort will have to be made to 
mould the sooiety and its culture into Islamio patterns. 

Persons who have been incorrigibly affected by the deca- 
dent, sinful and corrupt system of life can be compared to a 
fibre of discordant colour which will not fit into our pattern, 
luey are the lost men and are of no use from our point of view. 

uoh people will have to be roplaepd everywhere by those who 
can prove helpful in the task ahead. 

The economic system will also have to be basically altered 
and its whole structure which is built on the Hinduistic and 
Western semi -feudalists and semi-capitalistio foundations, will 
have to be demolished. 

visionT n r re /I iatifa n '« hteou9 « rou P of People, possessing 
full 1 a 7 * tate8mana fcp. fields political power and, making 
use of the administrative machinery of the government 
utilizes all the resources at its disposal foi the execution of a 
well-conceived plan of national regeneration, the collective life 

Bow to Introduce Islamic Law in Pakistan ? 103 

of this country can be totally changed within a period of ten 
years. And as this change cornea about gradually, the British 
made laws can be amended or repealed and replaced by the 

Islamic laws. This process will continue as such for some time 
and ultimately all un-Islamio laws will be repealed and our 
state will be governed by Islamic laws alone. 



At this stage it seems necessary to throw some light 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 of reform to which I have 
referred above demands an enormous amount of hard work In 
almost every walk of life. After centuries of 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 of other aspects 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 of Islamic 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 we 
all know, a very great part of the literature on Islamic 
Jurisprudence is still in Arabic and the modern educated of 


fkt Islamic Law and Constitution 

our people are generally not conversant with this language. 
The result is that owing to inability of their approach to the 
real sources and the inimical propaganda of our opponents, 
they have come to harbour many a misunderstandings about 
lalamio 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 of age-old 
controversies, legal hair-splittings and long-drawn arguments 
should be thrown into the wasto-paper basket and that we 
should start work on Islamic Law all afresh. But the faot of 
the matter is that the people who express such funny ideas 
betray not only their lack of knowledge but also their lack of 
vision and imagination. If such people earnestly and 
dispassionately study the achievements of their ancestors in the 
field of 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 the contrary, they have left a very vast and priceless 
treasure of 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 of 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 of what we have inherited from our 
forefathers and spend our energies only on further expansion 
according to our present needs. Otherwise, if every generation 
of ours were to reduce the labours of 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 discourse 1 that 
during the past centuries the various Muslim states which 
flourished over a large part of the then civilized world, had 
Islamic Fiqh as their 'law of the*land\ Muslims of those days 
were not "barbarians". Bather, they had a highly advanced 

t. See Chapter 1, Th* Islamic L*w-EM<it % 

Bow to Inttoduct Islamic Law in Pakistan t 105 

culture and their scholars of religious law had applied Islamio 
prinoiples to all the problems of their civilization. It were 
these experts of Islamic Fiqh who held important positions as 
magistrates, judges and chief justices and their judgements and 
decrees hare produced a large volume of legal precedents. 
Indeed, these experts have made prodigious contribution to every 
branch of law. Their works evoke one's highest admiration 
not only when they discuss problems of Civil and Criminal Law 
but also w,hen they deal with the problems of Constitutional and 
International Law. A perusal of 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 a to ok of all the writings left by our anoestors and to 
re-edit them in the form of modern books of Law. 

There are some books which must necessarily be translated 
into the national language : 

(1) The following three books on Ahkam al-Qur'an (the 
Legal Injunctions of the Qur'an) : 

(i) AVJassas, 
{ii) Ibn al-'Arabl and 
(Hi) Qurtubi. 

Their study will train our students to deduce injunctions 
and laws from the Qur'an. These books present a commentary 
on and an explanation of all the Quranio verses relating to legal 
commandments and also contain all the relevant details from 
ahadith (Propbetio Traditions) and the sayings and practices of 
the Companions of the Holy Prophet (peace be on him). 
Besides these, they give us the various 'deductions 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 comes 
the great treasure of the commentaries on the books of Badith. 
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 particuarly be 

106 The- Islamic Lav> and Constitution 

translated : 

(*) On aUBukhari : 1 Aini and Fath al-Bari. 
(ii) On Muslim : Nauwvi and Fath ahMuthim. 
(Hi) On Abu Da'ud : 'Aunul-Ma'bud and Badhl aUMajhud. 
{iv) On Muwalta : Shah Wali-ulidh's Musawwa and Musaffa, 
and Avjaz al-Masalik by a contemporary Indian scholar. 

(v) On Muniaqa al-Akhbar : Shaukam's Nail aUA'wtar. 

(vi) On Mishkat : Atfaliq~u&~Sabeth. 

(vii) On 'Jlm-al-Athar ; Ma'ani al-Athar by Imam Tahawi. 
(3)- After this we should turn to the fundamental books of 
Fiqh from which the following must particularly be translated : 
(i) On Hanafi Fiqh : 

Al-Mabsut and Shark alrSiyar al-Rabir by Imam 

Bada'V al-Sana'i 1 by Kashani ; 
Ibn Humam'a Fath al-Qadir ; 
Hidayah and • 
Fa tawa* i 'A lam gtri . 
(it) On Shafe'i Fiqh : . , 

Kitab al-Umm ; 

SAarft al-Muhadh&kab and 

Jlfu^n* ahMuhtaj. 

(Hi) On Maliki ^tg* : 

Al Mudawwanah and any other important book that 

might be selected by scholars, 

(iv) OnHanbali Fiqh: 

, AUMnghni by Ibn Qudamah ; 

(v) On Zahiri Fiqh : 
AhMuhalla by Ibn Hazm ; 

(vi) On Madhahib-e-Arba'ah (the Four Schools of Thought); 
Bidayat al-Mujtahid by Ibn Rushd and fit* 
Madhahib al-Arba'ah compiled by Egyptian scholars. 

(vii) On certain special problems : 

.Kitab al-Kharaj by Imam Abu Yusuf ; 

JR-Kharaj by Yahya Ibn Adam ; 

Kitab aUAmwal by Abu 'Ubaid al-Qasim ; 

How t& Introduce Islamic Law in Pakistan t 107 

Ahkdm al-Wakf by Hilal Ibn Yafaya and, 
Ahkam al-Mitwarith by Dimyati. 
(4) We must also translate some important books oa 
Jurisprudence and on the philosophy of law, so that our legal 
experts may acquire a deep insight into and gain a correct 
understanding of the spirit of Islamic Fiqh. In my opinion the 
following books should be selected for this purpose : 
(t) Usui aUAhkam by Ibn'Hazm. 
(u) Al-Ihkam luUsul aUAhkam by Amidi. 
(tn) Usui al-Fiqh by Khadari. 

(iv) AUMuwafaqat by Imam Shatibi. 
(v) riam al-Muwaqqi'in by Ibn al-Qayyim. 

(vi) Bujjat Allah aUBolighah by Shah Waliullah. 

As I hare 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 t 
scattered discussions on legal problems will have to be gathered 
and collected under relevant headings, and indices will have to 
be prepared. Unless we take paina to effect these improvements 
those books will not become fully useful for our present-day 
needs. The method of compiling 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 International Law. 
No doubt, they dealt with these problems but under headings 
like Jihad (Laws of 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 Eudud (Punishments), Jinayat 
(Crimes) and Diyai (fine-money or blood-money). 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 Economics and Finance as separate 
subjects. They severally dealt with these subjects under headings 
like : 'the book of sales 1 , 'the book of land-cultivation' etc. 

108 *The Islamic Law and Constitution 

- 1 Itt the same way, they did »ot use modern terms like La*fr 6f 
Evidence, Civil Procedure Code, Penal Code, Criminal Procedure 
Code elc. Questions relating to these aspects of law were dis- 
cussed by them under headjngs like 'the etiquette for the judges', 
♦the book of claims',- 'the 'book of agreements', and so on. Now. 
i Ahese books are merely translated they cannot be of much use 
. to us. It is, therefore, imperative that persons having knowl- 
edge of modern legal syetems should work on all such materials 
and rearrange them to fulfil the modern requirements. If this is 
considered to be a very laborious and lengthy task, we should at 
least prepare oomplete and exhaustive indices of all these works 
and should also compile detailed bibliographies for the guidanoe 
of a student of law. These should cover all the branohes of 
modern Law so that one may not experience any difficulty in 
finding out material on a required topic. 
II. The Codification of Law • 

The next important step in this connection is to appoint a 
body of Islamio scholars and experts of modern legal thought 
who should be entrusted with the task of codification of the 
Islamio Law section and clauae-wise according to the modern 
patterns. In my discourse on the Islamic Law* I have already 
explained, at length that, from aoademio and Islamic points of 
view, it is not binding to accept any and every saying or 
expression of opirrion by an authority on Fiqh, or anything and 
everything written in a book of Fiqh. This is so because 
everything contained in a book of Fiqh does not constitute 
Islatoio Law. Jt is only the following four things that constitute 


Islamic Law : — 

(i) An explicit commandment of God laid down in the 

Qur'an ; or . 
(it) An explanation or elucidation of a Quranic command- 
ment or an explicit order or prohibition from the Holy 
Prophet (peace be on him) ; or 
\iii). An interpretation, inference, Qiyas (analogy), ijtihad t or 

I. See Chapter ^Editor. . 

Bow to Introduce islamic Law in Pakistan t 109 

istihsan (juristic preference) on which there has been a 
consensus (ijma*) of the umrnah ; or it may be a 
majority decision of the 'ulama which has been accepted 
by an overwhelming majority of our own people ; or 
(iff) An ijma* or a majority decision of the nature discussed 
in (Hi) above arrived at by our own men of learning 
and authority. 

My proposal is that a body of experts of Islamic laws 
should compile the first three categories of laws and command- 
ments into a Code. Additions to it will continue to be made 
as fresh laws are framed by general consent or majority decision. 
If and when such an exhaustive code has. been compiled, it ^ill 
be the basic book of Law and all the current books of Fiqh 
serve as commentaries for this book. Thus the enforcement of 
Islamic Law by our courts and its teaching in our Law Colleges 
will be greatly facilitated. 

III. Reform of Legal Education 

The third important measure will be to ohange the prevail- 
ing system of legal education. It is imperative 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 students academically as well as morally for the 
enforcement of Islamic Law in the country. 

The type of education which is being imparted in our law 
colleges at present is worthless from our point of view. Students 
who receive this education not only fail to develop any insight 
in the Islamic Law r but their mentality and mode of thought 
also become anything but Islamic. Moreover, the atmosphere 
of these colleges is such that the students are deprived of the 
opportunity of imbibing those moral qualities which are needed 
to run an Islamic state. Consequently unless we change this 
state of affairs and radically reorient the curricula and the 
methods of teaching to suit our need of producing legal experts 
of a high mental and moral calibre who are well-versed in 
Islamic as well as modern legal thought, we oannot have good 

ilO ' ■ The Islamic Law and Constitution 

lawyers, magistrates and judges for the courts of an Islamic 

For this purpose I would like to make certain suggestions 
for the consideration of the scholars and the educationists : 

(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 muoh 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 oannot be gained unless one knows the language 
of the Qur'an, and that of the Prophet (peace be on htm), In 
the initial stages we shall no doubt experience difficulties in 
obtaining Arabio knowing students for law colleges. We might 
even have to start Arabio classes in law oolleges themselves for 
the first few years and might also have to increase the period of 
education by one year but later on* when Arabio becomes 
compulsory in our educational system, Arabio knowing studedts 
for our law colleges will be easily available. 

(2) Along with the teaohing of -Arabic, the students must 
• also be made to study the Qur'an and the Hadith 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 

Bow to Ittfroduce 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 Shari'ah, on the one hand and between the Skari'ah 
and the problems of Fiqh on the other i The result of 
this type of education is that most of these people believe 
as if the minute details of law and the doctrine stressed 
by or peculiar to their own school of thought alone is the real 
essence of religion. And it is this error that has created 
sectarian controversies and bigotry among the Muslims. Again, 
as a result of this some of the basic objectives of the Shari ( ah 
have sometimes been overlooked in applying the rules of Fiqh 
to the problems of everyday life. We wish this situation to 
come to an end. A student must acquire an understanding of 
Islam as a system through a study of the Qur'an and the Hadith 
before he begins the study of Fiqh. 

We will, no doubt, 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 start classes of the Qar'an and Hadith as wefl in the law 
colleges. Bat gradually, as our general educational reforms 
will bear fruit, we wiil be able to lay down the condition that 
only those students who had Tafeir (Interpretation of the 
Qur'an) and Hadith in degree classes as their optional subjects 
will be eligible for admission to law oolleges or else they will 
have to spend an extra year to study these subjects. 

(3) The enmoula of law colleges must necessarily include 
the following three subjects : 

(o) Principles of Islamic Jurisprudence ; 

(6) History of Islamic Jurisprudence ; and 

(c) Fiqh, i.e., an unprejudiced study of all the major 
schools of Fiqh. 

Without mastering these three subjects, the students can 
neither gam^complete understanding of Fiqh nor can thev 
develop those qualities of sound reasoning which are a pre- 

i- For a discussion of the d^ r6Me between i>, n and SHaH-oh see Abul 
Aftmad, Iilanuo Pubhcatjons Ltd,. 1060, pp. 162-65. 


The hlamic Law and Constitution 

requisite for becoming good lawyers and jurists. They cannot 
also become experts in law, capable of framing new rules and 
regulations for our progressive state and capable of employing 
the correct modes of interpretation and analogous reasoning. 
Without that they oannot pronounoe judgments of the standard, 
clarity, vision, and depth evinced by the legists of the past. 
And if the judgments of our modern legists lack in these respects, 
they will never be able to command respect and wholesome 
approval of the people. Not only that, without fully understand- 
ing the principles of their own law, they cannot apply them to 
the new problems which will be cropping up every day and will 
be oreating altogether new situations. It is only the history of 
Fiqk which reveals the evolution of Islamic Law and also points 
out the lines along whioh this law oan develop in future. Con- 
sequently, unless the students of law are fully conversant with 
all the important contributions of the scholars of the past, they 
oannot benefit from other schools of Fiqh in oases where they 
are unable to solve a certain problem with the help of the 
approach and literature of some particular school. This ia 
essential also because they should as a rule make use of this 
guidanoe and get assistance from the workB of the past before 
making an independent effort and pronouncing a final jndgment. 
It is for these reasons that I consider the inclusion of the above- 
mentioned three subjeota essential in the list of compulsory 
subjects in the ourricula of our law colleges. 

(4) Along with reforming the ourrioula of legal education we 
will also have to give due importance to the moral training and 
oharaotor-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, of unimpeachable integrity and 
strength of charaoter. They should be the living emblems of 

honesty, fairness and justice. % 

Of all professions, the dispensation of justice requires the 
highest degree of piety, the aoutcst sense of responsibility and 

Sow to Introduce Islamic Law in Pakistan lit 


the greatest measure of the fear of God. Graduates from our 
law colleges must, therefor©, be persons fit to take the place of 
such luminaries of our history like Qadi Shurayh, Imam Abu 
Hanifah, Imam Malik, Imam Ahmad Ibn Hanbai, Imam Shafe'i 
and Qadi Abu Yusuf. These oolleges must produce persons of 
strong and. dependable character who, while deciding a case in 
the light of the Shari?ah, have their eyes fixed on God and are 
not at all swayed by greed, fear, personal interest or individul 
likes and dislikes', and who may not deviate from what they 
believe and know to be right out of any consideration 

IV. Reform of Judicial Systt 

In order to prepare the ground for the enforcement of 
Islamic law, we will have to introduce many reforms in our 
Judicial system also. Leading aside other less important 
faotors, I will mention only two of them which are most 
important from the Islamic point of 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 judioial system. From the moral point of 
view not a Bingle argument can be put forward in its favour and, 
in. the practical 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 enforce the Islamic law in its real spirit. Moreover, 
if the same jugglery is praotised 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 
oourt in understanding the law and applying it to the case under 
trial. In principle, such a need cannot be denied. It oan also 
be accepted that two experts of law may hold different opinions 


The Islamic Law and Constitution 

regarding,the same case. It ia 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 sound 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 ia : Are these ends achieved in actual practice 
and does this profession really meet this just requirement t 

Actually, the situation is very d liferent. A, person possessing 
legal knowledge and insight sells his services in the market. 
Such a person is always ready to think out and produce legal 
points in favour of the highest bidder, irrespective of the merits 
of the case. Thus a lawyer is not at all concerned whether his 
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 encroach upon the rights of others. Again, a lawyer 
has also no oonoern 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 oase and from the evidence only such points as streng- 
then the side taken by him. He also tries to influence and confuse 
the witnesses so that the aotual facts of the case— if they go 
against his client— remain in the dark or at least become 
doubtful. It is the supposed duty of a lawyer to put forward 
only such interpretations 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 whicK i%*n favour of his client, and not the 
one which is desirable from the point of view of justioe. 

A lawyer does not worry at all whether a criminal is being 

person is^>eing convicted, whether a 
person loses his right or usurps someone else's. It is not his 
business to support truth and uphold a just cause. He is not 

Bow to Introduce Islamic Law in Pakistan , 115 

there to have justice done ; his sole aim is money ! For him 
anyone prepared to pay the highest amount is always in the" 
right. Can a legal profession of sush a nature be deolared right 
and just if we hare even the least regard for Islam ? Can any 
man with moral values, a healthy conscience and the fear of 
«od, take such an awful responsibility upon himself as to have 
a wronged man deprived of justice and to see that the wrongdoer 
continues to enjoy the fruit of his wickedness ? And can the 
advice of such legal experts who are paid to present » One-sided 
picture be of any help to the court in deciding a oase jvttly 1 
Who can believe that the difference of opinion in the 
interpretation of the lawyers "hired" by opposing parties, can 
reasonably be honest and genuine ? Surely, both of them would 
have put forward just the contrary arguments with the same 
vehemence, had their olients been exohanged between them. 

It is, therefore, apparent that incalculable disservioe has 
been done to the cause of law and justice by making law a pro- 
lesaion. It has given premium to the violation rather than the 
obsorvance of Jaw. It has corroded the entire collective life and 
has made over politios extremely dirty. In fact it is during the 
lawyer's educational life itself that the seeds of an immoral 
attitude are sown, College debates make them habituated to 
speak against their convictions: The real qualification of a good 
debator is considered to be his oapaoity to speak with the same 
vigour and eloquence both for and against a proposition/ 
regardless of his personal views. The edge of his proficiency in 
speaking and arguing against truth is further sharpened during 
the course of his praotice in law and he becomes perfeot in using 
his mind and his tongue against the dictates of his conscience. 
Then, this malady does not stop here. When these people, with 
this moth-eaten character, enter the arena of public life' and 
politics, they poison the academic, cultural and political life, of 
the whole nation. 

Islam is in no way prepared to tolerate such an ugly state of 
affairs, and there is no place within its legal and judicial strud- 
turo for this profession, as it is prevalent now-a-days ; for in its 


The Islamic Law and Constitution 

present form it is quite contrary 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 service of issuing 
edicts and helping the courts in the elucidation of points of law, 
gratis. In view of the inoreased need of our time, we can per- 
manently engage the required number of legal experts including 
specialists in different branohes 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 oourts 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. 

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 

Eow to Introduce Mamie Late in Pakida* 117 

necessity of litigant public and without a proper machinery for 
this purpose they will not only them selves experience much 
inconvenience bnt also waste muoh of the valuable time of our 
courts and confuse them by putting up their eases in an irregular 
and incomplete form. A solution of this problem is that we 
may revive the old institution of "Afvkhtari ,£ 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 oonversant with the practical aspects of the 
judicial business. The duty of sach persons would be to give a 
legal shape to a case bo that it may be properly presented in a 

court of lUw. . They would also instruct the parties regarding 
judioiai prooedure at the various stages of a case- These people 
may be allowed to oharge 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 judioiai system conform 
to the Islamic standards, another important reform is needed, 
and that is the abolition of the court-fee. This is a pernicious 
innovation and we Muslims were not even acquainted 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. ThiB 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 which dispensing 
of justice is not a 'business' but a religious duty of every 
Muslim and of their state most of all-a duty for which no fees 

should be charged. 

One might say that if the court-fee is abolished, how will 

the expenses incurred on the v judiciary be met ? I wish to 
mention the following two points in this regard : 

Firetfy, imder an Islamio dispensation the present heavy 


Th$ Islamic Law and OonstUtUton 

judioial establishment, rendered indispensable by the current 
state of affairs, will no longer be necessary. Abolition of the 
lawyer s profession will also play its part in reducing litigation. 
Moreover, the duration of theoases will be considerably reduced. 
Social, economic and moral reforms will go a Jong way in curtail- 
ing the number of cases. Adequate training of police and |ail 
officials and reforms in these departments will also indirectly 
©ontrfbute to reducing the number of Crimea. Thus we will not 
be in need of as many judges and magistrates and as heavy a 
judicial establishment as we need at present, consequently, there 
will be quite a remarkable decrease in the expenditure of our 
judioial department. 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 expenditure of the judiciary on our national 
exchequer will become much lighter and, instead of imposing it 
on those who need and seek justice, we 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 instance, 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. Besides this, a person who gets a decree from a 
court worth more than a certain amount of money may be taxed 
according to a certain fixed rate. If, in spite of all this, the 
judioial department has a deficit balance of expenditure, the 
deficit oan be met from the national exchequer, because to 
dispense justice among the people is, as has been said earlier, 

one of the basic obligations of an Islamic state. If the exchequer 
bears the burden of police, education and health services, why 
should it not finance the administration of justice t 

The above are a few suggestions which, I think, must be put 
into praotioe in order to make the enforcement of Islamic law 
possible in this country. I request the scholars and those who 
have practical experience in legal and judioial matters to thrash 
out these suggestions and try to supplement them wherever need 
be. In the meantime I hope that this explanation of mine will 

How to Introduce Islamic Law in Pakistan ll9 

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 of the Islamic 
law requires primarily an urge— an irrepressible urge — to do the 
job. What wo 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 objeotive cannot be achieved 
if the architects who know the design of the building and have 
the will to construct it and possess the requisite resources, are 
not available. On the other hand, if they are available, anything 
can be built — be it a temple or a mosqne. 



art n 



Chapter 4 

Political Theory of Islam 

WHAT is Islam and how does it approach the 
political problem ! What is its political philosophy ? 
What are the Quranic foundations of the Islamic 
state ! What are its basic characteristics t its 
fundamental principles t its ultimate objectives 1 
— -These questions had begun to agitate the minds of 
the Muslim India at the very outest of its contemporary 
political awakening. In tho 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 cry. 

Maulana Maududi tried to present the Islamic 
scheme of life to the Muslim India which was orying 
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- Collegiate Muslim Brotherhood, 
Lahore in October 1939. The paper was 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 
Wthor, —Editor. 



'}J\J'lTK 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. So 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 of Islam and it is in 
the fitness of things that Muslims imitate the Communist experi- 
ment of Soviet Russia. Still tome others whisper that Islam has 
elements of dictatorship in it and we should revive the colt 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>f contem- 
porary social and politioal thought and action. Most of the 
people who indulge in this prattle have no clear idea of the 
Islamic way of life. They have never made nor try to make a 
systematic study of the Islamic political order— the place and 
nature of 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 touch 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's 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 

oijr religion resembles the modern creeds and it is in agreement 

Political Theory of Islam 


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 ! Such is the intellectual plight in which 
we are engulfed. Perhaps it is a result of this sorry state of 
affairs that some pople have even begun to say that Islam has 
no political or economic system of its own and anything oa^fit 

into its scheme. 

In these circumstances it has become essential that a oareful 
study of the political theory of Islam Bhould 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 social 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 of such a need. 



i It should be clearly understood in the very beginning that 
Islam is not a jumble of unrelated ideas and incoherent modes 
of conduct. It is rather a well ordered system, a consistent 
whole, resting on a definite set of clear-out postulates. Its 
major tenets as well as detailed rules of oonduct 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 corollary of 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 may spread in all directions, all its 
leaves and branches 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 
ideoJogy one may like to study, he must, first of all, go to the 
roots and look to the fundamental principles. Then and then 
alone he can have a really correot 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 divinoly 
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 preaching of Islam. And Prophet 
Muhammad (peace be upon him) was the last of their line. 
With him prophethood oame to an end and to him was revealed 
the final code of human guidance, in all its completeness. All 
the piophets conveyed to the mankind the guidance which was 
revealed to them and asked it to acknowledge the absolute 
sovereignty of CJpd and to render unalloyed obedienoe to Him. 
This was the mission which each one of the prophets 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 $f the prophets is that when- 
ever these servants of God proclaimed that "there is no ilah 
(object of worship) except Allah", all the forces of evil made 

Political Theory of hlant 


common cause to challenge them. If it were merely a call to 
bow uotfn 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 subjects for a minor matter which 
had no bearing on their attitude 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 clear 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 maa, 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 1 They will say : unto 
Allah. Say : Will ye not then remember ? Say ; Who is 
Lord of 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- 

tecfceth, while against Him there is no protection, if ye 
have knowledge ? They will say : Unto Allah (all that 

belongeth). Say : How then are ye bewitched 1 ' ? 


"And if you were to ask them : Who created the* 
heavens and the earth, and constrained the sun and the* 
moon (to their appointed task) t they would say ; Allah-. 

How then are they turned away ! And if thou wert 

to ask them : Who oauseth water to come down from the 
sky, and therewith reviveth the earth after its death ? 
they verily would my : Allah". (29 : 61-63) 

"And if thau4ffft£%l them who created them, they will 

The talamic Law and Constitution 

surely say : Allah. How then are they turned away". . 


These verses make it abundantly clear that the dispute was 
not about the existence of God or Hie being the Creator and 
Lord of heavens and earth. All men acknowledged these truths. 
Henoe 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 ? The Qur'an states that the whole dispute centered 
round the uncompromising demand of the prophets that the 
non-believers should recognise as their rabb (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 oause 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 * 

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 of 'the worshipper* and 'the worshipped 1 . Man 
is to offer 'ibadat to God and is to live like His *abd. 

And 'ibadat does not merely mean ritual or any specific 
form of prayer. It means a life of continuous servioe and 
unremitting obedience like the life of 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 hie elevated position, to oneself in obedience to his 

commands, to carry out his orders and cheerfully submit to all 
ibhe toil and discipline involved therein, to humble oneself in the 
riresenoe 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 of Islam 


displeasure, and to sacrifice even one's life when such is his 
pleasure — these are the real implications of the term 'ibadat 
(worship or service) and a man's true ma' bud (object of worship) 
is he whom he worships in this manner. 

And what is the meaning of the word 'rabb' % In Arabic it 
literally means "one who nourishes and sustains and regulates 
and perfects". Sinoe the moral consciousness of 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 of master or owner. For this reason the Arabic 
equivalent for the owner of property is rabb al-mal and for the 
owner of a house, rabb al-dar. A person's 'rabb 9 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 peaoe ; whose displeasure he considers to be 
prejudicial to his life and happiness ; whom he declares to be 
his lord and master ; and lastly, whom he follows and obeys. 1 

Keeping in view the real meaning of these two words 'ilah* 
and 'rabb 1 it can be easily found who is it that may rightfully 
claim to be man's Hah and Rabb and who can, therefore, demand 
that he should be served, obeyed and worshipped. Trees, stones, 
riven, 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. It 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 obedienoe ; force them to bow 
down before him in reverential awe, and make them instruments 
of his self -aggrandisement. The pleasure of posing as a god is 
more enchanting and appealing than anything else that man has 
yet been able to discover. Whosver possesses power or wealth 
or cleverness or any^ther superior faculty, develops a strong 

1. For detailed discussion over taa meaning and concept of ilah and rabb 
•ee : Abul A*la Maududi, QuSmn Ki Char Bunyadi IstUahen (Four 
Basic Terms oi" the Qur'an) Islamic Publications, Ltd.* Lahore. 


The Islamic Law and Constitution 

inclination to outstep hia natural and proper limits, to extend 
his area of influence and thrust his godhood upon such of his 
fellow-men as are comparatively feeble, poor, weak-minded or 
deficient in any manner. 

Such aspirants to godhood are of two kinds and accordingly 
they adopt two different lines of action. There ia a type of 
people who are comparatively bold or who possess adequate 
means of forcing their claim on those over whom they wield 
power and who consequently make a direct claim to godhood. 
For instance, there was Pharaoh who was so intoxicated with 
power and so proud of his empire that he proclaimed to the 
inhabitants of Egypt : "Ana rabbakum al*a'l*" {I am your 
highest Lord). 

and "Ma'alimtu Uthum min ilahin ghairi" (I do not know 
of any other 'ilah* for you but myself). 

When Prophet Moses approached him with a demand for tho 
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 tho prison-house, Moses 
shonld 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 of him who had an argument with 
Abraham about his Lord because Allah had given him the 
kingdom ; how, when Abraham laid : My Lord is He Who 
giveth life and causeth death, he answered : I give life 
and cause death. Abraham said : Lo I 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 flabbergasted". 

(2 : 268) 

Why was the unbeliever king flabbergasted ? Not because 
he denied the existence of God. He did believe that God was 
the ruler of the universe and that He Aloxfb made the sun rise 

1, Al-Qu/an ; 26 j 29 ; 28 : 33 j 79 t 24. 

Political Theory of lelam 


and set. The question at issue was not the dominion over the 
Bun and the moon and the universe but that of the allegiance of 
the people ; not that who should be regarded as controlling the 
forces of nature, but that 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 Abrah^n 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 his 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 
oomraonly 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 unirerse, 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 9 was 
called l an-data' (the provider of sustenance) and people 
prostrated themselves before him although he made no pretence 
of being God and his subjects never recognised him as suoh. 
Much the same was, and still is, the state of affairs in all other 

Words synonymous with 'ildh' and 'rabb* 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 


The Islamic Law and Constitution 

is similar to what is implied by these two words. It is not 
necessary for a man who claims godhood that be should openly 
declare himself to be an 'ilaV or 'rabb'. All persons who 
exercise unqualified dominion over a group of men, who impose 
their will upon others, who make them their t instruments and 
seek to control their destinies in the same manner as Pharaoh 
and Nimrod did in the hey day of their power, are essentially 
claimants to godhood, though the olaim maybe 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 direotly seek recognition of 
their godhood there is another type of men who do not possess 
the necessary means or strength to get themselves accepted as 
Hlah' or 'rabb*. But they are resourceful and ounning enough to 
cast a spell over the minds and hearts of the common people. 
By the use of sinister methods, they invest some spirit, god, 
idol, tomb, plant, or tree with the character of l ilaV and dupe 
the common people successfully into believing that these objects 
are capable of 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 effect : 'If you do not seek their 
pleasure and approval, they will involve you in famines, epide- 
mics and afflictions. But if you 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 of access to 
these deities. Therefore, acknowledge our superiority, seek our 
pleasure and entrust to our charge .your life, wealth, and 
honour 1 . Many stupid persons are caught in thi*£r.ap and thus, 
under cover of false gods, is established the godhftotf and 
supremaoy of prieBts and shrine keepers. 

There are some others belonging to the same category who 
employ the arts of soothsaying, ^astrology, fortune-telling 
charms, incantations etc- There are yet others who, while 
owing aJlogiancc to God, also assert that one cannot gain direct 

Political Theory of Mam 


access 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 (halal) and what is nn- 
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 whioh 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 oonsequenoe 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 ail evil and mischief in the world is 
the domination of man over man* be it direct or indirect. This 
was the origin of all the troubles of mankind and even to this 
day it remains the main cause 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 1 , Hlah 9 
and 'rabb\ and looking up to him for help and guidance in the 
complex and baffling affairs of his 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 % His place in your thinking and 
behaviour. It is even possible that instead of one real God, a 
number of false gods, 'ilahs' and 'rahbs 1 may impose themselves 

upon ybu. 

134 The Islamic Law and Constitution 

Even today man is enchained in the slavery 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-magnate -or the 
like in such a manner that man's control over man, man's 
worship of man, man's surveillance of man continue unabated. 
Modern man has discarded nature-worship, bat man- worship he 
still does. In fine, wherever you turn your eyes, you will find 
that one nation dominates another, one class holds another in 
subjection, or a political party having gained complete ascend, 
ancy, constitutes itself as the arbiter of men's destiny ; or again 
in some plaoes a dictator concentrates in his hands all power 
and influenoe setting himself up as the lord and master of the 
people- Nowhere has man been able to do without an 'ilah* 1 

What are the cousequences of this domination of man by 
man, of this attempt by man to play the role of divinity ? The 
(Mime that would follow from a mean and incompetent person 
being appointed a police commissioner or some ignorant and 
narrow-minded politician being exalted to the rank of a prime 
minister. For one thing, the effect of godhood is so intoxicating 
that one who tastes this powerful drink oan never keep himself 
under control. Even assuming that self-oontrol is possible, the 
vast knowledge, the keen insight, the unquestioned impartiality 
and perfect disinterestedness whioh are required for carrying out 
the duties of godhood, will always remain out of the reach of 
man. That is why tyranny, despotism, intemperance, unlawful 
exploitation, and inequality reign supreme, whenever man's 
overiordship and domination {ilahiyyat and rabubiyyat) over 
man are established. The human soul is inevitably deprived of 
its natural freedom ; and man's mind and heart and his inborn 
faculties and aptitudes are subjected to such vexatious restric- 
tions that the proper growth and development of his personality 
is arrested. How truly did the Holy Prophet observe : 

"God, the Almighty says : 'I created men with a 
pliable nature ; then the devils came and contrived to lead 
them astr&y from their faith and prohibited for them 

Political Theory of Islam 135 
what I had made lawful for them'."* 

As I have indicated 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 impediment to 
his progress. This is the canker which has eaten into the vitals 
of his moral, intellectual, political and economic life, destroying 
all the values which alone make him human and mark him off 
from animals. So it was in the remote past and so it is today. 
The only remedy for this dreadful malady lies in the repudiation 
and renunciation- by man of all masters and in the explioit 
recognition by him of God Almighty as his sole master and lord 
(ilah and rabb). There is no way to his salvation except this ; for 
even if he were to become an atheist and heretio he would not be 
able to shake himself free of all these masters (Hah* and rabb 8 ). 

This was the radioal reformation effected from time to time 
by the Prophets in the life of humanity. They aimed at the 
demolition of man's supremacy over man. Their real mission 
was to deliver man from this injustioe, this slavery of false 
gods, this tyranny of man over man, and this exploitation of the 
weak by the Btrong. Their object was to thrust baok into their 
proper limits those who had over-stepped them and to raise to 
the proper level those who had been forced down from it. They 
endeavoured to evolve a social organisation based on human 
equality in which man should be neither the slave nor the 
master of his fellow-beings and in which all men should become 
the servants of one real Lord. The message of all the Prophets 
that came into the world was the same, namely : 

"0 my people, worship Allah. There is no ilah what- 
ever for you except He". (17 : 59, 75, 86 ; also 11 : 50, 

This was precisely what Noah said ; this is exactly what 
Hud declared ; Salih affirmed the same truth ; Shoaib gave the 
same message, and the same doctrine was repeated and confirmed 
by Mo sea, Christ and by Prophet Muhammad (peace be upon 

t Ai-Madani, AUttehafat al-aanyya fil-Ahadith al-Qudtiyyu, Haditfa 
No. 343, Daira't al-Ma«arif, Hyderabad (Deooan), 1323 A.He 


The Islamic Law and Constitution 

them all). The laat of the Prophets, Mohammad (God's blearing 
and peace be upon him) said ; 

"I am only a warner, and there is no God save Allah, 
the One, the Absolute Lord of the heavens and the earth 
and all that is between them". (38 : 65-66) 

"Lo ] Your Lord is Allah Who created the heavens 
and the earth in six days, then mounted He the Throne. 
He covereth the night with the day, which is in haste to 
follow and hath made the sun and the moon and the stars 
subservient by His command. His verily is all creation 
and (His verily is the) commandment". (17 : 64) 

"Such is Allah, your Lord. There is no God save 
Him, the Creator. of all things, so worship Him. And He 
taketh care of all things". (16 • 102) 

"And they are not enjoined anything except that 
they should serve Allah, keeping religion pure for Him, as 
men by nator* upright". (M : 6) 

"Come to a word common between us and between 
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 Allah". (3 : 64) 
This was the proclamation that released the human soul 
from its fetters and set man's intellectual and material powers 
free from the bonds of slavery that held them in subjection. It 
relieved them of the burden that weighed heavily upon them and 
was breaking their backs. It gave them a real charter of liberty 
and freedom. The Holy Qar'an refers to this marvellous achieve- 
ment of the Prophet of Islam when it says : 

"And he (the Prophet) relieves them of their burden 
and the chains that were around them". (7 : 157) 



, The belief in the Unity and the Sovereignty of Allah is the 

foundation of the social and moral system propounded by the 

Political Theory of Mam 


Prophets. It is the very starting-point of the Islamic politioal 
philosophy. The basic prinoiple of Islam is that hnman beings 
must, individually and collectively, surrender all rights on 
overlordahip, legislation and exercising of authority over others. 
No one should be allowed to pass orders or make commands in 
hit own right and no one ought to accept the obligation to carry 
out such commands and obey such orders. None is entitled to 
make laws on his own authority and none is obliged to abide by 
■ them. This right vests in Allah alone ; 

"The Authority 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 authority V Say; 
'all authority belongs to God alone*." (3 : 154) 

"Do not say wrongly with your tongues that this is 
lawful and that it unlawful". (16 : 116) 

"Whoso does not establish and decide by that which 
Allah hath revealed, such are disbelievers." (5 : 44) 
According to this theory, sovereignty belongs to Allah, He 
alone is the law-giver. No man, even if he be a prophet, has the 
right to order others in Ma own righi to do or not to do certain 
things. The Prophet himself is subject to God's commands : 

"I do not follow anything except what is revealed to 
me". (6 : 50) 

Other people are required to obey the Prophet because he 
enunciates not his own but God's commands : 

"We sent no messenger save that he should be obeyed 
ba/AUoh'ateave". (4:64) 

"They are the people unto whom We gave the Scrip- 
ture and Command and Prophethood". (* : 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 : Become slaves of me instead of Allah ; but 
(what he said was) be ye fiuthful servants of the Lord". 



The Islamic Law and Constitution 

Thus the main characteristics of an Islamic State that can 
be deduced from these express statements of the Holy Qnr'an 
are aa 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 suoh legislation or 
change in Divine laws is unanimous and 

(3) An Islamic 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 obdienoe in its 
capacity as a political agency set to enforce the laws of God 
and only in so far as it aots in that eapacity. If it disregard* 

the law revealed by God, its commands will not be binding on 
the believers. 




The preceding disoussion makes it quite clear that Islam, 
speaking from the view-point of political philosophy, is the 
very antithesis of secular Western demooraoy. The philosophi- 
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 

^^^^^ ,L " ^^^^^^^^^^ ^^^^H 

1. Here the absolute right of legislation is being dieouaaed. In the Ielamio 
political theory thia right veats in Allah alone. As to the scope and 
extent of humnn legislation providedJ>y the Shari'ah itielf pleats see 
Chapter 2 'Legislation, and Ijtihad in Islam' and Chapter 6 'First 
Principles of Islamic State',— Editor. 

Political Theory of Islam 139 

moral viewpoint, steps hare to be taken to place it on the 
statute book ; if the people dislike any law and demand its 
abrogation, howsoever just and rightful, it might be, it has to 
be expunged forthwith. This ie not the case in Islam. On this 
count, Islam has no trace of Western democracy. Islam, as al- 
ready explained, altogether repudiates the philosophy of popu- 
lar sovereignty and rears its polity on the foundations of the 
sovereignty of God and the vicegerency {Khilafai) of man.* 

A more apt name for the Islamio polity would be the 
"kingddm of God" which is described in English as a "theo- 
oraoy". But Islamic theocracy is something altogether different 
from the theocracy of which Europe had a bitter experience 
wherein a priestly olass, sharply markod off from the rest of the 
population, exercises unchecked domination and enforces laws 
of its own making in the name of God, thus virtually imposing 
its own divinity and godhood upon the common people. 2 Such 
a system of government is satanio rather than divine. Contrary 
to this r the theocracy built op by Islam is not ruled by any 
particular religious olass but by whole community of Muslims 
including the rank and file. The entire Muslim population runs 
the state in acoordanoe with the Book of God and the practice 
of His Prophet. If I were permitted to coin a new term, I 
would describe this system of government as a "theo-demo- 
oraoy", that is to say a divine democratic government, because 

1. Here it must be clearly understood that democrnoy as a 'philosophy' 

and democracy as a 'form of organisation' are not the same thing. In 

the form of organisation, Islam has its own system of demooraoy as is 

explained in the following pages. But as a philosophy, the two 

Islam and Western democracy are basioally different, rather opposed 
to each other.— Bdi tor. 


3. "Theooraoy: a form of government in which God (or a deity) ia- 
reoogniftod as the king or immediate ruler, and his laws are taken as 
the statute book of kingdom, these laws being usually administered 
by a priestly order as his ministers and agents ; hence (loosely) a 
system of government by a aaoerdotal order claiming a divine commis- 
sion". Shorter Oxford Dictionary, Vol. II, Oxford, 1966, p. SliSQ. 

140 The Mamie Law and Constitution 

under it the Muslims hare been given a limited popular sover- 
eignty tinder the suzerainty of God. The executive under this 
system of government is constituted by the general will of the 
Muslims who have also the right to depose it. All administra- 
tive matters and all questions about which no explicit 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 Islamic 
law, is entitled to interpret the law of God when suoh interpre- 
tation becomes necessary. In this senBe the Islamic polity is a 
democracy. But as has been explained above, it is a theocracy 
in the sense that where an explicit command of God or His 
Prophet already exists, no Muslim leader or legislature, or any 
religious soholar can form an independent judgment, not even 
all the Muslims of the world put together, have any right to 
make the least alteration in it. 

Before proceeding further, I feel that I should pat in a 
word of explanation as to why these limitations and restrictions 
have been placed upon popular sovereignty in Islam, and what 
is the nature of these limitations and restrictions. It may be 
said that God has, in this manner, taken away the liberty of 
human mind and intellect instead of safeguarding it as I was 
trying to prove. My reply is that God has retained the right of 
legislation in His own hand not in order to deprive man of his 
natural freedom but to safeguard that very freedom. His purpose 
is to save man from going astray and inviting his own ruin. 

