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Gandhi, Lawyers, and the Courts' Boycott during the Non-Cooperation Movement*

  • JAMES JAFFE (a1)
Abstract
Abstract

This article analyses the role of the legal profession and the evolution of aspects of Indian nationalist ideology during the Non-Cooperation Movement of 1920–22. Very few legal professionals responded to Gandhi's call to boycott the British courts despite significant efforts to establish alternative institutions dedicated to resolving disputes. First identified by leading legal professionals in the movement as courts of arbitration, these alternative sites of justice quickly assumed the name ‘panchayats’. Ultimately, this panchayat experiment failed due to a combination of apathy, repression, and internal opposition. However, the introduction of the panchayat into the discourse of Indian nationalism ultimately had profound effects, including the much later adoption of constitutional panchayati raj. Yet this discourse was then and remains today a contested one. This is largely a legacy of Gandhi himself, who, during the Non-Cooperation Movement, imagined the panchayat as a judicial institution based upon arbitration and mediation. Yet, after the movement's failure, he came to believe the panchayat was best suited to functioning as a unit of village governance and administration.

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Many thanks to Marc Galanter, Mitra Sharafi, and the members of the South Asia Legal Studies Working Group at the UW-Madison Law School for comments on an earlier draft of this article. Any errors, of course, are the author's own.

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1 On the Cambridge School critique of the role of legal professionals, see Mukherjee M., India in the Shadows of Empire: A Legal and Political History, 1774–1950, Oxford University Press, New Delhi, 2010, pp. 110–12.

2 Ibid., p. 110.

4 Mukherjee M., ‘Transcending identity: Gandhi, nonviolence, and the pursuit of a “different” freedom in modern India’, American Historical Review, vol. 15, no. 2, April 2010, pp. 466–72.

5 Ibid., p. 467.

6 Jaffe J., Ironies of Colonial Governance: Law, Custom and Justice in Colonial India, Cambridge University Press, Cambridge, 2015, Chapters 8–10.

7 Report of the Indian Bar Committee, 1923–24, Delhi, 1924, p. 9.

8 Census of India, 1921, vol. I: Part II—Tables, Calcutta, 1923, Table X, pp. 370–1.

9 Report of the All-India Bar Committee, New Delhi, 1953, Annexure F. Many thanks to Marc Galanter for providing a copy of this Report.

10 A. J. C. Mistry, Forty Years Reminiscences of the High Court of Judicature at Bombay, A. J. C. Mistry, Bombay, 1925, Appendix List No. 2, pp. 60–2. Many thanks to Mitra Sharafi for providing a copy of this rare book. A total of 970 lawyers living in Bombay City were enumerated by the 1921 census. See Census of India, 1921, vol. IX: Cities of the Bombay Presidency, Part II—Tables, Bombay, 1922, p. l.

11 J. J. Paul, ‘Vakils of Madras, 1802–1928: the rise of the modern legal profession in South India’, 2 vols, Ph.D. dissertation, University of Wisconsin-Madison, 1986, vol. 1, Table 2, p. 192; Paul J. J., The Legal Profession in Colonial South India, Oxford University Press, Bombay, 1991, pp. 98–9. Confusingly, Paul designates advocates before the Madras High Court as ‘barristers’. After the Legal Practitioners Act of 1879, this term had been replaced by the official designation of ‘advocate’, although ‘barrister’ continued to be used in everyday parlance. See, for example, Report on the Administration of Civil Justice in the Madras Presidency for the Year 1907, Madras, 1908, p. 12.

12 Census of India, 1921, vol. VI: City of Calcutta, Part I: Report (Calcutta, 1923), p. 106; Census of India, 1931, vol. V: Bengal and Sikkim, Part II: Tables, Calcutta, 1932, Imperial Tables X, p. 140.

13 Misra B. B., The Indian Middle Classes: Their Growth in Modern Times, Oxford University Press, London, 1961, p. 330 .

14 The High Courts of Madras, Bombay, and Calcutta were established in 1862. The court at Allahabad was established in 1866, Mysore in 1884, and Patna in 1916.

15 The Rowlatt Bills provided for imprisonment without trial, warrantless arrests, and in camera trials, among other things. They were passed into law on 18 March 1919.

