M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  This is an approach he handed down to Gandhi—and the student became quite adept at the master’s art. Gandhi lost only one appeal in 1900. In addition to winning several indentured servant appeals, he won a reversal of a magistrate decision against one of his merchant clients, won the reversal of another magistrate decision in a property dispute, and won yet another reversal of a magistrate decision in a security case—with all of these victories coming on procedural grounds. This string of successes makes the middle of 1900 Gandhi’s greatest sustained period of success at the bar to date. Gandhi knew, of course, that appellate courts were not free to relitigate the facts of a case but had to accept those from the trial court. He understood, however, what Laughton was teaching him: that when confronted with an appellant who had been the victim of some injustice, the appellate court would seize on procedural error as a convenient ground on which to reverse and do the fair thing. So, like his mentor, it was procedural error Gandhi used over and over to obtain equitable results. He was beginning to understand how the appellate game was played.

  At the same time, there was good evidence that, when it was appropriate, Gandhi was unafraid to compromise with his clients’ opponents in the service of fair settlements. Laughton applauds him for his openness to compromise, and the press hails him as a mediator. In his autobiography he happily tells of his affection for settling cases out of court.

  With the disruption brought on by the war greatly lessened, and at the same time that Gandhi was beginning to win in court, the Camrooden partnership case began to stir back to life. Gandhi was a significant player in this dispute, appearing before the District Circuit Court by himself and before the Supreme Court with his mentor, Laughton. In addition to his courtroom work on behalf of the business, it is quite likely that Gandhi was also involved in the out-of-court arbitration work that was involved in the proposed dissolution of the partnership that would eventually take place. This case, involving one of South Africa’s leading Indian businesses, meant not only lots of work but lots of fees for Gandhi.

  Indeed, every indicator points to Gandhi’s income having been quite substantial at this point in his career—he had major businesses for clients, he was able to take on an associate, he had significant cash flow, and he was able to offer others financial assistance.19 And all this came in the context of record-high legal activity in the Durban courts20—activity that was practically monopolized by Gandhi and other Natal practitioners who had the advantage of superior English training in a bar whose “forensic talent,” by Gandhi’s own estimation, was not “of a very high order.”21

  A DIGNITARY

  These were heady times for Gandhi: he was chalking up appellate victory after victory, he was making great amounts of money, and his services were sought after by the largest entities in the Indian business community.22 With this success came demands for the presence of the prominent Indian barrister at public events. Beginning shortly after the disbanding of the Indian Ambulance Corps, Gandhi began regularly appearing at ceremonies taking place in the Indian community. He appeared in a variety of settings—at a celebration of early British victories, at a sports banquet, at several Indian school events, and at tributes to an Indian war hero, to the commander of British forces, and to the late queen. In addition to standing on the dais, Gandhi was frequently asked to speak. He spoke effectively; his speech on the Indian famine was praised as “touching” and as making a “deep impression.”23 He spoke to masses of people without being paralyzed by fear; the crowd to which Gandhi spoke on February 4, 1901, about the passing of Queen Victoria was estimated to be as large as five thousand.

  Gandhi had arrived. He was a “dignitary,” something the man who earlier had tried to learn to speak French and play the violin must have found, in some respects, satisfying. Would Gandhi’s identification as a person of standing in the community, however, affect his interest and effectiveness in advocating for Indian rights? The unrelenting racism of the European colonists provided Gandhi with an opportunity to answer this question.

  NO STICK

  With the automobile not having fully arrived in 1900, Durban teemed with rickshaws. More than seventeen hundred of these hand-pulled carts were licensed to ply Durban’s streets for fares at the turn of the century. The carts were usually operated by natives, but owned by others. When the town council enacted a by-law prohibiting Indians from owning rickshaws, Gandhi organized a petition to the governor, signed by a number of leading Indians.24 Remarkably, the town council withdrew the by-law in the wake of Gandhi’s protest. The council’s work, however, was not done. Constructing a policy reminiscent of the discrimination against which Martin Luther King, Jr., and others would later campaign in the American South, the council then enacted a by-law establishing carts for use by “Europeans only.” Gandhi did not encourage opposition to the by-law when it was first proposed. His view was that “it would be inconsistent with the self-respect of the Indian community to wish to insist on having the right to use the same ricksha used by the Europeans if the latter objected to share it with Indians, so long as the same kind of vehicle was available to the Indians also.”25

  In others words, Gandhi was prepared to accept separate-but-equal treatment of Indians. And, indeed, for a short time after the by-law went into effect, there were sufficient rickshaws without racial restrictions to serve the needs of Indians. Moreover, Indians found that those among them who were neatly dressed could get rickshaws. It was not long, however, before the town council gave the police instructions to strictly enforce the by-law, and soon enough Indians were without service. Gandhi recognized that he had made a mistake in not opposing the by-law at the start.

