Print edition : August 26, 2011

MARCH 12, 1930: Mahatma Gandhi at Bhimrad, Gujarat, during the salt satyagraha. - THE HINDU ARCHIVES

The motive of civil disobedience, whatever its type, does not confer immunity for law violation.

ON November 25, 1949, as the Constituent Assembly of India completed its task, the Chairman of its Drafting Committee, Dr B.R. Ambedkar, replied to the general debate and said, Here I could have ended. But my mind is so full of the future of our country that I feel I ought to take this occasion to give expression to some of my reflections. What followed was a sustained, deeply felt cri de coeur:

It is quite possible for this newborn democracy to retain its form but to give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater.

If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, noncooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us ( Constituent Assembly Debates, Vol. XI, page 978).

When he made these remarks, devoted followers of Gandhi were present in the House Jawaharlal Nehru and Vallabhbhai Patel, chiefly; but none contradicted him then or later. Gandhi's programme of civil disobedience or satyagraha was seldom free from violence. K.M. Munshi wrote of the participants in the Quit India Movement: Truth to tell, what they did was anybody's business. It was certainly not non-violent even at the start. There was extensive disruption of communications and destruction of public property ( Pilgrimage to Freedom, Vol. I, page 83).

The scholar Neeti Nair points out that the line between hunger fast as penance, self-purification, and a form of political protest was blurred by Gandhi himself. In Satyagraha in South Africa, Gandhi defined satyagraha as a force which is born of truth and love or non-violence. Neeti Nair establishes that Gandhi's understanding of satyagraha developed over the years through particular struggles conducted by himself and those who claimed to perform satyagraha in his name. Indeed he characterised the hunger-strikes deployed by British women suffragettes in prison in 1909, which elicited forcible feeding, as resorting to physical violence. In 1920 he was alone in his criticism of the Irish leader Terrance MacSurineg's final hunger fast. (Neeti Nair , Changing Homelands: Hindu Politics and the Partition of India, Permanent Black, 2011; pages 126-128. An extremely able work. Emphasis added, throughout.)

It is, therefore, unsafe and also unhistorical to cite the Gandhian precedent before Independence. Curiously, the debate in India more or less stops there with some fleeting references to political developments and debates in more recent years. Particularly instructive is the debate in the United States in the late 1960s during the Vietnam War.

Rebels without a programme'

The scholar-diplomat George F. Kennan prepared a speech for the dedication of the new library at Swarthmore College, which was published in The New York Times Sunday Magazine of January 21, 1968, under a provocative title Rebels without a Programme. It created a stir on university campuses and drew an unprecedented response from students and teachers. The speech, a selection of the response from campuses, some letters from the older generation and Kennan's reply were published in book form (George F. Kennan; Democracy and the Student Left; Hutchinson, London). Later, in May 1968, appeared a piece of incisive analysis by Justice Abe Fortas of the U.S. Supreme Court in a monograph entitled Concerning Dissent and Civil Disobedience (Signet Books; The New American Library). Together, these writings help a lot in addressing the issue of civil disobedience in a democracy.

Kennan wrote in his seminal article: If you accept a democratic system, this means that you are prepared to put up with those of its workings, legislative or administrative, with which you do not agree as well as with those that meet with your concurrence. This willingness to accept, in principle, the workings of a system based on the will of the majority, even when you yourself are in the minority, is simply the essence of democracy. Without it there could be no system of representative self-government at all. When you attempt to alter the workings of the system by means of violence or civil disobedience, this, it seems to me, can have only one of two implications; either you do not believe in democracy at all and consider that society ought to be governed by enlightened minorities such as the one to which you, of course, belong; or you consider that the present system is so imperfect that it is not truly representative, that it no longer serves adequately as a vehicle for the will of the majority, and that this leaves to the unsatisfied no adequate means of self-expression other than the primitive one of calling attention to themselves and their emotions by mass demonstrations and mass defiance of established authority.

Kennan squarely met the argument that people have a right to flout the law so long as they are prepared as a matter of conscience to accept the punishment for the breach. I am sorry; I cannot agree. The violation of law is not, in the moral and philosophic sense, a privilege that lies offered for sale with a given price tag, like an object in a supermarket, available to anyone who has the price and is willing to pay for it. It is not like the privilege of breaking crockery in a tent at the county fair for a quarter a shot. Respect for the law is not an obligation which is exhausted or obliterated by willingness to accept the penalty for breaking it.

To hold otherwise would be to place the privilege of lawbreaking preferentially in the hands of the affluent, to make respect for law a commercial proposition rather than a civil duty and to deny any authority of law independent of the sanctions established against its violation.