16 The pledge was published in the Bombay Chronicle on 2 March 1919. See Bamford P. C., Histories of the Non-Co-operation and Khilafat Movements, 1925, reprinted by Deep Publications, Delhi, 1974, pp. 34.

17 Brown J. M., Gandhi's Rise to Power: Indian Politics, 1915–1922, Cambridge University Press, Cambridge, 1972, pp. 166–7.

18 The Leader (Allahabad), 26 September 1919; Collected Works of Mahatma Gandhi (hereafter CWMG), electronic edition, vol. 18, fn. 3, pp. 261–2.

19 Report of the Commissioners Appointed by the Punjab Sub-Committee of the Indian National Congress, Lahore, 1920 (hereafter Punjab Sub-Committee Report), I, pp. 45–6.

20 Ibid., pp. 48, 50; Report of the Disorders Inquiry Committee, 1919–1920, Calcutta, 1920 (hereafter Hunter Committee Report), p. 34.

21 Hunter Committee Report, I, p. 228.

22 Punjab Sub-Committee Report, pp. 64–5; T. Sherman, State Violence and Punishment in India, Routledge, London, 2010, p. 29.

23 Punjab Sub-Committee Report, II, p. 97.

24 Minault G., The Khilafat Movement: Religious Symbolism and Political Mobilization in India, Columbia University Press, New York, 1982, p. 1.

25 Brown, Gandhi's Rise to Power, pp. 190–4.

26 Minault, Khilafat Movement, pp. 77–9, 92–6; CWMG, vol. 19, pp. 447–50. In November 1920, the Central Khilafat Committee also organized the Jam‘iyyatu'l-‘Ulama-i-Hind, a committee of 120 Muslim scholars that drafted a fatwa against cooperation with the British. This became known as Muttafiqa Fatwa and contained the earliest expression of the desire to include lawyers in the movement. The fatwa declared that Muslim lawyers practising before the British courts was haram (forbidden), but the document was not published until August 1921. See Bamford, Histories, pp. 162–3, Appendix G; and Qureshi M. N., Pan-Islam in British Indian Politics: A Study of the Khilafat Movement, 1918–1924, Brill, Leiden, 1999, p. 249 , Appendix C.

27 Bamford, Histories, p. 151.

28 CWMG, vol. 21, p. 7.

29 See, for just one example, Sidney and Beatrice Webb's admiration of the New Zealand Court of Arbitration in their Introduction to the 1902 edition of Industrial Democracy, new edn, Longmans, Green, London, 1902, pp. xlii–xlviii, and their assessment of its potential for the arena of British industrial relations in ibid., Part II, Chapter III.

30 CWMG, vol. 15, pp. 160–1; vol. 16, p. 490.

31 Ibid., vol. 16, pp. 420, 447–9, 490.

32 See Jaffe, Ironies of Colonial Governance, Chapter 10.

33 In February 1918, Gandhi actually served on a board of arbitration in Ahmedabad. See CWMG, vol. 16, pp. 285–6.

34 CWMG, vol. 19, p. 388; vol. 20, pp. 261, 324–5, 353–6.

35 Ibid., vol. 19, pp. 447–50; Qureshi, Pan-Islam in British India, p. 115.

36 CWMG, vol. 21, pp. 5–7, 13.

37 Ibid., p. 13.

38 Ibid., p. 162.

39 Amrita Bazar Patrika, 14 August 1920; National Archives, Cabinet Papers (hereafter NA CAB)/24/111, ‘Telegram from Viceroy, Home Department, to Secretary of State for India’, 21 August 1920.

40 CWMG, vol. 21, p. 178.

41 Report of the Civil Disobedience Enquiry Committee, appointed by the All India Congress Committee, Allahabad, 1922, Appendix IXA.

42 Ibid., Appendix IXB.

43 Kunte B. G. (ed.), Non-Co-Operation Movement in Bombay City, 1920–1925, Government of Maharashtra, Bombay, 1978, p. 54.

