M.K.

Gandhi
The Law and The Lawyer

Section I Gandhiji as a student of Law

Passed matriculation in 1887 from Ahmedabad Unable to pursue one term at college in Bhavnagar: felt at sea, unable to comprehend what was being taught Mavji Dave, a family friend, came up with the suggestion of sending him to England to pursue law and become a barrister Gandhiji preferred medicine over law as a career choice

 Religious hindrances in the pursuit of medicine Family flummoxed by the idea of a foreign land, the necessary financial input. It is decided to consult the elderly uncle staying in Porbandar The elderly uncle consents to what he considers as an irreligious act attempts to get some scholarship from Mr. Lely and fails

 Mother has misgivings regarding all the evils of western civilization Gandhiji is made to swear the 3 sacred vows forsaking wine, woman and meat in the foreign land

Part 2
Shift to London where Gandhiji prepares for the Bar examination and also decides to crack the London Matriculation He was also enrolled in University College, London in 1888-89 as a student of Indian law and jurisprudence

Preparation for London matriculation

Pre requirement of knowledge of Latin which is a must for lawyers. A full paper on Roman law French as the other modern language 5 months of preparation and in the first attempt he ploughed in latin Passes all the papers in his second attempt

 Preconditions: attending 12 terms in 3 years and passing examinations Keeping Terms meant attending at least 6 out of 24 dinners in a term. The dinner came at a price. What made him wonder was that the price of wine was more than that of dinner. His Indian sensibility could not swallow the idea of splurging so much on drink. His choice was very limited in the food on offer

Called to the Bar

 He wondered how these dinners were a qualification for becoming a member of the Bar. When there were few students qualifying for membership, the dinners could be edifying for the students who could learn, emulate and practice public speaking with the Benchers but in the present rush, it was no longer possible. The convention was now a mere formality

 The Bar exam curriculum was very easy. There were 2 papers Roman Law and Common Law which could be cleared by studying notes. The exams were held 4 times an year Gandhiji read the Roman law in Latin and slogged through books on Common law. Finally, he attained admission to the Bar in June, 1891 and then returned to India. In spite of acquiring the degree, his confidence level was very low.

My Helplessness
Theoretical knowledge without the ability to utilize it in practice Good knowledge of English common law but not the faintest idea of Indian law No knowledge of difference between hindu and muslim law Grave doubts about his ability to earn a living out of the profession

Influence of Dadabhai Naroji

He bore a letter of introduction but never used it Fond of hearing Dadabhai speak. A Mr. Frederick Pincutt had laughed away his concerns by saying that every lawyer need not be an excellent orator. Rest assured it takes no unusual skill to be an ordinary lawyer. Common honesty and industry are enough to enable him to make a living.

Advised to expand the horizon of his reading

You have no knowledge of the world, a sine qua non for a vakil. You have not even read the history of India. A vakil should know human nature. He should be able to read a mans character form his face. The skill of reading someones face seems an elusive one for him. His 3 years as a student of law were over.

 His voyage to India was internally stormy. He was worried about the caste barrier as well as his inadeptness as a lawyer His elder brother, who had funded his education, had built high hopes for him and was hoping to get him some briefs from his wide circle of friends. After his return he was taken to Nasik for a ritualistic purification and hence readmitted into the caste

Section II - Gandhiji as a lawyer

After his return, due to adaptation of a westernized lifestyle, expenses had gone up in the house. Gandhiji was advised to go Bombay High Court to learn practicial nuances of court procedure and to get some cases his early experience after qualifying as a barrister was a bitter cup of tea with very meager knowledge and an overwhelming sense of responsibility

The First Case

Gandhiji grappled to come to terms with CPC, Evidence Act. His first case was that of Mamibai for which he received a fees of Rs. 30 His first appearance in the court as a defense counsel was overpowered by bouts of nausea and hesitation Eventually he withdrew from the case and never appeared for any client till he left for South Africa

 He drafted a memorial, attempted his hand at teaching but seemed to be facing defeat on all sides. He shut up his establishment in Bombay after a futile 6 months and returned to Rajkot.

The First Shock

Back in Rajkot, he was able to make Rs. 300 per month by drafting memorials and application He is forced to concede to the convention of paying commission to go betweens His brother got entangled in some controversy and only Gandhi could get him out of it by using his friendship with the political agent. Gandhi had misgivings about exploiting an acquaintance but the entreaties of his brother proved stronger.

 When he approached the Political Agent, he was impolitely snubbed and escorted out by the peon Gandhi contemplated legal action against the agent but Sir Pherozehshah Mehta advised him against it. Resolution Never again shall I place myself in such a false position, never again shall I try to exploit friendship in this way.

