Gandhi: Some Reminiscences of the Bar
Chapter Forty-Nine
Syllabus topic 2.3, "Some Reminiscences of the Bar - M.K Gandhi"
Pages 238 to 243 of 406
In one line
Gandhi recalls that he never lied in his legal practice, warned every new client that he would not take a false case or coach a witness, and then tells of the day he insisted on telling a court about an arithmetical error in an award that was entirely in his own client's favour.
In the wording a student can write in an examination: Some Reminiscences of the Bar is chapter 44 of Part V of Gandhi's An Autobiography, in which he recalls incidents from his South African practice bearing upon the practice of truth, and in particular a case in which he insisted, against the advice of his senior counsel, on admitting to the court an error in an arbitration award which favoured his own client.
Where the piece comes from
The book. An Autobiography, or The Story of My Experiments with Truth, written in Gujarati and published in weekly instalments from 1925, and translated into English. It is arranged in five parts and one hundred and sixty-seven short chapters. This is chapter 44 of Part V, and it is numbered 121 in the sequence as a whole.
MU cites it differently. The syllabus gives the source as The Law and the Lawyers, edited by S. B. Kher, Navajivan, which is a compilation of Gandhi's writings on law. The piece is genuinely from the Autobiography, and the compilation reprints it. Saying so in an answer costs one clause and shows you have looked.
Where it stands in the story. Gandhi says at the outset that before coming to a narrative of his life in India, it seems necessary to recall a few South African experiences he had deliberately left out. He practised as a lawyer in South Africa from 1893, and this looks back over those years.
Why he wrote it. Because lawyer friends asked him for his reminiscences of the bar. He says the number is so large that describing them all would fill a volume, so he will recall only those "which bear upon the practice of truth", and that his friends seem to think the legal profession might profit by hearing of occasions when he refused to swerve from it.
What he says about the profession
The saying he heard as a student. "As a student I had heard that the lawyer's profession was a liar's profession." He adds at once why it did not affect him: he had no intention of earning either position or money by lying.
What he claims for his own practice. Four things, and each is a separate proposition.
- He never resorted to untruth in his profession.
- A large part of his practice was in the interest of public work, for which he charged nothing beyond out-of-pocket expenses, and sometimes met even those himself.
- He never made his fees conditional on winning, and expected neither more nor less whether the client won or lost.
- He wished in his heart of hearts to win only if his client's case was right, and remembers only one occasion when, having won, he suspected that his client had deceived him.
Gandhi: Some Reminiscences of the Bar
The warning he gave every new client. This is the sentence to quote for any question on professional ethics.
I warned every new client at the outset that he should not expect me to take up a false case or to coach the witnesses.
And the result he reports. That he built up such a reputation that no false cases came to him, and that some clients "would keep their clean cases for me, and take the doubtful ones elsewhere."
The temptation he says he resisted. He knew that his opponents had tutored their witnesses, and that if he encouraged his own client or witnesses to lie he could win. He says he always resisted it.
The case that was a severe trial
The facts, and they are worth getting exactly. The case came from one of his best clients. It involved highly complicated accounts and had gone on a long time, having been heard in parts before several courts. The book-keeping part of it was finally referred by the court to the arbitration of qualified accountants.
The award. It was entirely in favour of Gandhi's client. But the arbitrators had made an error in calculation, small but serious, because an entry that should have been on the debit side had been put on the credit side.
The position. The opponents were opposing the award, but on other grounds. Nobody had noticed the error. Gandhi was junior counsel.
The disagreement. When the senior counsel became aware of the error, he took the view that their client was not bound to admit it, and that no counsel was bound to admit anything against his client's interest. Gandhi said they ought to admit it.
The senior counsel's argument, which deserves to be stated fairly. If they admitted it, the court would very likely cancel the whole award; no sane counsel would imperil his client's case to that extent; and if the matter went back for a fresh hearing there was no telling what the client would have to spend or how it would end.
Gandhi's answer. Where is the certainty that the court will uphold a wrong award simply because we do not admit the error? And if the admission brings the client to grief, what harm is there? And then the practical question that settles it: "Where is the surety of the court not detecting the error or our opponent not discovering it?"