44 Report of the Civil Disobedience Enquiry Committee, p. 50.

45 The Leader, 21 October 1920; Amrita Bazar Patrika, 27 October 1920; Bombay Chronicle, 20 October 1920.

46 The Leader, 21 October 1920. On the Bombay National Union, see Kidambi P., The Making of an Indian Metropolis: Colonial Governance and Public Culture in Bombay, 1890–1920, Ashgate, Aldershot, 2007, pp. 196–7.

47 Amrita Bazar Patrika, 21 January 1921.

48 Ibid., 13 January 1921.

49 Ibid., 30 January 1921.

50 Ibid., 3 February 1921.

51 Ibid., 10 March 1921, 15 March 1921, 1 May 1921, 5 May 1921, 13 May 1921, 27 May 1921, 13 July 1921; Times of India, 2 May 1921.

52 The Tribune, 9 August 1921.

53 Amrita Bazar Patrika, 10 May 1921.

54 Hasa M. and Pernau M. (eds), Regionalizing Pan-Islamism: Documents of the Khilafat Movement, Manohar, New Delhi, 2005, p. 311.

55 Government of India, Home Department, Letter No. 1266P, dated 31 January 1925, reprinted in ibid., p. 180.

56 In Mullickpur (Bihar), for example, ‘arbitration courts’ had been established in 1921; see Times of India, 4 May 1921. In Dinarpur (Haryana), an ‘arbitration court’ was functioning in April 1921; see Amrita Bazar Patrika, 8 May 1921.

57 The Tribune, 10 May 1921.

58 The Leader, 21 April 1921. The supernatural qualities sometimes attributed to Gandhi were in evidence here as well. When an anti-non-cooperator approached the arbitrator, he joked that he would follow the Mahatma if a mango fell on his head. A mango dutifully fell on his head and the fruit was later displayed in the local temple (thakurbari).

59 Ibid., 27 May 1921.

60 NA CAB/24/120, 24 February 1921. Nehru was elected president of the United Provinces’ Kisan Sabha in February 1921. The Kisan Sabhas had long sought to institute panchayats, according to Crawley W. F., ‘Kisan Sabhas and Agrarian revolt in the united provinces 1920 to 1921’, Modern Asian Studies, vol. 5, no. 2, 1971, pp. 96–7.

61 The Tribune, 3 June 1921.

62 Ibid., 5 August 1921.

63 Ibid., 2 June 1921.

64 Prasad R., Autobiography, 1946, Penguin, New Delhi, 2010, p. 116 ; Amrita Bazar Patrika, 2 December 1920.

65 Amrita Bazar Patrika, 22 April 1921.

66 The Tribune, 28 March 1921.

67 Ibid., 13 May 1921.

68 Singh L., Popular Translations of Nationalism: Bihar, 1920–1922, Primus Books, Delhi, 2012, pp. 123–5.

69 Amrita Bazar Patrika, 17 March 1921; The Tribune, 16 March 1921.

70 ‘Presidential Address read by Pandit K. Santanam at the sixth session of the Punjab Provincial Conference held at Batala on 28th, 29th, and 30th April 1922’, Lahore, n.d., p. 24.

71 Government of India, Home Department, Letter No. 1266P, dated 31 January 1925, reprinted in Hasa and Pernau, Regionalizing Pan-Islamism, p. 192.

72 Amrita Bazar Patrika, 13 November 1920.

73 Bombay Chronicle, 6 December 1920.

74 Tinker H., The Foundations of Local Self-Government in India, Pakistan and Burma, Pall Mall Press, London, 1954, pp. 116–19. Interestingly, when a motion was made in the Madras Legislative Council to substitute the word ‘council’ for ‘panchayat’, a member pointed out that ‘the word “Panchayat” had been in vogue from time immemorial and should not now be dropped’. The motion failed to pass. The Leader, 6 October 1920.

75 Times of India, 29 September 1920. On the Pune Arbitration Courts, see Jaffe, Ironies of Colonial Governance, pp. 261–2.

76 Times of India, 19 April 1921; The Tribune, 21 April 1921.

77 Reprinted in The Leader, 24 March 1920. However non-academic, I owe the very suitable description of the Madras Mail to a blog posted by Sriram V. entitled ‘The journalistic history of Madras’, https://natarajank.com/2012/07/26/journalistic-history-of-madras/, [accessed 26 May 2017].

