This relatively easy win could only have encouraged Gandhi, as well as his friend and colleague Frederick Laughton, who joined Gandhi in the fight against the act. Laughton would later describe the DLA as a “dishonest and discreditable piece of legislation” and a “concession to an anti-Indian mob.”31 Laughton attempted to strike at the heart of the act in early 1898, after his Indian client had been denied a license by the licensing officer in Newcastle, a decision sustained by the Newcastle Town Council. Against the grain of conventional wisdom, which held that the act prohibited appeals to the courts, Laughton headed to Maritzburg to lodge an appeal with the Supreme Court.
TO MARITZBURG
Laughton was a particularly skilled lawyer. Amongst a bar that was at best mediocre, Laughton’s ability to engage in sophisticated legal analysis easily distinguished him. Of course, he had an advantage. Unlike many of his colleagues at the bar, he read the law. In fact, he read it carefully and closely. In Vanda v. Newcastle his careful reading of the act led him to develop the novel argument that while the DLA clearly prohibited appeals from licensing officers to the courts, it just as plainly did not prohibit appeals from town councils to the courts. Nowhere did the act address itself to appeals from the town council. The vacuum on that point, Laughton argued, was filled by previous legislation. Section 8 of Law 39 of 1896, passed just two years earlier by the Natal Parliament, vested the Supreme Court “with jurisdiction to review the proceedings of all Inferior Courts of Justice or tribunals.”32 Laughton claimed that “all” meant all—that it included town councils that were, in his view, judicial bodies for the purposes of the act.
Justice Mason challenged Laughton: “Surely it was playing with words to say that they were not to review the decisions of the Licencing Officer, but were to review the decision of the Court sustaining it.”33
Laughton, quick on his feet, responded: “Supposing the Town Council had said, ‘You are entitled to a licence, but inasmuch as there is no appeal, we won’t grant it.’ Did their lordships mean to say that there was no appeal to that Court, in view of what was laid down in Section 8 of the Supreme Court Law? . . . The Town Council of Newcastle had said ‘We will get rid of Indians in this town.’ and had the Court jurisdiction in such cases? Every Court of law was jealous in sustaining its jurisdiction, not in throwing it away.”
The argument of Mr. Watt, representing Newcastle, was simple, if incorrect: “The law was not ambiguous, but was perfectly clear.”
The chief justice was convinced by Laughton’s argument. Justice Mason, who had disagreed with Watt’s point that the act was clear, was not: “How can it be maintained that this Court can review the decision of the Town Council on the granting or refusal of a licence, and yet at the same time neither review, reverse, or alter the granting of the licence itself?” Finnemore agreed with Mason that the act was clear enough to determine that the legislature’s intent was to bar appeals of the sort contemplated by Laughton.
The act, which was susceptible of two reasonable interpretations on whether the Court had jurisdiction, had yielded a split decision. It was a defeat for the Indian side, but not a final one. Two avenues of recourse were yet open. The decision could be appealed to the Judicial Committee of the Privy Council, the body in London responsible for hearing appeals from courts in the colonies. The Indians did, in fact, take such an appeal.
Laughton and Gandhi knew that the Privy Council took a long time to issue its decisions, so in the meantime, they paid attention to a section of Mason’s opinion that, surprisingly, suggested a second avenue of action: “Where either a licensing officer or a Town Council proposes to exercise powers with regard to trade licences which it does not possess, the position of this Court would in all probability be very different.”34
Mason was as much as inviting the Indians to bring to the courts any irregularities of procedure to which they were subjected.
REDEEMING MASON’S PLEDGE
Gandhi, like Laughton, could read. When he appeared four weeks later at an appeal hearing before the Durban Town Council, Gandhi was ready. Despite having received a satisfactory sanitation report, his client, Somnath Maharaj, had been denied a license for property he intended to rent from the Congress. The involvement of the Congress, an institution controlled by Gandhi’s wealthy merchant clients, signals that this case was part of a planned campaign of litigation against the DLA.
