-30_Facts and Comments 4-9-1909.htm

Facts and Comments

Volume I – Sept. 4, 1909 – Number 11

The Kaul Judgment

                                      The Kaul Boycott case which has attracted some comment in the Press is one which ought to be drawn more prominently into public notice. The Settlement Patwary of Kaul together with four leading Banias, two Zamindars and a Brahmin of the place were charged by the police with having held a Boycott meeting which endangered the peace of the town. It is alleged that they agreed to impose a penalty upon all persons using foreign sugar after a certain date and a heavier fine on any one importing the commodity. It does not appear that there was any complaint from a single person in the neighbourhood as to any such meeting being held, still less to their being inconvenienced or stopped in their avocations by any action or threatened action on the part of the defendants. But on the ipse digit of the complaining constable the defendants were found guilty and bound over to keep the peace. The defendants themselves denied the meeting and alleged that they took no part in politics and were guiltless of any religious objection to foreign sugar. In itself the case appears to be a judicial vagary of the worst kind. But the remarkable pronouncements of the Sub-divisional Officer of Kaithal on the juristic aspects of the case make it of more than local importance. Mr. Garett in his judgment starts a very surprising metaphysical argument by drawing a nice distinction between illegal, non-legal and wrongful acts. Illegal acts are those against which the law provides a penalty either by criminal or civil action. Non-legal acts are those which are contrary to public policy but are left to social opinion to discourage. Wrongful acts, according to Mr. Garett, are those which being neither illegal nor non-legal are yet abhorrent ‘to the moral sense of men of reason. We do not know if this remarkable definition of wrongful acts will be supported by lawyers. But Mr. Garett farther improves on these distinctions by assevering on the strength 

of an Irish judgment that a perfectly legal action becomes illegal when it is done by many persons in combination, provided any one can show that his interests as an individual or as one of a class are aimed at or necessarily injured. In order that we may not be accused of misrepresenting the learned Sub-divisional Officer we quote the words of the judgment. "Without quoting chapter, verse and date I call to mind the judgment of the late Lord Chief Justice of Ireland, I believe Baron Rolleston, in what is known as the Baker’s Case. In that case it was held that the baker had a cause of action against the farmers of the village in which he established a bakery because they combined to boycott his bakery by each establishing a kitchen for the preparation of the bread for themselves and their servants, their motive being simply a difference on political grounds. The Irish farmers did not go so far as the defendants are said to have gone in this case, and they in nowise interfered with the baker personally. The illegality of their action consisted in their combining to do an act which if done separately would have been legal. The learned Judge observed to the effect that whereas a single man may be left to work out his own salvation when opposed by an individual he could claim protection from a combination. In that case there were no proposals to inflict fines or outcaste, yet the act was held illegal. It is very certain therefore that an act which in violence far outstrips that, is, if not illegal, at least wrongful."

The Implications in the Judgment

That is the judgment. It’ is obvious that these remarkable dicta have very wide implications and, if upheld, make every combination harmful to personal or class interests impossible under the law. That has been for some time the tendency of magisterial decisions in India. Every action for instance which may be objectionable to a number of Mahomedans is now liable to be forbidden because it is likely to lead to a breach of the peace, and one is dimly beginning to wonder whether the day may not come when worship in Hindu temples may be forbidden on that valid ground. Under Mr. Garett’s dictum it seems to depend purely

on the bias of the judge what action will or will not be allowed by the law. A teetotal judge may easily penalise a party of men going into a public house to drink, because it is an action abhorrent to his moral sense as a man of reason. And certainly it would not be unarguable that such a combined action might very easily lead to a breach of the peace, much more easily than the meeting of a few hundred or thousand men on the Boycott day. By his other dictum every caste decision forbidding a breach of caste rules is a punishable act, every trade strike is a punishable act, every National School Committee is liable to an action under the law for injuring the interests of the local Government school, every big concern aiming at the extinction in a locality of the retail shopkeeper and the capture of his business commits a wrongful act, or an illegal act — it is not clear which; all Swadeshi, Boycott, National Education movements are objectionable. The Tariff Reform movement itself is only saved by being directed against men outside the country, even if it is so saved, for after all it affects adversely the middlemen who bring in foreign manufactures. Even if, driven beyond endurance by my dhobi’s delays, I combine with some friends to open and patronise a laundry, I can be stopped by a magisterial sympathiser with the rights of the individual. If this is Irish law, all we can say is that it is very Irish indeed and we do not yearn to have it imported into India. The object of the learned Magistrate was no doubt to aim a blow at the Swadeshi movement which is probably abhorrent to his moral sense as a man of reason. The Sessions Judge has refused to interfere with the discretion of the executive, but there is more here concerned than the discretion of the executive. There is a very original and far-reaching elucidation of the law behind the executive discretion. We hope that the victimised citizens of Kaul will carry their appeal higher and get a more authoritative pronouncement on the juristic philosophy of the learned Mr. Garett. 