78 Amrita Bazar Patrika, 4 November 1920.

79 Ibid., 19 December 1920; Irschick E. F., Politics and Social Conflict in South India: The Non-Brahman Movement and Tamil Separatism, 1916–1929, University of California Press, Berkeley and Los Angeles, 1969, pp. 194–7; Arnold D., The Congress in Tamilnad: Nationalist Politics in South India, 1919–1937, Curzon Press, London, 1977, p. 42 .

80 Bombay Chronicle, 22 October 1920.

81 The Leader, 15 September 1920. The same complaint was raised by the Indian Merchant Chamber meeting in Bombay. See The Bombay Chronicle, 5 October 1920.

82 Kunte, Non-Co-Operation Movement, p. 9.

83 Amrita Bazar Patrika, 3 February 1921.

84 Ibid., 30 November 1920.

85 The Leader, 11 July 1920.

86 Ibid., 19 May 1921.

87 Ibid., 20 May 1921.

88 Legislative Assembly Debates (Official Report), vol. 1: First Session, Delhi, 1921, p. 795; see also Qureshi, Pan-Islam in British Indian Politics, pp. 250–1.

89 ‘Resolutions passed by the Working Committee of the All-India Congress Committee at Nagpur on January 1st, 2nd and 3rd 1921’, in The Indian National Congress, 1920–1923: Being a Collection of the Resolutions of the Congress and of the All India Congress Committee and of the Working Committee of the Congress from September 1920 to December 1923 (hereafter Indian Congress Resolutions), Allahabad Law Journal Press, Allahabad, 1924, p. 81.

90 The Tribune, 5 August 1921.

91 Report of the Civil Disobedience Enquiry Committee, p. 48.

92 Ibid.

93 Kesava Menon K. P., ‘Crusading for a cause’, in 1921 Movement: Reminiscences, Ministry of Information and Broadcasting, Calcutta, 1971, p. 153 .

94 ‘All-India Congress Committee’, 9 September 1920, Indian Congress Resolutions, p. 18.

95 ‘Resolutions passed by the Working Committee of the All-India Congress Committee which met at Calcutta on January 31st and February 1st, 2nd and 3rd 1921’, Indian Congress Resolutions, p. 84; CWMG, vol. 22, pp. 168–9.

96 Bombay Chronicle, 15 November 1920.

97 Bengal Provincial Congress, Session, Barisal—1921, Presidential Address by Bipin Chandra Pal, Calcutta, 1921, pp. 94–8.

98 The Tribune, 5 August 1921.

99 Amrita Bazar Patrika, 5 May 1921.

100 Report of the All-India Vakils’ Conference held at Allahabad on 26th and 27th March 1921, Allahabad, 1921, pp. 2–3. Many thanks to Marc Galanter for providing me with a copy of this very rare report.

101 The Leader, 23 February 1921.

102 Amrita Bazar Patrika, 24 February 1921; The Leader, 23 February 1921; Report of the All-India Vakils’ Conference, Appendix I, p. 3. On the Madras Lawyers’ Conference, see Paul, Legal Profession in South India, pp. 157–8.

103 Legislative Assembly Debates, vol. 1, First Session, 1921 (Delhi, 1921), pp. 371–92.

104 Report of the All-India Vakils’ Conference; The Tribune, 29 March 1921.

105 ‘Dual agency’ was the term adopted by the Indian Bar Commission of 1923–24 to describe the different roles and functions of barristers and vakils. See V. M. Coutts Trotter's memorandum in Indian Bar Committee Report, 1923–24, Delhi, 1924, pp. 41–8.

106 Amrita Bazar Patrika, 24 February 1921.

107 Ibid., 10 January 1922. After this meeting ended in confusion, the local Bar Association of Jessore (Bengal) agreed to suspend practice until political prisoners were released and repressive measures repealed. See ibid., 18 January 1922.

