Justice Syed Mahmood: A Dissident Voice in the Colonial Justice System

By Grace Mubashir, New Age Islam

15 May 2023

Justice Syed Mahmood, whose life will never be forgotten in the Indian Judicial annals, guided Sir Syed's initiatives for educational excellence and was the genius who gave generously his time and wealth to the Aligarh Muslim University.

 

Justice Syed Mahmood

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Syed Mahmood was born in Delhi in 1850 as the second son of Sir Syed Ahmad Khan and Parsa Begum. His experience of the horrors of the Mutiny of 1857 and the ensuing Muslim pogrom inspired Syed Mahmood to plan for the future of Indian Muslims till the end of his life. Seeing first-hand the course of a generational change, Syed Mahmood also chose the searing path of Sir Syed, who rejected the job guaranteed by the Mughal aristocracy and sided with the British government, the masters of the new India. After his primary education, Syed Mahmood joined Queen's College, Banaras in 1868, resigning from the traditional way of learning.

In the same year, Syed Mahmood, who passed the matriculation examination, was awarded a scholarship given by the British government to the children of the elite class of Indians. His son's life became a sacrifice for Sir Syed's thoughts to guide the Muslims who were stuck in the time loop without being able to understand the new changes to modernity through education.

In 1869, Sir Syed along with Syed Mahmood went on a trip to England that decided the fate of India. Although the trip was to enrol his son in Cambridge, it was during this trip that Sir Syed became familiar with Western educational methods. Syed Mahmood was also research assistant for Sir Syed's reply to William Moore's ‘Life Of Muhammed’ written in London.

In 1870, Syed Mahmood joined Christ's College under Cambridge for further studies. Syed Mahmood became active in legal studies, listening to Charles Dickens, joining Ananda Mohan Bose, and calling for equal citizenship for Indians. But the father's dream was different. Sir Syed did not want to lavish his professional career with personal gains, so he sent Syed Mahmood to study abroad. According to David Lelyveld, Sir Syed's biographer, Syed Mahmood returned to India on 26 November 1872 due to his father's insistence. Even then, on 10 May 1869, he joined the famous Lincoln's Inn in England as a barrister. Syed Mahmood returned home and joined the Allahabad High Court as a barrister in 1872.

With Father in Aligarh

During the rebellion of 1857, Sir Syed was a clerk in the civil court (small causes court) at Bijnur in present-day Uttar Pradesh. Later, he came to the North Indian Muslims who were stunned to see their heritage and dynamism disintegrating before their eyes, with the message of change. In 1863, Sir Syed started his efforts by starting the Victoria College and Scientific Society. Muhammadan Anglo-Oriental College was started in 1875 under the leadership of Sir Syed. According to historian Sir Hamilton Gibb, the Muhammadan Oriental College was the first modern educational institution in the Muslim world.

It was Syed Mahmood's experience and foresight that guided his father's active hands. It was Syed Mahmood who made Sir Syed tell before the Hunter Commission, which came to study the state of education in India in 1882, "that the Muhammadan Anglo-Oriental College was intended to mould a number of people who were Muslim believers, Indian by blood, and English by opinion." David Leveld testifies to this.

During Sir Syed's 17 months in England (1869-1870), it was Syed Mahmood who introduced him to the modern methods of education in the West. At the age of twenty-two, he prepared the Cambridge University Plan in Urdu and published it in the Aligarh Institute Gazette. The document was a scheme of higher education on the model of Cambridge University adapted to Indian conditions.

 It was in accordance with this scheme that the opening discussions of the Muhammadan Anglo-Oriental College took place. It was Syed Mahmood who wrote the constitution of 'Tarqiye Taalime Musalman' organization formed by Sir Syed for educational activities on 26th December 1872.

On 8 January 1877, Viceroy Lord Lytton officially laid the foundation stone of the Muhammadan Anglo-Oriental College. In his speech at that event, Syed Mahmood clearly stated the need and purpose of the college. “For the first time in the history of Muhammadans (sic) the educational revolution was initiated by the association of the community. Here is the beginning of a dream for a brighter future, breaking the shackles of history.”

Syed Mahmood had a close eye on all the affairs of the college. Syed Mahmood's efforts were in designing, formulating the syllabus and conducting discussions. Despite his busy life at the Allahabad High Court, he found time for college. After resigning as a judge, Syed Mahmood's focus was entirely on the development of the college. After taking leave in 1882, he went to England and found and appointed Principal Theodore Beck, who later became the godfather in the history of Aligarh.

