Justice Akil Kureshi: Law Itself Is Not Enough, It Must Have the Moral Authority to Rule

On Gandhi Jayanti – October 2, 2021 – Justice Akil Kureshi, chief justice of the Tripura high court was invited by the Delhi High Court Women Lawyers’ Forum to share his thoughts on the influence of Mohandas Karamchand Gandhi on the law.

Apart from describing key moments in Gandhi’s career as a lawyer, Justice Kureshi also discussed Gandhi’s relationship with the lawyer and his abiding relevance to the Indian constitution and democracy today.

He highlighted Gandhi’s inspirational journey from being a hesitant public speaker to a successful mass leader who changed the course of history.

The Wire has prepared a transcript of his remarks and is publishing them below, with light editing for style.

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Prachi Dutta: Could you please share something about Gandhiji’s journey as a lawyer and freedom fighter and how his journey culminated into the person that we remember him to be today?

Justice Akil Kureshi: Thank you Prachi for this question and to the organisation for inviting me today. Before I try to answer your question, let me be very honest. When you invited me, I was not very sure of my ability to be able to cover this topic because I have no authority on Gandhiji’s life. So whatever little background of law I may have, it’s going to be very difficult for me to place my thoughts on what Gandhi’s philosophy was. It’s like an ocean, his whole life.

There was a very personal reason for which I accepted this challenge and put my heart into it. If you have ever been to Gandhi’s ashram or if you ever go there, just at the entrance of the Gandhi memorial, right opposite to the road at the diagonal, there is a standalone old house. A very great house that has a slanted roof made up of Mangalore tiles. And if you look at the plaque outside the house, it says, Imam Manzar. Imam Sahib who built this house was settled in South Africa, a man of Indian origin and had made a small fortune for himself and was influenced by Gandhiji’s philosophy. He joined Gandhiji when Gandhiji left South Africa and came to India and he (Imam Sahib) built this house and that’s where his grandson – my father Hamid Kureshi – was born. So, I owed it to my ancestors to make this little effort and I am thankful that you have invited me today.

I have taken the help of a very close family friend of mine, Tridip Suhrud. He is an authority on Gandhi’s life and has given me excellent literature to read, and from that, I have tried to place my thoughts which I will present before our listeners.

As we all know, Gandhiji got his barrister’s degree in England, and he came back to practice in India. His entire journey from India to the UK and back was full of struggles. It started off with raising resources, convincing his mother to let him go. The ship journey itself was problematic, in an alien land with alien food habits and a different culture. He struggled all throughout, but he hung on, got his barrister’s degree, and came back to India. He started his small practice in Rajkot and Porbandar with virtually no success at all. He thought, “Let me try my hand in Bombay”. For about six months in Bombay, he set up an establishment, an office, house and still had no success to show.

There was one incident where he had a very small suit in which he had to try and cross-examine a witness. In his own account, when he got up, he froze, almost visibly shaking and became a laughingstock in full-court view. He returned the file of the client and some other lawyer who was more seasoned had a very easy job for himself and succeeded for the client. That was the initial phase of Gandhiji’s big struggle. Undaunted by all that, he got an invitation from South Africa to assist some local barrister in a suit.

Now if you look at some historical events, you will find history made by some chance which we call happenstance. This happenstance of Gandhiji getting an invitation from South Africa would in due course of time change the history of a nation.

But when Gandhiji went to South Africa, this idea of changing the course of history was far from his mind. All that was uppermost in his mind was his survival and survival of his family. As Mrinalini has told us, Gandhiji had gone for a suit, filed by his client Dada Abdullah. Dada Abdullah was a very wealthy businessman in South Africa of Indian origin. He had sold his part of the business to another businessman, who was also of Indian origin. But in the process, he had executed a promissory note and there were disputes over what payment had to be made. The matter went to court. Gandhiji was invited because the barristers did not understand Gujarati and most accounts and everything was in Gujarati, and his clients were not very fluent with even English. So, Gandhiji had a niche area where he could be of some use. But the biggest problem was that he knew nothing of accounts and the entire suit was based on very complicated accounts.

