Some men changed their times...
One man changed the World for all times!
Comprehensive Website on the life and works of
Mahatma Gandhi
+91-23872061
+91-9022483828
info@mkgandhi.org
+91-23872061
+91-9022483828
info@mkgandhi.org
Introduction |
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1. Mahatma Gandhi sailed for England on 4th September, 1888 to study law and become a barrister. He kept terms at the Inner Temple and after nine months' intensive study he took all his subjects in one examination which he passed. He was called to the Bar on 10th June, 1891 and was enrolled in the High Court of England the next day. A day later, he sailed home. After his return to India he started practice as a lawyer at first in the High Court at Bombay and a little later in Rajkot but did not make much headway in the profession. It was only when the hand of destiny guided his steps to South Africa that he soon made his mark there as a lawyer and as a public worker. Gandhiji practised as a lawyer for over twenty years before he gave up the practice of the profession in order to devote all his time and energy to public service. The valuable experience and skill that he acquired in the course of his large and lucrative practice stood him in good stead in fighting his battles with the South African and British governments for securing political, economic and social justice for his fellow-countrymen. Gandhiji was not a visionary but a practical idealist. As Sir Stafford Cripps has remarked: "He was no simple mystic; combined with his religious outlook was his lawyer-trained mind, quick and apt in reasoning. He was a formidable opponent in argument."1 2. Gandhiji went to South Africa in April 1893 and stayed for a whole year in Pretoria in connection with the case of Sheth Dada Abdulla who was involved in a civil suit with his near relative Sheth Tyeb Haji Khan Mahammad who also stayed in Pretoria. The year's stay in Pretoria proved to be a most valuable experience in Gandhiji's life. Here it was that he had opportunities of learning public work and acquired some measure of his capacity for it. Here it was that the religious spirit within him became a living force. It was here too that he acquired a true knowledge of legal practice and learnt the things that a junior barrister learns in a senior barrister's chamber and also gained confidence that he would not after all fail as a lawyer. It was likewise here that he learnt the secret of success as a lawyer.2 Dada Abdulla's was no small or ordinary case. The suit which he had filed against Tyeb Sheth who was his near relative claiming £ 40,000/- arose out of business transactions and was full of intricacies of accounts. The claim was based partly on promissory notes and partly on the specific performance of promise to deliver promissory notes. The defence was that the promissory notes had been fraudulently obtained and lacked sufficient consideration3. There were numerous points of fact and law in this intricate case and both sides had engaged the best attorneys and counsel.4 The preparation of the plaintiffs case involved much patient industry and close study of facts. Furthermore it needed clear thinking and judgment.5 Gandhiji took the keenest interest in the case and threw himself heart, and soul into it.6 He gained the complete confidence of both the parties and persuaded them to submit the suit to an arbitrator of their choice instead of continuing with expensive, prolonged, and bitter litigation. The arbitrator ruled in Dada Abdulla Sheth's favour, and awarded him £ 37,000/- and costs. It was however impossible for Tyeb Sheth to pay down the whole of the awarded amount. Gandhiji then managed to persuade Dada Abdulla to let Tyeb Sheth pay him the money in moderate instalments spread over a long period of years, rather than ruin him by insisting on an immediate settlement.7 Gandhiji was overjoyed at the success of his first case in South Africa and concluded that the whole duty of an advocate was not to exploit legal and adversary advantages but to promote compromise and reconciliation.8 3. It was Dada Abdulla's case which enabled Gandhiji to realize early in his career the paramount importance of facts. As he observes in his autobiography "facts mean truth and once we adhere to truth, the law comes to our aid naturally".9 Facts according to Gandhiji constituted three-fourths of the law and if we took care of the facts of a case the law would take care of itself. As a result of this realization of the paramount importance of facts in Dada Abdulla's case, Gandhiji was never known afterwards to brush aside or slur over a fact however inconvenient or prejudicial it might seem. Strict adherence to this principle enabled him more than once in a crisis to find a way out of what to all intents and purposes looked like an impenetrable ring of