This article was written by Phalguni Mahapatra, a student of Hidayatullah National Law University.

According to Gandhi every breach is a crime and whoever breaches is a criminal.[1]No w he says there are two types of Criminals – political & non political.[2] He reffered Politicals as friend of State & non-politicals as enemy of Society.[3] He further states that these criminals must be kept in different compartmentalised system so that vice of one may not badly influence the other.[4] When he talked about jails though he said that jails should be converted into reformation centres, he never advocated non existence of jails in free India.[5] The status of jail staff must be like reformers or physician curing the bad out of the criminals.[6] While punishing the criminals this must be kept in mind that punishment must be for the purpose of improving the society and thus the wrongdoers.[7]Gandhi was of the opinion that don’t hurt wrongdoers.[8] He was of the opinion, hate sin and not the sinner.[9]

He states that society commits crime and criminals commit it.[10] It is the society which is the main sinner. The reasoning he gives behind this is that the society is morally corrupt sothey have no authority to punish the wrongdoers as a result. And the emergence of criminals from this society takes place precisely for the reason of their in accomplishment of desires. They blame corrupt system of the society for this & so adopt aggressive attitude towards it.[11]

So in order to do complete justice he worked to improve the vices of the society. He evolved his ‘theory of trusteeship’ where relationship of man with property was devoided rather it was to be set up that whatever man earns a portion of it would be kept as trust with the state so as to do welfare of the society. State is supposed to give equal opportunity and relief to people on the basis of their talents. Also one who earns more would pay more to the state.[12]  In this regard the scope of  interference of state in man’s life he states that, state is best which governs the least.[13] Democratic way of non-violence is best form of Government. So state should accordingly work in nonviolent way to improve criminals & imbibe in them non violent features.In regard to Capital punishment his views are very clear that such options of punishing debars a soul from rectifying itself & ameliorate itself.[14]On this basis only when Sec 235(2) is read with 354(3) of Cr.P.C. it gives Criminals with opportunities to propose punishments for them on providing certain evidences.[15]

Theory Of Legal Justice

According to Gandhi there are two systems of interactions which have to be analysed when we talk about Legal justice :-

1]  Between Individual & State,

2] Between one Individual & other Individual, or one  Individual &  Group of Indivduals.

1]  For the affairs which goes on between Individual & State, Gandhi very clearly states that final court of law is electoral as a whole in any country. If the law is corrupt one should openly disobey it .Now in order to decide if any law or act is unjust or not one should always seek help of his conscience. If it is unjust one should act passively against it. Being law abidding nation one should always prefer to lodge passive resistance.  In this regard law & religion, law &conscience, law & humans all vibrate on the same wavelength. All should be equally violated by showing the attitude of non-cooperation by the sufferers. However slavery consists in submitting to an unjust order. So disobedience must be lauged. However this non cooperation must be ordered & organised one.

There are two words, satya  and agraha. Satya is truth and agraha is one’s eagerness to follow the principles of truth.[16] This conviction of Gandhi got its thought from Bhagwat Gita to uproot ignorance. Ignorance that hurdles the way of progress.[17] “Progress” means the amelioration of the human condition. Progress is possible in history better through non-violence. Non-violent struggle is persuasion[18].The whole purpose of the encounter is winning over the heart and mind of the “enemy.”[19] We allow the “enemy” to inflict them on us without resistance. [20]We should say to the oppressor, “We think you are doing an injustice, but instead of seeking to punish and make you suffer for that, we will take the suffering and punishment on ourselves, to persuade you of our good will, sincerity, and truthfulness.”[21]

What appears to be truth to the one may appear to be error to the other.[22] Opinion so may vary from one person to another in this regard. Opinion appears as knowledge. So, secured in our beliefs, we go out to wreck violent destruction among irredeemable enemies. If all is opinion, we would have to sadly recognize that error is really inevitable and progress impossible. Gandhi expected success from Satyagraha just because of what that term meant to him:  “the force of truth.”[23] The power of truth is what ultimately persuades every opponent.[24] No one is morally bound to be persuaded by opinion but may be by truth.[25]

The conviction that morality is the basis of things and that truth is the substance of morality. Thus truth became my sole objective”. If progress in human purposes is really to be possible in history, then it seems to me that moral knowledge must be possible. With superior knowledge and understanding, we are presumably better able to persuade others and so transform history through the subtle effects of a diffusion of agreement and consensus. The principles of Satyagraha constitutes a gradual evolution.