Gandhiji mastered the accounts, and he asked his client to let him talk to the other side. But Dada Abdullah was not very familiar with Gandhiji. He was not confident about his abilities or even credentials. So, Gandhiji slowly won over his confidence and with the permission of his clients, started talking to the other side, his opponent. And as Mrinalini pointed out, persuaded them both to go for arbitration to avoid lengthy and extremely expensive litigation. Both sides agreed. The arbitrator passed a huge award or something like 37,000 or 40,000 pounds onto his opponent which was a huge sum in those days. If his opponent had to pay in one shot, he would have gone bankrupt and for a businessman that’s worse than death. So, Gandhiji persuaded Dada Abdullah to give a long-term payment term of installments and both sides were happy. That’s one of the first successes that Gandhiji had in South Africa.

From then on, he grew his practice through lots of contacts he built and contrary to the popular notion, Gandhiji was a very successful lawyer in South Africa. But slowly, he branched off and he realised that the Indian population in South Africa was not treated properly. The root cause was the system of indentured labour. Labourers would be brought from India to work in plantations and for other manual labour works in South Africa. But there was an agreement for five years with those labourers and they were bound to work for those five years. After that, they had a choice of either going back to India or settling down in South Africa. Many of them chose to settle down and became extremely wealthy businessmen. Small businesses, some of them were extremely well established and they were in direct competition with European businessmen. Now, here was a conflict. The local farmers and industries required cheap Indian export labour and those who stayed back came into direct conflict with European businessmen, and the Indian businesspeople were always giving better deals and cheaper rates. To curb this, the South African government would often form laws which were extremely unjust towards the Indian population. Gandhiji started a movement whereby one after another he would file petitions and go to court, resort to satyagraha and he mobilised people all over.

One of the cases he tackled was again of Dada Abdullah. He had a fleet of ships and one of his ships was bringing passengers and cargo from India. However, the service of the captain of a ship was terminated by Dada Abdullah because he thought the captain had overcharged the employer. So, he said the loss of confidence led him to terminate his (captain’s) service. The captain went to court and challenged his termination. Now, the judge was extremely hostile to Gandhi, leading to a weak case. Gandhiji gave application after application for adjournment and permission to examine and call witnesses from outside, to examine and produce documents. Every application was rejected by the judge. The case was progressing at a very slow pace for Gandhiji’s client.

However, Gandhiji would patiently go on and on, giving one application after another wearing the judge down. After one of the applications, the judge got very agitated and heated discussions were going on and suddenly he shot a question to Gandhiji: Have you ever read shipping law? The entire case was based on shipping law and the judge, just to spite Gandhiji, asked this question. The court was full of lawyers, litigants and even press people and Gandhiji had a very difficult choice to make. There is an author called Charles DiSalvo who has written a beautiful book, Man before Mahatma, where he has traced Gandhiji’s first 20 years in South Africa to show us the transformation of a man who started as a very hesitant public speaker and reluctant lawyer to a brilliant lawyer and a freedom fighter, a crusader against injustice for life. It is a beautiful book worth reading for everybody and he described this incident by referring to Gandhi’s first partner – a lawyer called Coakes – who proved to be an unscrupulous element. Later, he faced many problems because of his unscrupulous ways of dealing with things and Gandhiji disassociated himself from him. But describing this situation where Gandhiji is faced by a very hostile judge and a difficult question – Have you ever read shipping laws? – this is what Charles DiSalvo’s writes:

“[Gandhi was] being forced by the judge to make a fundamental choice about who he was, as both a man and a lawyer. He could say he had not read it and show himself to be embarrassingly unprepared, or he could claim that he had and find Coakes reborn in himself.

“Gandhi’s answer would help set his life’s direction.

“No.”

Gandhi chose the truth and never let it go.”

This was one defining moment in Gandhiji’s life, and he proved his words.

In South Africa, he mobilised the Indian community by fighting against injustices in Johannesburg, Durban wherever he went. Relentlessly, he fought for their rights and in the process, from being the most reluctant public speaker, he became one of the finest public communicators. At the time when he was leaving South Africa, there was a large Indian population gathered to bid him farewell when he was boarding the ship and again I am reminded of DaSilva’s quotation in the book. He says about this incident:

“It was surely a time for taking stock. His first thought might have been of one of his most recent experiences—the Tuesday-night gathering at the new Congress Hall, where an enormous crowd had gathered to toast him. In response to the cheers he received from those present, he had stood on his feet before the assembly and delivered a speech that lasted two hours—a physical and intellectual feat of some substance. Could this have been the same Gandhi who nearly collapsed from fright in his first court experience in India?”

