SUING THE COURT: THE LIMITS OF THE LAW AS A TOOL FOR SOCIAL CHANGE
An important case for Indian civil rights—and the second major case to interrupt the winter—arose not in Durban but in Estcourt, a small town in Weenen County that lay on the rail line halfway between Durban and Charlestown to the northwest. There on the previous November 26th an Indian storekeeper, Cassim Abdulla, had entered the courtroom of Resident Magistrate Thomas Bennett wearing his customary turban. According to Abdulla, he salaamed to the magistrate upon entering the prisoner’s box, whereupon he was ordered by the magistrate to remove his turban, which he “refused to do, stating it was contrary to custom.” The magistrate reacted by ordering a bailiff to take the defendant from the courtroom, remove his turban from his head, and return him to the courtroom. The bailiff, alleged the plaintiff, violently dragged him from the prisoner’s box and took him outside where his turban was forcibly removed and thrown to the ground. When the plaintiff attempted to retrieve it, the bailiff wrestled it away from him.
The incident came to the attention of the Natal Indian Congress, an advocacy organization for Indian rights of which Gandhi was the secretary and a leading figure.18 The Congress turned to a prominent member of the bar, Henry Bale, an advocate since 1881. Bale agreed to represent Abdulla. The Congress undoubtedly retained Bale because he had successfully represented an Indian in a somewhat similar case, In Re Regina v. Camroodeen, just a few months before. Ironically, Bale was the law partner of Edward Mackenzie Greene, the same attorney who argued against Gandhi’s admission before the Supreme Court just the previous year. Even more ironically, Bale was assisted in the Abdulla case by Gandhi himself.
The two brought suit in the Supreme Court against Magistrate Bennett on behalf of Abdulla, claiming £50 of injuries to mind and body.19 The Court found for the defendant on July 16, 1895. Gallwey and Acting Justice Beaumont found that judicial immunity applied, with Gallwey stating, “It has been said in all Courts that no action could be successfully brought for the exercise of judicial authority.” With respect to this point of law, Justice Wragg disagreed: “Had it been that the man had been forcibly and violently removed from the dock, it might have been the duty of the Magistrate to interfere, but the evidence is all the other way.” And with this assessment of the failure of the plaintiff to prove his facts, the other two justices agreed. None of the three justices believed that the plaintiff had proved “that he was dragged out of the dock.”
Gandhi and the Congress later professed not to be surprised by the decision.20 Despite their protestations to the contrary, however, they must have had some very substantial hope for a victory, given the Court’s recent decision in Camroodeen. In Camroodeen—a case from Weenen County, the very county in which Estcourt was located—the Court had held that an “Indian need not remove his head covering or his shoes when he enters a Court of Justice in this Colony. It is enough if he make the usual salutation on entering the Court and also (if a witness) when he goes into the witness-box.”21
But the Court in Abdulla v. Bennett was able to rule against the Indian cause without coming into conflict with Camroodeen by grounding its decision on the magistrate’s immunity and by unanimously finding for the defendant on the facts. In the wake of Abdulla, Camroodeen lay undisturbed—and unused. Gandhi, knowing that Abdulla represented a political setback that had also cost the Congress a fair amount of money in legal fees and expenses, attempted to put the best face on it: “We know exactly what we should do should a similar case occur in the future.”22 The fact was, however, that Camroodeen had already provided all the guidance one could want. Abdulla was filed for political gain in an attempt to capitalize on the progress made in Camroodeen. Ill-advised from the start, Abdulla must be charged against Gandhi and the Congress as a disappointing defeat and a costly lesson in the limits of the usefulness of colonial courts in advancing the Indian cause.23
DEFENDING THE CONGRESS BY EXPOSING LUCAS
September 1895 would bring with it more trouble in the law courts for the Congress and a great deal of unwanted press attention as well. The controversy had its roots in a charge of assault brought by an Indian named Moroogasa Pillay against four of his countrymen. During the course of the case, styled Regina v. Poonsamy Pather and Three Others, it was contemplated that a witness, Mahomed Ibrahim Asgara, would be called to testify for the prosecution. Before appearing to testify, however, Asgara claimed to have been approached by one Rangasamy Padiachy, who threatened to beat him if he, Asgara, testified for the Crown. Asgara also alleged that Padiachy, who was his landlord, threatened to raise his rent if he failed to cooperate and offered to lower it if he would refuse to testify.