Preparing for South Africa

After suffering an ill digested insult, he finds life intolerable in Kathiawad and looks for a route to escape His brother receives the offer of sending him to SA for a big 40000 pound case. The firm sending the offer was Dada Abdullah & Co. In his present desperate state, he accepted the offer

Arrival in Natal
He was now a seasoned traveler and did not have the initial misgivings as at the time of setting sail for England (1893) An uneventful journey to Natal

Some experiences
At Natal port, he notices Indians being treated as second grade citizens. Seth Abdullah finds Gandhi to be a white elephant, an additional expenditure, not much help, open to influence by the other side and not much legal help. In the Durban court, the judge asks him to remove his turban which he refuses to do. He is known as a coolie barrister over there

 He decides to keep wearing his turban nad brings the matter to SA press

On the way to Pretoria

He has to go to Pretoria in relation to the case but he needs to understand the intricacies of the case first. He mastered knowledge of accounts to understand the case Gandhi for the first time, starts thinking in terms of out of court settlement of the case

First day in Pretoria

He met the attorney of Abdulla Seth and understands a few facts about the case

Preparation for the case

His first exposure to public life Development of religious spirit Acquired knowledge of legal practice Learnt the secret of succeeding as a lawyer He closely understands the preparation of case by both counsels Preparation of plaintiffs case for attorney and sifting of facts was entrusted to him Absorbed himself completely in the case

Learnt book keeping Ability to translate from gujarati to english Studied case law on the subject Gandhi, I have learnt one thing, and it is this, that if we take care of the facts of a case, the law will take care of itself. Let us dive deeper into the facts of this case. Facts means truth, and once we adhere to truth, the law comes to our aid naturally.

 Litigation would ruin both the parties while arbitration would be a more suitable conclusion to the case He met the other party, Tyeb Sheth also and advised him to start thinking in terms of arbitration The case was becoming a giant with huge lawyers fees, increasing ill will and raking up of insignificant issues

 He also realized that the winning side never recovers the complete costs. Finally he pursued both parties to go for arbitration. An arbitrator was appointed, the case was argued before him and Sheth Abdulla won. Gandhi persuaded Sheth Abdulla to take the award of 37000 pounds + costs in installments rather than at one go Both parties agreed to these installements and there was a happy resolution of the case

 I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter mens hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelible burnt into me, that a large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.

Lesson learnt

Man Proposes, God Disposes

His task over, he started preparing for his return and was given a farewell party by Sheth Abdulla At the party, he reads a piece of news in a local paper refering to a Bill before Legislature which sought to deprive Indians of their right to elect members of the Natal Legislative assembly.

 From questioning he came to realize that most of the Indian community in SA was illiterate, ignorant, the Christian converts stopped regarding themselves as Indians and there was no consciousness regarding deprivation of right to vote It was decided by all the people present that Gandhi would delay his return and take up the issue. He refused to charge fees, wanted to allocate some budget for expenses incurred, wanted volunteers. All these demands were readily agreed upon

 He delayed his departure by a month and threw himself whole heartedly into the job of opposing the Bill

Settled in Natal
An initial meeting was help to offer opposition to the Franchise Bill Volunteers were enrolled from amongst Christian Indian youths. The entire Indian community was united for the cause The bill had already been passed and its initial acceptance was proof that Indians were unfit for Franchise

 Initially telegrams were sent trying to postpone discussion on the bill The petition to be presented to Legislative Assembly was drawn up and a signature campaign was initiated, the petition was discussed in LA but was eventually passed The campaign had united the entire community and infused a new spirit in them Another petition was submitted to Lord Ripon who was Secretary of State for Colonies. 10000 signatures were obtained on the same.

 This second petition gained widespread publicity. He was persuaded to stay on in South Africa permanently but could not do so without some legal work and an annual income of 300 pounds He refused to charge any fee for the public work he did eventually some merchants started giving him their legal work

 Gandhi set about applying for admission as an advocate of Supreme Court. He possessed the Certificate of admission given by Bombay High Court but his London Bar exam certificate was deposited in BHC. He also attached 2 character certificates by European merchants to his application The Law society refused to admit him as advocate for two reasons: first, his original Bar exam certificate was not attached. Second, a colored man could not become an advocate of SA SC After some discussion and an affidavit submitted by Dada Abdulla, his application for enrolling as an advocate was finally accepted He was made to remove his turban to confirm to the dress code of advocates

Colour Bar

 All my life through, the very insistence on truth has taught me to appreciate the beauty of compromise. I saw in later life that this spirit was an essential part of Satyagraha. It has often meant endangering my life and incurring the displeasure of friends. (1893-1901 time period spent in South Africa)

Settled in Bombay?
Returned to India in 1901 with intention of settling down, assisting Gokhale in Congress work and practising law (with memories of his past failure in the same place lingering) Got 3 briefs from Mavji Dave, won a case, gained some confidence The Judicial Assistant kept shifting his court to various places, even to plague ravaged Veraval which displeased Gandhi and caused tremendous hardships to his clients

 He eventually settled down again in Bombay and this second innings was better than first. He prospered well and kept on getting work from his SA clients. He was again unexpectedly summoned to SA for the visit of Chamberlain and his second stint at Bombay also ended suddenly

Some reminiscences of the Bar

Traits- I never resorted to untruth in my profession, and that a large part of my practice was in the interest of public work He never tutored his witnesses to speak untruth He never fixed conditions of winning and losing the case and bringing variance in the fees accordingly He built a reputation of standing by the truth

 In one specific case of accounts arbitration, his client was getting more rewards than was his right. In spite of the senior counsel dissuading him, he admitted the matter in open court and got the error rectified rather than the matter being referred for a fresh hearing which would have been injurious to his clients interest Lesson learnt:I was confirmed in my conviction that it was not impossible to practice law without compromising truth.