Gandhi immediately attacked the process. He had asked to be provided with the reasons the license application was denied and for a copy of the licensing officer’s report. He had been refused on both counts. Gandhi pointed out that the council was acting in the nature of a court and that
there was nothing in the law to provide that the ordinary rules of procedure were to be subverted. It was only common sense to presume that if the right to appeal was allowed the subject, the ordinary procedure that guarded the conduct of such appeals should be observed. If it was not to be so, it would simply mean that the law gave a right to a subject with the one hand and snatched it away with the other, and the right to appeal became a phantom.35
Gandhi went on to say that, unless he was provided with the reasons for the denial, “how on earth” was he going to argue his case?36 Gandhi demanded that the council rule on his request for a copy of the record in the case and for the reasons for the refusal. He knew that a specific council ruling would provide him with a clear and crisp appellate issue.
To his legal strategy he added indignation: Maharaj “had been practically opposed by the whole machinery. Every obstacle was placed in his way—he had to anticipate reasons, come to the Council and spend a lot of money, and then perhaps be told that the Licencing Officer’s decision was upheld. . . . [Was this] an appeal under the British Constitution?”37
The town council then adjourned the public portion of the hearing to huddle in private with Dyer, the licensing officer. There the officer provided the council with his reasons for denying the application. When the council emerged from this meeting, it attempted to skirt the issue of what information Gandhi was entitled to and go directly to a decision on the appeal itself. Councilman Brown moved that the licensing officer’s denial of the license be affirmed. The motion was no sooner seconded than Gandhi interrupted to say, “I have not been heard.” Gandhi then pressed his demand: “I have not yet got the Council’s decision whether I am entitled to a copy of the record.”38 The mayor was forced to respond: “The decision of the Council is against that.”
Gandhi now had his issue for appeal on the record.
With his appellate issue secured, Gandhi moved on to lay bare the motivations of Dyer and the council. In this case he had proved that Maharaj was solvent, that he could keep books in English, that he had run a business elsewhere for several years, and that he had been responsible enough to make a full settlement with his creditors before disposing of that business. The only faults that could be attributed to Maharaj were that he had not held a Durban license before and
that he had a brown skin. . . . [I]f a man having a brown skin was not to have a licence, that . . . savoured of a great deal of injustice. It was certainly un-British and un-English. There was nothing in the law to show that licences had to be refused on account of nationality.
Gandhi concluded:
In exercising the [licensing] power . . . , the Council would take away the bread from hundreds of respectable and deserving men, who had given their best services to the Colony. [Maharaj] had come to Natal at the wish of the Colony. He came under indenture and was told that he would better his prospects. He had given the best part of his life to the Colony for a miserable pittance, and then he was refused a livelihood because his skin was against him.39
Gandhi sat down. His petitioning had always been characterized by circumspection. One would strain to find a harsh word in any of his petitions. Starting with this case, litigation would change him.
Gandhi’s frankness left Daniel Taylor, one of the most racist public figures in Natal, unmoved. The councilm
an proposed that the appeal be dismissed. Councilman Clark seconded. Maharaj’s appeal was dismissed without a single vote in dissent.
