Gandhi`s critique of the Indian Legal System
From his early days Gandhi wanted to be a Lawyer.He practisied law for 20 years. His profession as a Lawyer made him realize that fighting whether in Court of Law or even outside is not an answer. Therefore, he gave up his law practise and devouted his life for the welfare of society and for peaceful resolution of disputes.
Gandhi was never a typical lawyer who liked to argue and fight. This can be mainly attributed to four reasons. The first reason being that he was strongly influenced by the Indian Culture and its main tenets such as Ahimsa, Satya, Asteya, Brahmacharya, Aparigraha, Tapas.
The second reason being that he didnt have enough knowledge of the legal field and also did not have enough skills required to practice as a lawyer. By his own admission Gandhi states that rather than obtaining his education in a systematic way he had obtained his law degree by a short cut method in London. Gandhi was an admirer of lawyers like Shri Phirozshah Mehta, Shri Gokhale, Shri Tilak, and Justice Ranade. But he admitted that he did not have refined thoughts, articulation and skills and could not be like them. Thirdly, in his first job in South Africa he pursuaded a settlement between parties which convinced him that amicable settlement is the best way to resolve disputes. Most likely it made him confident that if he could do amicable settlement once then he could always help parties to resolve their conflicts peacefully. Fourthly,over the years he learnt to rely purely on facts to argue his case. He had learnt that facts mean truth and once the facts are put in order the Truth is automatically reached.
As mentioned above Gandhis philosophy was rooted in the ancient Indian Culture and this influenced his entire life. He believed in practising Satya and Ahimsa as advised in the Indian scriptures. Amongst others, the ancient Indian Philosophy teaches the two main moral principles of Satya and Ahimsa that always go together and should never be separated. The Indian philosophy forbade violence in thought, word and deed because it reduces the power of Truth. For Gandhi Truth was God and non-violence was the means to achieve God.For him, Satyagraha was the agraha of Satya which means persuasion of Truth. Gandhi said that Satya and Ahimsa are his two lungs and he can’t live without them. He said that he is not teaching anything new. Truth and Non-Violence were as old as the hills. He mainly believed in the subtle power of love which he called the Spirit power.
Gandhi applied the tenets of Indian Philosophy in his law practice. He believed in the persuasion of Truth and yet compromising and granting concessions to the opponent lest the opponent becomes more evil. He believed in winning the opponent over rather than winning over the opponent by bringing about a change of heart and a complete transformation of his attitude. He had faith in the power of love. According to Gandhi a conflict is resolved when all parties are satisfied with the outcome. He said that through his experience he had learnt to find the better side of human nature and appeal to reason and conscience of the opponent. He said that it should never be the intention to embarrass or humiliate the opponent. In one of the first cases handled by Gandhi that happened to be a big case in terms of money while he was at South Africa, Gandhi managed to convince the parties to appoint an arbitrator. After his employer got a favourable award from the arbitrator, he convinced his employer to save the reputation of the opposite party by giving them concessions in repayment of money.
He said that if you want justice then you should do justice to the other side. To do justice to the other side may be interpreted to mean to respect and appreciate the views of the other side. This we can attempt to understand in terms of Anekantavada and Syadavada, the Jaina concepts that Gandhi believed in. As per Anekantavada, for mortal beings like us no Truth is absolute, at best we view partial truths. The doctrine is known as the doctrine of many sidedness. A truth can be viewed from many points and will have many aspects and language can never convey the proper truth. While Buddha always believed in balance between is and not is, Mahavira advocated the Syadavad theory of Maybe It Is Maybe It Is not. The ancient philosophies basically teach us to not take extreme positions but to be reasonable and understand the opponent and ourselves and work out the alternatives. He believed in Equality in theory and practice because Equality means Fairness and Fairness means Justice.
Gandhi’s Method in Legal Practice mainly included the principles of Ancient Indian Philosophy and apply them to all spheres of life. As a lawyer, within Courts and outside Courts his method was not of aggression, heat and passion but of reason, love, patience. Gandhi said that though he enjoyed playing the game of chess for a brief time, the moves were restricted to the board only. His method was flexible and not rigid.
After he came back to India he handled many litigation cases but made sure that he is handling genuine cases of of persons who are truthful and who have not done wrong. Because of Gandhi’s such a reputation of taking genuine cases, only truthful clients came to him. This further strengthened Gandhi’s reputation of a Lawyer fighting for Truth. There were incidents where his clients lied to him about being truthful and therefore he always made it clear to everyone that his duty was first towards Truth and and then towards his clients.