Clients turned Co-workers

Specimen of honesty: I discovered that my client had deceived me. I saw him completely break down in the witness box. So without any argument I asked the Magistrate to dismiss the case i rebuked my client for bringing a false case to me In case he was ignorant of any facet of law, he frankly advised his clients to seek some other counsel Hundreds of his SA clients became friends and co-workers

How a client was saved

An anecdote of Parsi Rustomji who was a friend and coworker While importing goods from India, he resorted to smuggling and he was once caught red handed Rather than taking the matter to court, Gandhi suggested meeting the Customs officer and Attorney General and confessing the entire gamut of smuggling and paying whatever charge was levied by them Parsi was made to pay penalty equal to twice the amount he had confessed to having smuggled. A valuable lesson for Parsi Rustomji

SECTION III The Trials of Gandhiji

Before the court in 1907: An association was formed to protest against the Peace Preservation Ordinance which in the guise of protecting the colony from dangerous characters, was intended to prevent Indians from entering and residing in Transvaal The Peace Preservation Ordinance provided that anyone of foreign origin entering the Transvaal without a work permit should be liable to arrest and imprisonment.

 All the opposition of Gandhi and company remained futile and eventually the Ordinance became Immigration Act. Gandhiji and 25 of his co-workers were arrested under the Act and ordered to produce their work permits. In court, Gandhi was not allowed to make any political speeches and because he had no other defense, he was ordered to leave the country within the next 48 hours

Before the court in 1908

Gandhi plead guilty to the charge of disobeying the order of the court to leave the colony within 48 hours Other offenders charged with the same lack of work permit were sentenced to 3 months of RI and heavy fine. He also sought the same or a stricter punishment for he was equally guilty The judge felt that the Contempt of Court Gandhi had committed was more a political offence rather than a legal offence so he was given 2 months of simple imprisonment

Before the Court in 1913

The agitation here was related to the compulsory 3 pound tax to be paid by all foreigners. In spite of many rounds of negotiations, the tax was not repealed and Gandhi asked all indentured laborers to suspend work till their demand was not met. Gandhi was arrested, brought to Court, he pled guilty and his defense, Mr. Godfrey appealed on behalf of his client to levy the greatest possible penalty on the defendant.

 In his statement, Gandhi called on the workers to continue their agitation The judge in his verdict read It was a painful duty to pass a sentence upon the conduct of a gentleman like Mr. Gandhi.. He was eventually awarded 3 months of RI

Was it contempt of court? (1919)

The matter in question was publication of a letter related to a trial lis pendens two barristers and 3 pleaders had openly expressed their support of satyagraha and while the proceedings against them were lis pendens, the letter sent by Advocate General through Registrar to the concerned parties was published in Young India

 Gandhi was summoned to court but expressed his inability to attend because he was travelling and sent the following explanation: the letter was received by him in ordinary course and that he published it as he believed it was of great public importance and that he thought that he was doing a public service in commenting on it. He, therefore claimed that in publishing and commenting on the letter, he was within the rights of a journalist.

 The Court demanded a written apology from him in Young India which he refused to assent to and wrote In doing so I performed, in my humble opinion, a useful public duty at a time when there was great tension and when even the judiciary was affected by the popular prejudice. I need hardly say that I had no desire to prejudge the issues that Their Lordships had to decide. The instance gave rise to great deliberation on the issue of Press Commenting upon pending trials. Many examples were quoted from sensational murder trials where the press had already awarded judgment before the due procedure of law could be completed.

Contempt Case Judgment

Gandhi was charged with Contempt of Court under 2 heads: A. any act or writing tending to scandalize the court B. any act or writing calculated to obstruct or interfere with the due course of justice or the lawful process of the court.

Judgment in contempt case(pg-9298)

His Lordship Justice Marten wrote: the comments made in the newspaper were of a particularly intemperate and reprehensible character. They also amounted to scurrilous abuse of the JudgeIn the present case the court has very seriously considered whether it ought not to impose a substantial fine on one if not both of the respondents, but on the whole, I think it is sufficient for the Court to state the law in terms which I hope will leave no room for doubt in the future, and to confine our order to severely reprimanding the respondents and warning them both as to their future conduct.

Gandhis view in Contempt of Court case

If I dwell upon the judgment it is only because I am anxious as a satyagrahi to draw a moral from itI had to conserve a journalists independence and yet respect the law. If it was disobedience, there was no defiance but perfect resignation, there was no anger or ill will but perfect restraint and respect; that if I did not apologize, I did not, because an insincere apology would have been contrary to my conscience. Here then we have an almost complete vindication of civil disobedience Disobedience to be civil must be sincere, respectful, restrained, never defiant.

The Great Trial (1922) (pg.100) Arrested for publication of 4 articles in Young

India namely: Disaffection a Virtue Tampering with Loyalty The Puzzle and its Solution Shaking the Manes The charge in each case was that of bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards His Majestys Government. Once again he pled guilty to all charges

 Gandhiji charged under Section 124A of IPC Trial commenced on 18 March, 1922 The accused was charged with bringing or attempting to bringing into hatred or contempt or exciting or attempting to excite disaffection towards His Majestys Government Disaffection defined as disloyalty and feeling of enmity

 Gandhiji in his statement pled guilty. The judge was free to convict the accused on the basis of pleas or proceed with the trial The Advocate General insisted on proceeding with the trial for it was highly desirable in public interest that the charges should be fully and thoroughly investigated The Judge disagreed with idea of fully investigating the charges to which Gandhi had already pled guilty and full recording of evidence would reveal no new facts Sir Thomas Stangmans statement was recorded in which he said that the articles in Young India were not isolated incidents but part of a well planned campaign to spread disaffection. He quoted other instances from Young India

 Sir Strangman said that the Chauri Chaura incident was a result of this organized attempt to spread disloyalty towards the Govt. But what was the use of preaching non violence when he preached disaffection towards the Govt. or openly instigated others to overthrow it?... These were circumstances which he asked the court to take into account in sentencing the accused, and it would be for the court to consider those circumstances which must involve sentences of severity.

