Appendix III

1. We in India have often deplored the lack of jurists in our country and attributed it to our standards of legal education. The University Education Commission presided over by no less a person than Dr. Radhakrishnan had the following observation to make about it : "In our country, we have eminent practitioners and excellent judges. The law has also given us great leaders and men consecrated to public service. Most conspicuous of these is Gandhiji. We have no internationally known exponents of jurisprudence and legal studies. Our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an ' area of profound scholarship and enlightened research."

Since this report was published, undoubtedly our methods of legal training have made some progress but the verdict of the Dr. Radhakrishnan Commission has been confirmed by the Law Commission of India as late as 1958 under the distinguished chairmanship of Shri Motilal Setalvad.

2. I have no doubt that when the sponsors of today's symposium chose the subject of Gandhiji as a Jurist, they did not have in mind the term jurist in its ordinary technical sense. But I do not think that we shall be doing any injustice to Gandhiji's memory if we do not describe him as a jurist in that sense. It cannot, however, be denied that Gandhiji had a legal philosophy of his own and entertained most refreshing views as to the duties and functions of lawyers as well as of courts of law though they might not have gained acceptance in those days and might not get even today a whole-hearted acceptance. That, however, cannot detract from their value and the fruitfulness of a discussion like that of today's evening.

3. It would be impossible for me to refer in this speech to all the aspects of Gandhiji's legal philosophy. I, therefore, propose to deal only with one or two of the aspects of that philosophy and the question of their general validity.

4. But before I do so, let me pay a tribute to the skilful manner in which Gandhiji analysed and discussed some of the material law cases from the unhappy Punjab of those days in the columns of Young India. Gandhiji had then to his credit legal practice of about 20 years mostly in South Africa. As far as is known, he does not seem to have appeared in any case in the Bombay High Court. But as I was saying, the manner in which Gandhiji analysed and discussed these 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. I would particularly mention in this connection Gandhiji's article on the case of Karamchand, a student of the Dayanand Anglo-Vedic College. I do not know how far the articles in Young India affected the ultimate decision of the Government of India which reviewed some of these cases. But there can be no doubt that those articles aroused and galvanized public opinion in the whole country regarding the enormity of the happenings in the Punjab which otherwise might have been perhaps a closed book.

5. Gandhiji's views regarding the duties and functions of the legal profession must find the first mention in any discussion of his legal philosophy. According to him, though a lawyer must do his very best for his client, he ought not so to identify himself with his client as to transgress the principles of truth and justice. In his very early life, Gandhiji learnt a bitter lesson when he tried to plead with the Political Agent for his elder brother who, as the legal adviser and secretary to the Ranasaheb of Porbunder before he was installed on his Gadi, was said to have tendered wrong advice to the Ranasaheb. The Political Agent was rude to Gandhiji in this matter and Gandhiji was much embittered by the treatment received by him but ultimately accepted the wholesome advice of Sir Pherozeshah Mehta not to do anything rash. Gandhiji has admitted that this incident changed to some extent the course of his life. 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. That led to his developing certain rules of conduct which he scrupulously followed.

6. Mis anxiety to discover the truth made him attain a good deal of skill in cross-examination and it has been said that he found no difficulty in exposing dishonest witnesses. He always considered that within limits a defence counsel must wield the weapon of cross-examination to expose the falsity or at least the weakness in the prosecution case. When on one occasion the Chief Justice of the Patna High Court animadverted against what he regarded as the habit of counsel in abusing the privilege of cross-examination, and went to the length of saying that it should be circumstance warranting an enhancement of sentence, Gandhiji publicly protested against this dictum and pointed out that an eminent counsel like Russel could never have succeeded in establishing the Piggot forgeries but for his able and fiery cross-examination. But I have no doubt that Gandhiji would have equally deplored the use of this weapon merely to browbeat witnesses even though the lawyer might be knowing the weakness of his own case.

