M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  A band of police eventually arrived and escorted Gandhi to the Rustomji establishment, where he was treated for his injuries by an Indian physician who had been on board the Courland. A boisterous mob of several hundred people soon surrounded the store, calling for Gandhi’s neck. Richard Alexander, the police superintendent to whom Gandhi had been conciliatory after thoroughly defeating him in the Roberts and Richards vagrancy case, was present and took command of the scene. Alexander cleverly devised and carried out the stratagem of spiriting Gandhi away under the disguise of an Indian constable. Eventually rain began to fall, the crowd disbanded, and the incident came to an end.16

  TO STAY OR FLEE?

  There is no evidence of what the convalescing Gandhi was thinking in the immediate aftermath of this episode. Surely he must have considered how his past behavior toward his adversary, Alexander, had influenced the superintendent’s willingness to step in to save Gandhi’s life.17 As for the future, the choice before him was clear: either flee the colony and abandon his professional and public work, or stay and subject himself and his newly arrived family to the risk of more violence. Gandhi knew that the mood in Natal posed a clear threat to one who would be a controversial public figure there. In writing to an Indian barrister whom he had attempted to recruit to South Africa during his recent Indian tour, Gandhi admitted that “such a man’s life in Natal is, at present, in danger. I am certainly glad that you did not accompany me.”18

  On the other hand, in South Africa Gandhi had begun to establish himself as both a barrister and a leading public figure, success that was quite out of reach for the foreseeable future in his homeland. Moreover, he and his family, were they to stay, would not face the wrath of the Europeans alone but would be surrounded by a large, supportive Indian community.

  Gandhi stayed. Indeed his staying in the face of danger was noteworthy enough for the Natal Mercury to run two stories on his decision. The first, on January 16, 1897, reported that Gandhi intended “to resume work in a day or two.” The second, on February 10, 1897, noted that Gandhi “appeared in court for the first time since his return from India.”19

  While the Mercury, generally a pro-government newspaper, did not mention in these reports the assault Gandhi had recently withstood, it was very much on the minds of the British and colonial authorities. The secretary of state for the colonies, Joseph Chamberlain, sent word to Escombe that he wanted Gandhi’s assailants prosecuted. Alexander threatened to arrest anyone harassing Gandhi. At the same time, there was a fair amount of public speculation that Gandhi was preparing to sue for damages as a result of the quarantine to which the Courland and Naderi passengers had been subjected.20 Gandhi, who felt he had “narrowly escaped being lynched,”21 had made it quite clear in a newspaper interview that he was not interested in litigation:

  The statement has been made that I have been advising people . . . to institute . . . proceedings against the Government for unlawful detention. That . . . statement . . . has no foundation in fact. My object throughout is not to sow dissension between the two communities, but to assist at creating harmony between the two. . . . I do not return here with the intention of making money, but of acting as a humble interpreter.22

  As for a possible criminal prosecution, Gandhi had this to say in a meeting with Escombe:

  I do not want to prosecute anyone. . . . I do not hold the assailants to blame. They were given to understand that I had made exaggerated statements in India about the whites in Natal and calumniated them. If they believed these reports, it is no wonder they were enraged. . . . I do not want to bring anyone to book. I am sure that, when the truth becomes known, they will be sorry for their conduct.23

  Escombe, under pressure from Chamberlain, urged Gandhi to think this decision through, consulting Laughton, if necessary. But thinking of his own political interests, he also gave his own advice to Gandhi: “If you waive the right of bringing your assailants to book, you will considerably help me in restoring quiet, besides enhancing your own reputation.”

  Gandhi did not hesitate: “I need not consult anyone. I had made my decision in the matter before I came to you. It is my conviction that I should not prosecute the assailants, and I am prepared this moment to reduce my decision to writing.”24 Gandhi’s easy certainty about this decision stemmed from his understanding of self-restraint in this circumstance as a religious discipline.

  This refusal to prosecute his attackers is a foreshadowing of the nonviolent ethic he would later, and more deeply, experiment with in South Africa. His decision was the fulfillment of the sentiment he expressed while still on board the Courland when he stated that he hoped God would give him “the courage and sense to forgive them and to refrain from bringing them to law.” And just as Gandhi had no interest in a criminal prosecution, he had no interest in a damages lawsuit on behalf of his fellow passengers, saying that his intention was not to sow dissension between Europeans and Indians, but “to bring about an honourable reconciliation between them.”25 This was the saintly side of Gandhi. At the same time, the lawyer in him understood that the unmerited suffering he had undergone and his refusal to prosecute would benefit him both politically and professionally as both the European and Indian populations would come to see his courage and his dignity. Years later, in his autobiography, Gandhi would reflect on his refusal to prosecute as a contributing factor that “enhanced the prestige of the Indian community in South Africa and made my work easier. . . . The incident also added to my professional practice.”26

  Gandhi’s clarity on this issue should not have been surprising to anyone who saw him bear up under the attack. The Mercury’s own reporting confirmed Gandhi’s resolute and courageous demeanor during the attack when it observed the day afterward that “he bore himself stolidly and pluckily through the trying ordeal.”27 The Advertiser noted that Gandhi was calm as the police escorted him. Laughton later commented that “throughout the trying procession [Gandhi’s] manliness and pluck could not have been surpassed.” Laughton added: “He is a man who must be treated as a man. Intimidation is out of the question, because if he knew the Town Hall were going to be thrown at him, I believe, from what I saw, that he would not quail.”28

  The man who was frightened by the friendly crowd in the lecture hall in Bombay had more inner resources than even he knew.

