On Gandhi Jayanti, JUSTICE SATYARANJAN C. DHARMADHIKARI writes about the problems that persist in our legal and justice delivery systems, and advocates for seeking inspiration from the ‘swadeshi’ model of justice in order to attain a truly just social order that Gandhi and other freedom fighters strove for.
GANDHI Jayanti this year is of special significance. Next year, we are to complete 75 years of our independence. Next month, we shall have completed 75 years of the establishment of the Constituent Assembly of India. In this twin celebration comes October 2, 2021.
For the legal fraternity, Gandhi symbolizes truth and justice. He used to say that real justice will be done when truth prevails.
Gandhi’s respect for law
While waging a non-violent battle for our freedom and independence, Gandhi was very critical of the British raj and its judicial system. In his opinion, the colonial government used its laws and its courts to silence and attack unarmed freedom fighters.
Responding to Gandhi’s call, lakhs of Indians, both men and women, participated in satyagraha all over the country. During Gandhi’s call for civil disobedience, they never resisted arrest or punishment.
This was unique in nature. It meant civilized conduct even while disobeying laws. The respect for the rule of law did not diminish even when the police would brutally assault satyagrahis and imprison them.
When produced before a court of the competent jurisdiction, the satyagrahis, including Gandhi, never defended themselves; they would accept whatever penalty was meted to them, and walk into the prisons without any opposition.
It is apparent that Gandhi respected even the laws of the British Parliament.
Also read: Mahatma Gandhi on law and lawyers | Perspective
Gandhi’s swadeshi legal system
While he was following the aforementioned path throughout the freedom struggle, in his speeches and writings, Gandhi gave us a blueprint of his ideal post-independence legal system.
According to him, it is imperative for democratic governance that we have our own justice delivery system. That way, we would make laws, which we would then implement. Similarly, we would interpret them, whenever required, through our courts. Our lawyers and judges would not be influenced by English traditions, customs and practices. This was his insistence.
Thus, Gandhi advocated our own distinct jurisprudence and legal principles of statutory interpretation, without any dependence on English precedents at all.
Unfortunately for us, within five months of our independence Gandhi was tragically assassinated. His death meant that he could never reform the justice delivery system as per his vision.
The word ‘reform’ means change for the better. Even after seven decades of our independence, we do not have a well and truly swadeshi justice delivery system. The English ways are still in place. Anglo-Saxon jurisprudence has not been replaced totally, nor substituted by Indian jurisprudence. The language, apparel and clothing of the judiciary is still English. The courts are housed in buildings constructed by Englishmen, and even the procedures are modelled on the English judicial system. A majority of both substantive and procedural laws are those enacted by the colonial government.
I am surprised when Chief Justice after Chief Justice of the Supreme Court of India, either when in office or after retirement, calls for a change in our justice delivery system. The present Chief Justice of India, too, says that the need of the hour is “Indianisation” of justice delivery. He extensively quotes Gandhi.
However, for reasons best known to him, he has not employed the word ‘swadeshi’.
The call for swadeshi, during our freedom struggle, was not merely restricted to giving up British style of clothing or clothes or garments manufactured in Great Britain. ‘Swadeshi’ means everything that is Indian. According to Gandhi, India had to not only be free from British rule, but must have had the independence to set up institutions that would work for the welfare and well-being of its citizens.
The words ‘freedom’ and ‘independence’ do not carry the same meaning. While ‘freedom’ refers to the emancipation from the clutches of a foreign ruler, ‘independence’ means no dependence on others in thought and action. ‘Swadeshi’, however, refers to the full autonomy and liberty to regulate our affairs.
An ‘Indianisation’ of our justice delivery system, to my mind, means pursuing all the values that Gandhi and other freedom fighters shone light on for us.
Also read: From Mohandas to Mahatma: How legal advocacy helped make Gandhi one of the greatest leaders of all time
Would ours be a just legal system, as per Gandhi?
Peace and non-violence are positive concepts. One who fears nobody, including an armed soldier, is well and truly non-violent. Equally, one who will not carry and possess weapons or attack anybody verbally and physically, even when it is possible to do so, is a non-violent person. Therefore, freedom and independence are the backbone of any justice delivery system.
