Recently there was news about rajm i.e. stoning to death of some women and men in Iran for the offence of adultery. They were `buried up to the waist, and stoned to death. Before doing that they were given ritual bath (ghusl), wrapped in shroud and then buried up to the waist and stoned. This makes a shocking news and raises the question whether Qur'an permits such cruel punishment.
Before we take up discussion on the Qur'anic punishment we would like to discuss the very approach to crime and punishment in Islam. It must be remembered that the Qur'an is basically not a book on crime and punishment. It is a book of moral guidance and Qur'an dealt with all those issues which would make a human person a model human being in the eyes of Allah. The Qur'an should not be treated as book of law, crime and punishment.
But since the Qur'an was revealed in a society where there was complete vacuum and there were no laws, legal or state institutions, no courts or judicial system, the believers sought Prophet's (PBUH) guidance in every question they were confronted with. In order to guide people the Qur'an came out with answers at different levels. At times it provided answers which were normative and went beyond immediate situation i.e. of eternal nature and at times it provided answers which applied to immediate situation by upholding or reforming the existing custom or tradition.
When it provided answer in terms of existing tradition it made it clear either in following or subsequent verse(s) that eternal answer was something else. Normally Qur'an takes very humane approach which does not violate human dignity but at times it also provided for exemplary punishment in view of the gravity of the crime. But the very word hadd (plural hudud) (had means limit) shows they were maximum punishments and cannot be given in every case. Only a judge or the Qadi will decide the gravity of the crime and decide whether maximum punishment is needed or not.
Our muftis, qadis and judges apply such punishments as a matter of course. The Qur'an also emphasises reformation of the person by using words like tauba (repentance) and that Allah is Ghafur (pardoner) and Rahim (compassionate). The Islamic authorities while giving punishment straight accord maximum punishment without taking into consideration these aspects of the Qur'anic approach. Normal approach should be to reform the person who commits offence or crime than to punish. Only when a person persists in committing offences, he/she should be accorded maximum punishment (hudud punishments). Qur'an's maximum emphasis is on reforming the offender through repentance and Allah's compassion than to punish.
Also, severity or otherwise of the punishment also indicates severity of the crime in the society in which the punishment is prescribed. No punishment should be treated as permanent. However, our jurists and qadis, even if some punishment is mentioned in hadith about which there is controversy, will apply the punishment unthinkingly arguing it is Prophet's (PBUH) sunnah. This is in complete disregard of Qur'anic spirit and modern legal and judicial approach. On one hand we claim Islam is for all times to come and on the other we refuse to re-think practices not sanctioned by the Qur'an. And even if some punishment is prescribed by the Qur'an it has to be seen in the perspective of then prevalent conditions, and not to be blindly applied.
The Holy Prophet lived in a tribal society which had not even known or developed institution of marriage (except in Mecca) and hence sexual morality was lax among the Bedouins. Also, there were certain prevalent customs and Jewish prescriptions. At times the Prophet (PBUH), in the absence of Qur'anic injunctions accepted these prevalent customs or Jewish injunctions and when revelation came, it was abandoned. All this has to be kept in mind while accepting or rejecting any punishment mentioned in hadith literature.
It also has to be kept in mind that the shari'ah laws evolved over a long period of time and after considerable degree of controversies. In this respect we would also like to point out difference between al-shar' and al-shari'ah. Al-shar' is a divine command something emanating from Allah and al-shari'ah is systematic formulation of ordinances into a legal statement. Thus al-shari'ah came into existence through complex processes in a human society incorporating social needs and human opinion. It should not be treated immutable and unalterable. It is divine injunctions applied to a given social conditions. It should not be treated something eternal which cannot be re-thought.
Many issues which are part of one or the other schools of jurisprudence which we treat as divine and immutable were thoroughly debated by Islamic jurists and differing opinions were expressed and incorporated in different schools of law depending upon which hadith was accepted or rejected and how a particular verse of the Qur'an was interpreted. That is why all eminent jurists kept the door of ijtihad (in view of further social needs and changed circumstances) were kept open. But after a few centuries these lively debates and controversies atrophied and doors of ijtihad were shut. The shari'ah laws as evolved earlier by founding fathers came to be followed mechanically.