One can easily understand this point by attempting a little 
analysis of the so-called Western secular democracy. It is 
claimed that this democracy is founded on popular sovereignty. 
But everybody knows that the people who constitute a state do 
not all of them take part either in legislation or in its administ- 
ration. They have to delegate their sovereignty to their elected 
representatives so that the latter 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 result of this secularisation, the society and partiou- 
u* «niii.inAHv active elements have ceased to attach much 

Political Theory of Islam 


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 laws not in the best interest of the 
people who raised them to power but to further their own 
seotional 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 ail those countries which claim to 
be the haven of secular democraoy. 

Even 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 inoapable of 

perceiving their own true interests. It 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 beoause it conflicts with his 
passions and desires. I can dite many instances in support of 
this contention but "to avoid -prolixity I shall content mysolf 

with giving only one example : the Prohibition Law of 
America. It 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 ^fote. 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 The Islamic law and Constitution 

manufactured and consumed , and their use and consumption 
became more widespread than before. Crimes inoreased in 
number. And eventually drinking was legalised by the vote 
of 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 of new facts 
providing evidence against the advantages of prohibition, but 
because the people had been completely enaalved 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 "ilahs" (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 deliverenoe from the service of 
other ilaha, he 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 * 

That is why God has laid down those limits which in 
Islamic phraseology, are termed 'Divine Limits' (Hudud-kllah) 
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 bro*d framework within which man is free to 
legislate, decide his own affairs and frame subsidiary laws and 
regulations for his conduot. These limits he is not permitted to 

1. The question however is ; Who Ui to impose these restrictions ? 
According to the Islamic view it is only Allah the Creator, the 
Nourisher, the All-Knowing Who is entitled to impose restrictions on 
human freedom and not any man. No man is entitled to do ao. If 
any man arbitrarily imposes restrictions on human freedom, that is 
despotism pure and simple. In Islam there is no place for such 
despotism. — Editor, * 

Political Theory of Islam 


overstep and if he does so, the whole scheme of his life will go 

Take for example man's economic life. In this sphere God 
has placed certain restrictions on human freedom. The right to 
private property has been recognised, but it is qualified by the 
obligation to pay Zakat (poor dues) and the prohibition of 
interest, gambling and speculation. A specific law of inheritance 
for the distribution of property among the largest number of 
surviving relations on the death of its owner has been laid 
down and certain forms of acquiring; accumulating 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 adequately safe* 
guarded and, on the other possibility of class war and domina- 
tion of one class over another, which begins with capitalist 
oppression and ends in working-class dictatorship, is safely and 
conveniently eliminated. 

Similarly in the sphere of family life, God has prohibited 
the unrestricted intermingling of the sexes and prescribed 
purdah, reoognised man's guardianship of woman, and clearly 
defined the rights and duties of husband, wife and children. 
The laws of divoroe and separation have been dearly set forth, 
conditional polygamy 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 stabilise his family life and make it a haven of 
peace and happiness. There would remain neither that tyranny 
of male over female whioh makes family life an inferno of 
oruelty and oppression, nor that satanio flood of female liberty 

and licence whioh threatens to destroy human civilization 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 cut off the hand* for theft, prohibiting wine- 
drinking, placing limitations on uncovering of one's private 
parts and by laying down a few aimilar permanent rules and 
regulations, closed the door of social disorder for ever. I have 


The Mamie Law and Constitution 

no time to present to you a complete list of all the Divine 
Limits and show in detail how essential each one of them is for 
maintaining equilibrium and poise in life. What I want to 
bring home to you here is that through these injunctions God 
has provided a permanent and immutable code of behaviour for 
man, and that it does not deprive him of any essential liberty 

nor does it dull the edge of his mental faculties. On the con- 
trary, it sets a straight and clear path before him, so that he 
may not, owing to his ignorance and weaknesses which he 
inherently possesses, lose himself in the maze of destruction and 
instead of wasting his faoulties in the pursuit of wrong ends, he 
may follow the road that leads to success and progress in this 

world and the hereafter. If you have ever happened to visit a 
mountainous region, you must have noticed that in the winding 
mountain paths which are bounded by deep oaves on the one 
side and lofty rooks on the other, the border of the road is 
barricaded and proteoted in suoh a way as to prevent travellers 
from straying towards the abyss by mistake. Are these barri- 
cades intended to deprive the way farer of his liberty % No, as 
a matter of faot, they are meant to proteot him from destruc- 
tion ; to warn him at every bend of the dangers ahead and to 
show him the path leading to his destination. 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 steadfastly follow. 

As I have already stated, this oode enacted as it is by God, 
is unchangeable. You can, if you like, rebel against it, ae 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 evolution, but no human being has any 
right to tamper with it. Whenever the Islamic State comes into 
existence, this code would form i^a fundamental law and will 

constitute the mainspring of all its legislation. Everyone who 
desires to remain a Muslim is under an obligation to follow the 

Political Theory of hlam 146 

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 Sun-nah has also been laid down by God. 


The Qur'an says : 

"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 this verse steel symbolises politioal 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 aooordanoe with the standards enunoiated 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 ooduct and forbid the wrong i 
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 to 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 Qnr'ati. 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 Constitution 

employed ; the moral education of the people will also be under- 
taken ; and social influence as well as tbe force of public opinion 

will be harnessed to the task. 

Islamic State Is Universal and AIl-Embraciog 

A state of this sort cannot evidently restrict the scope of its 
activities. Its approach is universal and all-embracing. Its 
sphere of activity is coextensive with the whole of human life. 
It seeks to mould every aspeot 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 
something vastly and basically different from the totalitarian 
and authoritarian states. Individual liberty is not suppressed 
under it nor is there any trace of dictatorship in it. It presents 
the middle course and embodies the beet that the human sooiety 
has ever ovolved. The excellent balance an£ moderation that 
characterise the Islamic system of government and the precise 
distinctions made in it between right and wrong elicit from all 
men of honesty and intelligence the admiration and the admis- 
sion that Buoh a balanced system could not have been framed by 
anyone^ttt the Omniscient and All-Wise God. 
Islamic State la an Ideological State 

Another characteristic of the Islamic State is that it is an 
ideological atate. It is clear from a careful consideration of the 
Qur'an and the Sunnah that the state in Islam is based 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 to administer. 
The administrators of the Islamic State must be those whose 
whole life 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 Ulam 


acquainted with its details. Islam does not reoognise any geo- 
graphical, linguistic or colour bars in this respect. It puts for- 
ward its code of guidance and the scheme of its reform before all 
men. Whoever accepts this programme, no matter to what race, 
nation or country 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 {zimmta). Specific rights and privileges have 
been accorded to them in the Islamic Law. A zimmV* 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 of this 
ideological state. The Islamio State is based on a particular 
ideology and it is the community which believes in the Islamio 
ideology that pilots it. Here again, we notioe some sort of 
resemblance between the Islamio 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 sooial principles on 
others by force, nor doeB it confiscate their properties or unleash 
a reign of terror by mass executions of the people and their 
transportation to the slave camps of 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 radioally different and diametri- 
cally opposed to the way of the false reformers who strut about 
here and there on the stage of history". 1 

L This paper was written in 1930 and in it the author has dealt with the 

theoretical aspect of the problem only. In his later articles he haa 



The Islamic Law and Constitution 





I will now try to give s> brief exposition of the composition 
and structure of the Islamio State. I have already stated that 
in Islam, God alone is the real sovereign. Keeping this cardinal 
prinoiple in mind if we consider the position of those persons 
who set out to enforce Qod's law on earth, it is but natural to 
aay 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 vioegerenoy 
in the land just as He made those before them to succeed 
(others)." (24 : 66) 

diaoused the praotioal aspects as well. In bit article on the 'Right* 
of Non-Muslims in Islamic State' (see Chapter VUI) he writes : 

''However, in regard to a parliament or a legislature of the 
modern conception, which is considerably different from Shura in its 
traditional sense, this rule could be relaxed to allow n on- Muslims to 
become its members provided that it has been fully ensured in the 
Constitution that : 

(i) It would be ultra vires of the parliament or the legislature to enact 

any law whioh is repugnant to the Qar'an and ths Suunah * 
(it) The Qur'an and the Sunnak would be the chief source of the publio 
law of the land* 

(Hi) The head of the state or the assenting authority would necessarily 
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 interests of 
minorities concerned and their participation would not damage 
the fundamental requirements of Islam 1 '. 
The non-Muslims cannot occupy key-posts— posts from where the 
ideological policy of the state can be influenced— but they can oooupy 
general administrative posts and can act in the service of the state. 
?or a detailed discussion of their position see Chapter VIII,— Editor, 

Political Theory of Mam 149 


The vera© illustrates very clearly the Islamic theory of 
state. Two fundamental points emerge from it : 

1. The first point is that Islam uses the term 'vioegerenoy' 
{kkilafat) instead of sovereignty. Since, according to Islam, 
sovereignty helongs to God alone, anyone who nolds power and 
rules in accordance with the laws of God wonld 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 viee- 
gerency and not a limited one. There is no reservation in favour 
of any family, class or race. Every believer is a Caliph of God 
in his individual capacity. By virtue of this position he is in- 
dividually responsible to God. The Holy Prophet has said : 
"Everyone of you is a ruler and everyone 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 

following points emerge from an analysis of this oonoeption of 

popular vicegerenoy : 

(a) A society in which everyone is a caliph of God and an 

equal participant in this caliphate, cannot tolerate any class 
divisions based on distinctions of birth and social position. All 
men enjoy equal status and position in such a society. The only 
criterion of superiority in this social order is personal ability and 
character. This is what has been repeatedly and explicitly 
asserted by the Holy Prophet : 

"No one is anperior to another except in point of faith 

and piety. All men we descended from Adam and Adam 

waa made of clay". 

"An Arab haa no superiority over a non-Arab nor a non- 

Arab oyer an Arab ; neither doe- a white man poase^a any 

superiority over a black man nor a bl{*?k fflw ora « »Wt« 


TKt Islamic Law and Constitution 

one, except in point of piety". 

After the conquest of Mecca, when the whole of Arabia 
came under the dominion of the Islamic State, the Holy Prophet 
addressing the member, of his own clan, who in the day* before 
Islam enjoyed the same status in Arabia as the Brahmins did in 
ancient India, said : 

"O people of Qurayish ! Allah has rooted out your 
haughtiness of the days of Ignorance and the pride of 
ancestry. 0 men, all of you are descended from Adam and 
Adam was made of day. There is no pride whatever in 
ancestry; there is no merit in an Arab as against a non-Arab 
nor in a non-Arab as against an Arab. Verily the most 
meritorious among you in the eyes of God is he who is the 
most pious". 

(b) In such a sooiety no individual or gronp of individuals 
will suffer any disability on account of birth, social status, or 
profession that may in any way impede the growth of his 
faculties or hamper the development of his personality. Every 
one would enjoy equal opportunities of progress. The way would 
be left open for him to make as much progress as possible 
according to his inborn capacity and personal merits without 
prejudice to similar rights of other people. Thus, unrestricted 
scope for personal achievement has always been the hallmark of 
Islamic sooiety. Slaves and their descendants were appointed as 
military officers and governors of provinoes, and noblemen 
belonging to the highest families did not feel ashamed to serve 
under them. Cobblers who used to stitch and mend shoes rose 
in the social scale and became leaders of highest order (imams) : 
Weavers and olothsellers became judges, muftis and jurists and 
to this day they are reckoned as the heroes of Islam. The Holy 
Prophet has said : 

"Listen and obey even if a negro is appointed as a ruler 

over you". ' . 

(c) There is no room in such a sooiety for the dictatorship of 
any person or group of persons sinoe everyone is a oaliph of God 
herein. No person or group of persons is entitled to become an 

Political Theory of Islam 


Absolute ruler by depriving the rank and file of their inherent 
right of 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. He 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 of an irresponsible absolute ruler, 
that is to say, a dictator he assumes the oharaeter of a usurper 
rather than a caliph, because dictatorship is the negation of 
popular vioegerenoy. No donbt the Islamic State is an all- 
embracing state and comprises within its sphere all departments 
of life, but this all-inolusiveness and universality are based upon 
the universality of Divine Law which an Islamic ruler has to 
observe and enforoe. 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 foroe people to 
follow or not to follow a particular profession ; to learn or not 
to learn a special art ; to use or not to use a certain script ; to 
wear or not to wear a certain dress and to educate or 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 or 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 of 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 


Th* Islamic Late and Constitution 

them is the repository of the caliphate. God has mad* this 
caliphate conditional, not upon any particular standard of 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 of the body politic. 
The relations between the individual and the society have been 
regulated in such a manner that neither the personality of 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 hsppens in the Western demo, 
oraoiea. In Islam, the purpose of an individual's life is the same 
as that of the life of the community, namely, the execution and 
enforcement of Divine Law and the acquisition of God's plea- 
sure. Moreover, Islam has, after safeguarding the right* of 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 ia 
afforded the fullest opportunity to develop his potentialities and 
is thus enabled to employ his developed faculties in the service 
of the community at large. 

These are, briefly, the basic principles and essential features 
of the Islamic political theory. 1 


1. To avoid repetition, the Editor aaa deleted those portions of the eesay 
relate* to t^e problems, di#ou*sed in detail in Chapter 7— Mttor, 

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 eoncepts of ethics, politics, economics 
and sociology. In the following artioles an attempt 
has been mad© to present some of the basic political 
concepts of the Qur'an. 


Maulana Maadudi has written a Tafsir (Common, 
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 tho 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 
oonoepta. The Editor has abided 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. 


mHE chief ohracteristic of Islamic ideology ia 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 water fills the oceans. The political concepts of the 
Qur'an spring from this unique approach to life and its concept 
of man's place an the universe. That is why it is necessary that 
before we proceed to discuss the major political oonoepts of the 
Qur'an we ought to have a clear idea of the Quranic oonoept 
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 that 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$ vioegerency on the earth, 
God made it explicitly clear to him that H« alone is the Lord, 

Political Concepts of the Qur'an 1 55 

the Ruler and the Deify. As such the entire Universe and all 
the orCatures in it (including man) must submit to Him alone. 
Man must not think himself totally free and should know that 
this earth is not his permanent abode He has been made U> 
Hve upon it only during the period of his probation and in du* 
course he will retnrn unto his Lord, to be judged acoording to 
the way he has utilised the period of probation. The only 
right course for man is to acknowledge God as the only Lord, 
the Sustainer and the Deity and to follow His 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 objeotivo 
should 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) he will succeed 
iff this world and in the next— in this world he will have a lifo 
of peace and contentment and in the hereafter he will qualify 
himself for the heaven of eternal bliss, aUJannah. And if he 
chooses to follow the other course, i.e., that of Godlessness 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— that 
abode of pain and misery which is called Hell. 

3. After administering this warning God sent man upon 
the eaith and provided the very first human beings {Adam and 
Eve) with His Guidance in accordance with which men were to 
lire on the earth. Thus man> 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 
knowledge from God Himself. He had knowledge of the reality 
and was given the code of life by following which he could have 
a life of bliss. This code of life was Islam, the attitude of com- 
plete submission to Allah , the Creator of man and the whole uni- 
verse. It was this religion whicji Adam, the first man, passed 
down to posterity. But later generations gradually drifted away 
from the right path and adopted different, erroneous ways of 

156 The Manic Law and Constitution 

life. Out of negligence they lost their original religion or out 
of mischief they adulterated and perverted it. Ther associated 
with God innumerable human beings, non-human objects and 
imaginary beings as deities and indulged in shirt (polytheism) 
of the worst type. They mixed op the pure teaohings 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 collective morality, the Shart'ah, 
and deprived the human life of peace and tranquillity. 

4. Although men departed from the path of truth, disre- 
garded and perverted the Shari'ak 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 rtot 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 (Been) ».«., the way whioh was revealed to man 
on the first day of his existence. All of them followed the same 
guidanoe : 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 tbe 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 aooepted it, gradually 

Political Concept* of the Qur'an 15? 


drifted astray and after a lapse of time lost the guidance or 
distorted it with innovations and perversions. P * 

6, At last God raised Prophet Muhammad (peaoe be on 
him) in the land of Arabia and assigned to him the completion 
of the mission for which earlier prophets were ordained. The 
message of Muhammad (peaoe be on him) was for entire man- 
kind. He presented anew the teachings of Islam in their pris- 
tine form and provided humanity onoe again with the Divine 
Guidance. He organised all those who accepted his message 
into one ummah which was charged with reconstructing its own 
life in accordance with the teaohings 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 HoJy Qur'an whioh constitutes the only right oode of con- 
duct for the mankind.^ 
Mamie Concept of Life 

These are the basio postulates which, on the one hand, 
reveal God's design for providing guidance 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 : 

"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 
which is binding on him in the Torah and the Injeel and the 
Qur'an. And who is more faithful unto his covenant than 
Allah ? Rejoice then in youf in bargain that ye have made, 
for that is the supreme triumph". (9 ; 111) 
In the above verse the nature of the relationship which 
comes into existence between man and God because of Iman 

1, Abul A'la Maududi, Tafhim al Qur*an t Vol. l t Lahore, 1051, pp. f'M'l. 

158 The Islamic Law and Constitution 


(the act of reposing faith in Allah) has been called a 'bargain*. 
Tina means that Iman in Allah is not a mere metaphysical 
concept ; it is in the nature of a contract by which man barters 
his life and his belongings with Allah in exchange for the pro- 
mise 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 Paradise in the life after death. This concept of 
bargain has important implications and we should therefore 
first of all clearly understand its naturo and meaning. 


The fact of the nature is that each and everything in this 
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 
doos not arise at all. God is the real owner, there is no question 
of His purchasing what is already His. Man 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 his 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 respeot, he is free to acknowledge 
or not to acknowledge the reality of things. Although this 
freedom of will and choioe that man possesses, does not auto- 
matically make him the real 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 HU overlordship on his own life 
and belongings or refuse to acknowledge it and to arrogate 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, unfettered by any 
higher command. This is how and where the question of 

Political Concept* of the Qur'an 169 

bargain cornea iu. Thia bargain does not mean that God is 
purchasing something whioh belongs to man. Its real nature 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 Hie whioh 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 voluntarily renounces the freedom to 
refuse God's supremacy and instead acknowledges His overlord- 
ship, so to say, 'sells' his 'autonomy' (which too is a gift from 
God and not man's ovn) 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 Motrin (believer) and /man (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 attempt to avoid or abrogate this 
contract is technically known as Kufr. 

Such is the nature of the oontraot. Now let us briefly study 

its various stipulations. 

1, God has put man to serious trial on two counts :— 
(a) He has left man free, but even after giving him that 
freedom He wishes to see whether or not man realises 

his true position ; whether he remains honest and 
steadfast and maintains loyalty and allegiance to the 
Lord or loses his head and revolts against his own 
Creator ; whether he behaves like a gentleman or 
tramples underfoot all values of decency and starts 
playing such fantastic tricks as make the angels weep. 1 

"I. The translators here tried tp borrow the words of Shakes pear e whu 
haa beautifully protrayed this attitude of man m the folio wiugeoupJct- 

Man, proud mtvrw 

160 ^Tht Islamic Late and Constitution 

(b) He wants to see whether man is prepared to hare such 
confidence in God aa to offer hie 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 hia autonomy and all the charms which it haa, in 
exchange for a promise about the future, 

2. It is an accepted principle of Islamic law that Iman con- 
sists in adherence to a certain set of doctrines and whosoever 
reposes faith in doctrines beoomes a Mo'min. No one has a 
rigiit to denounce such a man as non-believer or drive him out 
of the fold of the* ummah, save when there is explicit proof of 
falsity or of renunciation of the belief. This is the legal aspect 
of the problem. But in the eyes of the Lord, only that ImSn 
is valuable which consists in complete surrender of one's will 
and choioe to the will of Allah. It is that state of thought and 
action wherein man submits himself fully to Allah, renouncing 
all olaim to his own supremacy. It is something that comes 
from the heart. It is an attitude of the mind and prepares man 
for a certain course of action. If a man recites Katima, owns 
the contract and even performs his prayers and other acts of 
worship, but in his heart he regards himself as the owner and 
the dispenser of his physical and mental powers and of 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 violin, 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 of Im&n. 
If 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 prohibited, it clearly shows that either he has not 
pledged his life and property to Allah or even after pledging 
them to Him, he falsifies the pledge by his conduct. 

3. This nature of Iman makes the Islamio way of life, 
distinct from, nay, the very opposite of the non-Islamic way of 

Plays -such fantastic tricks before heaven. 

Aa make the angels weep. — Shakespeare. Measure for Meanvre 
(I»ab«!U), Act II, So. II. 

Political Concepts of the Qur'an 


life. A Muslim who has real faith in Allah, makes every aspect 
of hia life subservient to the Will of Allah. His entire life is 
one of obedience and surrender and he never behaves in an 
arrogant or an autonomous way, save in a moment of 
forgetfulness. And after such a lapse as soon as he becomes 
conscious of it he again readdresses himself 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 ideology, its legal system and its 
international policy must all be in tone with the Code of 
Guidanoe revealed by Allah and must, in no way, contravene it. 
And if ever through errror any contravention is committed, it 
must on realising this, correct this immediately and return 
forthwith to the state of subservience to the Law of God. It 
is the way of the non-believers to feel free from God's 
Guidance and to behave as one's own master. Whoever adopts 
such a policy is, even though he may bear a name silmilar to 
that of a Muslim, treading the Satanic path and following the 

way of the non-believers. 

4. The Will of God, which it is obligatory upon man to 
follow, is the one which God Himself has revealed for man's 
guidance. The Will of God is not to be determined by man 
himself. God has Himself dearly enunciated it and there is no 
ambiguity about it. Therefore if a persen 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 Sunnah of the Prophet (peace be on him), 

A little reflection will show that these stipulations are 
logically implicit in the bargain and it is also clear from the 
above discussion why the payment of the 'price* has been post- 
poned to the life after death. Paradise is not the reward for the 
mere profession of the bargain, it is^the reward for the faithful 
execution of the contract. Unless the oontraot is fully executed 
and the actual life-behaviour of the 'vendor' complies with the 

terms of the contract he does not become entitled to the reward. 
Thus the 'sale' is concluded only a>t the last moment of vendor's 


The Islamic Law and Constitution 

life and as such it is natural that the roward should be given to 
him in the life -hereafter. 

There is another significant point which emerges for the 
study of the verse quoted above with reference to its context. 
In the verses preceding it. reference has been made to the people 
who professed Irntln and promised 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 
played open tricks of hypocrisy and refused to sacrifice their 
lives and riches in the Cause of Allah. The Qur'an, after 
exposing those poople and criticising their insincerity and 
hypocria>, makos it clear that Iman is a contract, a form of 
pledge, between man and God. It does not consist in a mere 
profession of belief in Allah. It is an acknowledgement of the 
fact that Allah alone is our Lord, Sovereign and Ruler and 
that everything that man has, including his own life, belongs 
to Him and must be used in accordance with His directives. 
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 dictates in all fields of activity. They stake their 
4) in obedience to the Commands of the Lord, and do not 
deviate even an inch from the path of loyalty to God. Suoh 
alone are the true believers. 

Some people object that the promise referred to in the verse 
does not ooour in Injeel (Gospel) or Taural (Torah). So far as 
Injeel is concerned we find the following verses in it : 

"Blessed are they which arerpersecutedfor righteousness- 
sake : for their's is the Kingdom of heaven".! 

"Ho that findeth his life shall lose it ; and he that loseth 
his life for my sake shall find it f \» 

"And every one that hath^ forsaken houses, or brethren, 
or sisters, or father, or mother, or wife, or children, or 

1. New TtfiUemtnt, St. Mttttlisw. ■*■ : le. 

2. lhid\ St. M*tthrtw, If : 3£>. 



lands, for my name's sake, shall receive an hundredfold, 
and shall inherit everlasting life". 1 

This is what we find in the Injeel as it exists at present and 
the above verses convey more or loss the very same idea as is 
given by the verses quoted from the Qur'an. As to the Taurat 
(the first five books of the Bible) it is correct that it does not 
contain a clear statement to this effect. But that is not all 
important, for the Taurat as it is today, is devoid of even clear 
concept of life after death, of the Day of Judgment and of the 
Reward and Punishment in the next world, although those have 
always been an insei>arablc part of the religion of G"d. It is in 
no way correct to think that the roal Taurat too was devoid of 
these concepts. The fact is that Jews beoame 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 Taurat they reduced the 
concept of Paradise and reward in tho hereafter to 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, 0 Israel : The Lord our God is one Lord ; and 
thou shalt love the Lord thy God with all thine heart, and 
with all thy soul and with all thy might". 2 

"Is not He thy Father that bath bought thee 1 Hath 
He not made thee and established thee" ? 3 
But the reward for this devotion to the Lord, described in 
the Taurat, is tha^ you shall become the owners of the land 
wherein milk and honey flow i.e., Palestine 1 The reasen for this 
is thit firstly > the Taurat available to us is incomplete and many 
of its parts have been lost and destroyed and secondly, it does 
not consist of the unadulterated teachings of God ; instead 
there have been intermingled in it the teaohings of God and the 
national traditions, racial prejudices, myths, aspirations, 
„ interpretations etc., of the Jewish people. That is why it is 

1. Ntwttttament, St. Matthew, IS : 28. 
%. Old Tttlament, Deuteronomy, 6 : 4-S. 
3. Ibid^ Deuteronomy, 32 : fl - 

164 . Th e Islamic Law and Constitution 

not generally possible to distinguish the word of God from the 
word of man. In such a situation the absence of a clear 
statement in the present Taurat does not affect the claim of the 
Qur'an as to God's promise to inan.i 



The Islamic concept of lifo aa envisaged in the Qur'an is that 
man should devote his entire life to the causes of Allah, Whose 
injunctions should be followed in all the fields 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 translated 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 

"The adulterer and the adulteress, scourge ye eaoh one 
of them (with) a hundred stripes. And let not pity for the 
twain withhold you from obedience to the din of {i.e., way 

of life prescribed by) Allah, if ye believe in Allah and the 
Last Bay". (24 : 2) 

A very basic point emerges from this verse. Here the 
criminal law of Islam has been called Din- Allah t\e„ the religion 
of God. It means that religion does not merely mean prayers, 
and fasting and Hajj and Zakat, it also includes the law of the 
land and the 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 the Divine 
Lawand make the S&ari'ah the law of the land. If the latter is 
not established, then even if the institutions of Salal etc., is in 
force, it will not amount to the estabishment of din. It would 

I. Tafhitn ahQur'an, Vol. 11, pp. 

Political Concepts of the Qur'an 165 

only he a partial enforcement of it and not a total one. And if 
instead of God-given Jaws some other laws are adopted, it means 
nothing short of rejection of the din as such. 1 

Another verse of the Qur'an which throws light on this 

problem is as follows : — 

"Say : O my Lord I let my entry be by the Gate of 

Truth and Honour ; and likewise my exit be by tho Gate of 

Truth and Honour ; And grant me from Thy presence a 

ruling authority to add me". (17 : SO) 

That ib, either grant power to me or grant me the assistance 
of any ruling authority, or state, so that. I may with the force 
and the resources of the coercive power of the State establish 
virtue, eradicate evil, put an end to corruption, vulgarity and 
sin, set at right disruption which has spread throughout social 
life and administer 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 Jarir and Ibn Kathir. 
This view is further supported by the hadith : "Allah brings to 
an end through the State what He does not eradicate through 
the Qur'an". 

This shows that reforms which Islam wants to bring about 
cannot bo carried out merely by sermons. Political power is 
essential for their achievement. And as the above prayer has 
been taught by none other than Allah to His own prophet, it also 
shows that the struggle for obtaining control over tho organs of 
the State, when motivated by the urge to establish tho din and 
the Islamic Shari'ali and to onforoe the iBlamio injunctions, is 
not only permissible bu* is positively desirable and aa suoh 
obligatory. Those who regard such an endeavour as something 
mean and this 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, Jhat 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 

1. Mftududi, TafMm al-Qvr'nn, Vol, III, Suaah al-Xur, p. 343. 


The Islamic Law an* Constitution 

piety and mast not be confused with power thintineM.i 



The next and the most fundamental and most revolutionary 
political concept of the Qur'an is the sovereignty of God over 
the entire life of man. So far as the concept of the sovereignty is accepted by most 
of the people but what the Qur'an demands is that they must 
also acknowledge Him as the Sovereign in his moral, sooial, 
cultural, economic and political sphere of life. 

Students of political soience know how vexed the issue of 
sovereignty has become in the present age. It is perhaps the 
most-disputed issue of politioal soienca and a good many 
thinkers have even pleaded that the problem is so confusing 
that it would be better if the political theorists discard it 
altogether. Not only are there thooretioal and logical anomalies 
but atao the development of internationaliim seems to have 
more or less rendered the concept of national sovereignty 
obsolete. The root cause of all 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 at. Keeping 
in view the attributes of the sovereign, no human being or 
human organisation can really claim title to it. And when 
sovereignty is forced upon human beings, it results in confusion 
on all hands. 

The Quranic concept of sovereignty is simple. God is 
the Creator of the Universe. He Is Its real Sustainer 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. 

J 5? 4b0Va View of ■ 0T * f * i S | rty « presented in the 

1. Ta/him «*-$«r'an, Vol. IT. p. 6S8. * 

Political Concepts of the Qur'an 


following verses of the Holy Qnr'an : 

(a) Prophet Joseph (God's blessing be on him), on announc- 
ing the mission entrusted to him, declared : 

"Verily I hare abandoned the creed on a people who 
believe not in Allah and who are disbelievers in the Here- 
after. And I havo followed the religion of my fathers, 
Abraham and Isaac and Jacob. It never was for us to 
attribute aught as partner to Allah. This is the bounty of 
Allah unto us and unto mankind ; but most give not thanks. 
0 my fellow prisoners 1 arc diverse lords better, or Allah, 
" the Ono, the Subdure V Those whom ye worship beside 
Him are but namos which yo have named, ye and your 
fathers. Allah harh revealed no sanction for them. The 
Authority reats with Allah alone, Who hath Commanded 
you that yo obey none aavo Him. This is the right religion, 
but most men know not". (12 v : 37 — 40) 

This is one of the best and most eloquont arguments 
for Tawhrctl and contains mnny important points for con- 
sideration. 2 

(1) This, perhaps, is f lu* first public speech of Joseph as a 
prophet. The earlier versos- 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 iind that he has begun his practical work 
as a prophet. It also seems to bo the first occasion for him in 
Egypt to reveal his real identity, i.e., being the kin of Abraham 
and Isaac and Jacob. I t 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 Tawheed whose 

1. The original word ia al-Zahhar, whioh according to Lano'b 'Arabia- 
English Lexicon' means : Tho subduer of his oreAfcure* but Hie so* 
vereign authority and power, and the Disposer of them as he please th, 
with and against their will*'. We have rendered this word as 'the 

2. This discussion has been abridged. Only points having a direct bear- 
ing upon the political concept* have "been dealt with, the others being 
left out,— Editor. 


Tht Atomic Law and Conttttuiian 

loaders had been Abraham and Isaac and Jacob— mentioning 
only those whom the pooplo must have known because of 
geographical and historical proximity. 

(2) It shows that the Prophet started his work not by go- 
ing into petty trivialities, but by presenting the basic postulates 
of Islam. In his very first discourse he clearly expounded the 
differences between Tawhttd (monotheism) and Shirk (polythe- 
ism) and called the people to the path of Tavshtti in a befitting 
manner. The message was so clear, so truthful and so well- 
presented that it must have gone straight to the heart of his 
listners. As the listeners were slaves, they oould 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 of shirk in all its forms, apd acknow- 
ledgement of the overlordship of one God in all fields of 
existence. Joseph (peace be on him) tells his listeners that gods 
they worship are mere names and do not possess any attribute 
of real lordship or sovereignty. He stressed that when they too 
acknowledged that the real sovereign of entire creation is Allah 
Who is the Creator and Sustaincr of the universe, why then 
avoid its 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 exclusively His. And he has onjoined 
that His Command should reign supreme. Man is to worship 
none except Him, to obey none except Him, and to follow none 
except Him. He is the real sovereign and His Law must prevail. 1 

(6) ;The concept of sovereignty is further explained in the 
following verse : 

"Verily, your Lord is Allah Who created the heavens 
and the earth in six Days, then mounted He the Throne. 
He covereth the night wi& the day, which is in haste to 

1. Ta/him al-Qur'an, Vol, II, pp. 401-404. 

Political Conctfia of tht Qw>an 


follow it, and hath made the sun And the moon and the 
stars subservient by His Command. Verily His is all creation 
and His ia the Command (the Law). Blessed be Allah, the 
Lord of the Worlds." (7 : 54) 

It is difficult to precisely understand what is meant by 
iatawa 'alal 'arsh (Mounted He the Throne). It is possible that 
God appointed a oortain place as the centre of this limitless 
cosmos and made it the centre— and the control -house of the 
universe. And it is this place, from where the universe is being 
governed, which haa been called 'arsh (the Throne). It is also 
possible that the word has been used as the symbol of authority 
and suzerainty and 'to mount the Throne' implies that after 
creating the universe God took hold of the reins of power and 
became its Ruler and King. Whatever be the actual nature of 
the happening;, the real import and significance of 'mounting of 
the Throne* ia that God is not the mere Creator of the Universe, 
He is also its Ruler and Governor. This is a very important 
concept 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.! 
ThiB concept of retirement is fallacious. The Creator has not 
fevered His connection with the universe after having oreated 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 of dust to the gigantic nebulae every- 
thing is subservient to His Will and obeys His Commands. 
The destiny of this entire creation is dependent upon Him. 
Thus the Qur'an demolishes the very foundation* of shirk 
(polytheism), atheism and self-worship. If a man does not 

1. The Hindu concept ia that God retired after creating the XJnivorse. 
According tb Encyclopedia Britannica, the Hindu view i« that He 
"having performed his legitimate part in the mundane evolution by His 
original creation of the Universes, ha* retired into the background" 
(Vol. XI, page 577), The philosophy of modern deism is also baaon 
oo a similar misconception— Editor* 


Tht Ulamic Law and Constitution 

regard Allah as the Creator and the Governor and thinks that 
God has severed His connection with the universe and now has 
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. Tho only reasonable course for 
man is to acknowledge the Creator and the Lord as the Doity 
and the objeot of worship in the religious sense of the word and 
as the only Sovereign, Ruler and Kin)? in the political and 

social meaning of it. 

The point is farther clarified by tho expression lahu aU 

Kkalq wa al-Amr (Verily His is the Creation and His is the 
Command). This dearly 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 ohange accident- 
ally, but it is the Will of God which regulates all this : He can 
make the change anywhere He likeB. 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 His being the 
Creator that His Will and His La& should reign supreme. 1 

(c) Another verse of the Qur'an also throws light on this 
concept : 

1. Tafhtm al-Qur*an t Vol. II, pp. 36-37, 

Political Concepts of the Qur'an M 

"He unto Whom belongeth the sovereignty of the 
heavens and the earth. He hath taken unto Himself no 
son nor hath He any partner in the Sovereignty. He hath 
created everything and hath meted out for it a measure". 

„ (25:2) 
Here the word employed is MuUc which is used in Arabio to 
convey the meaning of supremaoy, sovereignty and kingship. 
According to this verse Allah alone is the Governor. King and 
Ruler of the entire universe and no one else shares even a shred 
of His authority. He is the absolute Sovereign. This clearly 
bring, home to one the truth that He alone can be the Deity, 
because one offer, his worships only to one who commands 
power and authority, can bless or reprove him, and change his 
destiny favourably or adversely, tfot eTM a foo , wouM bfl 

bef ° re ° ne Wh0m he knows t0 be dev °id ^ all 
power and authority. If men would only realise that all power 

rests with Allah, no one would be prepared to bow before anyone 

else or to obey and follow others or solicit their help and 

guidance. His authority alone would be acknowledged and His 
Co mmanda ftlone wou , d be oboye(J wd nQ 8uoh 

followed as involves His disobedienoo 

Island S n °T Ia Jf thi8 aUth ° rity ° f AMh ,8 the kwnel <* th. 
isiamio oonoept of Sovereignty.' 

the it ? ? pomt ia diaputo between the P r °P heta of A »«» «a 

loZ 1 7 rs hM 8,Wftya b * 9a that fch8 p r °p heta de ™^ 

absolute obedience to Allah and complete acknowledgment of 
His sovereignty in the social, political, cultural and all other 

eldet' .f U + \ th086 iD P ° Ver Wheth6r th6y Vera the <* the 

fo ego the,, authority and aotnowIedg6 thatofA „. h Tfle 
following verse of the Qur'an illustrates this position • 

"And Moses said : My Lord is best aware of him who 
bnngeth guidance from His presence, and whose will be the 
aequo] of the Home (of bliss). Lo I wrong-doers will not be 

1. Ta/him <ti»Qur>an, pp.433. 


The Islamic Law and Constitution 

"And Pharaoh said : O chiefs ! I know not that ye 
have a god other than me. So kindle for me a fire, O 
Ham an to bake the mud, and set up for me a lofty tower in 
order that I may search the God of Moses and lo 1 I deem 
him of the liars." (28 : 37, 88) 


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 oould claim that. The 
Pharaoh gsould not e/en mean that he was the only object of 
worship, for the Egyptians worshipped a host ©f deities. In fact 
the Pharaoh himself worshipped many, a god and owned hia 
exalted position to his being regarded as the descendant of the 

This being the position, the Pharaoh's olaim to godhood 
could only mean that ke wanted to be obeyed as the King and 
the Sovereign of the people of Egypt. And from this viewpoint 
hia position was not very dissimilar to that of the states which 
claim legal and politioal sovereignty ior 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 olaim is the same, and there is no difference bet- 
ween a Pharaoh who called himself ilah and the modern seoular 
states whioh regard themselves sovereign in this respect. 1 

According to Islam sovereignty belongs to Allah alone and 

He is the only Law- giver. 

(e) It is as a logical consequence of this concept of sovere- 
ignty, that the politioal organisation of the Islamic State 
has been called Khilafat (vicegerency). Man is God's vicegerent 
on earth and as a vicegerent his nyssion in life is to carry out 
and establish the command of the Sovereign. According to the 
Qur'an : 

1. Tafhim al-Qur an, Vol. Ill, pp. 637^8, 

Political Concepts of the Qur'an 


"Thy Lord said unto the angels : Lo ! I am about to 
place a viceroy on the earth". (2 : 30) 

Khalifa means one who enjoya certain rights and powers, 
not in his own right but aa representative and viceroy of 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 aots 
in oontravention of the directives of his Sovereign, then his 
behaviour is not in keeping with his real position and amounts 
to rebellion. 

The purpose of the relevant injunctions of the Qur'an is 
that mau should realise his real status of victgerency, and as 
auoh, his duty to obey his Lord, follow His instructions and 
establish His Will on Earth. If man does the contrary, he will 
fall a prey to Satan— the eternal foe of man and will go astray. 1 

This vioegerency is a popular vioegerenoy. Basioally 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 aa the Sovereign, only those who acknowledge 
this (».«., Muslims), to whatever class or clan they may belong, 
have the right to exercise it. That is why in an Islamic State, 
vioegerenoy is confioed 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 vioegerenoy of man that the 
latter shoald 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 succeed". (16 : 116) 
This verse clearly states that the authority to declare one 
thing to be lawful and another to be unlawful rests with Allah 

_.- » 

1. TvJhmTal-QuWan, Vol. I, p. « 
i\ Al QuSan. 24 : 55. 

174 The Islamic Law and Constitution 

alone and no one else enjoys even a fragment of i t. This mean* 
that the authority to legislate veBte in Him alone. Whoever 
else tries to declare or adjudge about the lawfulness or otherwise 
of things of his own authority is a transgressor, unless he does 
bo on the authority of and within the limits prescribed by God. 

Unabashed legislation— the act of deolaring, without any 
let or hindrance, certain things lawful and others unlawful- 
has been described as 'inventing lies against Allah'. It has 
been called so because this can be the result of one of the 
following two things only : Either the person doing so alleges 
that what he is deolaring lawful or unlawful without showing 
any basis therefor in the .Book of God, has a matter of fact, 
been so ordained by God Himself or that God has abdicated 
His authority in his favour and left him free to legislate as and 
what he likes. Whichever of these two positions he claims for 
himself is a lie pure and simple and a false imputation to uodA 
Not only that, at another place the Qur'an says : 

"Those who do not make decisions in accordance with 
that which Allah has revealed, verily they are the disbe- 
lievers the unjust the transgressors". (5 : 44, 46, 47) 

Here God warns those who do not administer their affairs 
in accordance with His revealed law and do not enforce it that 
they are (a) disbelievers (6) unjust and (c) transgressors. This 
means that one who disobeys the law of the Lord is guilty of 
three crime* Kufr, Zulm and Fisq. Firstly this disobeyal 
means that he is flouting the authority of Allah and is refusing 
to accept His Command-which is Kufr. Secondly it amounts 
to perpetration of injustice, for the Command of the Lord is 
justice, pure and oomplete and any deviation from it results in 
nothing but tyranny and injustioe, or in the words of Qur'an in 
Zulm. Lastly, man being the subject of God, by disobeying 
the Command of the Lord, he steps out of the ambit of loyalty 
and obedienoe to Him, and this act of his is an act of 
transgression. And that is Fisq. Thus whenever a man 

1. Tofltim at-(iur'an. Vol. I, p. 678. 

Political Concepts of the Qur'an 176 

deviates from the Shari'ah he commits all the three crimes. It 
is impossible that one may disobey a directive of All?.h and not 
be guilty of these three crimes. The extent of guilt will, of 
course, depend upon the extent of the deviation and disobey*!. 
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 his 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 hi* 
Iman definitely gets mixed up with Kujr and Zulm and Pisq 
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 Iman too gets mixed up with Kufr and Zulm and Fisq 
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 courae for a Muslim is to follow 
the law of the Lord and establish it over his entire life and in 
that of the sooiety. 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 : 

,c 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 I 
Allah is my Lord and your Lord, so worship Him. That 
is the straight path". (3 : 60-51) 

This verse clearly lays down that like all the prophets of 
God 1 the message of Jesus was also the same and comprised 
three basic points, viz. * 

I. Tajhim atrQurtn, Vol. I, pp, 47&>7tf. 



The Islamic Law and Constitution 

(i) Sovereignty belongs to Allah alone— it is He who is to 
be worshipped and it is His Guidance on which the 
entire structure of morality, sooiety and culture is to 
be reared. 

(ii) The Prophet is to be obeyed as the representative and 
the messenger of God, the Supreme Ruler. 

