The Judiciary and Ulama-State Tensions

Shujacu'd-Dawlah probably appointed a chief qazi , as well as qazis in the provinces, since the Mughal system assumed these. Civil administrators performed many judicial functions. In rural areas large landholders often tried civil and criminal cases according to customary law (‘urf ).^[46] Elliot gave evidence that religious-law qazis , appointed to each parganah, continued to exist in Awadh right up to the 1856 British annexation. These Sunni provincial qazis often held the post on a hereditary basis, having been given service grants by the Mughal government for undertaking judicial duties. They decided disputes, appeased enmities, performed marriage ceremonies, decided inheritance cases, wrote decrees, led ritual prayers, and instructed the people in religious law. Typical of the evidence available for the continued appointment of qazis in the parganahs is the petition to the nawab from Hafiz Muhammad Basir, who wished to be made judge in Sandila on the death of his father, the former holder of the post. In Kakori as well, the post of qazi was held in the late eighteenth and the early nineteenth century on a hereditary basis.^[47]

In the eighteenth century the rudimentary judiciary of the central government lacked any great authority. Shujacu'd-Dawlah appointed as mufti the Farangi-Mahalli Ghulam Hazrat who held a similar post early in Asafu'd-Dawlah's

[44] For the impact of Awadh donations in Iraq, see J Cole, "'Indian Money' and the Shi‘i Shrine Cities of Iraq, 1785-1850," Middle Eastern Studies 22, no. 4 (1986). 461-80. See also Muhammad Muhtashim Khan, "Tarikh-i Muhtashim Khani," Persian MS H.L. 156, foll. 129b-130a, Khodabakhsh Oriental Public Lib., Patna; Mashhadi, Savanihat , p. 113; Ardistani, "Al-hisn al-matin" 1:70; Jacfar Al-Mahbubah an-Najafi, Madian-Najaf wa hadiruha (Sidon: Matbacat al-‘Irfan, 1353/1934), p. 131 and n.

[45] Bihbahani, "Mir'at al-ahval," Brit. Libr. MS, foll. 58a-58b.

[46] Ashirbadi Lal Srivastava, Shuja-ud-Daulah , 2 vols., rev. ed. (Agra: Shiva Lal Agarwala, 1961), 2:319.

[47] Charles Alfred Elliot, Chronicles of Oonao, a District in Oudh (Allahabad: Allahabad Mission Press, 1862), pp. 113-16; Hafiz Muhammad Basir, "Arzah," Persian MS 1545, Nat'l Archives of India, New Delhi, Muhammad Fayzbakhsh, "Risalah dar ahval-i zamindaran-i Kakori," Curzon Coll., MS 87, foll. 170a-190a, Asiatic Soc. Lib., Calcutta.

Dawlah's reign.^[48] Isfahani painted a black picture of the judiciary under Nawab Asafu'd-Dawlah as altogether ineffective. He said that in 1783, as a result of pressure exerted by the British resident, Bristow, the deputy chief minister, Haydar Beg, appointed Mawlavi Mubin Farangi-Mahalli as civil judge. After a while the government replaced him with a Shi‘i Iranian, Muhammad Nasir Khan (a cousin of the assassinated chief minister, Mukhtaru'd-Dawlah), a notable rather than a religious scholar. In 1792 the Sunni Mufti Ghulam Hazrat became Lucknow's chief qazi , but the payroll for his court employees was, owing to treasury department problems, always in arrears.^[49]

Nawab Sacadat ‘Ali Khan (r. 1798-1814) likewise depended largely on the Sunni ulama of the Farangi Mahall for his court judges.^[50] These Sunni judges sometimes came into conflict with the nawab; Sacadat ‘Ali removed Mawlavi Zuhuru'llah (d. 1840) from office after a dispute. Such disputes with the court could be ruinous both to careers and to finances, but Zuhuru'llah sought and received the patronage of a Shi‘i tax-farmer, becoming mufti once again after Sacadat ‘Ali's death.

The judiciary remained weak, and the British, worried about the impact of insecurity on property, constantly urged Nawab Sacadat ‘Ali to establish courts of justice and police throughout his dominions. He astutely turned this demand around and used it as a bargaining chip, saying that such a court system could be established only when the rebels in the countryside were extirpated, an indirect way of asking for more British troops to help his tax collectors.^[51]

The Sunni background of the government qazis made many Shi‘is uncomfortable about resorting to them. A believer asked Sayyid Dildar ‘Ali Nasirabadi if, where two Shi‘is had an unsettled legal dispute, they were permitted to take it to an upright Imami religious scholar. He replied that it was not only permissible, it was the preferred course.^[52] The Shi‘i ulama enhanced their moral authority and circumvented the Farangi-Mahall judges through giving informal rulings on disputes between Shi‘is.

[48] Sultan ‘Ali Husayni Safavi, "Macdan as-sacdah," Soc Coll., MS 181, foll. 251b-252a, Asiatic Soc. Lib, Calcutta, al-Hasani, Nuzhat al-khawatir 7:353; Rahman ‘Ali, Tazkirah-'i ‘ulama-yiHind (Lucknow, Naval Kishor, 1914), p 154 Another judicial figure of that era was Qazi S Muhammad Taqi b Qazi Mustafa see Safavi, "Macdan, fol 351b, and Barnett, North India between Empires (Berkeley and Los Angeles: Univ. of California Press, 1980), p. 179, where it is noted that he had a jagir yielding Rs 5,347 per year.