steel.10 From this and several similar experiences Gandhiji learnt to regard law not as an intellectual legerdemain to make black appear white and white black, but as "codified ethics". The profession of law became to him the means to enthrone justice, not "entangle justice" in the net of law.11 4. From 1893 till 1913 Gandhiji practised in South Africa. Early in his practice he realized that "the true function of a lawyer was to unite parties riven asunder". "This lesson", he writes, "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."12 5. If there was one characteristic more than another that stamped Gandhi as a man amongst men, it was his extraordinary love of truth. The Mahatma was an ardent and inveterate votary of truth. Truth, like nonviolence, was the first article of his faith and the last article of his creed. It was therefore no wonder that in his practice of the law, he maintained the highest traditions of the profession and did not swerve by a hair's breadth from the path of rectitude and integrity. He was always valiant for truth, bold in asserting it in scorn of all consequence, and never sold the truth to serve the interests of his clients. He never forgot "that if he was the advocate of an individual, and retained and remunerated, often inadequately, for his valuable services, yet he had a prior and perpetual retainer on behalf of truth and justice." It may truly be said of him that he practised law without compromising truth. As he observes, "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.... In my heart of hearts I always wished that I should win only if my client's case was right. ... 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."13 Thorough-going and meticulous as a matter of habit, he took extraordinary pains to study every case. He earned the esteem of his colleagues as much as that of the magistrates and judges who had come to respect him for clarity of thought and expression, legal acumen and intellectual vigour.14 The way he argued his cases before the judges was typical of him. Free from heat and passion, he scrupulously avoided aggressive advocacy and relied entirely on facts and reasoning. It was his habit not to hide any flaw in his brief. In presenting the case he liked to reveal the whole truth. The frankness with which he would admit a weak point gave him added strength to put things in their proper perspective and to focus attention on the critical issues which generally determined the outcome of a legal dispute.15 Truth was the only touchstone by which he judged his duty toward his client and the court. According to him the greatest wrong a lawyer could commit in the process of law was to be a party to the miscarriage of justice.16 He had the reputation, among both professional colleagues and his clients, of being a very sound lawyer and was held in the highest esteem by the courts. They all recognized his complete integrity and uprightness.17 Magistrates and judges alike paid careful attention to any case that he advocated realizing that it had intrinsic merits or that he sincerely believed that it had. An expert cross-examiner, he seldom failed to break down a dishonest witness.18 Gandhiji was, however, equally strict with his own clients. He had been known to retire from a case in open court, and in the middle of the hearing, having realized that his client had deceived him. He made it a practice to inform his client before accepting his brief, that if, at any stage of litigation, he was satisfied that he was being deceived, he would be at liberty to hand back his brief, for, as an officer of the Court, he could not knowingly deceive it.19 During his professional work it was Gandhiji's habit never to conceal his ignorance from his clients or his colleagues. Wherever he felt himself at sea, he would advise his client to consult some other counsel, or if he preferred to stick to Gandhiji, he would ask his client to let him seek the assistance of senior counsel. This frankness earned Gandhiji the unbounded affection and trust of his clients who were always willing to pay the fee whenever consultation with senior counsel was necessary.20 As far as possible, Gandhiji advised his clients to settle with their opponents out of Court. A large part of his legal practice was in the interest of public work, for which he charged nothing beyond out-of-pocket expenses, and these too he sometimes met himself.21 Where poor people were concerned he charged them very low fees, or did not charge at all. In fixing his fees, he never made them conditional on his winning the case. Whether his client won or lost, he expected nothing more nor less than his fees.22 At the same time, he never issued a notice of demand against a client who committed a default in payment of fees due to him, threatening legal proceedings if the debt was not speedily