On December 26, 2021, addressing the 16th national council meeting of the RSS affiliated Akhil Bhartiya Adhivakta Parishad at Hyderabad, on the topic, “Decolonization of the Indian Legal System”, Justice Abdul Nazeer emphasized that “great lawyers and judges are not born but are made by proper education and great legal traditions, as were Manu, Kautilya, Katyayana, Brihasparti, Narada, Parashar, Yajnavalkya, and other legal giants of ancient India. The continued neglect of their great knowledge and adherence to the alien colonial legal system is detrimental to the goals of our Constitution and against our national interests….A colonial psyche persists in the administration of justice in the present-day Indian legal system…”.
The learned Justice Nazeer chose not to refer to Justice Syed Mahmood (1850-1903), who was the pioneer in asserting fearlessly against the colonial judiciary; he produced incisive legal commentaries, made a series of audacious dissents, and eventually quit the job (1893) just to protect self-respect of the Indians against the racist conduct of the British judges. His father, Sir Syed, in his article in an Urdu newspaper, explained the reason for the resignation, precisely in terms of protecting self-respect.
In the late 19th century India when conceptions of nationhood were evolving, many important things were happening. In these historical narratives, an Indian judge of the Allahabad High Court was contesting racism of the imperial powers including the fellow European judges in rather intrepid ways. He was Syed Mahmood (1850-1903). His father, Sir Syed Ahmad Khan (1817-1898), the founder of the Mohammedan Anglo-Oriental (MAO) College at Aligarh in 1877, has figured more prominently and contentiously in debates on evolving nationalism. He has been stereotyped not only as loyalist to the British but also as separatist. As far as his son, Mahmood is concerned, he was quite a significant aide in his father’s project of modern education. Unfortunately, Mahmood’s contributions remain largely ignored by historians in the general and the legal fraternity in particular.
The MAO College of 1877 grew into the biggest residential University in 1920, a century ago from now. For the last more than half a century, the AMU’s Department of History is continuing as a premier flagship Centre of Advanced Study. But no comprehensive biography with professional rigours could come out of it. As early as 1889, the Department of Law was established primarily with initiatives and donations (money and books/journals) of Syed Mahmood.
It was only in 1973 that his contributions in law and jurisprudence were brought out through a Special Number of the Aligarh Law Journal. This was seven years after the centenary celebrations (1966) of the Allahabad High Court. In this celebration, many scholars of law and jurisprudence shared their reflections on the high calibres of Mahmood both as lawyer and judge. They paid glowing tributes to the genius of Syed Mahmood.
[Incidentally, another Dr. Syed Mahmud (1889-1971), an assertive anti-British alumnus of the MAO College in 1907, has also remained neglected. The European control on the management of the college made him quit the MAO College. He later obtained his doctorate in Mughal administration from Germany and Law degree from Britain. Besides having served as minister in Bihar during 1937-39 and 1946-52, he also served as the Union Minister of State for External Affairs in the cabinet of Nehru in the 1950s. His comprehensive biography with academic rigours is still awaited].
The good news is, that Alan M. Guenther, in 2004, has done a doctoral thesis on Syed Mahmood (1850-1903). This is from the world’s best center of Islamic Studies in the McGill University of Canada, and is available online for public access/wider readership, with the title, “Syed Mahmood and the Transformation of Muslim Law in British India”. This is a meticulously well-researched account. The first two chapters, in a total of 171 pages, are dedicated to a complete biography of Syed Mahmood, touching almost every single aspect of his public life. Besides the thesis, Guenther also published a long essay (2011) on Mahmood’s views on English education in 19th century India. On this theme, Mahmood had written a book in 1895 which was an outcome of his speeches delivered at the Educational Conference. Guenther also published an essay (2003) on the Hanafi fiqh in colonial India.
In 1965, Asaf Ali Asghar Fyzee (1899-1981) complained, “Syed Mahmood’s contributions to the transformation of Muslim law in India have been largely neglected by historians and survive primarily as footnotes in legal texts on Muslim law”. Adding to this, Guenther observes:
“…overshadowed by the life and writings of his illustrious father, [Syed] Ahmad Khan, his legacy has not received the attention it deserves. A large part of his father’s achievements in the reform of education, in fact, would not have been possible without the assistance of Syed Mahmood. But when he reached the age at which his father had made his most significant achievements, [Mahmood] had his life cut short”.
