M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  When Gandhi boarded the steamer SS Clyde for London, he found it impossible to speak with other passengers. His shipmate and fellow Indian the lawyer Tryambakrai Mazmudar urged him to deal with his unfamiliarity with English by conversing in English with their fellow travelers. Interestingly, Mazmudar even pointed out to Gandhi that such practice would do him good because “lawyers should have a long tongue.”10 Mazmudar put Gandhi on notice that he was entering a profession in which speech was considered a tool of the trade. Nothing, however, moved Gandhi; he abstained from social commerce.

  Little changed on his arrival in England. When Gandhi secured a room with a family in West Kensington, he found that the portions of food his landlady served him were too small. But the same mouth that craved to eat could not convince itself to speak. Gandhi found himself “as shy as ever and dared not ask for more than was put before [him].”11

  Gandhi’s involvement in the vegetarian movement brought him face-to-face with several opportunities for public speaking. He seems to have failed miserably at almost all of them. Indeed, Gandhi set a pattern: he would write out his remarks, practice them, arrive at the meeting, lose his nerve, and ask someone else to read his speech. For example, in a dispute within the leadership of the LVS, on whose Executive Committee he served, Gandhi was forced to take sides between its president, Arnold F. Hills, and Dr. Thomas R. Allinson, another member of the Executive Committee. Allinson had taken up the cause of birth control, leading to a motion by Hills to strip Allinson of membership in the society. Gandhi was opposed to birth control, but believed there should be no morals test for those who wanted to join; support of vegetarianism was enough. Gandhi decided to advocate for Allinson. He wrote out his speech but “had not the courage to speak.”12 Hills was gracious enough to find someone to read a speech attacking his own position.

  On another occasion, Gandhi and Mazmudar attended a vegetarian conference in Ventnor. While there, Gandhi met the author of a famous vegetarian tract who offered Gandhi the opportunity to speak at the conference, an invitation he accepted without hesitation. Once again Gandhi wrote out his remarks, and once again he appeared to deliver them. In terms reminiscent of his description of his cross-examination effort in the Mamibai case, Gandhi states what happened next: “I stood up to read it, but could not. My vision became blurred and I trembled, though the speech hardly covered a sheet of foolscap.” Once again, Gandhi was forced to find someone to read for him. While the audience received the talk well, Gandhi “was ashamed of [him]self and sad at heart for [his] incapacity.”13

  Demonstrating either his courage or his naïveté, Gandhi’s two earlier failures at public speech making did not deter him from a third attempt. The occasion this time was a farewell vegetarian dinner hosted by Gandhi for a group of friends on the eve of his departure from London. The scene was the Holborn, a conventional restaurant Gandhi had convinced to host a vegetarian banquet. Again Gandhi had prepared his remarks with care. When he stood, he found that he “could not proceed beyond the first sentence.”14 Gandhi had intended to begin with a bit of humor but, as he stalled after his first sentence, found that the only thing humorous was his attempt to speak in public. He gathered up just enough composure to blurt out his thanks to his guests for coming. He then sat down, defeated, once again, by himself.

  Was Gandhi’s difficulty that he obsessed over his prepared remarks, to the point of paralysis? Perhaps, but he also confesses that he had no aptitude for ex tempore speaking either. He was inept at both. The inability to deliver prepared remarks and the inability to speak extemporaneously must be counted as significant disabilities for one who intended to earn his living by speaking. Yet, years later, when writing his autobiography, Gandhi claimed that several advantages flowed from what he called his “constitutional shyness.” While he was in England, he says, he found that his shyness made it easier for him to keep his pledge to his mother to abstain from commerce with women. In the rest of his life, he found that shyness brought him the benefits of speaking little, namely that a studied silence permitted him to avoid thoughtless chatter, exaggeration, and untruths.

  VAKILS ON THE RISE

  It is one thing to muse about being tongue-tied in one’s memoirs. It is something altogether different to be tongue-tied in fact while trying to make a living as a barrister in the highly competitive atmosphere of nineteenth-century Bombay. Gandhi’s inability to speak in public must be understood as a limitation that rendered it virtually impossible for him to overcome a number of background factors that made his practice of law in India a chancy proposition at best.

  When Gandhi attempted to enter practice in India in 1891, he did so at a time when the Indian legal system was in the midst of a maelstrom of changes in terms of both the organization of the judiciary and the regulation of the practice of law. The High Court at Bombay had only recently been established, along with High Courts at the other two presidency towns of Madras and Calcutta, by the Indian High Courts Act of 1861.15 This act was part of a protracted process whereby the British government eventually took over virtually the entire judicial system in India.