liquidated, and steadfastly refused to invoke the law to secure payment of his fees, for he held that his client, if an honest man, would pay when he could, and if a dishonest man, would not be made the more honest by the use of legal compulsion.23 Indeed, in his every action, the Mahatma vindicated his hostility to the doctrine of force and his abiding faith in that of love as a rule of life. 6. Practice as a lawyer, however, was and always remained for Gandhiji a subordinate occupation. A considerable part of his time during active practice was devoted to public service which was almost a passion with him. As his Satyagraha campaigns against the South African Government for its racial and discriminatory policies, based on colour prejudice, against Indians and Negroes, gathered momentum and spread throughout the length and breadth of South Africa, the compulsion of political events made it increasingly difficult for him to attend to the needs of his clients. Besides he also felt that in the Satyagraha struggle, only devoted Satyagrahis could be relied upon, since in no circumstances would they surrender to temptation or to fear of the consequences. Furthermore, as his views about truth and non-violence crystallized and matured, he came to the conclusion that to earn one's livelihood from a profession, which finally made an appeal to the policeman or the jailer to enforce the decrees of the courts, and thus derived its ultimate sanction from physical force, was a denial of Ahimsa.24 Accordingly, in 1910 Gandhiji entirely abandoned the practice of law and henceforth devoted his entire time and energy to the service of the community. Thereafter, in the remaining years of his earthly sojourn, whether in South Africa or in India, Gandhiji, as a Satyagrahi, was very often engaged in breaking laws rather than in expounding or interpreting them in the courts of the land. It may here be recalled that when, after his imprisonment in 1922, during his first civil disobedience movement in India, he was disbarred by his Inn, he would not apply thereafter for reinstatement, as he regarded himself as a farmer and a handicraftsman, who had renounced the profession of law deliberately many years before in South Africa. 7. It may interest the reader to know that the Inner Temple which had disbarred Gandhiji in 1922 after his imprisonment during his first civil disobedience movement in India has since not only restored his name on its rolls but honoured his immortal memory by unveiling in 1984 his special portrait in the library of the Inner Temple.25 Furthermore, Gandhiji's bust now adorns the coffee room of the Inner Temple and his statue has been installed in its lawns.26 8. Gandhiji's role as a lawyer in society has been very forcefully described by the American author Mr. James Cavanagh who in a warm and moving tribute to his work observed: 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.27 9. Parts I and II of the book deal with Gandhiji as a law student and as a practising barrister. The Editor craves the indulgence of the reader for including in these parts, some portions of Gandhiji's Autobiography which, strictly speaking, have no bearing on the subject of this book. This however was unavoidable and had to be done in order to maintain the thread of continuity in the narrative, and to make it clear, coherent and consistent. 10. Part III of the book contains the political trials of Gandhiji in South Africa and in India. Here Gandhiji appears in the role of a Satyagrahi, as a civil resister of unjust laws. The trial of Gandhiji at Ahmedabad in 1922 on the charge of sedition will forever remain one of the most momentous and memorable events of modern times. The trial aroused considerable interest not only in India, but also in Europe and America. In many respects it was a most remarkable trial. Never before was such a prisoner arraigned before a British court of justice. Never before were the laws of an all- powerful government so defiantly, yet with such humility, challenged. Men of all shades of political opinion, indeed all who had stood aloof from the movement and had condemned it in no uncertain terms, marvelled at the wisdom, compassion and heroism of the thin spare figure in a loin cloth thundering his anathemas against the Government. And yet none could be gentler nor more sweet-tempered than the prisoner at the bar with a smile and a nod of thanks and recognition for everyone including his prosecutors.28 The unique personality of the principal accused before the Court, his international reputation as a saint and patriot, the offence with which he was charged, the political situation then prevailing in the country and the probable consequences of his conviction on the political future of India, all these combined, made the occasion momentous and invested the trial with