Mahmood had very clearly laid out his future plans for life. He is said to have once commented that when he first began to plan the course of his life, he decided to follow the pattern of his ancestors and devote the first third of his allotted 70 years to educating himself, the second third to earning a living, and the remaining third to “retired study, authorship, and devotion to matters of public utility, following the steps of my father”, as said by S. Khalid Rashid (1973).
“Tragically, when he had successfully completed the first two and he reached the final phase, his mind had deteriorated through alcohol abuse and his body had wasted away through disease. He died shortly before his 53rd birthday a broken man, having been forced to retire [in 1893] from his post as judge of the High Court, having been estranged from his father just prior to the latter’s death five years previously, having been stripped of his roles at the college he had helped to found, having been separated from his wife and only son, and having suffered such a financial deterioration that his possessions had to be sold to cover his debts. Whereas his father’s numerous writings and volumes of letters continue to be republished, Syed Mahmood’s contributions to Muslim thought at the end of the 19th century are hidden away for the most part in bound volumes of the Indian Law Reports and brittle files of government correspondence”, says Guenther.
An aspect of the last years of Mahmood’s life has been captured best by Prof. Iftikhar Alam Khan’s Urdu books, Sir Syed:-Daroon-e-Khana (2006/2020) and most recently published Rufaqa-e-Sir Syed: Rafaqat, Raqabat wa Iqtidar Ki Kashmakash. Iftikhar’s Urdu accounts expose the smear campaigns launched by the three [companions cum successors of Sir Syed, viz., Samiullah, Mohsin-ul-Mulk, and Viqar-ul-Mulk] against Syed Mahmood, vying for the College Secretary post. Often, this happened in connivance with European members of MAO College. Exploiting some weaknesses and eccentricities in Syed Mahmood, they ousted him to get a hold over the College affairs. These shenanigans, in particular, had a deleterious impact on the personality and conduct of Syed Mahmood during the last few years of his tragic life.
Sir Syed’s educational Enterprise and Syed Mahmood’s Role
Having returned back to India after completing his education in England in 1872, Mahmood took time out of his emerging legal career to assist his father in his work of educational reform, particularly in the establishing of the MAOC at Aligarh. Initially, he prepared a detailed plan for the establishment of the college along the lines of what he had experienced in Cambridge. His specific aim as explicated in 1872 was to produce future leaders of India through an educational institution having ‘residence within the precincts of the University and under its discipline’ to be ‘as indispensable as education in the course of study itself’, so that a specific society of students and teachers would be formed quite different from the rest of the society.
He also travelled with his father to Punjab towards the end of 1873 and spoke at a rally organized to promote the project of the MAOC. The extent of his assistance was highlighted in a speech Ahmad Khan made in 1889 introducing his motion to nominate Syed Mahmood as Joint Secretary of the board of trustees, in the face of opposition from some long-time supporters of MAOC. He [Sir Syed] enumerated the many ways in which Syed Mahmood’s help had been indispensable in the operation of the College. In particular, he considered his son’s influence to have been the primary factor in persuading European professors to come to India to teach at the school (MAOC).
This was confirmed by the European staff members some six years later when opposition to Syed Mahmood’s position as Joint Secretary arose once again. The principal, Theodore Beck (1859-1899), [testified]… Syed Ahmad in his speech also acknowledged his reliance on Syed Mahmood for advice in all matters, and his imprint could be clearly noted in the correspondence relating to the school. He declared his firm conviction that Syed Mahmood was the one person who shared his vision for the College; and apart from him, no one would be able to administer the school in keeping with that vision.”
However, Samiullah (1834-1908) didn’t agree with Sir Syed on this count. As a result, a tussle for power began in the college management.
This sordid power-play within the MAO College may possibly have been a reason why did the AMU have had inhibition in bringing out Mahmood’s biography, a research gap that Guenther’s doctoral thesis fills in successfully. Besides the usual primary archival documents, some of the crucial correspondences are preserved in London’s India Office (British) Library which have been used extensively by Guenther.
Syed Mahmood and Tryst with Muslim Law
Mahmood is a forgotten pioneer of the transformation of Muslim law in modern South Asia. He was the first Muslim to be appointed as a judge (1882), of the High Courts of British India, and that at the comparatively young age of 32. In this capacity, he contributed numerous landmark judicial decisions that shaped the content of not only Muslim law but also the law in general, and the way in which it was administered in India.
