Gandhian Thought on

Law and Justice: A

Reappraisal in 21st
Century
Dr. Richa R Mulchandani
Gujarat National Law University,
Gandhinagar India
 Aim of the Presentation

• This work is an attempt to identify principles

of law and justice which Mahatma Gandhi
practised learnt and observed during his life.
 Outline…..
• Mahatma Gandhi’s Early Life, Popularity and
lessons of morality
• Journey to South Africa and Practice of Law and
development of principles of legal profession
• Political Movement against Injustice and
Discrimination
• Gandhi’s legal Ideologies and analogy with
natural school of law
and
• Its relevance in 21st Century
 Why Gandhi?
• What is the point to understand about his
thought on law and Justice?
• Why he was so popular
• Or just is that we are celebrating 150 years of
his birth?
• https://www.youtube.com/watch?v=P6njRwz
_dMw
• Gandhi is known more for his moral politics,
political –economic ideas,
• Known as political and social activities in South
Africa and as great Indian nationalist
• Indian’s independent struggle against the British
Rule remains incomplete without discussing the
role of Gandhi
• Gandhi was true visionary and inspired many
movements but professionally he was a trained
lawyer and his skills of advocacy and drafting
played tremendous role in his public work in
South Africa and India
• He practiced law for 20 years in South Africa and
this side of his personality remains less explored
and studied from legal perspective
Born on 2 October 1869 in a Baniya family of
Porbandar, Kathiyawar, British India
Legal Education in Inner Temple
 Legal Education in London
• At that time Degree of law was three years
course and easy to pass
• Exams were held 4 times in year
• Students have to study Roman Law and
Common Law both
• Gandhi cleared his all Exams in first attempt
awarded degree on 10 June 1891 and sailed
very next day to India
 Is the degree of Law is sufficient to
understand Practice of Law?
• Felt helpless and feared –
• It was easy to be at Bar but practice at Bar
was not cup of tea
• 2 major difficulties
1. Application of Legal Maxims in profession
2. No knowledge of British Indian Laws
 Gandhi’s Career As Lawyer

Successful or
unsuccessful
as Lawyer?
Struggled to set good practise in India
• He did not make much progress in the
profession in early days of his career.
• He passed Bar examination but had no
knowledge of Indian Laws and law of
Evidence
• Not a good mooter
 Another difficulty..
• Sir Pherozdhah Mehta,
Leading Lawyer , Social
and Political Activist of
that time
• He use to roared like a
lion in court and law of
evidence was on his
finger tips
 Young Gandhi was extremely
unconfident
It was out of the question for me ever to
acquire his legal acumen, but I had serious
misgivings as to whether I should be able even
to earn a living by the profession.
Meeting with Mr. Frederick Pincutt
and tips to become good lawyer
 His advise …
• 'Do you think,' he said, 'that everyone must be
a Pherozeshah Mehta? Pherozeshah and
Badruddins are rare. Rest assured it takes no
unusual skill to be an ordinary lawyer. (L& L,
p31)
• Four things are enough to make his living as
lawyer
Thus the first lesson come to become
good lawyer
1 &2
Common honesty and industry
3
Knowledge of world and
4
Understanding on Human Nature
 However …
• Failed to maintain livelihood and dropped his
practice in Bombay within 6 month
• Practiced Drafting Memorial at Rajkot
• Unhappy as he had to give commission to get
cases
• 300 Rs a month
But it was just beginning…
Destiny’s Call to Coolie Barrister
 Pretoria- beginning of new breath in
his career
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
What this case was about?
.
 Brief information as how Gandhi
received this opportunity
Dada Abdulla was business man in South Africa during
the last decade of nineteenth century.
He was domicile of Porbandar.
One of his business partners had done some fraud in
dealings.
So he put a case in court of Pretoria.
But all dealing had done in Gujrati language.
So the English advocate did not understand to
correspondences.
So they wanted a helper who have knowledge of Gujrati
and have some knowledge of law also. Mahatma Gandhi
was selected by his Indian partner
My first case in my words
I took the keenest interest in the
case. Indeed I threw myself into it.
I read all the papers pertaining to
the transactions. My client was a
man of great ability and reposed
absolute confidence in me, and
this rendered my work easy. I
made a fair study of bookkeeping.
My capacity for translation was
improved by having to translate
the correspondence, which was for
the most part in Gujarati
 In Gandhi’s words….
• The preparation of the case was my primary
interest. Reading of law and looking up law
cases, when necessary, had always a prior
claim on my time. As a result, I acquired such
a grasp of the facts of the case as perhaps was
not possessed even by the parties themselves,
in as much as I had with me the papers of
both the parties.
• 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.
 Second lesson
• His case taught him
soft skill of being quick
and apt in reasoning as
any lawyers trained
mind has to be …
REALIZATION OF PARAMOUNT IMPORTANCE
OF FACTS
• facts are three-fourths of the law