If you look at his journey of about 20 years and place together with all the places and struggles, four major elements of his practice as a lawyer are worth learning for young – or any age – lawyers.

First, at all stages, he realized that he did not have enough knowledge or experience. When he came from England and started practicing in Porbandar and Rajkot, he had no ideas of Indian laws. He realised that cross-examination of witnesses is the most important skill that a trial lawyer must have. When he went to South Africa, he dealt with the most complicated case involving accounts and he knew nothing about accounts. When he was dealing with Dada Abdullah’s case on shipping laws, he had not read shipping laws before. But at all stages through his sheer hard work and courage, he mastered the subject for which he had no knowledge about. Never shying away from the fact that his training was not adequate to deal with that branch.

Two, he was of the opinion that facts cannot be divested from the law in any case. Every case rests on its perspective and he always put enormous importance on facts. In one case he said that facts and equity are in his favour of his client, the law is against him. He said justice is in favour of my client, but the law is against him. He will explore all facts until he brought about a convergence between justice and law.

Three, for him either as a lawyer or as a freedom fighter, taking up a fight or battle was a matter of last resort. He continuously tried negotiations, persuasion, conciliation on or off the record till all the doors were shut. He only then went for a final battle.

And last but not the least, the [key] element of his legal practice was truth and adherence to human values. As we know, he was truthful to his client when he did not know the law, he would accept it. He never held back any inconvenient fact from the court. He was fair to his opponent and above all, he was always truthful to himself as we have seen from his answer to the question, ‘Have you ever read shipping laws?’.

Nandita Rao: What according to you was Gandhiji’s relationship with the law?

Akil Kureshi: As I said, he only went to South Africa for legal practice and satyagraha was not in his mind at all. But he started his small experiment with satyagraha after much experimentation with the law itself. When he saw that the Indian community in South Africa is getting a raw deal in terms of legal provisions and court cases, his first option always was to pursue litigation. He would make petitions to higher authorities and appeal to them with sounds arguments to abolish the concerned law. He would then go to court on a number of occasions for all the injustices been done to Indian businessmen but over a period of time, his belief in law as a tool to bring about the social change that he wanted, started to wane. He saw the legal system is not being implemented justly. He observed that it is one of the tools to subjugate the Indian population, first in South Africa and then later in India. And therefore, he started his principle of satyagraha – civil disobedience, peaceful resistance.

What we can gather from his philosophy was that a law which is unjust could and must be defied, albeit through peaceful means, if you are prepared to face the consequences of infractions of law. So, this principle we will discuss sometime later is that law must not only be validly framed but also must be a just law. The very concept of justness in-built in every sphere of law. And when he realised that the British system in South Africa and later in India is not just towards Indians, he started changing from a supporter to a person who took to civil disobedience to defy the laws. We all know, he started with supporting the British in South Africa even during the First World War. It is much later when he realised the system is unrelenting, that he switched over.

When he came back to India, there are two famous trials which give us great insight into his philosophy. The first was a contempt case instituted in Bombay high court. It so happened that in civil court in Ahmedabad, a few lawyers and barristers had taken an oath of defiance of law to oppose the Rowlatt Act. The civil judge wrote to the chief justice of Bombay high court to initiate proceedings for breach of that conduct. This letter came in possession of Gandhiji, and he published it in the magazine Young India. As this inquiry was going on, a view held that he had committed contempt of court. Hence, both he –  as the person who has published it – and Mahadev Desai, who was the editor and publisher of ‘Young India’, were issued notices for contempt of court by the chief justice of Bombay high court.

Gandhiji’s explanation was sought, and he sent his explanation. Midway through this trial, the chief justice suggested to Gandhiji, “Why don’t you apologise, and we will close the case?” He was not against Gandhiji and wanted to close the chapter. However, Gandhiji’s answer was beautiful. He said, firstly, I will not give an insincere apology because if this situation arose again, I would do it again, and secondly, it is a matter of my journalistic rights. How can I compromise on this? He said while writing the letter to the chief justice, “I am sure that this honourable court would not want me to tender an apology unless it is sincere, and I express regret for an action which is my duty as a journalist. I shall therefore cheerfully and respectfully accept the punishment that this honourable court please to impose upon me for conviction of diminishing of the majesty of the law.”  He was duly warned and some punishment etc [handed down].