Gandhis statement (pg.108-09)

to preach disaffection towards existing system of Govt. has become almost a passion with meThinking over these deeply and sleeping over them night after night, it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay. He is quite right when he says that as a man of responsibility, a man having received a fair share of education, having had a fair share of experience of this world, I should have known the consequence of every one of my actsNon violence is the first article of my faith. It is also the last article of my creed. But I had to make my choice. I had either to submit to a system which I considered had done an irreparable harm to any country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips.

Gandhis written statement (pg. 110-115)

I should explain why from a staunch loyalist or co-operator I have become an uncompromising disaffectionist and non-cooperator I discovered that I had no rights as a man, because I was an Indian I thought that this treatment of Indians was an excrescence upon a system that was intrinsically and mainly goodThe first shock came in the shape of Rowlatt Act, a law designed to rob the people of all real freedomI came reluctantly to the conclusion that the British connection had made India more helpless than she ever was before, politically and economically.No sophistry, no jugglery in figures can explain away the evidence that the skeletons in many villages present to the naked eye The law itself in this country has been used to serve the foreign exploiter. My unbaised examination of the Punjab Marital Law cases has led me to believe that at least 95% convictions were wholly bad. In my opinion, the administration of the law is thus prostituted consciously or unconsciously for the benefit of the exploiter.

Contd.
section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizenI have studied some of the cases tried under it, and I know that some of the most loved of Indias patriots have been convicted under it. I consider it a privige therefore, to be charged under that sectionIndia is less manly under the British rule than she ever was before. Holding such a belief, I consider it a sin to have affection for the system.

 I am here therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge, is either to resign your post and thus dissociate yourself from evil, if you feel that the law you are called upon to administer is an evil and that in reality I am innocent; or to inflict on me the severest penalty if you believe that the system and the law you are assisting to administer are good for the people of this country and that my activity is therefore injurious to the public weal.

The Judgment
Mr. Gandhi, you have made my task easy in one way by pleading guilty to the charge Neverthless, what remains, namely the determination of the just sentence, is perhaps as difficult a proposition as a judge in this country could have to face. The law is no respecter of persons. Neverthless, it will be impossible to ignore the fact that you are in a different category from any person I have tried or am likely to have to try. It would be impossible to ignore that , in the eyes of millions of your countrymen, you are a great patriot and a great leader.

Contd.
I am trying to balance what is due to you against what appears to me to be necessary in the interest of the public, and I propose in passing sentence to follow the precedent of a case that was decided some 12 years ago, I mean the case against Bal Gangadhar Tilak under the same section. The sentence that was passed upon him as it finally stood was a sentence of simple imprisonment for 6 years.

Gandhis comment on the judgment

I just want to say that I consider it to be the proudest privilege and honour to be associated with his name. So far as the sentence itself is concerned, I certainly consider it as light as any judge would inflict on me, and so far as the whole proceedings are concerned, I must say that I could not have expected greater courtesy.

Section IV

LAWYERS AND SATYAGRAHA

 Boycott of law courts by lawyers I submit that national non cooperation requires suspension of their practice by lawyers. Perhaps no one cooperates with a govt. more than lawyers through its law courts. Lawyers interpret laws to the people and thus support authority. It is for that reason that they are styled officers of the court. So when the nation wishes to paralyze the Govt, that profession, if it wishes to help the nation to bend the govt to its will, must suspend practice.

Work for lawyers

The lawyers are not to suspend practice and enjoy rest. They will be expected to induce their clients to boycott courts. They will improvise arbitration boards in order to settle disputes. A nation, that is bent on forcing justice from an unwilling govt, has little time for engaging in mutual quarrels.. But what will happen to law and order? We shall evolve law and order through the instrumentality of these very lawyers. We shall promote arbitration courts and dispense justice, pure, simple, home made justice, swadeshi justice to our countrymen. That is what suspension of practice means.

 Lastly, for Mohammedan lawyers, it has been suggested that if they stop practice, Hindus will take it up. I am hoping Hindus will at least show the negative courage of not touching their Muslim brethrens clients, even if they do not suspend their own practice.

Addressing conflict between hindu and muslim lawyers involved in Khilafat issue

Hallucination of law courts (pg. 123) the law courts bear Let those who frequent
witness to the fact that the atmosphere about them is foetid. Perjured witnesses are ranged on either side, ready to sell their very souls for money or for friendships sake. The courts are supposed to dispense justice and are therefore called the palladile of a nations liberty. But when they support the authority of an unrighteous govt they are no longer palladile of liberty, they are crushing houses to crush a nations spirit.

Economic drain caused by law courts

The best SA lawyers- and they are lawyers of great ability dare not charge the fees the lawyers in India do. 15 gunieas is almost a top fee for legal opinion. Several thousand rupees have been known to have been charged in India. There is something sinful in a system under which it is possible for a lawyer to earn from 50000 to 1 lakh rupees per month. Legal practice is not- ought not to be- a speculative business. The best legal talent must be available to the poorest at reasonable rates.