7. Gandhiji's insistence on truth also enabled him to be strict with his own clients who knowing his views often reserved for him their clean cases entrusting the doubtful ones to other lawyers. In this perhaps Gandhiji was singularly fortunate. It would seem that there were occasions when he would retire from a case even in the midst of the hearing if he realized that his client had deceived him. Other lawyers have done the same. I have known as to how once Shri D. N. Bahadurji, ex-Advocate General and a distinguished lawyer of great integrity, sat down while he was arguing an appeal on the ground that he was misinstructed by the advocate instructing him and had to be cajoled into resuming the argument. How Gandhiji made a merchant-client of his confess to his guilt in smuggling and defrauding the customs authorities is known to every reader of Gandhiji's autobiography. How many lawyers engaged in smuggling cases would be prepared to follow this example ?

8. His adherence to justice and truth also led to another result. Gandhiji was always in favour of setting a case and often advised his clients not to fight to the bitter end. That is illustrated by the very first case in which he was concerned on behalf of his employer one Abdulla Seth, between whom and the opponent Tyeb Seth, he was able to bring about an amicable settlement. This practice often creates a misconception in the clients' mind especially in the case of junior lawyers. But in Gandhiji's case it brought him greater esteem and confidence on the part of his clients. To some extent that was due to the fact that many of his clients were co-workers in his public work in South Africa. Gandhiji has always stressed that it is the glory of the legal profession to bring the two opposing parties together to agree to submitting their disputes to arbitration.

9. Gandhiji, very early in his career as a lawyer, learnt the importance of studying deeply and delving into the facts of a case, because, as he expressed it, if the facts were taken care of, the law would take care of itself. He has mentioned that he learnt this from senior Mr. Leonard, a famous lawyer in South Africa, whom Gandhiji's client had engaged in the very first case to which I have referred above. Gandhiji adhered to and followed this method in his political work also. In some of the martial law cases about which he had occasion to write in the columns of Young India, he took meticulous care about his facts and expressed his annoyance if they were not properly handled or the case was spoiled by the improperly worded and angry arguments on the part of the lawyer. Lokmanya Tilak though he had legal training never practised as a lawyer. But he developed the same habit and was known to study law reports to keep himself acquainted with the legal position in various matters. That enabled him ably to conduct his defence in many of his cases. In writing an article on an important subject for the Kesari on the eve of a Congress Session, Tilak is said to have taken 36 hours to gather and collate all the facts. In one of the martial law cases discussed in Young India, Gandhiji strongly criticized bad draftsmanship which often spoils good causes. Gandhiji was himself a practised draftsman and has uttered a warning which is as valid today as it was forty-four years ago :

"I do wish as a practised draftsman" he wrote, "to warn writers of petitions, whether they be pleaders or otherwise, to think of the cause they may be espousing for the time being. I assure them that a bare statement of facts unembellished with adjectives is far more eloquent and effective than a narrative flowing with exuberant language."

Gandhiji has fairly admitted that he learnt this lesson from Gopal Krishna Gokhale and Dadabhai Naoroji who always impressed on him that, if he wanted to be heard, he must be brief, must write to the point and adhere to facts, must never travel beyond the cause under notice and that he should be most sparing in his adjectives. Gandhiji has added that if success attended his efforts it was due to his acceptance of what he characterises as 'golden advice' from these illustrious seniors and experienced politicians. The Gold Control Order leaves untouched such 'golden advice', but unfortunately such advice is never sought now nor is it available. The gold streaks in the mines of advice seem to have been completely exhausted.

10. Being a humanist to the core of his being, Gandhiji felt anguish at the sufferings and hardships of the litigants. His protests now and then against high cost of litigation and exorbitant character of lawyers' fees were symptomatic of this spirit of humanism. A lawyer is undoubtedly entitled to reasonable remuneration for his experience, talents and troubles. It is true, at least in the case of junior lawyers, that dishonest clients often seek to deprive them of even this. At the other extreme are lawyers who are inclined to proceed on the economic principle of the demand for their talents and what they are able to get. This has no reference to dishonest lawyers who can always be brought to book under the disciplinary jurisdiction. Is it consistent with high professional standards to fix fees not compatible with the claim involved in the litigation? It is a difficult question to answer. But I believe it is permissible to say that putting a reasonable ceiling on lawyer's fee deserves to be tackled by lawyers themselves with the creation of a professional council on an all India basis. Gandhiji did not charge fees to his poor clients and I believe many lawyers always have been doing this. But it is for the Gandhi Smarak Nidhi to consider whether among its activities it should not interest itself in the problem of legal aid which has not yet been completely solved considering the interest that Gandhiji took in poor litigants.

