Gandhi’s perspective on how the law must treat the citizens of a country has shaped the trajectory of the legal system in independent India. On the occasion of Gandhi Jayanti,SAAKET JAIN writes about Mahatma Gandhi’s most admirable values as a lawyer.
“THERE is a famous non-lawyer of recent history, who comes close to being, like Lincoln, a transfigured lawyer, a lawyer who has simply grown beyond the usual confines rather than grown away from them, who has enlarged the scope of the lawyer’s functions rather than changed them, who has kept the virtues of the lawyer and only deepened them. He loved his country and its people; he respected civil authority even while opposing it; his weapons were non-violence and passive resistance; his aims were moderate and realistic; he was willing to negotiate and to advance step by step; he was humble in manner and took as his symbols the simple handicrafts of his people. And true to the negative leadership the lawyer exercises, he became a martyr to his country’s liberty. He was an Indian lawyer named Gandhi.”
On Gandhi Jayanti, I trace the legacy of Mahatma Gandhi, the Father of our Nation, by looking into his role, foremost as a constitutionalist, then as a lawyer and last, but not the least, as a great patriot.
Gandhi and the Constitution
“Mahatma Gandhi is an experimental scientist who had his impact on every aspect of a person’s life and touched the soul of the nation when he reached out to the last person of the society”, said Justice (Retd.) Vikramaditya Prasad. He further added, “Mahatma Gandhi’s concern for persons who are in the last row of the society, helped the drafting members of the Constituent Assembly while drafting the Constitution of India.”
During his time in South Africa, Gandhi was thrown out of a train despite having a first class ticket. This experience shaped his perspective on rights, and went on to influence his contributions to the drafting of the Indian constitution.
Such experiences and principles have always been at the core of what motivated the leaders of the freedom movement who, during the drafting of and deliberations on the Indian Constitution, kept the essence of advancing human rights and dignity at the forefront, and advocated for the Directive Principles of State Policy as the governing principles to create social and economic conditions under which the citizens can lead a good life.
This meant that besides aiming to establish social and economic democracy through a welfare state, the Constitution envisioned that the State machinery would ultimately benefit the common man in more ways than one.
On the occasion of Gandhi Jayanti, it is significant to talk about the Magna Carta and Gandhi’s role in helping Indians achieve the basic and fundamental rights that we enjoy today.
The Magna Carta was a royal charter of rights, a collection of promises extracted in bad faith from an unwilling king. It was drafted in the thirteenth century by the then Archbishop of Canterbury, who is the principal leader of the Church of England, who created it to make peace between the British King John and a group of rebel barons, and promised a number of rights that would minimize arbitrary interference by the king.
The document failed to maintain peace, and most of what the Magna Carta represents can be whittled down to arcane thirteenth century legal principle. Yet, in the words of British historian Dan Jones in his short book titled Magna Carta : The Making and Legacy of the Great Charter, it is one of the most hallowed documents in the world, revered from the Arctic Circle to the Antipodes, written into the Constitutions of numerous countries, and admired as a foundation stone in the Western traditions of liberty, democracy and the rule of law.
Tracing the British rule in India, where constitutional rights were eventually granted but were preceded by years of exploitation and subjugation of Indians, Gandhi was always inspired by the Magna Carta and its importance in the context of India.
As early as in 1914, when protesters lead by Gandhi secured the Indian Relief Act in 1914 in South Africa, in his Farewell Letterpublished in Indian Opinion, he called it ‘the Magna Carta of our liberty in this land’. For Gandhi, the settlement was the Magna Carta because it marked a change in the policy of the Government towards the people. It moreover confirmed the theory of the Constitution: that there should be no legal racial inequality between different subjects of the Crown and it vindicated passive resistance as a lawful, clean weapon.
Even today, homage can be paid to Gandhi in true sense by following the Constitution in letter and spirit. It is not merely a role reserved for the constitutional functionaries to abide by.
To read and understand the constitution in true perspective and then practise it in their daily life, is the prime duty of all citizens. Simply put, every citizen should be a constitutionalist in the true sense of the word.
Gandhi and the law
Law as a field of study and practise had been a great influence on Gandhi’s life. His upright character, developed after testing the waters in litigation, coupled with his inherent commitment to the truth, made him the Mahatma that he came to be known as.
In his autobiography, he says, “I had learnt the true practice of law. I had learnt to find out the better side of human nature and ’o enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost noth–ng thereby – not even money, certainly not my soul.”
