66. Justice from six thousand miles

No conquest by force of arms is worth treasuring, if it is not followed by cultural conquest, if the conquered do not hug their chains and regard the conqueror as their benefactor. The different forts of India are no doubt 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 forts i.e., if the opinion expressed by the distinguished lawyers in Indian Daily Mail on the very modest proposal of Sir Hari Singh Gour for the establishment of a Supreme Court at Delhi is an index of that mind. For, these eminent lawyers regard the proposal as premature, in that judgments of the Privy Council sitting six thousand miles away from India would command, in their opinion, greater respect and ensure greater impartiality. This amazing opinion I venture to say has no foundation in fact. But distance lends enchantment to the scene. Members of the Privy Council are after all human beings. They have been found to betray political bias. Their decisions in cases involving questions of custom are often distortions of the reality, not because they are perverse, but because it is not possible for mortals to know everything. A less trained lawyer having a direct knowledge of a local custom is better able to appraise evidence on it than those who, no matter what their attainments are, know nothing of local conditions.

The distinguished lawyers moreover state that expenses will not be less because the final court of appeal is brought down to Delhi. It does not say much for the patriotism of these eminent gentlemen, if they mean that the fees should be on the same scale in poor India as in rich England. A Scotch friend once told me that Englishmen were probably the most extravagant in the world in their tastes and requirements. He told me that hospitals in Scotland were far less expensively fitted than in England though they were in no way inferior in usefulness to those in England. Or does a legal argument increase in weight with an increase in the fees charged ?

The third argument pressed into service in order to oppose the proposed change is that Indian judges will not command the same weight as the wigged ones in White Hall. If this was not an argument advanced by the distinguished lawyers, it would be laughed out. Is respect for judgments commanded by their impartiality, or the location, or the birth, or the colour of the skin, of judges? And if it is the seat or the birth or the pigment that determines the weight to be attached to judges' decisions, is it not high time that the superstition was removed by removing the seat and appointing judges of Indian birth? Or does the argument presuppose partiality on the part of judges of Indian birth? One does sometimes hear of poor people under stress of ignorance desiring an English Collector in the place of an Indian. But greater fearlessness and sanity are surely to be expected of experienced lawyers.

But while in my humble opinion none of the three arguments advanced against the proposal has any force, 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 more powerful, so may we not borrow or buy justice from England. We must take pride in being satisfied with the work our own judges may give us. Trials by jury often result, all over the world, in 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. But sentiment is at a discount in legal circles. And yet it is sentiment that rules the world. Economics and every other consideration is often flung to the winds when sentiment predominates. Sentiment can be and must be regulated. It cannot be, ought never to be, eradicated. If it is not wrong to cherish patriotic feeling, it is surely not wrong to remove the final Court of appeal to Delhi. Just as good government is no substitute for self-government, good justice, if foreign is no substitute for home-made justice.

Young India, 12-8-1926, p. 281