AGAIN TO MARITZBURG
Laughton and Gandhi headed straight for Maritzburg, the colonial capital where the Supreme Court sat, seeking a writ of mandamus—a type of order compelling a governmental agency to carry out a duty.40 Intent upon redeeming Mason’s pledge, they had behind them the editorial support of the Natal Advertiser and an unusually friendly headline—“Mr. Gandhi Eloquently Appeals”—in the Natal Witness.41
Laughton rested the Indians’ case on several narrow points, arguing, for example, that the appointment of a licensing officer who was also an employee of the city created an improper bias. Laughton did not argue that it was improper for the council to recess and discuss the case in private. Sensing that the issue would be on the minds of the justices, however, Thomas Garlicke, the Durban town solicitor,42 raised the question and made a modestly persuasive argument that the council had the right to do so. Laughton must have been surprised when Justice Wragg, now the acting chief justice, interrupted Garlicke’s argument to make a key distinction: “They have a right to retire and to take their legal advisor with them, but what they did in this case was to hear evidence in private, and refuse all information to the appellant.” Wragg’s comments were a strong indication of how the court would rule. Mason also interrupted to inquire whether it was “not an abuse of terms to call what took place an appeal?”43
In his opinion deciding the case, Wragg stated that the court would not decide whether the licensing officer’s employment by the council created an impermissible bias; he did advise the council, however, that “it would be better that some person who is more or less distinct, should be the Licencing Officer.” Wragg went on to base his vote to invalidate the council’s action on the council’s refusal to provide reasons and a copy of the record. In Wragg’s view, the council also acted improperly when it retired and took evidence from the licensing officer “without giving the appellant a chance of hearing what that evidence was.” In the face of the provision in the DLA prohibiting appeals, Wragg then set forth Mason’s earlier pledge in Vanda as a point of law: “Where a very great irregularity takes place, this Court has the power to set aside the proceedings.”44 Justices Mason and Finnemore joined with Wragg to unanimously overrule the council, with Mason pointedly calling the town council proceedings “not only oppressive, but . . . a disgrace to the Town Council.”45
The Court had been true to its word. While it would not invalidate the provision of the DLA barring court appeals, it would see to it that whatever proceedings were held before town councils offered appellants at least one characteristic of fair hearings—notice of the grounds for the denial.
DUE PROCESS
When Gandhi, armed with his Supreme Court decision, renewed his appeal of the licensing officer’s decision against Somnath before the Durban Town Council, the council read aloud the record of the case. Gandhi then pushed the council, inquiring whether any other reasons existed for the denial of the license. By a 4–3 vote, the council required Dyer to state his reasons, which he articulated as follows: “That the applicant had no claim whatever upon Durban, as the class of trade he was engaged in was sufficiently provided for in the town and borough.”46
Gandhi knew this was a pretext.
The only reason the licence was withheld was because [my] client belonged to a class who were not much in favour in Durban, or for that matter in the Colony. The reason now submitted by the Licensing Officer was . . . not sufficient to warrant the Council to reject the appeal. The man, being Indian, could not change his skin.47
Gandhi wanted the real basis for the decision on the record.
Councilman Farman, in an effort to avoid such unseemliness, first tried to adjourn the council to executive session, where he could more freely argue with his colleagues about the basis of their decision. That attempt failed. Then he obtained the mayor’s permission to examine the applicant. This would be fatal for Somnath’s application. Farman quickly demonstrated that Somnath was incapable of taking the oath because he could not speak English. Farman, his goal of avoiding an openly race-based decision now in sight, reminded the council that the act required “that the applicant should be able to keep his books in the English language.”48
The rebuttal to this point was in plain view of anyone who had read the act. It did not require that the applicant personally keep his books in English, only that they be kept in English. A bookkeeper who knew English would do.
Gandhi, however, was speechless. Before he could open his mouth, Councilman Henwood’s motion to deny the license was approved by unanimous vote. The Somnath case was lost.
The council took up a second appeal that Gandhi presented, this one an appeal on behalf of Mahomed Majam and Company. It was only then that Gandhi offered the obvious response to Farman’s point that an applicant could keep his books “by means of an accountant.”49 Gandhi, however, was too late. The council ignored his point and promptly turned Majam and Company down too.50
In Somnath, the Supreme Court had forced town councils to offer disappointed Indian applicants some measure of due process when it required councils to state the reasons upon which denials rested. In the Majam appeal and in Gandhi’s second appeal of the Somnath case, the Durban Town Council had complied with this mandate. It had stated reasons—and then dismissed the appeals. Gandhi got his due process—and nothing else.