  NINE

  * * *

  To Maritzburg

  A fire broke out in two [Indian] stores in West Street last night. A huge crowd gathered and the scene was greatly enjoyed. Cheers were raised at every fresh outburst of flames.

  Natal Witness, March 8, 1897

  Impose what sanitary restrictions you like on us; let our books be kept in English, if you will; introduce, if so minded, other tests which we may reasonably be expected to fulfill; but, after we have complied with all the requirements, allow us to earn our living and, if there be interference on the part of the Officers administering the law, give us the right of appeal to the highest judicial tribunal in the land.

  GANDHI

  HARRY ESCOMBE HAD MADE A deal with the devil.

  He had succeeded in convincing the anti-Indian mob to go home. He had prevented a violent attack. He had defused a certain amount of palpable racial tension.

  But it cost Escombe. In return for peace, he had pledged to the demonstrators that, if they would leave the Indians on the Courland and Naderi alone, the government would address their concerns through legislation.1 Gandhi looked on as the threat of violence purchased new laws. He himself would use the threat of nonviolence to defend Indian rights.

  AN ARRAY OF ANTI-INDIAN LEGISLATION

  When the Natal Legislative Assembly convened about a month earlier than normal, on March 18, 1897, the task of paying Escombe’s debt stood at the top of the agenda. The Assembly, however, needed no encouragement. Gandhi and the Indian community had many enemies and but a few friends in the legislature; most of Natal’s legislators must have been grateful to the Demonstration Committee for forcing them to address �
�the Asiatic question,” as Europeans called it, in dramatic and bold terms. They promptly took up four pieces of anti-Indian legislation: the Quarantine Act, the Uncovenanted Indians Act, the Immigration Restriction Act, and the Dealers’ Licenses Act. These measures were designed to block Indian immigration, make life uncomfortable for Indians already in the colony, and extinguish the capacity of Indian entrepreneurs to compete with Europeans. They constituted a broad and forceful assault on Indian interests that would dictate the course of Gandhi’s life for the next several years, causing him to dedicate almost all of his professional and political energy to answering it.

  Although Natal enjoyed responsible government, it was not fully independent of Great Britain. Under unusual circumstances, legislation could be disallowed by the Crown. In fact, the British had made it clear on earlier occasions that legislation that was overtly racial would not be approved. Legislation had to be race-neutral on its face. Natal’s legislators played along. None of the four acts specifically mentioned Indians. The openly discussed premise of the legislation, however, was that the acts would be enforced exclusively against Indians.2

  The Quarantine Act would prohibit the landing of any person on a ship coming from any place infected with the plague or other disease.3 The legislature did not intend this act to be used to isolate passengers temporarily until the danger of disease erupting among them had passed, a practice regularly applied to European and, heretofore, Indian passengers, as well. Rather, it was intended that this act be used to permanently keep Indians out of the colony. As Gandhi would point out, it was actually an anti-immigration bill dressed up as a health measure.

  Indentured servants who left their estates without permission were subject to arrest. Zealous police officers, however, would sometimes arrest free Indians, being unable to easily distinguish them from servants on the street. The Indians had asked the authorities to caution the police to use better judgment in making their arrests. What they got instead was the Uncovenanted Indians Act, under which free Indians could purchase and carry passes showing their status. The Indian community saw little benefit and much inconvenience in a pass system. What was more problematic, the act went on to immunize police officers against liability for wrongful arrests. The Indians, fearing the behavior this provision would encourage among the police, protested the act as giving “almost a license to arrest with impunity any Indian they choose.”4

  The Quarantine Act and the Uncovenanted Indians Act were quite mild measures in comparison to the Immigration Restriction Act (IRA) and the Dealers’ Licenses Act (DLA).5

  For years tension had existed in the colony between agricultural interests that wanted to see the continued importation of large numbers of indentured servants to work the colony’s plantations and mercantile interests that saw free Indians as ruthless competitors steadily putting European establishments out of business. Allied with the merchants were tradesmen who feared not only the in-migration of free Indians but also Indians coming out of indenture, all of whom were a threat to work for low wages. The rough accommodation made by these interests was that importation of servants would be continued but that Indians coming out of indenture would be discouraged from staying in the colony. To this end a £3 tax was levied on free Indians who chose to remain.6

  The IRA added to this accommodation by permitting the continued importation of Indian indentured servants, but prohibited the immigration of two classes of persons: paupers and those unable to write “the characters of any language of Europe.”7 Designed to stop the flow of all Indians but indentured servants, the act made illegal immigration punishable by six months’ hard labor.