Cobblers v. lawyers
Lawyers refused to answer Gandhis call for suspension of practice and did not want to join Congress for Gandhi, in an article, had referred to them as cobblers. Gandhi apologised Having been myself a lawyer, I could not so far forget myself as wantonly to offend members of the same profession.

Humility in satyagrahis
arrogant assumption of superiority on the part of a non- cooperator who has undergone a little bit of sacrifice or put on khadi is the greatest danger to the movement. A non cooperator is nothing if he is not humble. Lawyers can certainly do silent work as lieutenants in the matter of swadeshi. It requires the largest number of earnest workers.

 A lawyer who cannot suspend practice can certainly help with money, he can give his spare hours to public service, he can introduce honesty and fair dealings in his profession, he can cease to consider clients as fit prey for pecuniary ambition, he can cease to have anything to do with touts, he can promote settlement of cases by private arbitration, he can at least do spinning himself for one or two hours per day, he can simplify the life of his family, he can induce the members of the family to do spinning religiously for a certain time daily, he can adopt for himself and his family the use of khaddar.

Ways to help the movement by practising lawyers

Practising lawyers becoming Congress office bearers

In my opinion, those lawyers who have not yet succeeded in suspending their practice, cannot expect to hold office in any congress organization or lead public opinion on Congress platforms. Will titled men be elected as office bearers, although they may not have given up their titles? If we do not face the issues boldly, we stand in danger of corrupting the movement.

A protest
A young lawyer from Jubbulpore protested against 2 Malguzars holding congress office while practicing lawyers were forbidden from doing so. The young man pointed out in a letter to Gandhi that the british regime thrives on Malguzars who exploit and collect taxes from poor farmers so no practising Malguzar has the right to be a congress office bearer. If a lawyer who has not suspended his practice is not a proper person to be an office bearer, certainly a Malguzar too should not be an office bearer. A malguzar is more attached to the govt. than a lawyer.

Gandhis response
The congress has not yet called upon landholders to surrender their lands to the govt nor is it very likely to. These youngmen, like some land holders sons elsewhere are taking an honorable part in the national uplift and they deserve every encouragement form lawyers. There are no two opinions about the fact that intellect rather than riches will lead. It might equally be admitted by the correspondent that the heart rather than teh intellect will eventually lead. Character, not brains will count at the crucial moment. And I fancied that these young men showed character. I should be sorry to find otherwise.

Persistent problem of lawyers not forsaking practice

I cannot conceive the possibility of the movement, which is one of self sacrifice, succeeding if it is led by lawyers who do not believe in self sacrifice success depends upon bravery, sacrifice, truth, love and faith; not on legal acumen, calculation, diplomacy, hate and disbelief.

The Satyagrahi Lawyers (1919)

Related to the same matter as publication of an official letter while the trial was lis pendens Some barristers had signed the satyagrah pledge and promised to disobey Rowlatt act and other British laws After trial, no disciplinary action was taken against them but a warning was issued to them

Gandhis comment on the judgment

the judgment is highly unsatisfactory. It has shirked the issue. The logical outcome of the judgment should have been punishment and not a postponment of it. The lawyers in question had shown no repentance. So far as the public know, they will be ready to offer civil disobedience should the occasion arise.

Mysore Lawyers
A Mr. Dasappa, practicing lawyer at Mysore Chief Court had been disbarred for participating in satyagrah and addressing anti govt rallies. He was charged with disobeying govt orders regarding holding meetings in certain prohibited places and not participating in an inquiry being conducted by the govt in a case of police torture He has done what many patriot lawyers or no lawyers have done in British India. And nowadays the judges take no notice of their conduct and the public have made of them heroes. My condolence and pity go out to te Judges who have delivered a judgment which, let me hope, in their cooler moments they will regret.

 Let them remember Thoreaus saying that possession of riches is a crime and poverty a virtue under an unjust administration.

 Instances of legal commentary on many controversial judgments awarded by British Courts follow: The cases are specifically related to Punjab Martial Law cases Tribunal

Babu Kalinath Roy

Kalinath Roy charged under Section 124A for publishing provocative writings in the Tribune. Gandhi examined all the writings and found the charge and judgment to be a case of excessive judicial activism where the reporter had been unjustly punished for mere statement of facts.

Lala Radha Krishnas Case (pg.150)

More severe than Babu Kalinaths case The accused here published in a vernacular paper Pratap the judgment is a travesty of justice. The accused sentenced not under 124A but on a rule temporarily framed as a war measure, a rule promulgated by the govt under the powers granted to it under Defence of India Act. The indictment contained material inaccuracies, was very loosely drawn up and argumentative. It could never have been upheld in a proper trial.

 The judgment also gave an impression of prejudice and haste Without going into the question whether he intended to cause fear or alarm to the public, we are satisfied that the publishing and circulating of these false statements did actually cause fear and alarm to the public.

Lahore Judgment
3 lawyers and 2 commoners charged under section 121 of IPC which read as Whoever wages war against the Queen, or attempts to wage war, or abets the waging of such war, shall be punished with death or transportation for life, and shall forfeit all his property. They were tried before a special tribunal and transported. Even the judges remarked that the punishment was too harsh but since the accused were indicted under 121, there was no alternative left.

Gandhis comment in Young India

The judgment forms the saddest commentary on british justicethe judges are ruled by passion and prejudiceJustice in British courts is an expensive luxury. It is often the longest purse that wins Agree with thine adversary quickly is the soundest legal maxim ever uttered. The judgment intended to condemn the Rowlatt act agitation.

