As I stand before you to-day, a sense of overwhelming loss overtakes me,
and I can scarce give expression to what is uppermost in the minds of all
and everyone of us. After a memorable battle which he gave to the
Bureaucracy, Mahatma Gandhi has been seized and cast into prison; and we
shall not have his guidance in the proceedings of the Congress this year.
But there is inspiration for all of us in the last stand which he made in
the citadel of the enemy, in the last defiance which he hurled at the
agents of the Bureaucracy. To read a story equal in pathos, in dignity,
and in sublimity you have to go back over two thousand years, when Jesus
of Nazareth, "as one that perverted the people" stood to take his trial
before a foreign tribunal.
"And Jesus stood before the Governor: and the Governor asked him saying,
Art thou the king of the Jews? And Jesus said unto him, Thou sayest.
"And when he has accused of the chief priests and elders, he answered
nothing.
"Then said Pilate unto him, Hearest thou not how many things they witness
against thee?
"And he answered him too never a word; insomuch that the Governor
marvelled greatly."
Mahatma Gandhi took a different course. He admitted that he was guilty,
and he pointed out to the public Prosecutor, that his guilt was greater
than he, the Prosecutor, had alleged; but he maintained that if he had
offended against the law of Bureaucracy in so offending, he had obeyed the
law of God. If I may hazard a guess, the Judge who tried him and who
passed a sentence of imprisonment on him was filled with the same feeling
of marvel as Pontius Pilate had been.
Great in taking decisions, great in executing them, Mahatma Gandhi was
incomparably great in the last stand which he made on behalf of his
country. He is undoubtedly one of the greatest men that the world has ever
seen. The world hath need of him and if he is mocked and jeered at by "the
people of importance," the "people with a stake in the country"--Scribes
and Pharisees of the days of Christ he will be gratefully remembered now
and always by a nation which he led from victory to victory.
"LAW AND ORDER"
Gentlemen, the time is a critical one and it is important to seize upon
the real issue which divides the people from the Bureaucracy and its
Indian allies. During the period of repression which began about this time
last year, it was this issue which pressed itself on our attention. This
policy of repression was supported and in some cases instigated by the
Moderate Leaders who are in the Executive Government. I do not charge
those who supported the Government with dishonesty or want of patriotism.
I say they were led away by the battle cry of Law and Order. And it is
because I believe that there is a fundamental confusion of thought behind
this attitude of mind that I propose to discuss this plea of Law and
Order. "Law and Order" has indeed been the last refuge of Bureaucracies
all over the world.
It has been gravely asserted not only by the Bureaucracy but also by its
apologists, the Moderate Party, that a settled Government is the first
necessity of any people and that the subject has no right to present his
grievances except in a constitutional way, by which I understand in some
way recognised by the constitution. If you cannot actively co-operate in
the maintenance of "the law of the land" they say, "it is your duty as a
responsible citizen to obey it passively. Non-resistance is the least that
the Government is entitled to expect from you."
This is the whole political philosophy of the Bureaucracy--the maintenance
of law and order on the part of the Government, and an attitude of passive
obedience and non-resistance on the part of the subject. But was not that
the political philosophy of every English King from William the Conqueror
to James II? And was not that the political philosophy of the Romanoffs,
the Hohenzollerns and of the Bourbons? And yet freedom has come, where it
has come, by disobedience of the very laws which were proclaimed in the
name of law and order. Where the Government is arbitrary and despotic and
the fundamental rights of the people are not recognised, it is idle to
talk of law and order.