  Europeans objected to riding in carts that had carried “dirty” Indians.26 Gandhi approached the town council, asking not that it repeal the by-law, but that it relax its enforcement by permitting rickshaw operators to restrict their passengers not to Europeans but to those who were clean and well attired. Despite Gandhi’s new bond with the Indian underclass, he was still prepared to sacrifice their interests for those of the upper class. His request, nonetheless, was denied. Accordingly, he once again petitioned the Natal governor, who earlier had approved the by-law, asking that the by-law be canceled or amended.27 Gandhi forwarded a copy of the petition to the town council, which discussed Gandhi’s request but took no action. Nor did the governor accede to the Indians’ request that the by-law be canceled or amended. It remained on the books and the police continued to enforce it.

  In both his letter to the town council and his petition to the governor, Gandhi stated that he believed the by-law to be invalid. For his authority he cited Section 75 of Law Number 19 of 1892. That section stated that municipal by-laws are invalid if they fail to meet certain procedural requirements or are repugnant to “the general spirit and intent of the Laws in force within the Colony.”

  Gandhi did not argue, as Laughton might have, that the by-law violated any of the procedural requirements of Section 75. Perhaps Gandhi did not have the facts in his corner to support a procedural argument. Rather, he argued that the by-law was invalid because it was “opposed to the general spirit of the British Constitution and the Laws of the Colony.”28

  Gandhi did not act on this argument. He and his clients did not take the issue of the legality of the by-law to the courts. There was no litigation. If there could be no hope of persuading the courts to invalidate the DLA on the grounds that race discrimination was at odds with the fundamental law of the British Empire, how could there be any hope of invalidating the rickshaw by-law on the same grounds? Yet invalidation was the relief that Gandhi implicitly threatened to seek in the courts. Theodore Roosevelt once counseled that one should “speak softly and carry a big stick.” In this instance, Gandhi spoke loudly and carried no stick.

  INDIA ONCE MORE

  For the next year Gandhi’s practice of law becomes quite ordinary. He appears before the Supreme Court twice in the same case—and loses both times. He slogs through the Camrooden par
tnership dissolution matter. He does some bankruptcy work. He continues to have Khan assume some of his lower-level work. Within three days in May, Gandhi loses two substantial commercial cases, both contract cases for his merchant clients. Strangely, he is the victim of his own procedural errors both times.

  By September, with the bar celebrating the ascension of Henry Bale to the chief justice’s seat with an elaborate dinner and with Gandhi’s attendance being noted by the local press, Gandhi realizes that something has gone awry. His attack on the DLA has failed in the end.29 As for the rickshaw controversy, he has resurrected the petition strategy in opposition to the town council’s rickshaw rules only to achieve an unhappy result: Indians have to walk. They are not even allowed to ride in rickshaws they themselves own.

  As for his private practice, he is aware of what it is doing to him. It is making him rich.

  This is not what Gandhi had intended. Just five years earlier, in writing to a lawyer whom he was attempting to recruit to join him in South Africa, he had said:

  I cannot be too plain in saying that no one in our position should go to South Africa with a view to pile [up] money. You should go there with a spirit of self-sacrifice. You should keep riches at an arm’s length. They may then woo you. If you bestow your glances on them, they are such a coquette that you are sure to be slighted. This is my experience in South Africa.30

  Gandhi did not always follow his own advice. His wealth had caused him to embark on what he called a life of “ease and comfort.”31 He notes, in particular, that he had furnished his house “with care.” Feeling uncomfortable with this style of living, he undertook efforts to simplify his life and keep his wealth in perspective. He notes in his autobiography that he began to launder and starch his own shirts and cut his own hair, but that his initial efforts were less than completely successful, earning him the ridicule of his bar colleagues.

  Gandhi was, as he says, “impervious to ridicule.”32 He was not, however, impervious to the tide of money and approval washing over him, nor was he impervious to the frustrations he was suffering by his inability to gain equality for his race.

  He decided to return to India. He would turn his practice over to R. K. Kahn and leave his role in the movement to Khan and Mansukhlal Nazar.33

  By 1901 Gandhi was an important leader in South Africa’s Indian community. Indians looked up to him as an educated, articulate, and influential professional who had helped many of them as individuals when they were in need and had fought for the rights of the entire community. Not surprisingly, then, there was a huge outpouring of affection for Gandhi upon his departure. The forms in which this affection was expressed, however, did nothing but discomfort him and confirm him in his decision to leave. At an elaborate farewell ceremony, the Indian community—his clients prominent among them—deluged him with gifts: a plaque of gold and ivory, a diamond ring and pin, a gold necklace, watch, chain, coins, and, according to the Natal Advertiser, “many more presents.” He also received the praise of the establishment figures in attendance—one judge stated that he “wished they had a thousand Gandhi’s appearing before the bar”—as well as congratulatory notes from, among others, the premier, the colonial secretary, and the justices of the Natal Supreme Court.34

  The practice of law, in tandem with his political work, had brought this thirty-two-year-old barrister great wealth, universal approval—and an immense sense of loss.