The Social Boycott

The reason why we have drawn so much attention to this case is its intimate connection with the question of social boycott. 

We are advocates of this weapon not in all cases, but in circumstances where milder expedients are impotent to prevent a wound to the body social or body politic by refractory or conscienceless individuals who wish to enjoy all the benefits of social existence while disregarding the vital necessities of the society. We are aware of the grave consequence of the misuse of the social boycott to prevent the legitimate exercise by the individual of his free reason and honest conviction. We therefore advocate it only in very serious instances where the whole community is attacked in a vital point and is practically at one in resenting the act as fatally injurious to it. For instance when the turbulent Mahomedans of Eastern Bengal made an organised attack on the property of Hindus and on the honour of Hindu women, the Hindu community of East Bengal would have been perfectly justified in boycotting Mahomedans as servants. Similarly, now that the educated classes of the Hindu community are at one in the belief that the Swadeshi movement supported by Boycott is necessary to the economical existence of their community, to say nothing of the whole nation, they are justified in refusing to have any dealings with those who out of personal and selfish motives deal a blow at that movement by persisting in the purchase of foreign articles. The use of this weapon of self-defence by Hindu castes became hurtful because it was applied without discrimination and not always with honesty. Had it been confined to cases of gross moral depravity destructive of social order, there would have been no revolt against it. The penalising of the pursuit of education in foreign countries and similar blunders recoiled on the caste system and it is notable that communities with a strong democratic common-sense like the Mahrattas have even while adhering to orthodox religion avoided the worst of these errors. But the misuse of a necessary instrument is no argument against its necessary and discriminating use. We hold the use of this instrument, not in all cases but in the most heinous, to be legitimate in protecting the life of the nation. 

The Law and the Nationalist

There are several points connected with the national movement 

in which the law is in a state of dangerous uncertainty. The exact limit of sedition is one of them, the matter of social boycott is another. We believe that social boycott involving no violence or direct coercion is perfectly legal but it is certain that not only the Anglo-Indian community at large but a portion of the judiciary would be glad to find it illegal. Any doubt on such subjects ought to be removed, for although ignorance is in itself no excuse in law, it ought to be a defence when it is created by the uncertainties of the law itself. We think the Nationalists ought to take every opportunity of testing the extent of the liberties still allowed to us in the ordinary course of the law. We are aware that a section of Nationalist opinion has held that our principle of Swadeshi Boycott ought to debar us from taking any part in any legal proceedings whatever. While many of us had openly expressed our admiration for the heroic stoicism with which this principle has been adhered to in many cases, we have not held it binding on any except those fine consciences to whom it appealed nor would we allow it to guide our own action. We hold that no^Nationalist should resort to the British Courts under the present political conditions as against a brother Nationalist or in any circumstances which give him a real choice. If he is dragged to the criminal or civil courts by others he is entitled to defend himself to the end by all means that the law provides. If arbitration is refused in a case where his interests are attacked, he is absolved from the self-denying obligation, or if the law of the land compels him as a landholder or propertied or business man to protect himself by certain legal forms, it is obvious that he cannot deny himself that protection without imperilling work or wealth necessary to the nation. The same overriding rule of necessity which compels us to exclude machinery and other instruments of education, work and production from the Boycott, limits the application of the arbitration principle and the abstention from British Courts. Formerly we were content to go our way in doubtful cases, such as the limits of the law of sedition, putting our own interpretation and taking the consequences of a too elastic reading of the law. We even held ourselves justified in the case of unjust and arbitrary laws in breaking them not by violence but peacefully and passively, as the Dissenters did in

England, so as to get them either tested or altered. This we still hold to be morally and politically justifiable. But the outbreak of Terrorism compels us to restrict our circle of passive resistance lest even by the most peaceful rejection of unjust laws we should seem to be encouraging lawlessness and disorder. Still, if we are to observe the law scrupulously, just or unjust, we must know what the law is, and now that there is a man at the head of judicial administration who knows the law and tries to keep to it, we ought to take advantage of this now unusual circumstance and use every opportunity to fix the legal position of our movement and its methods.