Gandhi said that the British judicial officers were not imparting justice at all. Justice delivery under the British regime was expensive, and only the powerful could afford it. He advocated that “justice should become cheap and expeditious. Today it is the luxury of the rich and the joy of the gambler.”
Have we fulfilled the dreams and aspirations of our freedom fighters is hardly a moot question. Gandhi said that under a swaraj [self-governed] government, the law would not tolerate any arrogation of superiority by any person or class, whether in the name of custom or religion. To him, the government of the day should not interfere in the functioning of the courts, much less try to control them.
The justice delivery system should not be dependent on the government even for funds and infrastructure. Simply because, his experience was that it is through the courts that a government establishes its authority, and it is through schools that it manufactures clerks and other employees. While they are both healthy institutions when the government in charge of them is on the whole just, they become death traps when the government is unjust.
I ask myself: do we really want a swadeshi justice delivery system. We dreamt of such a system but never really worked for its establishment.
We take pride that our Constitution guarantees and assures justice. Once a written constitution gives such a promise, then, according to some of us, nothing more need be done. However, merely drafting a Constitution and enacting laws consistent with the same is not sufficient to ensure fair and just treatment for our poor and marginalized co-citizens.
Ultimately, what does one mean by injustice? As opposed to justice, this word means a lack of fairness, and justice means acting or doing in accordance with what is morally right or fair. It also refers to just conduct and exercise of authority in the maintenance of the right.
This is not the same as upholding rights. When a person says their right is violated, they do not necessarily mean a legal or a fundamental right. What they really mean is that they know what is right for them, and they need no judge to decide upon its alleged breach.
Gandhi abhorred the taking of law in one’s own hands. Therefore, maintenance of rights means that which is conferred lawfully. If someone respects and regards laws and strives to uphold them, they will not always fight for what they think is their right. This is because they will only assert that right which is recognised by or found in law.
The vision of India and Bharat reflected in the preamble of our Constitution envisions equality, justice and fair treatment for all, irrespective of their social and economic status. That is not possible without the uniform application of laws.
Also read: Gandhi devised Satyagraha to usher in a just world order
The relation between law and morality
The common perception is that morality and law do not go together. But this fact is belied by the wording of our own Constitution and several other laws which govern us. For example, Article 19(1)(a), which confers a right to freedom of speech and expression, is subject to reasonable restrictions, the grounds for which are laid out in Article 19(2). In the interest of inter alia decency or morality, restrictions can be imposed on this freedom.
Another instance is found in our penal code. Section 120A says in categorical terms that it is an offence to agree to do or cause to be done an illegal act or a legal act in an illegal manner. That is how the offence of criminal conspiracy is defined.
Thus, purity of means and the end is entrenched in criminal justice. The offence of bribery and corruption is committed when a person accepts a bribe or something in return, not necessarily money, for a legal job or work.
Even the colonial government made laws to uphold morality and just conduct. However, neither it nor we are implementing our laws on this foundation. Not everyone is equal before laws nor do the laws protect everyone equally.
It is in this sense, that I humbly suggest that Gandhi must be present in both the study and practice of law. He inspires us and continues to do so, but we hesitate to admit his presence and influence. If Gandhi’s thinking, ideals and philosophy were to guide us, then there would no place for discrimination, arbitrariness, unfairness, or unjust treatment of anyone. That is how Articles 14 to 23 of our Constitution ought to be read.
Gandhi has moulded and developed Indian lawyers and Judges. We seldom admit when Gandhian thought shapes our decision making process and judgments. In the case of Devidas Ramchandra Tuljapurkar vs. State of Maharashtra & Ors. (2015), a two judge bench of the Supreme Court extensively referred, in paragraphs 108 to 129, its earlier decisions influenced by Gandhian values.