The Judge Who Placed Humanity over Colonial Justice

The High Court Act of 1861 was a part of the reforms implemented after the Mutiny of 1857. High Courts were established in Calcutta, Madras and Bombay Presidencies under Acts of the British Parliament. Allahabad High Court was established in 1866. In 1872, Syed Mahmood joined the Allahabad High Court Bar as the only non-European barrister.

In 1876, at the age of twenty-six, Syed Mahmood translated the Indian Evidence Act of 1872, into Urdu. He entered the civil service in 1879 as a District Judge. This appointment was due to the special interest of Viceroy Lytton. This appointment is read as a reward for supporting progressive colonialism (Liberal Imperialism). In 1881, on deputation, he assumed the position of adviser to the Prime Minister of Hyderabad, Salar Jung.

Lal Rampal Singh Case (Lal Rampal Singh Case) was a turning point in the life of Syed Mahmood who returned to Raebareli in 1883. The case was about the power of the mortgagor over the mortgaged property in case of default in repayment. The Privy Council, the highest court of appeal in the colonial justice system, upheld Syed Mahmood's verdict. Quoting verbatim from Syed Mahmood's judgment, the Council praised his mastery of jurisprudence. The members of the Privy Council referred Syed Mahmood to the High Court from the District Court. Things became smooth when Viceroy Lord Ripon accepted the proposal. In 1882 Syed Mahmood was promoted as Ad Hoc Judge in Allahabad High Court. He was appointed as a temporary judge three times until his permanent appointment in 1887. On May 9, 1887, Mahmood created history in the Indian judicial system with his permanent appointment. Syed Mahmood was the first Muslim to be appointed as a High Court judge in British India. He is also the first Indian Judge of Allahabad High Court. In the history of the Indian subcontinent so far, Syed Mahmood is also the youngest High Court judge. This appointment was the highest honor an Indian could receive in the colonial justice system of that time.

In a racist work environment, with justice and human rights above the letter of the law, and through courageous interventions, Syed Mahmood continued until his resignation in 1893 due to disagreements with the British Chief Justice.

The judgment of Syed Mahmood who questioned the feasibility of British criminal law in Queen Empress V. Phopi case is very important. Under section 423 of the Criminal Code of 1891, even if an offender is unable to appear in court either in person or through a lawyer, the trial judge's examination of the records of the accused can be considered a 'hearing'. Syed Mahmood Ekanga strongly disagreed with this. In his dissenting judgment, he stated: "The examination of records by a judge cannot be considered a 'hearing' unless the defendant or counsel is present in person." Citing this judgment, Justice Krishnaiyar, hailed as the Indian father of public interest litigation, noted: “This judgment was the first declaration of human rights at a time when justice was the handmaiden of colonial interests. Instead of sacrificing justice to the entanglements of law, he made humanity the cornerstone of the legal system through this judgment.”

383 of his important judgments have appeared in the Indian Law Report. Syed Mahmood's refusal in the Queen Empress V Babulal case is still relevant. The “confession procedure” was vague under the Indian Evidence Act of 1872. In this ruling, Syed Mahmood overturned confessions obtained through torture. He added that judicial members should be present for the confession of the accused in custody to be accepted. Syed Mahmood became an unforgettable personality in the Indian justice system because of this brave intervention. In the book 'Discordant Notes', former Supreme Court Justice Rohindan Nariman has honored Syed Mahmood as India's first exponent of the dissenting judgment.

Syed Mahmood's knowledge of Muslim law was profound. He comprehensively dealt with the problems during the gradual formation of Muslim personal law. Former Supreme Court Chief Justice Hidayatullah had this to say about his interventions in Muslim law. “He gave direction to the newly emerging Muslim jurisprudence during the colonial period and tried to unite classical fiqh and British common law on the same thread. He gave a precise shape to modern Muslim jurisprudence by quoting from Fatawa al-Alamgiya, Hidayah and Roman Law.

His judgment in the case of Amir Muhammed V. Jifro Begum marked a fundamental reform in the law of distribution of inheritance in Hanafi fiqh. If a Muslim dies in debt, the heirs are entitled to the property after the debt was settled. This principle of Hindu joint family law was applicable to Muslims as well. Syed Mahmood rewrote this law through his decree. His ruling was that after death, the property should be distributed irrespective of the debts and the heirs should pay the debts according to the share distributed. It was also reminded that the distribution of Muslim inheritance should be done only according to Muhammadan law.

 His judgment in the case of Gobind Dayal V. Inayatullah further clarified personal law in colonial India. The ruling was in the case of "Shufa" (pre-emption) if two persons "A" and "B" own land in a place and "A" sells the land to "C" without mutual consent. He also commented on the scepticism in colonial India about the applicability of Muslim law to non-Muslims. He ruled: “For ages Muslim law was common law. Common law applies to everyone. Non-Muslims saw common law as part of local customs. In the new changed situation, Muslim law does not apply except between two Muslim persons as British law is common law.”