  At the same time the court system was evolving, the legal profession was undergoing change. The profession, which got its start when the East India Company first established itself in India, had a history of being poorly organized and regulated,16 with a wide and confusing range of different types of practitioners, all competing for business.17 Well before Gandhi’s time, however, one clear distinction emerged—that between barristers and native practitioners. On the one hand, barristers, at first almost exclusively English, commanded enormous prestige—and enormous fees.18 Their status and their earning power were the result of two factors: the monopoly on practice barristers held for a considerable period of time and the small number of barristers available for hire. For a good part of the nineteenth century barristers alone were allowed to appear in the highest courts, leaving native practitioners to scratch out their livings in inferior tribunals. For some time barristers capitalized on their legal monopoly by keeping their own numbers low. In Bombay, for example, there were only two barristers in 1807, with the number rising to only thirteen by 1861. As one historian has noted, “Even a new practitioner could begin earning large sums almost immediately.”19 It was with this image of the profession in mind that Gandhi’s family had pooled its resources to give young Mohan a barrister’s education.

  In contrast, there existed a broadly defined class of practitioners trained in India, generally known as vakils, who were held in lower esteem, who commanded lesser fees, and whose practice was restricted to certain courts. These practitioners began with very limited roles in the legal system but transformed themselves over time into lawyers some of whose training was arguably better than that received by barristers in the Inn system. While the extent of his training and the precise nature of his practice are unknown, it is known that Gandhi’s brother, Lakshmidas, was such a practitioner.

  It was Gandhi’s misfortune to enter practice at a time when the power of vakils was on the ascendancy, while that of barristers was on the decline. From the mid-1800s on, the vakils campaigned with good effect for the right to practice in all courts and for the abolition of the distinctions among and between barristers (known as “advocates”), solicitors (known as “attorneys”), and vakils. Indeed, even before Gandhi took up practice in Bombay, vakils had been permitted to appear before the High Court there, shattering the monopoly barristers once had and greatly influencing the economics of law practice. To make matters worse, it became well known by 1890 that the practice of law could be a most lucrative profession. Accordingly, the profession attracted great numbers to its ranks at just the time Gandhi arrived in Bombay—only to see so many enter the profession that the supply of lawyers exceeded the public’s demand for them. With the laws of economics in play, many a young novice went without work.20

  NO CONNECTIONS, NO TOUTS, NO INCOME

  Gandhi’s own background provided him with no assets with which t
o succeed at the practice of law in this changing environment. Much of the Indian economy in the 1890s was tied to the land.21 When Gandhi entered practice, Indian capitalism was just starting to develop alongside the traditional agrarian economy. As the nineteenth century was coming to a close, these two forces, previously in balance, would interact, threatening society and the law with a tumultuous transformation that the Raj was not prepared to accept.22 Thrust into this period of swirling change, Gandhi could have exploited it had he had ties to either the rising capitalist elements or to the traditional agrarian economy. Gandhi, however, had no ties to the landed elite that would help him obtain work representing landowning clients in litigation. With respect to business litigation, Gandhi was already at a disadvantage simply by virtue of being an Indian-born rather than a British-born barrister. Historian Samuel Schmitthener reports that from the time of the founding of the High Courts in 1862 through the end of the nineteenth century, Indian lawyers could not easily find financial success:

  The first Indian barristers . . . were disappointed to find that they could not make a success of practicing [in courts], where the lucrative commercial cases were. Work [in such courts] could only come to a barrister through a solicitor. The solicitors’ firms were all British, and they did all the work for the Government departments and the . . . firms. They did not want to patronize an untried Indian barrister. Nor did the few Indian solicitors who were struggling to expand their practice wish to risk the blame that would come upon them if some inexperienced Indian barrister mishandled a case. . . . Not only British firms, but also Indians preferred to be represented by British . . . advocates—perhaps because it was believed they would have more influence with the English judges.23

  Gandhi might have overcome the predisposition of potential clients to favor English barristers had he had some ties to the commercial, industrial, and mercantile classes. Because he had none, however, he derived no work from the business community.

  To make matters worse, neither did Gandhi have any close relatives or friends in the legal profession in Bombay. This was a significant drawback because barristers in Gandhi’s day obtained clients not directly through contact with them but through referrals from other members of the profession. Indeed, it was often a family matter: many barristers derived their success from having family members in positions from which they could refer cases to their favorite member of the bar. With no one looking out for young Gandhi’s interests among the corps of Bombay attorneys, there was no one to send cases to this “briefless barrister.”24

  Finally, there was the matter of professional ethics. At the time Gandhi was attempting to practice in Bombay, some in the profession relied upon touts—mercenaries who would hunt down litigation and bring it to a barrister for a fee. While this practice was considered unethical, it was nonetheless employed by some of the most successful members of the Bombay bar. Gandhi, however, refused to pay touts, even if the practice was winked at and even if it meant he would earn far less than he might otherwise. Indeed, when those advising him in Bombay pointed out that one highly successful criminal lawyer paid touts, Gandhi scoffed at the idea that financial success should rank higher than professional ethics. This was a watershed moment for Gandhi as a person and as an attorney. Faced with the choice of failing with honor or succeeding with dishonor, he chose the more difficult path. This is the first indication Gandhi gives as a lawyer that the world’s way was not his way. In the future he would stake out a definition of his professional life that rested upon the belief that one could find true happiness as an attorney without adhering to the profession’s definition of success. It is not a belief to which he would always be faithful, as we shall see, but it provides us with the first real glimmer of the attorney he was to become. Interestingly, he was hired in Mamibai’s case despite his refusal to pay the tout.

