CONCEPT OF CRIME IN ISLAMIC LAW
Crime in Islam is someway different from English concept and in Islamic law there is no relaxation for persons who commits crime, whereas under human rights they believe in reform of criminal. Unlike the other criminal systems, where the criminal offences are categorized according to the nature of the offence, Islamic law categorizes the criminal offences according to the nature and sources of the punishments. Islamic legal advisers classified crime into three categories i.e. hadd, tazir and siyasah.
Hadd: if the right is related to the allah (almighty) is violated.
Tazir: when the right related to the men is violated.
Siyasah: when the right to the state is violated.
HADUD CRIMINAL ACT
There are seven fixed (hadud) criminal offenses. Hudud offenses are defined as “claims of God,” and therefore the sovereign was under an obligation to punish them. All other offenses in Islamic law were defined as “claims of His (god) servants” i.e. people and the burden of proof lies on the victim. For instance, murder which was treated as a private dispute under Islamic law, between the murderer and the victim’s heirs. The heir of the criminal is allowed to compensate and to demand execution of the murderer, but they could also choose to forgive.
- Theft (sariqa)
- Robbery (qatal – tariq)
- Illegal sexual intercourse (zina’)
- False accusation of zina’ (qadhf)
- Drinking alcohol (sharb al-khamr)
- Apostasy ( ridda) includes blasphemy.
The punishment of these offenses varies from the status of the offender. Offender who are Muslims by religion generally receive harsher punishments than the non-Muslims, and similarly the free people receive harsher punishments than slaves. Even in the case of Illegal sexual intercourse (zina) married people receives harsher punishments than of the unmarried.
In brief, the punishments include:
- Capital punishments – by sword/crucifixion (for highway robbery with homicide), by stoning (for zina’ when the offenders are mature, married Muslims)
- Amputation (removal) of hands or feet by surgery (for theft and highway robbery without homicide)
- Flogging with about 100 number of strokes publicly (for drinking, zina’ when the offenders are unmarried or not Muslims, and false accusations of zina’)
Offenses under tazir include perjury, usury, and slander. Offences with nature of thefts, acts of unlawful intercourse, and false accusations of adultery that are beyond the rigorous rules under the hadd punishments are to be dealt under Tazir. The core structure of Tazir is based on the punishment given on the discretion of the judges. Only because Islamic law categorizes offenses according to their penalties, there is no rigorous code of penal offenses for tazir which comes under the classical school of law.
HUMAN RIGHT LAWS AND ISLAMIC CRIMINAL PUNISHMENTS
The international human rights law puts prohibition on the implementation of torture or any forms of cruel, inhuman punishment upon any criminal offender regardless of the offence. The Human Rights Committee (HRC) however noted in its General Comment 20 to Article 7 of the International Covenant on Civil & Political Rights (ICCPR) that the said prohibition extends to “corporal punishment, including excessive chastisement ordered for a crime.”
Punishments under Islamic criminal law are considered to be inhuman and cruel in nature whereas the Human Right law prefers reformative approach towards the offenders. Hudud unlike Tazir, where the offences aren’t prescribed, the punishments are neither fixed nor quantified by the Quran and Sunna, the Hudud punishments are clearly laid down for offences which are explicitly stated by the two highest sources of Islamic legal code, namely the Quran and Sunna. There is prescribed punishments under Qisas, which allows the victim or his legal heir to revoke the punishments and aims purely to secure the rights of man. The penalties and punishments under Hudud were made to assure the rights of God hence, it’s often argued that nobody but God, himself may “forgive the crime or change the law” the very fact that it involves the right of God signifies that it is meant to be mandatory punishment, and no one can disobey the order or command of the god. He is above all. Due to these reasons, the punishments for any offence in Muslim countries are usually seen as non-negotiable obligation. Many Human Right activists have tried multiple times to stop such violation of human right norms by stopping the implementation of Hudud punishments in many Muslim countries.
 Article 1 of United Nations Convention against Torture , 1987
By:- Sampada Sharma
5th year, BBA-LLB
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