In the case of Shayara Bano V. Government of India, which considered triple talaq in 2017, Supreme Court Judge Rohinran Nariman relied on this judgment of Syed Mahmood to clarify the relationship between Muslims and personal law.

His judgment in Jangu and Others V. Ahmed Ullah and Others case is interesting and shows his knowledge of Muslim law. The case was about the right of a Muslim who does not follow the Madhhab to say Ameen aloud among the Hanafi people who say Ameen silently in prayer. He clarified that the church is a public place and everyone has freedom of worship. He also stated in the judgment that the ownership of the mosque belongs to Allah.

The judgment in Abdul Kadir V. Salima case is still cited by courts today. The said case is about the Muslim Marriage Act. The customs related to Muslim marriage, the responsibility of the husband's mahr, the marital rights of the wife and the husband, etc. were clearly explained in this ruling. He clarified that Muslim marriage is not an indissoluble divine bond as in Hinduism, but only a contract (Muslim marriage is not a sacrament but a contract). He explained that Muslim marriage is only a civil contract based on classical texts. Mahr is the right of the woman, after marriage the woman is not the husband's property but the wife is only a party to a relationship that can be terminated easily were other important parts of the verdict.

In the Mazhar Ali V. Budh Singh Case, Syed Mahmood resolved the legal conflict between the Indian Evidence Act and the Muslim Personal Law. Bengal Civil Courts Act of 1871 (Bengal Civil Court Act) gave effect to personal law for Muslims and Hindus in matters related to inheritance, succession, marriage and caste. All other civil matters were kept under British common law. According to the Indian Evidence Act, 7 years of unrelated person will be treated as missing. According to Hanafi fiqh, divorce can be granted if the husband has been absent for 99 years. In such a matter, the crux of the issue was whether a wife can declare her husband, who has not been in contact with her for 7 years, as missing. His ruling was that the disappearances were not to be tried under the Civil Courts Act, 1871, according to Muslim jurisprudence. This ruling was based on Istishab, one of the fundamental principles of Hanafi Fiqh.

In many other judgments, Syed Mahmood's law was on the side of fairness and justice without appeasing the colonial authorities. His judgments have been relied upon by many courts of the world. Kenya, Malaysia, Singapore, Bangladesh and Pakistan are just a few examples.

The end of brave rebellious voices for justice was sad. Soon after his appointment, he became increasingly estranged from Sir John Edge, the Chief Justice of the Allahabad High Court. He did not tolerate Syed Mahmood, an Indian who raised dissent against his rulings. Syed Mahmood resigned from the judiciary on 8th September 1893. Sir Syed Ahmed Khan, the father, was proud of his son who was not ready to bend the law according to the whims of the British. A disagreement with the Chief Justice led to his resignation, but his alcoholism, which by then had become a ruin, was also the reason for his resignation. Drunkenness was behind the downfall of the wise judge.

From Judge to Legislator

After his resignation, Syed Mahmood again engaged in the activities of Aligarh. In 1866, he was active in the ``All India Muhammadan Educational Conference'' formed by Sir Syed to discuss educational progress. At the request of the organization, in 1893 and 1894 he researched contemporary Muslim education and presented a report. 'A History of English Education in India: Rise, Development, Progress and Present Condition of English Education in India with Special Reference to the Muhammadans' was published as a book.

This report was prepared by Syed Mahmood based on information collected from Hunter Commission Report, various government documents, press releases, etc. It can be considered as an introduction to the history of Indian Muslim education. Two other books written by him in Urdu are 'Kitab Talaq' and 'Kitab Shufa' (Book of Pre-emption). In 1896, Syed Mahmood returned to the Lucknow court as a lawyer. He was nominated to the Oudh Legislative Council in January of the same year. Records of his interventions in the Legislative Assembly are not available today.

He spent the rest of his life mainly in Aligarh, which he dreamed of with his father. After his father's death, he was appointed secretary of the Muhammadan Oriental College. But excessive drinking and the resulting attitude caused problems. 1899 He was removed from the post of Secretary and appointed as President. He was removed from that post the following year. At the time of his death, he was in the figurative capacity of Visitor of University.

He died on 8 May 1903 at the age of fifty-three. He rests close to his father's grave at Mahmood Manzil, Aligarh. Syed Mahmood is a personality who brought many changes in the field of education and the justice system in a very short time. He was a judge who took justice as his master and constantly raised his rebellious voice against the hypocrisies of the British legal system. And the intellectual power of Aligarh Muslim University.

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A regular columnist for NewAgeIslam.com, Mubashir V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance journalist.

 

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