a historic significance. The trial being on so ennobling a plane brought forth the best that could conceivably be expected from the one who judged and the one who was judged. The trial indeed was noteworthy, both for the dignity of the prisoner at the bar, and also for the noble utterance of the judge who delivered the sentence. Much Of the bitterness at the time was taken away from men's minds owing to the judge's speech.29 The late Mrs. Sarojini Naidu, a close associate of the Mahatma in the freedom struggle, who was present at the trial, has with her usual felicity of expression given a very vivid and moving account of the trial which will interest the reader. She Wrote: A convict and a criminal in the eyes of the law: Nevertheless the entire Court rose in an act of spontaneous homage when Mahatma Gandhi entered - a frail, serene, indomitable figure in a coarse and scanty loin cloth, accompanied by his devoted disciple and fellow-prisoner, Shankarlal Banker. 'So you are seated near me to give me your support in case I break down,' he jested, with that happy laugh of his which seems to hold all the undimmed radiance of the world's childhood in its depths. And looking round at the hosts of familiar faces of men and women who had travelled far to offer him a token of their love, he added, 'This is like a family gathering and not a Law Court.' A thrill of mingled fear, pride, hope and anguish ran through the crowded hall when the judge took his seat - an admirable judge deserving of our praise alike for his brave and resolute sense of duty, his flawless courtesy, his just perception of a unique occasion and his fine tribute to a unique personality. The strange trial proceeded and as I listened to the immortal words that flowed with prophetic fervour from the lips of my beloved master, my thoughts sped across the centuries to a different land and a different age, when a similar drama was enacted and another divine and gentle teacher was crucified, for spreading a kindred gospel with a kindred courage. I realized anew that the lowly Jesus of Nazareth cradled in a manger furnished the only true parallel in history to this sweet, invincible apostle of Indian liberty who has loved humanity with surpassing compassion and to use his own beautiful phrase, 'approached the poor with the mind of the poor'. The pent-up emotion of the people burst in a storm of sorrow as a long, slow procession moved towards him in a mournful pilgrimage of farewell, clinging to the hands that had toiled so incessantly, bowing over the feet that had overruled so continuously, in the service of his country. In the midst of this poignant scene of many-voiced and myriad-hearted grief he stood untroubled in all his transcendent simplicity, the embodied symbol of the Indian Nation, its living sacrifice and sacrament in one.30 The whole trial lasted one hundred minutes, each minute enacting a page in the history of the battle of India's freedom.31 The three articles written and published by Gandhiji in his weekly paper Young India for which he was tried on the charge of sedition have been reproduced in Appendix I at pp. 246-53 11. The trial which took place on March 18, 1922 in the small crowded court-room in Ahmedabad before the District and Sessions Judge Robert Broomfield, was so calm, so orderly, so lacking in contentiousness and anger, that it assumed the character of a quiet confrontation between two men who had known and studied each other for a long time. The judge was mild- mannered and apologetic. He gave the impression of a man who was performing a distasteful task with courtesy and good sense. Gandhiji was quietly content and would sometimes break out in smiles. 32 The judge was the son of a lawyer and he had a long experience of the law. He came to India as a junior barrister attached to the Indian Civil Service in 1905, and had' spent all his active life within the Bombay Presidency. He generally liked the Indians and had a considerable respect amounting almost to affection for Gandhiji.33 The tone of the trial was set by the judge when he took his seat, bowing gravely to the distinguished prisoner. Gandhiji returned the bow.34 The trial which was listed as "Sessions Case No. 45, Imperator V. (1) Mr. M. K. Gandhi, (2) Mr. S. C. Banker," was concerned to punish the author of three seditious and inflammatory articles which had appeared in Young India at intervals during the previous year 1921. 