Prashant Bhushan and the Gandhian Response to an 'Illegitimate Law'

By evoking Gandhi in the Supreme Court's contempt proceedings, the lawyer has contextualised the need to 'test' all laws to see if they further the quest for justice instead of simply being etched in stone.

By paraphrasing one of Gandhi’s statements, Prashant Bhushan has raised an important point in the domain of jurisprudence that is worth serious engagement. The statement Bhushan paraphrased, after all, was not mere rhetoric employed by Gandhi when he made it 98 years ago (on March 10, 1922, before Broomfield, then a trial court judge in Ahmedabad). It makes ample sense to delve into its import in the field of the theory of law, which indeed was the case in Gandhi’s own times as much as it is now and for all times to come.

At its core is the quest for justice and that the law, at any given point in time, ought to be tested for its efficacy to further justice rather than as etched in stone. This indeed led Gandhi, ever since he began his experiments in South Africa, to interrogate all existing laws through such a test and in this course, Gandhi began classifying laws as legitimate and illegitimate. Also important here is to stress that this was not an academic pursuit for Gandhi, who was a trained lawyer; it was instead a quest in pursuit of a political praxis.

Gandhi’s first ever engagement with the colonial administration in Champaran showed evidence of this. Following his arrival at Motihari on April 15, 1917, Gandhi set out the next day, perched atop an elephant, to Jasaulipatti; just then, he was ordered to leave the district ‘by the next available train’. The order issued by the district magistrate, W.B.Weycock said:

“Your presence in any part of the district will endanger the public peace and may lead to serious disturbance which may be accompanied by loss of life and whereas urgency is of the utmost importance; now, therefore, I do hereby order you to abstain from remaining in the district, which you are required to leave by the next available train.”

Also Read: Celebrating the Champaran Satyagraha, a Hundred Years On

Gandhi’s instant response to the magistrate’s order was that he did not propose to comply with it and leave Champaran till his inquiry is finished. Summons were then issued for him to appear before the magistrate, the following day (April 18, 1917); without mincing words, Gandhi pleaded guilty of having defied the law and made it clear that this was ‘not in any way in extenuation of the penalty to be awarded… but to show that I have disregarded the order… not for want of respect for lawful authority, but in obedience to the higher law of our being, the voice of conscience’ (emphasis added).

Gandhi in 1918, at the time of the Champaran Satyagraha. Photo: Wikimedia Commons/By Unknown author, Public Domain

Three core precepts

The trial proceeded and after the formalities, Gandhi stood acquitted on April 21, 1917. Neither Gandhi nor his comrades there (Rajkumar Shukla, Babu Rajendra Prasad, Babu Gorakh Prasad, etc.,) were conscious, then, that history was being made that day and that they were involved in the making of history. Champaran, after all, was a moment from when the struggle for independence came to be premised on three core precepts:

  • Satyagraha (distinct from passive resistance, which Gandhi had explained earlier in South Africa);
  • All laws are not necessarily legitimate; and
  • It was one’s duty (rather than merely one’s right) not to cooperate with illegitimate laws.

These precepts, if one may call them that, were certainly formulated by Gandhi in his struggle in South Africa. But the important point is that these came to guide India’s struggle for freedom since Champaran. As for instance, on arrival at Muzaffarpur on April 11, 1917, and after meeting advocates Brajkishore Prasad and Rajendra Prasad (also prominent Congressmen then), Gandhi was firm that the path was to be disobedience-of-the-law rather than contestations-of-the-law in the courts.

Also Read: Contempt, the Press and the Judiciary: A Tale from Another Time

It will be pertinent to recall extracts from the Police Intelligence Reports from Bihar and Orissa by the Bombay Police:

“M.K.Gandhi’s recent doings in Bihar have been given great prominence here, apparently at his own express desire… it appears to be a revival of his old “passive resistance” game with improved methods in the publicity department…  Gandhi supplied the local press here – and probably many other papers elsewhere – with a copy of his statement before the court on the 18th April. He evidently intended the sentiments expressed in it to gain the widest publicity… With the usual accompaniments of lip-loyalty and the profession of and eager (but un-fulfilled) desire to submit to authority, it is a subtle method of inculcating the doctrine that disobedience of official orders is quite justified if the individual thinks he knows better or he believes he is working in a patriotic cause… (emphasis added).”

That the objective behind Gandhi’s decision to resist the law rather than argue his case from within the four corners of the law and render relief was, thus, clear to the colonial police as well as to Gandhi himself. The terms of the settlement in Champaran, in April-May 1918, almost a year since Gandhi’s arrival there, establishes this. After the Champaran Agrarian Act, abolishing the tinkathia system among many things, received the governor general’s assent on May 1, 1918, Gandhi said:

The tinkathia system which had been in existence for about a century was thus abolished and with it the planters’ raj came to an end. The ryots, who had all along remained crushed, now somewhat came to their own, and the superstition that the stain of indigo could never be washed out was exploded. (emphasis added).