(Hi) The law which is to decide the legality and correctness 
or otherwise {halal 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 of Hoses, Jesus and Muhammad (peace be 
upon them all) was one and the same. All of them stood for 
the same ideology. People who have ascribed different missions 
to different prophets are utterly wrong and make a baseless 
allegation. Whosoever oame as the Messenger of the Lord, 
asked the people to deaist from His disobeyal, from associating 
partners with Him, from deviating from His guidance, and 
called them to a life of unconditional obedience, 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 of 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 that : 

"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 of human world— the field in which man has been 

• * 

1 - 

1. Al-Qw"*n, 26 : 108, 128, 144, ICS, 17». 
%, Nmo rt$tammt t St. Matthew, 4:10. 

Political Concept* of the Qur'an 


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

"Thy Kingdom oome. Thy Will be done in earth, ae it in 
in heaven". 1 

The second principle that Prophet Jeans 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 an 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 
of Jerusalem. And when he entered Jerusalem for the last time, 
his diBoiples were saying : "Bleseeth be the King that oometh 
tn the name of the lord" I On that some of the Pharisees were 
enraged and they said to Jesus to "rebuke thy disciples". Jesus 
said : "I tell you that, if these should hold their peaoe, the 
stones would immediately ory out" * On another occasion Jesus 

"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 1 *." 

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 8t. Matthew : 

'•Then came to Jesus scribes and Pharisees, which 
were of Jerusalem, saying. Why do thy disoiplea transgress 
the tradition of the elders t for they wash not their hands 

K N**> Testam*»t, St. Matthew, 6 : 10. 
2. I*d.. St. I«ke, 1ft s 3*-4ft. 
& tbid., St. Matthew, 11 : 28-30. 


The Islamic Law and Constitution 

when thoy 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 Esauas prophesy of yon saying : 

"This people draweth nigh unto me 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 

Doctrine the commandments of men". 1 
There is a similar passage in St. Mark 2 

All these references go 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.* 



The Qur'anic concept of sovereignty is very dear and un- 
ambiguous. It automatically follows from the ooncept that the 
centre of loyalties, in the state founded on this concept, can 
only be Allah and under His sanction, His Prophet. This 
principle is further elucidated by the Qur'an in the following 
verse : 

"0 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 of Islam and comprises the 
first principles of an Islamic constitution. It lays down the 
following fundamental and unalterable principles : 

\. Ntw Tf lament. St. Matthew, 16 : 

% Ibid., St. Mark, 7 : 5-13. * 

3. Tafhim al-Quran, Vol. T, pp. 254^56. 

Political Ooncepts of the Qur*an 


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 of God, His <abd (Slave). 
All other positions are just secondary. The centre of loyalty 
and obedience for a Muslim, in his individual as well as collective 
life, is God alone. All other loyalties must be subject to and 
totally within the sanction of God. None of them should, even 
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 words : 

"There is no (permission for) obedience to the creature 
if it involves disobedience 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 right ; it is in faot, the practical manifes- 
tation of obedience to God. The Prophet is obeyed because 
he is the only authentio 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 unauthentic 
and therefore, untrustworthy. Thus tho disobeyal of the Prophet 
is tantamount to disobeyal 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 1 obedience the Islamic 
Order of life are the ulul-amr, i.e., the men in authority, the 
government. Bat obedience to nhthamr comes only next to 
obedience to Gdd and 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. 

t. Cf. "Whoso obeys the Messenger, obeys Allah"- {Al*Qur'aH t i i 80), 


The Islamic Law and Constitution 

Ulul-amr is a term of wide connotation. It includes all 
those leaders of the Muslim society who control and administer 
its affairs, may they be leaders of thought or literature, religions 
divines, political leaders, administrators, judges, commanders or 
ohiefe of social, cultural, tribal, municipal or local organisations, 
Thus whoever be in charge of any facet of the affairs of the 
Muslims, deserves to be obeyed and followed in his own sphere. 
It is not permitted that one should, by unnecessarily raising 
issues with them and creating atmosphere of 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 

{«) 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 Sharx'ah. 

The Holy Prophet (peace be upon him) has expressed and 
elucidated this prinoiple in many of his sayings. For instance : 

(a) "A Muslim must listen to and obey the ruler whether 
he approve? of what is ordered or abhors it, provided 
he is not ordered to sin. In that case, he should neither 
listen nor obey". 1 

(6) "There is no obedience in sin. It is only in virtue". 2 

(c) "You will be governed by people some of whose acts 
and commands would be virtuous and some others 
sinful. Then whoever expresses his open disapproval 
over the munkarat (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 atao 
' save his skin ; but whosoever approves of them and 
follows them would be held accountable for them". 
The Companions asked ; "When the days of suoh rulers 

1. Bukhari, AUSakik. 

Political Concepts of Ike Qur'an I 81 

should we not wage war against them V The 

Prophet Baid : "No ! Not as long as they offer saint".* 
According to this haditk the symbol of obedience to God and 
to Hin Prophet is salat. If the ulvl-amr discard it also, then 
they step out of the basic loyalty to God and His Prophet. 
And then it becomes permissible to stride to remove them. 

IS) The Holy Prophet said : 

"Your worst rulers are those whom you hate and who 
hate you and those whom you curse and who ourse 
you". Asked the Companions : "O, the Prophet of 
Qod 1 If such is the situation, then should we not rise 
in revolt against them 1" Replied the Holy Prophet : 
•«No I Not as long as they establish prayer among 

you". 2 

This hadith further confirms the one mentioned m {c) above. 
The first hadith might be construed as meaning that even if the 
rulers offer prayer in private, they retain the right to exact 
loyalty But the latter hadith clearly enunciates that what is 
required is establishment of the institution of salat in the 
collective life of the Muslims. In other words, not only they 
should themselves offer pravers, but should also utilise the 
power of the State to establish the institution of salat in the 
community. If the State does this, it retains its Islamic 
oharaoter. But if even this much is not there, it would mean 
that the State is not prepared to fulfil even the first essential 
requirement of Islam. In such a J case it would become 
permissible for the Muslims to strive to change the order of 
things. The point has been further emphasised by the Holy 

Prophet in the following hadith : 

(«) "We shall not dispute and strive against the rulers save 
when we see open Kufr in their affairs—K«/r in the 
presence of which wo will have nothing to save our 
face before the Lord. 3 

T. "Muslim, AUSahih. * 
Z. Ibid, 

3, Bukhai'i, Al-Sahih, also Muslim. 

182 The Islam ic Law and Constitution 

The fourth principle which too baa been clearly and 
*m*tj expounded in the above verse of the Qur'an is that in 
an Islamic State the Command of God and the Sunnah of the 
Prophet are the final anthority. Whenever there is a dispute 
among the people or between the people and the rulers, it shall 
be referred to the Book of Allah and the Sunnah of the Prophet 
•ad whatever Judgment follows therefrom should be aoeepted 
*a binding on all. Thus the fundamental and distinctive 
characteristic of the Islamic State, which distinguishes it from a 
non.Ielamic State, is that it accepts God and Bis Prophet as the 
final authorities. If this be lacking the State is not Islamic. 

Some people ask how a modern state can look to the 
Qur'an and the Sunnah for the solution of all its problems. 
There are Jots of problems concerning Municipalities, Rail- 
ways, Posts and Telegraphs eto., about which the Qur'an and 
the Sunnah have nothing to say. What will the State do in 
respect of these 1 

The objection is misconceived. The factor which dis- 
tinguishes a Muslim from a non-Muslim is the difference of their 
approaoh to life. The non-Muslims, even those who believe in 
God and in Prophethood, have ceased to look to His guidance 
in regulating their affairs. They regard themselves free to chalk 
on t their own solutions for their problems. A true Muslim, on 
the other hand, regards himself subject to the Law of God in 
all that he does and exercises his will to regulate bis affairs 
only to the extent he has been premitted to do so by Allah. He 
first of all turns to the guidance provided by God and His 
Prophet and aots according to his own lights only when and 
where no specific or implied guidance is available in the Qur'an 
and the Sunnah. And this action in accordance with his own 
lights too is based on the principle that the silence of God and 
His Prophet in a certain matter implies that They have left 
that matter to the good sense of the Muslims. 

5. The verse also gives the people the right to differ with 
their rulers and is a charater of their political freedom. In case 
of diaoute, however, the verdict of Allah and His Messenger in 

Political Concept* of the Qur'an 


to be taken as final, both by the rulers and the ruled. Thin 
clearly implies that there must be some institution for deciding 
such dispute it. the light of the Qur'an and the Sunnah. In 
other words, the judiciary in an Islamic State must be indepen- 
dent, competent and bold enough to give an impartial verdiot 
irrespective of the position and power of the parties to a dis- 
pute. 1 



Now we come to the purpose of the State. The Qur'an 
lays down the following directive in this respect : 

"(Muslims are) those who, if We give them power in 
the land, establish the system of Salal (worship and 
prayers) and Zakat (poor-due), enjoin right and virtue 
and forbid wrong and evil." (22 : 41) 
The above verse epitomises the purposes of the Islamic 
State and the basic characteristics of the rulers and adminis- 
trators. This one verse alone is sufficient to give an idea of the 
nature and the objectives of the Islamic State. God's bounty 
and assistance are for those people who, when given power, act 

in the following way :— 

(a) In their personal lives they adopt the way of piety and 
obedience. Their character is free from the blemishes 
of sin, disobedienee to God, vanity and arrogance 
They behave like real gentlemen, offer prayers to their 
Lord, act humbly and establish the system of Salat in 
the collective life of the people. 
(6) Their wealth and resources are not wasted on sensua- 
lities and luxuries. Instead they establish the institu- 
tion of Zakat (poor-due) -*.«., they pay their own Zakat 
and organise the institution of Zakat so that the 
wealth of the community may have an equitable dis- 
tribution and the State may fulfil its welfare functions, 

U~Tafhim al-Qur'an Vol. I, pp. 563-66. 


The Islamic Law and Constitution 

{ c) They use the powers of the State for the eradication of 
evil and of sin and for the promotion and establish* 
ment of virtue and goodness. 

These are the objectives of the Islamic State.* 



In the Islamic State the Government is democratically 
constituted and is ran with mutual consultation. The Qur'an 
•ays :— 

(a) "God has promised to those among yon who believe 
and work righteous deeds that Ho will surely grant 
them vicegerency in the land." (24 : 65) 
The verse is quite clear on the point that this vicegerency 
is promised to the entire Muslim community. Therefore it is a 
popular vicegerency and is not limited to any particular indivj. 
dual or group of people. Consequently, the entire community 
is responsible for the affairs of the State* and as such only that 
government can legitimately carry on the business of the State, 
that has been constituted by popular will and works in confor- 
with the powers delegated to it by the community. 

(6) "It was by the mercy of Allah that thou hast been 
gentle with them (O Muhammad), for ifthouhadst 
been stern and hard-hearted, they would have surely 
dispersed from around about 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 ! 
Allah loveth those who put their trust (in Him}". 

(1 : 159) 

(c) "They manage their affairs by mutual consultation." 


It follows from the above verses that the approach of 
1. Tafhim al-Qur'en, Vol. IU, p, 235. 

ft Based on j Tajhim al-Qur'an, Vol. IU, Surah ai-Nur, pp. 417-490. 

Political Concepts of the Qur 9 an 185 

government towards the people should be baaed on love, sympa- 
thy and forgiveness. It should try to lighten their burdened 
provide for them the necessities as well as the comforts of life. 
It should look to their welfare, betterment and prosperity. 

Fdraterm^re, the government should be c6nstituted and 
run in consultation with the people. Its structure must be such 
that the people are able to express their viewpoint; It is their 
will whicii shouicj preVail. Ani this ein take place only in a 
state that is demo&atio in structure and in its working. 



(a) Although the Islamic State is an ideological state, it 
confines its citizenship to only those persons who live on its 
tettitc-ry or migrate to it. It is not an extra-territorial state. 
This is borne out by the following verse of the Qur'an : 

* ^iiy those who befieWand migrited and struggled 
hard ik^flah's wky with their property ai!d Inelif soul*, 
jtitif* ttiorfe Who gave (theni) shelter and hel^hey are 
guardians of ekoh other, and (as for) those who believe but 
4*4 ' ™f ™fgrate ' (to the Islamio State), you bave nothing 
fo J do witjHhefr guardianship until they migrate ; but if 
ttiey Beet ielp from you in the matter bf fttifch then it is 
your cfuty to lielp (them) exbept against a ; folk between 
whbnT and you there is a treaty. Allah is Seer of what ye 

TWe verse lays down another basic principle of the Con- 
stitutional law of Islam, viz., only those persons will be under 
ihe ^^ans% <>f tne Islamio State who either li ve in dar dl 
lafohi >6t ^ Who migrate to it. As for those Muslims who live out- 
side >ne &nltf$'oftiki Mamfo' State, it will nbt assume their 
guard&nstep: The reiationship of Islamio brotherhood will be 
ther^Vbu* i^t the legal rospohsi&lity of guardianship ' If they 
migrate Vo ^ ^n'^cine they wiM be entitled toits' gualrdiin- 
ship. If they oonte only as visitors and retain their citizenship 

1S6 The Islamic Law and Constitution 

of a non -Islamic 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 means support, assis- 
tance, protection, friendship, relationship, patronage, guardian- 
ship and the like. In ita context the above quoted verse clearly 
denotes the relationship subsisting between the State and its 
citizens and among the citizens themselves. Thus it limits the 
political and constitutional guardianship (/.«., the citizenship) 
to the territorial limits of the State and excludes from this 
guardianship those Muslims who live outsido the dar aJ^Tdam. 

The legal consequences of this distinction are far-reaching. 1 
This will also affect the foreign polioy of the Islamic State. 
Tn the light of this verso 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 t*aid ; — 

"I am not responsible for the protection of a Muslim 

•vrho lives among the Muthrifo (Polytheists)." 

This is how the Islamic law has cut the gordian knot which 
has been at the root of many an international 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 itB territory. But it does emphasise the 
relationship of religious fraternity and takes cognizanco of its 
implications. If Muslims are being subjected to tyranny, if 
genocide is being perpetrated upo» them and if they invoke the 
help and assistance of the Islamic State on the basis of their 
membeship of the Islamic fraternity, it is obligatory on the 

I. Mauduiii, Ram^l-o-Maeail. Vol. II, I*Uu»ic Publications Ltd., 
Uhove, pp. 150-164 

Politieal Concepts of the Qur'an 18? 

State to go to their help and to protect them. But this function 
must be discharged with doe regard to international commit- 
ments and moral obligations. The Islamic State is not free to 
hehave in any manner it likes. If it is bound in an agreement 
with the tyrant nation, then the Islamic State cannot extend 
auch a help as may contravene the agreement or its moral obli- 
gations without first repudiating the agreement openly. 

The word whioh has been used for agreement in the verse 
is meethSq whioh is used in the sense of trust and understand- 
ing. By meethSq is meant any understanding which shows that 
one state is not at war with another. If this understanding is 
there, even though there be no written treaty of alliance or of 
friendship or a non- aggression pact or a no- war treaty the 
Islamic State would be deemed to have a meethSq with such a 
State. ■ 

The words used in this verse are : bainahum tea bainahum 
meethSq (between whom and you there is a treaty). This shows 
that the treaty between the Islamio and the non-Islamio State 
is not merely a treaty between two states ; it is a covenant 
between the two peoples as well, and the Muslim nation is also 
morally responsible for the treaty along with its government. 
The Shari'ah does not admit of a situation in whioh the Mus< 
hm people may be deemed to be absolved of the moral respond- 
bihty of the treaty entered into by their state. But the moral 
responsibility of the treaties of the Islamic State will devolve 
only on the Muslims who are citizens of the Islamic State. It 
will not extend or apply to those Muslims who are not citizens 
of the State binding itself by a treaty. That is why the Treaty 
of Hudaybiah was not deemed to be binding on those Muslims 
of Mecoa (e.g., Abu Basir and Abu Jandal) who had not yet 
become the citizens of the Islamio State. 

Thus it follows that the State can help the other Muslim 
brethren outside its territory only in ways which do not con- 
travene the treaty between the Islamic and the non-Islamio 
State or can help them after openly denouncing the treaty, if it 
bo deems fit. It cannot do bq in any manner contrary to 

188 TM Islamic Law and Constitution 

recognized standards of International ethics an<| morality.* 

(b) As the Islamic State is an ideological state it classifies 
its citizens into two categories, p%z. Muslims and %immis. Tjus 

differentiation is essential in view of the ideological nature of 
the State, But ii does not lead tol the division of the people 

into different cases, nor is any group deprived of basic human 
rights. The Quran says : 

!'Lo I the Pharaoh exalted himself in the earth and 

runt ion and oorrnption (fasaaa). 

Tfaus in the eyes of his government all citizens were not 
equal in law. All did not enjoy similar rights. Instead he 
adopted the policy of dividing people into groups and castes 
and of oppressing one group arid exalting another, making one 
the subject and the other the over}ord. 

Hore some one may raise an objeotion and say that the 
Islamic State too classifies its citizens into Muslims and Zimmis 
and do* not give each one of them rights and privileges similar 
in all respects. But this objection does not hold good beoause 
the grounds of classification in an Islamio State are radically 
different from those on $he basis of which the non-Musliii 
states of the past atid present have been making this classifica- 
tion. Islam does not 1 divide people on the basis of tribe, race, 
colour, language or class. It differentiates between them on the 
basis of a principle and an ideology. And whoever accepts the 
ideology Which is its basic principle, its raison d'etre governing 
all its actions etc. becomes entitled to the rights of full citizen- 

Further, the Islamic State confers all basic human rights 
on its non-Muslim citizens as well and there is no distinction as 
to rights and privileges between Muslims and non-Muslims in 
this respect. Whatever distinction is made between the two, is 
in the realm of political responsibUities only. Since an Islamio 

1. Wtifhim al-Qur*<tn, Vol. II, pp. 161-63, 

Political ConctpU of the Qur'an 169 

Stat© 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 We responsibility of policy-making who believe in the 
ideology which must necessarily govern its policies arid pro- 
grammes. Arid, as already explained, whoever accepts the 
ideology, becomes one of the , governing class an<t whoever 
spurns it, steps out of their fold. Thus there is absolutely ho 
similarity betweep this classification and the one mafle and 
maintained by the Pharaoh under wliich rip one from the sub- 
ject race could ever qhter the fc?ld of the ruling class, in which 
the subject race was deprived of all human rignts and was with- 
out any guarantee of life or honour, in whioh all economic bene- 
fitp were reserved for those who were born among the group of 
rqlers and all avenues of progress were closed upon the reat 
who were subjected to servitude so that their life became an 
unending woe of misery and deprivation. 1 


BilfcttVfc iftlNfclftiS tifr StATE ^LltY 

Aibagwltn the Vasic poiitjoal concepts, the Qur'an has also 
given some cogent directives for Btate policy. A careful study 
of these directives tnrowa ample light on the objectives of the 
Islamic State. The following verses of the Qur'an are very 
important in this respect : 

"Set not up with Allah any other god (0 man) lest 

thou ait down reproved, forsaken. Thy. Lord hath decreed 


■ » 

(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 onto them a 
gracious word. And lower unto them the wing of 

1. Tafhvm abQur'an, Vol. Ill, pp. 613-W. 

The Islamic Law and Constitution 


submission through mercy and kindness and say : My 
Lord ! Have mercy on them hoth as they did care for 
me when I was little. Your Lord is best aware of 
■ what is in your minds. If ye are righteous, then lo 1 
He was ever Forgiving 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 1 the squanderers were ever brothers of the 
devils and the devil was ever 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 which 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, leat thou sit down rebuked, 
denuded ; Lo 1 thy Lord enlargeth the provision for 
whom He Will, and straiteneth (it for whom He Will). 
Lo 1 He was ever Knower, Seer of His subjects ; 

(7) Slay not your ohildren, fearing a fall to poverty, (it is) 
We (Who) provide for them and for you, Lo I the slay- 
ing of them is great sin ; 

(8) And go^not near unto adultery. Lo 1 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 wrongfully, We have given 
power unto his hdir, 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 covenant. Lo I of the covenant 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 oj the Qur'an 


ledge. Lo 1 the hearing and the sight and the heart of 
each of these it will be 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 ol 
thy Lord.' This is part 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 Islamio Order. 
The verses were revealed at a moment of historic significance, 
i.e., on the eve of the beginning of Madianite period. The 
Meooan period was coming to a close" and a new chapter was 
going to be opened in the life of the Islamio 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 Islamio State of Medinah. It sets down the guiding 
principles for the moral, religious, social, economic, political 
and cultural reconstruction of the new state and society. 

(a) 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 Roler, the 
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 very "foundation of the Islamic system 
of life and it was on this very pillar that the Prophet (peace be 
upon him) Bet up the society and state of Islam at Madinah. 
The Islamio Sta'ttf'of Madinah was founded upon an ideology 
and this ideoldgy was none other than thiB : 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. ^ 

(b) According to the second prinoiple^the rights of the 

parents come first among those of all- human relations and are 

192 Tht Islamic Law and Constitution 

ne^t only $o the f ights of God Himaelf. , 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 ^h as to make the sons and deters respeotfqi %o 
the parents and not disobedient to them. It should inculcate in 
them the spirit of service and induce them to look after thpir 
parents in the same way as they were themselves looked after by 
them when they were young and in neod of it. This verse is 
not merely in the nature 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 aud maintain this 
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. 

s (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 and 
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 ♦ he whole social climate of the history. Every person 
should hAp and assist his relatives. The rich should come to 
tJj^A^p of the poor and assist them in nieeting 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 of 'right' 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 193 

(as distipgxiished from 'dole' or charity), 1 And if a person it not 
in a position to assist others, then lie should regard it as a cause 
for regret and seek the bounty of Allah so that he may serve 
other people and assist them in procuring the amenities of life. 

Like the first provision, these provisions of the Islamic Man i- 
festo, too. were not meant to be mere moral tenets. The Islamic 
State of Madinah translated these injunctions into practice and 
it was in their light that a system of compulsory contributions 
sadaqm-e-tvdjibah) and of voluntary contributions (tadaq&t-e- 
nafiiah) was evolved, that a system of waalyah (Will), wirasah 
(Inheritance) and awqaf (Trusts) was devised and proper safe- 
guards were provided for maintenance of the rights and proper- 
ties of the orphans. It was made obligatory on every habitation 
to play host for three days, at least, to any traveller who comes 
to it. Moreover, every endeavour was made to infuse to the 
community the spirit of sacrifice, generosity, philanthropy and 
co-operatiOn so much so that 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 
^either become too tight-fisted nor top open-handed. Instead 
they should adopt a via media and should so expend their 
wealth that they neither hinder the proper and equitable cir- 
culation of wealth by acting miserly nor fritter away economic 
strength by adopting ways of extravagance. They should main- 
tain a balance in their expenditure — neither hesitate to spend 
where necessary, nor indulge in avoidable or unoalled for ex- 
penditure. All those who, in their spendings, are motivated by 
hypocrisy, ostentation and exhibition of wealth, or who spend 
in the cause of luxury, vulgarity, or corruption or needs other 
than genuine, divert wealth into wrong, wasteful and unpro- 
ductive channels and are guilty of abuse of God's blessings. 

J. Tb© Qur'an aays t . . 

♦•la their wealth the beggar and the destitute have their due (ifof)"* 

(Al-QuSan, 51 : 19) — Editor. 

The Islamic Law 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 of wealth. It was in pursuance of these injunctions 
thjit the Islamic State of Madinah legally prohibited certain 
forms of expenditure, stopped the flow ot money into certain 
channels and through social reform abolished many a wrong 
custom which involved extravagance and over-expenditure. 
The State was empowered to pot a stop to pronounced forms of 
public extravagance. Through all these measures wastage of 
wealth was cheeked. 

Side by side with this, through Zakat and Sadaqdt a smash- 
ing blow was administered against miserliness. Through them 
the possibility of hoarding of wealth was eliminated and it was 
ensured that there was proper circulation of wealth in the 
community. Through sooial education people were made to 
understand the difference between philanthropy and extrava* 
ganeo, benevolence and reckloss spending, miserliness And 
austerity and niggardliness and thrift. In the social olimate so 
engendered the spend-thrift and the miser were looked down 
upon, while the philanthropic and the generous and those who 
maintained a balance in their life were looked upon with honour. 
And it is a result of this very moral and mental training that 
ever since then Muslim society has loved and respected the 
generous and philanthropic and despised the miserly and the 

It is further suggested in the passages quoted above that 
the disparities of wealth are not neoessarily unnatural. Dia* 
parities due to natural causes 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 unequala is no equality at all ! 
Neither is it proper to change natural inequality nor to extend 
inequality to unnatural limits and make them inequitable. 

Political Concepts of the Qur'an 


Both the extremes are equally reprehensible. A healthy econo- 
mic system should maintain justice and keep the distribution 
of wealth within the limits prescribed by the Lord of the 

It was as a result of this directive that the concept of 
"class Btruggle" could never gain ground in the economic policies 
of the Madinite State. Differences in income and wealth were 
never regarded as an evil in themselves which must at all 
costs be eliminated. Thus the Islamu State recognised the 
natural differences whioh are inherent in men and instead of 
enforoing an unnatural equality it tried to so fashion the society 
through moral education and lega} processes that economic dis- 
parities, instead of becoming an instrument of oppression or 
exploitation, became agencies of the promotion of many a social, 
moral and economic virtues. 

(«) The seventh princtple gives tho lie to the basis on whioh 
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 
Islamic Manifesto directs people to totally avoid all those efforts 
whioh aim at curtailing the number of the people and instead 
to devote heart and soul to the constructive effort of multiply- 
ing the means of economio 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 economio resources. 
" God says that the provision pf economic resources does not lie 
with man, it is solely in His Hands. He made the world, He 
endowsd it with all necessary resources, and He has been feed- 
ing those who have gone before and will feed those who are to 
oome in future. It is He Who has taken upon HimBelf the 
feeding of His creation. History also tels us that the economic 
potential has increased in the countries whose population has 
increased and oftaa the rate of growth of the economy has been 


The Mamie Law and Constitution 

S Z : .U'^- y - 1° " >°* ? n tbis does not 
3 Sd 0 --es also endow- 

StSt ^ ^ A • 14 » jotf* to think that 

Nature e plan ,s defective and that we must destroy or check 
human torogenoy to correct the situation i 

It isaresultof this very teaching of the Qur'an that Birth 
Consul has never applied much to Sfuslim society and has never 
gained currency among them. 

in ^r?° fl™ T aduJt6ry " " a oommaa * ^^essed to the 
ndmdua^ and the society alike. For the individual it means 
that he should not only avoid adultery but should also avoid all 
those pregnanes which may lead to it. He should avoid all 
those things whioh tannm* » stepping ■ 

and adultery) For the society as sucn ,t means that it should 
«™ S a T *T h T 8h ° M a,8 ° eIiminat ° * — • -cen. 
root and branch This purpose is to be achieved through proper 

^r^t T r 0a8UrM aDd ail Ofch0r effective T*" 
individual and the society both must be free from the evil of 

This injunction became the source of many social laws and 
ru esofcnduct iol.^. For Stance zina and false a,cus 

duc^andT/TT;r gniZab,6 ° ffenCefl; ^^ ™ 
duced and its rules laid down, stringent step, were adopted to 

stop vulgarity and corruption, drinking was forbidden ; and so 
were instrumental music, dancing and the making of human 
likenesses - (all the kith and kin of zina I) ; and a family law 
was evolved by which marriage was made easy and a simple 
affair and the social causes of zina were totally eliminated. 

(?) The ninth principle forbids the slaying of human beings 
Th,s^iesas much to suicide as it applies to the killing of 

intend in fh. r Atom -Market, Lahore, 19m. Those 

Jm V y™™"^™*** Plea for birth-control mav 

Sett/ " » 6rn ! * Y 0rH mth ° Ut War ' L ^"- Arthur 
VKtonaM, Pcopte, Space, Food, London, 19ft'. 

Political Concept of The Qur'an 197 

others. According to the Law of Islam the slaying of human 
life— whether of others or of one's own self— is the greatest crime 
and a Muslim must never ever think of it. Man has harboured 
tjie illusion that'fcie own life belongs to him andf h« Is entitled 
to put end to it. It is a misconception, pure and Himple. All 
lite belongs to Aflah an d m an 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 he should always be pre- 
pared to faco this trial to the last fcreath, whatever the ion- 
diiions thathe may have to pass through duW^tyie 'f*f 
t^is triaU * To rim away from the trial is folly.' And to commit 
±v "s Tolly J)y "means of suicide— a gruesome oritne— is worst'of all. 
., aen lb1)y anij crime are wedded together; nothing }>ut ' igno* 
miny in &e woV)4 and' worst punishment in the hereafter can 
resujfc from it. Can anything be more futile than to court 
eternal pain and ingtory to avoid temporary misfortunes and 
frustrations of this world ? 

Taking of human life baa been forbidden save with right. 
According to islamic law this right is limited to five oeoaeibhi, 

W ? 

' (0 Qtofl {Retaliation) from a murderer, 

(n) filling of enemies in an Islamic war, 

(Hi), punishment for those who try to overthrow the Islamic 

way of life, 

(iv) punishment for adultery by married males or females, 
and ' 

(v) punishment for irtidad, i.e., high treason, 
j&«e«m taking of 

human Kfe justifed and legal and not otherwiae. 
ft has further been said : 

"Ve have given power unto his ((Jeoeased's) heir but let 
him not commit excess in slaying . 

'* py Power 1 ' (««Kan) is meant justification to Remand Qisaa 
(retaliatory killing). From this arises a principle of Jsjamio 
law that in a case of murder the real plaintiff is not the State 
but tie heirs of the murdered person— and they are empowered 

188 The Islamic Law and Conafitvtion 

to forgive the murderer and to take blood-money from him in- 
stead, or forgive him altogether. The State itBelf does not 
have the right to grant pardon. 

There can he many kinds of excesses in slaying and they 
are forbidden in Islam, e.y., to kill persons other than the mur* 
defer, to kill him by torture or by excessively painful methods, 
or to xnulilate 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 tbe 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 pnnjabment will be imparted by the Islamic 
State through its judiciary. No individual or group or clan or 
tribe is entitled to take the law into its own hands to avenge a 
murder. Only the State can do that. The hair of the murdered 
porsons is to seek justice from tbe Stste which *ball 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 administrative means to safeguard 
the rights of the orphans, the details of which are available in 
books of Badith and Fiqh. And from it was derived the general 
principle that the Islamio 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 constitutes the source of great many laws 
in Islam :, 

"I am the guardian of one who has no other guardian". 

(i) The 11th 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. 

ij) The 12th clause presents the view that honesty is not 
OI *ly » 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 wfy 

Political Concept* of the Qur*an 199 

the confidence 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 an a 
moral precept only. It has acted as a directive atate-polioy 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 aotions on suspicion or doubt. They should 
always fashion their individual and social polioies in the light 
of "reliable knowledge". This dictum too had many far-reach- 
ing effects. Ia the realm of ethics it oame 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 6eld 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 another people or state without just cause ; nor was it 
proper to give currency to rumourB 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, Muslims are told that they should shun the ways 
and the manners of the arrogant and the tyrant. This precept 
too is meant for individual and national life alike. And it was 

200 The Islamic Law and Constitution 

» result of this very injunction that the lire* of the ruler., the 
foremen and the generals of the Islamic Stete of Madinah were 

f ^ ffifi ar * i * c ! al |«b| which ig a okiriteatie of 

« '«^|^t-»n^ J ^*^ra«l and the deoaiient. They 
fef ? I^^W! TWr maimers were 8inii>1e and aCraightfor- 
w«ra.' Cfborteay «id, kindness were their w*yi\ They hehaved 

™* h • P eo P* 8 in W ^ eBt °f w »y" : with and sympathy 

"^feiS^^P**- " " " ^FT^j? "'iSfc^ar'"-*^^ 1 ^' wMhibb^ words of 

" ride or »rrog»noe. And' when Vio^oriona, they never tried to 
™k-i-i ««i.„. u ™- ,»4 bJiow. Thia waa hdw'the laiamio 


|to of the Islamic movement led by 

^P^fW?^ him} and in it 


1. )U«du«VrVMft a*.Q«r\w», Vol, II, pp. 609*17, 

Chapter 6 


First Principles of 
the Islamic State 

The movement for the adoption of Islamic 
Constitution waa at its climax in the last quarter 
of 1952 when Manlana Maududi visited Karachi 
in November. He waa invited by the President 
of the Karaohi Bar Association to address a 
gathering of the lawyers and the intelligentsia of 
the metropolis- As it was a disonssion 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 Islamic Constitution. This talk 
was given to enlist the support of the upper 
intelligentsia to the cause of the movement for 
the establishment of an Islamic State in Pakistan. 
It also possesses a historic significance, for it was 
given at Karaohi 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 month 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, 


should, at the very outset, clearly understand the 

nature of the problem that confronts us. When we say 

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 he 

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 ohoose 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,. similar is the 
course that we shall have to adopt for the codification of an 
Islamic Constitution. 

1. All the implication* of the terra "written constitution" should bo very 
clearly understood here, A "written constitution" means a document 
wherein all the basic principles of state organisation have been reduc- 
ed into writing and which is accepted as the only authoritative 
document for this purpose. When a country does not possess a 
constitution written in a form of sUeh a document, it i* said to have 
an unwritten constitution, even though all the constitutional laws and 
practices which go to constitute thd unwritten constitution of that 
country, may be present iu black and white. 

First Principle* of tit* Islamic State 




There are four sources of the unwritten Islamic Constitu- 
tion : — 

1. TheQur'ao 

It ia the first and the primary source, containing as it does 
all the fundamental directives and instructions from God Him- 
self. These directives and injunctions cover the entire gamut 
of 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 of man. It has also 
been clearly shown therein aa 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'anio 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 tb6 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- 

3. The Conventions of Khilafat e-Rashidah 

These conventions constitute the third source of Islamic 
Constitution. How the Bight-guided Caliphs managed the 
Islamic State after the passing away of the tfoly Prophet (peace 
be upon him) is preserved in the books of Badith, History and 
Biography which are replete with glittering precedents of that 

The Islamic Law and Constitution 

golden era. It has been accepted in Islam from the very begin- 
ning that interpretations of the Qur'an and the Sunnah having 
the unanimous approval of all the Companions (technically 
known as IjntiF) and the decisions of the Caliphs relating to 
constitutional and judicial problems acoepted by the Compan- 
ions, are binding on all and for all times. In other words, such 
interpretations and such decisions must be accepted in toto 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 interpretations are actually possible and any one of them 
can be preferred to the other on the basis of sound reasoning. 
But where there is a general consensus of opinions among them, 
that shows that one and only one interpretation or decision is 
the correct and authoritative one. The reason being that as the 
Companions were the direct disoiples of the Holy Prophet (poaoe 
be on him) and were trained by him personally, it is simply an- 
thinkable that even all of them combined failed to grasp the 
real purport of the Prophet's teaohings or could be unanimous 
in giving a decision against the real spirit of Islam. 

4. The Rulings of Great Jurists 

These rulings which comprise the fourth source, are the 
decisions of top-ranking jurists in regard to various constitu- 
tional problems of 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 are the four sources of our constitution. Whenever 
we have to reduce the Constitution of an Islamic State into 
writing we shall hare 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 constitutional conventions, 
various statutory provisions and infer a number of points from 
(be judgments of their courts relating to constitutional problems. 

First Principles of the Islamic State 



No doubt, all these four source* of Islamic Constitution exist 
in a written form. The Qur f an ia 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 ia vague 
or wanting ; and yet at the very outset of our quest of reducing 
this unwritten constitution into a written one* a host of 
difficulties and obstructions confront us. Before proceeding 
further it is necessary that we should understand the true 
nature of theBe difficulties . 
(a) Novelty of Terms 

The first difficulty is linguistic. The Qur'anio terms relating 
to constitutional matters, as also those of Hadith and Fiqh, have 
long beon out of use and have by now become incoraprehonnible 
even to the learned amongst us, let alone the commoners. 
Unfortunately, Islam has been a dosed book for all praotioal 
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. Sultan, 
Mulky Hukm t Amr, Wilayat, 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 auprising, 
for, in the Qur'an they find no chapter with 'Constitution 1 as its 

1. A leading lawyer of Pakistan had even declared, in an artiole publi- 
shed in the Daily Dawn, Karachi, that the Qur'an cannot give a 
'Constitution 1 and had challenged that no one can produce an article 
of the Constitution from the Qur'an— Bdticr. 

206 The Islamic Law and Constitution 


(b) Odd-Editing of tbe Ancient Juristic Literature 

The second difficulty arises from the unfamiliar method of 
compilation of our old literature. In the old juristic literature, 
the constitutional problems have not been reported under 
separate heads. On the contrary, the purely constitutional and 
the purely legal discussions are inextrioably mixed up therein. 
Everyone knows that the consideration of constitutional 
problems, as a subject apart from the purely legal matters, is a 
recent innovation and the use of the very word 'constitution' 
in its ourrent sense is comparatively modern. Problems called 
'constitutional' have nevertheless been dealt with in detail by 
all eminent Muslim Jurists. But all their learned dissertations 
on this subjeot are to be found in the ordinary book of Fiqh, 
dispersed in different chapters and mixed up with other allied 
problems. For instance, one- of theee problems you will find 
dealt with in the chapter on 'MatTiages', while another 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 so forth. Likewise, one question may 
have been discussed along with the problems of 'Criminal Law' 
while another would prJbably 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 student possesses sufficient erudition in 
various branches of law and the problems arising therefrom, 
and is, in addition to that, a versatile soholar of Arabic (both 
modern and ancient), he can hardly discern where a problem of 
international law has been disoussed 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 thought over these problems and have 
left behind them a legacy of valuable material relating to cons- 
titutional 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 greaj 

First Principles of the Islamic State 


diligence and elaborate research. And most of tho Muslim 
scholars of the present generation, who have been for long con- 
tent with the left-over of others, are hardly competent for this 
task. What is even more tragic, is that without 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. 

(<:) Defects of Oar Educational System 

The third difficulty is due to the defective system of our 
eduoation. 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 interpretations 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 knowledge of Islam. Instead of 
approaching the front of learning themselves, they await that 

these problems bo enunciated and explained to thorn 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 modern problems of life, actually knows 
very little, if at all, of the glorious heritage of Islam. Most of 
them are unfamiliar with even the fundamental principles and 
the basic directives of Islam much less that 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 the 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 fourth-hand. And it is for this reason that 
even such of them a* sincerely and genuinely long for a renaia* 
sance of Islam are hardly capable of 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. tfhis 
is indeed a very great 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 the passage of 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 
Mulla's word should be taken as being more weighty than that 
of a layman. Thus spiak those who are conversant neither with 
the language of the Qur'an and the Sunnah nor possess any in- 
sight in Islamic traditions. None of them has seriously devoted 
even a day of his life to the study of Islam and its vast liter*, 
ture. Instead of honostly 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, evea though he knows nothing about it. Then 
another person may stand up and say that there being no 
'Engineer-hood* in Inlam, therefore he has as much a right to 

First Principles of the Islam ic State 


meddle with the Engineering problems of the country as a 
qualified engineer. This may be followed by a third one's 
assertion that there being no 4 Physician-hood' in Islam, there- 
fore everybody has an equal right to prescribe for the si ok, no 
matter if it means having more people inside the graveyards 
than out of them I 

I am really surprised to find even some well-read and other- 
wise intelligent people giving vent to suoh like childish ideaa. 
Do they presume that the whole nation consists merely of 
ignoramuses and would applaud all suoh senseless assertions 1 
No doubt, Islam does not recognise prieathood aa a class. But, 
have the protagonists of this slogan ever tried to understand 
what it implies 1 It only means that Islam neither recognises 
the Jewish and Brahmanio principle of giving the monopoly of 
religious knowledge and spiritual work to a particular privileg- 
ed race or tribe, nor does it uphold the Christian doctrine of the 
separation of the secular and the religious into two watertight 
compartments. Nobody can, therefore, claim in Islam to enjoy 
spiritual monopoly and the "Mulla" or the "Alirn" is not a 
titular head claiming any inherent and exclusive rights of inter- 
preting religious laws and doctrines. On the contrary, just as 
anybody may become a judge or a lawyer or a doctor by proper- 
ly qualifying for these professions, similarly whosoever devotes 
his time and energy to the study of the Qur'an and the Sunnah 
and becomes well-versed in Islamic learning is entitled to speak 
as an expert in matters pertaining to Islam. 

If there is any sense and meaning in the assertion that 
there is no priesthood in Islam, it is only what has been stated 
above. It does not and cannot mean that Islam licenses every- 
body to start pronouncing authoritatively regarding the Qur'an 
and its directives and instructions, without trying to have any 
insight in it. Indeed, if an empty claim to be an authority on 
matters secular is not acceptable anywhere, how can it be so in 
religious matters which pertain not only to the most important 
aspects of our life in this world but also to our JmSn and the 
life after death 1 

2l0 STAe Islamic Law and Constitution 

This fourth difficulty in our path has become tho 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 honeat 
labour. In fact, we have already removed thorn 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. 



I will now discuss 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. This 
will help you to judge for yourselves whether Islam gives any 
guidance to us in the field of constitution or not and whether 
that guidance is merely of a recommendatory character or of a 
mandatory nature — so fundamentally mandatory that we can- 
not overlook or by-pass it, if we claim to be and wish to remain 
Muslims. In order to finish the discussion 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 ? Any king or body of people 1 
Any class, clan or the whole nation ! Or Qod Almighty 
Himself ? 

(2) What are the functions and scope of an Islamic 
State I To what extent can it command allegiance from its 
citizens and where and when the State will lose this right ? 

(3) What are the powers and functions of the various 
organs of this state, i.e., the Exeoutive, the Judiciary and 
the Legislature \ What are the rights, duties and limita- 
tions of each, and what are their relations inter se 1 

(4) What is the real purpose of the State ? That is, 
what are the objectives that it will strive to achieve and 
what are the fundamentals of its overall policy ? 

first Principle* of (he Islamic Statt ill 

(5) How is the government of this state to be constituted! 

(6) What will be the qualifications of persons consider, 
ed eligible for running the government of this state ? 

(7) What will be the conditions of its citizenship and 
how will a person acquire and lose this right ? 

(R) What will be the fundamental rights of its citizens* and 
(0) What will be the basic obligations of its citizens 
towards the State 1 

These questions are the key-points of political theory and 
constitution is expected to provide clear-cut answers to them. 

Som. ofth.aut.hof.ttos on Oouatitutlonal ll*w have defined it as 

(aT-Constitutional Law. as the tern is used **^J**r££ 
* include all ruto. which directly or ^V^^X 

1LTJZ£S££Zc. or the thereof, 

Z« TJL Its ruL prescribe the order of succession to the 

eigQ of the Stat. to ^ o/ ^ 

W T he ooi-ots of ^ Ooa.Ut.tion in short a. ^ ^ -J. 