12. The trial came to be known as "the great trial", because both the judge and the prisoner behaved with uncommon courtesy and because Gandhiji had stated the case for India's freedom with fairness and precision.35 13. Sir Thomas Strangman who as the Advocate- General of Bombay conducted the prosecution of Gandhiji on behalf of the State was deeply moved by the prevailing atmosphere of the trial. In his interesting account of the trial he observed: The trial took place at Ahmedabad on the 18th March 1922. I went up from Bombay to conduct the prosecution. On arrival I was at once struck by the magnetic influence exercised by Gandhi upon the officials. The prevailing note was one of sadness. It was realized, of course, that Gandhi had been conducting the most dangerous campaign, that that campaign had resulted in considerable bloodshed and disorder, and that one course and one only was possible, viz., the course which had been adopted. None the less, the thought uppermost in the minds of the officials was the extreme pity of it all - pity that it should be necessary to prosecute so charming a personality. As illustrative of the prevailing atmosphere: The Collector who had come up to the station to meet me left me to see that various Indian ladies, supporters of Gandhi, who had come up from Bombay by the same train in order to attend the trial, should obtain proper conveyances to their destinations. Gandhi had prepared a written statement. Before reading it he dealt orally with what I had said. . . . Gandhi then proceeded to read the written statement in which he set out at length how he had come to lose faith in the British Government and stated that he saw no course open to him but that which he had adopted. Whilst Gandhi was reading the statement an incident occurred which exemplified the atmosphere of the trial. He referred to some incident as having taken place in a particular year. The District Superintendent of Police interposed in the most friendly way. He said : "I think you have made a mistake, surely it took place in the following year?" Gandhi thanked him for his assistance and made the necessary correction in the statement.. So ended the trial. I confess that I myself was not wholly unaffected by the atmosphere of the trial.36 14. Gandhiji's speech at the trial pleading guilty to the offence of sedition with which he had been charged and inviting Judge Broomfield to inflict on him the severest penalty has now become a part of English Literature and finds a place of honour in the great legal classic The Law as Literature37 which contains an anthology of great writing about and in the law such as essays, accounts, letters, opinions, pleas and transcripts from Plato to the present times. 15. Barring the trial of Socrates there is perhaps no trial in the" history of mankind, comparable to that of Gandhiji, which stimulated so much interest and whose influence on the life of humanity has been so profound. Involving as it did the issue of morality versus law, it is but natural that the trial of Gandhiji must immediately bring to mind that kindred trial involving kindred issue. Meletus, the prosecutor of Socrates, indicted the accused of two charges: one of not worshipping the gods whom the state of Athens worshipped and the other of introducing novel religious practices and of corrupting the young by his teachings. He demanded the penalty of death. The similarity of attitude adopted by Socrates and Gandhiji towards the Tribunals which tried them is at once manifest, for each placed Truth above law and sought the punishment which the breach of the law warranted.38 16. Why has the trial of Gandhiji been universally acknowledged to be a great historic trial out-shadowing all similar trials of leaders and patriots? Surely, not merely because of the personality of the accused, nor because of his extra-ordinary sway over India's teeming millions whom he treated as his own, nor because of its consequences on the political future of India. There is no doubt that these were all contributory factors which invested the trial with a historic significance. 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. The issue raised by Gandhiji in the trial was not an isolated, sporadic issue arising from the breach of Section 124A of the Penal Code though it apparently was made to appear so. It was the perennial issue of Law versus Conscience, an issue of abiding interest to all civilized people of all times. It invoked the inalienable moral right and duty to resist a system of governance whose only claim to loyalty and obedience was superior physical might. The trial is of profound and momentous significance in that Gandhiji during the trial sought to establish beyond doubt the superiority of soul force over sheer brute force, born out of the gospel of self-suffering and the doctrine of willful yet holy withdrawal from all that is foul, base and unholy in human behaviour, a conclusion which will have an abiding purpose and a meaning until humanity survives.39 17. Part IV of the book discusses the role of lawyers in the Satyagraha struggle. It also gives an account of the farcical political trials held in the Punjab in 1919 during the Martial Law regime, when several innocent persons were