M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  The licensing officer had based his decision on “desirability,” however, and Gandhi knew he must address that question squarely. Gandhi relied on the authority of no less a figure than the secretary of state for the colonies, Joseph Chamberlain, who the previous year had spoken out against colonial legislation that explicitly discriminated on the basis of race and color. Gandhi quoted Chamberlain as saying, “It was not because a man was of a different colour from themselves that he was necessarily an undesirable immigrant, but it was because he was dirty, or immoral, or a pauper, or had some other objection which could be defined.”

  Chamberlain’s statement provided Gandhi with an authoritative set of characteristics that defined “undesirable.” Gandhi argued that because the proof had convincingly demonstrated that Dada Osman was neither dirty, nor immoral, nor a pauper, he was not, by definition, “undesirable.” It was a sound argument. To it, Gandhi added a policy argument. The licensing officer himself had said that Dada Osman would conduct a sanitary business. If the council now “refused this license, it would go forth among the Indian population of Durban that the desire of the Council was not really that the Indians should conform to the sanitary requirements of the Council, but would as soon have them live in contravention of those orders.”54

  The only remaining possible reason for the denial, Gandhi concluded, was that Dada Osman was an Indian. In Gandhi’s view this would be a clearly impermissible basis for the denial.

  That was not the view of the town council. Councilman Collins was forthright: the council would refuse the license “not because the applicant or the premises were unsuitable, but because the applicant was Indian.” Collins explained: “Parliament, representing the community of Natal, had come to the conclusion that it was undesirable that the Indians should increase their hold on the trade of Durban, and it was on that account that [the council was] practically called upon to refuse the licenses which were not otherwise objectionable.”

  Collins added a personal note. He “considered the refusal of the license a grievance to the applicant, who was a most suitable person to appear before the Council to ask for a licence, but it had been found expedient as a matter of colonial policy that these licences should not be increased.”55 With that, Collins seconded the motion of Daniel Taylor to confirm the decision of the licensing officer. Councilmen Evans, Labistour, and Hitchins had arrived at the meeting a few minutes before and were ineligible to vote. Labistour, the lawyer who had refused to oppose Gandhi’s application to the bar in 1894, wanted to speak his mind. He expressed his disgust with the “dirty work” the council was called on to do. He said he had deliberately stayed away from the first part of the meeting because he did not want to participate. Labistour lectured the council: “If the burgesses wished all such licenses stopped, there was a clean way of going about the matter, namely, getting the Legislative Assembly to enact a measure against the granting of licences to the Indian community, but, sitting as a Court of Appeal, unless there were good grounds to the contrary, the licence should be granted.”56

  Labistour’s advice was ignored. Taylor’s motion was put to a vote and passed easily. Dada Osman would not get his license.

  There is no doubt that Gandhi had put on a superb case. Even the Natal press had to confess that Gandhi was “to be complimented for the able defence . . . he made of his client’s application for a license.”57 Because the case was a deliberate project, Gandhi had time to plan it carefully. And so he did. By the testimony of his witnesses and the force of his arguments, he defeated every substantive objection to the application that the council could muster. He even garnered the unexpected sympathy of Collins and the support of Labistour. None of this, however, was sufficient to win the day.

  The Supreme Court had proven itself to be the one governmental institution to which the Indians could turn with the expectation of receiving a fair hearing. Laughton had convinced the chief justice, if not the full court, that appeals to the judiciary from town council decisions under the DLA should be allowed. Gandhi had obtained a ruling that held the authorities in check in terms of how a retail shop was defined. The two lawyers had also succeeded in convincing the Court to force town councils to provide an important measure of due process to applicants. But in the end Gandhi and Laughton must have realized that the Court’s reach was limited. While the Supreme Court had forced town councils to extend significant procedural rights to the Indians, Gandhi and Laughton never asked the Court to rule on the ultimate question: would the law permit a town council to deny an applicant a license solely because the applicant was Indian?58

  Perhaps they were afraid of the answer.

  TEN

  * * *

  Moth and Flame

  I was afraid that my main business might become merely money-making.