Satyagraha differs from Passive Resistance The latter has been conceived as a weapon of the weak and does not exclude the use of physical force or violence for the purpose of gaining one’s end, whereas the former has been conceived as a weapon of the strongest and excludes the use of violence in any shape of form.

     2]    For when one Individual & other Individual, or one  Individual &  Group of Indivduals, people often seek help of court of law to get their disputes solved. However Court of Law , Judges  & lawyers are not required in civilised non-violent  society . They only add to the misery of the society. [26]It often results in economic, social, & moral consequences. It lacks development of moral, .People become unmanly.[27]  Resort to such a system is no more than helplessness. Extra expenditure and unnecessary delay is the consequence.[28]

According to him all these work must be transferred to panchayat.[29] It would work like an ad hoc arbitration tribunal. Its judges would be appointed by the elders of the village. The decisions of this court would not be binding. The court would be approached by people by their choice witout any force.[30] Aim is only to build up a well fabricated society. As about punishment to be awarded by these courts he keeps quite and says that most of it would depend on public opinion & social pressure.[31] He says even if present system of courts are allowed they should be allowed to develop on the basis of Bread Labour system. This explain that all the judges & lawyers must be allowed only some fixed amount of payment irrespective of the fact how much they have to work.[32]

[1]See Harijan, 2-11-1974, Vol. xi, p. 395.

[2] See M.K.Gandhi, Delhi diary (Ahmedabad :Navjivan Publishing House),1948,p.112.

[3] See The Collected Work of Mahatma Gandhi,(New Delhi Publication Division, Ministry of Information And broadcasting ,Govt. of India ), 1976,  p.19.

[4] See The Collected Work of Mahatma Gandhi,(New Delhi Publication Division, Ministry of Information And broadcasting ,Govt. of India ),Vol. XXIII, p.507.

[5] See Young India, 29-12-1921, Vol. III, p. 434.

[6] See Harijan, 6-4-1940; also see Harijan,  2-11-1947, Vol. XI, pp. 395-396.

[7] See supra note3 above  at pp.395-396.

[8] See Young India,12-3-1930, Vol. XI, p. 90.

[9] See M.K.Gandhi, An Autobiography, ………………………….p. 276.

[10] See Alfieriquoted in Crime and Punishment in new Perspective……………p.15; also see  The Collected Work of Mahatma Gandhi,(New Delhi Publication Division, Ministry of Information And broadcasting ,Govt. of India), Vol. XXIV, p.149.

[11] See Supra note 5 above.

[12] See Young India , 6-2-1930, Vol. XII , p. 44.

[13] See Harijan, 21-7-1947, Vol. III, p. 211.

[14] See D.G.Tendulkar & ors., Gandhiji – His Life & work, p. 381.

[15] See Sec. 235(2) & Sec. 354(3) of Criminal procedure Code,1973.

[16] See Speech On Hindu-Muslim Friendship, Bombay April 6, 1919 (The Bombay Chronicle, 7-4-1919).

[17] See Gita by Gandhi.

[18] See Indian Opinion, “Pretoria Municipality”, 30-4-1910; also see Indian Opinion, 11-6-1910.

[19]See  Indian Opinion, 26-11-1910; also see Harijan: May 14, 1938.

[20] See Young India: Feb,7,1925.

[21]See  ibid; also see Young India : Sept 15, 1927.

[22] See Young India: Mar .23.1921

[23] See Satyagraha in South Africa: p.113; also see Young India: Apr 27, 1921.

[24] See Harijan: Sept. 15, 1946.

[25] See Incidents of Gandhiji’s Life: p.282.

[26] See M.K.Gandhi, Hind Swaraj, 1938, p.51.

[27] See id at p. 51.

[28] See Young India, 23-7-1919, Vol. I, p.19.

[29] See supra note above 2, at p. 50

[30] See id.

[31] See M.K. Gandhi, An Autobiography, p. 97.

[32] See Harijan, 18-5- 1940, Vol. XI, p. 78.

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