The doctrine has apparently made its way to this country from England. I
shall, therefore, refer to English history to find out the truth about
this doctrine. That history has recorded that most of the despots in
England who exercised arbitrary sway over the people proposed to act for
the good of the people and for the maintenance of law and order. English
absolutism from the Normans down to the Stuarts tried to put itself on a
constitutional basis through the process of this very law and order. The
pathetic speech delivered by Charles I. just before his execution puts the
whole doctrine in a nutshell. "For the people," he said, "truly I desire
their liberty and freedom as much as anybody whatsoever, but I must tell
you that their liberty and freedom consist in having Government, those
laws by which their lives and their goods may be their own. It is not
their having a share in the Government, that is nothing appertaining to
them. A subject and a sovereign are clear different things." The doctrine
of law and order could not be stated with more admirable clearness. But
though the English kings acted constitutionally in the sense that their
acts were in accordance with the letter of law and were covered by
precedents, the subjects always claimed that they were free to assert
their fundamental rights and to wrest them from the king by force or
insurrections. The doctrine of law and order received a rude shock when
King John was obliged to put his signature to the Magna Charta on the 15th
of June, 1215. The 61st clause of the Charter is important for our purpose
securing as it did to the subject the liberty of rebellion as a means for
enforcing the due observance of the Charter by the Crown. Adams, a
celebrated writer of English Constitutional History, says that the
conditional right to rebel is as much at the foundation of the English
Constitution to-day as it was in 1215. But though the doctrine of law and
order had received a rude shock it did not altogether die; for in the
intervening period the Crown claimed and asserted the right to raise
money, not only by indirect taxes but also by forced loans and
benevolences; and frequently exercised large legislative functions not
only by applying what are known as suspending and dispensing powers but
also by issuing proclamations. The Crown claimed, as Hallam says, "not
only a kind of supplemental right of legislation to perfect and carry out
what the spirit of existing laws might require but also a paramount
supremacy, called sometimes the king's absolute or sovereign power which
sanctioned commands beyond the legal prerogative, for the sake of public
safety whenever the Council might judge that to be in hazard." By the time
of the Stuarts the powers claimed by the Crown were recognised by the
courts of law as well founded, and, to quote the words of Adams, "the
forms of law became the engines for the perpetration of judicial murders."
It is necessary to remember that it was the process of law and order that
helped to consolidate the powers of the Crown; for it was again and again
laid down by the Court of Exchequer that the power of taxation was vested
in the Crown, where it was "for the general benefit of the people." As
Adams says, "the Stuarts asserted a legal justification for everything
done by them," and, "on the whole, history was with the king."
But how did the Commons meet this assertion of law and order? They were
strict non-co-operators both within and outside the Parliament. Within the
Parliament they again and again refused to vote supplies unless their
grievances were redressed. The King retorted by raising Customs duties on
his own initiative and the courts of law supported him. The Commons passed
a resolution to the effect that persons paying them "should be reputed
betrayers of the liberties of England and enemies to the same." There was
little doubt that revolution was on the land; and King Charles finding
himself in difficulty gave his Royal Assent to the Bill of Rights on the
17th of June 1626. The Bill of Rights constitutes a triumph for N. C. O's;
for it was by their refusal to have any part or share in the
administration of the country that the Commons compelled the King to
acknowledge their Rights. The events that followed between 1629 and 1640
made the history of England. In spite of the Bill of Rights the King
continued to raise customs duties and Elliot and his friends were put on
their trial. They refused to plead and the result was disastrous for the
arbitrary power of the King. The King levied ship money on the nation. The
chief constables of various places replied that the sherrifs had no
authority to assess or tax any man without the consent of the Parliament.
On the refusal on the part of the people to pay the taxes, their cattle
was destrained and no purchaser could be found for them. The King took
the opinion of the Exchequer Court on the question "when the good and the
safety of the kingdom is concerned and the whole kingdom is in danger."
Mark how the formula has been copied verbatim in the Government of India
Act. "May not the king command all the subjects of his kingdom, to provide
and furnish such a number of ships with men, victuals and munitions and
for such time as he shall think fit for the defence and safeguard of the
Kingdom from such peril"--again the formula "and by law compel the doing
thereof in case of refusal any refractoriness? And whether in such case is
not the King the sole judge, both of the danger and when and how the same
is to be prevented?" The Judges answered in the affirmative and maintained
the answer in the celebrated case which Hampden brought before them.
