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
 Called to the Bar
• 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
• 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
man’s character form his face.’
• The skill of reading someone’s face seems an
elusive one for him.
• His 3 years as a student of law were over.
 Section II - Gandhiji as a lawyer
• 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
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 plaintiff’s 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
lawyer’s 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
 Lesson learnt
• I had learnt the true practice of law. I had
learnt to find out the better side of human
nature and to enter men’s 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.
 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
 Colour Bar
• 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
• ‘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 client’s 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 co-
worker
• 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-92-
98)
• 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 Judge…In 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.”
 Gandhi’s 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 it…I had to conserve a
journalist’s 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 Majesty’s 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 Majesty’s
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 Stangman’s 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.’
 Gandhi’s statement (pg.108-09)
• ‘to preach disaffection towards existing system of Govt. has become
almost a passion with me…Thinking 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
acts…Non 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.’
 Gandhi’s 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 good…The first shock came in the shape of Rowlatt
Act, a law designed to rob the people of all real freedom…I 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 citizen…I have studied some of the
cases tried under it, and I know that some of the most loved
of India’s patriots have been convicted under it. I consider it a
privige therefore, to be charged under that section…India 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.’
 Gandhi’s 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.’
Addressing conflict between hindu
and muslim lawyers involved in
Khilafat issue
• ‘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 brethren’s clients, even if they do
not suspend their own practice.’
 Hallucination of law courts (pg.
• 123)
Let those who frequent the law courts bear
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 friendship’s sake. The courts are
supposed to dispense justice and are
therefore called the palladile of a nation’s
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 nation’s 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 Gandhi’s 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 co-
operator 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.
 Ways to help the movement by
practising lawyers
• ‘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.’
 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.’
 Gandhi’s 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
 Gandhi’s 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 Thoreau’s 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 Krishna’s Case (pg.150)
• More severe than Babu Kalinath’s 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.
 Gandhi’s comment in Young India
• ‘The judgment forms the saddest commentary
on british justice…the judges are ruled by
passion and prejudice…Justice 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 conspiracy…The 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.’
 Jagannath’s 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 accused’s 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 defendant’s 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
• Karamchand’s 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. Satyapal’s 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 Ram’s 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.
 Gujaratimal’s 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 Gujaratimal’s 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.”
 Gandhi’s 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
people’s 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 purse…There 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 Judge’s 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.’

• Gandhi’s 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.
• Gandhi’s 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
 Gandhi’s 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
• Gandhi’s 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 advocate’s 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 one’s
own peers.’
 Aundh constitution
• Gandhi’s 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
goat’s milk, 4 lion clothes, two towels – and
my reputation which cannot be worth much.’