The punishment for adultery is one controversy among them and needs to be seriously and critically re-examined. Stoning to death for adultery is not at all a Qur'anic punishment. Qur'an prescribes hundred lashes for what it calls zina. Zina is Arabic word which means fornication, adultery as well as rape. In Arabic there are no different words as in English. This has become part of the problem. Imam Raghib defines zina as sleeping with a woman without legally marrying her.
And the Qur'an prescribes the punishment using the word zaniyah and zani i.e. women guilty of zina and man guilty of zina which can mean all three i.e. fornication, adultery or rape. Generally translators have translated the word zaniyah and zani as adulteress and adulterer. Thus Muhammad Asad translates verse (24:2) as "As For the adulteress and the adulterer - flog each of them with a hundred stripes, and let not compassion with them keep you from [carrying out] this law of God, if you [truly] believe in God and the Last Day: and let a group of the believers witness their chastisement." (Muhammad Asad, The Message of the Qur'an, Gibralter, 1980). Abdullah Yusuf Ali, on the other hand uses both the words adulteress and adulterer and fornicator. Thus he translates it as "The woman and the man guilty of adultery or fornication, flog each of them with a hundred stripes?"(Abdullah Yusuf Ali The Holy Qur'an (Hyderabad, n.d).
Thus Qur'an is obviously referring to both adultery and fornication and does not prescribe separate punishments for fornication and adultery. Had Allah intended harsher punishment for adultery, He could have clarified that for adultery punishment would be stoning to death and for fornication hundred stripes. What could have stopped Allah from saying so? There was no separate verse needed. It could have been specified in the same verse. And even if a separate verse was needed it could have been revealed leaving no ambiguity.
Also, the words of the verse "?and let not compassion with them keep you from [carrying out] this law of God" and also that "let a group of the believers witness their chastisement" clearly shows wrath of God for such act of illegal sex and thus flogging in itself is harshest punishment Allah prescribes and no harsher punishment should be instituted. Allah has expressed His wrath in this verse in very harsh words and so the punishment prescribed (of hundred stripes) is the harshest the Qur'an thinks of.
Now as for the prescribed punishment of rajm (stoning to death) in the corpus of shari'ah law today is based on highly controversial hadith of hadrat 'Umar that this verse of rajm was in the Qur'an and that we have recited it. This verse referred to here is called verse of rajm and one finds it mentioned in all major traditions as the missing verse. Thus we read in Ibn Ishaq (pg. 684): "Allah sent Muhammad, and sent down the scripture to him. Part of that He sent down was on stoning. Umar says, 'We read it, we were taught it, and we heeded it. The Apostle [Muhammad] stoned, and we stoned after him. I fear that in the time to come there will be no mention of stoning in Allah's book, and thereby go astray in neglecting an ordinance Allah has sent down."
Thus according to Umar [ibn al-Khattab] the stoning verse was part of the Qur'an, the revelation which Allah sent down. But now it is missing. Thus adultery was not only a capital offence but demanded death by stoning.
Now the question is when Umar ibn al-Khattab is saying so assertively that the verse on stoning was there in the Qur'an and that we have read it and the Prophet (PBUH) stoned those to death who indulged in adultery, then why this verse was omitted? The Qur'an was finally compiled by Hadrat Uthman (which was certainly after the death of Umar, then why this verse was omitted? There is no conclusive answer to this, if we accept the above hadith as authentic and acceptable.
And if Uthman omitted the verse why did he do so? Specially after Hadrat Umar expressed fear that it might be omitted and people may forget it and thus not carry out Allah's injunction? We do not find any satisfactory explanation for this. And whenever a verse was revealed it was committed to memory by some and was recorded by some. Even if written record was not found, someone who had committed it to memory (and there were many) could have pointed it out to Uthman and that verse could have been included in the Qur'an. It is highly unlikely that no one pointed out when final copy was being compiled that such an important verse has been left out from divine book about which Umar had expressed his fear that it might be left out. This seems to be highly unlikely scenario. While compiling Uthman had consulted all huffaz (those who had committed Qur'anic verses to memory) and all written records.
