When Gandhi said no

Print edition : September 11, 2020

Mahatma Gandhi. Photo: Getty Images

In Re: Mohandas Karamchand Gandhi and Others, decided by a three-judge bench of the Bombay high court on March 12, 1920 (Coram: Amberson Barrington Marten, M.H.W. Hayward and A.M. Kajiji) has a lot of significance for contempt of court proceedings. In this case, Gandhi and Mahadev Haribhai Desai, editor and publisher of Young India, were arraigned as contemnors for publishing on August 6, 1919, a letter dated April 22, 1919 written by the District Judge of Ahmedabad (B.C. Kennedy) to the Registrar of Bombay High Court, with their comments. The gist of the charge was that the letter in question was a private official letter forming part of a pending case.

In his letter, Judge Kennedy submitted for the determination of the High Court the question of the lawyers of the Ahmedabad court who had signed the “Satyagraha Pledge” authored by Gandhi. The pledge, among other things, required the pleaders to refuse civilly to obey the Rowlatt Act, which was passed by the Imperial Legislative Council in Delhi on March 18, 1919, indefinitely extending the emergency measures of preventive indefinite detention, incarceration without trial and judicial review enacted in the Defence of India Act, 1915, during the First World War. It was the Rowlatt Act that brought Gandhi to the mainstream of Indian struggle for independence, and marked the beginning of the Gandhi era in Indian politics.

Kennedy’s letter prompted the High Court to issue notice to the Ahmedabad lawyers. In his comments on Kennedy’s letter, Gandhi wrote that Kennedy prejudged the issue, and made an impudent suggestion that the lawyers who took the pledge had committed a criminal breach of the law of the land. Gandhi concluded his article saying that “these traducers of civil resistance and civil resistors are becoming the instruments for propagating Bolshevism, that is, the spirit of lawlessness accompanied with violence, and that the Government of Burma, the Government of Punjab and the District Judge of Ahmedabad are all in their own way endeavouring forcibly to impose their will upon civil resisters, but that those who are trying to crush the spirit of civil resistance are but fanning the fire of Bolshevism”.

In his letter of October 22, 1919, to the High Court, Gandhi wrote: “In my humble opinion, I was within the rights of a journalist in publishing the letter in question and making comments thereon. I believed the letter to be of great public importance and one that called for public criticism.”

When the High Court Chief Justice asked Gandhi to publish an apology in the prescribed form, Gandhi refused to do so and stated that in publishing and commenting on the latter, he had performed a useful public duty at a time when there was great tension and when even the judiciary was being affected by the popular prejudice: but that he had no desire whatsoever to prejudge the issues which their Lordships had had to decide. Then, after referring to the honour of journalism and to his membership of the Bombay Bar and its traditions, Gandhi stated that in similar circumstances he would not act differently, and that he could not conscientiously offer any apology, and that, if that explanation was not considered sufficient, he would respectfully suffer the penalty.

Gandhi further stated: “I regret that I have not found it possible to accept the advice given by His Lordship the Chief Justice. Moreover, I have been unable to accept the advice because I do not consider that I have committed either a legal or a moral breach by publishing Mr. Kennedy’s letter or by commenting on the contents thereof. I am sure that this Honourable Court would not want me to tender an apology unless it be sincere and express regret for an action which I have held to be the privilege and duty of a journalist. I shall therefore cheerfully and respectfully accept the punishment that this Honourable Court may be pleased to impose upon me for the vindication of the majesty of law.” The publisher, Mahadeo Desai, the second contemnor, also offered to cheerfully and respectfully abide by any penalty that the court might be pleased to inflict on him.

After surveying the case law on the subject, the bench concluded that the publication of the letter by Gandhi was contempt of court, and that his comments on it were of intemperate and reprehensible character. “They prejudge the case and tend to undermine any decision which the High Court may come to at the trial”, the bench said, adding it amounted to “scurrilous abuse of the Judge as such”.

The bench reasoned that if tension and popular prejudice existed, as claimed by Gandhi, they would be increased rather than diminished by the abuse of the local judge, and that could not be the public duty of any good citizen.

In Paragraph 31, Judge Marten observed: “We have large powers and in appropriate cases can commit offenders to prison for such period as we think fit and can impose fines of such amount as we may judge right. But just as our powers are large, so ought to, I think, to use them with discretion and with moderation, remembering that the only object we have in view is to enforce the due administration of justice for the public benefit.”

Judge Hayward held that commenting on the letter amounted to “scandalising” Judge Kennedy. He also suggested that the respondents posed not as law-breakers but rather as passive resistors of the law. Therefore, he felt it would be sufficient to enunciate unmistakably the law in these matters, to severely reprimand them for their proceedings, and to warn them of the penalties imposable by the High Court.

 

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