I desire to emphasise one point and that is that throughout the long and
bitter struggle between the Stuarts and Parliament, the Stuarts acted for
the maintenance of Law and Order, and there is no doubt that both law and
history were on their side. On the eve of the Civil War, the question that
divided the parties was this: could the Crown, in the maintenance of Law
and Order, claim the passive obedience of the subject or was there any
power of resistance in the subject, though that resistance might result in
disorder and in breaches of law? The adherents of the Parliament stood
for power and the majesty of the people, the authority and independence
of Parliament, individual liberty, the right to resist and the right to
compel abdication and deposition of the Crown, in a word, they stood by
them against the coercive power of the State. The adherence of the Crown
stood for indefeasible rights--a right to claim passive obedience and
secure non-resistance on the part of the subject through the process of
Law and Order; in a word, they stood for State coercion and compulsory
co-operation against individual liability.
The issue was decided in favour of Parliament but as it must happen in
every war of arms, the victory for individual liberty was only temporary.
Though the result of Civil War was disastrous from the point of view of
individual liberty, and though it required another revolution--this time,
a non-violent revolution--to put individual liberty on a sure foundation
"the knowledge that the subject had sat in rude judgment on their King,
man to man, speeded the slow emancipation of the mind from the shackles of
custom and ancient reverence."
The Revolution of 1688--a bloodless revolution--secured for England that
Rule of Law which is the only sure foundation for the maintenance of Law
and Order. It completed the work which the Long Parliament had begun and
which the execution of Charles I. had interrupted. But how was the
peaceful revolution of 1688 brought about? By defiance of authority and by
rigid adherence to the principle that it is the inalienable right of the
subject to resist the exercise by the executive of wide, arbitrary or
discretionary powers of constraint.
The principle for which the revolution of 1688 stood was triumphantly
vindicated in the celebrated case of Dr. Sacheverell. In the course of a
sermon which he had preached, he gave expression to the following
sentiment. "The grand security of our Government and the very pillar upon
which it stands is founded upon the steady belief of the subjects'
obligation to an absolute and unconditional obedience to the supreme power
in all things lawful and the utter illegality of resistance on any
pretence whatsoever." This is the doctrine of passive obedience and
non-resistance the doctrine of law and order, which is proclaimed to-day
by every bureaucrat in the country, foreign or domestic and which is
supposed to be the last word on the subjects' duty and Government's
rights. But mark how they solved the problem in England in 1710. The
Commons impeached Dr. Sacheverell giving expression to a view so
destructive of individual liberty and the Lords by a majority of votes
found him guilty. The speeches delivered in the course of the trial are
interesting. I desire to quote a few sentences from some of those
speeches. Sir Joseph Jekyll in the course of his speech said, "that as
the Law is the only measure of the Princes' authority and the peoples'
subjection, so the law derives its being and efficacy from common consent;
and to place it on any other foundation than common consent is to take
away the obligation." This notion of common consent puts both prince and
people under, to observe the laws.
"My Lords, as the doctrine of unlimited non-resistance was impliedly
renounced by the whole nation in the resolution, so diverse Acts of
Parliament afterwards passed expressing their renunciation, ... and,
therefore I shall only say that it can never be supposed that the laws
were made to set up a despotic power to destroy themselves and to warrant
subversion of a constitution of a Government which they were designed to
establish and defend." Mr. Walpole put the whole argument in a nutshell
when he said, "the doctrine of unlimited, unconditional passive obedience
was first invented to support arbitrary and despotic power and was never
promoted or countenanced by any Government that had not designs sometime
or other of making use of it." The argument against the doctrine of Law
and Order could not be put more clearly or forcibly, for his argument
comes to this: "that the doctrine is not an honest one if law and order is
the process by which absolution consolidates its powers and strengthens
its hand." I will make one more quotation and that is from the speech of
Major-Gen. Stanhope. "As to the doctrine itself of absolute
non-resistance, it should seem needless to prove by argument that it is
inconsistent with the law of reason, with the law of Nature and with the
practice of all ages and countries.... And indeed one may appeal to the
practice of all Churches and of all states and of all nations in the
world, how they behaved themselves when they found their civil and
religious constitutions invaded and oppressed by tyranny."