Let us carefully see what Umar had said. According to hadith narrated by Ibn Abbas Umar said, "I am afraid that after a long time has passed, people may say, 'we do not find the verses of the rajm (stoning to death) in the Holy Book', and consequently they may go astray by leaving an obligation that Allah has revealed. Lo I confirm that the penalty of rajm be inflicted on him who commits illegal sexual intercourse, if he is already married and the crime is proved by witnesses or pregnancy or confession." Sufyan added I have memorised this narration in this way." 'Umar added, "Surely Allah's Apostle carried out the penalty of rajm, and so did we after him." (see Sahih al-Bukhari vol.8, Book 86, The Book of Al-Hudud, hadith no.6829).
The words of above hadith clearly shows that it was very important verse and Umar feared that after a long time people may say we did not find this verse in the Book. Despite that why then was it left out as the final version of the Qur'an we have today, and about which there is no controversy among Muslims? Surely, Uthman too would have taken care to include all verses, much more the one on rajm which was so important. But he did not and this itself means, the hadith quoted above should be treated carefully and critically. It should certainly not be accepted uncritically as many tend to do. It is highly doubtful that the Holy Qur'an really intended to prescribe rajm for adultery.
We do not find any mention of rajm in Tabari's tafsir also. He simply explains meaning of jald, how hard one should hit and how many people (ta'ifah) should witness it. Had there been verse of rajm in the Qur'an he would have mentioned it while explaining the meaning of the verse 24:2.
Also, a careful examination of hadith literature shows that the Prophet (PBUH) used the words had, ta'zir and 'uqubah interchangeably. Had is obligatory Qur'anic punishment while ta'zir and 'uqubah are discretionary punishments depending on the circumstances of the crime and those who commit crime. Maulana Madudi also opined that hudud punishments can be applied only in Islamic society which is strictly based on Islamic principles and not in every society.
We also find a hadith narrated by Hadrat A'ishah that the verse on rajm was eaten away by a goat. Such an approach to Qur'an is dangerous and will open the Qur'anic text to various arguments and others will also claim that such and such verse was also in the Qur'an but was lost. We find in Sahih Muslim (chapter CCCXI, P-500, tradition 2286) that Abu Musa Ashari invited Qur'an readers of Basra and three hundred of them responded. It was said by one of them that we used to read a chapter in the Qur'an similar to Bara'ah in length and seriousness but I forgot it. I can remember from the chapter only the following words: 'Should a son of Adam own two valleys full of wealth, he should see a third valley and nothing would fill Ibn Adam's abdomen but the soil. Now here it is maintained that whole chapter as long as chapter of Bara'ah is missing. We find many such ahadith in Sahih Muslim which refer to missing chapters and verses.
Umar is also reported to have said that Chapter 33 (Al-Ahzab) is incomplete. Al-Muttaqi Ali Ibn Husam-Din in his book Mukhtasar Kanz al-Ummal, printed on the margin of Imam Ahmad's Musnad, V2, P2 in his hadith about chapter 33, that said Ibn Mardawayh reported that Huthaifah said: Umar said to me: How many verses are contained in the Chapter al-Ahzab? I said 72 or 73verses. He said: it was almost as long as the chapter of the Cow (al-Baqarah), which contains 287 verses and in it there was the verse of stoning.
Thus we can see to what danger we are exposing the present text of the Qur'an on which there is complete unanimity by arguing that verse on rajm was revealed and then lost. We must resist temptation of such arguments, in order to justify rajm for adultery.
We also find one more narration from Imam Ahmad in which Umar said that if people would not say that Umar included in Qur'an what is not in it I would have written (this verse on rajm) in one corner of the Qur'an. This hadith is contradictory in itself. If the verse on stoning was there in Qur'an why Umar should fear accusation of including in it what is not there in it and if it was not there, where is the question of writing it down in one corner of the Qur'an. Those who accept such hadiths do not pay heed to contradictions in what is being said.