• Gandhi, I
have learnt one thing,
and it is this, that if we take
care of the facts of a case, the
law will take care of itself
 Is the truth is so important in Law
practice?
• Facts mean truth, and
• once we adhere to truth, the law comes to our
aid naturally.
• I saw that the facts of Dada Abdulla's case made
it very strong indeed, and that the law was bound
to be on his side.
• But I also saw that the litigation, if it were
persisted in, would ruin the plaintiff and the
defendant who were relatives and both belonged
to the same city. No one knew how long the case
might go on.
 Can Arbitration be suggested?
• Advised both the parties for arbitration and its
benefits.
• The case was argued before Arbitration and Dada
Abdulla (Gandhi’s Client) won.
• But that did not satisfy Gandhi my client were to
seek immediate execution of the award, it would
be impossible for Tyeb Sheth to meet the whole
of the awarded amount, and there was an
unwritten law among the Porbandar Memans
living in South Africa that death should be
preferred to bankruptcy
How Gandhi dealt with his first case…

• Follow the path of Truth

• Use the mode of Arbitration

• Out come of the Case Humanity shall
prevail
 All three lessons from Pretoria
• Truth : Facts means truth and once we adhere
to truth the law comes to our aid naturally
Arbitration: An advocate was not to exploit
legal and adversary advantages but to
promote compromise and reconciliation.
Humanity: I had learnt the true practice of
law. I had learnt to find out the better side of
human nature and to enter men's hearts. I
realized that the true function of a lawyer was
to unite parties
 The lesson was so
permanently 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. I lost nothing
"thereby — not even
money, certainly not my
soul.
Some Reminiscence of Bar in South
Africa
But what was the Major thought which
run around his practice in ZA
• He never sold the truth to serve the interest
of his client and practiced law without
compromising the truth
• His principle was put to the test many a time
in South Africa : Gandhi Said In my heart of
hearts I always wished that I should win only
if my client's case was right
Were there other experience
and lessons too?
 Two Narrations

1. Once Gandhi Received the

comment by judge of Sharp
Practice
2. And difficulties to save one
client
 Allegation of Sharp Practice
• There was one case which proved a severe trial. It
was brought to him by one of his best clients. It
was a case of highly complicated accounts and
had been a prolonged one.
• The award was entirely in favour of his client,
but the arbitrators had inadvertently committed
an error in calculation which, however small, was
serious, inasmuch as an entry which ought to
have been on the debit side was made on the
credit side.
our client was not bound to admit it.

we ought to admit the e

we ought to admit the eRROR

BETTER YOU ARGUE THEN

we ought to admit the e

Alright , I do not have the problem

While submission Judge commented him for Sharp Practice which
pinched Gandhi
he justified his wrong with truth and got sentence in his favor
later the same judge appreciated Gandhi for honesty
So know what virtues actually Gandhi
followed while practicing ?
• Four pillar …..
• Knowing the fact
• Being truthful
• Power of persuasion
• Frankness
 Thought on Justice

• Gandhi’s thought on Justice more rooted with

the injustice and misery which was prevail
during his life time
• Indian were settled 30 years before arrival of
Gandhi in South Africa
• They basically came as laborer and usually
worked in mine, sugar factories and farms
 Types of Indian communities in SA
• Muslim Merchants- Arabs
• Hindu and Parsi accountants –Clerks
• Parsi preferred to call themselves Persian
• Tamilians called swami or Collies
• Indian converted Christian
 How he became Activist in SA

