MAHATMA GANDHI AND JURISPRUDENCE

K. SUBBA RAO

Former Chief Justice of India

Jurisprudence is the science of law. It is a science which defines legal concepts and classifies them in accordance with their observed affinities. Mahatma Gandhi cannot be said to have contributed to the jurisprudential thought of the country in its limited sense. But he has evolved a philosophy of life and as law includes life his philosophy necessarily has powerful impact on law, both substantial and procedural.

His philosophy of life is condensed in the expression Satyagraha (firmness in truth). The said concept may be expanded thus: Truth is God; God manifests himself in the physical world. Indeed all life is one and that life is the reflection of reality. Love is the law of life. By whatever name God is called, it connotes the living law of life; so one serves God by serving the human beings through love. One should also resist untruth and evil through non-violence and sacrifice. His philosophy accepts individual dignity–for he visualises man as a divine spark, universal brotherhood–for he believes that all life is one, service through love and non-violent resistence to evil. It believes in higher law than man-made law. It seeks to resolve the conflict between the two through the doctrine of sacrifice.

In the context of obedience to law, he explains the duty of a Satyagrahi thus: “A Satyagrahi obeys laws of society intelligently out of his free will because he considers it to be his sacred duty to do so. It is only when a person has obeyed the law of society scrupulously that he is in a position to judge what particular rules are good and just and what unjust and iniquitous. Non-violence is the law of our species, as violence is the law of the brute. The dignity of man however requires obedience to higher law.”

Indian Constitution accepts his doctrine of higher law with some limitations. It declares the natural or fundamental rights of the people and says that all laws made taking away or abridging those rights are void. It accepts the principle of human dignity and permits only making of laws reasonably restricting the human rights in public interest.

Gandhi’s implicit faith in God and his tolerance of religious diversity are accorded the transcendental position of a fundamental right in our Constitution; his life mission to eradicate untouchability is fulfilled by its abolition in our Constitution; his concept of casteless Hindu society is expressed in the constitutional prohibition of caste as a ground of preference in the affairs of the State; his championship of women’s rights found acceptance in the constitutional eradication of any distinction on that ground of sex in the affairs of the State. In short it may be said, that Parts III and IV of the Constitution dealing with fundamental rights and directive principles reflect the Gandhian concept of an egalitarian society viz., a society where there is equality, freedom, and social justice.

Gandhi goes further and asserts the right of a disciplined individual to break evil law at his own risk. But the Constitution substitutes the judicial conscience for the individual conscience, for in an imperfect World the conceding of such an individual right to break evil laws will lead to anarchy. The aggrieved individual has to satisfy the Court that the law of restrictions of human freedoms is unreasonable and not in public interest.

This higher right is claimed by Gandhi when he was tried for sedition before the Sessions Judge at Ahmedabad. The issue was regarding the fundamental right of freedom of speech and association. The trial involved the issue of morality versus law. It also raised the conflict between the issue of allegiance to the State on the one hand and on the other with duty and morality as the person concerned believed it in all his purposeful sincerity.

This trial throws out three principles:

(1) A citizen is entitled to break law if he sincerely believes that the law is evil;

(2) By breaking the law he must submit himself to the penalty imposed thereunder;

(3) The duty of the judge is to administer law strictly or to resign his post if he thinks the law is evil.

This doctrine can only work in a highly disciplined society and therefore the Indian Constitution modified the doctrine to suit the conditions obtaining in India.

Gandhiji’s approach to the concept of property is rather attractive. He propounded the doctrine of trusteeship which he described thus: “The prince and the peasant will not be equated by cutting off the prince’s head. Not by confiscation or by expropriation or by cramping of superior talents can the wealth or happiness of all be increased but by those who have more of the world’s goods and superior talents using their advantage not for self but for the good of society as a whole.”

This is a great ideal. Gandhiji believed that Satyagraha is the sanction for enforcing the moral doctrine of trusteeship and that an egalitarian society can be brought about only through this process.

Our Constitution in effect accepted the doctrine but imposed a legal sanction for enforcing it. It declares the citizens’ fundamental right to property. A positive and a negative duty are implicit in the said right. He should enjoy his right in such a way that he does not come into conflict with that of others. He should also respect and protect the rights of those who help him to acquire his property and to enjoy the same, viz., tenants, labourers, etc. Law of social control which the Constitution enables the State to make is nothing more than enforcing the duty implicit in the said right. But there is an essential difference between the doctrine of trusteeship and the law of social control. The former is voluntary; it is based on self-sacrifice, and sustained by the sanction of non-violent resistance to evil; the latter is enacted and enforced by the State. The former is an ideal and the latter is pragmatic. The later can be replaced by the former only when the individual becomes perfect and does not require external sanctions to discharge his duties.