Upon these facts a criminal charge of witness intimidation was brought against Padiachy. The defendant secured the services of an attorney, Alfred Millar. Gandhi assisted Millar during the course of the proceedings and then publicly defended the Congress in the court of public opinion afterward. The Congress needed to be defended because the presiding magistrate, Lucas, permitted the introduction of a piece of completely irrelevant testimony, namely, that on the same day of Padiachy’s threats Asgara was called to a meeting at which were present Mohamed Camroodeen, Dada Abdulla, and Dowd Mahomed along with “two or three strangers.”24 There the group asked Asgara whether he intended to testify and what he intended to say. He told them he would be testifying, but refused to answer any further questions and left. What made this testimony irrelevant was that the defendant in the matter before the court, Padiachy, was not present at the meeting, nor could he be tied to it. After Asgara had been examined and cross-examined without so much as mentioning the Congress, Lucas himself questioned Asgara and drew from him the first mention of the Congress.
Lucas was clearly biased against the Congress. In his decision finding Padiachy guilty, he stated that “it appears that the Indian Congress is of a nature of an association of conspiracy—pernicious and fraught with danger to the whole community in the Colony of whatever race.”
The Supreme Court later overturned the conviction, stating that the “case bristle[d] with irregularities from its inception.”25 But damage to the Congress’ reputation had been done, and it was up to Gandhi, in his capacities as secretary to the organization, chief political organizer for Indian merchant interests, and the community’s lawyer, to fix it. He did so by striking at the magistrate. In a letter to Sir John Robinson, the colonial secretary in Pietermaritzburg, he attacked the bona fides of Lucas: “I venture to submit that . . . the Magistrate was biased. In the case of Poonsamy Pather and three others, without a particle of evidence, he has remarked in his reasons for judgment that the defendants are members of and have been backed up by the Congress. As a matter of fact, all of them are not members of Congress and the Congress had nothing whatever to do with the matter.”26
He challenged the government, if it should have any concerns about the Congress as the result of Lucas’ statements, to investigate it. If Gandhi had ended his letter with this demand, we might call him astute. But then Gandhi made a move that showed his naïveté. He went on to say that if the government was satisfied that the Congress was blameless in the intimidation case, it should issue a statement to that effect. Either Gandhi had a strange notion of what the relationship was between the executive and judicial branches, or he was simply, and sadly, unrealistic about how the government would react. The government, of course, declined to be drawn in by Gandhi’s gambit, replying that it would take no position on the matter. Gandhi, not satisfied, wrote again to the colonial secretary in December and renewed his request for an investigation or a statement clearing the Congress. Not surprisingly, the government stood pat and did neither.27
Gandhi may have been naïve, but he was not afraid of power. Most novice lawyers would never contemplate attacking a judge, especially one before whom they expected to appear again. Just as he had taken on Wragg earlier, now he took on Lucas.
For Gandhi, courage was getting to be a habit.
LEARN
ING WHEN NOT TO SPEAK
On October 1, 1895, shortly after the intimidation trial came to a close, the following item appeared in the Natal Advertiser:
LEGAL NOTICE
Mr. P. E. COAKES
has resumed practice as
Attorney and Notary
AT 388, WEST STREET
(Old Town Hall Chambers)28
It appears that when Coakes resumed his practice, it was without Gandhi, who had moved on to associate himself with Oswald Askew. Recall that it was Askew, both a minister and a lawyer, who had agreed to take on the indentured servant Balasundaram. Askew was a novice, having been admitted as an attorney only a little more than a year earlier. Why hadn’t the senior bar competed for the chance to associate with the barrister who could bring in substantial amounts of Indian work? Gandhi simply was not the catch he was in 1894. Since then he had established himself, through his organizing work for the Durban merchants and the Congress, as a thorn in the side of the European community. And perhaps it was Gandhi who wanted to practice with someone who had an ideological commitment to the Indian cause. Askew was the only European who had attended Congress meetings; moreover, Askew was not reluctant to represent Indians in court.