This then is the history of the freedom movement in England. The
conclusion is irresistible that it is not by acquiescence in the doctrine
of Law and Order that the English people have obtained the recognition of
their fundamental rights. It follows from the survey that I have made
firstly that no regulation is law unless it is based on the consent of the
people; secondly where such consent is wanting the people are under no
obligation to obey; thirdly, where such laws are not only not based on the
consent of the people but profess to attack their fundamental rights the
subjects are entitled to compel their withdrawal by force or
insurrections; fourthly, that Law and Order is and has always been a plea
for absolutism and lastly there can be neither law nor order before the
real reign of Law begins.
I have dealt with the question at some length as the question is a vital
one and there are many Moderates who still think that it is the duty of
every loyal subject to assist the Government in the maintenance of Law and
Order. The personal liberty of every Indian to-day depends to a great
extent on the exercise by persons in authority of wide, arbitrary or
discretionary powers. Where such powers are allowed the rule of law is
denied. To find out the extent to which this exploded doctrine of Law and
Order influences the minds of sober and learned men we have only to read
the report of the Committee appointed to examine the repressive laws. You
will find in the report neither the vision of the patriot nor the wisdom
of the statesman; but you will find an excessive worship of that much
advertised but much misunderstood phrase "Law and Order." "Why is
Regulation III of 1818 to be amended and kept on the Statute Book?"
Because for the protection of the frontiers of India and the fulfilment of
the responsibility of the Government of India in relation to Indian States
there must be some enactment to arm the executive with powers to restrict
the movements and activities of certain persons, who though not coming
within the scope of any criminal law have to be put under some measure of
restraint. Why are the Indian Criminal Law Amendment Act 1908 and the
Prevention of Seditious Meetings Act 1911 to be retained on the Statute
Book? For the preservation of law and order? They little think these
learned gentlemen responsible for the report that these Statutes, giving
as they do to the Executive wide, arbitrary and discretionary powers of
constraint, constitute a state of things wherein it is the duty of every
individual to resist and to defy the tyranny of such lawless laws. These
Statutes in themselves constitute a breach of law and order, for, law and
order is the result of the rule of law; and where you deny the existence
of the rule of law, you cannot turn round and say it is your duty as
law-abiding citizens to obey the law.