W ^^i of the sovereign power."- 
governed, and fc o - * eHn ° J f r „., jwh - as , London, p, 10. 

1957 (2nd edition), p. 5. ^agement and distribution 

(d) "The term Constitution aigninos tae at g 

Ba J farm*, p. 20~Jff<K*or- 

212 The hlamic Law and Constitution 

We must, therefore, try to find out Islam's answer to those 



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 this point fully, we would be well advised to first 
grasp the exaofc 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 his 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 beoauae the Law-Giver desires 
to be so. If, therefore, the Law-Giver 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 
his orders, questions of good and evil and right and wrong can- 

First Principle* of the Islamic State 


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. His behaviour is the criterion of right and wrong and 
none can question it. It ia thus inescapable that the sovereign 
should be acoepted as being absolutely above all aberrations and 
errors, even though he may not actually beao. 

Such is the nature and meaning of the concept of sovereign- 
ty as enunciated by the modern 'lawyers and jurists'. 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 ia not available. In the 

1. "Sovereignty", is derived from the Latin word supernuus which means 
Supreme. The definitions of the term are varied but "it always signi- 
fies a highest governmental and legal authority of some sort." (Pranais 
W. Coker, "Sovereignty." Encyclopaedia of Social Science*, Vol. 14, 
p. 265). Jean Bodin who first developed the concept in modern politi- 
cal thought defined it as "Summa in civia ac sabditos legibusgu* solute 
potestes" tho 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 be "the supreme 
irresistible, absolute, uncontrolled authority in which the jura mnmi 
imperi reside." Jullinok defines it as that "Character is tio by virtue 
of which it cannot be legally bound except by its own will, or limit by 
any other power than itself." Burgee characterises it as "original, 
absolute, unlimited power over the individual subject and over all 
associations of subjects." He calls it »*the underived and independent 
power to command and compel obedience." The attributes and 
characteristics of sovereignty are said to be permanence, exclusive* 
ness, ail-comprehensiveness, indivisibility and absoluteness. See 
Edward McCheaney Sait (Ed.), Master* of Political Thought, Vol. II, 
London, 1949 ; James Wifford Garner, Political Science and Govern- 
ment, American Book Co. 4 World Press (Private) Ltd., Calcutta 
1958: Bryoe, "The Nature of the Spvereignty." Studies inJuri*pru- 
dene* and History, Vol. II, 1901 : Harold J. Laski,. The Problem of 
Sovereignty. London, 1917, and Grammar of Politic*, London (for a 
critique of the concept of absolute sovereignty) ; Mat tern, History of 
Theory of Sovereignty since Rousseau, London, 1910 ; Mahajan and 
.. ; v Sethi, Recent Political Thought, Delhi, 1956, and Jacques Martin, "The 
Concept qf Sovereignty," Man and the Stat*, Chicago, 1951.— Editor, 

The Islamic Law and Constitution 

language of Political Science, therefore, legal sovereignty with- 
out political sovereignty has no practical existence. Political 
Sovereignty thus naturally means ownership of the authority 
of 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 ! 

Is there any monarohioal system where the monarch posses- 
ses all these attributes of sovereignty today, or has ever 
posaeaed them in the past, or can be expected to possess them 
in the future 1 We may take the case of any of the most 
powerful monarohs and analyse the myth of his sovereignty 
only to find that all the authority enjoyed by him was in 
praotice always limited by a number of external factors which 
were beyond his control. 

If not in monarchy, oan 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 of 
absolute power, there are a number of factors variously quali- 
fying and restraining it and which are beyond the control of 
the so called "sovereign" .1 

It is exactly for this rerson that whenever the experts of 
Political Science, imbued with this ideological sense of soverei- 
gnty, had endeavoured to locate the possessor of such soverei- 
gnty in human society, they have invariably failed. For they 

1, "But in the political sphere, and with respect to men or agenoiee, in 
charge of guiding people towards their earthly destinies, there is no 
valid use of Sovereignty.. .If the State is accountable and subject to 
the supervision, how oan it be sovereign 1 What oan possibly be the 
concept of a sovereignty liable to supervision and accountable ? 
Clearly, the State is not sovereign. Nor are the people. Nordo they 
•zeroise a power without accountability.. .the power they exercise, 
either by mass reflexes and extra-legal means or through regular 
channels of a truly democratic society is in no way & power without 
accountability," Jacques Martin, Man and the Statt t Chicago, 1&55, 

pp. 00-ea... editor. 

First Principles of the Islamic Stats 2!5 

can find nobody of the size whom this cap would fit—that is, 
nobody from amongst the human being*. Even in the entire 
gamut of creation, there is no creature who oan rightly claim to 
possess all the attributes of sovereignty. The Qur'an stresses 
this very truth when it says repeatedly that sovereignty belongs 
to God and God alone- He is Omnipotent, i.e., 
He can whatever He likes j 1 

He has to refer to none and to render account to none ; 2 
He is the source and fount of all authority ;3 

He is the only one whose authority and power nothing can 
limit or restrain and 

He alone is above all abberration and error.* 
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 oontraven- 
tion of or in contradiction to his will, that he should have to 
be implioitly and explicitly obeyed, and that no question of 
right or wrong, virtue or vice, should be possible to be raised 
in respeot of his words or wishes. 

Whoever actually enjoys these attributes, whether an 
individual or an institution or a people, the question will in- 
evitably bo asked : what justification is there for the investment 
of those powers and for that sovereign authority % The most 
that can be said in reply to this would be that a general 
consensus of opinion justifies such a course. But, are we pre- 
pared to accept such a contention % Suppose a person willingly 
auctions himself. Does the purchaser really become his owner? 
If it is not so, wo may well ask : how oan then mere acceptance 
by the people of such an investment justify this alleged sover- 
eign status? The Qur'an unravels this knot by declaring that no 

1. Al-Qur'an, 11 t 107, 

2. Ibid* 21 s 23. 

3. Ibid,, 29 1 83. 

4. Xbid. t 23? 88. 
IMA, 89:29-24. 

216 The Ulamic Law and Constitution 

creature hae the right to impose his will or words on other 
creatures and that this is a right exclusively reserved for Qod 
Himself and is inherent in Him by reason of Hit 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 Ood 
as the Creator of the universe. 

. The third point which automatically arises is that if we 
invest some human agency with this superhuman mantle of 
sovereignty, overlooking the inherent shortcomings, would it 
be of any service or advantage to humanity t No human being, 
whether invested with this status individually or oolleotively, 
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 injustioe and malad- 
ministration of the most contagious type. 

Evil is inherent in the nature of 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 accord- 
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. facto soverei- 
gnty is inherent and manifest in the working of 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 this position of accept- 
ance of his de jure sovereignty has been described as plain and 
unadulterated Kufr {i.e., disbelief) ; 

* f "And those who do not make their decisions in accord-* 
ance with that revealed by Allah, are (in fact) the dis- 
believers." (5 : 44) 

These injunctions olearly 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 is why it is ordained in Islam that the Pro- 
phets must be obeyed implicitly and without any 'ifs 1 and *buts\ 
You will note in the Qur'an that whosoever has claimed to have 
come from God as His Messenger, has unequivocally proclaimed; 
"Fear God and obey me." (26 : 108, 126, 144, 163, 179). 

The Qur'an enunciates this as definite principle in these 
words : 

"Each and every messenger who was sent by Us was 
sent for the sole purpose that he should be obeyed tinder 
the sanction of Allah". (4 : 64) 
And again : 

"He who obeys t&e 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 1) by the Lord, they will not be 
believes until thoy accept you as the final arbiter in all 
their disputes and submit to your decision whole-heartedly 

without *ny heartache," (4 66) 


The Islamic Law and Constitution 

Again, the Qur'an prescribes thna : 

"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 Hia 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 His 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's de jure sovereignty on 
earth and His mouthpiece for this purpose. 
The Position of the State 

After this interpretation of the basic 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 whioh it can neither 
alter nor interfere with. The true position of this agenoy has 
been described by the Qur'an itself. The terms need by the 
Qur'an for this agency is "Khilafat" whioh means that such an 
agenoy is not sovereign in itself but is the vicegerent of the de 
jure and the de facto sovereign God Almighty. 
The Doctrine of Democratic Khilafat 

By the word "vicegerency" your mind should not turn 
towards the Divine Right of Kings, or to Papal authority. 
According to the Qur'an the vicegerency of God is not the 
exclusive birthright of any individual or clan or olass of people: 
it is the collective right of all those who accept and admit 
God's absolute sovereignty over themselves and adopt the 
Divine Code, conveyed through the Prophet, aa the law above 
all laws and regulations. It says : 

First Principles of the ItUmie State 819 

"Allah has promised suoh of you as have become bdU 
ever* and done good deeds that He will most surely make 
them His vicegerent in the earth". (24 : 55) 

This concept of life makes the Islamic Khilafat a demo- 
oraoy, which in essence and fundamental! ia the anti thesis of the 
Theooratic, the Monarchical and the Papal form of Government, 
as also of the present-day Western Secular Democraoy. For, 
aocording to the modern Western oonoepts, democracy is that 
philosophy of political organisation in which it is presumed 
that the people possess absolute sovereignty. On the other 
hand, what we Muslims oall democracy ii a system wherein the 
people enjoy only the right 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 democraoy also envisages the 
same ; but the difference lies in the fact that whereas in the 
Western system a democratic state enjoys the right of absolute 
authority, inour democraoy the Khilafat is bound to keep with- 
in the limits prescribed by the Divine Code. 



The foregoing discussion'ovei the Islamic concept of Khila- 
fat automatically brings us to the question : what is the scope 
of activities of »n Islamic State and the nature of limitations 
imposed thereon ? And the answer is that as this State is a 
vicegerent of God and accepts His de jure sovereignty, the scope 
of its activities will naturally be restricted within the limits 
ordained by the Almighty Himself. This means that the State 
can act only within the framework of the limitations and is not 
empowered to infringe er 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 words : ' 


The Islamic Law and Constitution 

"These are the limits ©rcWned by God ; bo do not 
transgress them. 

If any do transgress the limits ordained by God, such 

persons are the unjust." (2 : 229) 
The positive and comprehensive prinoiple which the Qur'an 

lays down in this respect is : 

"0 you who believe.obey Allah and obey His Messen- 
ger 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) 
According to the above injunction, obedience to the State 
is subject to the obedience to God and His Prophet and not 
independent of it ; which clearly means that on insisting to 
violate the commands of God and the limitations prescribed by . 
the Prophet (peace be on him), the State loses the right of 
claiming obedience from the people. This very truth has been 

explained by the Prophet in those words : 

"There is no obedience for him who disobeys God." 1 
"There is no obedienoe to any oreature if it involves 
disobedience to the Creator."* 

The other principle which follows from the above injunc- 
tion of the Qur'an is that whatever dispute and difference of 
opinion may arise in the Muslim Society, be it between mdiv.d- 
uals or groups, or between the people and the State, or amongst 
the various organs and departments of the State, it should be 
referred to that fundamental Law which God and His Prophets 
has given to us. Thus the very nature of this principle demands 
that there should be an institution in the State which should 
undertake to adjudicate in strict accordance with the Book of 
God and the Sunnah of the Prophet. 
Legislature, Executive and the Judiciary 

Now we come to the fourth question : What are the powers 

1. Tibrani. 

1 Shark aUSunnah': Uiahkat No. 3515, . 

first Principle* of tit Mamie 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 


Function of the Legislature 

The Legislature is what in the old terminology of Fiqh was 
known as the "Body whioh resolves and prescribes" (Ahl al-Hal 
wa al-'Aqd). It is quite clear that a State established on the 
basis of God's dt jure sovereignty cannot legislate in contra- 
vention of the Qur'an and the Sunnak even if the consensus of 
opinion of its people demands it. I have just elated the Qur'anic 
injunction whioh 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 his own opinion 1 and that those who 
do not decide in accordance with the Divine Code, are 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 piecee of legislation, even though approv- 
ed by the Legislature would ipso facto be considered ultra vires 
of the Constitution. 

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 : 

(») 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. 
{ii) Where the directives of the Qur'an and the Sunnah are 
. capable of more than one interpretation, the legislature 

1. Al~Qw y dn, 33 ; 36. 
.2. Ibid., 6 : 44.. 

222 f he tslanUc Law and Constitution 

would decide which of those interpretations should be 
placed on the Statute 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 
letter of the Skari'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 authority to aooord preference to one or 
the other of the various interpretations and to enaot 
the one preferred by it into law, provided of course 
that it is only an interpretation and not a perversion 
and camouflaged deviation from the law. 

(in) Wherevor there is no explicit provision in the Qur'an 
or the Stmnah, the funotion 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 matters even basic guidance 
is not available from the Qur'an or the Sunnah, or the 
conventions of the Righteous Caliphs, it ^ould be 
taken to mean that God has left us free to legislate on 
those points aooording to our best lights. In such 
cases, therefore, the legislation can formulate laws 
without restriction, provided such legislation is not in 
contravention of the letter and the spirit of the 
Skari'ah- the principle herein being that whatever has 

not been disallowed is allowed,. 
We have deduced these four functions from the Qur'an, the 
Sunnah, the usages of Khilafat-z- Uashidah and the opinions and 
rulings of eminent jurists of Islam. If need be, I can quote their 
sources but 1 think that whosoever has grasped fully the funda- 
mental principles of the Islamio State, can also realise by mtl* 
oommonaonso that in a state of this character, these should 

first Principles of the Islamic State 


constitute the functions of the legislature. 
Function of the Executive 

We now oome 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 
practioal application in its life. It is this characteristic of the 
Executive of a Muslim state whioh distinguishes it from the 
executive of a jion-Muslim state. The worYls Ulul-Amr and 
Vmara* 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 ( 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." (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 ; 

(♦) "Even if a defaoed slaye is made your Amir, listen to 
him and obey him as long as he leads you in accordance 
with the Book of God".* 

(ii) "Obedience is obligatory on every Mnslim, whether he 
likoa the command or not, unless he is ordered to 
commit sin,— in whioh case the obligation lapses 
automatically" .2 

1. Muslim, al-SaUh. 

2. Muttaftg l Ala.h *\e. v Both the authentic books of hadith, Bukheri mid 

Muslim quote it.— Editor. 

224 The Islamic Law and Constitution 

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

obligatory only in virtue". 1 
(iv) "Whosoever innovates anything contrary to the spirit 

of this order of Ours, is everlastingly cursed*' * 
(v) "Whosoever honours and reveres an innovator, helps 

in bringing down the edifice of Islam". 8 
No duobt can exist, after these clear directives, as to the 
exact nature of the functional limits of the executive and the 
administrative powers is Islam. 

Function of the Judiciary i 

The scope of the Judiciary (which in the terminology of 
Islamic Jurisprudence is called Qada) also becomes well peesoribed 
by the acceptance of the de jure sovereignty of God Almighty, 
When Islam established its state in f ooordanoe 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 suoceedod him, had no alternative 
but to base their decisions on the La,w of God as transmitted 
to them through the Prophet. > 

IntheQur'an one full section of the fifth chapter, AU 
Mtfidah, deals specifically with this very subject.* 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 Torah to Moses, after which all the 
Israelite Prophets and the Jewish Rabbis followed it ae the 
Code of Law in all their affairs, settling the disputes of the 
people in accordance with it « Afterwards came Jesus with a 

1. 'Muttafiq 'Alaih i.e., Both the authentic books of Kadith, Bukhari and 

Muslim quote it.— Editor. 

2. Ibid. . 

3. - Al-B&ihaqi, Sho'ab ai-Iman. 

4. Al-Qur'an, 5 i 44-60. 

5. One finds the following reference in the Old Testament : "If they 
speak not according to this word, it is because there is no light ia 
them" [Isaiah, 8 : 20) and "cursed be that confirmeth not all words of 
this law to do them." (Deuteronomy : The Fifth Book*>f Moses* 27 * 

ftrtt Principle of th$ Ulamic State 425 

fresh Revelation, and the Qur'an tells us 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 hind directly God Almighty 
says : 

"So judge between them*-' by that 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 : 

I'lk it the judgment of the time of Ignorance that they 

' are seeking t Who is better than Allah for judgment for 

: «: people who have certainty (in their belief" 1). (S :80) 

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 of 

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. 

■ i ■ * 

* * J, * ♦ t * • • 

I 1 I I I 

Relations among the Different Organs of the State 

: ' The only question that now remains to bo disoussed about 
tl(0;irariouB organs of the State is, In what form are these organs 
&f the Islamic State — the legislature, the executive and the 
judiciary — related to one another ? There are no clear - cut 
instructions on this point. But the conventions of the Prophet's 
period and of the period of the Righteous Caliphate afford us all 
the necessary guidance. ..From these conventions we learn that 
t^ Hea^ of an Islamic State is, as such, the supreme head of all 
these three different organs. The Prophet enjoyed the same 
status and this position was maintained by all the Righteous 

caiiphs. . • 

But under the Head of the State the three organs functioned 
separately and independently of one another/ The. body called 

"AM al-Hal ura al-'Aqd" whose funotion it was to advise the 

Head of the State in matters of law, administration and state- 
policy was a separate entity. Then there were the executive 

226 The Islamic Law arid 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-Hal wa 
aUAqd and as Boon 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 
Calijths 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 1 any 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 oase. • 


We can amend or alter the details of this set-up according 
to our existing requirements. But the fundamental principles 
we will have to keep intaot. For instance, we can reconsider 
the powers of the Head of the State and alter them as much as 
necessary. It is 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 Bighteous Caliphs. We can, therefore, consider 
and restrict his administrative powers in order to safeguard 

may also restrain him from 
hearing and deciding oases, so that he may have no opportunity 

First Principles of th$ Islamic State 


to obstruct the course of juatioe. 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 reject or to restrict 
the powers of tlie legislature in respect of enacting law in cont- 
ravention of the Qur'an and the Sunndh. I know of no specific 
ruling on this 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 such an action. But 
here again the reason, in my opinion, is 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 were 
the most reliable persons in all respeots. Under them, therefore, 

If On this - point^a "listener asked as to what was the source sad authority 
for this opinion. The speaker replied that he derived support for, -this 
argument from the fact that during the period of the Righteous 
Oaliphs, tho Executive and the Judiciary were entirely separate and 
even in the person of the Head of the State these two branches of the 
Government were amalgamated not by virtue of any explioit injuno- 
tion of the Qur'an or the Swww* but by reason of people's absolute 
faith in the integrity, honesty and devotion to God and His Prophet 
of these persons and beoause of the assurance that" they would never 
permit executive exigencies 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 
ultimately be available to them from there. If we have no longer 
amongst us 

personalities worthy of such reliance and faith, we cer- 
tainly are not compelled by any injunction of the Qur'an and the 
Sunnah to keep the two important positions of the Chief Juatioe and 
the Highest Executive amalgamated in the person of the Head of the 


The Islamic Law and Constitution 

there was no real danger of any suoh legislation taking plaoe 
which was contrary to the spirit of the Qur'an and the Sunnah. 
Even today, if we oould 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. Bat if it cannot be so, then the only 
satisfactory course would be 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 

The other question that may be asked is : What, in Islam, 
is the oorreot position of the legislature! It is only an advisory 
body for the Head of the State, whose advioe 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 oonduot 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 this 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 (i.e., the legis. 
lature), yet is under no obligation to sanction, follow or adopt 
their unanimoua*or even majority verdict or opinion. In other 

m m 

JL This stand has also been endorsed by all the leading "Ulama of 
\ Pakistan, See Appendix II.— Edii or. 

First Principles of the Islamic State 229 

words, he can always exercise Mb "veto". 

But this, 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 of the Right- 
eons Caliphs, persons who were aoting 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 it. 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 of the Khilafat-e.Rashidah there is 
not a single instance where the differences of the advisers could 
force a voting ; and there are only two instances where a Caliph 
ignored the unanimous opinion of his advisers and decided to 
act against it on his own. One was the oase of permitting Uso- 
mah 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 
rigfc* of 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 of his advisers 

230 The Mamie Law and Constitution 

mainly in the interests of the State, tbey reconciled themselves 
to his 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. It is now, an 
undeniable faot of Islamic history that Caliph 'Umar who in the 
beginning was opposed to the opinion of Caliph Abu Bakr in 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 deoided 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 whioh 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 bis advisers stick to 
their own individual opinions and neither of them is prepared 
to recede in favour of the other, recourse may then be 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* 
meat of an Islamic State? These objects, as denned and explain- 
ed in the Qur'an and the Sunnak, are as follows : 


The Qur'an says : 

"Certainly We sent our Messengers with clear proofs, 
and sent down with them the Book and the Balance, so 

First Principles of the Mamie State 


that people may conduct themselves with equity". (47 : 25) 
At another place it has been said : 

"(Muslims are) those who, if We give them power in the 
land, establish the system of SatUt (worship) and Zakat 

(poor-due) and enjoin virtue and forlSid 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 the 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 Islamic State from the non-Islamic states. Its distinction 
lies in the fact that it has to enoourage 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. 



How, then, should the Government of a state baaed on 
these foundations be formed f 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, Tmf9\T Ibn al-Kathir. 

232 The Islamic Law and Constitution 

•go, that the corner-stone of what is called Islamic society was 
laid in the town of Mecca under circumstances intensely inimi- 
cal and highly hostile. To initiate and then gradually to 
develop an Islamic society, in the faoe of that stern 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 #aa not elected by anybody. He had been 
chosen for this very ta'sk by God Almighty Himself. 

For ten years he performed the duties of 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 acoonnt of this 
abstinence on his part, and by reason of the explicit Qur'anio 
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 Islamic State had been left to the 
elective discretion of the Muslims, which was to be exercised in 
accordance with the spirit of the said Qur'inio injunction.* 

The first Caliph; Abu 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'a soot of the MasliniB hold the belief that, like the 

Prophet, the Imams too are chosen and nominated by God Almighty 
Himself, This divergence of belief from the rest of the Ummah »,«., 

the AMal-Sunnah has, however, no practical valne now, as with the 
disappearance of the 12th Imam, the Imamate remains in abeyance 
until he reappears. For all actions in respect of the collective pro- 
blems of Muslims, therefore, reference has got to be made to some 
suoh person who has not been directly chosen by God Almi^htlv but 
elected by the Muslims themselves, 

Firtt Principles oj the Islamie State 233 

ally, and then dictated his will in favour of 'Umar. Thereafter, 
despite his (serious illness, he addressed the Muslim masses thus: 
"Are you willing to accept him your Amir whom I no- 
minate as my successor 1 God is my Judge, I hare left no 
stone unturned in coming to (the best) conclusion in this 
matter, I am not nominating anybody related to me. I 
nominate 'Umar 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 accept."* 

Here we find that Abu Bakr only suggested and recom- 
mended the name of 'Umar after consultations with those in 
whom the people had oonfidenoe, and then it was put tp the 
vote of the Muslim masses who accepted him. 

Again, when 'Umar was on the point of leaving this world, 
he noticed • that out of the large number of the most reliable 
Companions of the Prophet, only six persons were then alive 
to whom the Muslim masses could look for guidance and from 
amongst whom his successor could be chosen. He, therefore, 
created a Consultative Body of those six persons and delegated 
to them the task of selecting the next Caliph from amongst 
themselves, prescribing that whosoever tried to become the 
Amir without the approval of the Muslim masses was to be 


beheaded. 8 

This consultative body ultimately delegated its task to one 
of its members, «Abd al-Rehman Ibn 'Auf, who went round 
Madinah to gauge the feelings of the general publio in the 
town. He ascertained the opinions of the women-folk and the 
reactions of the students of schools also and even of the pilg- 
rims from various parts of the country, who visited Madinah 
after tbeir pilgrimage at Mecca. After this thorough survey, he 
oame to the conclusion that the Muslim masses had the greatest 
possible faith in two person*, « Ali and 'Utbman, of these two, 

1. Tabari, Tarikh al-Vmam tpo'al-lioluk, Vol. II, Cairo, p. 818. 

2. ' Muhammad Hussain Haykel. iW«Wf 'Umar, Cairo, Vol. V, p. Mft 

234 The Islamic Late and Oonrtititticn 

the opinion being slightly more in favour of 'Uthman. So the 
vote was oast in his favour and he was openly accepted as the 

Then occurred the tragic and deplorable incident of <Uth- 
man's brutal assassination which created a serious situation. 
Some of the Companions, therefore, 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, shoul- 
der that responsibility. 'AH declined to do so. But when these 
people insisted, he, at last, agreed saying. 

"If you wish it to be so, then oome to the mosque, for 

my acceptance as Amir cannot be secret nor without the 

approval of the Muslim massess". 1 

Consequently, 'AH went to Prophet's Mosque where people 
were assembled. And it is an incontrovertible fact that the 
majority of the people aooopted him as their Caliph, even 
though this aooeptanoe was not unanimous. 

Lastly, when 'AH was murderously attacked and the time 
of his death drew near, he was asked if he permitted 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 
so. You oan decide aocording to your lights." 2 
This, therefore, is the accepted convention of the period of 
the Caliphate regarding the appointment and election of the 
Head of the Islamic Stated and this is also the sum-total of the 
oolleotive conduct of the Companions in thiB important matter. 
It is based as much on the Prophet's abstinence from nominat- 
ing his successor as on the Qur'anic injunction that all impor- 
tant decisions in matters of collective interest should be taken 
by consultation. The point, that can be clearly inferred from 
these authentic constitutional precedents are : 

(1) In an Islamic State, the election of its Head depends 
entirely on the will of the general public and nobody 

1. Tabari, op. oft., Vol. Ill, p. 450. 

2, Ibit., Vol IV, p. 112. 

First Principles of the Mamie State 


has the right to impose himself forcibly as their 

(2) No elan or class has & monopoly of this office 2 

(3) The election should take place with the free-will of 
the Muslim masses and without any coercion or 


How is this opinion of the masses to he determined is ft 
point where Islam does not limit its scope by prescribing speoifio 
methods. Different methods can be adopted in different plaoes, 
on different occasions, and nnder 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 of the eleotion of the Amir the next most 
important problem is : How are the members of the Consult- 

1. There are some people who say that this be aooepted as the prinoiple 
of Islam, what about the verdiot of eminent jurists and learned men 
of the days of the Muslim kings who aooepted the authority of those 
who became the rulers through sheer force of arms. As a matter of 
faet such people mix up and confuse the following two entirely 
different and distinot positions adopted by the Muslims scholars of 
the pasts 

(1) All the eminent soholara are unanimously of the opinion that 
the only proper and p«rm»»«6fe method is that of eleotion in which the 
will of the Muslim mat a ©a 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 
does not interfere with the fundamentals of Islam. In other words, 
the most that these people do is not to conoede a right to revolt, be- 
cause that would lead to anarchy only. This does not all mean that 
persons holding this opinion approve of such tyrants and prefer them 
to properly elected Amirs 

2. In relation to this matter also, certain people raise doubts as to how 
to reoonoUe it with the Badith in which the Quraysh have been declar. 
ed to be the attest for the office of the Caliphate. I have already 
replied to this in my book : Baaa'tl wo Maea'il. Vol, I, p. 76, 8rd 
impression, Lahore. 

236 The Islamic Law and Constitution 

ative Assembly {Majlis^Shura) to be elected and who shall 
eleet them t 

From a superficial study 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 oonsult. This error is due to the 
fact that the precedents of these times are applied to modern 
praotioes without referenoe to the then prevailing conditions. 
The correct way would be to apply them only with referenoe to 
the then existing circumstances and to make an honest attempt 
to understand the spirit of those principles and their details 
as interpreted within the framewoik of the then existing condi- 

Islam arose in Meooa as an ideological movement. And it 
ia an inherent feature of all ideological movements that persons 
aooepting that movement first, are oounted as the true compani- 
ons and friends as well as advisers of the Leaders of that move- 
ment. Likewise in Islam, persons who were the first to associate 
themselves with the Prophet and his movement, naturally and 
automatically became his advisers whom he invariably consult- 
ed in all oases wherever clear and definite injunctions of the 
Qur'an were not available. When, however, new blood entered 
the Islamic body politic and the struggle with the opposing 
force increased, those who rendered outstanding services by 
virtue of their sacrifices, insight and wisdom, naturally became 
prominent without any oonsoious effort on their part. This 
election, therefore, took place not by means of votes but by 
virtue of practical tests and performance which are indisput- 
ably a more natural and reliable method. Thus even before the 
Prophet migrated to Madinah, two kinds of people had already 
become members of hie Consultative Assembly, viz, 

(a) Those who had been associated with him from the very 

beginning, and 

(b) Thoge who subsequently became prominent by virtue of 

Fir$t Principles of ike hlamic 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, oertain influential personalities of Madinah had 
embraced Islam and through their labours, Islam had establi- 
shed a secure foothold in that city among the tribes of Aue and 
Rhavaj, It 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. It was, therefore, only 
natural that these very people, with whose services Islam had 
prospered and progressed in Madinah should be the leaders of 
the newly-formed society and its political organization. And 
naturally again, it was most befitting that 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 all important matters every body automatically 
looked to them. The 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 the most reliable authorities in these matters, 

The Islamic Law and Constitution 

The Prophet himself, by saying that the Qur'an should be learnt 
and understood from such and suoh persons, put his seal on 
their erudition. Thus, these two groups also were elected as a 
matter of course, like those before them, by the same process 
of natural selection and became automatically included in the 
Consultative Assembly of the Prophet'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 sooiety who would have 
been preferred by the voters. And those constitutional conven- 
tions under which fresh nominees continued to be incorporated 
in the Consultative Assembly by virtue of their services, exper- 
ience and outstanding intellectual attributes, automatically 
received universal approval. 

This was the class of people which was known as AhtaUHal 
wat-'Aqd (i.s., those who oould' "tie" and "untie"), and it was 
these people without whose advice no decision was ever taken 
in any important matter. As to their constitutional status, some 
opinion can be formed by the faot that when, after the unfortu- 
nate assassination of Hadrat 'Uthman, some of the Companions 
came to Hadrat 'Ali to ask him to aooept the office of the 
Caliphate, Hadrat 'Ali said : — 

"This is not a matter whereon you can take a decision. 
This is a task for all those who can advise and have fought 
in the battle of Badr (AM al-SKura wa ahlal-Badr). Whoso- 
ever is approved by them will be the Caliph and let us, 
therefore, congregate and consider it." 1 
It is thus clear that at that time there were certain specific 
persons called "Akl aUHal waUAqd" who had been continu- 
ously holding the position of great trust for a very long time 
and were thus entitled to take collective decisions in all impor- 
tant matters affecting the Vmmah. There is, therefore, no 
valid ground to presume that the Khali/ah could call for consul- 
tations whomsoever he liked or that it was not generally known 
as to who were his advisers {AM al-Shura) entitled to give 
advice to him in the most important matters affecting the 

1. Ibn Qutaib&K aUlmamah wa al-Sipanyyah, Cairo, p. 41. 

First Principles 0/ the Islamic State 239 

collective good. 1 

From the conventions of the Caliphs, nay, even from the 
conduct of the Prophet himself, the inferred rule is that the 


Amir's Consultative Assembly ifl not to coneisfcof 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 of the public 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. 

1. Her© the question naturally arises : Why were these AM al-Ral va ai- 
4 Agd comprised only of people from Madinah, although the frontiers 
of th© Islamic Stat© had extended beyond Arabia up to Afghanistan 
in th© East and North Africa in the West during the period of the 
Righteous Caliphs, and why wer© not loyal representatives from other 
parts of th© Stat© summoned for this purpose T Th© answer is that it 
was duo to two very valid reasons, namely 

(a) The Islamic State was not a mere National State. It bad come 
into existence in a unique fashion. With the preliminary pro. 
pagation of th© Islamio ideology in th© minds and morals of th© 
people an ideal society was first created, which subsequently 
developed into an ideal state. In such a state, naturally, the 
load-oentre of all devotion was the individual who had initiated 
and then perfected the revolution. Next to him,the body of his 
associates and right-hand men became the repository of all pub* 
lie confidence and faith. Their leadership was thus most natural 
and nobody else from amongst the society oould possibly be 
anyway more worthy of ^ie confidence of the public. That is 
exactly the reason why, in spite of complete freedom of exprea. 
sion, even in that era,' nobody from any corner of the country 
raised even a single voice of protest against the selection of 
only the people from Madinah for inclusion in the Consultative 

(b) Secondly, it was not possible in th© then existing conditions of 
life to hold general elections in an area extending from Afghan- 
istan to North Africa and thereafter to expect that all elected 
members of the Consultative Assembly oould attend all its 
ordinary sittings and meetings. 

240 {Thehlamlc law and Constitution 

It may well be asked as to how the. parsons enjoying such 
confidence of the masses are to be determined today. It 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 eleotions is one of these 
permissible methods, provided it is not tarred with these 
corrupt practices which render demooraoy a sheer farce. 

The Form and Nature of Government 

We now come to the third important point : What should 
be the form and nature of the Government of an Islamic State ? 
If we closely Btudy the convention of the Caliphs to obtain 
guidanoe 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 Prh& 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. to the right path. But as soon as he deviated from it, his 
whole party automatically turned into opposition. Every mem- 
ber of his 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, 

first Principles of the Mamie State 241 

in spite of all this, the Ministers and the Head of the State 
were all along working in complete co-operation and harmony 
and the question of anyhody resigning in protest never arose 
at all. 

The Caliph was not only answerable before the parliament 
but also before the people ; and that not only for his pnbho 
aots but also for his private and personal condnot. Five times 
every day he had to face the people in the mosque, and he had 
to address them every week on Fridays. Each and every mem- 
ber of the public had the right to atop him in the streets of 
Madinah to question him on his conduct or to demand any of 
his righta from him, and he would do bo at all times and at aU 
hours No such rule existed that if a question was to be asked 
from the Government, some member of the parliament must 
give a previous notice about it. The general proclamation of 
the Head of the Islamic State was : 

-'Assist me when I act rightly ; but if I go wrong put 
me on the right path. Obey me as long as I remain loyal 
to Allah and His Prophet ; but if I disobey Allah and His 
Prophet, then none is under the slightest obligation to 
accord obedience to me." 1 

This form of government cannot be identified with any 
modern form of government. But it is this which stands in the 
fullest accord with the ideology of Islam. It is, therefore, our 
ideal too. But it can be achieved only when the society has been 
already developed in accordance with all the revolutionary 
teachings of Islam. And that is exactly why no sooner than the 
Islamic society deteriorated this idea of government could not 
be fully adhered to. As to the present times, if we desire to 
revert to it, it would be essential to adopt the following four 
basic principles initially, and then to adjust them in accordance 
with our subsequent requirements and needs : 

It) Whosoever is entrusted with the responsibilities of 
government should be required to face not only the 

1. Muhammad Huasaia Haykal, Al-Siddiq, Cairo, p. 67. 

242 The Islamic Law and Constitution 

representatives of the public but the public itself ; 
farther, 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 system which instead of remaining 
an agency of publio opinion become? 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 politics; at publio 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 diffioult 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 important 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 the 


From the Islamic point of view, the qualifications of office- 
bearers is very important. 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 be termed as legal eligibility, on the 
basis of which an Election-Tribunal or a Judge, after due con- 

fir* Principles of the Islamic State 243 

sideration 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 of 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 Constitution. But the standards of 
the second aspect of eligibility must permeate the spirit of the 
entire Constitution. The success or otherwise of any constitu- 
tion would depend on the fact that the minds of the masses 
have or have not been trained properly to eleot only those who 
are eligible for those august positions in accordance with the 
spirit of the Constitution rather than its form only. 

Both the Qur'an and the Hadith givo, clear 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 of the Qur'an is : 
"0 ye who believe I Obey Allah, and obey the Prophet 
and (obey) those who are in authority from among 
you." (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 reigns of its government to a woman."* 

(3) Should be sane and adult— The Qur'an lays down : 
"And do not make over your property, which Allah 
has made for you a (means of) support, to the weak 
of understanding. 1 ' (4:5) 

(4) Should be a citizen of the Islamic State—The Qur'an 
declares : 

"And those who have declared their belief in Islam 
bat have not migrated (to the Islamic State), you 

h Bukhart, al-Sahih 


The Islamic Law and Constitution 

have nothing to do with their guardianship until 
they migrate." (8 : 72) 

These are the four legal qualifications whioh 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 Eadtih. 

The Holy Qur'an says : 

(o) "Verily Allah commands you to make over trusts (i.e., 

positions of responsibility) to those who are trust- 
worthy." (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 chosen 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 remeznbranoe, one who is 
followed by the dictates of his own desires and his 
ease is that in which due limits are transgressed." 

(18 : 28) 

The Holy Prophet (peace be upon him) says : 
(a) "Whosoever honours and reveres an innovator (in 

religion), helps in bringing down the edifice of Islam 
(&) "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." 2 

(c) "We consider the seeker after a post (of trust and 

responsibility) as the moBt untrustworthy."* 
Some of these 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 Muelim. 

3. Quoted by Abu Da'ud. 

First Principles of the Islamic BtaU 248 

for election should be declared ineligible. As regards other quali- 
fications for which no legal limit can be prescribed, we 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. 



We now come to the question of citizenship. Since Islam is 
a system of both thought and conduot 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 boating 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 disojiminating between them in practice and withhold- 
ing even the fuudamental human rights from a considerable 
Bection of the population, like Russia. In fact, in all modern 
countries the national and the ideological minorities 1 are invari- 
ably treated in this very fashion. The coarse adopted by Islam 
in this respect too is most rational, just 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 : & 

"Verily those who believed and migrated and struggl- 
ed hard in Allah's Way with their property and their souls, 

1, It roust not be forgotten that there is & world of di£ferenoe 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 of each other ; and (as for) those who believed 
and did not migrate (to the Islamic State), yon have noth- 
ing to do with their guardianship until they migrate"* 
(8 : 72) 

Prom this verse it is clear that the basic qualifications for 
citizenship as prescribed by the Qur'an are two, viz., faith in 
Islam and original or acquired domicile in an Islamic State. If 
a person, even though he may be from amongst the faithful, 
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 were 
born in the Islamic State or have migrated to it, are its citizens 
at par and helpers of one another.* 

Upon the shoulders of the Muslim oitiiona of 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 thorn alone it enforces its laws as a whole 
and enjoins them to oarry out all its religious, moral, cultural 
and political directives. It invests them with all its obligations, 
andv^deinjknds from them every sacrifice for the defence of its 
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 keyposts, so that the 
basio policy of this ideological state remains in conformity with 
the fundamentals of Islam. That is the standpoint of 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 bona fides. 
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 bonafide* i.e., that they are truly Muslims and im- 
migrants. This is to safeguard against evit-doera 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 of its resources and 

First Principle* of the Islamic State 247 

proved by the utter abaenoe of even a single instance in the 

days of the Holy Prophet (peace be on him) or the Calipha 
where a Zimmi (non-Muslim citizen) may have been made a 
member of the Parliament, or the Governor of a province, or the 
Qadi t 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 
Calipha, although the number of Zimmi* even in the days of the 
Prophet was considerable and during the days of Khilafat~e~ 
Baehidah it had gone up to millions. As such, were it right to 
give them a ahare in the Government, we fail to understand 
how the Prophet of God (peace be on him) oould have done in- 
justice to them in the first instanoe, and how the persons direct- 
ly and diligently trained by the Prophet himself could have 
continued to "deprive 1 ' them of their "due rights" for the next 
thirty years. 

(2) By Zitnmi* are meant all those non-Muslims 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 citizens of this kind, Islam furnishes a 
guarantee of protection of life and limb, property and culture, 
faith and honour. It enforces only its law of the land on them 
and it gives them 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 economic matters. No discri- 
mination is made between a Muslim and a Zimmi. Furthermore, 


the Zimmi* are exempt from the responsibility of the State, 
which devolves exclusively and entirely on the Muslim 

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 details of the treat- 
ment meted out practically 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 


Tht Islamic Law and Constitution 

states. In 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* 
ment 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 nnusnal com- 
plications arising out of the existence of a foreign element in 
the body politio of a nation 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 oomplote 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 latitude 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 of Citizens 

The next question relates to the fundamental rights of 

citizens 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, except 
on valid legal grounds. The Prophet has explicitly and repeat- 
edly enunciated 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 Principle* of the Islamic State 


* 4 Your lives, your properties, and your honour are as 
sacred as this day>(of the Xbjft".* 

There is only one exception to it, which the Prophet him- 
self describes in another HaSith as <J** H\ i.e., if there ie 
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 important right is that of the protection of 
personal freedom. Jn Islsm, personal freedom cannot be violat- 
ed, save after proving delinquency in accordance with the due 
process of law and never without giving an opportunity to the 
acoused to put up his defence. It has been related that some 
people were arrested in MadJnah, in the days of the Prophet, for 
being of doubtful antecedents. Subsequently, while the Prophet 
was delivering the Friday Sermon, a Companion got up and 
enquired of him as to why and on what grounds has his neigh- 
bours been arrested. The Prophet kept quiet while the question 
was repeated twice, thus giving an ample opportunity to the 
Police Officer present there to explain the legal position. When 
the question was put a third time, and it again failed to elicit 
the reply from the Police Officer, the Prophet directed that 
those people should be released .2 This is a conclusive proof of 
the fact that as long as a specific charge is not laid against a 
person, he cannot be detained or imprisoned. Imam Khattabi, 
while explaining this Badith in his Ma'alim aUSurman, says 
that in Islam detention is only of two kinds : 

(a) detention under orders of the court, namely, when a 
person is sentenoed by the court and is kept in prison, 
till the expiry of the term of his sentence ; and 

(6) detention for investigation. Besides these, there can 
be no other ground for depriving a person of his 

Imam Abu Yousaf, in his Eitab al-Eharaj, has also stressed 
the same point, i.e., nobody can be imprisoned on false or 

1, Muslim : Farewell Pilgrimage : lim Bitham, pp. 380-391. 

2, Abu Va'ud. 


The Mamie Lav? and Constitution 

unproved charges. The Holy Prophet did not imprison people 
on mere accusations. It was necessary that the two parties 
should appear in the oonrt and if the complainant failed to 
prove his allegation with all the evidence at Vie disposal, the 
defendant was acquitted. 