  As racist as the IRA was, it was the DLA that posed a greater, indeed a mortal, danger to the interests of Gandhi’s clients. This act required every wholesale and retail business to have a license. Town councils were authorized to appoint licensing officers from whom applicants might seek licenses. The act instructed licensing officers to deny permits to those who could not maintain their books in English and those who intended to operate their businesses in facilities that were either unsanitary, “unfit for the intended trade,” or “not affording sufficient and suitable accommodations for salesmen, clerks, and servants, apart from the stores or rooms in which goods and wares may be kept.”8 Beyond these somewhat imprecisely drawn grounds upon which licenses had to be denied, however, the act established no standards to guide the decisions of licensing officers. Rather, the legislation simply entrusted the officer with the unchecked “discretion to issue or refuse a wholesale or retail Licence.”9 Without even the subtlety of a wink and a nod, the town councils would send out their licensing officers to accomplish the legislature’s mission.

  The DLA further strengthened the hands of licensing officers by prohibiting disappointed applicants from appealing to a court for review of the officer’s decision. The only appeal allowed was to the town council—the very body that appointed the licensing officer.10 There was no pretense here of an unbiased, objective process overseen by an impartial judiciary. Rather, as Henry Bale, a prominent member of the Assembly and soon to become the new attorney general, plainly put it when the act was being considered by the legislature, the discretion described in the act was to be “exercised by those who represented and voiced public opinion.”11

  A scheme more lacking in due process and more openly the instrument of racial prejudice could scarcely be imagined. The act, without explicitly stating its goal, was crudely but clearly designed to effectuate its purpose of putting Indians out of business. If it were allowed to go into force, many of Gandhi’s merchant clients, as well as many lower-level Indian entrepreneurs, would be devastated.12

  PETITIONING AS FAITH IN REASON AND BRITISH FAIR PLAY

  Gandhi’s reaction to this wave of legislation would mark the beginning of a distinct shift in his understanding of the relationship between law and political power. Up until now, Gandhi’s efforts to resist anti-Indian discrimination had relied almost exclusively on petitioning—incessant, persistent, unrelenting petitioning. His petitions came in all forms. They were signed by thousands, they were signed by a handful. They were directed to London, they were directed to Maritzburg. They were long, involved treatises, they were short jabs. What they had in common was Gandhi’s belief that each of them would work. With his faith in reason matched by a similarly resolute expectation of British fair play, Gandhi believed that once the Indians demonstrated the unfairness with which they were treated in South Africa, either the colonial or the imperial government would order the situation corrected.13 Despite the repeated failure of this tactic, Gandhi did not give it up easily, even as he himself began to see its futility. It was a slow transformation that would result in his eventually moving the fight from legislative and executive chambers to courtrooms, from legislation to litigation, from politicians to judges.

  In the first part of 1897 the petition was still Gandhi’s preferred instrument of opposition and one with which the still somewhat timid lawyer felt at ease. Petitions do not call for public speeches. Petitions can be written—written well by someone with Gandhi’s enormous skill at composition—in the sanctuary of one’s office. Petitions can be circulated without fanfare among one’s own friends and associates. Petitions played to Gandhi’s strengths and avoided his shortcomings. So he set about storming the colonial and home governments with petitions.

  The Colonial Office had the responsibility of approving or disapproving colonial legislation. Thus Gandhi directed his first petition to Secretary of State for the Colonies Joseph Chamberlain. The prospects of persuading him to disapprove the legislation were not good; Chamberlain, not wishing to alienate the colonists whom he foresaw federating into an independent union, was distinctly less friendly to the Indian cause than his predecessor, Lord Ripon. The likely outcome of his effort seemed not to matter to Gandhi, however. He poured himself into the work, taking at least six weeks to produce a massive document that takes up fifty-four pages in the Collected Works, exclusive of
an appendix that contains more than two dozen documents.

  The great bulk of the petition is an excruciatingly drawn-out description of the Courland and Naderi incident. Only when he is near the end of this lengthy petition does Gandhi even raise the issue of the proposed anti-Indian legislation. He makes three short points in support of the proposition that the legislation was unnecessary or inappropriate: that the number of Indian immigrants was minimal, that the Indians were not competing with European tradesmen, and that the Indians were a benefit to the colony. Gandhi then provides the texts of the bills, after which he employs the last few paragraphs of the petition to argue for his constituency. His first argument appears defeatist. He says that while the proposed acts do not mention the Indians by name, they are, indeed, aimed at Indians. If Indians were to be restricted, he writes, it would be “infinitely better that it were done so openly”14