M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  The Republic’s Afrikaners then moved the issue to the Volksraad, the Republic’s parliament, which was the target of complaints from European citizens that Indians were unsanitary and that Indian merchants were a threat to the livelihood of white merchants. The result was Law 3 of 1885, which, after it was amended in 1886, granted the government of the Republic “the right, for sanitation purposes, to point out for habitation by them [“Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire”] fixed streets, wards and Locations.”7

  Three years after its enactment, the law was challenged by an Indian business, Ismail Suleiman and Company. Suleiman had applied for a license to do business in the Middelburg district of the Republic, but the landdrost (a type of district magistrate) turned the company down. The landdrost offered to give Suleiman a license for a location outside of town. Not satisfied with this decision, Suleiman went to the Republic’s High Court in the late summer of 1888 and asked it to order the landdrost to issue a license for his original Middelburg location.8

  George Morice, Suleiman’s attorney, argued that the government did not have the authority under Law 3 to restrict Indian businesses to specified locations. He rested his argument on the clear text of the act, which plainly and only stated that the government possessed the power to specify locations for “habitation.”9 Morice thus demonstrated the obvious distinction between living (“wonen”), which was regulated by Law 3, and trading, which was not.

  The court’s response to this argument was patently disingenuous: “Such a distinction cannot be drawn, for it cannot be said that a person does not live in a place simply because he does not sleep there; otherwise the portion of a town where traders carry on business, but where they do not sleep, might be described as an uninhabited locality.”10

  Ignoring the unambiguous text of Law 3, Chief Justice John Kotze, writing for a unanimous court, buttressed this response by relying on grounds that were more honest, but not more legitimate: “It would be inconsistent with the spirit of the law to draw such a distinction. The intention of Law 3 . . . was to draw a broad distinction between Asiatics and Europeans in the Transvaal and therefore the interpretation must be against the Indians rather than in their favour.”11

  This decision, which flew in the face of Law 3’s plain meaning, was a defeat for the Indian business community and a victory for European businesspeople who feared competition. If Indian merchants could be kept at a distance from the main body of the population, the markets would fall under the complete domination of European interests.

  ARBITRATION AND ABSURDITY

  The Suleiman decision was not regarded at the time as a test case and did not receive much attention.12 As a result, the question of how Law 3 ought to be interpreted continued to fester. Seven years after the High Court issued its opinion in Suleiman and ten years after the enactment of Law 3, the British and the Afrikaners were still quarreling as to its meaning. To break the impasse, the two sides agreed in 1895 to submit the matter to binding arbitration.13 Because of his reputation among some Europeans for impartiality, the parties turned to the chief justice of the Orange Free State, Melius de Villiers, as the arbitrator. The Indian merchant community’s cry that de Villiers was biased against Indians was ignored by the British high commissioner.14

  The British were represented in the arbitration by advocate Malcolm W. Searle. The Indians, choosing not to be represented by Gandhi, who was unlicensed outside Natal and inexperienced, hired prominent Johannesburg advocate Charles Leonard.15 Leonard does not seem to have taken any formal part in the arbitration proceedings—not surprising, since the Indians were not a formal party. The South African Republic was represented by Ewald Esselen, the state attorney.

  With straight faces, the Afrikaners claimed that “for habitation” meant “places of business as well as the sleeping places of the coloured persons mentioned in the law” and that the Republic was therefore entitled to prevent Indians “from carrying on businesses in villages or other places than those pointed out” by the government. Moreover, the Afrikaners argued, the original intent of the parties in agreeing to Article 14 of the London Convention was to include “only Europeans and their descendants” within the meaning of the term “persons.”16 When Article 14 was written, the parties were only contemplating two groups, Europeans and natives. The Afrikaners believed that the British were unfairly using a change in circumstances—the influx of British Indians—to interpret Article 14 to protect a racial minority never intended by the parties to be protected.

  Concerned that the new law would indeed be used to force Indian merchants in Pretoria, Johannesburg, and elsewhere in the Republic to move to out-of-the-way locations that would effectively put them out of business,17 the British argued that Law 3 violated the London Convention. To this the British added what should have been the obvious point that there was “nothing in the law which prevents Her Majesty’s Asiatic subjects from carrying on their business or trade in any portion of a town” and that “for habitation” should be construed to refer to “the dwelling places of such traders and not to places of business.”18

  De Villiers heard the arguments of the parties and received documentary evidence in hearings conducted on March 16, 18, and 19; he rendered his opinion less than two weeks later, on April 2.19 The opinion was a masterpiece of evasion, ambiguity, and indecision. The parties, who were looking for an arbitrated decision, did not get what they paid for.