sentenced by special courts to death or life-imprisonment on the flimsiest of evidence. These trials indeed furnish a sad commentary on the administration of justice in Punjab during that period of great storm and stress. Part V deals with Gandhiji's views on sundry and miscellaneous topics having some bearing on the subject of this book. Appendix II contains select thoughts of Gandhiji on the law and the lawyers. Appendix III contains the text of the speech of the late B. N. Gokhale, ex-judge of the Bombay High Court at the symposium organized by the Bombay Branch of the Gandhi Smarak Nidhi on 1-7-1963 in which he dealt with Gandhiji's legal philosophy. Appendix IV contains Gandhiji's application dated 16-11-1891 for enrolment as an advocate of the Bombay High Court. Appendix V contains Gandhiji's certificate of being called to the Bar by Inner Temple. Appendix VI contains the certificate from Mr. W. D. Edwards, author and practising barrister in the Supreme Court of Judicature in England recommending Gandhiji's name for admission as an advocate of the High Court of Bombay. Appendix VII contains the order issued by the Benchers of Inner Temple on 10th November 1922 disbarring Gandhiji and removing his name from the roll of barristers on his conviction and sentence to six years' imprisonment on 18th March 1922 by the Court of the Sessions Judge, Ahmedabad. Appendix VIII is a letter from the eminent judge and jurist Lord Denning to the Editor informing him that the Inner Temple which had disbarred Gandhiji in 1922 after his imprisonment during his first civil disobedience movement in India and had restored his name on its rolls shortly after India attained freedom had honoured Gandhiji's memory by unveiling in 1984 his special portrait in the library of the Inner Temple. Last is the glossary of Indian terms used in the book with their English translation. 18. Many people regard the law as something of a mystery, and there is a considerable amount of prejudice against the lawyers which exists in the minds of many members of the public. The lawyer's profession is regarded by many people as a liar's profession. It seems strange and indeed wrong to the ordinary citizen, that a man of honour and integrity should defend a man that he must know in his heart to be guilty of the crime with which he is charged and be paid for doing so. 'How is it possible', men say, 'for an advocate to resist an argument that appears to be founded on truth, and to seek to make the worse appear the better reason?' For, put quite starkly, the charge against the advocate is that he cannot possibly be sincere or indeed honest in the conduct of his profession. For the ordinary citizen only espouses some particular cause because he believes in it, but the advocate espouses a cause because he is paid to do so, whether he believes in it or not.40 This is the perennial ethical indictment against the profession and it was put into its most deadly form by the strange and erratic genius, Dean Swift, in Gulliver's Travels, when he said of the Bar that 'they were a society of men bred up from their youth in the art of proving by words multiplied for the purpose, that white is black and black is white according as they are paid.' This charge is effectively answered by the Mahatma who believed in spiritualizing not only public life but also the practice of the legal profession. Says he, "And there is another thing I would like to warn you against. In England, in South Africa, almost everywhere 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 English 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 to arrive at, the truth, never to prove the guilty as innocent."41 19. Year by year, the enlightened opinion of the world enshrines Gandhi in a noble place in the hearts of mankind. The life and example of the Mahatma who ennobled the legal profession, who remained faithful to its highest traditions, and who showed the heights to which it can be raised ought to form part of the teaching and training of every law student. At a time when the legal and professional standards among both judges and lawyers have fallen woefully, it behaves the legal fraternity to bestir itself and infuse a moral tone into the profession by pledging itself with renewed vigour and deep devotion to the ideals and the precepts of Gandhiji and presenting him to the profession as a model truly worthy of the closest emulation. 20. This book will have more than served its purpose if it inspires the reader, be he a lawyer or a layman, with the belief that the vocation of the lawyer is an honourable vocation requiring the highest standards of rectitude, integrity and uprightness, and that its practice is in no way inconsistent with the pursuit of truth. 2nd October, 1962 Sunit B. Kher Sources:
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