This one small trial shows a lot about Gandhiji’s character and his approach to law by that time. But there is another very majestic trial which lasted a day, and came to be known as the ‘Great Trial’. It was a trial for Gandhiji’s article for Young India. In the wake of Chauri-Chaura and Jallianwala Bagh, Gandhiji wrote three articles in Young India, for which Gandhi as the author and Shankarlal Banker as the publisher were charged under the section 124-A of the IPC with sedition. The trial took place under heavy security in the Circuit House in Ahmedabad near Gandhi’s Ashram on March 18, 1922. It lasted only for a day because when they were brought before the judge, they pleaded guilty. The advocate general said that even if they pleaded guilty, it is open for the court to try the whole case as only when full evidence is brought to record that we can understand the culpability and true perspective. The judge didn’t accept this suggestion and asked Gandhiji to say anything if he wanted to in defence. He said yes, and I have a written statement which I would tender as soon as I finish reading but before that I want to make few preliminary comments. And what he said was extempore and his statements are classic. It is among the hundred great speeches of the century. The preliminary statement was very powerful. He said:

“Before I read this statement I would like to state that I entirely endorse the learned Advocate-General’s remarks in connection with my humble self. I think that he has made, because it is very true and I have no desire whatsoever to conceal from this court the fact that to preach disaffection towards the existing system of Government has become almost a passion with me, and the Advocate-General is entirely in the right when he says that my preaching of disaffection did not commence with my connection with Young India but that it commenced much earlier, and in the statement that I am about to read, it will be my painful duty to admit before this court that it commenced much earlier than the period stated by the Advocate-General. It is a painful duty with me but I have to discharge that duty knowing the responsibility that rests upon my shoulders, and I wish to endorse all the blame that the learned Advocate-General has thrown on my shoulders in connection with the Bombay occurrences, Madras occurrences and the Chauri Chuara occurrences. Thinking over these things deeply and sleeping over them night after night, it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay. He is quite right when he says, that as a man of responsibility, a man having received a fair share of education, having had a fair share of experience of this world, I should have known the consequences of every one of my acts. I know them. I knew that I was playing with fire. I ran the risk and if I was set free I would still do the same. I have felt it this morning that I would have failed in my duty, if I did not say what I said here just now.

“I wanted to avoid violence. Non-violence is the first article of my faith. It is also the last article of my creed. But I had to make my choice. I had either to submit to a system which I considered had done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips. I know that my people have sometimes gone mad. I am deeply sorry for it and I am, therefore, here to submit not to a light penalty but to the highest penalty. I do not ask for mercy. I do not plead any extenating act. I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted upon me 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, the Judge, is, as I am going to say in my statement, either to resign your post, or inflict on me the severest penalty if you believe that the system and law you are assisting to administer are good for the people. I do not except that kind of conversion. But by the time I have finished with my statement you will have a glimpse of what is raging within my breast to run this maddest risk which a sane man can run.”

He read the entire statement and then the judge sentenced him to six years of life imprisonment. There were 200 in the audience – sobbing, weeping men and women. Gandhiji was only smiling and cheerfully true to his true self.

This one trial which lasted just for a day shook the entire empire. On one side was the British empire, with all its might where the sun never set and ruled the world. On the other side, there was an unarmed, half-clad faqir. The British had the authority, law enforcement agencies but not morality on its side. Gandhiji had moral force on his side – to defy unjust laws and challenge the might of the empire.

These are all very well-known facts. But there are two little-known facts which I will tell the audience about. The original document of this great trial is preserved in the Gujarat high court and is available in the museum, and the second is that because of heavy security, press photographers were completely banned. So there were no visuals of this great event. But in the audience, there was one Ravishankar Raval, who was a private tutor to the Sarabhai family’s children. He had a pass and was sitting on the last row and was an artist. He realised the importance of the event and instantly drew some sketches. All of them were combined and published sometime in the year 1950. It shows the judge sitting at a high dais with Gandhiji in front of him in his traditional dhoti and Kasturba sitting in the front row among the audience.