We have had abundance of this law and order during the last few years of
our National History. The last affront delivered to the nation, was the
promulgation of an executive order under the authority of the Criminal Law
Amendment Act making the legitimate work of Congress Volunteers illegal
and criminal. This was supported by our Moderate friends on the ground
that it is the duty of the law-abiding subject to support the maintenance
of law and order. The doctrine, as I said before, has travelled all the
way from the shores of England. But may I ask--is there one argument
advanced to-day by the Bureaucracy and its friends which was not advanced
with equal clearness by the Stuarts? When the Stuarts arrogated to
themselves a discretionary power of committing to prison all persons who
were on any account obnoxious to the Court, they made the excuse that the
power was necessary for the safety of the nation. And the power was
resisted in England, not because it was never exercised for the safety of
the nation, but because the existence of the power was inconsistent with
the existence, at the same time of individual liberty. When the Stuarts
claimed the right to legislate by proclamation and by the wide exercise of
suspending and dispensing powers they did so on the express ground that
such legislation was necessary for public safety. That right was denied by
the English nation, not because such legislation was not necessary for
public safety but because such right could not co-exist with the
fundamental right of the nation to legislate for itself. Is the power of
the Governor-General to certify that the passage of a Bill is essential
for safety or tranquility or interest of British India, any different from
the power claimed by the Stuarts? There is indeed a striking resemblance
between the power conferred on the Governor-General and the Governors of
the provinces and the powers claimed by the Tudors and the Stuarts. When
the Stuarts claimed the right to raise revenue on their own initiative,
they disclaimed any intention to exercise such right except "when the good
and safety of the kingdom in general is concerned and the whole kingdom is
in danger." That right was resisted in England, not because the revenues
raised by them were not necessary for the good and safety of the kingdom,
but because that right was inconsistent with the fundamental right of the
people to pay such taxes only as were determined by the representatives of
the people for the people. Is the power conferred on the Governor to
certify that the expenditure provided for by a particular demand not
assented to by the legislature is essential to the discharge of his
responsibility for the subjects, any different from the power claimed by
the Stuarts? It should be patent to everybody that we do not live under
any history of England as proclaimed that it is idle to talk of the
maintenance of law and order when large discretionary powers of constraint
are vested in the executive. The manhood of England triumphantly resisted
the pretensions of "Law and Order." If there is manhood in India to-day,
India will successfully resist the same pretensions, advanced by the
Indian Bureaucracy.
I have quoted from English History at length, because the argument
furnished by that history appeals to people who are frightened by popular
movement into raising the cry of "law and order." Follow the lines laid
down in that History. For myself, I oppose the pretensions of "law and
order" not on historical precedent, but on the ground that it is the
inalienable right of every individual and of every nation to stand on
truth and to offer a stubborn resistance to the promulgation of lawless
laws. There was a law in the time of Christ which forbade the people from
eating on the Sabbath, but allowed the priests to profane Sabbath. And how
Christs dealt with the law is narrated in the New Testament.
"At that time Jesus went on the Sabbath day through the corn; and his
disciples were an hungered, and began to pluck the ear of corn and to eat.
"But when the Pharisses saw it, they said unto him, Behold, thy disciples
do that which is not lawful to do upon the Sabbath day.
"But he said unto them, have we not read what David did, when he was an
hungered and they that were with him;
"How he entered into the House of God and did eat the shew bread, which
was not lawful for him to eat, neither for them which were with him, but
only for the priests?
"Or have we not read in the law, how that on the Sabbath days the priests
in the temple profaned the Sabbath and are blameless?"
The truth is that law and order is for man, and not man for law and order.
The development of nationality is a sacred task and anything which impedes
that task is an obstacle which the very force and power of nationality
must overcome. If therefore you interpose a doctrine to impede the task
why, the doctrine must go. If you have recourse to law and order to
establish and defend the rule of law, then your law and order is entitled
to claim the respect of all law-abiding citizens, but, as soon as you have
recourse to it not to establish and defend the rule of law, but to
destroy and attack it, there is no longer any obligation on us to respect
it, for a Higher Law, the virtual law, the Law of God compels to offer our
stubborn resistance to it. When I find something put forward in the sacred
name of law and order that it is deliberately intended to hinder the
growth, the development, and the self-realization of the nation, I have no
hesitation whatever in proclaiming that such law and order is an outrage
on man and an insult to God.
But though our Moderate friends are often deluded by the battle cry of law
and order, I rejoice when I hear that cry. It means that the Bureaucracy
is in danger and that the Bureaucracy has realised its danger. It is not
without reason that the false issue is raised and the fact a false issue
has been raised fills me with hope and courage. I ask my countrymen to be
patient and to press the charge. Freedom has already advanced when the
alarm of law and order is sounded; that is the history of Bureaucracies
all over the world.
In the meantime it is our duty to keep our ideal steadfast. We must not
forget that we are on the eve of great changes, that world forces are
working all around us and that the battle of freedom has yet to be won.