11. In his speeches in the Federal Structure Committee of the Round Table Conference in 1931, Gandhiji showed considerable foresight in his demand for the establishment of a Federal or Supreme Court with the widest possible jurisdiction and with no Privy, Council to revise its decisions. In the course of 19 years his vision has become a reality with the passage of the Abolition of the Privy Council Jurisdiction Act of 1949 and the creation of the Supreme Court which has established its reputation even outside the borders of India. But even then Gandhiji never thought that such a court would be able to exercise its jurisdiction over the princely States, and unfortunately he did not live to see the happening of the miracle in 1948 itself when the princes consented to the merger of their States with the rest of India due to the statesmanship of Sardar Vallabhbhai Patel, then in charge of the Home Ministry.

12. One final point and I have done. A reference cannot be avoided to Gandhiji's views on civil resistance which is an important part of his legal philosophy. Some of you might remember how strongly he protested against the dictum of the Bombay High Court that "those who live by the law must keep the law". Commenting on this Gandhiji 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'."

It is perhaps true that a situation contemplated by Gandhiji may not arise in an Independent India with a Constitution based on democratic principles. But when a body of lawyers condemns in strong terms legislative measures of Government as unconstitutional and objectionable, as has happened in recent times and may happen in future, it would be an interesting speculation as to what Gandhiji's reaction would have been if he had been alive today and shared the views of these lawyers.

13. As all of you are aware Gandhiji was considerably influenced by the teachings and writings of Ruskin especially his Unto This Last. This is what Ruskin wrote on the function of the five honourable professions to be found in any civilized society.

"Five great intellectual professions relating to daily necessities of life have hitherto been in existence-there exist necessarily in every civilized nation: the soldier's profession to defend it; the pastor's to teach it; the physician's to keep it in health; the lawyer's to enforce justice in it; the merchant's to provide for it. And the duty of all these men is, on due occasions, to die for it. On due occasions, namely, the soldier rather than to leave his post in battle, the physician rather than to leave his post in plague, the pastor rather than to teach falsehood, the lawyer rather than countenance injustice. What is the due occasion for the merchant? It is the main question for the merchant as for all of us. For truly the man who does not know when to die, does not know how to live." Gandhiji wrote in a similar vein in his Young India of November 1931, when he appealed to the professions to put their talents in the service of the country instead of converting them into £ s.d. Gandhiji wrote :

"If you are a medicine man there is disease enough in India to need all your medical skill. If you are a lawyer, there are differences and quarrels enough in India. Instead of fomenting more trouble, patch up those quarrels and stop litigation. If you are an engineer, build more houses suited to the means and needs of our people and yet full of health and fresh air. There is nothing that you have learnt which cannot be turned to account."

In those good old days of 1931, there was no problem of high soaring prices and black-marketeering. Otherwise I have no doubt that Gandhiji would have appealed to the merchants also more effectively perhaps than our public men are able to do now, to restrain their profiteering instincts.

14. It was Gandhiji's claim when he brought two litigants together that he had learnt the true practice of law and that he had learnt the better side of human nature and to enter men's minds. In one of the articles in a volume dedicated to Gandhiji on his 75th birthday in 1944, it is written :

"Many of the world's great figures have entered men's mind only to destroy human fellowship and goodwill. It is Gandhiji's great contribution to the civilization of his day that in entering men's mind he seeks not to destroy but to promote in their hearts a love for their fellowmen."

That was Gandhiji's contribution in the sphere of law also though he gave up the practice of law to serve the country to enable it to attain to the full stature of independent nationhood.