Babu Rajendra Prasad, recalls this statement and its importance to explain why Champaran was not just an event but should be looked at as achieving freedom from fear. In his autobiography, written in 1943 and with the benefit of hindsight as much as with a historian’s perspective (as Benedetto Croce explained history), Prasad writes:

What the Commission offered to the ryots was far less than their demands. But the main achievement of the year-long agitation lay in this: the planters lost their foothold in Champaran. They had been rendered too weak to be tyrannical or even aggressive. Profits were impossible for them except through coercion’ and with the changed temper of the ryots, force was a useless weapon. The ryots had become courageous and conscious of their power… We saw in Champaran on a smaller scale Gandhiji’s satyagraha which he later organized through the length and breadth of the country (emphasis added).

Champaran was not just an event but should be looked at as achieving freedom from fear. Photo: Pixabay

A rupture in the chronicle of events

In other words, the significance of Champaran as a moment of rupture in the chronicle of events involving India’s history and the movement for independence lies in the fact that there is a continuity since then, connecting Champaran to the Rowlatt Satyagraha; the Rowlatt Satyagraha to the non-cooperation movement through the Civil Disobedience Movement and the Quit India resolution and the birth of the nation.

Meanwhile, these are also connected with the Lahore session of the Indian National Congress (1929), the Karachi session (March 1931), the making of the constitution and its evolution subsequently through the various amendments and the several stages when the constitution, particularly the Fundamental Rights and the Directive Principles of State Policy were harmoniously interpreted by the Supreme Court and the enunciation in its course of the Basic Structure Doctrine.

The precepts put out by Gandhi in Champaran – Satyagraha, illegitimate law and the duty to resist those laws considered illegitimate – were put to use in a national scale in the protest against the legislations in the Imperial Council based on the Rowlatt Committee’s recommendations. Known in our history as the Rowlatt Act, the two Bills granted Emergency powers to the Government of India to deal with ‘political violence’. The provisions, as existed in times of the War, were to be made available even after the War and Gandhi held it a threat to civil liberties as did Indian representatives in the Imperial Council. The laws were enacted in February 1919 despite opposition from the stakeholders.

The satyagraha pledge Gandhi drafted, though very brief, explained the principle:

“Being conscientiously of the opinion that the Bills … are unjust, subversive of the principle of liberty and justice, and destructive of the elementary rights of the individuals on which the safety of the community as a whole and the State itself is based, we solemnly affirm that, in the event of these Bills becoming law and until they are withdrawn, we shall refuse civilly to obey these laws…”

Gandhi and Mahadev Desai. Photo: Wikimedia Commons/Public Domain

It is interesting to note here in this context that Gandhi did not wait for a critical mass of support to his agenda before setting out on the decision to launch the Rowlatt Satyagraha. Nor did he lean on the Indian National Congress for this. The decision, in fact, was taken after discussing the issue with a small band of 20 odd persons who gathered at the Sabarmati ashram. It is apt to quote Mahadev Desai, by now Gandhi’s chronicler, to capture this. Desai’s diary entry on February 24, 1919 reads as follows:

A War Conference to consider the ways and means of offering Satyagraha against the Rowlatt Bills was held at the Ashram last night. About 20 persons from outside also attended. Among them were Mrs. Sarojini Naidu, Messrs. Horniman, Oomer Sobani, Sankarlal Banker, Vallabhai Patel and Indulal Yagnik. A long discussion took place. Bapu warned them all very seriously of the grave dangers to which they would expose themselves if they offered Satyagraha. But all of them were prepared and eager to offer it, come what might… (emphasis added)

It is important here to note the choice of Desai’s words to describe a meeting of some two dozen persons, none of them having claims to command a mass following at that point in time, as a ‘War Conference’; it certainly should sound audacious, particularly when it was written the day after and at least 28 years before India’s independence was even thought of! But then, Desai was right. Gandhi with some two dozen persons around him, seemed to have dared to sound the bugle for a battle.

Also Read: A Second Black Act, a Second Non-Cooperation: Will a Second Repeal Follow?

Satyagraha, illegitimate laws and resistance

Gandhi elaborated on the three core principles – satyagraha or truth, illegitimate laws and resistance as a duty. In a letter to C.F. Andrews the very next day of the ‘War Conference’, Gandhi wrote:

We met yesterday at the Ashram. It was a good meeting. The desire was to take the plunge even if we were only a few. The last word rested with me. I felt the cause was true. Was I to forsake them? I could not do so and remain true to myself. You know the result… (emphasis added)

It may be stressed here that Gandhi’s central concern was that where he felt the cause was true, he could not remain true to himself and yet desist from acting, an idea that was central to the statement he gave before the magistrate at Motihari on April 18, 1917.