  GANDHI

  IN LATE 1898 WORD CAME from London that the Privy Council had handed down its decision in the case of Vanda v. Newcastle.1 Laughton’s argument that an applicant for a dealer’s licence should be permitted to appeal an adverse town council decision to the Natal Supreme Court had been rejected. There would be no appeals of licence denials to the courts.

  The fight against the DLA was now limited not only by the conservatism of the Natal Supreme Court but by this devastating Privy Council ruling as well.2 The cause of Indian civil rights in South Africa was stymied. As town councils continued to enforce the DLA, the owners of shops and trading firms who were Gandhi’s clients would suffer significant hardships. With new men unable to secure licences, extant business owners could not sell their businesses or hand them down through inheritance. Nor could they establish new locations or split up a business among its partners. Indians freed of their indentures and who wanted to start small businesses were also greatly hurt.

  Gandhi had been hired by Natal’s prosperous Indian businessmen to stop the erosion of their rights, not to preside over their destruction. He had invested enormous amounts of his time in organizing meetings, writing petitions, and finally, litigating. Nothing worked.

  FULFILLMENT

  Gandhi would continue to struggle mightily against discrimination by the European colonists, but as the end of the decade drew near, he found himself taking refuge in activities that offered him clearer rewards than did his political work. One such opportunity was opened to him during this time when a leper appeared at Gandhi’s door. Gandhi took him in, fed him, dressed his wounds, and sheltered him before sending him off to a government hospital. The experience introduced Gandhi, who as a youth had been interested in medicine, to the fulfillment he might experience in caring for the ill. As a result, he began work as a volunteer at a hospital for Indians. On each visit Gandhi spent up to two hours interviewing patients, briefing their physicians, and dispensing medicines the doctors prescribed for them. The practical effects of this hands-on work constituted an achievement that could be easily seen and just as easily enjoyed.

  Similarly, Gandhi’s private practice of law offered him some tangible indicators of success, at least as the world measures success. Gandhi had never valued his practice above his political work (insofar as these were separate domains), but now, in the midst of his losing battle against the DLA, his practice filled a vacuum in his life. It offered him an opportunity to succeed.

  His practice was demanding. Much of his time was consumed, as he described it later, with “office work, conveyancing and arbitration.”3 The importance of this work in Gandhi’s mind might be reflected in his having spent practically no effort in his memoirs to describe it. A letter-book, mentioned by the compilers of The Collected Works of Mahatma Gandhi and containing some thousand exemplars of Gandhi-client correspondence, would likely have given us a detailed understanding of Gandhi’s office work. That evidence, however, appears to no longer exist. What evidence does remain appears to indicate that Gandhi did, in fact, spend a good portion of his time in chambers, doing the sort of ordinary work one might expect of a lawyer with a busy civil practice. The record as we have it gives
us some hints as to what this work was. Some work involved negotiating the rental, purchase, and sale of property and attending to the routine legal work that surrounded such transactions.4 Gandhi was also frequently occupied in obtaining opinions from other practitioners in their areas of expertise on the rights of his Indian clients.5 And he seems to have spent a fair amount of his time engaged in correspondence in which he dealt with the financial aspects of his practice, sometimes quarreling with others about what he or his clients owed them.6

  Although his autobiography, written decades later, seems to downplay his courtroom practice, it is clear from the record that Gandhi was no stranger to the courtroom in the years immediately following his work with Laughton against the DLA. The fact is that, because he had established himself as a responsible and respected figure in the eyes of the colonial establishment, Indian clients were drawn to him as one who had credibility and, perhaps, even influence with those in power. Accordingly, he had no shortage of clients for whom he was called upon to litigate. His courtroom work covered a wide range of matters from mortgage bonds to promissory notes to personal injury and more. He even made an occasional but rare foray into criminal law.