In paragraph 124 of its judgment, the Supreme Court says that Mahaveer, Gautam Buddha and Mahatma Gandhi guided the people to ingrain certain values in their daily life. Truth constituted an integral part of the justice delivery system which was in vogue in the pre-independence era, and the people used to feel proud to tell truth in the courts, irrespective of the consequences.
Also read: Gandhi’s experiments with non-violence and mediation
Gandhi’s advocacy for native justice delivery systems
This is not to be confused with the British justice delivery system. The observations are not praising that at all. The system referred to in the Supreme Court’s decisions is essentially that of rural India, prevalent even before the English ruled us.
Truth triumphs when sagacity and wisdom play a major role. Indian rulers and kings across the country did uphold truth. They were not legally trained nor qualified as understood today. However, they rendered even-handed justice. For instance, there are tales narrated of the justice delivery system in the era of the mythical King Vikramaditya and post his rule.
These are precisely the qualities required for peaceful resolution of disputes and differences, according to Gandhi. His emphasis was on practical wisdom. He would say that common sense and common law are absent in English courts.
His remedy for expeditious adjudication of civil disputes was through alternate dispute resolution methods. Settlement satisfies the adversary, he believed; it helps in creating a just social order.
In our village courts, Gandhian values played a dominant part. The gram sabha is really an open court. Disputes were fully resolved by five wise men, and their conclusion ratified in the gram sabha. Nobody questioned or challenged the power or authority and jurisdiction of the gram sabha or village courts. An innate sense of justice and worldly wisdom derived from practical and real life experiences helped guide decision making.
Post-independence, we made several laws for rural development, but wiped out and abolished the nyay panchayat. To my mind, strengthening our gram nyayalayas and effective implementation of the Gram Nyayalaya Act, 2008 will best resolve conflicts and bring peace, thereby reducing the burden on the police and criminal courts. It will ensure justice to the masses.
If we are to Indianise the judicial system, we must take a pledge of radically changing our way of justice delivery. It must follow the Gandhian path. That will be true homage to the father of the nation on his 153rd birthday.
Also read: Gandhi: through a prism of Constitution, law and patriotism
In fact, we navigated this way when judges like Justice V. R. Krishna Iyer adorned the Bench. In the judgment in Azad Rikshaw Puller Union Board & Ors. vs. State of Punjab & Ors., the highly regarded and respected Justice Krishna Iyer observed as under:
“For, the hungry human animal, euphemistically called rickshaw puller, loses, in the name of mercy, even the opportunity to slave and live. So, the success of such well-meant statutory schemes depends on the symbiosis of legislative embargo on exploitative working conditions and viable facilities or acceptable alternatives whereby shackles are shaken off and self-ownership substituted. Judicial engineering towards this goal is better social justice than dehumanised adjudication on the vires of legislation. Court and counsel agreed on this constructive approach and strove through several adjournments, to mould a scheme of acquisition of cycle rickshaws by licensed rickshaw pullers without financial hurdles, suretyship problems and, more than all, that heartless enemy, at the implementation level of all progressive projects best left unmentioned. Several adjournments, several formulae and several modifications resulted in reaching a hopefully workable proposal. In fairness to the State, we must mention that when the impugned legislation was enacted Government had such a supportive financial arrangement and many rickshaw-pullers had been bailed out of their economic bondage. Some hitch somewhere prevented several desperate rickshaw drivers getting the benefit, which drove them to this Court. Anyway, all is well that ends well and judicial activism gets its highest bonus when its order wipes some tears from some eyes. Here, the bench and the bar have that reward.
We are happy to record our appreciation of the role of counsel and of the parties in bringing about this solution. The State by exercising its legislative power alone, could not produce justice until this formula was hammered out. The Court with its process of justice alone could not produce a viable project. But now, justice and power have come together and, hopefully. We have fulfilled the words of Blaise Pascal, “Justice without power is inefficient; power without justice is tyranny. Justice and power must, therefore, be brought together, so that whatever is just may be powerful, and whatever is powerful may be just.”
All power, judicial included, is in the nature of trust. The legal fraternity should work towards discharging this trust.
(Justice S.C. Dharmadhikari retired from the Bombay High Court. The views expressed are personal)