In the appendix to the book titled The Law and the Lawers by M.K. Gandhi, the late Justice B. N. Gokhale, an former Judge of the Bombay High Court, has dealt with Gandhiji’s legal philosophy, stating:
“[T]he manner in which Gandhiji analysed and discussed these material law cases arouses one’s admiration. His observation about the usual defence of alibi, about the identification parades, about the entries in the police diaries, or the value of approver’s evidence or his caution in not accepting extraneous evidence reveal him as a lawyer having a very keen insight into the intricacies of criminal law, and the principles which he touched are valid even today in the light of the rulings of our highest Courts. Gandhiji always regarded that over and above the interests of his clients, he had a prior and perpetual retainer on behalf of truth and justice”.
Gandhi, very early in his career as a lawyer, learnt the importance of studying the facts of a case deeply, because, as he said, if the facts were taken care of, the law would take care of itself.
The foremost quality of Gandhi as a leader as well as a lawyer has been his show of courage.
History is replete with many examples of this courage. One of the primary ones is how strongly he protested against the dictum of the Bombay High Court that stated, “those who live by the law must keep the law”. Commenting on this, Gandhi wrote, “If it means that no lawyer may ever commit a civil breach without incurring the displeasure of the court, it means utter stagnation. Lawyers are persons most able to appreciate the dangers of bad legislation and it must be with them a sacred duty by committing a civil breach to prevent a criminal breach. Lawyers should be guardians of law and liberty and as such are interested in keeping the statute book of the country ‘pure and undefiled’.”
In Gandhiji – His Life and Work, editedby D. G. Tendulkar and others, Gandhi’s views about death penalty have been elaborated. He said, “I cannot in all conscience agree to any one being sent to the gallows. … I would draw the distinction between killing and detention or even corporal punishment. I think there is a difference not merely in quantity but also in quality. I can recall the punishment of detention. I can make reparation to the man upon whom I inflict corporal punishment. But once a man is killed, the punishment is beyond recall or reparation. God alone can take life, because He alone gives it.”
The nation should be mindful of Gandhi’s message that the vocation of the lawyer is an honourable one, requiring the highest standards of rectitude, integrity and uprightness, and attention that its practice is in no way inconsistent with the pursuit of truth.
The trial of Mahatma Gandhi and his disciple S. Banker commenced at noon on the 18th of March, 1922 before C. N. Broomfield Esq., I.C.S., District and Sessions Judge, Ahmedabad. The charges were brought under Section 124-A of the Indian Penal Code (the sedition provision) against three articles published in the Young India on September 29,1921, December 15, 1921, and February 23, 1922. The offending articles were “Tampering with Loyalty”, “The Puzzle and Its Solution”, and “Shaking the Manes”.
Quoting from Chief Justice Shelat’s introduction to the Trial of Gandhi, the Gujarat High Court Publication, 1965, provided:
“However the chief and most important factor which made the trial historic was the profound issue involved in it, namely, that of obedience to law as against obedience to moral duty. It was that issue which elevated the trial to the highest plane and the characters too who played their part in it.”
In his written statement submitted to the court, Gandhi said, “In fact, I believe that I have rendered a service to India and England by showing in non-co-operation the way out of the unnatural state in which both are living. …. Non-violence implies voluntary submission to the penalty for non-cooperation with evil. 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.”
After this, thejudgment was delivered rendering Gandhi guilty of the offence. In its judgment, the Court said:
“Mr. Gandhi, you have made my task easy in one way by pleading guilty to the charge. … Nevertheless, it will be impossible to ignore the fact that you are in a different category from any person I have ever tried or am likely to have to try. It would be impossible to ignore the fact that, in the eyes of millions of your countrymen, you are a great patriot and a great leader. Even those who differ from you in politics look upon you as a man of high ideals and of noble and of even saintly life. … 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 in many respects similar to this case that was decided some twelve 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 six years. You will not consider it unreasonable, I think, that you should be classed with Mr. Tilak, i.e., a sentence of two years’ simple imprisonment on each count of the charge; six years in all, which I feel it my duty to pass upon you, and I should like to say in doing so that, if the course of events in India should make it possible for the Government to reduce the period and release you, no one will be better pleased than I.”
It is even more interesting to read Gandhi’s comment on sentencing. He said, “I would say one word. Since you have done me the honour of recalling the trial of the late Lokamanya Bal Gangadhar Tilak, 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 is 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.”
The life of the Mahatma is a classic example of one being faithful to the higher traditions of the legal profession. His uncompromising character is worthy of emulation, and every law student and legal professional should strive to inculcate these values. Let us all try to infuse morality into the profession by pledging ourselves to the ideals of Gandhi, and make this profession a truly noble one.
(Saaket Jain is a Delhi-based Advocate. The views expressed are personal.)