Freedom Through Disobedience

by Chitta Ranjan Das

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.