Law and lawyers

The Law and The Lawyers

The Law and The Lawyers

By: M. K. Gandhi

Compiled and Edited by: S. B. Kher First Published : October 1962 Price: Rs. 40/-

Printed & Published by: Navajivan Publishing House Ahmedabad 380 014 (INDIA) Phone: +91-79-27540635/27542634

Fax: +91-79-27541329 E-mail: jtndrnavajivan@

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The Law and The Lawyers

INTRODUCTION

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 fellowcountrymen. 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.



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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



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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



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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 crossexaminer, 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



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