REQUESTING REASONS
If this new regime was not clear to Gandhi the day he lost the Somnath and Majam appeals, it would become unmistakably clear when he pursued yet another appeal some three months later on behalf of Dada Osman. Because Dada Osman was a Congress activist, this case, like the Somnath case before it, has the mark of being part of a deliberate campaign of litigation against the act.
The town clerk notified Gandhi of the hearing date at 4:30 P.M. the day before the hearing. Gandhi found it impossible to get his client to Durban on such short notice and appeared before the council to ask for a two-week continuation of the hearing. The mayor indicated to Gandhi that notice of the hearing was posted on the Town Hall notice board five days before the hearing. Gandhi argued that this notice was insufficient; no one could be expected to keep checking the board constantly, and, in any event, attorneys for the parties were entitled to individual notice. The town clerk replied that the notice from the previous day was Gandhi’s individual notice. Daniel Taylor moved that the appeal be dismissed. Councilman Evans countered with a motion that the hearing be postponed for two weeks. This motion passed.
Gandhi then asked the council to provide him the reasons for the denial. Taylor moved that the officer not be required to state his reasons. This time it was Councilman Collins who countered with a motion that Gandhi be provided a copy of the reasons. Collins’ motion carried. If Gandhi wanted his due process, a majority of the council was prepared to give it to him.
When the council resumed the hearing two weeks later, the council complied with Gandhi’s request for reasons. The town clerk read aloud the licensing officer’s statement:
The Act of 1897, as I understand, was passed with a view of placing some check on the issue of trading licences to certain classes of people, generally regarded as undesirable, and, as I believe I am right in assuming that the applicant in question is one that would be included in that class, and, moreover, as he has never before had a license in Durban, I have felt it to be my duty to refuse the license.51
This statement was read after the council had already conceded that sanitation was not an issue.52 Accordingly, Gandhi’s strategy, in the face of this statement, was to show the absurdity of classifying Dada Osman as “undesirable.” To do so, he called witnesses to speak to the applicant’s capability as a businessman and his upright character.
He first produced an established Durban merchant, Alexander McWilliam, a European who vouched for the applicant, saying that over the past twelve or fourteen years he �
��had considerable business dealings with him,” and that he “knew him as a clever businessman, and a good linguist and correspondent in the English language.” Moreover, added McWilliam, the premises intended for the applicant’s business were suitable, and as a taxpayer he had no objection to Dada Osman holding a license.
It was likely no coincidence that, were he to obtain a license, Dada Osman’s landlord would be Abdul Cadir, a partner in the large Indian trading firm Mahomed Cassim and Company. Abdul Cadir was an important figure in the Congress, and Cassim and Company was a steady Gandhi client. Abdul stated that he owned several properties in Durban, worth between £18,000 and £20,000, one of which he desired to rent for £10 a month to Osman, whom he described as a capable, desirable, and honest tenant. Were Osman’s license to be denied, Cadir would “lose the rent of that particular store.”53
Gandhi also called upon Dada Osman himself to speak. He informed the council of his long history as a businessman in the colony, much of which had been spent in agreeable professional relationships with several European businessmen in addition to McWilliam. He indicated that he was fluent in English, could write English, and understood both single- and double-entry bookkeeping. Indeed, the licensing officer had already inspected and approved his bookkeeping.
Gandhi had put together an impeccable factual record. The premises were sanitary. The applicant himself could keep sophisticated books in English. There was no question of the applicant’s business integrity and capability. He had a good record of dealings with well-established European businessmen. Moreover, were the license to be denied, the economic interests of a prominent landlord would be harmed.
The only issue was “desirability.” Gandhi argued first that the DLA spoke not one word with regard to the “desirability” of persons applying for licenses and, accordingly, judgments about an applicant’s desirability constituted an improper basis for the decision on whether a license should be issued.
M.K. Gandhi, Attorney at Law Page 18