It may also have been that Gandhi could now afford, psychologically and financially, to operate in the absence of a well-established partner. After a year of practice, perhaps he was gaining his sea legs around clients and, to a lesser extent, in courtrooms. As for income, the one year of retainers he had received in 1894 from the Indian merchants who wanted him for their political work had been renewed for another year.
Gandhi’s work for the merchants was not confined to the Durban courts. Verulam, on the rail line northeast of Durban, had its own magistrate court. There Gandhi obtained a judgment for one Indian merchant against another in a collection action (Bedat v. Akoom) for goods sold and delivered. Gandhi’s inexperience and his exercise of extremely poor judgment, however, cost him the win on appeal. The merchant whom he represented kept his books in Gujarati, Gandhi’s native tongue. On appeal to the Durban Circuit Court, the losing defendant complained that after the evidence had closed in the trial of the case in Verulam Magistrate Court, “the Magistrate had allowed an unauthorized interpreter to go into his chambers, and, in the absence of the parties, translate the books, which were in the Ghujerate [sic] language.”29 The “unauthorized interpreter” was none other than Gandhi himself, the plaintiff’s own lawyer. Gandhi did not see what most any law student would: that a translation offered by an attorney for one of the parties created an intolerable conflict of interest between the lawyer’s duty of zealousness to his client and his duty of impartiality to the court. Gandhi also did not see that a translation should not be carried out in the absence of the opposing party. The appellate court had no trouble finding that “it was altogether wrong in principle that an interested party should put in a document which no one else could test.”30 Accordingly, the court sent the case back to magistrate court to be retried. When Gandhi inquired as to any directions the appellate court might have for the retrial, the court first scolded the merchant for keeping his books in a language almost no one in the colony could understand. Then it instructed Gandhi that, if he wished to offer his translation, he would have to “be entirely free from the case.”31 There was no option of Gandhi staying in the case and bringing in a new translator, because, according to Gandhi, there were no certified translators of Gujarati in the colony.
When Gandhi was admitted to the bar in 1894, he had also sought a translator’s license as well, but was turned down by the Supreme Court on the ground that it would be unseemly for an English barrister to be performing translation work. But now the Bedat court suggested that Gandhi reapply for his license despite the indignity of conducting such low-level work.32 Gandhi followed the Court’s advice, and on January 23, 1895, the Court approved his application for a license as a sworn Gujarati translator. Chief Justice Gallwey was not pleased, however, by the sight of a barrister stooping to translator’s work: “It is a question of etiquette, and if Mr. Ghandhi [sic] likes to commit a breach of professional etiquette, he can become a translator.” Then, to make the supposed indignity a bit more stinging and to highlight Gandhi’s error in Bedat v. Akoom, Justice Mason issued this warning: “Mr. Ghandi [sic] is not to be connected in any way with a case in which he is a translator.”33
This verbal beating that Gandhi took without comment must have had some effect in conditioning him for the days to come when he would be berated by other courts for his civil disobedience in pursuit of Indian rights in South Africa and, later, Indian freedom from British rule in India. Gandhi learned in Durban’s courts when to speak in defense of himself and, just as important, when to allow silent suffering to speak instead.