Gandhi: Some Reminiscences of the Bar
The senior counsel withdraws. "Well then, will you argue the case? I am not prepared to argue it on your terms." Gandhi answers that he will argue it if the client wishes, and that he will have nothing to do with the case if the error is not admitted.
The client decides. The client is present throughout. He is a little embarrassed, but he trusts Gandhi and has known him from the first, and he says: "Well, then, you will argue the case and admit the error. Let us lose, if that is to be our lot. God defend the right."
And there the chapter stops. "What happened in the court we shall see in the next chapter."
What happened, from chapter 45
This is the following chapter, "Sharp Practice?", and not the prescribed piece. It is given because every question about the outcome requires it, and because MU's own topic label names only chapter 44.
Gandhi appeared before the Supreme Court "in fear and trembling". As soon as he referred to the error, one of the judges said: "Is not this sharp practice, Mr. Gandhi?" He says he boiled within, but answered that he was surprised his Lordship should suspect sharp practice without hearing him out. The judge said it was no charge but a mere suggestion. Gandhi replied that the suggestion amounted to a charge, and asked to be heard out and then arraigned if there were occasion. The judge apologised for the interruption and asked him to go on.
The interruption turned out to help him: it fixed the court's attention on his argument from the start. He explained the discrepancy in detail, the court heard him patiently, and the judges were satisfied that it was due entirely to inadvertence, so that they were not disposed to cancel an award that had cost so much labour.
When opposing counsel tried to attack the award, the judges interrupted him, and the very judge who had begun with the suspicion asked him: "Supposing Mr. Gandhi had not admitted the error, what would you have done?" The objection was overruled, and the court either confirmed the award with the error rectified or directed the arbitrator to rectify it; Gandhi says he forgets which.
The conclusion he draws. That he was confirmed in his conviction "that it was not impossible to practise law without compromising truth."
And the caveat he adds, which candidates always leave out.
Let the reader, however, remember that even truthfulness in the practice of the profession cannot cure it of the fundamental defect that vitiates it.
Gandhi: Some Reminiscences of the Bar
Not this text: the trial of 1922, and why it turns up
Note. Added by the past paper check. Two papers on this text list, and many on the older one, have set "Discuss Gandhi's defence at his trial" or "Trial of Mahatma Gandhi". That is a different piece, which the older prescribed list carried and this syllabus does not, and a candidate who has read only the prescribed chapter would be stranded by it. The outline below is enough to answer such a question or to recognise it and choose another.
What it was. On 18 March 1922, at Ahmedabad, Gandhi was tried for sedition under section 124A of the Indian Penal Code, which punished bringing or attempting to bring into hatred or contempt, or exciting disaffection towards, the Government established by law in British India. The charge rested on three articles he had published in his weekly Young India: "Tampering with Loyalty", "The Puzzle and its Solution" and "Shaking the Manes". Shankarlal Ghelabhai Banker, the printer and publisher of the paper, was tried with him.
What Gandhi did. He pleaded guilty. He then made a statement in which he said that he had deliberately preached disaffection, that non-cooperation with evil was as much a duty as cooperation with good, and that he was there to invite and cheerfully submit to the highest penalty that could be inflicted on him. He offered the judge a choice: to resign the post if he believed the system he administered was good for the people, or to inflict on him the severest penalty if he believed the law was one Gandhi had rightly broken.
What the court did. The judge, C.N. Broomfield, District and Sessions Judge of Ahmedabad, said that it was impossible to ignore that Gandhi was in a different category from any person he had ever tried or was likely to try, and sentenced him to six years' simple imprisonment, adding that if the Government later thought fit to reduce it nobody would be better pleased than he. Banker was given a year.
How it connects to the prescribed chapter. The man who told a South African court about an error in his own client's favour is the same man who, twenty years later, refused to let his counsel put up any defence and asked for the maximum sentence. Both are the same argument about truth in a courtroom, made first as an advocate and then as an accused, and a question on either can borrow from the other.
A worked answer
Question. "Describe the incident of the arbitration award and say what it shows."