 The issue before the court was Can we or can we not, legally carry on a sustained powerful agitation involving processions, hartals, fasting etc, but eschewing, always and invariably, violence in any shape or form? The implication in the judgment is that we may not do so. There is nothing in the judgment to show that any of the accused either directly or indirectly encouraged violence. And where there is absence of intention to do violence, it is absurd to call a peaceful combination a criminal conspiracyThe duty of the Indian public is clear: By a quiet, persistent and powerful agitation, but without violence and irritation, to secure repeal of the Rowlatt legislation and the reversal of the sentences.

Jagannaths Case
Not a celebrity case like Kalinath Roy or Radha Krishna. Accused charged under section 121 of IPC and sentenced to transportation for life He was accused of actively participating in activities leading upto the hartal in punjab on 14 April, 1919 The accuseds defence rested upon an alibi that he left Gujranwalla on 12th by 5 pm train and so did not participate in organization of hartal

 Inspite of the defendants plea, the judges were impatient to deliver their verdict whereby they transported the innocent man for life without proper examination of the defense and the alibi

Another scandal
Another batch of cases at Punjab Special Tribunals where the judgment was completely unbearable The poignancy of the sorrow that the atrocious injustices such as I have had the painful duty of exposing have caused, is increased by the knowledge that perpetrators of these injustices are judges in whose judgments the people have been accustomed to put the utmost faith. This unevenness of temperament can only be accounted for by the supposition that the trained judicial intellect of the Judges must have suffered temporary aberration by the events of Punjab.

 Hafizabad case I have never come across cases in which capital punishment has been so lightly pronounced, on the flimsiest evidence taken down in a most perfunctory manner, as appears to me to have been done. 19 accused charged under section 121 (waging war), 147 (rioting), 149 (unlawful assembly), 307 (attempt at murder).

 The 19th accused was a young student of DAV hafizabad named Karamchand, accused of inciting riots on the lahore model on 11 April but the evidence against him was very paltry. He produced an alibi to prove that he was not in hafizabad on the day of rioting i.e. 14 April but back in his native village Karamchands is a case of palpable injustice

victims, not guilty

Ramnagar cases They constituted not a legal trial but a mockery of it. The accused, 28 in number, were all tried together, the trial was finished in one day during which altogether 150 defense witnesses were examined, the accused were not informed of the charge against them except thorough the mouths of the prosecution witnesses. There was no occasion for indecently rushing through the trial The judgment is self-condemned. It breathes vindictiveness and anger. The rejection of the defence evidence, the explaining away of the weak points in the prosecution, the punishment of solitary confinement, the heavy fines point unmistakably to loss of balance and unfitness to judge.

Dr. Satyapals case

Dr. Satyapal and Dr. Kitchlew accused of inciting violence which took place after their arrest. Dr. Satyapal in a clear, emphatic and courageous statement categorically denied the whole string of charges against him. He was charged of committing sedition, the charges against him were altered retrospectivley.

Lala Labhu Ram

Isolated cases of injustice will happen in the best regulated society and under a model govt. But when injustice becomes the order of the day, it is time for honest men not merely to protest against it but to withdraw their support from a system of govt under which such organized injustice is possible, unless that system is changing and systematic injustice becomes an impossibility.

 The judgment in Lala Labhu Rams case commences with the sentence The evidence for the defense is worthless. Lala was a prosperous civil engineer, apolitical by temperament, with no membership of any political party or sabha, was arrested on 20 April for being one in a hundred committing an assault on a police officer on 12 april, identification was impossible, many professional witnesses swore that they identified him, he gave a perfect alibi of being elsewhere the recorded evidence itself showed a patent miscarriage of justice.

Gujaratimals case
A young boy of 18, newly returned from Egypt after serving as a worker in British forces, arrested on 16 April for some unknown cause from his native village.one of 19 simultaneously put to trial Sentenced to be hanged. His sentence was subsequently commuted to transportation, and still more subsequently, to 7 years RI. It is serious matter to sentence a lad of 18 years, who denies his guilt, who denies having been present at the scene itself and who has only lately rendered service to the Crown, to be hanged on the strength of the very questionable evidence of identification by witnesses of no standing Gandhi quotes material evidence from Gujaratimals father saying that all the witnesses had been unable to identify him at an occasion heretofore.

Labh Singh
Accused under section 121 of IPC for being present at Anti Rowlatt meetings on 12th and 13th and then present with mobs on 14th. The whole conviction was based on uncorroborated testimony Labh Singh, the order goes only to confirm and perpetuate what is a great and serious miscarriage of justice. The court proceeded to the judgment with inordinate haste and without waiting for the answers to the interrogatories issued to some of the witnesses for the defence.

Gandhis conclusion
According to Sir Edward Maclagan they are all clearly guilty. According to the evidence before the public, they are all clearly innocent. We may not allow young men of brilliant ability and moral worth to have their careers blasted for life by our indifference. Posterity will judge us by our ability to secure justice in the cases such as I have had the painful duty of placing before the public. For me, justice for the individual, be he the humblest, is everything. All else comes after. I feel that even the Government of India will find it hard to withstand a unanimously expressed public opinion based on facts and couched in the language of moderation.