  On the one hand, de Villiers held that because it might possibly have been the intention of the British to protect the interests of British Indians by agreeing to the “all persons” language of Article 14, the British were correct when they “insisted upon a literal interpretation of Article 14.”20 On the other hand, the arbitrator found that the British had given their assent to Law 3 and that by doing so, “they were bound by the indisputable principle that the legislative enactments of a country are subject to the exclusive interpretation of the tribunals of that country, and they must be held to have acquiesced in that principle. . . . [P]ersons who settle in a foreign country are not only subject to its laws, but also to the interpretation of those laws by the legally appointed tribunals.”21

  De Villiers concluded his opinion by holding that

  on the questions that have arisen . . . in the application of Law No. 3 . . . , with reference to the interpretation and effect of that law, the decisions of the competent tribunals of the South African Republic must be considered as decisive. . . .

  As regards the question whether the words “for habitation” . . . have reference only to dwelling places, and not to business premises, . . . it will be with the tribunals of the . . . Republic to give the necessary decision thereon.22

  The South African Republic, which surely could have availed itself of its own presumably partisan courts, had instead agreed with Great Britain to refer to a neutral arbitrator the very question the arbitrator had now referred back to the Republic, on grounds that the Republic could decide the question by itself! The decision, Gandhi was to later correctly observe, “left the Indians entirely where they were.”23

  Within days of the decision, Gandhi was called upon by several leading merchants to take action on their behalf. He drafted a rather brief petition to the British agent in Pretoria in which he pointed out that any decision of the High Court of the Republic would be a “foregone conclusion” in light of the Suleiman case. The Indians were destined to lose. Gandhi then argued that “the Arbitrator did not decide the question in terms of the reference to him,” suggesting that the British government should therefore reject the decision.24 The British agent submitted the petition to the high commissioner, who, in turn, sent it to the British government.

  Approximately two weeks later, Gandhi produced a far more substantial petition, this one to Lord Ripon, serving his last year as colonial secretary in London and known for his sympathies to the Indians. This petition, unlike the first, was on behalf of the entire range of Indian economic interests, from labo
rers in hotels to the largest trading houses. After attacking de Villiers as biased, Gandhi amplifies the argument he made in the first petition that the decision was void. Gandhi’s argument is clear and tight. It concludes with the assertion that the ruling was void on two grounds: it went beyond the limits of the charge given the arbitrator (to rule on Law 3) and it delegated the decision when the arbitrator had no authority to do so.

  Why does Gandhi fail to raise the most basic—and compelling—legal argument available to the Indians? Gandhi could have made a simple but powerful textual argument, namely, that the wording of Law 3 does not provide for segregated trade locations, only for residential segregation. In Gandhi’s defense, it might be said that he realized that the substance of the arbitration case could not be relitigated and that the most persuasive argument was one that attacked the procedural correctness of the decision—a là Laughton.

  While Gandhi might be faulted for leaving out his most telling point, credit is owed him for having a realpolitik understanding of the controversy. He spends more than half of this lengthy document rebutting the given reason for trade segregation, the insanitary habits of the Indians. Here Gandhi is at his lawyerly best, supporting his petition with affidavits from European physicians and businesspeople, all attesting to the cleanliness of the Transvaal Indians. Having dispatched the sanitation argument, Gandhi names the real reason for the Republic’s discrimination against the Indian—“trade jealousy.”25 The Indian trader was able to live more cheaply than the European trader; hence, his overhead was less, his profit margin smaller, and his prices lower. The Europeans simply could not compete with the Indians. One hundred years before it became a household world, globalization had struck the Republic’s European traders.

  UNSEEMLINESS

  The petition also reveals a shocking and unsavory side to the Indian perspective, one articulated by Gandhi on more than just this occasion. The petition quotes with approval an editorial from the Cape Times of April 13, 1895, which states that it is difficult to understand why some would place the Indians “in the same category as the half-heathen Native and confine him to Locations, and subject him to the harsher laws by which the Transvaal Kaffir is governed.”26 Gandhi himself attacks the inclination of some Europeans to “degrade the Indian to the position of the Kaffir.”27 Later Gandhi would write that Indians were “undoubtedly infinitely superior to the Kaffirs”28 and would publicly protest that the actions of the Republic had resulted in merchant Indians being “generally classed among the raw Zulus.”29 In an 1896 speech in Bombay, he had this to say: “Ours is a continual struggle against a degradation sought to be inflicted on us by the Europeans, who desire to degrade us to the level of the raw Kaffir whose occupation is hunting, and whose sole ambition is to collect a certain number of cattle to buy a wife with and, then, pass his life in indolence and nakedness.”30

  Here is an argument based not on the status of Indians as British subjects, but on class and race. Gandhi is arguing that because the Indian is in a higher position than that of the native African, the Indian ought to be treated better. As Maureen Swan points out, Gandhi’s Indian merchant clients in Natal had promoted their case to the British in large part by distinguishing themselves from Indian laborers. In the Transvaal, with far fewer Indian laborers than Natal, Gandhi and the merchants took pains to distinguish the merchants from natives.