• Gandhi was prepared to return to

India after his first case. And a
farewell was orgnised by Shaikh,
Abdulla at his home in Grey
Street in Durban.
I was turning over the sheets of some of
the newspapers I found there, I chanced
to see a paragraph in a corner of one of
them under the caption 'Indian
Franchise'.

the Bill then before the House of

Legislature, which sought to deprive the
Indians of their right to elect members
of the Natal Legislative Assembly.
 Indian in South Africa
were unaware about their political
rights and
how passing of such bill may harm
their general interest
 Was that a farewell party anymore?
As an outcome of Gandhi’s intervention
Farewell party turned into working committee
to campaign against the Bill.
Gandhi was requested not to go and take lead
and fight for this cause:
Thus God laid the foundations of my life in
South Africa and sowed the seed of the fight
for national self- respect.
 Did Indian succeed in Franchise Bill?
• No Even After so many efforts the bill was
passed and the Indians were removed from
the voters list of legislative Assembly

• However this campaign United Indians and led

the Establishment of Natal Indian Congress
(1894) to fight against unjust and
discrimination.
Natal Indian Congress
Indian Opinion was a newspaper to fight racial
discrimination and win civil rights for the Indian immigrant
community in South Africa. It existed between 1903 and
 Passive Resistance Movement?
• A Method evolved by Gandhi to fight injustice
and struggle against various political measures
which he deemed to be degrading and
discriminating

• Conception + Organisation + Management

• Method employed peaceful measures to
protest
 First Major Movement of Satyagrah-
Truth Force
• Transvaal Asiatic Law Amendment Ordinance
of 29/1906, requiring all male Asians in the
Transvaal to be fingerprinted and carry a form
of pass, including children over the age of
eight.
• Not only that in registration identification
marks were to be noted including that of
woman and children
• Transvaal Asiatic Law Amendment Act 2/1907
• Transvaal Immigration Restriction Act 1907
• Immigration Registration Act imposed tax of
£3 on ex-indentured Indians and because the
state refused to recognize Hindu and Muslim
marriages.
 Gandhi In India
• In India also he continued to fight against
discriminatory and unjust policies of British
Rule and social practices
• Non-cooperation is directed not against men
but against measures. It is not directed
against the Governors, but against the
system they administer. The roots of non-
cooperation lies not in hatred but in justice if
not in love.
• Entire Life of the Gandhi was devoted in the
service of mankind and to fight against injustice
and discriminative practices
• Nonviolence was key to his all satyagra as he
beloved
• Peace will not come out of a clash of arms but
out of justice lived and done by unarmed
nations in the face of odd
• https://www.youtube.com/watch?v=ElixqbRw4g4
Which School of Law Gandhi Belong?

Natural School of Law

And never ignored the theory
of positive Law
CLASSICAL PERIOD , GREEK AND ROMAN JURIST

• Gandhi

Reasoned and
willing
obedience to
the laws of
the State is
the first
lesson in non-
co-operation.
MIDDLE AGES and Gandhian
Thought on Justice
St. Thomas Aquinas
• Emphasis placed on Religion
and Faith
• Unjust Law Deserve no
obedience
Gandhi
• I am not anti-English, I am
not anti-British, I am not
anti-any Government, but I
am anti-untruth, and anti-
injustice.
• Early life reading of religion
to establish his reasoning
based on scripture
 Gandhian Natural Law Practitioner
architect of the law of non violence
• All men are born equal and free" is not
Nature's law in the literal sense?

• Movement against un-touchability

• Equal status to women
• Theory of Nonviolence: to maintain peaceful
coexistence nonviolence as a mean to attend
justice and peace for all
 Doest it really relevant in 21st century
Pulwama attack

•
Cameroon in instability
 21st Century yes we developed we
progressed a lot ……
Don’t we have wars now?
Don’t we have civil unrest ?
Don’t we have terrorism?
Don’t we have crime against women and children?
Don’t we have injustice and discrimination
Religious discrimination Gender Discrimination
Racial Discrimination
Violence in thought and then violence in action
“Peace will not come out of a clash of arms but
out of justice lived and done by unarmed
nations in the face of odd”

Mahatma Gandhi (1958). “Collected Works”

https://www.youtube.com/watc
h?v=nAbarXjmAwc
THANK YOU