In the realm of Criminal Law Gandhi’s doctrine that “Love is the law of life,” throws considerable light on the question of death sentence. Pursued logically this doctrine enjoins on the State to convert the criminal through love. It gives powerful support to the view that the death sentence is a judicial murder and is a relic of the barbaric past. Many countries in the West have rejected the theories of retribution and deterrence and accepted the more humane one of reformation. They have abolished death sentence and the society is none the worse for it. It is a question of serious discussion, whether Gandhi in the circumstances in which he was murdered would have supported the death sentence imposed on the murderer. In my view he would not have. It is paradoxical that in India, which should have shown the way consistent with Gandhian principles, there is no public opinion for the abolition of death sentence or at any rate to restrict it to specific cases. I hope and trust that the problem will be taken up by the appropriate authorities during the Gandhian centenary year and solve it in the

best manner that Gandhi would have liked it to be done.

Gandhi has no respect for and faith in British Courts in India. His conviction was based upon his experience in political cases. He believed that the Courts were instruments of imperialism. He said: “My experience in political cases in India leads one to the conclusion that nine out of every ten condemned men were totally innocent. Their crime consisted in the love of their country. In ninety-nine out of hundred, justice has been denied to Indians as against Europeans in the Courts in India. This is not an exaggerated picture but it is the experience of almost everyone who has something to do in such cases. In my opinion the administration of law is thus prostituted consciously or unconsciously for the benefit of the exploiters.” This is a strong indictment. In those days there was no separation of the judiciary from the executive. The said evils are inherent in such a system. In some political cases the picture drawn by Gandhiji may be correct. But in my experience in other cases and at higher levels, by and large, with rare exceptions, the judiciary, before and after independence, discharged their duties objectively and conscientiously. This indictment was the justification for the Indian Constitution directing the State to separate the judiciary from the executive. Though some advanced States immediately carried out the reform, other States postponed it on one pretext or other or implemented it with great reluctance. The said reform has not yet been completed throughout the country. It is hoped that the Gandhian centenary year will see the completion of this urgent reform.

Gandhi strongly believed in voluntary arbitration for deciding disputes. His award in the dispute between the employers and the labour of textile industry in Ahmedabad was the result of that conviction and indeed for about 20 years parties abided by it. The efficacy of arbitration depends upon the moral and intellectual calibre of the arbitrator and also on the sincerity of the parties to settle their disputes and their confidence in the arbitrator. These are very difficult conditions and my experience is that in most of the cases, parties seek arbitration with mental reservations and invariably the award turns out to be the first step in the long course of interminable litigation. Arbitration serves a simple society. It is abused in a sophisticated one.

The philosophy of Gandhi is certainly against the costly infrastructure of law and justice. While the complex national and international relations cannot avoid complicated legal structure, there is room to simplify it and particularly at the village level. The Panchayats of the old evoked respect and confidence but those of the present are riddled with political faction. An urgent reform is called for to simplify legal procedures, to reduce the number of appeals, to cut down the expenditure and to enable the poor to have their rights decided at public expense. The doctrine of equality for which Gandhiji stood for, would be flouted, if the law and the Courts become the sporting ground of the rich.

Gandhiji believed in the preventive method as much in medicine as in law. In Africa he persuaded his clients to settle rather than to go to Court. He believed that the true function of a lawyer was to unite the parties riven asunder. He had not taken false cases.

He believed that though the profession of law was a means of livelihood it was none the less a public service and it could only justify its existence through service. Gandhiji’s concept of the role of lawyer was consistent with his philosophy of law. He sought to spiritualise the practice of law and advised lawyers not to depart from truth and honesty. He wanted the profession to serve the country and to practise law without compromising truth. He declared that the duty of the lawyer was always to place the correct facts before the judges and to help them to arrive at the truth. He condemned the lawyers, who fleece the clients. His sayings embody high legal ethics and he followed them scrupulously. The Bar can only ignore his advice at its own peril.

The Gandhian philosophy of law centres in his abiding faith in the individual and his self-realisation through service. But the State has done lip service to his principles and tried all these twenty years to build up the social structure from the top making the individual a cog in the machinery of the State. Gandhiji has become another God and his philosophy has become another Ism. His name is invoked but his voice is ignored. It is hoped that one day having learnt the lessons by the hard way, we will go back to him in search of truth.

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