A model answer. The case was brought to Gandhi by one of his best clients and concerned highly complicated accounts, and after long proceedings the court referred the book-keeping to arbitration by qualified accountants. The award came back entirely in the client's favour, but it contained a calculation error, small in amount and serious in nature, because an entry that belonged on the debit side had been placed on the credit side. Nobody had noticed it: the opponents were attacking the award on other grounds. The senior counsel took the view that no counsel is bound to admit anything against his client's interest, and warned that an admission would probably lead the court to cancel the whole award and expose the client to the cost of a fresh hearing. Gandhi answered that there was no certainty the court would uphold a wrong award merely because they kept silent, and asked where the surety was that the court or the opponent would not discover the error themselves. The senior counsel refused to argue on those terms, Gandhi said he would argue it himself or leave the case, and the client, who was present, chose Gandhi: "Let us lose, if that is to be our lot. God defend the right."
Gandhi: Some Reminiscences of the Bar
What it shows, in three propositions. That a lawyer's duty not to mislead the court can conflict directly with the client's immediate interest. That the conflict is real and not imaginary, because the senior counsel's advice was competent and cautious rather than dishonest. And, from the following chapter, that the honest course was also the successful one, since the court accepted that the error was inadvertent and refused to cancel the award, though Gandhi is careful not to claim that honesty always pays.
What beginners get wrong
They give the outcome as part of this chapter. The prescribed piece ends before the hearing. Say so, and then give the outcome from the next chapter.
They make the senior counsel a villain. He gives cautious, competent advice in the client's interest, and Gandhi records it without contempt. The value of the incident depends on the opposing view being reasonable.
They forget the client. The decision was the client's, made in the room, and he made it knowing he might lose.
They leave out the final caveat. Gandhi ends by saying that truthfulness cannot cure the profession of the fundamental defect that vitiates it, and an answer that presents him as a straightforward admirer of the bar has misread him.
Quick revision
Chapter 44 of Part V of An Autobiography; MU cites it from The Law and the Lawyers, ed. S. B. Kher, which reprints it.
He recalls only those experiences bearing upon the practice of truth.
As a student he heard that the lawyer's profession was a liar's profession, and it did not influence him.
Gandhi: Some Reminiscences of the Bar
He warned every new client that he would not take a false case or coach the witnesses, and no false cases came to him.
The case: complicated accounts, arbitration, an award wholly in his client's favour containing a calculation error, an entry on the credit side that belonged on the debit side.
The senior counsel: no counsel is bound to admit what goes against his client. Gandhi: where is the surety that the court or the opponent will not find it?
The client chose Gandhi. "Let us lose, if that is to be our lot. God defend the right."
The outcome, in chapter 45: the judge's question "Is not this sharp practice, Mr. Gandhi?", the patient hearing, the finding of inadvertence, and the award upheld with the error rectified.
The caveat: truthfulness cannot cure the profession of the fundamental defect that vitiates it.
Test yourself
1. Where does the piece come from, and how does MU cite it? It is chapter 44 of Part V of Gandhi's An Autobiography, or The Story of My Experiments with Truth. MU's syllabus cites it from The Law and the Lawyers, edited by S. B. Kher, which is a compilation that reprints it.
2. What exactly was the error in the award? An error in calculation by the arbitrators, small in amount but serious in kind, in which an entry that ought to have been on the debit side was placed on the credit side. The award as a whole was entirely in favour of Gandhi's client.
3. State the senior counsel's argument. That no counsel is bound to admit anything that goes against his client's interest; that admitting the error would very likely lead the court to cancel the whole award; and that a fresh hearing would expose the client to unknown expense and an unknown result.
4. How did the case end? In the following chapter, the judge asked whether this was not sharp practice, then apologised and heard Gandhi fully. The court accepted that the error was due to inadvertence, refused to cancel an award that had cost so much labour, overruled the opponents' objection, and either confirmed the award with the error rectified or directed the arbitrator to rectify it.
5. What is Gandhi's final caution about the profession? That even truthfulness in the practice of the profession cannot cure it of the fundamental defect that vitiates it, so that his own success is not offered as a defence of the bar as such.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.