Gandhi did not enjoy litigation. He preferred settlement between the parties rather than litigation. He encouraged the parties to settle their disputes amicably preferably by themselves or even through their relatives. He himself settled the disputes between litigating parties and believed that the role of lawyers is to assist the parties in settling disputes. As a Lawyer, he believed that the function of lawyers is to stop litigation and unite the parties driven asunder.
According to Gandhi, ” Fighting in a law court is just like physical fighting. Only, you use force by proxy.” He said that to use force against a party who has wronged you is a sign of moral bankruptcy. Nobody can know the facts as well as the parties know the facts and therefore it becomes necessary for parties to sit across the table and resolve the dispute themselves.The parties alone know who is right. Gandhi says, “We, in our simplicity and ignorance, imagine that a stranger, by taking our money, gives us justice.”
He was of the view that courts not necessarily guaranteed justice. To quote, “If people were to settle their own quarrels, a third party would not be able to exercise any authority over them. Truly, men were less unmanly when they settled their disputes either by fighting or by asking their relatives to decide for them. They became more unmanly and cowardly when they resorted to the courts of law. It was certainly a sign of savagery when they settled their disputes by fighting. Is it any less so, if I ask a third party to decide, between you and me ? Surely, the decision of a third party is not always right.”
Gandhi says,” The symbol of a Court of Justice is a pair of scales held evenly by an impartial but sagacious woman. Fate has purposely made her blind, in order that she may not judge a person from his exterior but from his intrinsic worth”. He believed that, at times, the Courts did not judge on intrinsic worth but from exterior of the party.
According to Gandhi the Indians Courts are the most extravagant. Even challenging the laws is a cumbersome process.
Gandhi said that we cannot gain this desirable status of absolute equality in theory and practice, so long as we regard with superstitious awe and wonder the so called palaces of Justice.
The unhealthiness of approaching the courts in modern era was best explained by Gandhi.
For Gandhi litigation even amounted to a control mechanism. He said, “It is my confirmed belief that every government masks its brute force and maintains its control over the people through civil and criminal courts for it is cheaper, simpler and more honourable for a ruler that instead of his controlling the people through naked force, they themselves, lured into slavery through courts, etc., submit to him of their own accord. If people settle their civil disputes among themselves and the lawyers, unmindful of self-interest, boycott the courts in the interest of the people, the latter can advance in no time. I have believed for many years that every State tries to perpetuate its power through lawyers.” Gandhi said that Lawyers must be the first ones to not co-operate with unjust laws.We can interpret Gandhi’s statement to mean that Lawyers should be the first ones to not not co-oprate with unjust laws because they understand laws best.
He found the whole process of charging of exhorbitant fees and the legal system as such sinful. Justice or Peace are difficult to be found where Gandhi believed the longest purse has more chances of winning. He says legal practice is not and ought not to be a speculative business.
According to Gandhi one must not co-operate with unjust laws.However, only those who obey the laws can assert their disobedience to unjust laws.
Gandhi was never comfortable with the lawyers profession known as liars profession where black can be converted into white and vice versa, where the lawyer made efforts to prove the guilty as innocent, where touts had to be paid commission for briefs and where the force of policemen and jailers had to be used for enforcing decrees of court. He spent twenty years of his practise in bringing about compromises in which he said he lost nothing, certainly not his soul. Gandhi wanted to spiritualize the legal practice.He was disgusted with the profession and gave up legal practice to devout his life for society.He believed that one should not do part time social service but full time social service.
Gandhi was of the view that nothing much is going to change if the British style is going to be followed by Indians. He says, ” This Government, if it was wholly manned by Indians but worked as it now is, would be as intolerable to us as it is now.” With respect to the Law and Law Courts, he says, ” He says, “we must do away with the British connection”
During the laying of stone and inaugural of the Alternate Dispute Resolution Centre in Mumbai on 04 November 2017, the then Chief Justice of India, Justice Dipak Mishra encouraged the lawyers and advised, “Great leaders like Mahatma Gandhi and Abraham Lincoln, who were lawyers first, advocated and supported the culture of settlement. They advised people to settle instead of litigating. Everybody must believe in the culture of settlement. His method proved effective.” This is because Gandhi has been the greatest authority on conflict resolution.He successfully resolved conflicts not only at interpersonal level but also at national and international level and he was generally against parties going to court. Gandhi’s methods of bringing about peace have been emulated by Martin King Luther Jr, Nelson Mandela and even His Holiness The Dalai Lama to name a few because it has been almost impossible to defy Gandhi’s logic on resolution of conflicts through peaceful means.