  So much was going on in Gandhi’s office that there was enough work for two lawyers. Accordingly, in mid-1899 he took on the second Indian lawyer to come to Natal, Rahim Karim Khan. Like Gandhi before him, Khan had gone to London to undergo his legal training in the Inns of Court. Khan had been a member of Lincoln’s Inn and was called to the bar in 1898. Like his employer, he had come to South Africa as a novice. Unlike his employer, he submitted an application for admission that was not opposed by the bar.7

  As soon as Khan was admitted to the Natal bar in July 1899, Gandhi began to funnel some of his routine cases to the young barrister, freeing himself to make his money doing more interesting things. Within days of Khan’s admission, Gandhi left the office in the hands of his new Muslim colleague and traveled to the Transvaal, where the Boer government was attempting to require licences of Indian traders and to segregate Indians to rural locations out of town. Gandhi met with the public prosecutor, pleaded the case of the Johannesburg Indians to the state secretary—and collected a fee for his advocacy.

  On his return, he was quickly reminded of the level to which the struggle for Indian civil rights in Natal had sunk. An Indian had been selling vegetables from what the city nuisance inspector called a “building,” which, the inspector charged, was erected without the requisite permission of the city council. Gandhi was called upon by his client Dada Abdulla and Company, the owner of the premises and the Indian’s landlord, to represent the defendant in the lowest court in the judicial system. There Gandhi argued that the defendant was not operating out of a building at all, but rather that the shop, by virtue of its wheels, was actually a moveable van. Gandhi’s star witness, a European architect, testified that to call the van a building “was absurd on the face of it.” Answering the question “when is a building not a building?” the court ruled that the shop was not housed in a permanent structure and therefore did not fall under the building laws; it dismissed the charges.

  This prosecution dealt with a ridiculously trivial issue, but Barrister Gandhi found himself ensnared in it because Dada Abdulla was a major client and because opposing the city on this matter was one of the few remaining ways left for fending off the continued harassment of the Indian community. This case does not get a mention in Gandhi’s memoirs.

  It must have come as no small relief for Gandhi to be shortly thereafter thrown into some private business litigation of a rather substantial magnitude. M. C. Camrooden and Company, a partnership, was, in Gandhi’s estimation, “the premier Indian firm in South Africa.”8 Camrooden had trading interests in Natal and the Transvaal, as well as large amounts of real estate in Natal. In June 1899 a major battle erupted within the partnership when one of the partners, Mahomed Ebrahim, desiring to retire from the firm, exercised what he believed was his right to dissolve the partnership. Ebrahim wanted a curator bonis (a guardian of property) appointed to oversee the dissolution and the distribution of what he intended to be a cash payment to him of £7,000. Gandhi, pairing himself again with the more experienced Laughton on behalf of the partnership, resisted dissolution and the appointment of a guardian, arguing that dissolution would be fatal to the business. When Ebrahim’s application for the appointment of a guardian came before the Supreme Court, Laughton argued that Roman-Dutch law controlled, providing that the dissolution of an at-will partnership cannot occur except “at a seasonable time.”9 With the Boer War clearly on the horizon and with the company having interests in both Natal and the Transvaal, Laughton and Gandhi had a strong argument that the timing of the dissolution was not seasonable—if the Roman-Dutch law applied. The two lawyers also asked that an arbitrator be appointed to settle matters between the parties. The Court agreed in a 2–1 decision that Roman-Dutch law did apply. It then referred the case to arbitration for the arbitrator to determine which time was, in fact, seasonable for dissolution and to address “all disputes and differences.”10 It was a good win for Laughton and Gandhi.

  WAR

  This litigation would not conclude quickly, not only because of its complexity but because the attention of the entire colony, including that of Gandhi, was about to be diverted in a very substantial way.11 Tension had existed for a long time between the British, who controlled Natal and the Cape Colony, and the Boers, who controlled the Transvaal and the Orange Free State. So great was the animosity between these two opposing forces that the British government, indifferent at best to Indian rights in Natal, consistently opposed Boer anti-Indian legislation in the Transvaal as a part of its overall resistance to Boer influence throughout South Africa. When war broke out in October of 1899, the allegiance of the Natal Indian community to Britain was severely tested.12 The inclination of Gandhi and many other Indians was to favor the Boers, whom they perceived as suffering under the same oppressive British boot. Gandhi had repeatedly argued, however, that Natal’s Indians deserved treatment equal to that of other colonists because Indians were British subjects. To support the Boers now would give the lie to this position. Gandhi’s own profession added yet more pressure on him to support the British as huge numbers of his colleagues at the bar abandoned their practices to join the British war effort. In the end, Gandhi concluded that it was important to the future of Indian rights that his community show its fidelity to Britain in its time of need. A demonstration of Indian loyalty during the war would earn Indians the respect of Britain and the colonists, who, Gandhi reasoned, would have to show greater respect for Indian economic and political rights after the war.13