'Umar, the second Caliph, while pronouncing judgment in 
a famous case, said : 

"In Islam no one oan be imprisoned without due 
course of justice,"* 

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 : r 

"You may live wherever you like, the only condition 
between- us being that you will not indulge in bloodshed 
and will not practise oruel methods. "» 
On another oooasion, 'Ali addressed them thus : 

"As long as you do not indulge in actual disruption 
and disorder, we will not wage war against you. "3 
This makes it quite clear that even an organised group may 
entertain any set »*of ideas and may also peacefully practise 
them ; and an Islamio State would not hinder or harm it. But if 
it tries to foistf its ideology on others r by violent means and 
endangers the security of the State or its administration, 
necessary action sTiall certainly 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 

f-r: — 1 v 

1. Imam Malik, Muwatta, Baab Sharaat al-Shahid, Kitab A hkam at- 

\ Shftukani, Nad al-Autar, Vol. VIII, p. 139. 
3. p. 133. 

First Principles of the Islamic State 261 

without distinction of caste or creed. Zakdt was made compul- 
sory for Muslims for this very purpose and the Prophet himself 
flays : 

"It shall he taken fiom the rioh 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.e., the State)."* 

In this matter, Islam has made no distinction between the 
Muslims and non-Muslims. It gives to the Zimmia the same 
guarantee as it gives to the Muslims, that the State would pot 
let anybody be without food and clothing or a place of resi- 
dence. Caliph 'Umar 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,"* 
The Covenant that Khalid, the Sword of God, gave to the 
non-Muslims of Hirah, contained the oondition that whosoever 
beeante old or afflicted or destitute, would not be required to 
pay the Jizyah, and that, on the other hand, he and his family 
would be looked after from the funds of the State Treasury. 

Duties of Citizens 

As against these rights of the citizens, there are certain 
rights of the State upon its citizens. Among these, the first is 

that of obedience, for whioh the technical term of Smn'-o-Ta'at 

1. Related by Bukhari and Muslim. 

2, Abu Dm'ud, Tirmizi. 

8. Kelated by Buhhari and Muslim. 
4, 4hu Yousaf, KUab at-Kharaj, p, 72. 

254 The Islamic Law and Constitution 

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

"The State shall hare to be heard and shall have to be 
obeyed, in adversity and in prosperity, and whether it is 
pleasant or unpleasant to do so". 1 

la other words, 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 involves God's disobe- 
dience, as disoussed earlier). 

The second obligation on the oitizens vis a-vie an Islamic 
State is that they should be loyal to it and work for its welfare. 
In the Qur'an and the Hadith the term ^ "Nus'h" has been 
used for this purpose, which in Arabio means more than what 
is conveyed by the words loyalty and allegiance. It inherently 
demands that a person should, truly and faithfully and with all 
his heart, wish and work for the good r prosperity and the 
betterment of the State, and should not tolerate anything likely 
to harm its interests. 

It is also obligatory on the citizens of the Islamic State to 
co-operate whole heartedly with the government and to make 
sacrifices of life and property for it, so much so that if any dan. 
ger threatens the State, he who wilfully refrains from making a 
aaorifice of his life and property for warding off that danger has 
been called a hypoorite in the Qur'an. 

Broadly speaking, these are the salient features of that 
ideal form of government which we call an Telamio State. You 
may describe it by any modern technioal term you choose. You 
may call it secular, or democratic, or theocratic. We will not 
fight for giving it a particular name. What we do insist upon is 
the content. So long as we claim to believe in Islam and to 
accept it as our way of life, our system of government should 

essentially be based on the fundamentals prescribed by the 
Qur'an and by the Holy Prophet Muhammad (blessings of Allah 
be with him for all times to come). 

Bukhari and Muslim 

Chapter 7 

Fundamentals of Islamic 


(as enunciated in the Qnr'4n and the Sunnah) 

In the last quarter of 1952, when the Basic 
Principles Committee Report was reaching oomple- 
tion, a very vioiouB oampaign was launched in the 
press against Islamio Constitution. It was alleged 
that the demand for Islamic Constitution was 
merely a political stunt and that the Qur'an and the 
Sunnah throw no light on problems of Constitu- 
tional Law. Maulana Maududi wrote this article in 
November 1952 and showed that the fundamentals 
of the Islamic Constitution are clearly stated in the 
Book of God and the Traditions of the Holy 
Prophet (peace be on him). It was a telling rejoin- 
der to the protagonists of the plea that 'the Qur'an 
cannot give a Constitution', and left the opponents 
dumb-founded. It was published in Urdu, Bengali, 
and English and is now being included in the pre- 
. sent volume to show the salient features of Islamio 
Constitution as enunciated in the Qur'an and the 
Sunnah —Editor. 


(„ enunciated in the Qur'm and the Stmna fc) 

w S the framing of our Constitution is entering its final stage 
A it U the duty of all who are conversant with the ^ 
to assist the Constituent Assembly in framing an 
etitution. From the very beginning we have been 
discharge our duty to the best of our ability. The re P re ^' 
£SE- of all the Muslim schools of thought 
notorious services in this connection. In January ^«rth£ 
unanimously formulated the basic principles of the Islamic 
State! But lt is very sad to note that some people have all 
a Ion* been trying to confuse both the common people and the 
Members of 'the 5 Constituent Assembly about 
of bUmio Constitution. They have been repeating time and 
again that there is no guidance in the Qur'an for the formu a 
tfon of a Constitution, that Islam does not prescribe any special 
form of government and that there is no such thing as an Islam- 
xnio Constitution. In spite of the fact that these statements are 
absolutely baseless, it is just possible f^™*"*^ 
ganda might produce confusion in the minds of those who are 
not well versed in the Qur'an and the Sunnak. II .has, therefore 
become necessary to cite verses of the Qur'an 
of the Prophet (peace be on him) in order to counter *><W* 
ganda and to show that the principles put forward by the 
ganaa» u Mamie flonstitut on are based 

'ULama. tor tne ionnui»"-u 

on the original sources of Islamic Law. Incidentally, this will 
also do away with the only possible excuse of the members of 
the Constituent Assembly that they were not Jime 
about the commands of the Almighty-God and His Messenger 
concerning the Constitution of the State. 

I, goo Appendix I- -Editor. 

1 Fundamentals of Islamic Constitution 255 

We reproduce below the relevant Qur'anio verses and the 

authentic Traditions of the Prophet (peace be on him), along 

with the constitutional principles which are deducible' from 
them : 



The Holy Qur'an says :— 

"The (right of) Command ia for none but Allah. He 
hath commanded that ye follow none but Him, That is the 
right way (of life)". { !2 : 40) 

This verse clearly points ont that the authority of giving 
commands and the title to sovereignty is the sole preroga- 
tive of Allah. Therte is nothing in the text to confine His Sorer, 
eignty merely to its metaphysical aspects. It is directly address- 
ed to mankind and is obviously all inclusive. It comprehends 
all spheres of human life : the dootrinal, moral, legal as well as 
political. The Qur'an itself specifically" states that all these 
spheres of sovereignty belong to Allah alone, and it puts it in 
very dear terms that Allah is not only the Sustainer and the 
Lord of mankind but also its Sovereign and Ruler 

"Say (0 Muhajnm^d) ; I seek refuge in the Sustainer 

of mankind, the»S6vereign (Ruler) of mankind, the Lord of 

mankind." (114 : 1-3) 

The Qur'an further lays down that Allah is the Master of 
the land and has no partner in His Sovereignty. . Thus says the 
Qur'an : • 

"Say : 0 Allah 1 Owner of the Kingdom ! Thou givest 
kingdom to whom Thou wilt and takest it away from whom 
Thou wilt". (3:26) 

"None is a partner in His Sovereignty". (18 ; 111) 

The Qur'an declares very explicitly 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) 
, Rule". (7 : 54) 

Obviously, the sovereignty which the Qur'an claims for 
God ia aot merely of the metaphysical type but is also legal and 


fk* Islamic Law and Constitution 

political. The Qur'an states this fact specifically in the follow- 
verees : 

"Follow the revelation sent unto yon 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 revealfrd by Allah, are (in face) 
disbelievers". {5 : 44) 

This conception of the political and legal sovereignty of 
God is one of the fundamental principles of 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 ji Usui al-Ahham, which deals with the principles of 
Fiqh, 'AUama Amidi writes as follows : 

"Know that none but Allah is the Sovereign and no 

command is worthy of obedienoe except that which is given 

by Him". 

• Shaikh Muhammad Khadhiri, a modern Egyptian writer on 
tBlamio JurisprudenoeTaays 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 becomes Islamic 
only when it recognises in clear terms the politioal and legal 
sovereignty of Allah and binds itself to His obedienoe and 
acknowledges Him as the Paramount Power Whose commands 
must be uphold, come what may. 


All the prophets in general and the Holy Prophet 
Muhammad (peace be on him) in particular are the repreaenta* 
tives of this political and legal sovereiguty of God. As a corol- 
lary to this, the prophets of God are entitled to the obedienoe 
of those who accept God as their Sovereign. It is. therefore, 
the bounden duty of every such individual, oommunity and 
nation as believe in Divine Sovereiguty to follow the pattern 

fundamentals of Islamic Constitution 257 


set 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) 
{b) "We never sent any Messenger, but for the sole pur- 

pose that he should be obeyed under the sanction of 

Allah". (4 : 64) 
(c) "And take whatsoever Messenger gives you and abstain 

from whatsoever he forbids". (59 : 7) 
{d) "0 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, 0 Muhammad I by thy Lord, they will not be 
believers until they accept you as the final arbiter in 
all their disputes^and submit to your decision whole- 
heartedly without any heartache". (4 : 66) 
From these verses* we derive the second fundamental 
principle of the Islamic Constitution, namely, that it must also 
recognize the Sunnah of the Prophet as the Bouroe of law and 
must incorporate a speoifio article to the effect that neither the 
Executive nor the Legislature nor the Judioiary can issue order 
or enact laws or pronounce verdicts contrary to the Sunnah, 


The Qur'an says : 

"Allah has promised to those among you who believe 
and work righteous deeds, that He will most surely make 
them Hia 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 Islamic State is not that of a 

Sovereign but of a vicegerent. 

(2) In an Islamic State, the powers of "vioegerenoy" are 
vested not in any one individual or family or group 

t m m 

but in the whole Muslim community — of course, when 

258 The Islamic Law and Constitution 

it is blessed with the possession of An independent state. 

The concepts of 'Sovereignty' and 'Vicegerenoy' need some 
elucidation. It is inherent in the very conception of sovereignty 
that the authority of the sovereign power should neither he 
limited by any power other than its own free-will Uor bound 
by any law imposed from outside. Thus if a state acknowledges 
that the injunctions of God and His Messenger are above ques- 
tion, and neither its exeoutive can issue any'order nor its legis- 
Iatura oan pass any laws nor its judioiary can give any verdict 
repugnant to them ; it means that it has surrendered its claims 
to sovereignty in favour of God and His Messenger. On this 
acknowledgement its position automatically becomes that of an 
agont or vicegerent of God and His Messenger. To say that 
such a state possesses absolute sovereignty (except with refe- 
rence to other state of the world) would be a contradiction in 
terms. No doubt, an Islamio State is a sovereign state in the 
real sense of this term m-a-vw the other states of the world, 
but if it tries to assert its sovereignty vis-a-vis the oommands 
qf God and His Messenger, this will amount the clear negation 
of its Islamio character. 

As to the second principle, it would be noted that Islam 
vests all the Muslim oitinens of an Islamio State with 'vioege- 
renoy'. Thus the 'vicegerency' in an Islamic State is popular 
and not limited to any person, class or clan. And it is the 
'popular vicegerency' that forms the basis of democracy in an 
Islamio State while 'popular sovereignty' is its basis in a secular 
state. In the Islamio polity, the term 'vioegerenoy' has been 
adopted because the authority thai; vests in this society and its 
state is delegated by God and can be wielded only within the 
limits prescribed by Him. But as explained above, the autho- 
rity is delegated to the Muslim community of the State as a 
whole and not to any particular individual or group. Asa 
result of this, tho government oan be formed only with the 
consent of all the Muslim community of the State as a whole 
and not to any particular individual or group. As a result of 
this, the govornmont can be formed only with the consent of 

Fundamentals of Islamic Constitution 259 

all the Muslims or their majority and can function and remain 
in power only as long as it enjoys their confidence. This is 
why Caliph Abu Bakr refused to be called the 'vicegerent of 
God* as he was not directly appointed by God but was elected 
by the Muslim community to wield the delegated authority on 
their behalf. 

These two principles demand that the constitution of an 
Islamic State must forsake all claims to absolute sovereign^ and 
declare m unequivocal term that it is merely the vicegerent of 
God and its function is to execute His will and commandments. 


* * 

How this principle of 'Popular Vioegerency 1 should be 
translated into action has been described clearly in the follow- 

"They manage their affairs by mutual oonsultation". 

(42 ■ 38) 

This verse tells us the distinctive feature of the Islamic 
way of life, namely, that all the collective affairs are performed 
by mutual oonsultation. From the context where this verse 
occurs, it is evident that it is not a mere statement of fact but 
an injunction and a command. In this connection Khatib al- 
Baghdadi quotes the following from Caliph 'Ali : 

"I said, 'O Messenger of Allah 1 what should we do if 
after your demise, we are confronted with a problem about 
which we neither find anything in the Qur'an nor hate 
anything from you' ! He replied : 'Get together the 
obedient {to God and His Law) people from amongst my 
followers and place the matter before them for consulta- 
tion. Do not make deoisions on the basis of the opinion of 
any single person '."1 

Pointing out the true spirit of consultation, the Holy 
Prophet (peaoe be on him) says : 

"The man who gives a counsel to his brother knowing 

I. AIluI, Ituh al-Ma'uiii. 


The Islamic Law and Constitution 

full well that it is not right, does most surely betray his 
trust", i 

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 olimes. It does not, therefore, lay 
down whether the people should be consulted directly or 
through their accredited representatives ; whether the represen- 
tatives should be elected in general eleotions or through electo- 
ral colleges ; whether consultative body should, have one house 
or two houses, etc. Obviously, these are matters of detail and 
can vary with different societies and under different conditions. 
That is why tho Shari'ah leaves these problems open for solu- 
tion according to the needs of the time. The following three 

things, howevor, are essential in the light of the Qur'anio verse 
and the Traditions of the Prophet oited 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 his will, for 
during the period of suspension he would be nothing 
short of an autoorat. 

(2) All the people concerned should be oonsulted directly or 
through their trusted representatives. 

(3) Tho 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 muat be observed, and no loophole 
should be left whereby anyone gets the opportunity at any time 
to govern without consulting the people or their accredited 

I Keltktoil by Abu iJa y ud. 

Fundamentals of Islamic Constitution 261 

'representatives. 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, 



As 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) 

(b) 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 : 
(a) "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".* 

' (b) "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". a 

(c) "We consider the seeker after a post (of trust and res- 
ponsibility) is the most untrustworthy.' 13 

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 enquired of the 

Messenger of Allah about appointments on posts of trust, 

U Belated by Muslim. 

2. Related by Buhhari and Muslim. 

3, Related by Abu Dofud. 

262 Thi Islamic Laic and Constitution 


He replied : 'They are for those who do not aspire for them 
and not for thoae who are greedy after them ; they are for 
those who ran away from them and not for those who 
scramble for them ; they are for those to whom they ara 
offered (without asking) and not for those who claim them 
aa their right".* 

Although the instructions contained in the above-mention- 
ed quotations are of a general nature and do not apeoify any 
partioular machinery of election for bringing the right type of 
people to the helm of affairs, it is the duty of the constitution- 
makers of today to devise practical means for putting these 
injunctions into practice. They should evolve suoh a system of 
elections as would ensure the appointment of only those who are 
trustworthy and pious, are loved by the people and are their 
well-wishers. They should also devise effective measures to 
defeat the designs and maohinations of those who scramble for 
posts of truth and are consequently hated and cursed by the 
people in spite of their BO-oalled "victories" in the elections. 


The Holy Qup'in says : 

"Men are in-oharge of women". (4:34) 
And in a Badith we have been told : 

"A nation that entrusts its affairs (of the State) to a 
woman can never prosper."" 

These injunctions of the Qur'an and the Sunnah categori- 
cally declare that the poata of responsibility in an Islamic State 
(whether it be its presidentship, ministership or membership of 
its legislature or the directorship of some department) ■ 
be eutrnsted to a woman. 

In Islam there is a functional distribution between m> 
women and acoording to that the fields of politics and ad 
tration belong to the men's sphere of resoonsibilitiea. ' 

' « * 

1. Qalqaahandi, Subh al-A'Sha, Vol. I, p. 240. 

2, Related h 7 Bukhari, I 

Fundamentals of Islamic Constitution 


fore it wilt not be in keeping with the teachings of Islam to 
drag women into these affairs. And to do so would bo clearly 
against the injuctions of Allah and His Prophet (peace he 
on him). 1 ^ 


The Qur'an states that : 

"(Muslims are) those who, if We give them power in 
the land, establish the systems of Salat (worship) and Zakat 
(poor-due) and enjoin virtue and forbid evil." (22 : 41) 
This verse states clearly the aims, objects and duties of 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 of Salat and 
Zak^t to propagate and establish those things whioh are consi- 
dered to be "virtues' by God and His Messenger, and to eradi- 
cate those things whioh have been declared to be 'vice' by 
them. In other words, no state can be called Islamic if it does 
not fulfil this fundamental objeotive of an Islamio State. Thus 
a state whioh does not take interest in establishing virtue and 
eradicating vioe 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 Islamio State. An Islamic Constitution must declare 
the above mentioned objective as the primary duty of the 


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- 

!. As this is one of the most vexed problems of oar age, the reader in 
requested to study those works of the learned author whioh deal with 
this problem in detail. The reader is particularly refen id to Purdah 
'and tho Statu* of Woman in Islam by Maulana Maududi, Published by 
Islamic Publications Ltd., Lahore.— Editor. 

264 The Mamie Law and ConsfiMttm 

thority, and if there is any dispute bet ween yon ooncerning 
any matter, refer it to Allah and the Messenger, if yon 
{really) believe in Allah and the Last Day. This is the best 
course (in itself) and better as regards the result." (4 : 69) 
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 snpport 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 goos astray manifestly." (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 or abhors it, provided 
he is not ordered to commit sin. In that oase, he 
should neither listen nor obey."* 

{d) "Even if an ugly and deformed slave is elected aa your 
ruler and he conducts your affairs in accordance with 
the teachings of 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 
(/) "There is no obedience for those who disobey Allah ."4 

1. Related by Bukhari and Muslim. 

2. Belated by Muslim, 

3. Related by Bukhari and Muslim. 

4. Tibrart. 

PuntomtiOals of J$lamie Cvnrtihdicm 


(g) "There is no obedience to the Creature if it Involve* 
disobedience to the Creator.'* 

The above-mentioned in junctions of the Qur'an and the 
Sunnak definitely point out that in an Islamic State the legis- 
lature has no right to make laws, the executive has no right to 
issue orders and the law courts have no right to decide cases in 
contravention of the teachings of the Qur'an and the Suntuih ; 
and if they do so, the Muslims have no obligation to obey 
them. Not only that, the fact of the matter is that if they 
disobey them, they will be perfectly within their 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 legislature. In such a case it is that order or the legislative 
enactment which is in conflict with Shari'ah — and not the 
Shari'ah — that should be declared ultra vires of the constitution 
and set aside. 

■ (2) Muslims alone caD be the rulers in an Islamic State. 
The verse (4 : 59) quoted above clearly lays 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 anil 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. 


Th* Islamic Law and Constitution 

up) against them ' * - - 

Another tradition «ya that when the Companions asked 
the Prophet's permission to rise against bad rulers, he replied ; 

"No (you cannot rebel against them) so long as they 

continue to establish Salat among you." 2 
After these clarifications, no shadow of doubt is left that 
there is absolutely no scope 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 : 69) 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 tho 
light of the Qur'an and the Sunnah. But the Shariah 
does not prescribe any definite form for this purpose. 
It may be a body of 'Ulama or it may be in the form of 
a Supreme Court. The verse demands that there must 
be some institution for this purpose. 3 


The Qur'an says : 

"Lo ! Allah commandeth you to repose truth with the 
trustworthy and when you judge between people, judge 
justly:" (4:68). 

"Let not the enmity of any people seduce yon from 
doing justice (to them). Do justice (in every ease) for it is 
nearer to piety." (5 : 8) 

1. Related by Bukhari and Muslim. 

2. Related by Muslim. 

3. Maulana Maududi has preferred the Supreme Court as the repository 
of thU authority. This is clear from hit "Constitutional Proposals"— 
Soe Chapter X.— Editor. 

Fundamentals of MamiaConHUmtim 287 

. . . _ _ -_ - - %■ 

These verses enjoin the Muslims to dp justice individually 
aa well aa collectively. An Islamic State is, therefore, bound to 


be just, for it is the most powerful institution for administering 
justice among people. If there it no justice in its own affaire, 
there can be no justice in the society in general. 

The Holy Prophet (peace bo on him) and his Rightly 
Guided successors {KhuIafa-t-Rashideen) also have impressed 
the importance of doing justice between the people, as for 
instance : 

(1) In his well-known address on the occasion of his last 
pilgrimage to Mecca, the Holy Prophet enunciated 
some fundamental principles of the Islamic State. Ono 
of them was : 

"Most surely, your life, your property and your 
honour are aa sacred as this day of hajj (pilgrimagp 
This declaration of fundamental human rights hinds an 

Islamic State to scrupulously safeguard the life, property and 

honour of all its citizens. 

(2) At the same time, the Holy Prophet himself has 
speoified as to when this sanctity can be set aside. He 

says : 


(a) "When people do this (that is. stand witnesses for tho 
sovereignty of Allah and the truth of Prophcthood, 
establish Salat and pay Zakat), they will save their 
lives from me (i e., the State) except when they commit 
a crime against the law of Islam. And as regards the 
assessment of their intentions, Allah alone can be the 

(6) "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. Related by Bukhari find MosHm. 

2. Ibid. 

3. Ibid. 

268 The I$tamic Law and CanttiMion 

(c) "Then any one who recites it (the Kalimah o(Towheed) 
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 princi- 
ple of Islamic SharVah that all non-Muslims who live under the 
protection of an Islamic State aro entitled to the same civic 
rights that the Muslims enjoy. 

(3) As regards the procedure to bo adopted for the admin- 
istration 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, he 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 territory of Iraq, some people began to back- 
bite and make false allegations against one another and in this 
way, were responsible for sending many person behind the 
bars. When such complaints were brought before tho Caliph 
'Umar, he passed the above order. It meant that no one could 
be imprisoned without a regular trial in a law court and without 
giving him full opportunity to defend himself. 

(4) When- the Kharijites who did not believe in any state, 
rose in revolt during the Khilafal of Caliph 'Ali, he 
wrote to them : 

1. Related by Bukkari. 

2. Related by Abu Da'ud, Tirmiti and Ahmad. 

3. Related by Malik, Mwatta. 

fundamentals of Islamic Conatiimtio* 869 

"You may live ud move about wherever you like 
you a > not shed.blood or spread ehaoa and resort 

_ _ jm. But if you are guilty of any of these, I will go 

to war against you." 1 

This means that no action would be taken against anyone, 
whatever political ideas he might hold, so long as he does not 
try to overthrow the government by violent moans. 

From these detai Is it must have become perfeotly clear that 
the Islamic concoption of justice does not at all allow that the 
executive be given the powers to arrest or imprison or exile or 
suppress the rights of belief, opinion, expression of any body 
without the due process of law that meets the end of justice. 

Moreover, wo lcaru from authentic traditions that Islam 
does not allow any differentiation or discrimination 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 
aame procedure and the same courts for all of them. Before his 
demise, the Holy Prophet (peace be on him) presented his own 
self for the satisfaction of any claim that any one might have 
against him. Similarly, Caliph 'Uniar forced Jabalah bin Aiham 
Ghaesani, the ruler of a native state, to satisfy the claim of a 
common man against him. He also categorically refused to 
comply with the request of 'Amr bin al-'As for legal safeguards 
for the Governors. Not only that, he gave to everybody the 
right to sue in ordinary courts any Governor and the highest 
officers of the State. 



■ * 

The Holy Qur'an says : 

(o) "In their wealth the beggar and the destitute have 

their due." (51 : 19) 
(ft) "Purify them (of vice) and develop them (in virtue) by 
taking Zokdl from their wealth and pray for thorn". 

(9 : 103) 

1. Kelatod by Shuukaai, Nail-al-Autar. 

270 The Islamic Law and Constitution 

The Holy Prophet saya : 

(a) "Allah baa made Zakat obligatory upon the Muslims. 
It is to be collected from the wealthy among them and 
distributed among their needy ones." 1 

(b) "The Government is tho guardiati of any one who haa 
no other guardian." 2 

(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 
u^pon) his inheritors." 3 

Ar-oording to another tradition ; 

(J) Anyone who dies in the debt or loaves behind depen- 
dents who aro in danger of becoming destitutes, they 
should come to mo because I am their guardian.' 1 * 

Id the words of yet another tradition : 

(e) "If anyone leaves behind property,- it will go to his 
heirs, but if anyone leaves behind some liabilities 
(instead), tho burden of their responsibility falls on us 
(i e. t the State) 

A similar tradition is related by Abu Da'ud : 

(/) "If a person leavos behind no inheritor, I shall be his 
inheritor, both for paying off his liabilities and inherit- 
ing his property 

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. 

1. Kolated by BukKari and Muslim. 

* Belated by Abu Da'ud, Tirmizu lb* Majah. D*rmi. <Musnad-+Ahmad. 

3. Related by Bukhari and Muslim. 

4. Ibid. 

5. Hid. 

6. Related by A*>u Da'ud. 

Fundamentals of Islamic Constitution 271 


Wo have presented, in the foregoing pages, some funda- 
mental constitutional principles from the Qur'an and the 8unnah 
for the benefit of thosj who are interested in the subject. 
Now it id 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 ttiese principles have nothing to 
do with the Constitution of the State or poiuts out any funda- 
mental constitutional problems (not their details) for which no 
guidance is available in the Qur'an or the Sunnah. 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 : 4 * We do not recognize 
the Qur'an and the Sunnah as the final authority." To choose a 
middle course between "Iman" and "Kufr" is neither honest 
nor honourable nor fruitful in the long run. 

Chapter 8 

Rights of Non-Muslims 
in Islamic State 


THE question of the rights of non-Muslims in an 
Islamic State has been oae of the most burning 
question* ever aince Pakistan came into being. 
In 1&48 the Constituent Assembly issued a ques- 
tionnaire to ascertain the opinions of experts sa 
well as of the general public about the position of 
minorities in Pakistan. Maulana Maududi has 
discussed the problem ^om the Islamic viewpoint 
in this article which appeared in the Tarjutnan 
al-Qur'Sn, in its issue of August, 1948.- Editor. 



"\7TThILE discussing the rights of non-Muslims in an Islamic 
State, it should be dearly borne in mind that an Islamic 
State is essentially an ideological state, and is thus radically 
different from a national state. This difference in the very 
nature of these two types of states has an important bearing on 
the problem under discission, and can be best understood by a 
comparative study of the following points : 

(1) An Islamic State olaasi- (1) A national state classi- 

fies the people living within fies its citizens into groups of 

its jurisdiction in the light of 
their belief or disbelief in the 
ideology which constitutes 
the basis of the State. In 
other words, the people are 
divided into Muslims (who 
believe in the ideology of the 
State) and non- Muslims (who 
do not believe in that ideo- 

(2) It is obviouB from the 
ideological nature of an Isla- 
mic State that responsibility 
to run the State should rest 
primarily with those who 
believo in the Islamic ideo- 
logy. Those who do not 
believe in the ideology of the 
State can, no doubt, be asked 
to cooperate, if they so like, 

people in accordance with 
their belonging or not belong- 
ing to the nation or race which 
has established the State in 
question or which dominates 
over it and is responsible for 
running it. Herein the torms 
'majority' and 'minority 1 are 
used for the two respective 

(2) The task of guidance 
and policy-making in a 
national state always remains 
in the hands of the majority 
community. As for the mino- 
rity communities (whether 
social, cultural or religious) of 
the same nationality, they an* 
not trusted with nor deemed 
capable of shoulderiug this 

Rights of Non-Muslims in Islamic State 


with the Muslims in the task 
of administration' hut they 
should be neither called upon 
to undertake nor can be en- 
trusted with the responsibility 
of policy-making. 

►onsibility. This position 
may not be explicitly declared 
or even admitted. Nay, the 
constitution of the country 
may categorically abolish all 
discriminations 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. Iu reality 
the minorities have nowhere 

any say in important matters 
of the State. 

(3) On the other hand, a 

national state can and in prac- 
tice does follow tho hypocriti. 

cal policy equating- all its 
citizens on paper and still 
actually retaining the unfair 
discrimination between the 
majority and the minority. 
Nobody can deny the fact that 

the minorities are almost 
everywhere deprived of even 
their basic human rights in the 
so-called modern national 

(4) A national state, on the 
other hand, generally adopts 
any one or more of the follow* 

jug courses for the solution of 
its minority probfoin : 

(3) An Islamic State, as 

already stated, is by its very 

nature bound to distinguish 

between Muslims and non- 
Mushms and it, in an honest 

aud upright manner, not only 

publicly declares this state of 

affairs but also precisely 

states as to what rights will 

be conferred upon its non- 
Muslim citizens and which of 
them will not be enjoyed by 

(4) To solve the problems 

arising out of the presence of 

non- Muslims (i the people 

not subscribing to the basic 
principles of tho State) within 


Th* Islamic Law snd Constitution 

its boundaries, an Islamic 
State guarantees them certain 
specifically state rights. Be- 
yond those rights it does not 
permit them to meddle with 
the affairs of the State which 

is based on an ideology to 
which they honestly do not 

subscribe. Nevertheless, as 

Islam does not believe in false 

distinctions of race, ooloar, 

or territory, it always keeps 

the door open for them to 

ombrance Islamic principles 

of life and become equal 

participants in all matters 

concerning the State and the 



(5) An Islamic State is 
bound to confer all those 
rights on its non-Muslim 
citizens which have been con- 
ferred upon them by the Isla- 
mic Shari'ah. No one has the 
right to effect the slightest 
curtailment in them 1 . Mus- 
lims have, however, been 
empowered to confer upon 
them additional rights subject 
only to their not being repug- 
nant to the teachings of Islam. 

(») to gradually destroy the 
separate entity of the mino- 


rity community ; 

(ii) to exterminate it physi- 
cally by means of genocide; or 
{Hi) to allow them to exist, 
as untouchables. 

All these three methods 
have been and are still being 
largely employed by national 
states all over the world. 
Muslims of India are now hav- 
ing a very bitter experience of 
this solution of minority 

(6) Whatever rights 
actually granted to the mino- 
rity under a national state, 
depend on the sanction of the 
majority. Thus the fate of 
the minorities depends on 
the whims and caprices of 
the majority who always 
has the power to curtail them 
and even to deprive them at 

will of even the fundamental 
human rights. 2 

I. Henoe the word "2mmm" which literally means "guaranteed^ 
S. Foreign reviewers and oritio* have particularly criticised thw Hiioaa- 
siou over the approach and policy of a national state and nave 

described it as inaccurate and even "burlesque." 

Sight* of Non.M**Um* In UUmAc BMU W 

These fire points of distinction slurtr rery dearly how 
IsUin treats iU iron -Muslim subjects nd how a national state 
treats its racial and cultural minorities. I r these distinctions 
are ignored, one cannot escape falling a prey to many a mis- 
understanding doe to the hypocritical pretension* of the 
nresent-day national states of granting equal rights to all 

But this criticism of theirs is totally unfounded. The description 
of national minorities givon by the author is based on most authentic 
sources. Wo would refer tho learned critics to see C. A. Macartney, 
National Stole* and National Minorities wherein the author, on unim- 
peachable evidence, describes the fate of national minorities ... 
national states. Re observes : 

"A national stat* and national minorities are incompatibly 
Whore fate has pet a nationally conscious minority in a stnte, tlinro 
are only three possible solutions and (although few government bo. 

lieve this) forcible denationalisation is not one of them- Perhaps 
fourth should be counted phytic** ttauahUr : but although thU effective 
of ail remedies ie •till in vogue in certain countries, it shall not ba dis- 
cussed here. The three possibilities whioh oan be considered are : 
either the theoretioal basis and extsiting populations may bo left 
untouched, but the frontiers may be revised in suoh a way as to leave 
tho alien elements outside them ; or the bases of the 8tate may be 
retained, and its frontiers left intact, bat the minorities may be eli- 
minated by emigration (perhaps through exohange of populatian) ; or 
thirdly, existing population and frontiers may be retained, but the 
basis of the State may be altered/* <P- 423 > 

This is the theoretical position, but in practice, the second (i.e.. 
elimination by migration) and the fourth (i.e., physical extermination) 
remediee have usually been adopted. An idea of the position of mino- 
rities can be had from the following extract from the abrve-quotea 
book of Prof. Macartney who aoted as Secretary to the 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 these have been made a dead latter, our Governments havo vio- 
lated their treaties again and again. They have deprived us of our 
land, our schools, our churches, and the League has let them do it. It 
has winked at flagrant violations of the Treaties. It has put ua off 
with mealy-mouthed resolutions about our duties .The marofaet 




Tk$ Islamic Law and (kmMiMitm 

citizen* of the Slate on paper on the one hand and leaving none 
of them unrelated in practice on the other. 

We now revert to the problem under consideration. 




The Islamic Shari'ah divides its non-Muslim citizens into 
three categories, i)»2. 

(a) Those who become the subject* 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 


So far as the general rights of non-Muslims (t,e., the funda- 
mental human rights) are concerned, all are treated alike. 

that from the inauguration of the Loague procedure up to February 
1931 no less than 62o petition* had beon submitted to the League 
(excluding those submitted under the Upper Silesian procedure) 

indicate no \.e; hy state of things It is, moreover, notorious that 

certain of the minorities whose cage has been the most dismal have 
been afraid to petition tho 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 oases of rap- 
ing, torture and murder ; from in justice* inflicted on individuals to 
the systematic oppression of communities hundreds of thousands 
and even millions strong (pp. 381-384). 
The author admits in clear words that : 

"Generally speaking, the fate of minorities has been one of suffer- 
ing. Almost every state has oommitted. and every minority suffered 
under, flagrant violations of the Minority Treaties, And these have 
boen committed, to all intents and purposes, with impunity," (p. 
390). (Emphasis mine) 

Other authorities can also be quoted in support of the bitter facts 
presented above— Editor. 

Right* of Nan- Muslims *» Mamie State 270 

However, the respective instruction* relating to the first two 
p roups being slightly different from each other as well as from 
those concerning the third group, we propose to deal first with 
the specific instructions relating to groups (a) and (b) before em- 
barking upon a disoassioa on the general rights of all Zimmis. 


For those who accept the hegemony of an Islamic State 
without or even during a war, and enter into a specific contract 
with it. Islam prescribes that all matters relating to them 
should invariably be decided in accordance with the terms pf 
the treaty or agreement. To offer generous treatment to oppo- 
nents in order to persuade them to lay down arms and thm to 
throw them overboard, is tho everyday practice of all the so- 
r ailed civilized nations of the world ; but it militates ajrainst 
the injunctions of Islam which cannot brook such deception. 
Islam considers such feats of strategy as fraudulent and mean 
nnd prohibits them totally. It enjoins that once the terms have 
heen settled with any group or community, they must be fully 
arfhered to, even if they seem to be distasteful later on. Mus- 
lims are bound by their faith to abide by thorn and to carry 
^hem out in letter and spirit. The Holy Prophet (peace be on 
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 those of 
their progenies, then do not take a penny more than tho 
fixed amount, because that will not be valid." 1 

"Beware ! whosoever is cruel and hard on such people 
"contractees") or curtails their rights, or burdens 
them with more than they can endure, or realise anything 
from them against their f/ee-will. / shall myaelf be a 
complainant against him on the Day of Judgement"* 

- — ^» i i i *- w m mm 

1. Related by Abu Da*ud, Tht Book o/Jihdd, 

2. Ibid. 


Islamic law and Constitution 

These in juno tiors rf the Holy Prop bet (peace be on him) 
clearly and unambiguously proclaim that no arbitrary change 
or alteration ia permissible in the terms and conditions of any 
agreement that is entered into with the Zimmis. Neither ean 
the amount of their annual levy be arbitrarily increased nor 
their lands and their buildings be confiscated against that agree- 
mant. 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 Hres, honour and pro- 
perty are as sacrod as those of the 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 oapacity. 


Thus, in the case of the contractee non- Muslims the funda- 
mental principle is that the relations between them and the 
Islamic State shall bo baaed on the terms of the agreement. As 
Buoh 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 snoh non-Muslims 
should be treated according to the terms of the agreement or the 
treaty that might have been entered into. Imam AbQ Yeusuf 1 
writes : 

"We shall take from them only what was mutually 
fixed at the time of peace-making. AH terms of the treaty 
shall be strictly adhered to and no additions would be 

The "Conquered" 

People who continue to fight against the Muslims till they 

1. lmim Abu Youauf was one of tho greatest Jurist* of Islam. Ho was 
the Chiof Jiwtioe of tho Abbas id empire during tho reign of Harm* 
al-Hftshid. Ho was tho chief disciplo of tho groat legiftt. Imam Abu 
Hanifa and he has boon regarded, throughout Mualiza history, a* ma 
authority on Muslim Law. HU great work, Kilah al*Kham$ ia counted 
as one of the iouroe-books on the Hanaflte law.— Bdtior. 

2. Abu Vo.usuf, Kirab aUKharaj, Cairo, p. 35. 

Sight* of Non-Muslims in Islamic State 


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 certain Bpecifio rights, details of which oan he found 
in all the standard books on this subject. Here we state briefly 
all those relevant injunctions on this point, which explain the 
constitutional status of Zimmis belonging to this category : 

(a) As soon as the State accepts Jizyah from them, it be. 
comes the obligatory responsibility 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 

(6) After the agreement the Zimmis 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 suoh 
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 prescribed for Jizyah t and it has been 
enjoined that only that much should be taken which 
does riot involve undue hardship in payment, Caliph 


The Mamie Low and Constitution 

'Uoiar in bit time, fixed the amounts which were equi- 
valent to rupee one 1 per month for the rich people, 
fifty paisaa per month for the middle classes and only 
t twenty-fire paisaa per month for the poor, 

(&) Jizyah is levied only on those who hare actually 
fought against Muslims or who are able-bodied and can 
participate in a war against Islam. Noncombatants like 
women, ohildren, lunatics, blind, lame, age-stricken or 
physically disabled persons are exempt from Jizyah. 
Similarly the olergy, the monks and the servants of the . 
monasteries are exempt therefrom. 1 

(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. Aba Yousuf writes : 

"All such places of worship were left as they were. 
They were neither razed to the ground nor were tho 
conquered deprived of their goods or property* 1 . 8 
Ancient places of worship are never permitted to be des- 



We will now discuss those rights of the Zimmis whioh cover 
all the three groups categorised above. 

The blood of a Zimmi is considered as sacred as that of a 


1, A rupee is approximately equal to 4.5 pence and there arc luO paisas 
in a Bupee,— Editor. 

2. Seei Kamaluddin Ibn Ham roam, Fatk al*Qadir and Abu Yousuf, Kiiab 

3- Abo Yousuf t Ibid. 

Bights of Non-Mtitlima in Islamic Statt 283 

Muslim. If a Muslim kills a Ziwwf, retribution and restitution 
will have to be made just as for killing a Muslim. A Muslim 
killed a Zimmi in the days of the Holy Prophet (peace be on 

The Holy Prophet ordered his execution saying : 

"I am responsible for obtaining redress for the weak". 1 

In the days of Caliph ' Umar a person of the tribe of Bakr 
bin Wa'il killed a Zimmi of Hirah. The Caliph ordered that 
the murderer be handed over to the kith and kin of the deceas- 
ed. This was done and the successors of the deceased executed 

During the reign of 'Uthman, the third Caliph, an order 
was issued for the execution of Obaidullah, son of Caliph 'Umar 
because he was said to have killed Hurmuian, the assassin of 
'Umar and the daughter of Abu Lulu under the impression that 
they had conspired to murder his illustrious father. Both of 

them were Zimmit. . 

In the dayB of 'Ali, the fourth Caliph, a Muslim was accus- 
ed of murdeiing a Zimmi. The oharge being proved, 'Ali 
ordered the execution of the Muslim. The brother of the de- 
ceased submitted, however, that he had forgiven him. But 'Ah 
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, persistently insisting that he had 
received the blood-money and that the deceased would not 
return to life by the ereoution of his murderer, then and only 
then did 'Ali gave his oonsent te release the murderer and said : 

"Whosoever is our Zimmi his blood is as sacred as our own 
and his property is as inviolable as our own property." 

In another reference, 'Ali ia reported to have said : "They 
have accepted the position of Zimmia on the explicit under- 
standing that their properties and their lives will remain sacred 
like those of ours, i.e., ofthe Muslims)". 

That is .why the Muslim jurists have inferred that if a 

I, Shaukani, Noil al-Aular, 

384 The Islamic Law and Constitution 

Muslim, even unintentionally, kills a Zimmi, similar compensa- 
tion must be paid aa is fixed in the case of the unintentional 
murdor of a Muslim. 

Zimmis and the Criminal Law 

The Penal Laws are the same for the Zimrnis and the 
Muslims and both are to be treated alike in this regard. The 
Zimmis are subjected to the same penalties as are the Muslims. 
Thus, for instance, whether, it is a Zimmi who steals or a Mus- 
lim, the hands of the thief will be chopped off in both oases. 
Similarly, whether it is a Zimmi or a Muslim who levels an 
unproved oharge of adultery against any male or female, the 
same punishment would be meted out to both. The punishment 
or adultery is also the same in both oases. In the matter of 
drinking wine, however, the Zimmi* are exempt from punish- 
ment. 1 

Civil Laws 

The Civil Laws, too, are the same for both the Zimmis and 
the Muslims. There is thus complete equality between them in 
this respect. In fact, this was exactly what 'AH 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 Zimmis. 

Whatever objects, forms and means of trade are prohibited 
for the Muslims, the same are also prohibited for the Zimmis. 
For instance, interest is unlawful (haram) for the Muslims and 
similarly it is unlawful for the Zimmis. But in the case of 
drinking wine and eating pork the Zimmis 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 

w m 


1. According to Imam Malik, the Zimmit are exempt from the punish- 
ment for adultery also. He infers this from the decisions of 'Omar 
and *Ali whioh lay do wo that if a Zimmi commits adultery his case, 
should be referred to his co-religionists, 

Rights of Non-Muslims in Islamic State 


or destroys their liquor or their pigs, he will be made to pay 
compensation for that loss. According to the Dvrr aUMukktar : 

"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 
respeot 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 much prohibited as is to backbite a Muslim 1 ' 9 . 2 

The Inviolability of Guarantees 

The responsibility which Muslims take upon themselves in 
respect of ^non-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, ao far as Muslims are concern- 
ed, the responsibility of Zimmis if once accepted becomes obli- 
gatory and it oannot be forsaken. But for the Zimmis, it is 
discretionary, i.e., if they desire to forego it, they can do so. 3 

A Zimmi may commit 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 (peaoe 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. Alauddin,, Dutr al-Mukhlar. It is an authentic collection of the 
judgments >ind JaUoae <vordicta> of the Hanafi aofaool of thought. — 


2. ^lauddin, Durr ai-Muhhtar. 