  Gandhi would confound his critics from the beginning.

  BACKWATERS: A RETURN TO RAJKOT

  With all these factors against him, it is not surprising, then, that Gandhi’s Bombay practice collapsed shortly after the Mamibai incident. The most he could manage thereafter was a case in which he drafted a memorial for free for an impecunious client. While his colleagues approved of the quality of his work in the case, Gandhi realized that he could not support himself if his practice consisted of nothing but pro bono work.

  At about this time Gandhi started thinking of seeking employment overseas, but because Lakshmidas opposed such a move, Gandhi deferred consideration of it. Moreover, there was a promise of some work in Bombay in the fall of 1892. This new work, however, never materialized.25

  New measures were required. Gandhi applied for a part-time position teaching English at a well-known Bombay high school for 75 rupees a month. At the interview, when it became apparent that the high school sought a university graduate, the school lost interest. He pleaded that his passage of the London examination should qualify him to teach, but the school would not budge.

  With this door closed, there was nothing more Gandhi could do to sustain himself in Bombay. He had failed. After six months in Bombay, Gandhi closed what he called his “little establishment” and retreated to his Rajkot home.26 There he would work with his brother, Lakshmidas, a petty pleader, in doing the low-level legal work of native attorneys that he had disdained earlier. Gandhi would be an overeducated paralegal in his older brother’s shop, drafting common applications and memorials.

  A BREACH OF ETHICS

  Given the experiences Gandhi had had before being called to the bar, it was predictable that he would have difficulty assuming the role of public person that the job of courtroom barrister required.27 From the time of his childhood Gandhi had been a timid person. His attempts at public speaking in high school and later in London regularly placed unmanageable amounts of stress on him—and these prior attempts at public speaking were almost always before receptive audiences of friends or colleagues. When Gandhi was forced into the courtroom, he found himself in a new setting in which all speech and all behavior are adversarial. Adversarial speech places enormous demands on the speaker to manage his emotions, his intellect, and even his body so that he can tell the most compelling story on opening statement, ask the most captivating questions on direct examination, wrestle the most hostile witnesses to the ground on cross-examination, and make the most persuasive case in closing argument, all at the same time he is parrying the thrusts of his opponent, responding to the inquiries of the judge, and following the rules of evidence and procedure. Even for those experienced in courtroom speaking, such speaking is challenging. For the young lawyer—even one trained throughout law school and apprenticeship—the prospect of such speaking is threatening. How much more challenging and threatening was it for Gandhi, wholly unprepared as he was by personality, training, and experience?

  Gandhi’s new work would keep him far from the courtroom. He set up an office in Rajkot where he was able to earn enough on which to live (about 300 rupees a month) by drafting applications and petitions. This work, at the lower echelons of practice, was made possible through Lakshmidas, who at the time was a member of a two-man vakil firm. Lakshmidas’ partner (apparently the dominant of the two) gave Gandhi his overflow applications and petitions. The significant cases the partner kept; to Gandhi he gave the work of assisting his poorest clients. Even this work, however, proved problematic for Gandhi, for he was expected to pay commissions for these cases. He had rebelled at this practice in Bombay because it smelled of corruption.28 Now, however, he relented so as not to give offense to his brother’s partner, who apparently was gracious in agreeing to help Gandhi. Gandhi also undoubtedly wanted to help provide Lakshmidas with income inasmuch as Lakshmidas and Gandhi shared any income Gandhi generated through the partner’s referrals. In this instance, then, Gandhi’s feelings of loyalty to his brother and his appreciation for his brother’s partner worked together to create a lapse in Gandhi’s ethical standards. He was off the path.

  So in 1893, Gandhi, a London-educat
ed barrister, found himself stuck in the backwaters of Rajkot, performing low-level legal work and doing so in a fashion he considered morally repugnant. Indeed, he soon learned that petty politics, corruption, and backroom deals were the order of the day there and throughout the region. Gandhi’s introduction to the political facts of life in Kathiawad was made possible by Lakshmidas, an individual who appears to have been possessed of a conscience less demanding than that of his younger brother. Lakshmidas had been the secretary to, and the advisor of, a powerful figure in neighboring Porbandar. During the course of this employment, Lakshmidas ran afoul of the authorities. Gandhi, in his memoirs, is not precise in his description of this trouble, but he is quite clear on the point that Lakshmidas expected his brother to bail him out of it. The political agent in charge of the area at that time was an officer whose acquaintance Gandhi had made in London. It was Lakshmidas’ idea that Gandhi ought to go to him and, playing on the friendship, seek to put the matter to rest.29

  Gandhi was opposed to this plan. It offended his sense of procedure and right order. But his reluctance was overcome by the importuning of his brother, who argued that decisions in Kathiawad were made only on the basis of influence and that Gandhi owed him a fraternal duty to intercede. Reluctantly, Gandhi agreed to see the agent, knowing in advance that he “was compromising [his] self-respect.”30