  With this philosophy in mind, Gandhi suspended his practice and organized a volunteer Indian Ambulance Corps in support of the British. In this effort he had the political support of both Escombe and Laughton and the active participation in the corps of Khan. Gandhi induced more than a thousand Indian men to serve. Of these about seven hundred were indentured servants whose employers had consented to their service. The remaining members were free Indians. While the corps included a sprinkling of professional men and a few artisans, virtually none of the volunteers came from the merchant class. Gandhi’s clients were prepared to give money, but not their lives.

  The men of the corps served with great distinction and bravery.14 They earned the praise of the British authorities as well as the Natal press. Gandhi’s postwar hopes were, however, to be shattered. While the colonial establishment was happy to accept the Indians’ service during the war, it was just as quick to point out after the war that their service would not result in any heightened recognition of Indian rights.15 Gandhi and the Indian community were particularly aggrieved by the position of the British home government that all the anti-Indian legislation enacted by the previous Boer regime in the Transvaal would remain on the books and be fully enforced by the new Transvaal government.16

  There would be no more respect for the Indians after the war than ther
e had been before the war. Gandhi’s Boer war strategy was a spectacular failure.

  INDENTURED SERVANTS

  One happy result of Gandhi’s decision to raise the Indian Ambulance Corps, however, was that it brought him into close contact with Indians who were of a social class quite different from that of his business clients. From his arrival in South Africa in 1893 to 1900, when the corps was disbanded, Gandhi rarely represented indentured servants or lower-class Indians who had been freed of their indentures, preferring instead to limit his clientele to wealthy merchants.17 Indeed, he had sustained public criticism for failing to unite the Indian community. Within months of the disbanding of the corps, however, he was in court on at least four different occasions, defending indentured servants against charges made by their masters. The defenses mounted by Gandhi were not routine, lackluster defenses raised by a lawyer who was in the case out of a sense of obligation. Rather, these were robust, full-throated defenses.18

  Gandhi’s association with the indentured servant class in 1900 foreshadows the turn to nonmerchant Indians that he would make just a few years later in the Transvaal. For present purposes, however, his turn to the poor and the powerless must be seen in context. From the late 1890s until he departed for India in 1901, Gandhi’s work with mistreated indentured servants, like his caring for the sick in the hospital and in the corps, was balm on the wound left by his failure to defeat the DLA.

  THE ART OF APPEAL

  So, too, was his entire private practice. In the months after his return from the war, he began to achieve more success than ever before. The key to his success could be found, in good measure, in his having been a good student of Laughton. Gandhi’s senior by fifteen years, the more experienced Laughton was among Natal’s best lawyers. He knew the law of procedure better than any of his contemporaries—and he was committed to using that knowledge as a powerful weapon against his opponents. It was his habit to rigorously square the actions of those whose decisions he challenged—whether a town council or a trial judge—against the procedures that they were bound to follow, rather than to challenge decisions on their merits. Laughton was particularly skilled at using this approach in appeals. He understood the dilemma all appellate judges face: they are concerned with fairness, but are substantially limited by their roles to reviewing lower-court decisions for errors generally having nothing to do with the equities. Laughton was especially good at developing compelling procedural arguments for parties who had been treated unjustly on the merits. He thus made it possible for a judge, sympathetic to Laughton’s client on the merits but unable to reverse a lower court on those grounds, to rule for his client in the context of correcting a procedural error on the part of the original decision-maker.