[49] Abu Talib Isfahani, History of Asafu'd Dawlah Nawab Wazir of Oudh Being a translation of Tafzihu's Ghafilin , trans. W Hoey (Lucknow. Pustak Kendra, repr. 1971), pp. 55-57.

[50] R ‘Ali, Tazkirah-'i‘ulama , p 15. ‘Abdu'l-Bari Farangi-Mahalli, Atharal-awwal min ‘ulama ' FaranjiMahall (Lucknow, 1321/1903-4), pp. 7-8, 16; ‘Ali, Tazkirah-'i‘ulama , pp. 99-100.

[51] Resident to Vazir, 29 August 1812, Foreign Department Political Consultations [FDPG], 2 July 1813, no 65, NAI.

[52] Sayyid Dildar ‘Ali Nasirabadi, "Najat as-sa'ilin," Fiqh Shi‘ah, MS 256, fol. 26a, Nasiriyyah Lib., Lucknow.

Only in the 1840s did the government institute a Shi‘i judiciary in Awadh. The major reason for the long delay in this development was that the Shi‘i ulama simply did not trust the nawabs to let them make rulings according to Islamic law and their own consciences. Partially, they may not have wished to put themselves in a position where they would have been sure to come into conflict occasionally with their benefactors, for long remaining content to let Farangi-Mahallis like Mufti Zuhuru'llah undertake this often dangerous and morally compromising work.

An incident in the continuing rivalry between the Indian and Iranian Shi‘i ulama demonstrates the difficulties they faced in this regard. Aqa Ahmad Bihbahani came to India late in the eighteenth century and stayed in Hyderabad, Murshidabad, and Patna. He then came to Awadh in search of patronage, settling at first in Faizabad. In fact, he ought to have gotten the ulama in Lucknow to have the nawab extend an invitation to him, but perhaps because of his Iranian pride he did not abide by-that etiquette. He then committed the even more serious breach of coming to Lucknow without the nawab's permission.^[53]

At the end of Ramadan in 1222 (1807), some believers came to Bihbahani in Lucknow and stated that they had seen the moon, a sign that the month of fasting was over. Aqa Ahmad gave a ruling that the next day was the first of Shawwal and the Holy Day (‘Idal-Fitr ) marking the breaking of the fast. He sent the ruling to Nawab Sacadat ‘Ali Khan, who, he said, at first accepted it. Later the nawab changed his mind and issued orders that the Holy Day would be celebrated a day later. Some friends advised Bihbhani to go along with the nawab's judgment, but he replied that in such matters the mujtahid must be obeyed, not obedient. He asserted that given the Shi‘i faith of the nawab, practicing dissimulation with him could have no meaning, and the Imams forbade the sort of worldly greed that would impel a cleric to obey him on this issue.

The next day Sacadat ‘Ali Khan went to the mosque for the Holy Day prayers, which Sayyid Dildar ‘Ali led. Aqa Ahmad insisted that the Law forbade holding the prayers a day late, but the Lucknow ulama justified it on grounds of pious dissimulation (taqiyyah ) Bihbahani sent a letter to the ulama, protesting that such actions gave an excuse to the Sunnis to criticize them. In reply, they quoted oral reports from the Imams living under the Sunni Abbasids about pious dissimulation, which he felt inappropriate. He complained that many in Lucknow thought that simply receiving a diploma (ijazah ) permitting one to transmit the oral reports of the Imams made a scholar a mujtahid, cattily remarking that in all of North India he never found any true ulama.^[54] These barbs, directed at Sayyid Dildar ‘Ali, aimed

[53] Aqa Ahmad Bihbahani, "Mir'at al-ahval-i jahan-nama," Buhar Coll., MS 96, fol. 166b, Calcutta.

[54] Ibid, foll 168a-168b.

at disputing his status as a mujtahid.

Sayyid Dildar ‘Ali angrily riposted that he had on many occasions opposed the nawabs, but insisted on the legitimacy of practicing pious dissimulation with them. He gave as an example the time that Nawab Asafu'd-Dawlah fell ill and British friends suggested that he have some liquor for its medicinal effects. The nawab had given up drinking some time before, repenting before Sayyid Dildar ‘Ali. He asked Nasirabadi about this medical advice through a notable. The prayer leader replied without hesitation that many oral reports said that forbidden things have no curative effect. He could not permit the drinking of wine for medicinal purposes, on grounds of Islamic law.

Nasirabadi explained that he had not practiced pious dissimulation in that case because the nawah asked him a direct question. In the incident of the late Holy Day prayers, Sacadat ‘Ali Khan never bothered to inquire as to his opinion, but simply issued orders postponing the ceremonies. Had he asked, Sayyid Dildar ‘Ali would have informed him that he was wrong to do so. But for the prayer leader to have volunteered such information would have been, he insisted, so serious an infraction against court protocol that it might well have put his life in danger. Temporary visitors such as Bihbahani might have been able to defy the nawab, he allowed, but local religious officials were in a much more precarious position.^[55]

This sort of awkward situation made Shi‘i ulama unwilling to accept positions as government-appointed judges. At one point the government of Sacadat ‘Ali Khan attempted to appoint Sayyid Dildar ‘Ali to a judgeship. Nasirabadi explained that his acceptance would have been conditional on the nawab's assurance that the Islamic Law would be implemented. Since this would have meant that Sayyid Dildar ‘Ali would be judging the nawab, he declined to accept.^[56]