Gandhi worked to reconcile differences in an atmosphere where each tries to see the other’s point of view, where the parties ideally become friends.Gandhi had understood to close conflicts. Gandhi said, ” No man can look upon another as his enemy, unless he became his own enemy.” Dalai Lama also echoes the same statement when he says that when we are in conflict with someone else, first we are in conflict with ourselves.
With the increase in litigation now the judiciary itself is encouraging amicable settlement of duties by the parties.
It is time to break the old patterns of measuring the success of the lawyers from the number of litigations handled by him and bring in reform in the system of recognition by appreciating the number of cases where the lawyer has acted to resolve the issues. The new demand of the profession is lawyers as peacemakers and not lawyers as creating strife. Even as lawyers, the first duty of the lawyer is towards the Court and towards the Truth. As duty towards Court we may say that it is the duty of a lawyer to not create strife and burden the courts. As duty towards Truth we may say that the greatest Truth is God and God is Peace. As stated by Gandhi, it is only secondary duty of the lawyer to be employed by the client for a little money.
Gandhi said nothing much is going to change if the Indians rule but continue to be just like British. On 02 October 2018 this same opinion is voiced by V Kalyanam, 96, who was the personal assistant to Mahatma Gandhi. Shri V Kalyanam said, “I would prefer a British rule to the present one,.
Gandhis understanding on the non effectiveness of going through the Court is also practically understood by most Indians today. The system has failed us and people make a conscious choice of not going to courts but resorting to naming and shaming on social media. While this may not be the ideal way it surely saves the person the time, energy and money which is spent in litigating in Courts. Nevertheless, the social media is an effective instrument if we stick to Gandhian Principles of Truth and Non-Violence.
Gandhi’s loss of faith in the Legal System, the working of the Judiciary in British style and the doubt about the capacity of Judges to do justice or understand the issues at hand is also echoed by many lawyers and citizens in recent times. Lawyers and citizens express their dissatisfaction over the judgements given by judges. In recent times, lawyers and citizens have protested against Judiciary running the country. Lawyers are not happy with the black and white uniform to be worn in Indian Courts that are carried forward from the British tradition and being totally unsuitable for the hot Indian climate. Lawyers have expressed about the unfairness in the selection process of the Judges .Infact, the judges have also protested before the media against other judges.
Gandhi’s belief about Indian Courts being extravagant stands true even today. A litigant has to pay stamp duty on documents if they are to be admissable in Courts. Then there is Court Fees. Then there is Lawyers Fees.A litigant has to spend time on the cases, there are adjournments after adjournmens, people from small villages have to spend on travel to cities because the final Courts from which they are expecting Justice are situated in cities. As such approaching the Indian Courts is a luxury and the poor cant even thinking of approaching the Indian Courts. Gandhi had rightly said that the Legal System is not a workable option. The Indian Lawyers and citizens are even scared to speak or protest against the Indian Judiciary for the fear of being charged with Contempt of Court.
Gandhi’s message regarding the working of the Legal System are almost like scriptures which held true 50 years back, hold true in present and will hold true in future if nothing changes.
Gandhi’s life itself is a message of transformation. He aspired to be a suit clad British style argumentative Lawyer and turned out to be a Dhoti clad peacemaking reformer. If we analyse Gandhi’s life we get to understand that not having something can itself be a strength. In Gandhis case not having skills of an argumentative Lawyer made him get in touch with his basic nature which was that of a peacemaker. He was honest with his nature and feelings. If you are honest with yourself then you can think correctly.
He also makes us realize the importance of closing conflicts because any kinds of conflicts, fights or litigation can lead to more conflicts both within and outside.
We also understand from big personalities like Gandhi is that if we are ready to let go small things then we achieve bigger things. It is better to think long term rather than giving into short term impulses.
He was a man of vast experience, refined reasoning and tremendous patience who inspired the possibility of change within and change outside through Peaceful and Non-Violent means.
Gandhi was a mortal being who was fallible. It is his deep thinking with the attitude of Peace and Non-Violence in thoughts, words and deeds which left behind an alternative and perhaps the best method to resolve disputes. Through his life he has taught us to keep an awareness of peace at all times.
References:
1. The Law and the Lawyers by M K Gandhi
2. Gokhale my Political Guru by M K Gandhi
3. Conflict Resolution and Gandhian Ethics