THREE LAWYERS and India's Partition
The most important dramatis personae of the saga of religion based partition of India into Muslim Pakistan and Hindu India in 1947 are Mahatma Gandhi, Jawahar Lal Nehru and Mohammed Ali Jinnah. All the three were lawyers by profession, being barristers from London. The three were not unanimous on the question of the Partition. While Jinnah vehemently demanded the partition of the country, Gandhi and Nehru opposed it with equal vigour. In the argument between these two sets of lawyers, Mohammed Ali Jinnah won, and the Gandhi-Nehru duo lost their case. The country was partitioned. It may be interesting to examine the legal competence of the two sets of lawyers.
In 1891, Mohandas Karamchand Gandhi returned to India from England with Bar-at law degree from London, but he decided not to start his legal practice in Rajkot for the reasons given in his autobiography: "To start practice in Rajkot would have meant sure ridicule. I had hardly the knowledge of a qualified Vakil, and yet I expected to be paid ten times of his fees. No client would be foolish enough to engage me…"
On the advice of his friends and well wishers, barrister Gandhi decided to shift to Bombay for practice as mentioned in his autobiography---"Friends advised me to shift to Bombay for some time in order to gain experience of High Court, to study Indian law and try to get what briefs I could. I took up the suggestion and went."
Barrister Gandhi set up a home in Bombay, but his practice did not pick up. He remained briefless. In five months, he got only one case, that too of a "small causes court," for which he was to be paid only rupees thirty. But when he rose up to cross-examine the plaintiff's witness, he felt his "heart sank into his boots." He remained tongue-tied and could not think of any question to put to witness in cross-examination. The Judge and the whole court laughed at him. The client engaged another lawyer for Rs.51/- and won the case. He writes in his autobiography: "It was impossible for me to get along for more than four months, there being no income to square with the ever-increasing expenditure." He marched back to Rajkot.
At Rajkot, Gandhi set up his practice and earned about Rs. 300/ per month by drafting memorials, petitions and representations: courtesy the business partner of his elder brother, who was a lawyer. He still did not get a case to file and argue in Court.
At this point, an ugly incident marred Gandhi's stay at Rajkot. In the words of his biographer Louis Fischer, his elder brother "Laxmidas had been secretary and adviser to the throne of Porbander. He was thus destined, it seemed, to follow in father's and grand-father's footsteps and become the Prime Minister of the little State. But he had lost favour with British Political Agent. Now Gandhi had casually met the Agent in London. Laxmidas therefore wanted his brother to see the Englishman and adjust matters. Gandhi did not think it right to presume on a slight acquaintance and ask an interview for such a purpose. but he agreed to his brother's importuning. The agent was cold: Laxmidas could apply through the proper channels, if he thought he had been wronged. Gandhi persisted. The agent showed him the door; Gandhi stayed to argue; the agent's clerk or messenger took hold of Gandhi and put him out."
Gandhi threatened to sue the agent for assaulting him through his peon. The Agent replied back with arrogance: "You are at liberty to proceed as you wish." The briefless barrister, on the advice of legal luminary of those times, Pheroze Shah Mehta pocketed the insult and gave up the idea of suing the Agent. At this juncture, his elder brother suggested that he may take up a job with M/s Dada Abdulla & Co., a firm with business in South Africa. He was offered ' first class return-fare and $ 105/-, all found'. He was required to stay in South Africa without his family, and the job was only for one year. The job did not enthuse Gandhi. But he saw no future of his legal practice at Rajkot. In Gandhi's words—"the quarrel with the sahib stood in the way of my practice." He, therefore, had no option but to accept it. He writes in his autobiography: "This was hardly going there as a barrister. It was going there as a servant of the firm. But I somehow wanted to leave India…Also I could send $ 105/- to my brother and help him in expenses of house-hold. I closed with the offer without haggling, and got ready to go to South Africa." In South Africa, barrister Gandhi was required to translate Gujrati documents into English for the cases related to M/s Dada Abdulla & Co., and not conduct cases in the Court of law. Once in South Africa, his one year tenure got extended, and in due course, he also got opportunity to visit and argue in courts. But his legal practice remained generally confined to lower courts, pertaining to petty cases of Indian labour and small businesses.
When in 1915, Gandhi returned to India from South Africa, he was known for his passive resistance movements, and not for legal excellence.