More Punjab Tragedies

Gurdayal Singh- accused of perpetrating violence on days when he was confined to bed with appendicitis. Accused was not told the identity of prosecution witnesses nor informed of the charge against him

How not to do it? Important note for pleaders and drafters

Criticism of language of petitions I assure them that a bare statement of facts embellished with adjectives is far more eloquent and effective than a narrative glowing with exuberant laguage. Petition writers must understand that they address busy men, not necessarily sympathetic, sometimes prejudiced, and almost invariably prone to sustain the decisions of their subordinates. Both Gokhale and Dada Naroji told me that if I wanted to be heard I must be brief, I must write to the point and adhere to facts, and never travel beyond the cause under notice, and I must be most sparing in my adjectives.

 Kesar Mal, one of the 19 in Hafizabad case, was sentenced to be hanged. The case was that of assault of Lieutenant Tatam by an unruly mob at the railway station. There was no conclusive evidence against Kesar Mal. He was not identified in the identification parade.

An unworthy defence
A Miss Sherwood was assaulted in Amritsar by an unruly mob and the govt. passed the orders that those who wished to pass the scene of assault should be made to crawl on their hands and knees. Surely there are nobler methods of ensuring protection for European women. Have their lives been in such danger in India as to require any special protection? Why should the life of European women be held more sacred than that of an Indian woman?

Fining the labourers

Ahmadabad had to pay a fine of nearly 8 lakhs in connection with the April, 1919 disturbances and the subsequent loss to public property. A law that allows a govt. thus arbitrarily to impose a penalty is a bad law.My object is to bring to public notice an unwise and untimely and an almost despotic application of that bad law. Terrorizing punishment is hardly the best method of weaning offenders from wrong-doing, and in the present instance the punishment will fall upon many innocent shoulders.

Fining the labourers

The recovery to be made by the govt would be deducted from the salary of mill workers. They have not been given the chance of appeal not have they been given the option of paying the fine themselves. The caution money, that is, the money retained by the mill owners out of the wages due to the mill hands, has been summarily attached without notice to or consent of the laborers concerned.

The Amritsar appeals

21 citizens of Amritsar had appealed in Privy Council against the unjust punishments of lower courts in connection with the April, 1919 incidents. The Privy council dismissed the appeal against lawless and irregular procedure. I must confess that the judgment does not come upon me quite as surprise My opinion, based upon a study of political cases, is that the judgments even of the highest tribunals are not unaffected by subtle political considerations. The consequences of a decision favorable to the people would have exposed the Indian govt to indescribable discredit from which it would have been difficult (for it) to free itself for a generation. Deeper discredit, therefore, now attaches to the government by reason of the judgment, because rightly or wrongly the popular opinion will be there that there is no justice under the British constitution when large political or racial considerations are involved.

The Punjab sentences

The Viceroy Lord Chelmsford refuses to commute 2 death sentences in spite of lack of substantial evidence against the accused. The popular belief favors the view that the condemned men are innocent and have not had a fair trial. The execution has been so long delayed that hanging at this stage would give a rude shock to Indian society.But if the govt will grievously err, if they carry out the sentences, the people will equally err if they give way to anger or grief over the hanging if it has unfortunately to take place.we must be prepared to contemplate with equanimity, not a thousand murders of innocent men and women but many thousands before we attain a status in the world that shall not be surpassed by any nation. We hope therefore that all concerned will take rather than lose heart and treat hanging as an ordinary affair of life. Finally some of the accused were not pardoned and hanged.

Lawyers Duty (pg.205)

I have never minced words in criticizing lawyers Though the lawyers deserve criticism, their contribution to the fight for freedom is no mean one. Pherozshah Mehta, the uncrowned kinf of bombay, was an eminent lawyer. The Lokmanya was a lawyer.all these are lawyers and the President of the congress himself is a lawyer. People expect every lawyer to be a patriot, as they expect every brahmin to possess spiritual knowledge. A lawyer, by his very profession, is an advocate of peoples rights, an expert in law and politics and one who saves the victims of oppression by the state. When, therefore, a class of people who should regard service of the country as their profession give themselves up to the pursuit of self interest, lead a life of self indulgence or have no other aim than making money by encouraging litigation, people naturally speak ill of them.

Duties of lawyers in national struggle

Keep accounts of public funds Explain legal intricacies to people Enquire into civil disobedience cases which have beem arbitrarily dealt with Be present at places where there is fear of violence Explain to people cases of arbitrary use of authority Enquire into injustices being perpetrated at persent Help in manufacturing khadi Help in boycott of foreign cloth In absence of political leaders who have been arrested, lead the people and encourage the present spirit of fearlessness

Section V
Miscellaneous

How to spiritualize the profession? Conversation with law students in columbo

The first thing you would bear in mind if you would spiritualize the practice of law , is not to make your profession subservient to the interests of your purseThere are instances of eminent lawyers in all countries who led a life of self sacrifice, who devoted their brilliant legal talents entirely to the service of the country even whilst I was engaged in practice, I never let my profession stand in the way of my public service

 The second thing I have found that in the practice of their profession lawyers are consciously or unconsciously led into untruth for the sake of their clients. An eminent lawyer has gone so far as to say that it may even be the duty of a lawyer to defend a client whom he knows to be guilty. There I disagree. The duty of a lawyer is always to place before the judges, and to help them arrive at, the truth, never to prove the guilty as innocent.