A graduate student at Princeton University retorted: Contempt for the law by some of these people is a consequence of ways by which the law has made itself contemptible. A powerful riposte come from the poet W. H. Auden: To suggest, as Mr Kennan seems to, that the claim can never be justified is to deny that human history owes anything to its martyrs. Dr Johnson, who was certainly no anarchist, thought otherwise: The magistrate has a right to enforce what he thinks, and he who is conscious of the truth has the right to suffer. I am afraid there is no other way of ascertaining the truth but by persecution on the one hand and enduring it on the other.'

Kennan replied at length and with considerable feeling and humility: I am free to admit that I dealt with this subject, as Mr Auden and others pointed out, much too cavalierly. But I should think and it was this that I meant to emphasise in my speech that the dimensions of this problem are not quite the same where the citizen has a part in determining public policy where the social contract may be said to prevail as they are where the feelings of the citizen are in no wise consulted in determining the policies of the state. For a Gandhi or a Tolstoy civil disobedience was one thing; for a Thoreau another. It seems to me that the citizen who lives under a system that assures him not only voting rights but extensive guarantees for the inviolability of his person and property and who accepts the protection of the state in the enjoyment of these rights, owes to the state at least a high measure of respect and forbearance in those instances where he may not find himself in agreement with its policies.

Defiance and lawlessness

There is obviously a distinction to be made here between defiance by a citizen of an effort on the part of the state to make him perform specific individual actions repugnant to his own conscience and moral feeling, on the one hand, and lawlessness performed by way of protest against general laws or actions of the state conceived by the individual to be unjust, on the other.

He did not refrain from describing his young critics in these sharp words. They are not inapplicable to some Indian grown-ups who have exacted much mileage in publicity in recent days. He is the product of his national culture and his time. He reflects faithfully, but in expanded, oversized dimensions, like shadows on the wall, the bewilderments and weakness of parents, teachers, employers, moulders of opinion, leaders of government. He comes, often, from a home that is affluent yet insecure. He senses in his parents, and feels in himself, the malaise of material satiety without the balancing influence of any inner security. Imagination, fears, hopes, desires; all these are overstimulated and prematurely stimulated, by exposure to the products of the commercialised mass media [like on TV channels. Ignorant anchors who throw across seeds and invite political weathercocks to fight. They oblige readily, raucously. All in the name of debate.] Yet there are no adequate countervailing sources of strength, confidence and hope. There is no strong and coherent religious faith, no firm foundation of instruction in the nature of individual man, no appreciation for the element of tragedy that unavoidably constitutes a central component of man's predicament, and no understanding for the resulting limitations on the possibilities for social and political achievement.

Martin Luther King speaking in Paris on March 29, 1966.-AFP

Kennan defined precisely where he differed from his student correspondents. They would try to realise their political aspirations by direct, demonstrative pressure on the administration of the moment, bypassing the electoral and legislative process [ a la Anna Hazare]. I would consider essential to the realisation of my aspirations and theirs too, for the matter the creation of a new political party, a party that would differ from the two great existing ones in the fact that it would be content to remain a minority, that it would not consider itself a failure if it did not win national elections and come into power, that it would place ideas and convictions ahead of electoral success, that it would make it its business to educate others, but to do so precisely by means of a vigorous participation in the regular political and electoral process of the country.

Justice Abe Fortas began by quoting Erich Fromm's aphorism Human history began with an act of disobedience, is likely to end with an act of obedience and proceeded at once to pose the dilemma: If I had been a Negro living in Birmingham or Little Rock or Plaquemines Parish, Louisiana, I hope I would have disobeyed the state law that said that I might not enter the public waiting room reserved for Whites'. I hope I would have insisted upon going into the parks and swimming pools and schools which state or city law reserved for Whites'. I hope I would have had the courage to disobey, although the segregation ordinances were declared unconstitutional. How then, can I reconcile my profound belief in obedience to law and my equally basic need to disobey these laws?

Violation of laws as protest

Fortas drew a distinction between violation of a particularly obnoxious law and violation of laws as a protest. In the Supreme Court, he set aside the conviction of peaceful black protesters who staged a sit-in in a segregated library. They had a right to protest by silent and reproachful presence, in a place where the protestant has every right to be. It was a narrow victory (5-4). Such were times.

Also and this is very relevant to our situation he opposed demonstrations which prevented others from exercising their right to move freely. If the demonstrators had insisted upon blocking access to the courthouse, or had entered its doors and disrupted the work going on in the courthouse in order to stage a demonstration inside or had refused to march or demonstrate in a way that allowed pedestrian or auto traffic to proceed, the result might have been different. The fact that they were engaged in a protest would not give them immunity from arrest and prosecution for their law violation. If the right to protest, to dissent, or to assemble peaceably is exercised so as to violate valid laws reasonably designed and administered to avoid interference with others, the Constitution's guarantees will not shield the protester.