JAWAHER LAL NEHRU
Jawaher Lal Nehru was hardly a Lawyer to speak about. He had studied Law in London. In the words of Nehru himself: "My law studies did not take up much time and I got through the Bar examinations, one after the other, with neither glory, nor with ignominy." In summer of 1912, he was called to Bar, and thereafter he returned to India, to join his father in his legal practice. His father Moti Lal Nehru was one of the top lawyers of Allahabad High Court. He had a roaring practice. But Jawahar Lal failed to be the worthy successor of his father. He found the legal practice 'boring'. In his autobiography, he writes: "I felt dissatisfied with life in those early years, after my return from England. My profession did not fill me with a whole-hearted enthusiasm." (J.L. Nehru: Autobiography: p.30)
Jawaher Lal Nehru was more interested in politics than in his legal profession. He carried on his practice, indifferently, from 1912 to1920. Since his heart was elsewhere, his practice was insignificant. He did not earn enough, to support himself and his family. They were entirely dependent on his father, who used to deposit ten thousand rupees each year in Jawaher's account to take care of his and his wife's sundry expenses. But like all fathers, Moti Lal also wanted his son to be self-reliant and exert more in his profession, so that he may flourish and cease to be dependent on him. Around 1920, he even ceased going to High Court. He got involved in politics with greater vigour. This widened the rift between the father and the son, to such an extent that one day Moti Lal declared that he would not give money to him any further. Jawaher was upset. He reacted with sullen anger. He stopped taking food in his father's house. He asked his wife also to do the same. He and his wife survived a few days on roasted grams and jiggery. He wore unwashed clothes, because he did not like to avail the laundry services available in his father's house. Jawaher wrote a letter to Gandhiji, seeking his advice and help.
Gandhiji by his letter of 24th Sept. 1924 replied: "I have received your heart-rending personal letter… At present your father is annoyed, and I would not like you or anyone else to increase his annoyance. If possible, you may have candid talk with him and not do anything that may further annoy him…Should I arrange for some money for you? Why do you not take up some work that may give you some earning? You may live in your father's house, but ultimately you have to make a living by your own hard work. Will you like to be correspondent with some newspapers or you would like to teach?"
With the intervention of Gandhiji and the then Congress President Mohammed Ali, there was tearful reconciliation between father and son. The father resumed the payment of yearly assistance to his son and the son was happy to accept the same.
After 1924, Jawaher Lal Nehru put on lawyer's black gown only on one other occasion. In 1946, when the trial of INA (Indian National Army) officers---Shah Nawaz, Dhillon and Sehgal was going on in Delhi's Red Fort, Nehru put on Lawyers' gown and visited the court , just for one day as defense lawyer. It was not a professional legal act, but one-day cosmetic exercise in public relations.
In short, Nehru's tryst with legal profession was indifferent and short-lived, that did not qualify him to be ranked among the top lawyers.
MOHD. ALI JINNAH
Mohammed Ali Jinnah was also trained as a barrister in London. Like his rival bête noir Gandhi, he returned to India after completing his legal education there. He set up his practice in Bombay. The first three years of his career were of struggle. Thereafter he did not look back.
The young barrister soon caught the eyes of Bombay's acting Advocate General Macpherson. He was impressed by Jinnah's advocacy in some cases, he happened to see, as also by his dignified bearing and self-confidence. He invited Jinnah to work in his office. It was a God-sent opportunity that opened portals of opportunities for Jinnah. It enabled him to inter-act with legal elite of Bombay. He came in contact with Sir Charles Olivent, judicial member of provincial government of Bombay. He got so impressed with Macpherson's assistant, that he offered him to serve as temporary third Presidency Magistrate. Jinnah accepted the offer. But in six months, he got bored. He felt shackled. He wanted to fly and explore the expanse of sky. He resigned. Sir Charles Olivent did not want to lose him. He offered to appoint him as Permanent Presidency Magistrate of Bombay on a salary of Rs, 1500/- per month. It was a salary that was paid to ICS officers in those days. But Jinnah declined. He said that soon he will be able to earn this amount in a single day. His self confidence was not without any basis.
After relinquishing the job, within six months he earned enough to rent new premises and set up his full-fledged office. By 1940, he was earning about Rs.40000/- each month. Jinnah was regarded as one of the top lawyers of the country. In 1908, Bal Gangadhar Tilak requested Jinnah to defend him, when British had slapped a case of treason against him. Jinnah was again invited by Tilak to defend him in a case framed by British Govt. against him. His reputation soared to new heights when he won Bhopal Waqf case against the legendry Lawyer Sir Tej Bahadur Sapru.
As a lawyer, he was superb in arguments and faced senor lawyers with courage and conviction. The same confidence he carried to Viceroy's Legislative Council, when he was elected to it. In its very first session held in 1910, Jinnah had the courage to cross sword with Viceroy Lord Minto
All the three, Gandhi, Nehru and Jinnah had their legal education in London. All the three were barristers. Of these, Gandhi was a retired lawyer who had a mediocre legal career. Nehru was a reluctant lawyer, who had hardly any practice during his years in Allahabad High Court. Against it, Jinnah was a top, reputed and renowned lawyer of the country.
It is universally accepted that a case is won or lost, largely on the comparative competence of the lawyers of the two sides. In the case of the Partition of India, India lost because the other side had a more competent lawyer.