  It was time to retreat. It was time to go home to India.

  ELEVEN

  * * *

  Sacrifice

  I think it is wrong to expect certainties in this world, where all else but God that is Truth is an uncertainty. All that appears and happens about and around us is uncertain, transient. But there is a Supreme Being hidden therein as a Certainty, and one would be blessed if one could catch glimpse of that Certainty and hitch one’s wagon to it.

  GANDHI, reflecting on his call to South Africa

  THE NATAL IN WHICH GANDHI practiced law was a backwater colony with a backwater legal arena. Gandhi achieved material success there not only because of his hard work and the loyalty of the Indian community to one of its own, but also because his competition at the bar for business and prestige was limited both in number and in intellectual sophistication.

  THE INDIAN STAGE

  Things were different in India. Rajkot and Bombay, the two places Gandhi would eventually attempt to set up law practices, were thick with all manner of practitioners, with many of the country’s leading attorneys practicing in Bombay. Aside from his British education, there was nothing to distinguish Gandhi from his many competitors at the bar. The natural monopoly he enjoyed in South Africa was set on its head in India.

  Nor did he have the benefit of preeminence in political leadership. The Indian National Congress was a well-established institution led by giants of Indian nationalism who were hardly aware of the existence of lawyer Gandhi and his Natal Indian Congress. Despite these realities, Gandhi set about to enter nationalist politics at the highest level and to earn a living as an Indian advocate.1

  In both of these endeavors he was hobbled by the need to recover from his experience in South Africa. In some way that Gandhi never fully discloses, his health was seriously damaged in Natal to the point that his physician and friend, Dr. Pranjivan Mehta, recommended in early 1902 that Gandhi take “complete rest” for at least two or three months.2

  Prior to this recommendation and just weeks after arriving in India, Gandhi managed to get the South African Indian question on the agenda of the upcoming Congress meeting in Calcutta. On the train from Bombay to Calcutta, he lobbied his fellow advocate Sir Pherozeshah Mehta for his help in having the Congress pass a resolution in support of the South African Indian cause. Mehta was less than encouraging, telling Gandhi “it seems nothing can be done for you. Of course, we will pass the resolution you want. But what rights have we in our own country? I believe that, so long as we have no power in our own land, you cannot fare better in the Colonies.”3

  In Gandhi’s prepared remarks in support of his resolution, he identified what the Congress could do for South African Indians. Gandhi explained that the British had not yet decided whether to enforce the anti-Indian rules the Boers had in place prior to their defeat in the war. The Congress could help put pressure on Secretary of State for the Colonies Joseph Chamberlain to decide in favor of the Indians.

  Gandhi had a second substantive point. Without seeing the irony of it, he urged the professional men in his audience, including barristers, to move to South Africa to help in the fight for Indian civil rights.

  It is unlikely Gandhi’s audience heard this plea. At nearly 11 P.M. the Congress meeting was drawing to a close, with the delegates growing restless and unanimously passing resolutions while paying virtually no attention to them. It was under these circumstances that Mehta had to be reminded by Gopal Krishna Gokhale that Gandhi’s resolution still needed to be presented.

  With Mehta’s permission, Gandhi approached the audience and, trembling, read his resolution. Like the resolutions before his, it passed unanimously—and mindlessly. Now Gandhi had five minutes to speak to an impatient audience about the resolution. What happened next was painfully reminiscent of Gandhi’s other attempts to speak in India. In his own words: “The morning found me worrying about my speech. What was I to say in five minutes? I had prepared myself fairly well but the words would not come to me. I had decided not to read my speech but to speak ex tempore. But the facility for speaking that I had acquired in South Africa seemed to have left me for the moment.”4

  Gandhi was still struggling with his remarks when the bell indicating that the speaker had two of his five minutes left rang. Mistakenly thinking that the bell signaled his time was up, he broke off his talk and took his seat. It had been more than nine years since his nervousness had made him unable to conduct a small trial in an Indian courtroom, and more than five years since his nervousness had made him unable to deliver a speech to a public meeting in Bomba
y. Now, at thirty-two years old and with almost a decade of law practice under his belt, he found that he was still not ready to act on the large Indian stage.

  Gandhi’s failure at high-pressure public speaking might have misled some of his listeners to think that there was nothing inside the man worth noting. Three episodes, closely linked in time with Gandhi’s failed speech, would have proved them wrong:

  Sanitation at the Congress meeting site was horrible. The delegates shocked Gandhi by their failure to use and maintain latrines. To the astonishment of his fellow delegates, Gandhi cleaned his own latrine—work that the others thought belonged to scavengers.

  Stunned by the Congress’ disorganization, he asked whether there was work to do. A Congress functionary, not knowing Gandhi was a barrister, gave him some trivial clerical work. Gandhi threw himself into it without complaint.