3. Alauddin Abu Bakr bhi 6a«ud oMCasSni, Baddi' al-Sanai* ; a source- 
book of the Hanafi school of Islamic Law.— Bditor. 


The Islamic Lan and Oonttitution 

following two crimes which deprive the Zimmia of their rig hfc 

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 it. 

Personal Law 

All personal matters of the ZimmU are to be decided 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 Zimmia 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 their Personal 
Law. For instance, marriage without witnesses and without 
fixation of Mehr (dower money) or marriages within the period 
of '/ddol, 1 or marriages in contravention of consanguinity, if 
permitted in the Personal Law of the Zimmi9, will be allowed 
to stand. This has been the rule of all Muslim Governments 
since the days of the early Caliphs, 'Umar bin' 4 Abd al- 4 Aziz 
once asked for Jaiwa in this respect from Hasan al-Basri, 
saying : ■ 

"How is it that the Caliphs left the Zimmia free in the 
matters of marriages regardless of consanguinity and in the 
matters of drinking wine and eating pork 1" 
Hasan replied : 

"The Zimmia accepted to pay Jizyoh only beoause 
they wanted to be free to live in accordance with their 
own Personal Law. Yon have only to follow what your 
predecessors did. You are not to deviate or to innovate". 
But if from amongst the Zimmia both the parties request 
that their disputes be decided in the light of the Islamic 

I. This poriod is normally four m* >uth$ and ten days*. In the ease of pre. 
gnauoy, it oxtends to and expires on dolivory. 


Bifhte of Non -JfaeUm. %• bktmU Btato 

the Islamic Court, will enforce the Apr** on thenv 
Further, if in a matter of Personal Law. one of the « a 
Muslim, the case will have to be deaii with in aooordauae with 
the Islamic Shari'ak. For instance, if a Christian woman 
marries a Muslim and become, a widow she cannot £ p«K. 
ed to marry until the expiry of the full period of Iddat. U 
she doe. so, such a marriage would be regarded as null and 

void. 1 

Religious Rite. 

The Islamic Law and practice regarding the public perfor- 
mance of religious rite, and communal festival, by the ZimmU 
are equally generous. In their own towns and citie. they are 
allowed to do so with the fullest freedom. In purely Muslim 
habitations « however, an Islamic Government has fall discre- 
tion to pat such restrictions on their observance as it deems 

In BadSi' it is said : 

"In localities not covered by the term 'purely Muslim 

habitations', the Zimmit will not be .topped from selling 
wiae or pork or from taking out procession, of the Crow or 
from blowing conches, although the number of Muslim in- 
• habitant, therein may not be negligible. These matter, 
win, however, be considered objectionable in town* . and 
places which may be termed as 'purely Muslim habitation 
i R ., those where Friday and 'Id congregation, are held 

' -Regarding acts which are prohibited by their codes 
also for instance adultery, they are to be restrained from 
committing them even within the limit, of their own town, 
and habitation.". 8 

1. AUMabni, Vol. V, pp. 88-40 technical term 

2 . ..^ely Musi i in ^^^J^^it^a^ haW** 
of the SW»'aA "Amsar al-Mutltm^. a demonstrating 
tion on lauds owned by Muslim and consecrated for demonstrat ng 
the glory and supremacy of the Islamic way of hfe 

3 Al auddm Abu, Bad*? e*W. ™ * "V 

"88 The Mamie 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-Maalim places of 
worship built in the past are not to be interfered with, and if 
they are damaged or destroyed, the Zimmia 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 oeaBed to be such areas and 
where Friday and ' irf congregational prayers and enforcement 
of hndud are no longer in vogue, the Zimmi* can build new 
plaoea of worship and demonstrate the performance of their 
religious rites, 2 

Ibn 'Abbas has said : 

"In towns founded by the Muslims, the Zimtnis 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". 3 

Concession in the Realisation of Jizyah and Kfaaraj 

The use of violence and coercive methods in the realisation 
ot Jiyzah or Kkaraj is prohibited and kindness and benevolence 
are enjoined in this respect. It is also forbidden to impose 

■ ■ 

■ I, Sharah al-Siyaf aUKabir, Vol. Ill, p. 261. 

2. Baddi*. Vol. VII. p. 144 ; Sharah <il-Siyar aUKabir, Vol. Ill, p. 667, 

3, Abu Yoususj Kitab a'-Khantj, j>. 88. 

Eights of Non-Mualims in Islamic State 280 

* amounts which may be beyond their means. Caliph 'Umar bad 
clearly ordered that they should not be made to pay more than 
what they could actually afford. 1 

And even for that are not to be put to any undue incon- 
venience. Thus, their properties cannot be auctioned in case of 
failure to pay Jizyah. Oaliph '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 his 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 
auotioned for this purpose. Now that we have been made 
their rulers we should treat them with mildness Mid 
leniency. 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 offioe". 3 

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'. 4 

When, during his journey to Syria, Caliph 'Umar learnfef, of 
governor's punishing the Zimmis for non-payment of Jizyah, he 
said : 

"Do not chastise them, for if you do so, God Almighty 
will do the same to you on the Day of Judgment". 6 
HiBham bin Hakam found a Government officer punishing 
a Qibti for failure to pay Jizyah by making him stand in the 


1 w 

1. Ibid.* pp. 8, 32. 

2. Fath al-Bayan, Vol, 4, p. 93. 

3. Abu Yousuf, Kiiab al-Kharaf, p. 9. 

4. Ibid., p. 82. 

5. Abu Yousuf, Kitab aUKhamj p. 71. 

290 The Islamic Law and Constitution 

sun. He scolded him and said : 

"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 
hare permitted the awarding of only simple imprisonment as a 
oorrecti rc measure. 2 

Those Zirnmis who become bankrupt, are not onlj 
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 Peace" given to the 
people of Hi rah, wrote : 

"I hare stipulated that if any one of them becomes 
unfit to work on account of old age or some other cause, or 
if anyone who was formerly rich becomes so poor that his 
co-religionists hare to support him by giving him alms, 

such persons will be exempt from paying the Jizyah and 
they, together with their dependents, will be helped from 

the Islamic Treasury (Bait al-liaiy\* 

Once Caliph 'Umar noticed an old Zimmi 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 is 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 

During his journey to Damascus, Caliph 'Umar ordered 
the fixation of pensions for the invalid and the aged Zimmi* fi 

1. Abu Da'ud, Kitab aUKharaj, Baab al-Fae' tea al-Imarak, 

2. Ibid., p. 70. 

3. Ifctt., p. 85. - 

4. PM„ p. 12 ; Fath al-Qadir, Vol. 4, p. 273. 

5. Fu/uh al-Bufdan (European edition), p. 129. 

BigM* of Non-Mu*lintt i* Idamic State , 301 

If any Zimmi dies leaving arrears of J izyah , those arrears 
cannot be realised from the property he has left nor can they be 
olaimed from his successors. Abu Yousuf writes : 

"If any Zimmi has to pay Jizyah and dies before pay- 
ing it, the same will not be realisable from bis successors 
nor from the propety left by him". 1 

Trade Tax 

Zimmi traders also have to pay a trade-tax as ia charged 
from the Muslim traders on trade goods oi the value of «00 
dirhanu or more or if they own 20 mithqals or more of gold* 
No doubt, in the beginniog, the Jurists levied 5% trade-tax on 
Zimmi business-men whereas only 2*% was realised from the 
Muslim traders. This was, however, not on the basis of any 
Qur'aoie injunction but solely on the exigencies of time. The 
position was that Muslims had been mostly busy in the defence 
of the oountry and business had almost entirely passed into the 
hands of the Zimmi t. The tax was reduced ia tb* ease of 
Muslim traders only to enoourage and protect them from undue 


competition. 1 

Exemption from Military Service 

Zimmis have been exempted from military duty, because 
the defence of State against its enemies has been made the res- 
ponsibility of its Muslim population only. Evidently only 
those people who believe in the basic ideology of the State 
sinoerely can and should light for its protection. Agaih, only 
the believers* in that ideology can be expected to honour the 
moral principles whieh have been prescribed by Islam for war- 
fare. Others can fight for it only as mercenaries and, oonse- 
quently, they cannot be expected to observe the Islamic ethical 
code in the heat of the battle. These are the main reason* 

1. Abu Youauf, Kiiab aUKharaj, p. 70 ; Al-MaUut, Vol. X, p. M. 

2. Ibid., p. 70. But this ceiling for trade good* or ownership can be 
revised. It was fixed with respect to the conditions prevailing at- the 



The Islamic Law and Constitution 

why the Zimmis have been exempted from military service and 
have only been enjoined to pay their monetary share in the 
defence of the State. Jizyah is thus not only a symbol of 
loyalty to the State but it is also the contributory compensa- 
tion for exemption from military service, and that is why it is 
imposed only on males, capable of military service. When- 
ever Muslims are unable to protect the Zimmis, the Jizyah and 
Kharaj that might have been realized from them, have to be 
retnrned.l At the time of the battle of Yurmnk, when the 
Romans gathered huge armies to fight against the Muslims and 
the Muslims had to forego their occupation of most of the towns 
of Syria in order to concentrate at a single point. Abu 'Ubaidah, 
the Commander-in-Chief, ordered his subordinates to return the 
Jizyah and the Kharaj already realised from the Zimmis and to 
inform them that as the Muslims were unable to proteot them, 
they were returning whatever they had realised from them. It 
need hardly be added that all offioers promptly did so. Balazuri, 
describing the reactions of the non-Muslim population of these 

. For a detailed discussion on this subject refer to : Mcbttut, Vol. X, 
pp. 78-79 ; Hadaya, Kitab al-Siyarfi Qitmat rt-Gh*uacm and 
Baab aUJizyah ; Fath al-Qadir t Vol. IV, pp. 827-28 and pp. 369-70. 

It Should, however, bo remembered that if the Zimmis offer their 
Services voluntarily in case of war, the persons doing no will be ex- 
empted from payment of Jizyah. Furthermore, the faot that should 
also be kept in view in this respect is that the obnoxiousness that the 
non-Muslims generally feel by the very mention of the term Jizyah, 
is the result of persistent, baseless propaganda that the antagonists 
of Islam have been carrying on for the last so many centuries. As a 
matter of fact there is absolutely no basis for this feeling Jizyah is 
the consideration for the protection and the safeguard of their rights 
that an Islamic State guarantees to the uon-Muslims. Then, this is 
realised from the able-bodied adult male.; only. The people who mis- 
ohievously oil) it 'a fine for not accepting Islam can be pertinently 
asked ! what name will they givo to &tku which is charged from ail 
adult Muslims-males as well « female s-and the rate of which is 
much higher than that of Jizyah f- Is that the 'fine for accepting 
Islam 1 f 

Bighte of Non-Muslims in lelamic State 


towns, writes that when the Muslims refunded the amounts of 
Jizyah in 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 aro not going to allow thoir agents to enter the 
gates of the city unless we are overpowered by them'*. 1 




In the foregoing pages we have briefly discussed the details 
of some of the laws whioh were adopted to proteot 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 Zitnrnis, the Muslim 
Jurists stood up with one voice to ohampion 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 this to 
him and he at once wrote to the governor of the province to de- 
molish those portions of the mosque whioh 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 baok all the exiles to Cyprus, for 
which he was highly praised both by his friends and foes. 
Isina'il bin ' Ayyash has mentioned this. He says : 


1. Fuluh aUBuldan (European ed.), 137, 
Sf. Z6t*,p,132. 

294 The 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 Yaiid bin Walid became Caliph and sent them 
back to Cyprus, Muslims generally approved of it and 
praised him for being just and good", 1 

Salaanri tells us that onee some of the hill tribes of Lebanon 
rose in revolt against the State. Thereupon, the governor, Saleh 
bin 'All bin * Abdullah, despatched an army to crash it and the 
army put all the male combatants of the revolting band to 
death. As for the citizens, he exiled some of them and allowed 
the remaining to live there. Imam AuxVi was alive in these 
days. When he learnt of it he reprimanded Saleh vehemently. " 
The following extraot from the letter that he wrote to him 
speaks for itself : 

"Zimmis of the hill-tracts of Lebanon have been exiled 
and you know the fact. Amongst them are men who had 
not taken part id the revolt. I fail to understand why 
common people should be punished for sins of particular in- 
dividuals and be deprived of their homes and properties. 
The Qur'anio injunction is quite clear that ultimately every- 
body will have to account for his own actions and nobody 
shall be held responsible for anybody else's actions. This 
is an eternal and universal injunction, and the beet advice 
therefore, that I can give to you is to remind you of one of 
the directives of God's Prophet (peaoe 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". 2 

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 called "Malla" — have always stood for the 
rights of Zimmie, and if at any time the rulers dared to be cruel 
to them, they ^s well as all the 'Utamd of the age invariably 

1. Futuh <d-Buldtm t p # 156. 

2. 2bid. t p, ISP. 

BighU of Non-Muslim* in Islamic State 295 

stood up to defend the rights of the Zimmis and to condemn 
such action in the strongest possible terms. 



I ■ 

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 upDn them by the Islamic 
Shari'ah. Muslims are not entitled to curtail 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 

(1) 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 whioh are commonly 

II 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 
(Gounoil) is to assist him in doing so. It is thus obvious that 
those who do not accept 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 non-MuslimB to become its members provided that it has 
been fully ensured in the constitution that : 

(i) It would be ultra v ires of the Parliament or the Legis- 
lature to enact any law whioh is repugnant to the 
. Qur'an and the Sunnah. 

296 The Islamic Late and Constitution 

{ii) The Qur'an and the Sunnah would be the chief source 
of the public. law of the land. 

(«») The Head of the State or the assenting authority would 
necessarily be a Muslim. 

With these provisions ensured, the sphere of influence of 
non-Muslim minorities would be limited to mattenfrelating 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 op 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 reoeiving the assent , 

of the Head of the State ; 

(6) they may submit representations, objections, sugges- 
tions etc., with the fullest freedom in regard to the 
general administration of the Government and the 
decisions of the Parliament. The Islamic Government 
would be bound to consider them sympathetically and 

(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 of Expression 

In an Islamic State all non-Muslims will have the same 
feeedom r of conscience, of opinion, of expression (through words 

RigMa of Non*Mu*Uma in Atomic 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 hare 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-Islamic creed there can be no objection to it. As 
regards Muslims, none of them will be allowed to change creed. 
In case 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-Muslim 
individual or organisation whose influenoe might have brought 
about this ohange of mind. 

The Zimtni* 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 

(3) Education 

They shall n orally have to accept the same system of 
education as the G eminent may enforce for the whole country. 

As regards religio eduoation, however, they will not be com- 
pelled to study If m, but will have the right to make arrange- 
ments for impart g knowledge of their own religion to their 
children in their own schools and colleges or even in the 
National Universities and Colleges. 

(4) Gorentment Service 

With the exception of a few keyposts all other services will 
be open to them without any prejudice. The criteria of compe- 
tence for Muslims and non-Muslims will be the same and the 
most competent persons will always be selected without any 

298 The Islamic Law and Oonetitution 

A list of keyposts 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 important 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 letter and the 
spirit of the ideology. With the exception of these keyposts, 
however, all other posts will be open to the Zimmis. For 
instance, nothing can debar them from being appointed as 
Accountant-General, Chief Engineer or Postmaster -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 Zitnmis. 

(5) Trade and Profession 

In ail Islamic State, the doors of industry, agriculture, trade 
and all other professions are open to all, and Muslims have no 
special privileges over non-Muslims in this regard, nor are the 
non-Muslims debarred from doing that Muslims are permitted 
to do. Every citizen, bo he a Muslim or a non-Muslim, enjoys 
equal rights in the field of economio enterprise. 



It is necessary to emphasise before closing the discussion 
that an Islamic State is bound to give to the non-Muslim citizens 
whatever rights Islam prescribes or permits, regardless of what 
rights and privileges are given to or withheld from Muslims in 
the neighbouring or other non-Muslim states. Islam does not 
believe in the fact that Muslims should draw up their social or 
economic policies only with reference to the policies of non- 

Rights of Non-Muslims in Islamic State 290 

Muslims, nor does it tolerate that if non-Muslim b act unjustly, 
the Muslim states should make their 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 oode 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 Islamic 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 

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 oircle of injustice be broken whic^i 

is unfortunately going on in India with full vigour. And only 

in this way can Pakistan beoome the harbinger of truth and 

justice and show the right path to India also. The pity, how- 

ever, is that many non- Muslims of Pakistan who have been 
paying heed to 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 that a Secular Republic like the one in Injiia 

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, honeBty and 
observance of unalterable ethical principles than to follow one 
that has been tried and found wanting ? 

Chapter 9 
The Problem of Electorate 

MUSLIMS in our country have always stood for 
Separate Electorate. It was unfortunate that a 
question which was settled long ago, was reopened 
and as a result of political machinations it assumed 
great importance. Maulana Maududi discussed the 
pros and cons of the problem in an article which 
was published in 1955. The artiole is being given 
in the following pages.— Editor. 




THE continuous dilly-dallying with constitution-making has 
■tarted bearing 'fruits'. And one of the bitterest fru.ts we 
find in the form of the hitherto existing problems defying all 
tempts at their solution and an increasing number of new pro- 
blems cropping up with the passi ng of time. 

Not only that the issues which had all along been taken f^r 
granted as settled, are now being discussed afresh The latest 
Ltance in point is that of separate electorate winch ha op till 
now been sanctified by unanimity of Muslim op...- » £ 
continent. But no. it has entered the realm of con trove„y ^d 
debate, as certain groups from amongst the Mushms also have 
expressed themselves in favour of the joint electorate. 

This, indeed, is a most deplorable state of affairs. But 
since the entire nation has to face it, the mere expression of 
gri f and pain will not suffice. What is needed is . ^ 
analysis of the problem and an unbiased evaluation of the 
merits and demerits of the two systems of election and a ver- 
Sot based on reason rather than sentimental slogans and 
political catoh-worda. 

■ w 

Some Pertinent Questions 

To arrive at a sound conclusion, we must take into 
consideration the following four questions : 

Firstly why were the Muslims so bitterly opposed to the 
/ f tint electorate during the British regime m the 

whence Indian Rational Congas 

1 advocating it on ^^^^J^ 
hev had opposed all along ? 

The Problem of Electorate 303 


Secondly, we should consider quite .independently on the 
merits of the case, which system of election — joint or separate — 
is more suitable for 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 ? 

Thirdly, can there be any practical consideration, any sub* 
stantial national expediency which may make the introduction 
of joint electorate desirable ? What are the practical benefits 
that may accrue from its introduction and would they be accept- 
able to the people or not * 

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 

The following is a brief discussion of some aspects of these 
pertinent questions: 
Why Now ? 

What the protagonists of joint electorate ean 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 vis-a-vis 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 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 the working of the irown mind. But is it or was 

304 The Islamic Low and Constitution 

it ever the national mind of the Muslims I Was this their line 
of thinking in pre-partition days ? Did the general Muslims; 
minds move in these overt grooves I We are confident that the 
Muslims neither subscribed to this view in the past nor hold 
the view-point today. Our national psychology has neither 
been so corroded in the past nor is it by the grace of God so 
polluted today. 

Their rejection of the Congress standpoint was not merely 
because its adoption would have led to oatastrophi 
the Muslim minority inhabiting the Indo-Pakistan 
but primarily beoause 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. 

The history of this very sub-continent knooks the bottom 
out of the idea of territorial nationalism. Innumerable Hindus 
of India embraced Islam many centuries ago and as soon as 
they did this, they out off all their affinities with the Hindu 
society in spite of the fact that these converts to Islam and 
their former kith and kin belonged to the same race, expressed 
themselves in the Baine language and lived on the same terri- 
tory. On the contrary, Muslims coming from various distant 
countries were soon absorbed into the local Muslim society 
despite geographioal, raoial and linguistic differences. They 
become one with the local converts— members of one Islamio 
fraternity. . 

All this was not just a mere aocidont. It was the result of 
a peculiar concept of ideological nationhood and of the oentur. 
ies old traditions of Muslims— a concept and traditions which 
out accross all barriers of race, colour and language. 

It was due to these factors that Muslims started demanding 
separate electorate as Boon as democratic institutions were set 
up in the sub-oontinent. They trampled the Congressite one- 
nation theory under their feet and rejected the system of joint 
electorate which was intended to weld all the communities in- 

The Problem of Electorate S05 

habiting Hindustan into one nation. And it was a product of 
this very national consciousness that they ultimately oame for- 
ward with their demand for Pakistan in spite of the fact that 
they were not unaware that it would entail tremendous sacrifice 

in life and property. 

The only change that has occurred due to partition is that a 
new country has appeared on the map of the world comprising 
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 politioal change has so radically 
affected the national psychology as to make the nation succumb 
to the ooncept of territorial nationalism which was an anathema 
for them just a few years back t 

Disintegrating Factors 

Now we move on to the second question. It is evident that 
the system of joint electorate is feasible only in a country differ- 
ent sections of whose population differ from one another only in 
details and not on fundamentals. 

But everyone will acoept that religious creed, moral values, 
ooncept of life and patterns of culture and civilisation are not 
matters of secondary importance. They are of prime and funda- 
mental significance. Moreover, when these different sections 
have been separated* from eaoh other to Buoh an extent that 
their social spheres have become totally different and distinct, 
the consciousness of separate nationhood is bound to develop 
and thrive. 

To make such varying seotions of population of a country 
vote together can never be held as prudent and proper. For 
thiB would mean the assumption of a unity that does not exist. 
This unfounded assumption cannot change the throbbing facts 
and realities ; it cannot weld these divergent elements into one 
organic whole. 1 

L It would be instructive here to remind the reader of what QuaW-e- 
Azam Muhammad AH Jinnah said about this issue. In a speech in 



The Islamic Laxo 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 overwhelmingly 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 oonfliot. 

AH this will result in bringing to the fore a group of mor- 
ally depraved people piokforked into power by intrigues and 
conspiracies, and who will, in fact, ropresent none. And this 
will demolish the very basis of democraoy. Instead of adopting 
this erroneous and iU-oonceived method, based on a false and 
baseless assumption, wiU it not be better and wiser to face 
facts, to recognise the differences that do exist and to confer 
vpon every community the right to elect its own representatives 
who can best represent their view-point ? No one can deny that 
this method is more natural, more reasonable and more just. 

The Diversity 

A* for the third question, the only practical advantage 
that the protagonists of joint electorate may claim for that 
system is that it will suppress the feelings of separation and 
diversity, reduce the distinctive characteristics of these hetero- 
geneous elements and ultimately transform them into one 

November 1945 he doclared 

"We {the Hindus and the Muslim*) 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 wo are different- we cannot get together only in the 

The Problem of Electorate 307 

But our point of view is that we are not desirous of elimi- 
nating the distinctive features of the different communities of 
Pakistan. We are not at all keen to destroy their separate 
entity and coerce them to submerge their cultural individuality. 
And even if somebody considers this objective desirable, the 
method suggested for its achievement is absolutely wrong. 

The fundamental faotor that has divided and separated 
various sections of people in our country is the difference of 
religion. It is religion that has raised a huge wall that sepa- 
rates Muslims and non-Muslims. It is thn that has given them 
different principles of conduct, different objeotivos of life, 
different values of morality and different modes of living. It is 
religion alone that has separated their social orbits and has 
divided them into separate communities. 

One effoctive method of removing the factors that divide 
them can be to absorb the non-Muslims in the Muslim 

Howsoever desirable this end may seem, we should not 
. stoop down to political machinations to achieve it. If somebody 
has a liking for the Islamic ideology, he can embrace the 
brotherhood of Islam and booome a part and paroel of our 
nation. But if he does not agree with the Islamic ideology, he 
has every right to do so and we shall still be prepared to 
confer upon him his rights as a non-Muslim citizen of our 
Country. We are firmly of the view that resorting to the use 
of crooked means for the attainment of such an object is un- 
fair and un-lslamic and should be condemned by all fair-minded 

The only other course that remains to unify and integrate 
these diverse communities is to relegate religion and faith into 
the lumber-room of insignificance, to destroy religion as the 
main faotor shaping culture and civilization and foster a com- 
mon secular culture as the basis of Pakistani Nationalism. 

If this be the end, joint electorate is definitely a step forward 


ia this direction. 

308 The Islamic Law and Constitution 


Bat in this case the next step— a step that must follow— is 
to frame a secular constitution, which will lead to a atill far- 
ther step— to let religion live by sufferance and remain strictly 
confined 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. 

la this the object of the protagonists of joint electorate! 
If this is their objective, they should at least have the moral 
courage to say it frankly. 

But this may be the view of a few secularists. As for the 
millions of Muslims of Pakistan, they have nothing bat con* 
tempt for it. Beoause, if this was what the Muslims wanted, 
what was the harm in a United India (Akhand Bharat) 1 What 
was the need of offering a heavy price of life and property for 
the establishment of 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 this will prove suicidal 
for the integrity of Pakistan. 

Wo should not forget that it is the 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 Bingle country. 
Race, geography, language and mode of living— none of these 
factors can unify them. The only unifying factor is the religion 
of the majority which initially led to the establishment of this 
State and which alone can work as a unifying factor. 

The day the religious spirit and consciousness of the people 
are cooled down and people begin to feel in terms of any other 
linguist ii! 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 

in West Pakistan, 

Thus the notion that the issue of separate electorate is just 
a matter of choosing between two systems of election, is fallaci- 
ous and deceptive. This, in fact, is a matter of life and death 

for the State of Pakistan. 

If we want to keep the two wings of the country joined 
togethor, the only course can be to keep the consciousness of 
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 of territorial nationhood 
at the cost of Islamio 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 each other except religion/ 
The Case for Joint Electorate Considered 

Now let us have a oursory glanoe 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 of fear-complex, the 
fear of Hindu domination whioh is unf ounded in view of the 
superior numerical strength of the Muslims 1 

Secondly, due to separate electorate we find a strong block 
of Hindu members in East Pakistan Legislative Assembly and 

810 The Islamic Law and Constitution 

whenever there is an internal dissension in the ranks of Muslim 
members, they hold the balance of power in their hands. 
Separate electorate will only prepetuate this unfortunate state 
of 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 tke 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. 1 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 of 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 
of love for the greater good of the country. 

We have already thrown light on the causes of Muslims' 
insistence on separate electorate. As for the Hindus, their 
keenness for joint electorate is the outcome of their desire to 
fan the fire of 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 for the 
fulfilment of all their designs, 1 

The Hindus who were most influential in Bengal during the 
British rule have realised the futility of the method of direct 

I, See Appendix V-Editor % 

Th* Problem oj Electorate 31 1 

and open work. Now they want to sit behind the ecreen and 
pull wires. They know that those Muslims who are elected with 
the backing of Hindus will be far more useful and effective for 
the achievement of their aims than the Hindus themselves. 

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 dissensions in 
the ranks of Muslims will persist as a permanent feature of 
Bengali politics. Will those of our Muslim brethren who are 
so vooiferous in their demand for joint electorate, let us know 
as to why this state of affairs should continue to persist 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 Hindus, it would have 
already gone to the share of India at the time of partition. 

Now there is no area which the Hindus may legitimately 
demand. If the members of a community are in a majority in 
some small town or sub-district, can any sane person demand, 
on this basis, that community * 

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 electorate alone is in 
consonance with the ideology and needs of Pakistan. 

Chapter 10 
Some Constitutional Proposals 

(Submitted to the First Constituent Aworably of Pakistan) 

In 1952, Constitution-miking entered its moat 
crucial 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 oonorete and elaborate Constitutional pro- 
posals. These proposals were drafted in August 1962 
and were submitted to the first Constituent Assembly 
of Pakistan. This ia a very, important essay and 
throws a flood of light on the contents of the Con- ^ 
stitution which the Islam-loving people demand for 
Pakistan. An idea of the detailed provisions of an 
Islamic Constitution can be had by a thorough study 
of this article.- Editor. 


25 T the very outset, we wish to declare in the clearest posai- 
ble terms that our first sod 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 of a Com- 
mittee of 'Ulama for consultative purpose (but not having a 
final voice) in case of disagreement as to whether particular law 
is or is not against the Qur'an and the Sunnah, will serve that 

This purpose oannot 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 enaot any law which 
conflict with the teachings of the Qur'an and the Sunnah. 
Moreover, there should be a specific provision in the Constitu- 
tion that every oititen 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 of the Qur'an and the 
Sunnah and thesefore ultra vires of the Constitution. 

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 prescrib- 
ed period which shall not exceed 10 years in any 

(2) Moral training in acorodanoe with the Islsmio principles 

and standards of conduct shall be made compulsory for 
all services : Centra], Provincial, Military and Civil 
Mid all that i* not in tune irith the Islamic teachings 

Some Constitutional Proposals 


and the tenet* of Islamio ethics should be strictly 

excluded from that training ; 

(3) AH the department* of the State shall provide for their 

Muslim personnel every facility necessary for tho 
observance of the obligations prescribed by Islam and 
all the hindrance* in this respect shall be banished root 
and branch ; 

(4) The Government shall establish and promote all that 
is good according to Islam and suppress and eradicate 
all that is evil according to it and the polioy of the 
State and its execution by the Government in its 
various spheres of activity shall be moulded and man- 
aged in a way that fully conforms to the Islamic way 
of life, both in letter and in spirit ; 

• (6) The system of education shall be *o reformed as to 
enable the Muslims to get their moral and intellectual 
training in strict accordance with the Islamic ideology 
and all that is against that ideology shall be eliminated 
therefrom ; 

' (6) The Government shall complete, within a prescribed 
time-limit, not exceeding 10 years, all the necessary 
arrangements for taking over legal responsibility to 
provide every needy citizen with the basic necessities 
of life, viz. % food, clothing, housing, medical aid and 


Fundamental Rights 

The Constitution of an Islamic State must guarantee funda- 
mental rights to all citterns. In this connection, we regret to 
note that the report on fundamental rights prepared by the 
Fundamental Rights Committee and passed by the Constituent 
Assembly in I960, was a gross and flagrant violation of Islamic 
tenets and clearly betrayed the evil designs of those who hold 
the reina of powers. If the members of the Constituent 
Assembly still continue to adopt the same attitude towards 
these rights, it will not augur well for anybody in this country. 

318 The 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 — 

(a) Protection of life, honour and property ; 

(6) Freedom of thought, expression, belief and worship : 

(c) Freedom of movement throughout the country ; 

(d) Freedom of assembly and association; 

(«) Freedom of adopting any profession or occupation and 
the right to own, acquire and dispose of property ; and 
(/) Equality of opportunity in all walks of life and equal 

right of benefiting from all public instructions. 
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 cannot 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 oo-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 of perfidy, on 
their part, towards the people and the State of Pakistan. 
Preventive DenteoUon 

As fb'r 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 1950. 1 We still stick 
to that position and are definitely of the opinion that these 
powers, in the form in which they were proposed in the Report, 

|. Abul A* la Waududi, Dattoori SijotUhat par Tonjearf, Lahore, 19SQ, 

Some Constitutional Proposals 


are a complete violation not only of Islamic Jurisprudence but 
also of the f nndaraental principles and common notion of justice. 
Anyhow, if the Constitution-makers of this country insist on 
the power of preventive detention being granted to the Execu- 
tive, they should not do so without the following provisions :— 

(1) Every law (whether an Act or an Ordinance) enacted 
under the powers of preventive detention 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 deBnite charge brought 
against him ; 

(3) The Executive should not be given the privilege of 
withholding any piece of evidence considered essential 
by the court for giving its decision on the charges made. 
Mere satisfaction of the Executive should in no case be 
a ground sufficient for the detention of a citizen. 
Only a court of law, if satisfied as to the guilt of a 
person, should have the power to order detention ; 

(4) The person so aocused must be afforded every reason- 
able facility and opportunity to prove his innocence ; 

(5) A court of law and not the Executive should have the 
right to decide the period of detention ; 

(6) No extension of the period of detention should be 

In this connection one is impelled to say that it U most 
cruel to detain a person for oonaeoutive periods of six months ; 
his detention being extended after every term by another term 
on the very day on whioh 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 exploited by our rulers in the past few years of indepen- 


The Mamie Law and Constitution 

denoe, constrains us to urge in the strongest possible terms 
'hat the Executive should in no circumstances be allowed to 
possess the power of suspending either the fundamental righte 
or the writ of Habeas Corpus. The maximum allowance that 
can be made in this respect is that in oase of 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 of Habeas Corpus, 
should in no oase be granted to the Executive. And let it be 
known at this very moment that if any such attempt is made 
in our Constitution we are determined to resist it with all the 
foroe at our command. 

The only excuse advanced by or on behalf of the rulers of 
the oouutry in favour of these powers is, that if "saboteurs" 
and "disruptionists" and "spies" and "agents of the enemy" 
are tried in open oourts, the state-secrets whioh Government 
intends to guard through their arrest and detention, will be- 
come known to the enemy and this would defeat the very par- 
pose for which auoh action is taken. The hollowness of this 
argument can be exposed by a oursory 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 Btate-seorets 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 come within the knowledge of our Courts ! 

(2) Does the Government mean to imply that the person- 
nel at present presiding orer 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 magistrates of Pakistan 

Some OonaMvtionat PropotaU 319 

really leas reliable, in the eyes of the Government than 
the personnel of the police and the C.I.D. t 


It is the Independence and impartiality of the judiciary 
which ensures the internal peaoe of a oonntry and the tranquil- 
Uty of its people. No amount of rights and privileges written 
in the Constitution can give^ihe people any satisfaction if the 
courts, owing to the interference of the people in power are 
not free to administer unfettered justioe. As the very existence 
of a State depends on the contentment of its people, the 
following provisions must be specifically made in the Constitu- 
tion :— 

(1) The Judiciary shall be completely independent of the 
Executive. A maximum time-limit, say a couple of 
years, may be fixed for implementing this separation ; 

(2) All the subordinate courts shall be under the High 
Court both judicially and administratively. The ap- 
pointment, dismissal, suspension, promotion, demotion 
and transfer of the Judges and other officers of the 
lower courts and the magistrates shall be completely 
in the hands of the High Court ; 

(3) The courts shall have unlimited powers to summon 
every kind of evidence whioh they consider necessary 
for the administration of justioe. Not even the 
Government shall have the privilege to withhold any 

ovidence required by a Court of Law ; 

(4) Neither the legislature nor the Government nor the 
Head of the State should have the power to compel 
any law-court' to try any case in camera. The holding 
of a trial openly or in camera should be left to the 
discretion of the courts themselves ; 

(5) AH matters requiring adjudication shall be heard by 
common courts of the country even though the 
Government, its Ministers, or itB officials are involved. 
Moreover, neither the Cential nor the Provinial 
Governments nor their legislatures shall have the 

T%t Islamic Law and Constitution 

power to constitute special tribunals for any matter 
. requiring adjudication. Such a power should vest in 
the Supreme Court and the High Courts which shall 
make use of it if they deem it necessary . Election 
Tribunals, too, if and when necessary, sh^jld be 
constituted and appointed by the Supreme Cuurt or a 
High Court ; 

(6) The Sapreme Court of Pakistan shall have the inherent 
and original jurisdiction to entertain and decide cases 
challenging the validity of the legislation enacted by 
the Head of the State or the Central or Provincial 
Legislatures, if such legislation is considered to be in 
oontravention 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 citizens should be 
granted the right to use the Government employees 
without any let or hindranoe. It should not be for- 
gotten that our former alien rulers had resorted to 
this method of protecting their employees in order to 
overawe and suppress the "natives" ; 

(8) This should also be provided in the Constitution that 
no cotfrt shall have the power to try a case of its own 
contempt unless the contempt is of a general nature ; 

(9) All Court-fees should be abolished through an article 
of the Constitution. Throughout their long history 

Muslims never dreamt of this method of converting the 
law-courts into "law-shops." As a matter of fact we 
are not aware of any other civilized Government under 
the sun except the former British Government of un- 
divided India which ever thought of making its court 
a business conoern. It will really be extremely dis- 
graceful on our part to retain this shameful practice 
which negates the very conception of Islamic justice. 

Some Constitutional Proposals 321 

Election aid Legislatures 

It is a truism that the very existence of a democratic 

system depends on the nature of elections and the constitution 
and powers of the legislatures. A democratic system can never 
develop and Sourish on healthy lines if eleotions are not held 
in a fair manner and the constitution of 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 

To ensure this the following things should be incorporated 
in the Constitution 

(1) In addition to the various coustitutional and legal 
qualifications for the membership of a legislative body, 
the mental and moral qualification! prescribed by the 
Qnr'an and the Sunnah for holding such offices should 
also be included among the Directive Principles. The 
Head of the State should, on the eve of elections, draw 
special attention of the voters to these qualifications, 
give them the widest publicity through the radio and 
the press and devise ways and means of ensuring that 
these instructions are actually observed ; 

(2) Self-candidature should be abolished and made a 
disqualification for the membership of an Assembly. 
We urge its abolition on the ground that it is against 
the Shari'ah. 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 of our politi- 
cal and social life ; 

(3) The rule of 'unopposed elections* should be stopped 

forthwith, beoause it is against commonsense and has 

also been responsible for many malpractices in the 

eleotions. In all such cues the votes must be cast 
"for" and "against" the "candidate" on the basis of 

"yes" and "no", .In the case of the "no's" being in 

the majority, it is far better that the constituency 

323 The Islamic Law and Gonttitution 

remain* unrepresented instead of being represented by 
one who does not represent it ; 

(4) Ho legislature should h*T<» the powers to make any 
such rules or laws con oerning elections which may, in 
^7 imapair the free and impartial holding of 
elections or favour any particular party or parties as 

against others ; 

(5) The department or the commission responsible for the 
oondnot of elections should be duly-bound to oondnet 
them with complete impartiality. Every cdtisen should 
have the right to challenge, in a law-court, the Impar- 
tiality and fairneks of elections as a whole or in any 
one or more constituencies snd to have it set aside if 
he Is able to prove and culpable negligenoe, dishonesty 
or partiality therein ; 

(6) The right of vote given to women should be qualified, 
at least for the present, by a certain standard of 
education. Experience has shown that adult franchise 
for women under the prevailing conditions has proved 
unsuitable for them and harmful to the welfare of the 
country ; 

(7) As regards the election of women ,to the legislative 

assemblies, it is absolutely against the spirit and 
precepts of Islam, and is nothing more than a blind 

imitation of the West. According to Islam, active 
politics and administration are not the field of activity 
of the womenfolk. It falls under the men's sphere of 
responsibilities. The proper method of solving this 
problem is to constitute a separate Assembly whose 
membership should be confined to women only — all of 
them elected by female voters. The main function 
of this Assembly should be to look after the special 
affairs of the women such as female education, female 
hospitals, etc. Of course, it should have the fall right 
to criticise matters relating to the general welare of 
the country. Moreover, this Assembly must be con- 

Some Constitutional Proposals " 323 

suited by the legislature on all matters that concern 
the welfare of women ; 

(8) The formation of parties and oliques within the Legis- 
lative Assemblies should be constitutionally 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 STATB, its CONSTITUTION, 
and the entire NATION, and should vote and act 
according to the dictates of their own conscience ; 

(9} If dismissed Government servants are to be disqualified 
for elections on the ground of misconduct, the term 
"misoondurt" should be defined. 


The Qadiani Problem 

We demand with all the foroe at oar command 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 
millat is unanimous on the point that the Qadianis are a separate 
Ummah and the Muslims of 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 statu* quo of the pre* 
partition days and treats the Qadianis 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 Btand which makes them a 
separate Ummah. For, according to their declared religious 

I. It may be mentioned her© that before partition, the Qadiaats them- * 
selves demanded from the British Uovernmeot that they should be 
declared a minority and given separate scats in tho Assembly-. 

The Islamic Law and Constitution 

beliefs, and creed : — : . 

(1) All those Muslims who do not accept Mirza Ghulam 
Ahmad a,s 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 Inuyn ; 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 muoh so that nothing whioh could 
unite them — neither the religious belief nor its practice (e.g., 
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 Utnmah, whioh has been 
in conflict with the Muslims in every walk of life for the last 
fifty years. If, in spite of all this, they are not prepared to be 
declared as a separate Utnmah 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 Vmmah gives them. We do not expect that the 
Constituent Assembly will become a party to this fraud which 
is being perpetrated on the Muslims of this country * 

Powers of the Executive and the Head of the State 

Another matter 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 of constitutions 
can be set at naught by an unfettered Executive or Head of the 


1, It in common knowledge thai 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 Abui A'l* Maududi : Th& 
(jaduini PrMem, Xalamio Publications Ltd., Lahore. 

Some .(hnrtUutirmal Proposals 325 

State. In I960, 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 
, given the power to suspend the Constitution. The 

countries which committed the folly of giving such 
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 respeot 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. 

(2) Nobody in the State, not even its Head—and in no 
capaoity, neither private nor public -should be above 
law or beyond the jurisdiction of the courts of law. 
Moreover, the.oitizens should have the right freely to 
seek redress against every officer of the State (includ- 
ing its Head) for any injury caused by him in his 
official or private capaoity. The argument generally 

advanced against this is that it will give rise to malici- 
ous and harassing litigation against the State officials 
and will hamper their work. But this argument carries 
little weight. Leaving aside the fact 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 of the other party. The right to 
sue any one for causing injury to a person is such an 
inherent and fundamental right of citizens in an Isla- 
mic State, that the Muslims and the Zimmis alike have 
enjoyed it not only against the Caliphs but against the 


The Mamie Late and Constitution 

Holy Prophet himself. Thus no power oan take away 
this right from the citizens of an Islamic 8 tote. 
(S) The Head of an Islamic State cannot be granted the 
unlimited power or prerogative of clemency. All that 
he may be permitted to do in this respect is that : — 
(a) he may grant pardon, in the interest of public 
good, for sentences awarded for political or admin- 
istrative offences ; and 
(6) he may change a death sentence into some other 
sentence, not, however, on the ground of clemency 
but on the real merits of a case. It would be 
advisable that a higher judicial committee be for- 
med to help and advise the Head of the State in 
such oases. 