108 House of Commons Debates, 20 June 1921, vol. 143, cc. 895–6. This was later reasserted by Sir William Vincent in Legislative Assembly Debates (Official Report), vol. II, Delhi, 1922, p. 2748; see also Amrita Bazar Patrika, 23 June 1921; and Rushbrook Williams L. F., India in 1921–22: A Report Prepared for Presentation to Parliament in Accordance with the Requirements of the 26th Section of the Government of India Act (5 & 6 Geo. V, Chap. 61), reprinted in India in 1921–22, Anmol Publishers, Delhi, 1985, p. 64 . On the application of criminal law during the Non-Cooperation Movement, see Sherman, State Violence and Punishment in India, pp. 40–1.

109 Times of India, 26 July 1921.

110 Amrita Bazar Patrika, 11 March 1921.

111 Ibid., 28 June 1921.

112 The Tribune, 4 May 1921.

113 Amrita Bazar Patrika, 11 January 1921.

114 ‘Advice to Kisans’, The Independent, 3 May 1921, reprinted in Bakshi S. R. (ed.), Documents of Non-Cooperation Movement, Akashdeep Publishing House, Delhi, 1989, p. 191.

115 Report of the Civil Disobedience Enquiry Committee, Appendix VIIIH, p. 48.

116 The Tribune, 19 March 1921.

117 Report of the Civil Disobedience Enquiry Committee, Appendix VIIIG, p. 37.

118 CWMG, vol. 24, p. 155.

119 Amrita Bazar Patrika, 28 April 1922.

120 CWMG, vol. 22, p. 463.

121 Ibid., p. 425.

122 In 1922, the Congress Working Committee specifically prohibited social boycotts. Instead, only the ‘force of public opinion and the truthfulness of Panchayat decisions’ should ‘ensure obedience to them’. See ‘Proceedings of the Meeting of the Working Committee held at Mahatma Gandhi's Residence at Bardoli on the 11th and 12th February 1922’, Report of the Civil Disobedience Enquiry Committee, Appendix XIH, p. 4.

123 CWMG, vol. 66, pp. 65–6.

124 Rushbrook Williams, India in 1921--22, pp. 69–70.

125 Amrita Bazar Patrika, 24 April 1921.

126 See Bamford's confidential report on the history of the Non-Cooperation Movement reprinted in Chopra P. N. (ed.), India's Major Non-Violent Movements, 1919–1934: British Secret Reports on Indian People's Peaceful Struggle for Political Liberation, Vision Books, New Delhi, 1979, p. 99.

127 Report of the Civil Disobedience Enquiry Committee, p. 50.

128 Ibid.

129 Brown, Gandhi's Rise to Power, p. 280; Kunte, Non-Co-Operation Movement, p. 9.

130 On Tamil Nadu, see Irschick, Politics and Social Conflict, pp. 196–8; on Andhra, see Washbrook D., ‘Country politics: Madras 1880 to 1930’, Modern Asian Studies, vol. 7, no. 3, 1973, pp. 528–9.

131 CWMG, vol. 27, 17 March 1924, p. 259.

132 Young India, 8 December 1921, quoted in Report of the Civil Disobedience Committee, p. 50.

133 CWMG, vol. 52, 28 May 1931, pp. 191–3.

134 Ibid., p. 193.

135 Ibid.

136 See Baxi U. and Galanter M., ‘Panchayat justice: an Indian experiment in legal access’ in Access to Justice: Vol. III: Emerging Issues and Perspectives, Cappelletti M. and Garth B. (eds), Guiffre, Milan; Sijthoff and Noordhoff, Alphen aan den Rijn, 1979, pp. 341–86; Meschievitz C. S. and Galanter M., ‘In search of Nyaya panchayats: the politics of a moribund institution’ in The Politics of Informal Justice, Volume 2: Comparative Studies, Abel Richard L. (ed.), Wiley, New York, 1982, pp. 4777 ; Government of India, Ministry of Panchayati Raj, The Nyaya Panchayats Bill, 2009; and ‘Law ministry raises constitutional validity of Nyaya panchayat bill’, The Economic Times, 23 April 2015.

* Many thanks to Marc Galanter, Mitra Sharafi, and the members of the South Asia Legal Studies Working Group at the UW-Madison Law School for comments on an earlier draft of this article. Any errors, of course, are the author's own.

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