Prior to achieving that post, he blazed a trail that was followed by his younger contemporaries in their involvement in the judicial administration of British India. He was one of the first Indian Muslims to study in England and to receive his legal training in the English system of jurisprudence. He was the first Indian to be enrolled as a barrister in the High Court of Judicature at Allahabad in 1872. He was the first Indian to be appointed as District Judge in the restructured judicial system of Awadh in 1879. He was also the first Indian to be appointed as a Puisne Judge to the High Court at Allahabad, in addition to being the first Muslim in any of the High Courts in India. In all these fields, he had cleared the path for the greater participation of Indian Muslims in the administration of justice in their country. But Syed Mahmood’s contribution cannot be limited to creamy new career opportunities for Muslim youth in India. His greatest contribution lies in his lasting legacy in the way Muslim law is perceived and administered in the countries of South Asia today.
A Champion of Accessible Justice
An abiding concern of Syed Mahmood’s was the cost of the administration of justice in India, …lengthy, …expensive, complicated mass of law…Distance of the courts was another concern for which Syed Mahmood proposed a network of numerous village courts to adjudicate the cases “on the spot”, and to make justice more accessible, through unpaid tribunals and honorary munsifs. For this, Syed Mahmood prepared a comprehensive draft, tells Guenther. ..
Furthermore, the levy of court fees and stamps of affixed legal documents was something he attacked the [racial] mindset. In some of his judgments, he pointed out that British judges in India were too quick to see fraud everywhere. In his judgments of August 1884 and Feb 1885, Mahmood wrote, “a poor man may buy cheap clothes, but he cannot buy cheap justice, and if justice costs the same amount in both cases of rich and poor, it follows that the rich man will be able to purchase it, whilst the poor man will not”.
In his speech at the Allahabad Bar in April 1885, he also raised the issue of vernacular in judicial transactions and that the laws should be made into intelligible languages of the masses. Insisted on vernacular in arguments/pleading and delivery of justice, rendering the verdicts into translations. So that people not knowing the English language must rest assured that the verdicts recorded are judicious. Let it be added here that this issue still continues to be debated. Mahmood’s prescient incision needs to be acknowledged in this regard.
An Indian Dissenter during High Noon of British Colonialism
He is known most for his outstanding dissents in judgments. Most of the laurels (1966) showered upon him are pertaining to this specific aspect. Justice (retd.) Rohinton F. Nariman, in his recent book (2021), Discordant Notes, vol. 2, writes that Mahmood was known for his detailed written judgments of which many were dissents, some of which stand out not only for the thoroughness with which they were prepared but also for the fearless language in which they were delivered. Citing Gregory Kozlowski (1985), Nariman further adds, “these judgments were written with a clarity and veracity”.
Mahmood’s lasting contributions in the law of evidence and his specific commitment to get into the original Sanskrit for Hindu laws and Arabic texts for Muslim laws (rather than depending upon the extant interpretations published subsequent to those texts) were the most outstanding precedence about which Guenther gives us impressive details. Justice Hedayatullah, in one of his speeches, testifies that Mahmood, while pronouncing judgments, if needed, also pointed out inaccuracies in the English translations of some of the commentaries.
From the 1860s to the 1880s, in the exercises of codification of the laws, Syed Mahmood played immense roles, including his critiques pertaining to such codifications. Mahmood argued for limits on importing the British laws. On many such issues, his father, Sir Syed, too, took similar lines. Mahmood kept protesting that the local context of India was being overlooked in these codifications. In short, Mahmood was concerned not just about the laws, but even paid heed to its efficacy and adaptability given India’s cultural diversity.
Guenther observes: “…[T]hroughout his life he identified himself as a Muslim, as well as an Indian and a subject of the British crown, and that he was actively involved in the education and improvement of the Indian Muslim community. At the same time, Mahmood’s efforts to promote harmony between people of diverse backgrounds, and his support for initiatives that improved the situation of all Indians, regardless of religious affiliation, are presented to provide a well-rounded perspective of his interests….”