DEFEATING THE SUPERINTENDENT OF POLICE—TWICE
In early 1896 Gandhi became involved in a highly publicized case controversial for its effect on race relations. Gandhi’s clients were not merchants, but two Indians, John Lutchman Roberts and Samuel Richards, who had adopted Western names as was the custom of Christian Indians during that era. The two were strolling home on West Street at 9:30 one evening when they were stopped by a police constable who asked them for their curfew passes. In 1896 Durban enforced a curfew law which provided that “a coloured person found wandering between the hours of 9 P.M. and 5 A.M. without a pass from his employer, or not giving a good account of himself, may be arrested.”34
The two young men, well attired in Western dress, explained to the constable that they were walking from Durban’s gardens to their home, which lay just a few minutes away. They offered the additional information that they were employed, one as a clerk in Mr. Gandhi’s office and the other as a schoolteacher. Despite this explanation of their behavior, the constable arrested them.
When the case came before Magistrate John Parker Waller on February 20, 1896, the Crown was represented by none other than the police superintendent himself, Richard Alexander. Gandhi appeared to represent his clerk and his walking companion.
Alexander, not a lawyer, put on the Crown’s case. When he was done, Gandhi called Richards to the stand. In the course of Gandhi’s direct examination of Richards, the defendant testified that the constable laughed at him when he gave his Westernized name. Alexander saw the significance of this point in providing a motivation for an otherwise unwarranted arrest and cross-examined Richards. In an interview with the Natal Advertiser a few days after the trial, Alexander re-created the cross-examination:
Superintendent: How long have you had that name?—Eighteen months; since I was converted.
What were your parents?—Indentured Indians: father a dhoby.35
Try and imagine yourself on police duty in West Street during the night. A coloured person passes you, what would you do?—Ask his business.
And if he gave the answer your friend gave, that he was a clerk to someone, what would you do?—Go and see that some one to make certain.
If that someone lived outside the borough, or even a mile away, would you leave your beat to ascertain?—No answer.
If he gave your excuse, that he was a teacher, would you say, “Pass, teacher, and all’s well?”—No answer.
The Court: Why don’t you answer like a man? You know well that you could not take such answers from men you did not know.
Superintendent: Since your family name was not good enough for you, did you inform the police that you had taken an English name that would excuse you from Indian laws?—No.36
This was not an especially clever cross-examination; another witness might have turned it around on Alexander. Richards, however, did not help himself. The examination did serve to reveal the contemptuous attitude toward Indians Alexander held at this time. Later, in a Mercury interview, Alexander would call Roberts and Richards “these young upstarts.” Indeed, Alexander gave the interview in which he re-argued his case against the defendants to “give the public a fair idea of what things were coming to.” He quoted Waller,
with approval, as saying that “we could not allow bare-footed black men prowling about our thoroughfares on dark nights under the pretence of going home.” Alexander concluded the interview with these comments: “If an Indian is permitted to evade the law by changing his religion and his name, I am afraid we shall have the whole Indian population doing the same, especially those whose names are so familiar in the court and gaol records.”
The fatal weakness in Alexander’s case was obvious to Gandhi. The law permitted an Indian to be about without a pass as long as he could “give a good account of himself.” Gandhi’s argument was simple and, according to one press report, “eloquent”: these Indians had, in fact, given a good account of themselves and as a result they should not have been arrested.37 The magistrate agreed and dismissed the defendants on the spot. Gandhi was not done, however. He had tried to settle previous cases by getting the parties to compromise. Now, with his victory in hand, he made a play to prevent similar future disputes, urging the police “to become a little charitable and considerate towards the Indian community.”38 Alexander responded to this invitation by giving the vitriolic Mercury interview. Gandhi would not allow the discussion to rest there. He composed a lengthy, forceful, and well-written letter to the Mercury in which he conclusively rebutted Alexander, point by point, in clear, lawyerly style.39
In the end Gandhi scored two victories over Alexander in this racially charged case—one in court and the other in the press. It was one of Gandhi’s best experiences in Durban and the latest in a string of confrontations with the most influential players in the world of Durban law, business, and politics. In a very short span of time, Gandhi had publicly taken on the government, two magistrates, a police constable, the Natal Government Railway, a superintendent of police, and a Supreme Court justice.
Fearlessness had quickly come to be the leading characteristic of this young lawyer’s life and practice.
M.K. Gandhi, Attorney at Law Page 13