A Judges indictment
Pg. 211 to 213 (to be read completely)

An unjudicial dictum
Verdict of 2 appellate court judges on Allahadbad High Court published in Young India The case is unsatisfactory because we have no less than 5 persons who were in effect, if their evidence can be relied upon, eye witnesses and yet, having regard to the slight value placed upon truth in this country, we have seriously to apply our minds as to whether they can be believed. Gandhis scathing comment: What legal basis had these two judges for the sweeping statement made by them as to the character of a whole nation? The inference is that in other countries a higher value is placed upon truth. Be it noted that the Allahabad judges have made use of their bias in coming to their decision and have thus proved their incapacity to hold responsible posts.

Untruth in Law Courts

The canker of untruth had eaten the judicial system hollow. Gandhis comment: The atmosphere round law courts is debasing as any visitor passing through them can see. I hold radical views about the administration of justicee. But mine, I know, is a voice in the wilderness. Vested interests will not allow radical reform, unless India comes into her own through truthful and non violent means. If that glorious event happens, the adminstration of law and justice will be as cheap and healthy as it is today dear and unhealthy.

Hindu law and Mysore

A writer from Mysore enumerated the following social evils in a letter to Young India 1. women are denied the right of inheritance 2. Near relations are excluded from the list of heirs due to the presence of distant agnates 3. Women are not allowed to exercise full rights of ownership in properties inherited or gifted to them 4. Deaf and dumb are excluded from inheritance 5. Legality of widow remarriage is not recognized in Princely Mysore 6. Marriageable age for girls should be raised to 14 7. Divorce should be recognized 8. Inter caste marriages should be legalized 9. Orphans should be declared eligible for adoption 10. Widows should be allowed to adopt 11. Necessity of appropriate legislation in Mysore to bring about the aforesaid social reforms

Gandhis response
This very unsatisfactory state of things has to be changed if hindu society is to become a progressive unit in human evolution. The British rulers cannot make these changes because of their different religion and their different ideal. Unless therefore Hindu public opinion clearly demands it, no drastic change in our customs or so called laws will be attempted or countenanced by them.

Establishment of the Federal Court

Gandhis speech at the Federal Structure Committee as a representative of Congress (1930) Discussion regarding the structure and powers of Federal Court in an India which would be self governed but with military and purse strings in the hands of the Crown The Privy Council here is an ancient institution, and an institution which justly commands very great regard and respect; but in spite of all the respect that I have for the Privy Council I cannot bring myself to believe that we also will not be able to have a Privy Council of our own which will command universal esteem.

 seeing that the congress holds the view that this federal court or supreme court will occupy the position of the highest tribunal beyond which no man who is an inhabitant of India can go, its jurisdiction, in my opinion, will be limitless the greater the power that we give to this Federal court, I think the greater the confidence we shall be able to inspire in the world and also in the nation itself.

 Quote from a great Jurist in Transvaal, Though there may be no hope now, I tell you that I have guided myself by one thing, or else I should not be a lawyer: the law teaches us lawyers that there is absolutely no wrong for which there is no remedy, then those judges should be immediately unseated.

The place of the lawyers in a non violent society

Conversation between reader and editor Pg.228-231

An advocates dilemma published in Young India

Dichotomy between obeying everyday over lordship of British rule and trying to emphasize that India was independent as per Congress declaration of Independence.

5000 miles away

Location of final appellate court i.e. Privy Council 5000 miles away from the population it governs. If it were not for the hypnotism under which we are laboring, we would see without effort the futility, the sinfulness, of going 5000 miles to get (to buy?) justice. It is said that at that delightful distance the judges are able to decide cases with greater detachment and impartiality than they would be able to do in delhi a self respecting indian would never tolerate the location of her final court of appeal anywhere else but in india.

Justice from 6000 miles

the different forts of india no doubt are a continuous reminder of the british might. But the silent conquest of the mind of educated India is a surer guarantee of british stability than the formidable courts Arguments in favor of keeping Privy council inEngland A. the judges would be more impartial 6000 miles away B. the expenditure incurred would be the same C. the Indian judges would not command the same respect as british ones The deciding reason for having our Supreme Court in india is that our self respect demands it. Just as we cannot breathe with other lungs, be they ever so much powerful, so we may not borrow or buy justice from england.

Comment on jury trials

Trials by jury often result, all over the world, is defeating justice. But people everywhere gladly submit to the drawback for the sake of the more important result of the cultivation of an independent spirit among people and the justifiable sentiment of being judged by ones own peers.

Aundh constitution
Gandhis remarks on the new Aundh constitution. A. literacy kept as an eligibility for right to vote B. easy access to justice by making lower court free C. abolition of any intermediate courts (wanted the same eligibility before granting right to vote)

Civil v. Criminal
when a man willfully breaks his own laws, the disobedience becomes criminal What is true of the individual is true of the corporation. At the present moment one observes this criminal breach by the govt of its own laws through out India. Sections of Penal Code and CrPC are being freely abused and because non cooperators refrain from questioning orders issued by officials, bare faced illegalities are being committed by them with impunity is it any one wonder if one infers from this campaign of repression an intention on the part of the govt to incite violence when therefore a govt thus becomes lawless in an organized manner, civil disobedience becomes a sacred duty.

Famous customs declaration at the time of II round table conference

I am a poor mendicant. My kit consists of two spinning wheels, a few jail utensils, a can of goats milk, 4 lion clothes, two towels and my reputation which cannot be worth much.