Article 5

This article is directed against torture, cruelty, inhuman or degrading treatment or punishment.

So far as treatment is concerned, as Islam does not recognize any basis of discrimination, all persons are entitled to fair and equal treatment; and dignified behaviour and deportment and respect for the dignity of others have been outstanding characteristics of Islamic society even during what might be described as its period of decline.

The Prophet constantly admonished people to behave with calmness and dignity in all situations, and emphasized the need of exercizing courtesy and dignity towards all.

He told the leader of the deputation from the Abdul Qais tribe: “You have two qualities which are very acceptable to Allah: forbearance and deliberation.”1

He told his wife Ayesha: “Whatever is done with grace enhances its value, and that which lacks grace loses all value.”2

He prohibited all cruelty and torture. He said: “No one should be subjected to chastisement by fire,”3 and also admonished against hitting any person on the face.4

He noticed a donkey which had been branded on its face, and admonished against the practice. If branding becomes necessary it should be carried out on a less sensitive part of the body.5

In the realm of penal law, certain penalties might appear to be severe or even harsh. This is not the occasion to embark upon the relative merit and usefulness of different types of punishment. One or two considerations might, however, be set down as relevant in this context.

Imprisonment as a penalty for offences, and the establishment of prisons and all their attendant paraphernalia, were comparatively unknown in the world of early Islam, and it is a debatable question even today whether a term of imprisonment is preferable in all cases and situations to, say, a flogging.

The Quran prescribes flogging for certain offences, e.g. fornication or adultery whether on the part of a male or a female (24:3) and slanderous accusation of unchastity against a woman (24:5). The severity of the penalty prescribed for these offences will be more readily appreciated if it is remembered that the safeguarding of moral values and standards is among the primary concerns of religion. Such appreciation, however, is not so easily forthcoming in those sophisticated modem societies in which unchastity on the part of men is considered only a normal manifestation of virility and even on the part of a woman is no longer looked upon with serious disfavour. A Superintendent of Education has recently announced that he does not regard premarital sexual intercourse as morally objectionable in the case of senior school students, and Deans of Universities, though perturbed at the prevalence of sexual relations between college students, profess themselves helpless in face of the situation, particularly, as one of them has observed, when parents themselves not only see no harm in it but encourage it. Every society is entitled to set up and follow its own standards. Islam regards these offences as most heinous and injurious in their consequences. “Come not even nigh unto adultery; surely it is a foul thing and an evil way” (17:33). “Verily, those who slander chaste, unwary, believing women are cursed in this world and the Hereafter and for them is a grievous chastisement” (24:24).

It would be amusing, were it not a matter so grave, that those who erroneously attribute to woman a position of inferiority in Islamic society, themselves hold a woman’s honour so cheap that a trespass against it is deemed to be sufficiently atoned for by the payment of monetary compensation to the husband, in the case of adultery, and as used to be the case under the Common Law, to the father in the case of fornication which resulted in pregnancy and thus occasioned loss of service to the father. These are not, however, matters to which a uniform yard-stick can be made applicable. It is submitted that certain types of offences call for severe chastisement, and flogging in the case of such offences cannot be regarded as cruel, inhuman or degrading.

There is one other offence—theft—which Islam classifies as one calling for a severe penalty. In this case the penalty is “cutting off of hands” (5:39). This sounds harsh, but there are several mitigating considerations which should be kept in mind. In the first place it has been uniformly held that the penalty is attracted only in extreme and hardened cases. To attract the extreme penalty, there must be an element of aggravation in the offence committed. The slightest element of extenuation would procure relief for an offender. ‘Umar, the second Khalifah, was always on the look-out for any such element, so as to reduce or modify the penalty, and cases so dealt with by him became precedents for those who followed.
In the next place it is worth recalling that in England, for instance, theft of property worth more than a shilling was classified as felony and, like every other felony, was punished with death, up to as late as 1861.

That, however, may not furnish much comfort to the humanist of today. But there is an element of comfort in the situation. It is true that the Arabic expression in the Quran, which literally construed means “cut off their hands,” was so construed in early and medieval times. In modern times in most Islamic States a term of imprisonment has been substituted and the literal “cutting off ” of hands is exacted in few States and in rare cases. For this, jurists and scholars have found justification in canons of interpretation. Even at the very outset “ both hands” (the term employed in the text) were not cut off for a single aggravated offence, though that would be the strict literal meaning of the expression. The use of the plural where the singular was by common accord taken to be meant, furnishes a clue to the secondary meaning of the expression. The term aidee (hands) has both a primary (physical) connotation and a secondary one. For instance, Abraham, Isaac and Jacob are described as “possessing hands and eyes” (38:46), which obviously means “possessed of power and vision.” Aidee (hands), therefore, might well connote strength or capacity.

Qat’a (cutting off) has also a secondary connotation i.e. circumscribing the use of. For instance qat’ a al lisan (cutting off of the tongue) means imposing silence upon, or circumscribing or prohibiting the use of speech.
Thus “cutting off hands” would have the secondary connotation, circumscribing their capacity or activity, or prohibiting their free movement.

In this context the following examples of the use of qat’ a or its derivatives may be of interest.

“Those who break the covenant of Allah after having established it, and cut asunder what Allah has bidden to be joined” (2:28), meaning, those who are not mindful of the ties of kinship.

“Would you then, if you are placed in authority, create disorder in the land and cut off your wombs” (47:23), that is to say, sever your ties of kinship?

“This building of theirs, which they have built, will ever continue to be a source of disquiet in their hearts, unless their hearts be cut to pieces” (9:110), that is to say, till their hearts become incapable of feeling.

Of the people of Lot it is said, “Do you indeed come lustfully to men and cut off the highway?” (29:30), that is to say, destroy its security and thus make it unsafe for travellers.

Even when qat’a is used in the literal sense, it does not necessarily mean complete severing. It is said of the women of Egypt, “When they saw him (Joseph) they thought highly of him and cut their hands [qatta’na aidceahunna] and said, ‘Allah be glorified’” (12:32), and when Joseph was summoned to the presence of the King he said to the messenger, “‘Go back to thy lord and ask him how fare the women who cut their hands’” (12:51).