All I wanted to say through all this is that Gandhiji challenged the might of the empire only through one principle – that law itself is not enough. It must have the moral authority to rule.

Two parallels I can immediately think about is Justice Nariman’s development of the concept of manifest arbitrariness as the third element of challenge to the constitutionality of a legal provision. Until then, only two were recognised, which were (1) the lack of legislative competence and (2) opposing the fundamental rights of the constitution. The justness of law is now codified in our legal systems. If it’s arbitrary, it is not just. Even if the law is made validly, it must be just.

The famous American judge, Cardozo’s pragmatic approach is consistent with this. He said, “You expand the law whenever needed, just don’t go by the letter of the law. Don’t go by the conventional theories”. His one beautiful argument in support of this theory – and what Gandhiji had written all over his statements – is that the final cause of law’s very existence is the well-being of the society.

Prachi Dutta: How does the constitution and the working of the Indian constitution have a presence of Gandhiji?

Akil Kureshi: Let me just give a little historical background to the framing of the constitution. As we all know, when the constituent assembly first met, the country was going through transitions – the birth of a young nation accompanied with violence leading to partition. The first constituent assembly meeting took place on Dec 9, 1946. By the time it was clear that the Muslim league would part ways. Though there were members elected from the  League, they boycotted and didn’t take part in the constituent assembly.

With a heavy heart, the assembly members started the task. There were outstanding personalities: Jawaharlal Nehru, Dr. Ambedkar, Dr. Radhakrishnan, K.M Munshi, Sardar Patel etc. All from diverse fields, mostly from the legal field but so many from the field of social work and freedom fighters. Pandit Nehru moved the objective resolution in the assembly and outlined six objectives out of which two of them directly remind us of Gandhiji’s philosophy i.e., justice shall be guaranteed to all the people of the country – economic, social, and political, equality of opportunity and status with freedom of thought, expression, vocation, faith, belief, worship, association, and action with adequate safeguards for minorities, backward and tribal areas and depressed/backward classes. It is all Gandhian philosophy.

While addressing the assembly, Nehru referred to Gandhiji and said, “There is another person who is absent here and who must be in the minds of many of us today – the great leader of our people, the father of our Nation, who has been the architect of this Assembly and all that has gone before it and possibly of much that will follow. He is not here because, in pursuit of his ideals, he is ceaselessly working in a far corner of India. But I have no doubt that his spirit hovers over this place and blesses our undertaking.”

With these thoughts and the presence of Gandhiji through every debate of the constituent assembly, the members set about a task which was enormous. They were framing a constitution for a young India to chart a course of history. It was a tryst with destiny as Jawaharlal Nehru would put it. It had to provide a framework which would enable a young nation to usher democracy, alleviate poverty, remove class biases and untouchability. They went about this task meticulously; every provision they made was debated repeatedly before everybody was satisfied.

When the constitution was finally made and presented before the country, it had one basic resolve – to achieve basic social, political, and economic justice for all. It had imprints of Mahatma Gandhi all over it with principles of universal adult suffrage, perhaps for the first time, a democracy was giving voting rights to every individual. Even in the United States … blacks got voting rights much later. It was a bold attempt. There were suggestions to keep a filter of education for voting and getting elected. But the members, in their wisdom, said it will be another way of governing the poor by the people who are not poor without understanding their plight and problems. Let them do it themselves, which turned out to be a very successful experiment.

Citizenship was given without any idea of region, religion, class, or creed. So much so that Article 7 was inserted for those who had migrated to Pakistan after partition; if they were willing to come back, they would also be welcome under it. There was a lot of debate on this as members felt that those Muslims who have left India must be seen as persons supporting the idea of Pakistan. However, the majority opinion [in the constituent assembly] was that most of them left India under the impression that [partition] would be temporary, and that they would come back as it is our country. Ultimately what prevailed was the thought that even those who left at the time of the heat of partition must be welcomed back if they want to return. One of the members, Brijendra Prasad from Bihar, referred to Article 7 as a tribute to Mahatma Gandhi and said, “He worked for good relations between Hindus and Muslims. During the time of Mahatma, we were considered as blood brothers.”