Gandhi persisted with engaging with fellow travellers and this indeed is central to his praxis. There is a lot more evidence of this in his campaign against the Rowlatt Act preceding the actual Satyagraha. And he set out on a campaign tour across the country and those were not a mere exercise in demagogy for him.

Instead, he chose to interact and engage with the public workers in various places. For instance, in Tanjore on March 24, 1919, during a tour of the Madras presidency between March 18 and 30, 1919, Gandhi made clear what he perceived as illegitimate laws. Asked by a prospective volunteer why he chose the Rowlatt Acts and pointed out categorically that ‘They will never apply the Acts against men of your type?’ Gandhi replied:

When the Government does some wicked action I should not sit on the fence and desist from opposing the Government under the excuse that particular action is not going to affect me personally.

And then he went on to specifically identify other laws that were illegitimate in his view. It is remarkable then, that he mentioned the law proscribing literature, the law of registration of newspapers and the salt tax in that order. Answering a question as to which other laws may be taken up for defiance, Gandhi said:

I have selected some laws of a character… First of all I am going to tackle the question of proscribed literature. The Government has foolishly confiscated some good books. I have resolved to spread and distribute that kind of banned literature which appears to me quite clean from the Satyagrahi point of view. The second law I have in mind is the law of the registration of newspapers. This Press Act is one of the blackest Acts in the Statute-book. It has enervated the journalists and the whole country… The Salt Tax and Revenue Act are also in my mind. We have committed a heinous sin against the nation. I feel by our meek submission to the Salt Tax. We would have long revolted against it, if we had not been a down-trodden people. (emphasis added)

It may be stressed here that Gandhi held out that submitting to an illegitimate law is a sin and this, indeed, is a theme he stresses since Champaran and through the struggle for freedom as well as when he held, repeatedly, that untouchability was a sin. It is important that Gandhi had outlined the contours of the Salt Satyagraha, which he actually launched on March 12, 1930, as early as March 24, 1919 and even explained it to volunteers.

Gandhi leads the famous Salt Satyagraha. Photo: Wikimedia Commons/Public Domain

The campaign preceding the Rowlatt Satyagraha, which as an event did not last as long and culminated in the massacre at Jallianwala Bagh, was where Gandhi’s precepts were unravelled with much clarity. “Passive Resistance”, he clarified, “is simply a political weapon to be used when circumstances warrant, while satyagraha is woven into the very fabric of our everyday life also.” In the same way, Gandhi’s approach to what constituted illegitimate law and its distinction with legitimate law was put forth at that time.  He said:

“…Now, there are laws and laws. Some are based on external moral principles. I, may, of course, always respect such laws. But there are others which have no bearing on moral conduct, and which are made only for the facility of the state. I may break the laws of this second type, even though they may be very helpful to the state, because it is through them that the state is imposing its rule over me.”  (emphasis added)

That the quest for ‘truth’ and ‘justice’ derived out of this truth, which in essence was the concept of satyagraha (as distinct from passive resistance) was reiterated by Gandhi (in the same way as he told the magistrate in Motihari on April 18, 1917) in all subsequent movements that he launched – the Non-Cooperation Movement, the Civil Disobedience Movement and the Quit India Struggle – which were landmarks in the struggle for independence.

Also Read: What Should Those in Politics Do in Times of Powerlessness?

However, the high point of Gandhi’s confrontation with laws he considered illegitimate and the imperative for resisting it involved a series of three articles he wrote in his own Young India between September 29, 1921, and February 23, 1922, for which he was prosecuted (the last occasion when the colonial rulers chose this path to jail him, because Gandhi was jailed in all subsequent occasions without trial) under Section 124 A of the Indian Penal Code, for sedition. Appearing before Judge Broomfield on March 10, 1922, Gandhi said:

“I am here, therefore to invite and submit to the highest penalty for what, in law, is a deliberate crime and what appears to me to be the highest duty of a citizen. The only course open to you, Mr. Judge, is to either resign your post or inflict on me the severest penalty, if you believe that the system and law you are assisting are good for the people.” (emphasis added)

Recalling these from our own history could be of help in locating the text and the context in another time, which indeed is the purpose that history serves. It is hence relevant in the context of August 20, 2020, and could be a useful tool to read the text of Bhushan’s statement before the Supreme Court.

V. Krishna Ananth is a professor of history at Sikkim University and the author of India Since Independence: Making Sense of Indian Politics. This essay is based on research for an upcoming book on media and the right to freedom.