Beyond this the Head of an Islamic State should hare no 
powers, because he is there to uphold justice and not to undo it. 
As a matter of fact clemency or mercy to proved criminal ha* no 
place in the Islamic conception of jmtioe. Such powers were 
devised and assumed by despotic monarch* for asserting their 

"divine right" 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 of anybody in any form and any- 
where in the country. It must be specifically provided in the 
Constitution that the type and pattern of government and 
administration of the states shall be like that of the provinces. 

Amendment of the Constitution 

Two principles should be adopted in regard to the amend- 
ment of the Constitution :— 

(1) The amendment of such parts of the Constitution as 
are of fundamental importance should be made as 
difficult as possib^, so that the real nature of the 
Constitution may remain intact ; 

(2) The amendment <g the remaining parts of the ConstJtu- 

Some Constitutional Proposals 327 

tion ihonid, on the other hand, bo made easy, to that 
it may be improved In the light of practical experi- 
ence* wheneyer neoeuary. 
A* to what is of fundamental importance and what is not, 

can only be decided when the blue-print of the Constitution 

comes before as in it* complete form. 


Appendix I 



Basic Principles^ 
Islamic State 

Critics have oft*a trwd to play opon the myth 
that there abound gross differences of opinion 
amongst the 'UlarnH of the various sects of the 
Muslims as to the nature of the Islamio Constitu- 
tion and have asserted that, in the absence of 
unanimous statement by them, the nature of the 
Islamic Constitution will remain "a riddle, wrap- 
ped in a mystery inside an enigma". This myth 
was fblly exploded when the challenge thrown by 
such critios was accepted by the 'UlamS (Sunni and 
SK'oh both) and the thinkers of Pakistan, A Con- 
vention of the 'Ulamd representing all the schools 
of Islamio thought was held from 21st to 24th 
January, 1951, in Karachi, and it formulated the 
fundamental principles of the Islamic State. The 
Convention was attended by thirty -one 'Ulamd 
and all their decisions were unanimous. These 
basic principles of Islamio Stato are reproduced 
here in Appendix I. — Editor. 


THE Constitution of an Islamic State should comprehend the 
following Basic Principles :— 
1. Ultimate Sovereignty over all Nature and all Law vests in 

Allah, the Lord of the universe, alone. 
2; The law of the land shall be based on the Qur'an and the 
Sunnah, and no law shall beenaetednor any administrative 
order issued, in contravention of the Qur'an and the Sunnah. 
Explanatory Nott : 
If there be any laws in force in the country whioh are 
in conflict with the Qur'an or the Sunnah, it would be 
necessary to lay down (in the Constitution) that such 
laws shall be gradually, within a specified period, re- 
pealed or amended in conformity with the Isalmio Law, 

3. The State shall be based not on geographical, racial, lingu- 
istic or any other materialistic concepts, but on the princi- 
ples and ideals of Islamic ideology. 

4. It shall be incumbent upon the State to uphold and estab- 
lish the Right ( Jf a'ruf) and to suppress and eradicate the 
Wrong (Munkar) as presented in the Qur'an and the Sun- 
nah, to take all necessary measures for the revival and 
advancement of the oultural pattern of Islam, and to make 
provision, for Islamic education in accordance with the 
requirements of the various recognised sohools of Islamic 


5. It Bhall be incumbent upon the State to strengthen the 
bonds of unity and brotherhood among the Muslims of the 
world and to inhibit the growth of all prejudicial tenden- 
cies based on distinctions of race or language or territory 
or any other maWialistic consideration and to preserve and 
strengthen the unity of the Millat al-Islamiah. 

6. It shall be the responsibility of the Government to guaran- 

Batic Principles of Islamic State 


tee the basic necessities of life, food, slothing, housing, 
medical relief and education to all citizens withont distinc- 
tion of race or religion, who might temporarily or perma- 
nently be incapable of earning their livelihood due to un- 
employment, sickness, or other reason. 


7. The citizens shall be entitled to all the rights conferred up- 
on them by the Isamio Lav *\a., they shall be assured 
within the limits of the law, of full security of life, pro. 
perty and honour, freedom of religion and belief, freedom 
of worship, freedom of person, freedom of expression, free- 
dom of movement, freedom of association, freedom of 
occupation, equality of 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 oharge withont 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 of 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 
(Qadie) belonging to their respective schools of thought. 

10. The non-Muslim citizens of the State shall have, within the 
limits of the law, complete freedom of 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, within the limits of 
the Shari'aJi, towards the non-Muslim citizens shall be fully 

334 The Islamic Law and Catietitulivn 

honoured. They shall be entitled equally with the Muslim 
citizens to the rightB of citizenship as enunciated 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 administration of the State shall 
primarily vest in the Head of the State although he may 
delegate any part of his powers to any individual or body. 



14. The Head of the State shall function not in an autocratic 
but in a consultative (Shura'i) manner, i.e., he will dis* 
charge his duties in consultation with persons holding 
responsible positions in the Government and with the 
elected representatives of the people. 

15. The Head of 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 

be above the law. 

18. All citizens, whether members of the Government, offioials 
or private persons, shall be^uibjeot to the same laws and 
the jurisdiction of the same courts. 

19. The Judiciary shall be separate from and independent of 
the Executive, so that it may not be influenced by the 


Executive 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 &one« or regions of the country shall be con- 
sidered administrative units of a single State. They shall 
not be racial, linguistic or tribal amts but only adminietra- 

Basic Principles of Islamic Stat* 


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 

22. No interpretation of the Constitution which is in conflict 
with the provisions of the Qur'an or the Sunnah shall be 
valid. / 



1. Maulana Sayyid Suleman Nadvi (President of this Con- 

2. Maulana Sayyid Abul A'la Maududi, Amir Jamaet-e-Islami, 

3. Maulana Mufti Muhammad Shaft, Member, Board of Ta'Ii- 
mat-o-Ifllamia, 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-Islamia, 
Constituent Assembly of Pakistan. . 

v 6. Maulana Muhammad Zafar Ahmad An sari, Secretary, Board 
of Ta'limat-e-Zslamia, Constituent Assembly of Pakistan* 

7. Maulana Shams-ul-Haq Afghani, Minister, Religious Affaire, 
Kalat State. 

8. Maulana Ihtesham-ul-Haq, Mohtamim, Dar-al-'Uioom al- 
Islamia, Tando Allah Yar, Sind. 

9. Maulana Badr-e-Alam, Head of Hadith Department, Dar al- 
'Uloom al-Islamia, Tando Allah Yar, Sind. 

10. Maulana Muhammad Yousaf Binnori, Shaikh al-Tafsir, 
Dar al-'Uloom al-Islamia, Tando Allah Yar, Sind. 

11. Maulana Muhammad Abdul Hamid Qadri Badayuni, Presi- 
dent, JamiaWUlama-e- Pakistan, Sind. 

12. Maulana Muhammad Idris, Shaikh al-Jamia, Jamia Abba- 
sia, Bahawalpur. 

13. Maulana Khair Muhammad, Mohtamim, Madrasah Khair 

al-Madam, Muitau. 

336 Urn Iiiamic La* and Constitution 

14. Maulana Mofti Muhammad Hun, Mohtamim, Medrwh 
Ashrafia, Lahore. 

16. Pir Sahib Muhammad Amin tl-Hwott, Pit of Menki 


10. Haji Khadim el-Islam Mohammad Amin, Khalifa, Haji 
Tarang Zai, Peehawar District. 

17. Qadi Abdoa Samed Sarbaai Qidi, Kalat State. 

18. Maulana After ' Ali, 8adr fail, Jamiat al-« Uleme-c-Islnm, 
East Pakistan. 

19. Maulana Abu Ja'far Muhammad Seleh, Amir, Jamiat 
Hizbulleh, East Pakistan. 

20. Maulana Baghib Ahsan, Vioe-Preeident, Jamiat al- 

•Ulama-e-Islem, East Pakistan. 

21. Maulaaa Muhammad Habib-ur-Rehman, Viee-Preaident, 
Jamiat el-Mudarresin, Sarsina Sharif, East Pakistan. 

22. Maulaaa Muhammad AH Jullundari of MaiHs-a-Ahrar^- 
Islam, Pakistan. 

23. Maulana Seyyid Muhammad Da'fld Ghatoavi, President, 
Jamiat Ahle-Haditb, West Pakistan. 

24. Maulana Mufti Heflz Kifayat Hussein, Mujtahid, Idarab-e- 
Alia Taheffuz-e-Huquq-e-Shien-e-Pakistan. 

25. Maulana Muhammad Ismail, Nezim, Jamiat Ahle-Hadith, 
West Pakistan. 

26. Maulana Habibullah, Jamia Diniah Der-el-HQde, Terhi, 
Khairpur Mirs. 

27. Maulana Ahmad Ali, Amir, Asjuman Khuddam-el-Din, 

28. Maulana Muhammad Sadiq, Mohtamim, Madrasah Mezher 
el-'Uloom, Khaddah, Karachi. 

29. Maulana Shams-ul-Haq Faridpuri, Sadr Mohtamim 
Madrasah Ashraf al-'UIoom, Dacca. 

30. Maulana Mufti Muhammad Sahibdad, Sind Madrasst-al- 
Islam, Karachi. 

31. Pir Sahib Muhammad Bashim Mujaddidi, Tando Saeendad, 


Appendix II 



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


BASIC Principles Committee's Report was publi- 
shed in December 1052 and a Convention of the 
' Ulamd* representing all schools of Islamic thou- 
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. 2 These amend- 
ments of the 'Ulama are a historic document and 
are indispensable for those who want to study 
the developments of Constitution-making in Pakis- 
tan. An idea of the constructive contribution of 
the 'Ulama to Constitution-making can be had 
from a comparative study of the original Nazimud- 
din Report, these amendments, the Muhammad 
AH Report and the 1956 Constitution. Similarly a 
careful comparative study of these amendment and 

I, All the 'Ulamd whose namw appear in Appendix I were invited to thin 
convention and aimoit all of them attended, so muoh so that the num- 
ber of l Utamti who participated in the Convention, wae &3 imtead of 

There was only ono point on which d«J ? gat.. di»gwd. Their 

views on thi. point Are oppendod »t th. ond of this appendix M 
Annezure No. 1. 

The Islamic Law and OmMtuiion 

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 4 Ulama 
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 oonoept of religion is a 
wide one and the amendments reflect that the 
l UlamH have upheld the real Islamic concept which 
does not admit of any separation between 4 the 
religious* and 'the seoular.'— Editor. 

'ULAMA'S amendments 




(If** Original Text and Proposed One of Relevant Sections)* 

2. The following should be the Directive Principles of 

State Policy. 

Section 2, Clause (2), Sab-Clause (a) 

Facilities should be provided for them to understand what life 

in accordance with the Holy Qur'an and the Sunnah means, and the 
teaching of iht' Holy Qar'an to the Muslims should be made 

The text of this Bub-clause of the Report loads itself to the 
meaning that, while keeping intact the foundations of the sys- 
tem of education as obtaining during the British regime, the 
Government should endeavour to make the teaching of Holy 
Qur'an compulsory for Muslims and to prescribe a course of 
theology 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 existing 
system of education and training which have their roots in the 
•un-Godly bases that form the bed-rook of the present system of 
education and training. We, therefore, deem it necessary that 
the following words be substituted in place of the existing 
words of this Sub-Clause. 

"The teaching of the Holy Qnr'an and Islamiyat be made 
compulsory for every Muslim and the system of education be so 
reformed that it may enable the Muslims to moold their lives in 
tfccord with the Holy Qnr'an and the Sunnah" 

1. Tbe original text of the Report its given in italic* apd the proposed 
>ue in bald type. Chapters, sections and clauses referred to are those 

n't the Basic Principles Committee'? Report. 

3 *0 The Islamic Law and Constitution 

Section 2, Clause (2), Sub-Clause (b) 

Prohibition of drinking, (/ambling and prostitution in alt their 
various forms. 

The recommendations contained in this sub-clause of the 
Report are defective in two respects . Firstly, they prohibit 
only drinking and not the sale or manufacture of liquor and are 
even silent in regard to other intoxioants. Secondly, they do 
not fix any period for the eradication of the eWls of drinking, 
gambling and prostitution. This lends to an apprehension that 
these evils may continue for an indefinite period in the Islamic 
State of Pakistan. We, therefore, deem it essential that the 
following be substituted in place of the existing words :— 

"Intoxicants, gambling and prostitution in all their various 
forms be completely prohibited through proper legislation within 
a maximum period of three years from the 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 Report have not prescrib- 
ed any period for bringing the existing laws of the land into 
conformity with the Holy Qnr'an and the Sunnah ; hence it is 
apprehended that the existing un-Islatnio laws might be allowed 
to remain in force for an indefinite period. This is intolerable 
and we, therefore, consider it necessary that this clause be 
amended to read as follows ; — 

(a) "Suitable steps should be taken to bring the existing laws 
into conformity with the Holy Qur'an and Sunnah within five 

(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 

'Ulamd's Amendments 


Holy Qur'an and the Sunnah as are held valid by the respective 
schools of 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- 
ment, infirmity, sickness or any other similar reason. 

The following wording in place of the present wordings of 
thjs 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 of unemployment, infirmity or 
sickness or any other similar reason." 

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

The economic policy of the State should be so directed as to 
secure an all-round unll-being of the people irrespective of creed, 
race or colour and should be so operated as— 

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

In this Clause it has not been specified that the economic 
policy of the State should be based on the Islamic principles of 
social justice ; hence the following should be substituted in 
place of 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, adjustment of the rights of labour and the 
peasantry in order to prevent their exploitation. 

In this Clause, although the existing phraseology, i.e., "the 
rights of labour and the peasantry" lends itself to quite a wide 
interpretation, the question of compensation to the labour and 
peasantry being of great significance its separate treatment and 
exposition is essential. The standard of the compensation 
should be so fixed as to enable them to meet their basio require- 
menta 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 Muslims 
of Pakistan parochial tribal, racial and other similar un- Islamic 
feelings and inculcate in them the spirit to keep foremost in their 
minds the fundamental unity and solidarity of the Millat and the 
requirements of the ideology and the mission for implementation of 
which Pakistan 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 linguistic 
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 mvfalamic feelings and inculcate in them the spirit to 
keep foremost in their minds the fundamental unity, integrity and 
solidarity of Millat-i-Islamia and the requirements of the ideology 
and the mission for the implementation of which Pakistan came 
Into existence. 1 * 


Besides the above amendments, we deem it necessary that 
the following additions be also made in the Directive Principles 
of the State Policy ; 

'Ulama's Amendment* 343 
Section 2, Sub-Clause (f) 

"Proper and effective arrangements should be made for the 
promotion of Islamic learning and culture." 

Clause 7, Sub-Clause (d) 

"The difference in the pay of high and low emplovees of the 
State should be brought to an equitable level." 
New Cli 

(a) The State should ensure that in the section, appoinment 
and promotion of Muslim candidates and employees, Islamic 
character and observance of the tenets of Islam are given due con- 
sideratfon along with ability, efficiency and other relevant factors. 

(b) "In the training of the Muslim employees of the State 
whether civil or military, special arrangements for their moral 
«nd religions training and education should be made, so that the 
moral standard of the State employees of Pakistan, as also their 
standard of efficiency, be high enough." 

(c) "All facilities should be provided to the Muslim em- 
ployees of the State for carrying out their religious duties and 
observing the tenets of Islam " 

New Clause 

"The propagation of atheism and infidelity and the insulting 
or ridiculing of the Holy Qur'an or the Sunnah should be pro- 
hibited through legislation." 


Section 3 

No legislature, should enact any law which is repugnant to the 
Holy Qur'Sn and the Sunnah. 

It is not enough to provide only in a negative manner that 
no law should be enacted which is repugnant to the Qur'an and 
the Sunnah. What is required is that it ahould be laid down 

344 The Islamic Law and Constitution 

as a matter of principle that the dictates and directives of the 
Qur'an and the Sunnah should be the chief source of legislation 
in this State. Therefore the following should be added at the 
end of this section 

"and the Qur'an and the Sunnah be the chief source of the 
law of the land." 

Sections 4, 5, 6 aad 8 

4. No objection on the ground that a legislation ie in contravene 
Hon 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 Bead 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 Bill is discussed in a House of the Federal Legis- 
lature, if any Muslim member raises an objection, at any 
stage of the discussion, that the BUI or any provision 
thereof is in contravention of the provions of paragraph 3, 
the Chairman of the House should record that objection. 

(3) If the Bill to which reference has been made in sub-para- 
graph (2) of this paragraph comes up for discussion before 
the other Bouse of the Federal Legislature the Chairman 
of the House should inform the House of any objection 
taken in the House in which the Bill has been initiated. 

(4) When a Bill is finally parsed by the Federal Legislature 
the authority concerned should forward the Bill together 
with any objection, taken in either or both the Houses of 
the Federal Legislature, to the. Head of the State for 

(5) The Bead of the State should consult the Board to ascer- 
tain whether the Bill 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 such reference. 

1 U lama's Amendments 345 

(6) // a difference of opinion arises amongst the members of 
the Board the Head of the. State should give, hi* assent to 
the Bill or withhold his assent therefrom, 

(7) If the Board is unanimously of the opinion that the Bill 
or any provision thereof is in contravention of the provi- 
sions of paragraph 3, the Bead of the State, should return 
the Bill to a joint sitting of the two Houses of the Federal 
Legislature together with the views of the Board and a 
message that the Bill or any provision to which objection 
has been taken should be reconsidered on the lines sugge- 
sted in the message. 

(8) (a) If the Federal Legislature amends the Bill on the lines 

suggested by the Head of the $tate in his message, the 
authority concerned should forward the Bill to th 
Bead of the State for his assent. 

(b) If the objection is to the whole of the Bill it should 
not be deemed to have been passed unless it is passed 
by the majority of the members present and voting 
which should include the majority of the Muslim 
members present and voting. 

(c) J/ the objection is to certain provisions of the Bill, 
amendments in respect of such provisions should not 
be deemed to have been passed unless j^^ed by the 
majority of the members present and voting which 
should include the majerity of the Muslim members 

present and voting. 

(9) When the points raised in the message are disposed of in 

the manner prescribed in sub-paragraph {8) above, the 
Bill, unless it is withdtaum by the leave of the House, 
should be resubmitted to the Head of the State for his 
assent and it should be assented to by the Head of the 

6. (1) The Bead of the Unit should constitute, for a period of 


five years, a Board consisting of not more than five per- 
sons unU v*rs*4 in Islamic Laws. 

The Islamic Law and Constitution 

(2) Whin a Bill is discussed in the Legislature of the Unit, 
if any Muslim member raises an objection, at any stage 
of the discussion, that the Bill or any provision thereof is 
in contravention of the provisions of paragraph 3, the 
Chairman of the LegUtulure concerned should record that 
objection and when the Bill is finally passed by the 
authority concerned should forward the Bill together with 
any objection taken in the Legislature to the Bead of the 

Unit for assent, 

(3) The Bead of the Unit should consult the Board to ascer- 
tain whether the Bill or any provision thereof to which 
objection has been taken is in contravention of the provis- 
ions of paragraph 3. The Board should send their views 
to the Bead of the Unit within seven days of the receipt of 
such reference.- 

(4) If a difference of opinion arises amongst the members of 
the Board, the Bead of the Unit should give as»ent to the 
Bill or withhold his assent therefrom or may reserve the 

Bill for the consideration of the Bead of the State. 
(6) If the Board is unanimous of the opinion that the BUI or 
any provision thereof is in contravention of the provisions 
of pragraph 3, the Bead of the Unit should return the Bill 
to the Legislature of the Unit together with the views of 
the Board and a message that the Bill or any provision to 
which objection has been taken should be reconsidered on 
the lines suggested in the. message. 
(6) (a) If the Legislature of the Unit amends the Bill on the 
lines suggested by the Head of the Unit in his message 
the authority concerned should forward the Bill to the 
Head of the Unit for his consent. 

(b) If the objection is to the whoh of the Bill it should 
not be deemed to have been passed unless it is passed 
by the majority of the members present and voting 
which should include the majority of the Muslim 
members present and voting. 

1 UlamtTs Amendments 347 
(c) If the objection is to certain provisions of the Bitt t 


amendments in respect of such provisions 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 
Sill unless it is withdrawn by the have 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 provisions of this chapter relating to assent should 
have effect notwithstanding anything to the contrary 
relating to assent to Bill in other parts of the Constitution. 
The device of setting up a Board of 'Ulamd, as proposed in 
this section, to avoid legislation repugnant to the Qur'aa and 
the Sunnah, far from being reasonable or effective is likey to 
prove a source of many a new evil. We fail to understand why 
the very same method whioh haa been adopted to check legisla- 
tion in contravention of the various provisions of the constitu- 
tion, i.e., empowering the Supreme Court to interpret constitu- 
tion should not be adopted in regard to the provisions 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 transitional provision should be made to 
ensure correct interpretation of the Qur'an and the Sunnah, for 
purposes of 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 substituted in their 
place : 

1. To deal with constitutional objections raised under 
Section 3 against laws enacted by a legislature or other issues 
concerning interpretation of constitution in this behalf, there 

348 The Mamie Law avd Constitution 

should be appointed Are 'Ulama ia the Supreme Court who, al 
with some judge to be nominated for the purpose by the Head 
the State in consideration of bis Hadayyun and laqwa' mi 
knowledge of Islamic law and learning, should decide whether or 
not the law In dispute is in conformity with the Qur an and the 

2. The appointment of the above-mentioned ' Ulama should 
be made in the same manner as has been proposed in the Basic 
Principles Committee's Report In regard to the judges of the 
Supreme Court. 

3. Only such ■ Alim shonld be qualified for appointment to 

this office as : . 

(a) has worked ia some religious institution as a Muft. 

for a minimum period of 10 years ; or 

(b) has been an accepted Mufti in some area for a mini- 
mum period of l^pears ; or 

(c) has worked as a Qadi in some duly established 

Mahakama-e-Qada ; or 

(d) has been a teacher of Tajsir, Hadith or Fiqh In some 
religious institution. 

Section 7 

The provision of this chapter should not apply to Money 

We were extremely surprised to see this section of the 
Report and to note that the very persons who have accepted in 
Section 3 the principle that no law should be enacted which » 
repugnant to the Qur'an and the Sunnah should have stipulated 
that the dictates of the Qur'an and the Sunnah would be in- 
operative in regard to the financial matters of the State. If 
the State accepts the supremacy of the dictates and command- 
ments of Allah and His Prophet, as is evident from the wording , 

I^Ttoeof the partioipanta of tl» Convention disagreed on this point. 
* Their viewpoint is appended at the end of these Amendments as 
Annexure No, 1. 

'Ulama's Amendments 349 

of Section 3, there is no reason why the financial matters of the 
State should be placed beyond the jurisdiction of Allah and His 
Prophet. Islam is the best guide for us in all matters. It is so in 
the case of finanoial problems too. We are not at all prepared 
to accept a clear rote of no-confidence against Islam in one of 
the Sections of our Constitution. 

However, we do ooncede that for some time to come there 
might be some practical difficulties in adjusting the financial 
matters of the State aocording to the principles of Islam and for 
that it would suffloe to provide that the provision of 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 substituted by the following : 

"Hie provisions of this chapter should apply to money bills 
after the expiry of 5 years from the date of enforcement of the 

Part II 

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 Stales as hove acceded or may accede to the 
Federation and such other areas as formed part of Pakistan 
immediately before the commencement of Ike Constitution or may 
hereafter be included in it. 

In Clause (1) of this aeotion, 'Pakistan' has beeir proposed 
to be the name of the State, tn our opinion this ft not enough 
and the name should be Islamic Republic of Pakistan. 

The presence of non-Muslim communities in Pakistan 
cannot be put forth as a valid objeotion against this name be* 
cause if the presence of innumerable non-socialists in Russia 
does not prevent its being named * Union of Soviet Socialists 
Republics' 'why should it stand in the way oi Pakistan being 
called au Islamic Republic ? The appellation of Islamic Ifcepub- 

Mt) The Islamic Law and Constitution 

lie ia just to indicate that it is a Republic which is based oa the 
principles of Islam— something which haa already been specified 
in the Objectives Resolution, and Section 3 of the Report too 
leads to the same conclusion. 

Apart from this, the following additions should also be 
made in this section. After Clause ()), the following 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 


Section 23, Clause (2) 

Appointment of the Election Commission and Election Tri- 


The power to appoint Election Tribunals has been categoris- 
ed with powers which are to be exercised by the Head of the 
State in his discretion. In our opinion this is not proper. The 
maintenance of justice and fairness in elections is of immense 
significance to the existence of our State and like other matters 
requiring justice, this too should be entrusted to the Judiciary 
and kept immune from the interference of the Executive. 
Therefore the words 'and Election Tribunals* occurring in this 

Clause should be deleted. 

Our alternative proposal in thiB behalf is to be found in 

the chapter relating to elections in Part XII. 

Section 28, Clauses 2 and 3 

(2) The Prime Minister wh»> for a jterwl of six eanmutm 
ninths. U not a mcmbir rf the House of the People should at the 

'Ulam&'s Amendment* 35I 

expiration of that period cease to be the Prime Minister. 

(3) Provision should be made for appointing as Minister a 
person who is not a member of either' House provided that a person 
should cease to be a Minister unless he gets elected within a period 
of six months from the date of his appointment. 

These two clauses provide that even auoh persons as have 
not been elected to the Legislature may be appointed as Prime 
Minister or Minister and that they should try to get themselves 
elected after they are well in saddle for 6 months. This is 
highly objectionable and harmful. To place a person in autho- 
rity and then provide him a chance to win his election might 
lead to the moral deterioration of the administrative machinery 
as well as of the voters. Therefore this door must be closed 
and both these clauses should be deleted. 

The same wrong has been repeated in Clause (2) of Section 
89 wherein provision has been made for une looted persons to be 

in a Unit and to bo 

given a chance to get eleoted. 

Therefore Clause (2) of Section 89 should also be deleted. 


• * - 

The manner in which the .House of Units and the House of 
People have been proposed to be oonBtituted is, in the opinion 
of this Conference, highly objectionable and exhibits the lack 
of principle in many respects. However, in view of the faot that 
the political leaders of the various provinces are carrying on 
negotiations in this behalf we do not deem 

in their way in any manner and propose to reserve our opinion 
on this issue.* 

1. As this Conference was held in January 1933 and the indications of an 
accord between the politicians were available, the Conference ref- 
rained from giving any suggestion in this respect. Later on the 
conflict was resolved in the form of the Parity tformnla of Mohan, m,. f 
All of Ilogra.— Editor. 

352 The Islamic Law and Constitution 


Section 40, Clause (1) 

A person should not be qualified to be chosen to fill a seat in 
the Mouse of Unite unless Ac— 

(i) tfl a citizen of Pakistan : 

(ii) has attained the age of thirty years ; 

{Hi) is able to read and write in some language ; and 

(iv) is entitled to vote in the choice of a member to fill a seat 
in the Legislature of the Unit by which he seeks to be elected : 

Provided thai the provisions of clause (iv) should not apply in 
the case of m Unit which has no legislature of it* own. In that 
cast he must be a voter in a territorial constituency in that Unit 
for the House of the People. 

In this clause four disqualifying 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 'faraiz* and desists from 'fau>ahish\" 
Section 40, Clause (!) subclause (iv) 

The wording of this sub- clause is obectionable inasmuoh as 
this implieB that a member of the House of Units must neces- 
sarily be a resident of the rery same Unit from where he is 
elected. This would be conductive to the perpetuation of pro- 
vincialism among Pakistanis and therefore we propose that the 
present construction be substituted by tbe following : — 

"is on the electoral roll of any place in the State of 
Pakistan," ' 

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 — 

e) If he has been convkted of any vffcv<:t t other than those specu 
ed under sub-paragraph (d) above, before or after the cowmen- 

'Ulamit's Amendments 3*3 

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 period of five years has elapsed since his release. 
According to this sub-clause anybody who baa been con- * 
rioted of any offence and sentenced to imprisonment for a 
period of 2 years or over, would be disqualified for being chosen 
as a member of the House of Units. The term 'any offence* is 
too wide and would cover cases of persons convicted for politi- 
cal reasons. Therefore, we propose that the words 'any other 
offence* should be replaced by the words 'offence involving moral 

Amendments on the same lines should be made in Section 
48, sub-clause (e) and Section 102 ( sub-clause (c). 

Section 42, sab-clanse (g) 

// he has been dismissed for misconduct from service or from 
a post 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 particular case, has elapsed since his 

This sub-clause disqualifies a person for being chosen as a 
member of the Houbo of Units, if he has been removed, from 
Government service on aooonnt of 'misoonduot\ 'Misconduct* 
is too wide and vague a term and would cover oases of persons 
dismisied by a Party Government for political reasons even 
though they may not have been guilty 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 — 

(i) */ he has been convicted of any offence other than those speci- 
fied under suh-payrayraph (c) above before or after the 
commencement of the Constitution by a competent court in 

S54 The 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-clause also disqualifies anybody who has been 
convicted, by a competent oourt, of 'any offence' and sentenced 
to an imprisonment of 2 years or over. We have the same 
objection in this behalf as in regard to the provision of Seotion 
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- 

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 allegianoe 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 allegiance 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 118, Clause (1) also. 



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 l taqwa and tadayyun* 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 that in respect of the 

1 Mama's Amendments 365 

qualities of 'taqwa 9 and 'tadayyun' Islam lays even greater 
emphasis in the case of officers entrusted with the dispensation 
of justice than in the ease of the members of the Executive or 
of the Legislature. And once the principle has been accepted 
that the laws of the State are to be based on the principles and 
dictates of Islam, 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 hare the 
power to appoint tribunals." 

This is necessary because it is absolutely against the dic- 
tates of justioe that the Ereoutive should Have the power, 
directly or through the Legislature, to set up, to serve its own 
interests, special Court* for specific cases or for oases of a parti- 
cular nature, or to impose arbitrary restrictions upon their 
right of unfettered administration of justice. Many a bad 
example of the objectionable manner in whioh 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 courts 
of justice in the country. 


Section 1S2 

The Supreme Court may, in its discretion, grant special leave 
to appeal from any judgemerU, 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 passsd 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 


The Islamic Law and Constitution 

of justice. If the Supremo Court is to be the final Court of 
justice in our country, there ia 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 access to 
that court for seeking justice thereform. If 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 shoald 

"Provided that relating to the Armed Forces." 

Section 186 

Subject to the provisions made by the Federal Legislature the 
Supreme Court should, as respects the whole territory of Pakistan, 
*ave 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 restricting, 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 oalling for 
evidences or documents of a particular nature, the Supreme 
Court would be unable to do so, howsoever necessary its exami- 
nation may be for purposes of dispensation of justice. Aooord- 
ing to Islam, the Court has the right to call for evidenoe whioh 
ia 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 occuring in this section should 
be deleted : 

"subject to the provisions made by the Federal Legislature." 

"-Also, the following should be added at the end of the 

'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 an! integrity of the State." 


'V lama' a Amendments 



Section 205, Clause (2) 

Nothing in this paragraph should be construed as giving to a 
High Court any jurisdiction to question any judgement of an in- 
ferior court which is not otherwise subject to appeal or revision. 

The section is intended to eurtial the jurisdiction of a 
High Court to the effect that it should not question the judge- 
ment of any subordinate court which is not otherwise subject 
to appeal or revision. In our opinion, this limitation upon the 
highest court of a Unit is detrimental to the proper fulfilment 
of the demands of justice. A High Court should ha T o the fullest 
power to take cognizance of, and remedy, and shortcoming in 
the dispensation of justice that may at any time come to its 
notice in respect of its subordinate courts. Therefore, this 
clause should be deleted altogether. 

Part XI 



Section 222, Clause (1) 

No Bill or amendment to abolish or restrict the protection 
afforded to certain servants of the State in Pakistan by Section 197 
of the Code of Criminal Procedure, 1898, or by Sections 80 to 82 of 
the Code of Civil Procedure, 1908, should be introduced or moved 
in the Federal Legislature or the Legislature of a Unit without the 

previous sanction of the Head of the State or the Head of the Unit, 
as the case may be. 

In our opinion, this clause ia extremely objectionable. If 
the servants of the State of Pakistan are public servants and 
not the servants of the Head of the State or of the Head of the 
Units, there is no reason why the right of the representatives 
of the people to move any bill or amendment to introduce any 
change in respect of the rights, powers and privileges of such 


The Islamic Law and Constitution 

servants should be conditioned by previous sanction of the 
Head of the State or of the Head of the Units. 

As a matter of fact it is ignoble enough that so flagrantly 
unjust a provision as is contained in Seotion 197 of the Crimi- 
nal Procedure Code or in Sections 80 to 82 of the Civil Proce- 
dure Code should be allowed to remain on the Statute Book of a 
free Pakistan ; And it is even more ignoble that in order to 
protect the B e Sections, the power of the legislators should be so 
restricted that they may not even move, except with the pre- 
nous permission of the Head of the State or the Units, a Bill 
to amend or abolish any of these provisions. 


Therefore this clause most be deleted. 

Part XII 


It is necessary that it should be provided by mrans of new 
section in this chapter that : 

(a) It should not be permissible for the Head of the State or 
the Head of the Units ot 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) Seats falling vacant in the Central or Unit Legislature 
should necessarily be fllled through by-election within a 
maximum period of 4 months from the date of their 
falling vacant. 


Section 234, Clause (2) 

The & lection Commission should consist of the Chief Election 
Commissioner and such number of other Election Commissioners, if 
any, as the Head of the State may in his discretion from time to 

' Vlama's Amendrrents 359 

time fix and the appointment of the Chief Election Commissioner 
and other Election Commissioner* should, subject to the provisions 
of any hw made in that behalf by the Federal Legislature, be made 
by the Bead of the State in his discretion. 

This olause leaves the authority to appoint Election Com- 
missioners to the discretion of the Head of the State just as in 
the case of the Chief Election Commissioner, So far as the 
appointment of the Chief Election Commissioner is concerned 
there appears to be no alternative, but with a view to ensure 
fairness and freedom in matters of eleotion it would be proper 
to ensure that the entire Election Commission is not so consti- 
tuted as to be protege of the Head of the State. 

Therefore we propose that the portion Jand the appointment his discretion," be substituted by the following : 

"and the appointment of the Chief Election Commissioner 
and other Election Commissioners should subject to the provisions 
of any law made in that behalf by the Federal Legislature, be 
made by the Head of State respectively in his discretion and on 
the recommendation of Chief Election Commissioner." 

With a view to ensuring fair and free eleotions it is also 
necessary to add the following at the end of Clause (2) of Section 

"(1) The office of Chief Election Commissioner should be a 
permanent one and he shoold be entrusted not only with the work 
of general elections in the Centre and the Units bat also with by- 
elections in respect of seats falling vacant from time to time. It 
should also be his dnty always to maintain an up-to-date list of 

"(2) The status of the Chief Election Commissioner should be 
the same as that of a judge of the Supreme Court and he should be 
subject to the same disabilities as have been laid down in Clauses 
(2) and (3) of Section 227 in respect of the Chairman of the 

Public Service Commission." 

"(3) Only such person should be appointed as Chief Election 
Commissioner as has worked *s a Judge of a High Court for a 
mininimum period of three years." 


The Islamic Law and Constitution 

Section 239, Clause (2) 


The Election Tribunal should be appointed by the Bead of 
the State or the Bead of the Unit, as the case map be, in his die* 



This clause empowers the Head of the State and the Head 
of the Units to appoint Election Tribunals in the Centre and 
the Units respectively. As stated by ns in the context of 
Section 23, this is detrimental to the free oondnot of 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 Test respectively in the Supreme Court or the 
High Court concerned as the case may be." 


The following additional Items should be included in List I : 

(1) The detcrmin atloo, co-ordination and direction of the 
educational policy in accord with the Directive Principles of State 
Policy and the estabishment of academic and educational Institu- 

(2) The protection of the basic ideology and mission of the 
State In accordance with Directive Principles. 


Item No. 3 

Preventive detention in the territory of Pakistan for reasons 
connected with defence, external affairs or the security Pakistan, 
persons subjected to preventive detention under the authority of the 




Item No. 3 

Preventive intention for reasons connected wth the mmnten* 

'TJlama'e Amendments 


ante of public order \ or the maintenance of supplies and services 
essential to the community ; persons subjected to such detention. 

Item No. S as existing in these two Lists is highly objec- 
tionable. The power of preventive detention as exercised up till 
now has manifested itself in laws like the Safety Aot and other 
Acts of similar nature which are not only repugnant to the 
Shari'ah but are also against commonsense and the universal 
concept of justice. Even those so eager to retain. these powers 
have, during the days when they were powerless, been most 
vociferous in their protest against the 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 hody of the Constitution. 

"If any person Is detained for reasons mentioned in item No. 
3, Lists I and III of Schedule I, he should he produced before a 
court of law within 15 days of bis arrest and given full opportunity 
of defence and it should be the authority of tbe court alone to 
determine the period for which he is to be held under preventive 



In this schedule the figure 88 In the column 'seats reserved 
for Muslims' against Punjab should be substituted by 87 and a 
new column, 'seats reserved for Qadianis' should be added. In 
this new column, figure *V should he inserted against Punjab. 

The following should be added to the notes to this schedule : 

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. 5 * 

"(2) A Qadiani is a person who professes to believe in Mirza , 
Ghtum Ahmad of Q ad Ian as bis religious leader." 

This is a very important amendment upon whieh we insist 
with all the emphasis' at our command. It is in no manner 

392 The Mamie Late and Constitution 

proper for the constitution-maker, of onr country to be obli- 
vious of the peculiar condition, and the social problems con- 
fronting ns in this respect and to frame a constitute on the 
basis of their personal view*. They mnst not be unaware of how 
delicate and tense the .ituation ha. become in areas where a 
considerable number of Qadianis are living along with Muslims. 
They should not behave like our erstwhile ru'er. who did not 
care to take cognizance of the Hindu-Muslim problem until the 
four corners of undivided India had become blood-stained on 
account of the Hindu-Muslim disturbances. For our con.titu- 
tion-maker., belonging to this country as they do, :t would be 
a tragic blunder that they should refuse to take notice , of a 
problem which needs an urgent solution and wait until such 
time as they find that it ha. grown into a wild fire. What has 
added considerably to the delicacy of the problem is that while, 
on the one hand, Qadiani. try to pose themselve. as and mix 
with Muslims, on the other hand, they .tand not only aloof 
from, but as rivals of Muslim, by virtue of their creed relig ions 
practices and collective organisation and openly dub all the 
Muslims as 'Kafir.'. The remedy even today lies in declaring 
them a minority altogether separate from the Muslims as had 
been propo.ed by the late 'Allama Iqbal twenty years back. 

Similarly, the word, 'and Qadianis', should be added to the 
end of Section 1 of the Report of Minorities Committee. 

The Report on Fundamental Rights too, which was prcented 
in 1950 and hastily adopted, must be amended to the effect that 
the following portion occurring in Section 3 thereof is deleted I 

■ except in case of an external or Internal threat to the 
security of the State or other grave emergency." 

The above proviao is intended to .uapend the right of 
habeas corpus. Islamic Shari'ah does not allow, in any circum- 
gtances whatsoever, that any Muslim or non- Muslim citizen 
should be deprived of his right to move the highest court for 
redress against unwarranted detention. 

.. ... c.w*i«n«4. 7 and 9 of the 'Fuuda- 

'V lama' a Amendments 383 

Mental Principles of an Islamic State' (Appendix No. I) formu- 
lated at Karachi in January, 1951, by accredited 'UlamS of 
various sohools of thought are incorporated at some snitable 
place io the Const Itation. 

Annexure No. 1 

In our opinion Section 4 should read as under : 
"In the event of an objection being raised against the 
interpretation and definition of the Qur'an and the Sunnah, the 
matter should be referred to a Board of experts of Islamic Law 
VUlama-e-Pakitan) and the Legislature ahould be bound by the 
rerdict of this Board." 

Similarly in Clauae (1) of Section 5 relating to the com- 
position of the Board our amendments are as under : 

"Pakistan Government should call for the name of the 
Ulama of Pakistan from such religious organisations of 'Ulama 
as have been working on Central and Provincial levels in a 
regular manner since after the establishment of Pakistan and 
whose organisations are intaot up till now and the Head of the 
State should notify their names." 

If by the term 'experts of Islamic Law' are to be meant 
•Ulama-i-Din', then they should have this much of dignity and 
power that their verdict is treated final and decisive. We do 
not agree with the proposal in its present form that just for the 
interpretation of the Qur'an and the Sunnah 'UlamS should be 
associated with the Supreme Court as it is futile that they 
should be associated with the judges of the Supreme Court only 
for the interpretation of the Qur'an and the Sunnah. However, 
if 'Ulama are appointed as Judges, i.e., Qadia to adjudicate 
upon important religious matters whioh become an impending 
necessity then it would be proper enough. 

Signatories :— 

Maulana Abul Hasanat Qadri. 

Maulana Mohammad Abdul Hamid AI-Qadri Badauni. 
Mufti Muhammad Sahib Dad, 

Appendix III 


Comments on the Draft 
Constitution of 1956 

AFTER the establishment of the second Constituent 
Assembly in 1956 the task of Constitution-making 
was restarted. Chaudhri Muhammad Ali presented 
his Draft Constitution in the beginning of 1956, 
Maulana Maudadi, in consultation with his associates 
prepared detailed comments on the Draft and for- 
mulated concrete amendments to it. 

Before releasing these oomments for publication 
Maulana Maududi tried to ascertain the viewpoint 
of other important seotions of the oountry and was 
satisBed that no material difference existed between 
their viewpoint and that of his own as contained in 
these comments. These oomments and amendments 
are given in the following pages.— Editor. 



Preventive Detention 

In Part II the following things are highly objectionable :~ 

Under Article 7, Clause (4) of 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 
Article 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 his ease will be put up (evidently ex patie) before 
an Advisory Board. Now, if the Board, appointed for this 
purpose by the Exeoutiye itself, opinea that there exists suffi- 
cient cause for such 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 of an Advisory Board. We 
may be excused for this if we say that this article is much 
more oppressive than Article 22 of the Indian Constitution on 
which it appears to be based. Under the corresponding Indian 
Article, the Executive is at least bound to let the dettnue know 
the grounds of his detention and to provide him with an 
opportunity to clarify his position before an Advisory Board. 
But here, in our Islamic Republic, which should have been 
more liberal and just than a non-Islamic State, the detenut is 
not being given even that much opportunity. We are of the 
view that detention of a person without trial and without 
providing him any, much less full, opportunity to defend him- 
self is the very negation of justice. As a matter of fact 
there should be no place for preventive detention in an Islamic 

Oommtnia on the Draft Constitution of 1956 56? 