There are two books which are written on our constitution which I consider as classic. Both are by Granville Austin; most lawyers would have come across these books, which I consider as my Gita! The first is regarding the process of the framing of the constitution, Indian Constitution: Cornerstone of a Nation and the second is Working a Democratic Constitution: A History of Indian Experience, which he wrote a few years later.  In the first book, he attributes the architect part of the constitution to Dr. B.R Ambedkar and his foresight which led to most of the leading provisions, while crediting Nehru and Patel for building consensus during the framing process. Whenever, there was a deadlock if Nehru and Patel jointly acted together, very few people could go against it. So, that was a method through which the constitution was made – via consensus – which is Gandhiji’s hallmark: persuasion, debate, negotiate, no hard feelings, no bias, move forward.

At the same time, as Granville Austin points out, not all of Gandhiji’s beliefs were incorporated, such as his belief in Panchayati Raj, decentralised polity etc. The makers of the constitution veered towards centralisation and a more modern polity. Whose model was better? Whether Gandhiji’s idea could have succeeded or not, I am no authority to comment on that.

Granville Austin also tells us that the Indian constitution is broadly a hybrid constitution which has borrowed ideas from different parts of the world – from the US, the British, Irish, Canadians, Australians, etc, who already experimented with such certain notion and ideas, but with one very original idea i.e., this constitution was made through complete consensus between the members. There are 13 volumes of Constituent Assembly Debates with every word of every member written down and well documented. It shows how civil and dignified the members were with each other, with great intellect and mutual respect. The trio of Ambedkar, Nehru and Patel ultimately decided the high-quality debates and very few had the moral strength to oppose them.

After the constitution was framed, very often you can see Gandhi’s philosophy being brought into picture. In the earliest cases, the Supreme Court took a very narrow view of “procedure established by law”, declaring any procedure established by law is valid, and that the right of a person to life and liberty can be curtailed through it. Years later, it was corrected in the Maneka Gandhi case. Justice Bhagwati said that the law and procedure must be reasonable and to be reasonable, such procedure must be just, fair and right and not arbitrary or oppressive. In Keshavanada Bharti, pragmatic interpretation of law gave us the doctrine of basic structure, which can’t be amended by the parliament and thus, the entire constitution was put beyond the majoritarian reins of any government.

Gandhiji thought of ‘Poorna Swaraj’ is a beautiful thought. He says freedom from foreign rule is not his idea of freedom. He incorporates equality, elimination of untouchability from the hearts of the people with every citizen having equal rights as Poorna swaraj. This thought resonates with beautiful shayari by a Pakistani Urdu poet Habib Jalib. He had constant run-ins with the dictatorial regime of Pakistan, for which he was put behind bars on a number of occasions. In one of his poems, he says-

diip jis kā mahallāt hī meñ jale,
chand logoñ kī ḳhushiyoñ ko le kar chale
vo jo saa.e meñ har maslahat ke pale
aise dastūr ko sub.h-e-be-nūr ko
maiñ nahīñ māntā maiñ nahīñ jāntā

Thus has Gandhiji written all over it.

Nandita Rao: Any Gandhian message which you like to send?

Akil Kureshi:  From Gandhiji’s life, I would like to say two things to all your members and listeners. I am completely taking from his thoughts only, nothing on my own.

I would like to tell your viewers – you are young, idealist and full of new ideas and that is how it should be. Remember, life sometimes presents difficult choices and what you choose will define you as a person. Make sure you make a choice which you will later be proud of, and everything else will follow.

My second thought, again from Gandhiji’s life, is that this pandemic has hit everyone very hard. It has hit the poorest and weakest of the world the hardest. So, wherever you are, in whatever state or stage of career, think of the people who are less fortunate than you are. Be kind and gentle to others because life is too short to fill it up with hatred and distrust. Thank you so much.

Akil Kureshi is chief justice of the Tripura high court. This article has been adapted by The Wire from the transcript of Chief Justice Akil Kureshi’s lecture on Gandhi Jayanti, October 2, 2021, delivered for the Delhi High Court Women Lawyers’ Forum and webcast live on the YouTube channel of LiveLaw.in