Some make another strange argument that verse of stoning in the Qur'an was revealed but its recitation was annulled but its implementation as punishment was retained. How strange is this argument. Why its recitation should be annulled. Any reason? The fact is that such verse never existed and rajm should not be justified by any means defying all rules of logic. The verse on punishment of zina is crystal clear in the Qur'an and only punishment prescribed is 100 lashes.
The Qur'an also prescribes half the punishment for married slave-girl.(4:25). How one can make stoning to death half in case of slave-girl? Only if punishment is 100 lashes one can make it half. The Qur'anic injunction about adultery by slave-girl is also so clear that no other explanation is possible. In fact Khwarij use this very argument to deny the punishment of stoning for adultery.
Also the argument that the Prophet (PBUH) gave this punishment is also not very tenable. It is far from proved that the Prophet gave this punishment (stoning to death) before revelation of this verse or after revelation of 24:2. If he gave punishment of stoning before revelation of 24:2 obviously he was guided by the prevailing custom in the society and especially its mention in Torah.
But it is difficult to maintain that he gave this punishment after revelation of the verse 24:2. Can the Prophet (PBUH) contradict injunction of the Qur'an? If so, what are other instances in which he did something which was in obvious contradiction to the Qur'anic injunction. This again has really serious implications, besides saying that the Prophet used to do what was not there in the Qur'an.
This is all the more problematic when we find in narration by Ahmad that during Umar's khilafah people used to say that there is no injunction in the Qur'an for rajm so how can we practice it? (the Arabic words of this riwayah are inna unasan yaquluna ma al-rajm fi kitabillah wa innama fihi al-jald ).
Then again the following verse after 24:2 i.e. 24:3 "The adulterer cannot have sexual relations with any but an adulteress or an idolatress, and the adulteress, none can have sexual relations with her but an adulterer or an idolater; and it is forbidden to believers." How can an adulterer or adulteress have sexual relations with adulteress or adulterer, if they are stoned to death?
They can have such relations only if they are alive. This verse is also so clear that no other explanation is possible and any number of ahadith cannot justify any other explanation. What Qur'an intends is to make men and women give up zina whether it is fornication or adultery or rape. Qur'an wants to create a society where sexual relations would be for perpetuating human species, and not just for fulfilling ones lust.
Qur'an wishes to strengthen institution of family and, as pointed out at the outset, pre-Islamic Arabia did not have strong family institution. Also, tribal structure was breaking down and new society was coming into existence due to impact of socio-economic changes and on account of transition from tribal to commercial society. Family institution is highly necessary in such a society as new property relations were developing.
The Qur'an wanted to denounce sex outside marriage which weakens the institution of family and destroys its stability. But Qur'an was also ushering in a civilized society and its whole emphasis was on reforming human character rather than punishing in barbaric or harsh manner. Thus it prescribed punishment of 100 lashes in presence of a group of believers so that it brings him or her shame and creates strong barrier for repeating such action. In a way sentence is harsh enough within a civilised society but not barbaric so as to take away life in a cruel manner.
Once an adulterer (or fornicator) is punished in presence of a group of believers, he will prefer thereafter to repent rather than repeat. Also, for any punishment we have to keep Qur'anic values in mind. Most fundamental Qur'anic values are justice ('adl), benevolence (ihsan), compassion (rahmah) and wisdom (hikmah). No punishment should go against these values. These are Allah's names also in the Qur'an ('Adil, Muhsin, Rahim and Hakim).
Surely stoning to death goes against these fundamental values and kills an erring human being rather than giving him/her a chance to repent or reform. There is need for Muslim jurists (fuqaha') to rethink such punishments. It will make Islam humane which it is and which under influence of feudal values in medieval ages, undergone un-Qur'anic changes. Thus there is great need for bringing changes in Islamic fiqh in keeping with the Qur'anic values. Qur'an provides transcendent dimension to human life but Muslim jurists have imprisoned it in medieval values depriving Islam of its dynamic spirit.