Constitution. But if oar raters insist upon possessing 

this power it must necessarily by subject to the following 
conditions :— 


(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 
{Hi) only 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 whioh he should be detained. 
An Advisory Board, even if consisting of High Court 
Judges, cannot and should not, be given the power to 
express ez parte opinion against a detenue on the 
basis of mere police reports and without hearing the 
other side. 
Restriction on Freedom 

Artiolea 8, 9. 10 and 11 provide on the one hand, freedom 
of speech, assembly, association, 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 excused 
for the statement that these four Articles of our draft Con- 
stitution are much iuferior as compared with the correspond- 
ing Article 19 of the Indian Constitution. While the Consti- 
tution of India allows the imposition of only "reasonable 
restrictions" on these freedoms, our draft Constitution allows 
full liberty for the imposition of "any restrictions" on them. 
And this makes a world of difference in the two. It is evident 
that if the word "reBtriotionB" is qualified by the word 
"reasonable" the matter becomes justifiable and the courts of 
the country can nullify or set aside any restrictions which are 
not found to be reasonable. On the other hand if allowance 
is made for the imposition of "any restrictions", 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 Islamic Lau> and Constitution 

by imposing "any restriction*" it likes on their Worn of 
speech, expression, assembly, association, movement and right 
to hold and dispose of property. It can even confiscate 
their property and crush them in whatever manner it likes. 

We, therefore, demand that in our Conetitution the 'words 
"reasonable restrictions" should be eubstituted for 'any 

rearictions" . 


The Question of Interest 

In Part III the following amendments should be made 
Article 25 of the Constitution Bill is silent about the elimi- 
nation of Riba (interest) while the corresponding Article of 
Constitution prepared by the previous Constituent Assembly 
provided for the "elimination of Riba as and when it may be 
possible to do so". Considered from purely Islamio point of 
'view, practising of Riba is much more heinous a crime than 
gambling, use of liquors and prostitution. Islam views it 
with so much abhorrenoe that its culprits have been given 
ultimatum of war on behalf of God and His Prophet. In fact, 
of no other sin suoh a serioua view has been taken by the 
Book of God. What then is the reason for deliberately ex- 
eluding it from the Directive Principles of State Policy 1 

Separation of Judiciary and Executive 

- Article 30 which provides for the separation of Judiciary 
from the Executive, does not give any time limit for the imple- 
mentation of this clause. The former Constituent Assembly 
had fixed three years for this purpose. Why should not that 
be adhered to 1 

The following provisions of this part are objectionable in 
our opinion and we regard them very dangerous for the coun- 
try. We urge with all the emphasis at our command that 
they should be properly amended :— 

Comment* on the Draft Constitution of 1956 360 

In clause (3) of Article 32 it i« provided that notwithstand- 
ing the expiration of his term, the President shall continue to 
hold office until his successor enters upon his ofiioe. No doubt 
there is a similar provision in Artiole 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 he enor- 
mously dangerous to oonstitutionalize the continuance in office 
(even for one single day without eleotion) of a person who has 
been empowered to dissolve all and each of the three Assem- 
blies which jointly constitute the eleotoral college for his 
election. The President must necessarily vaoate his office on 
the expiry of his term. And in case the election for the Presi- 
dentship is not oomplete 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 offioes falline; vaoant at the 
aame time the term of office of the President and the vice- 
President may differ. (For example, the first Vice-President 
may remain in office for 2} years). 

President's Unlimited Powers 

Articles 35, 37 and 49 empower the President to dissolve 
the National Assembly and dismiss the Prime Minister. This 
it 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 eleotion), 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 
■ingle moment much less keep the door open to this danger 
for full six months- These provisions can at any time turn 


The 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 can at any time turn 
the Cabinets and the Assemblies into mere playthings. The 
experience that we have 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 effective 
safeguard against this danger. On the contrary, they may 
have a diametrically opposite effect and may incite a President 
to dissolve the National Assembly simply to forestall a move 
for his impeachment. 

We, therefore, plead thai the President should not at aU be given 
the power to 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 

Article 66 as proposed in the Constitution Bill can ore- 
ate ties in legislation. 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 16 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 16 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 exeroise 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 Constitution of 1956 371 


Governor's Power* 

In this part the following changes are necessary :— 
Clause (6) of Article 69 empowers the Governor to remove 
the Chief Minister of the Province from his office at pleasure. 
And Clauses (1) and {2) of Article 81 authorise the Governor 
to dissolve the Provincial Assembly in his discretion. The 
bestowal of these autocratic powers on the Gorernor is as wrong 
at the bestowal of these powers on the President under the 
aforesaid Articles 36, 37 and 49. In fact suoh unlimited powers 
of the Provincial Governors enhance the danger of dictatorship 
in the country manifold. Under the proposed Constitution the 
Governors are not to be elected by the people or even by 
Assemblies. They will be appointed by the President presum- 
ably in his discretion and hold office during his 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 completely in the hands of the 
• President who will exeroise oomplete oontrol over them. Now 
just imagine : the President is empowered to dissolve the 
National Assembly, dismiss the Prime Minister at pleasure and 
has the Provincial Governors with the authority to dismiss their 
Chief Ministers and dissolve the Provincial Assemblies complex 
tely under his thumb; furthermore, notwithstanding the expira- 
tion of his term, he can legally continue in his office until a 
successor who can be elected by the said Assemblies alone, is 
there to enter upon his office. Does it require any argument to 
make one understand that with the help of these provisions demo- 
cracy can be put to an end by one stroke of pen, and a period of 
six months which can legally intervene between the dissolution 
of Assemblies and their re-election is sufficient for manoeuvring 
the elections to the desired end 1 Will it be advisable to keep 
the door open for such dangerous possibilities ? Therefore, here 
too, we plead that the Governors should not have the powers to 
dissolve the Provincial Assemblies or dismiss a (Jhizf Sfcskister* 


The 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 
ease 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 a pacified period. More- 
over, no time limit is fixed during which the Governor must 
assent to a Bill which has been reconsidered and passed again by 
the Assemblies with or without amendment. Therefore, here 
too, amendments similar to those suggested under Article 56 should 
be made in order to check undue delay in the passage of Bills. 

Appeal Against Military Courts 

Article 170 empowers the Supreme Court to grant special 
leave to appeal from any judgment, decree, order or sentence of 
any court 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 court (civil or 
military) has failed to do him justice. So far as we are aware, 
both in England and in America the highest courts of 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 be 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 Constitution of 195G 373 

the appointment relates. We consider the intervention of the 
Provincial Governor in the appointment of the Jud&ea of the 
High Courts to bo very objectionable. If the Judiciary is to be 
independent of the Executive, there is no reason why the heads 
of the Provincial Governments should have anything to do with 
the appointment of the High Court Judges who have to safe- 
guard the rights of the people against the Provincial Executive 
also. It is wrong in principle as well as derogatory to the dig- 
nity of the High Court and may even exercise an unhealthy 
influence over the Court's 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 (1). 

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

Suspension of Fundamental Rights 

Article 200 empowers the President to suspend certain or 
even all the fundamental rights as well as the right to move any 
oourt including the Supreme Court for the enforcement of rights 
oonferred by Part II of this Constitution. We are of the opinion 
that this, in conjunction with certain other Articles of this Con- 
stitution completes the scheme which makes the establishment of 
dictatorship possible at any moment. Just imagine the state of 
things : the President dissolves ths Central and the Provincial 
Assemblies and dismisses the Ministers ; if the people try to pro- 
test against this he proclaims an emergency and imposes "any 
restrictions" on freedom of speech, expression, assembly, associa- 
tion, procession, and puts behind the bar "the more dangerous 
elements" including the deposed Ministers and influential mem- 
bers of the Assemblies ; bans the parties, if any, in the country 
and confiscates all their property. And if the people try to knock 
thedoor of judiciary for redress, the President under this Article 
suspends even this right of the peoph and this power of the 


The Islamic Law and Constitution 

Courts including the Supreme Court. Perhaps only a miracle can 
sate the country from dictatorship under these circumstances. 

Have the Hon'ble Member* of the Constituent Assembly 
presumed that angels alone will be elected to the Presidentship 
of the country and that none throughout the country excepting 
the President— not even the Central Ministers, nor any of the 
300 members of the National Assembly, nor the Judges of the 
Supreme Court— can be trusted in times of emergency t If the 
Hon'ble Members of the Constituent Assembly really hold this 
opinion about themselves and their nation what is the necessity 
of staging this show of democracy ? The best thing in this case 
would be to just elect some angel as President and entrust to 
him with full confidence all -the judicial, exeoutive and legisla- 
tive powers for life and then beseech him to nominate another 
angel to succeed him after his death. 

We are fully alive to the need of setting some sort of rest* 
rictions on the fundamental rights and of the necessity of em- 
powering the Executive, in times of emergency, with powers 
wider than those enjoyed by it in pormal times, but no human 
being should be given such absolute powers a little misuse 
whereof may endanger the very freedom and liberty of the 
entire nation. 

Proclamation of Emergency 

Under Clause (2) of Article 203 it has been provided that 
the validity of any proclamation of emergency shall not be 
questioned in any court. We are of the view that the jurisdic- 
tion of the Supreme Court to see into the validity of this mat. 
ter should not be barred. When the circumstances whidh can 
justify the proclamation of an emergency have been described in 
Article 199, there must necessarily be some court in the country 
tehich should have the powers to judge whether these circumstances 
did or did not in fact exist at the time of the proclamation. Further- 
more, there 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 rmrds 

Commtnte on the Draft Constitution of 1956 375 

"other than the Supreme Court" should be added at the end of 
Clause (2) of Article 203. 


Islamic Provisions 

Chapter I of this Part deals with the Islamic Provisions, 
and Article 205 forms the only basis an which will rest the 
possibility or otherwise of establishment of an Islamic Order in 
the country. Therefore, this Article deserves our special atten-. 
tion and it is our duty to carefully consider whether this 
Article helps and if so, to what extent, the achievement of the 
objective which 'prompted the demand for an Islamic 

Clause (1) of this Article declares that 'no law shall be 
enacted which is repugnant to the Injunctions of Islam as laid 
down in the Holy Qur'an and the Sunnah and the existing lawB 
shall bo brought into conformity with such ' Injunctions'. This 
provision in itself is no doubt most satisfactory. But the 
following Clause (2) lays down that effect shall be given to the 
provisions of Clause (1) ONLY in the manner provided in Clause 
(3). And Clause (3) is as under :— 

"(3) Within one year of the Constitution Day, the Presi- 
dent shall appoint a Commission :— 

(a) to compile, in a suitable form, for the guidance of the 
National Assembly and Provincial Assemblies suoh 
Injunctions of Islam as can be given legislative effeot, 

(6) to make recommendations :— 

(*) as to the steps and stages by which the Injunc- 
tions of Islam should be given effect ; and 
(it) as to the bringing of the existing laws into confor- 
mity with the said Injunctions. 
The Commission shall submit its final report within 5 years 
of its appointment, or may submit any interim report earlier. 

378 The Islamic Law and Constitution 

The report, whether interim or final, shall be laid before the 
National Assembly within six months of its receipt, and the 

Assembly- after considering the report shall enact laws in res- 
pect thereof,*' 

When we ponder over the procedure enumerated in Clause 
(3) of this Article we feel that this Clause takes away almost 
all that was provided for in Clause (1). 

In this scheme the following four drawbacks are quite 
evident : — 

Firstly, even after the Constitution Day for at least 
seven years there will be 'full liberty* for the making of 
laws repugnant to the Holy Qur'an and the Sunnah and 
Clause (1) of this Article with all its comprehensiveness 
will not be able to affect such legislation in the oountry in 
. anyway. 

Secondly, even after the lapse of this period of seven 
years it will not be open to anybody to ohallenge any law 
in any oourt on the ground of its repugnancy to the Qur'an 
and the Sunnah, because the word "ONLY" in Clause (2) 
prohibits that also. 

• Thirdly, the Injunctions of the Qur'an and the Sunnah 
once compiled by the Commission appointed by the Presi- 
dent, will presumably serve as the sole source of Islamic 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 "ONLY" 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 th,at 
Assembly as to what extent it should take cognizance of 
that report in enacting laws, and how long it should take 
in bringing the existing laws into conformity with the said 

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 attempt 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 attempt. On the other hand we are 
eonadent that the framers of this Bill had no such intention. 
Therefore, we hope that they will welcome suggestions to make 
this Article moie effective and practicable for securing the 
desired end. It is with this and in view that we suggest the 
following form for this Article :— 

"Article 206. (1) No law shall be enacted which is 
repugnant to the injunctions, 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 is repugnant to the Islamic Injunctions, it shall be 
decided upon by the majority of the Muslim members of 
that Assembly. 

(2) In the case of Money Bills effeot shall be given to the 
provisions of Clause (I) of this Article in the manner 
prescribed in Clause (4) below. 

(3) The existing laws shall be brought in conformity with 
the Islamic Injunctions, in the manner prescribedr in 
Clause (4) below. 

(4) Within a year of the Constitution Day the President 
shall appoint a Commission consisting of equal number 
of experts of Islamic law and experts of modern law 
and administration to : — 

(a) compile in a suitable form an authentic code of 
Islamic Injunctions for the guidance of the Nation- 
al Assemblies, and 

{b) make recommendations : 

(i) as to the steps and stages by which Clause (1) 
of this Article may be applied to the Money 


The Islamic Law and Constitution 

Bills, and 

(n') 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 oonformity with the Islamic 
Injunctions within a maximum period of ten 

This Commission shall present a report each year, and 
will complete its work within five years of its appointment. 
The annual reports of the Commission shall be presentod 
before the National Assembly within six months of their 
receipt and the Assembly, after studying them, shall enact 
suoh laws as may be necessary under Clauses (2) and (3). 
The Clause (4) of the existing Article 205 may be numbered 
as Clause (5) and the last explanatory note retained as 

Oar above-mentioned proposal, on the one hand, solves all 
those difficulties for the solution whereof authors of 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 solvel is as to who should act as a final authority to 
decide whether a law is or is not in oonformity with Islam ; the 
Supreme Court or the Legislature itself T 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 the first 10 or 15 years 
five 'Ulama should be appoited to help the Supreme Court in 
deciding such disputes. Anyhow, if the members of the Consti- 
tuent Assembly are not at all prepared to accept this proposal 
then [Ac only acceptable solution is to leave it to the decision 
of the majority of the total number of Muslim members of the 

Comments on the Draft Constitution of 1956 379 


The following Articles too, are objectionable and should be 
suitably amended : — 

Martial Law 

Article 2U 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 objeoted to is the way it is being provided for. 
On the one hand the Article is silent as to the oiroumstances in 
which Martial Law may be imposed, and does not impose any 
restrictions on its nature, extent or duration, and on the other, 
it empowers the parliament without any restriction not only to 
indemnify any person in respect of any act done during Martial 
Law but also to validate all sentences passed, punishments 
inflicted, forfeitures ordered or other acts done by the Martial 
Law authorities. The fact becomes alt the more painful when we 
observe that our constituion-makers do not seem prepared to allow 
even as much latitude to their own naiion as its British conquerors 
allowed it in the worst of times. Regulation 10 of 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 

(ft) 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 involved, Lord Wellesley issued clear instructions that 
the military officials could only arrest and detain them for 
delivery to the civjl authorities for trial. Moreover, Indemnity 


The Islamic Law and Constitution 

Acts passed by the British Government always indemnified only 
those acts of the authorities which might hare been performed 
in good faith. But our Constitution Bill neither prescribes any 
conditions for the imposition of Martial Lav, 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." 

The Hon'ble Constilution*makers should not forget that they 
are making a Constitution not only for their country and nation 
but aho for themselves and their coming generations. We, there- 
fore, request them to amend this Article in the light of the 
following suggestions : — 

(1) Only those acts should be allowed to be identi- 
fied which may have been performed in good 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 inflicted or 
ordered by the Martial Law authorities or a right of 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 : 

{•) in case of open rebellion in the country and 
when the civil authorities have failed to restore 
order or, 

(it) in times of war for purposes of defence. 

(b) Martial Law shall remain in force only bo long as 
the civil authorities are not able to take over the 

(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 oitizeus unless arrested in an armed 

Commenta on the Draft Constitution of 1956 


revolt or found actually helping the enemy. 

(*) Martial Law regulation or orders shall not apply 
to aots done before the promulgation of Martial 


Artiol* 216 gives absolute powera to the President to par- 
don or commute sentences passed by any court or authority. 
This 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 Constituted Assembly had provided in its 
draft and there is no reason why the present Assembly should 
depart from that. 




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 1 * should be inserted 
after the word "person" in this Article . 


.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 pre- 
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 TKt Islamic Law and Constitution 


All persons sentenced to two or more years of imprison- 
ment have been disqualified for being elected as member* of the 

National and Provincial Assemblies. This disqualification should 
be limited to only those persons who may have been imprisoned for 
committing any offence 41 involving moral turpitude," The former 
CooBtiutent Assembly had accepted this proposal in the pro- 
posed draft. 


Pacts and Agreements 

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 elections shall 
be held throughout the country. 

Appendix IV 

Comments on 
1956 Constitution 

The Second Constituent Assembly of Pakistan 
passed 'The Constitution of the Islamic Republic of 
Pakistan' on 29th Febrnary, 1956 and the Governor- 
General gave his assent to it on 2nd March; 1950, 
This Constitution was enforced from 23rd March, 
1956. Maulana Maududi's views on it can be known 
from the Resolution moved by him in and adopted 
by the Majlis-e-Shura (Central Exeoutive Council) 
of ex-Jamaat-e-Islami, Pakistan on 18th March 
1956 in Lahore Because of its historic value thia 
Resolution (whioh was released to the Press in the 
form of a statement of the said Majh ■■■) i« reproduced 
hera in this Appennix, — R&ttor* 



LAHORE, March 18 : Majlia-e-Shura, Jamaat-e-Islami, 
Pakistan, has issued the following Press Statement on Pakistan's 

Constitution : 

MAJLIS-E-SHURA, Jamaate-Islami, Pakistan, offers 
thanks to Almighty God that after a long struggle stretching 
over eight years and passing through various dangerous stages 
the question of the future Constitution of the country has f at 
long last, been settled in a manner which, to a great extent, 
the aspirations of Islam-loving 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 

Firstly, with the coming in force of this Constitution the 
period of our slavery in this country finally comes to an end. 
The sovereignty that was transferred to us in August 1947 from 
the British Parliament, did not directly devolve on the people 
of Pakistan. Instead of that it was entrusted 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 reluotant to relinquish 
this sacred trust to its rightful recipients. When at last under 
public pressure it was just on the verge of transferring the trust 
to the real beneficiaries, the then Governor-General dissolved 
it in October, 1954 and, as a result of a judgment of the 
Federal Court, the sovereign power of 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 himself appointed by 
the British Crown. Thus our Freedom was, as a matter of 
fact, mortgaged, first, with the Constitm Assembly and 

Comment* of the DraJ Constitution of 1966 385 

thereafter with the Governor-General. Now the assent of the 
Governor -General to the Constitution of 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 of it. 

Secondly, the Preamble of the Constitution, its Directive . 
Principles and Article 198 of the Constitution have finally and 
unequivocally settled the 8-year old struggle between the 
Jslamio and anti -Islamic trends in favour of 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, be able to obliterate it. This in 
itself is a great victory for which all Ahle-Iman (believers i.e., 
Muslims) should feel felicitated and thank Almighty God. 
After nearly 200 years of domination of 'Kufr' it ie for the 
first time that the sovereignty of Almighty God and the legal 
supremacy of High faith (Din) 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-Islamio 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 whioh is repugnant to 

the Holy Qur'an and the Sunnah shall be enacted in future. Mot 
only that, it is for the first time after the Khilafat-e-Rashida£ 
that the governmental authority of an Islamic State has passed a 
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 of Islam. No doubt, the method of 
implementing these provisions is not commensurate with their 
grandeur ; and it is a pity that the methods of making these 


The Islamic Law and Cons&ution 

provisions effective as suggested by the Islamic parties have 
not been accepted. Furthermore, the methods proposed in the 
new Constitution is such as will be effeotive only if rifeht 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 are capable of and 
determined to work for Islam, then even this method can be 
utilised to achieve such 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 of fundamental rights 
during an emergency, unlimited powers of promulgating 
Martial Law and enacing indemnity laws disqualifying a person 
sentenced to imprisonment of two years or more from being 
elected 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 delects (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 open to the people atrany time in future to 
elect such representatives as are prepared to run the admiuis- 

Comments of the Draft Co dilution 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 
satisfactorily 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 particularly created dan- 
gerous conditions 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. All 
the same, if experience shows any defects in this distribution 
of powers and the practical requirements of any part of the 
country call for a change therein such a ohange 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 of the 

It is for these reasons that Majlis-e-Shura of Jamaat-e- 
Islami, 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 Mamie State, that, in order to ensure the successful 
working of this Constitution and to make it an effective 
means for the achievement of the real object in view, namely 
the establishment of the Islamic Order, they should continue 
working with the same unanimity of opinion and unity of 
action which has brought this success to them in their struggle' 
for the framing of 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 


The Islamic Late and Constitution 

translating it into action. This calls for concerted effort* on 
the part of all sincere Muslims. Mutual recriminations 
amobgst various groups over petty trifles would prove dis- 
astrous Unity and solidarity are all the more neoessary 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 of separate electorate and the designs of 
introducing the system of joint electorate are buried deep 
once for all. This would be impossible of 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 "White 
Paper on the Problem of Electorates" in January 
1958. Ai this document has becerae a part and 
parcel of the political history of Pakistan and as it 
presents the electorate problem in its manifold aspects 
we deem it advisable to include it as an Appendix in 

the present volume. — Editor. 



PoJiLi?" ° ountry " faced with a oriticaI Bituatio ° tod^y. 

being taken in utter ofT™ T 

unholy alhances. Economic situation f. worsening day. 
^ scene is becoming more and more confused. So/ai 
cond^ons are deteriorating like 8Ily thing. Disruption within 
and disrepute abroad, this is the situation today. 

The confidence of the people ha. been shaken to its very 

Zand ' "'7 " ^ * ^ ******* ^ 

SIT f 8 ^ bul c ^aoUs Have leen 

their re Permanentll> *^ * right of choosing . 

t*«r real representative in an honeet, clear and fair way by 

c a mping upon them a system of e,ectorate which so oonU 
tfato that mosUy the intriguers and the vested interest Z 
emerge successful out of it. Thia h the mightie8t ^ ^ 

•tote, for all t.mes to come. „ ^ , Ae fa 

time has come when the facade of this ugly conspiracy should be 
torn asunder aud a united effort be made to protect the con. and lay the foundations of real democracy in the 

2. Muslim India has alwajs stood for the ideal of its sepa. 
ratenat-onhood. In ttam there is noplace for the narrow 
chanvnustio idea of territorial nationalism. Muslims 

White 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 electroates. as at 
present^ and a further 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 civilisation and 
culture, our history, language, our architecture, music, 
jurisprudence and our society, our dress— in every way we 
are different— FFe 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 bold 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 prinoiple of parity was 
adopted during this period but no mention of any change in 
the prinoiple 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 1055 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 Unit bill, no mention was made of this issue. 
The only thing with which the One Unit bill was linked, was 
the principle of parity. So the history shows, that the issue of 
electorates was never a dispntable 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 muoh importance * 

The fact is that the Hindus have been trying to impose 
joint electorates over the Muslims of the sub-continent from the 
very outset. Like us, for them too the problem of 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 effeotive devioe in their scheme 
of things. Not only that ; the system of electorate is of sig* 
nifioant imortance in a modern state. It acts 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 electorates, so much so 
that when the Muslims succeeded in getting this demand 
accepted in 1909, they devoted all their energies to undo it. 
And' when they formulated their draft constitution of the 
country in the form of the 'Nehru Report', they incorporated 
therein the principle of joint electorates and were not prepared 

to effect any change in that. 

Despite the partition of the country and the vindication 
of the Muslim view- point they refused to reconcile themselves 
to the basic approach of the Muslims of Pakistan. This was 
fully realised by QuaJd-e-Azam himself and after carefully 
studying the trends that set in, he declared that ; 

Paper on the Problem of Electorates 


"Before we oould asanme the reins of office, non-Mus- 
lima started pulling out of Pakistan, which subsequent 
events have proved, was part of a well-organised plan to 
cripple Pakistan". (October 1947). 

'•We have been the victims of a deeply laid and well- 
planned conspiracy executed with utter disregard of the 
elementary principles of honesty, chivalry and honour . 

(October 1947). . . . . 

"Minority Communities must not by mere words but 

by actions show this that they are truly loyal and they 
must make majority community feel that they are true 
citizens of Pakistan". (June 1948). 

"It is now perfectly obvious that, having failed to 
prevent Muslims from achieving Pakistan, these agencies are 
i>» trying to disrupt Pakistan from within by insidious 
propagaJa aimed at setting brother Muslim against 
brother Muslims". (March, 1948). 

Thus, instead of reconciling themselves to the basic ideo- 
logy on which Pakistan is based, they began to assail it from 
within. They tried to raise the slogan of joint electorates on 
the first opportunity that they got. In 1951 when an amend, 
ment to the fifth and sixth schedule of the Government of 
India Act, 1935, was being discussed in the Constituent 
Assembly and the principle of adult suffrage was being adopt- 
ed Hindu leaders girded up their loins and Mr. Raj Kumar 
Chakravarty, without paying any heed to the relevancy of the 

• * 

issue, deolared : . . 

"Sir, we all want-especially the nunonties-joint 

electorates, nor only in Sind but also in East Bengal But 

I find that an important omission The more of the Bui 

should also have moved for the system of joint electorates 

without reservation I want to raiae here the question 

that in Bengal ice are very keen about the system of joint 
electorates without reservation" A # — . 

They failed to convert anybody to their yiew- point. But 
1. Oonstitwmt A^embly of PatisU,* VeboU*, Volume IX, No. 2, P . 31 . 

394 The Islamic Law and Constitution 

despite the failure they continued their campaign singlohandod. 
Then came that unfortunate period of our history when political 
wrangling* 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 possession of the balance of power they 
tried to oull 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 parties which 
joined these Ministries were prepared to barter away even the 
ideology of Pakistan for the votes of the Hindus I Mr. B.K. 
; Das, leader of the Congress Party, while giving reasons of 
their participation in Government said on September 6, 1966 : 
"The Pakistan National Congress bas throughout been 
fighting for the acceptance of the principle of Joint Electro- 
rates and a constitution for the country fully democratic in 

outlook At present, however, there are signs disoernible 

that the reasonableness of our demand from the standpoint 
of the larger interests of the state stands recognised by the 
parties as they have recently emerged in both the wings,,. 
We were eager to take advantage of the changed circumstances 
and decided to work in co-operation with all sections and 
communities". {Dawn, Sept. 6, 1955). 
That was how and when the electorate issue was raised. 
And it was done at the instance of Hindus and Hindus alone. 
The "changed circumstances' 1 were more congenial to them and 
they "took advantage" of this situation. Now they had with 
them from amongst the Muslims themselves certain advocates 
of their viewpoint. 

4. On the very first signs of this deal Jamaat-e-Islami 
raised its voice against it. Maulana Maududi warned against 
this secret compromise and asked the people to defeat this 
maohination of the saborteurs. On 2nd September 1955 he 
issued a statement against this move and condemned it in un- 
equivocal terms. In November, 1955, on the occasion of the 
Aunual Conference of Jamaat-e-lslami, Maulana Maududi again 
warned against the dangers of this move. The public opinion 

White Paper on the Problem of Electorates 


was so vehement against thin move that the framers of the 
Constitution had to defer final decision on this issue, A pro- 
vision was made in the Constitution that the system of electro- 
rate will be decided by National Assemblies. The West Pakistan 
Assemblo voted in favour of separate electorates and the vote 
was almost unanimous, only 10 persons dissenting in a House 
of 310. The East Pakistan Assembly is alleged to have decided 
' in favour of joint electorates. Bat 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 Assembly, and worse 
of all, in a House which was in a state of utter chaos beoause 
of coercion, intimidation, and even manual interference from 
the galleries filled with Hindus and goondas of the ruling 

Then a week later when the matter came before the 
National Assembly it evolved a most dangerous and nonsen* 
Bible formula. It adopted Joint Electorates for East Pakistan 
and Separate Electorates for West Pakistan. This was done 
at a time when practically the whole of the country was de- 
manding separate electorates. Section 144 was damped 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 whioh only a couple of day* 
earlier had most unequivocally assured to stand by its own and 
the nation's unanimous decision in favour of separate elector- 
ates, overnight took a somersault under pressure from the 
President and the West Pakistan Governor who had flown to 
Dacca. It colluded with people bent upon undoing Pakistan 
and its basic ideology simply to retain power and voted for the 
said foolish formula. Everybody knows how even the open 
enemies of Pakistan laughed at this and questioned the justi- 
fication for Pakistan thereafter. And finally in April 1957 the 
Republican- Aw ami Ministry, disregarding all the public 
demands, amended the electorate formula and imposed joint 
electorates over the entire oountry. All this was done to 

396 The Islamic Law and Constitution 

appease the Hindu members and thereby keep themselves in 
power. This was the shameful way— out 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 
Beparate electorates dawned, all the vested interests again 
conspired 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 hae been so thorough and so over- 
whelming that the so-oalled 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 heed 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 consequences 
for Pakistan and is loaded with more explosive dangers for the 
future. The fact is that even a oursory 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— the 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 

These are the consequences which must flow from it : 

(a) It will weaken the Islamic consciousness of the 
Millat and will inject alien ideas into the minds 

White Paper on the Problems of EUciorate$ 

of the coming generations. Weakening of the- 
' Islamic feelings will automatically result m 
' weakening of the bonds of integration of Pakistan. 
Pakistan consists of so many otherwise hetero- 
geneous elementa-which have been united into a 
Irm unit only by Islam. Anything that weakens 
this tie, is bound to act as a force of d.smte- 
gration. This idea of joint electorates is based 
on the theory of territorial nationalism and not 

on Mam. 

(M Joint electorate is. as a matter of fact, the first step 
in the scheme of its promoters. They are fanning 
the flames of Bengali nationalism. And they have 

given more than sufficient indications that their 
real aims are secularism and secession. The jubi- 
lance which was demonstrated by the Hindu leaders 
and the Hindu press of Bharat on the imposition of 
joint electorates and the felicitation, which none 
other than the Bharti Prime Minister expressed on 
the formation of Noon Ministry are firm indicators 
of the future. The joint electorate is the door 
through which the demand for United Bengal 
wants to enter. They have ereoted the door and 
are now jealously guarding it. Money, influence, 
pressure, everything is being lavishly used in keep- 
Ing the door intact. This is the greatest crack 
that has occurred in our defence wall-the next 
step will be the demolition of this wall . 
( C ) The reason why Hidus, Communists and the vested 
interests are so eager to retain joint electorate, 
becomes crystal-clear when,.one .tudies the influ- 
enoe they are going to oommand over the election, 
under., this system. Statistic .how that Hindus 
and the Muslim politicians of their choioe will gain 
oontrol over the political life of Bart Pakistan and, 
through it, will become a decisive factor in the 

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 
Btrategy 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 
The faots 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 constituencies Hindu votes are in majority and 
here they are bound to get representatives of their own choice 
elected. These constituencies are : 

1. Khulna Sadar South East. 

2. Khulna Sadar South. 

3. Satkhira East. 

4. Bagerhat South. 

6. 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 49J9%. As such, they ( without the support 
of any Muslim votes, ©an get their candidates elected because 

(*) very few Muslim women vote whilo most of Hindu 
,■ women cast their votes ; 

White Paper on the Problem of Electorates 399 
Hindu votes will be consolidated while Muslim votes 
will not be so -, 

all the Muslim voters do not use their votes 
are politically much advaDoed, and 

a disadvantage to the Muslim voters. 
These constituencies are as follows : 

Name of the Constituencies 

1. Gopalganj North 

2. Jeaaore Sadar South Bart 

3. Bagerhat Central 

4. Dinajpur Sador West 

5. Habihganj North Weet 

6. Bagerhat North 

7. Khulna Sadar South West 

8. Satkhira West 

9. Satkhira Sadar North 

10. Khulna Sadar North 

11. Thakurgaon South 

12. Bagerhat East 

13. Bakerganj Sadar North West 

14. Piroojpur North East 

15. Narail South East 

16. Chittagong Sadar Ceneral North East 

17. Dacca Sadar Central South West 

18. Satkhira North East 

19. Sunamganj South West 

20. Habibganj South 

21. Habibganj South West 

22. Munshiganj North West 

23. Rangpur Sadar North 

24. Ooalondo South 

25. Netrokona North 

20. Sunamganj North West 

Percentage of 



* * * 

* ■ ft 

4 * * 

400 The Islamic Law and Constitution 

Percentage of 

Name of the Constituencies non-Muslim 


27- Magurah North ... 40.0 

28. Xarail 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 Weat ... 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 caloulationa 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 




Netrokona South East 

... 35.43 
... 35 43 

Nilphamari North 


Rajshahi Sadar West 

... 35.37 


Feai North 

... 35.37 



Piroojpur West '. 

... 35.0 


Chittagong Sadar East 

... 34.56 


Chittagong Sadar Central South East 

... 34 56 


Bakerganj Sadar Central West 

... 34.56 


Faridpur Sadar West 

... 34.66 


Nilphamari West 

... 34.0 


Brahmaubaria North 

... 34.0 


Manikganj West 

... 33.43 


Thakurgaon West 

p»+ 33*33 


Habibganj North 

... 33.0 


Magurah South 

... 32.19 

While Paper on the Problem of ZUetoraH* 


Name of the Conetituenciea 


16. Brahmanbaria South East 

17. Kishorganj North Bast 

18. Mymensingb Sadar North 

19. Satkhira North West 

20. Chittagong Sadar Central 

21. Dinajpur Sadar Central 
Dinajpur Sadar South 
HabibganJ West 

24. Sunamganj North 

25. Dacca Sadar Went 

28. Daeea Sadar Central North 

27. Narayanganj West 

28. Nongaon North 

29. Nougaon Central 

30. Netrokooa North East 

31. Rangpur Sadar North East 

32. NarailEast 

33. Jhinaidah North 

34. Kurigram North Wert 

85. Chittagong Sadar Central South 

36. Tangail 8outh East 

37. Faridpur Sadar. North 
Menikganj East 
Kishorganj South East 

40. Bogra North West 

41. Chittagong Sadar North West 

42. Daeea Sadar North West 

43. NUphamari East 

44. Hadaripur Sooth 
46. Manikganj Central 

46. Daooa Sadar South 

47. Bunamganj South 

48. Bagerhat Sonth East 

Percentage of 






* * ■ 

4i ■ i 


TU Mmie Law and Constitution 


. N<m* of tk* Oon*Uuencies noa-Jfwiw* 



Jeasore Sadar Sooth 

OK 9 

... ZO.2 

North Sylhet North Wart 
Thaknrgaon North 

... SO.* 





Jhinaidah Central 

... M^2 

Natore North 

... 2a«o« 


Noagaon North West 

... 2*.0Z 


Brahmanbana Central Weat 

... 3KI.O 


Goalondo North Went 

... AO.V 

Tangail Central 

... Zo.O 


Jeasore Sadar Central 

4ft A 

Brahmanbaria Central 

051 1A 
... Zd.iO 


North Sylhet North East 

... ZJ.lD 


North Sylhet North 

oa ia 


Brahmanbaria Wwt 

... aa.7f 


Fandpnr Sadar North Bast 

... 23.77 


Tangail South 

OA no 
... £&*iS 


Netrokona Bait 

... 22. OU 


.narayanganj ootitn 

99 KO. 



Ohittagong Sadar Central North Weat 

... 22.66 


xippera oauar norm 

jva An 

■ • a 


jLangaii veuvr»i jsj&ic 



T%*j*j*« Qa^aa flnnfh TtTnah 

JJHQft OftQftr oOUWl V? OBu 



[Tfl IMI | n If Bil J -Li Ua vu 

... 21.92 


Tinnnra Q D /1ar TTaaf 

... 21.9 

ivangpur oaaar uezttra] 



Oiaa^an! Aj^f f k Wait 

oirajganj rionn weac 


a • a ™ a ■ w 


Jamalpur riortn i^ast 

91 85 


Chittagong sadar Central boutn west 

91 AA 


Barkerganj Sadar Central 

... 21.68 


Faridpur Sadar South Bast 



Nawabganj North 

... 21.7 


Rajshahi Sadar South 

... 21.43 


Kiahorganj Central South 

... 21.0 . 

White Paper oft the Problem of Electorate* 4M 

J percentage of 

Name of the Constitution aoa-mwKm 


North Sylhet South ••;«><> 

83. Ohlttagong Sadar Korth East ... 21.0 

84. Prim* Sadar Sooth Eart - *™* 

85. Chittagong Sadar • ■ 

86. Faridpor Sadar Eart - 

87. Faridpor Sadar South ™ 

88. Jhiaaidah Sooth - »* 

89. Dinajpor Sadar Sooth East - »•«> 

la four women conrtituencl- non- Muslim rote, range from 
84% to 89.7%. All the* foor seat, are Hindo .ore-hota JThu. 
under the joint electorate .yetem, Hindu, are sure to get 142 
aaat. either lor themselves or for their nominee, while under 
separate electorate, they were having 70 .eat. only. In other 
constituencies alao their consolidated rote, may pay them 
handsome dividend.. 

Thi, conclusively shows that Hindus will wield decisive 
influence in Mast Pakistan politics and through it upon t he Centre. 
What would be the consequences of it; is not difficult to imagine. 

This further shows that even if one general election is held on 
the basis of joint electorate, it would be sufficient to give the onh> 
Pakistan forces ample opportunities to administer, God foro%a, a 
shattering blow to the integrity and survival of Pakistan. 

7 Now what i. the way oot of thi. dangeroua impasse 1 
Ail faote-hard faota-drive o. to the conclusion that the issue 
of electorate, should be finally decided according to the will of 
the people before the first general election, are held And thi. 
can he done if thejseue is referred to the people for decision. 

Hence oor demand is for a Referendum. 

Referendom Aoold be immediately held, becaose this i.; the 
only way to solve thi. issue peacefully and amicably and with- 
oot delay-for delay will give upperhand to those elements 
whose continuance in power may endanger the very existence of 

404 Tke Islamic Lav and Constitution 


the country . 

Referendum is the only way to decide the iuae democrati- 
cally. People have been very cunningly deprived of their basic 
political right*. Decisions are being continuously made by the 
ruling coterie in a dictatorial way and the voioo of 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 demooraoy in the coun- 
try and will sound the death-knell of the anti- democratic foroee 
who are bragging about revolutionary councils and the like. 

As a matter of 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 public censure 
exert themselvea 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 
face of their aroused interest and united force, there is no 
question of delay in elections. : ' 

Lists should be prepared community-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 of the Elections Commission all 
this work would be finished by June 1958. On the new arran- 
gement the same schedule can be striotly maintained. Referen- 
dum should be held in Ootober 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 oome out of this dangerous situation without 
delaying the general elections. 

Appendix VI 



SAYYID ABUL A'LA MAUDUDI is one of the greatest think- 
era and social reformers of the world of Islam. He was born in 
Aurangabad (Hyderabad, Deooan, India) on 2fith September, 
1003 and started his public life aa a journalist in 1920. At the 
age of seventeen, he became the editor of daily Taj, Jabalpur 
and later on edited the Al-Jamiat, Delhi-one of the most 
influential and popular Muslim newspapers of India, of the 
niheteen-twenties. In 1MB, when he wf* : 28 years < >ld, he pub- 
lished his scholarly and monumental work Al-Jthad Ft-al-iaum 
(Holy War in Islam). This book is unprecedented in the Islamic 
literature and the equal of it cannot be found even in Arabic. 

Maududi, later on, shifted from Delhi to Hyderabad 
(Decoan) and in 1931 started Tarjuman al-Qur'Sn, a monthly 
journal dedicated to the cause of Islamic Renaissance. This 
journal has played the pioneer's role in stirring the new awaken- 
ing among the educated elite of Muslim India and an Indian 
historian rightly declares that no future historian of the Muslim 
India ©an ignore the part played by this journal. 

It was in 1937 that Dr. Muhammad Iqbal wrote to Maulana 
Maududi to shift to Punjab and co-operate with him in the 
gigantic research work of the reconstruction and the codification 
of Islamic Jurisprudence. This correspondence was followed by 
two meetings between these luminaries of Islam. Finally it was 
decided that Maulana Maududi should shift to Punjab and 
direct an institution of Islamic research- Dar ahlslam. Maulana 
Maududi left Hyderabad and settled in Punjab in March 1938. 
"Bat alas 1", in the words of Maududi himself, "he (Iqbal) was 
■ i x a— « *t t*;» life The vprv next month he breathed 


Th* Mamie Law ant C<m*U*tiom 

his lest and I wu left alone for the uphill task we had decided 
to undertake Jointly". 

At Lahore Maulana Maududi also worked for nearly two 
yean ae the Dean of the Faculty of Theology, Islamia College, 
Lahore. In 1941 he organised the Renaissance Movement — 
Jantaat-e-lslami— and was elected its chief. After Partition 
he launched the movement of Islamic Constitution and the 
Islamic way of life and was arrested on 4th October, 1948. After 

20 months of imprisonment he was releaied 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 decision of 
Supreme Court. Again on 6th January 1964, he was arrested for 

the third time, when Jamaat-e-Islami, Pakistan was banned 
under Aynb Regime. He was released by Punjab High Court on 
9th October 1964. 

Fourth time, he was arrested on 29th January 1967 for 
opposing Ayub Khan's regime for oelebrating Bid-ul-Fitr one 
day before the moon sighting. In oonsequenoe of a writ petition 
the Government released Maulana Maududi after 2J months 
detention on 15th March 1967. 

Maulana Maududi started writing his 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 of our age. It has been 
completed in six volumes after 30 years 4 months on 7th June 

Maududi is a prolific writer and is tbe author of nearly 

sixty works on Islam. His approach is scientific and logical. His 

vast knowledge of Islam and of modern thought has given him 

the unique quality of presenting Islam in the most systematic 

way having a special appeal for the educated people. He has 

given a jvery realistic interpretation of Islam and inspired the 

Muslim youth to translate the Islamic way of life into practice. 

He is a great thinker and man of action. In short, he in a 
♦practical idealist*.— EPITQR.