As far as resistance against racism is concerned, an anecdote recorded in Altaf Hali’s Hayat-e-Javed (1901), cited by Shamsur Rahman Faruqi (2006) is worth sharing:
Contrary to the culture of sycophancy and genuflecting before the colonial English authority promoted by the British and freely adopted by the Indians at that time, both Syed Ahmad Khan and his high-profile and brilliant son Syed Mahmud strived to conduct themselves as if they were equal to the English. The incident of the Agra Durbar of 1867 was quite well-known to the Indian community, and not just the Muslims. Syed Ahmad Khan had stayed away from the Durbar because Indians had been given seats inferior to the English. A medal was to be conferred on Syed Ahmad Khan at that Durbar. Williams, the then Commissioner of Meerut was later deputed to present the medal to Syed Ahmad Khan at Aligarh railway station. Willams broke protocol and showed his pique at having to do the task under duress and said that he was bound by Government orders, or he wouldn’t be presenting the medal to Syed Ahmad Khan. Syed Ahmad Khan accepted the medal, saying that he wouldn’t have accepted the medal, except that he too was bound by Government orders.
Indian democracy is an outcome of anti-colonial nationalism. Dissent is a core component of democracy. Mahmood’s audacity of dissent should be seen as a contribution towards the making of evolving nationalism. The backsliding of Indian democracy has been described as electoral autocracy by the V-Dem Institute (2022) wherein among other things, the dissents being criminalised by the incumbent regime of India, and the failure of the Indian judiciary to contain the majoritarian upsurge have been factored in as crucial villains. Further, it is often said, “a corrupt judge offendeth not so highly as a facile judge”. Sadly, there are increasing instances of both corrupt and facile judges in India today. A look into the professionalism of Mahmood would act as an encouraging reference against such degeneration in the Indian judiciary.
What did Mahmood think of the Indian National Congress?
Guenther’s suggestive answer to this is:
“[h]e never joined the Congress, but at the same time kept himself equally aloof from the anti-Congress propaganda, carried on for some years by his father. Being a man of liberal education and true culture, he did not share the narrow exclusiveness of the average Indian Musulman and his views on most of the controversial questions were characterized by a rare catholicity.”…His acceptance among the Hindus [elites] generally was demonstrated by the fact that they tried to send him as their representative to the Imperial Legislative Council, though he never received that appointment.”
Thus, what we see is that in the evolution of anti-colonial nationalism in late 19th century India, Justice Mahmood made his own contributions in the domains of his professional and public life.
Nonetheless, Mahmood did harbour certain class and regional prejudices, just as his father did. Guenther reveals: “In the eyes of Syed Mahmood (The Pioneer, September 4, 1875), the ‘higher classes of natives’ whose sympathies the government had failed to win with their educational policies were ‘an important portion of the population’. When challenged to defend some of his points in a rejoinder by ‘Another Native’ in the same paper two weeks later, Mahmood (The Pioneer, September 23, 1875) elaborated on this point which he considered ‘the political bearing of the question’. In his opinion, the peoples in the Punjab and the North-western Provinces [Uttar Pradesh] were historically of ‘a much greater political significance’ than those of Lower Bengal, and any educational system that succeeded in ‘attracting the Bengalee and fail(ed) to exercise any influence upon the higher classes of the Rajpoot, the Sikh, and the Mussulman’ must be regarded as a failure”.
Guenther’s opinion (2011) on this count may offer an insight into understanding the socio-regional composition of the high functionaries of AMU and impartial AMU insiders would today possibly testify that the AMU, in terms of its higher echelons of the power structure, arguably continues to harbour such regional or sub-regional prejudices.
By way of conclusion, it seems pertinent to suggest that given the significance of Mahmood’s detailed insistence on the Indianization of jurisprudence and legislation and his immense material and intellectual contributions to modern education in 19th century India, Guenther’s doctoral dissertation under review, may be published in book-form and its translations in major Indian vernaculars should also be rendered. By way of the centenary celebrations of AMU, its Sir Syed Academy is bringing out many publications. Steps towards publishing Guenther’s dissertation may be a fitting tribute to Mahmood, who must also be regarded as one of the prominent co-founders of MAO College.
Mohammad Sajjad teaches modern and contemporary Indian History at Aligarh Muslim University. Md. Zeeshan Ahmad is a lawyer based in Delhi. The views are personal.
[Abridged version of this essay was carried by the NewsClick.In]