Recalling Joan Baez's refusal to pay federal taxes which were used to finance the war in Vietnam, Fortas wrote:

The term civil disobedience' has not been limited to protests in the form of refusal to obey a law because of disapproval of that particular law. It has been applied to another kind of civil disobedience. This is the violation of laws which the protester does not challenge because of their own terms or effect. The laws themselves are not the subject of attack or protest. They are violated only as a means of protest, like carrying a picket sign. They are violated in order to publicise a protest and to bring pressure on the public or the government to accomplish purposes which have nothing to do with the law that is breached. The great exponent of this type of civil disobedience was Gandhi. He protested the British rule in India by a general programme of disobedience to the laws governing ordinary civil life.

The motive of civil disobedience, whatever its type, does not confer immunity for law violation. Especially if the civil disobedience involves violence or a breach of public order prohibited by statute or ordinance, it is the state's duty to arrest the dissident. If he is properly arrested, charged, and convicted, he should be punished by fine or imprisonment, or both, in accordance with the provisions of law, unless the law is invalid in general or as applied.

A citizen cannot demand that the state obey the Constitution and the laws and at the same time assert a right to disobey the law. Fortas was among the four dissenting judges who ruled in favour of Martin Luther King, who violated a court injunction against holding a demonstration. Five judges ruled against him.

GANDHI LEADING THE Dandi March in March 1930. The Mahatma perfected the strategy of civil disobedience against colonial rule. But would Gandhi himself have approved of satyagraha in a free India? Evidence has come to light that suggests clearly that he would not.-THE HINDU ARCHIVES

Fortas draws a distinction between demonstrations designed to register a protest and ones designed to paralyse the community the bandh, as we call it: They are characterised by action deliberately designed to paralyse the life of a city by disrupting traffic and the work of government and its citizens they carry with them extreme danger. The danger of serious national consequences from massive civil disobedience may easily be exaggerated. Our nation is huge and relatively dispersed. It is highly unlikely that protesters can stage a nationwide disruption of our life, comparable to the effects of a general strike such as France and other nations have witnessed. But a programme of widespread mass civil disobedience, involving the disruption of traffic, movement of persons and supplies, and conduct of government business within any of our great cities, would put severe strains on our constitutional system.

Fortas is not insensitive to the imperatives of one's conscience and quotes Chief Justice Charles Evans Hughes' dictum: When one's belief collides with the power of the State, the latter is supreme within its sphere. But, in the forum of conscience, duty to a higher moral, higher power than the State has always been maintained.

Moral issue

A person assumes an awesome responsibility when he makes such a claim. It must be a grave and intrinsically moral issue. Advocacy of a policy on legislation does not justify violation of the law on coercive fasts. In the final analysis: The state must tolerate the individual's dissent, appropriately expressed. The individual must tolerate the majority's verdict when and as it is settled in accordance with the laws and the procedures that have been established. Dissent and dissenters have no monopoly on freedom. They must tolerate opposition. They must accept dissent from their dissent.

But would Gandhi himself have approved of satyagraha in a free India? Evidence has come to light which suggests clearly that he would not have. Only last month this writer discovered in the invaluable treasure house of the great institution, the Nehru Memorial Museum & Library (NMML) in New Delhi, a document which clinches the issue. It was the transcript of an interview in the Oral History Programme of my guru at the Bar, Purshottam Trikamdas. He was secretary to Gandhi in 1919; joint secretary of the Swaraj Party and president of the Socialist Party in 1948 before he became one of the leaders of the Supreme Court Bar. This is what he told the NMML's interviewers K.P. Rangacharya and Hari Dev Sharma on October 9, 1967: After Gandhiji was released and we had the Poona Conference over which M.S. Aney, who was then the Acting President of the Congress, presided, I tried to meet Gandhiji but his nephew prevented me from meeting him because he knew my views to which I shall refer presently. Anyway, Aney was good enough to invite me to that meeting of Congressmen.

I went up to Gandhiji at the end of the meeting and I said, I am trying to meet you and your nephew is preventing me from meeting you.' He said, No, no, nobody can do that. You come and see me.' I would like to mention that in my speech I had said, I do not know what card Gandhiji had up his sleeve.' I was amused to find that some people thought this to be disrespectful because Gandhiji never played cards.

When I went to him the next day, he showed me the letter which he had prepared for being dispatched to the Viceroy. In the letter, he had mentioned that satyagraha must be recognised as a constitutional right. So, I said to Gandhiji with utmost respect, Several views have been expressed for framing our Constitution. Tomorrow, when India is free, would you say that satyagraha is a constitutional right and write it into the Constitution. And, if we do, what does it mean? It means that anybody can break the law with impunity and nothing could be done. Actually, it would be contrary to your own ideas. Satyagraha, you say, means disobeying authority and facing the consequences. Now, if satyagraha is a constitutional right and it is permitted, what are the consequences to face?' It would be said to the credit of the great man that he started thinking and he said, There is something in what you say.' Next day, he sent for me and said, You are right. I have decided not to send that letter.' Such was the greatness of the man; he always kept an open mind. After he had actually drafted the letter and finalised it, he said, I am not sending it.'

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