17. Some Reminiscences of the Bar

Before coming to a narrative of the course my life took in India, it seems necessary to recall a few of the South African experiences which I have deliberately left out.

Some lawyer friends have asked me to give my reminiscences of the bar. The number of these is so large that, if I were to describe them all, they would occupy a volume by themselves and take me out of my scope. But it may not perhaps be improper to recall some of those which bear upon the practice of truth.

So far as I can recollect, I have already said that 1 never resorted to untruth in my profession, and that a large part of my legal practice was in the interest of public work, for which I charged nothing beyond out- of-pocket expenses, and these too I sometimes met myself. I had thought that in saying this I had said all that was necessary as regards my legal practice. But friends want me to do more. They seem to think that, if I described however slightly, some of the occasions when I refused to swerve from the truth, the legal profession might profit by it.

As a student I had heard that the lawyer's profession was a liar's profession. But this did not influence me, as I had no intention of earning either position or money by lying.

My principle was put to the test many a time in South Africa. Often I knew that my opponents had tutored their witnesses, and if I only encouraged my client or his witnesses to lie, we could win the case. But I always resisted the temptation. I remember only one occasion when, after having won a case, I suspected that my client had deceived me. In my heart of hearts I always wished that I should win only if my client's case was right. In fixing my fees I do not recall ever having made them conditional on my winning the case. Whether my client won or lost, I expected nothing more nor less than my fees.

I warned every new client at the outset that he should not expect me to take up a false case or to coach the witnesses, with the result that I built up such a reputation that no false cases used to come to me. Indeed some of my clients would keep their clean cases for me, and take the doubtful ones elsewhere.

There was one case which proved a severe trial. It was brought to me by one of my best clients. It was a case of highly complicated accounts and had been a prolonged one. It had been heard in parts before several courts. Ultimately the book-keeping portion of it was entrusted by the court to the arbitration of some qualified accountants. The award was entirely in favour of my client, but the arbitrators had inadvertently committed an error in calculation which, however small, was serious, inasmuch as an entry which ought to have been on the debit side was made on the credit side. The opponents had opposed the award on other grounds. I was junior counsel for my client. When the senior counsel became aware of the error, he was of opinion that our client was not bound to admit it. He was clearly of opinion that no counsel was bound to admit anything that went against his client's interest. I said we ought to admit the error.

But the senior counsel contended: 'In that case there is every likelihood of the court cancelling the whole award, and no sane counsel would imperil his client's case to that extent. At any rate I would be the last man to take any such risk. If the case were to be sent up for a fresh hearing, one could never tell what expenses our client might have to incur, and what the ultimate result might be!'

The client was present when this conversation took place.

I said: 'I feel that both our client and we ought to run the risk. Where is the certainty of the court upholding a wrong award simply because we do not admit the error? And supposing the admission were to bring the client to grief, what harm is there?'

'But why should we make the admission at all?' said the senior counsel.

'Where is the surety of the court not detecting the error or our opponent not discovering it?' said I.

'Well then, will you argue the case? I am not prepared to argue it on your terms,' replied the' senior counsel with decision.

I humbly answered: 'If you will not argue, then I am prepared to do so, if our client so desires. I shall have nothing to do with the case if the error is not admitted.'

With this I looked at my client. He was a little embarrassed. I had been in the case from the very first. The client fully trusted me, and knew me through and through. He said: 'Well, then, you will argue the case and admit the error. Let us lose, if that is to be our lot. God defend the right.'

I was delighted. I had expected nothing less from him. The senior counsel again warned me, pitied me for my obduracy, but congratulated me all the same.

Sharp Practice?

I had no doubt about the soundness of my advice, but I doubted very much my fitness for doing full justice to the case. I felt it would be a most hazardous undertaking to argue such a difficult case before the Supreme Court, and I appeared before the Bench in fear and trembling.

As soon as I referred to the error in the accounts, one of the judges said:

'Is not this sharp practice, Mr. Gandhi?'

I boiled within to hear this charge. It was intolerable to be accused of sharp practice when there was not the slightest warrant for it.

'With a judge prejudiced from the start like this, there is little chance of success in this difficult case,' I said to myself. But I composed my thoughts and answered:

'I am surprised that your Lordship should suspect sharp practice without hearing me out.'

'No question of a charge,' said the judge. 'It is a mere suggestion.'

'The suggestion here seems to me to amount to a charge. I would ask your Lordship to hear me out and then arraign me if there is any occasion for it.'

'I am sorry to have interrupted you,' replied the judge. 'Pray do go on with your explanation of the discrepancy.'

I had enough material in support of my explanation. Thanks to the judge having raised this question, I was able to rivet the court's attention on my argument from the very start. I felt much encouraged and took the opportunity of entering into a detailed explanation. The Court gave me a patient hearing, and I was able to convince the judges that the discrepancy was due entirely to inadvertence. They therefore did not feel disposed to cancel the whole award, which had involved considerable labour.

The opposing counsel seemed to feel secure in the belief that not much argument would be needed after the error had been admitted. But the judges continued to interrupt him, as they were convinced that the error was a slip which could be easily rectified. The counsel laboured hard to attack the award, but the judge who had originally started with the suspicion had now come round definitely to my side.

'Supposing Mr. Gandhi had not admitted the error, what would you have done?' He asked.

'It was impossible for us to secure the services of a more competent and honest expert accountant than the one appointed by us."

'The Court must presume that you know your case best. If you cannot point out anything beyond the slip which any expert accountant is liable to commit, the Court will be loath to compel the parties to go in for fresh litigation and fresh expenses because of a patent mistake. We may not order a fresh hearing when such an error can be easily corrected,' continued the judge.

And so the counsel's objection was overruled. The Court either confirmed the award, with the error rectified, or ordered the arbitrator to rectify the error, I forget which.

I was delighted. So were my client and senior counsel; and I was confirmed in my conviction that it was not impossible to practise law without compromising truth.

Let the reader, however, remember that even truthfulness in the practice of the profession cannot cure it of the fundamental defect that vitiates it.

An Autobiography, (1959), pp. 266-69