  Gandhi, who would later lead a campaign in India on behalf of India’s “untouchables,”31 and whose philosophy and practice of nonviolence would later inspire Martin Luther King, Jr., and the movement for African American civil rights,32 was blind to the irony in his own argument in 1895. He seized upon European prejudice toward Africans as a convenient weapon in his own fight against European prejudice toward Indians. The pragmatist in Gandhi led him to speak in racist terms to a racist government. There was no saintly rising above the sinfulness of the time.

  A CHALLENGE TO LAW 3

  In the end this particular aspect, and indeed the whole, of the Indians’ argument won them nothing. Chamberlain accepted the legitimacy of de Villiers’ decision (known as the Bloemfontein Award) and dismissed the Indians’ plea for help, rejecting what the British authorities themselves conceded was Gandhi’s very able legal argument that the decision was void.

  In the wake of the Bloemfontein Award, the Republic felt that it had a free hand in dealing with the Indian community, imposing restrictions on the use of sidewalks and public transportation by Indians,33 and, of greater import, enacting a restrictive immigration law that targeted Indians. The response of Gandhi and the Indians was surely one of desperation. They sought an interpretation of Law 3 from the High Court of the South African Republic that would be favorable to the Indian community.

  At first it was their hope that this test case would be financed by the British government.34 In pleading his case with the British agent in Pretoria, Gandhi sought funding from the British on two principal grounds. He argued that it was only the foolishness of the British in deciding to go to arbitration and in ignoring the Indians’ protest of de Villiers as the arbitrator in that case that created the very necessity for the test case. Gandhi also pled poverty, an odd argument from one who would later argue against the relocation of his Transvaal business clients on the grounds that relocation would jeopardize his clients’ sizeable collective assets—assets totaling £375,000.35

  What makes Gandhi’s argumentative writing so often effective is his unusual fidelity to the truth, a devotion that has him admit the strength of his opponents’ arguments and the weaknesses of his own. This straightforward approach suited Gandhi’s nature and earned him many an open ear. It is not clear why he deviated from this course in his letter to the British agent. What is clear is that this incident, while not as weighty a matter as Gandhi’s earlier use of a racial argument, marks another occasion on which Gandhi uncharacteristically permits his ends to dictate his means.

  In any event, neither argument was successful. British high commissioner Alfred Milner also weighed in, arguing two points to his superiors: one, the British, already committed to having an attorney hold a “watching brief,” would incur no extra costs by representing the Indian cause; and two, the Indians would receive competent representation from counsel hired by the British. Chamberlain was unpersuaded. He believed that the Indians would represent themselves well and that, if they lost, the Indians would have only themselves to blame. Chamberlain also was wary of the diplomatic repercussions that would flow from direct British involvement, a strange consideration from an administration doing everything it could to assert British paramountcy in South Africa.36 In the end, the British refused their help and left the Indians to proceed on their own.

  After a number of delays, the case was brought on February 28, 1898, in the name of Tayob Hajee Khan Mohamed, a Pretoria-based entrepreneur with a variety of business interests in the Republic. Ironically, this was the same Mohamed whom Dada Abdulla had sued earlier in the decade over a dispute involving the Mohamed firm’s acquisition of the Abdulla firm’s Transvaal assets. It was this lawsuit that had originally brought Gandhi to South Africa on behalf of Dada Abdulla and against Mohamed. Gandhi’s earlier good work of reconciling those parties helped bind the Indian community together. Now, in 1898, relations between Gandhi and the Transvaal businessman were so good that the plaintiff Mohamed and the advocate Gandhi were able to work together. Gandhi’s efforts at reconciliation had paid both spiritual and practical dividends.

  IMPLAUSIBILITY

  Gandhi, however, did not represent the plaintiff in the test case, not because of any conflict of interest arising from the previous litigation, but quite probably because he was not yet a member of the Republic’s bar. Rather, the plaintiff was represented by advocate James Weston Leonard. In the early spring of 1898, however, Gandhi did attempt to assert himself in the preparation of the case by composing two set of notes to the European lawyers representing the Indians.

  Gandhi wanted them to argue that Law 3 simply d
id not apply to Indian merchants. Clause 1 of the Law read as follows: “This Law is applicable to the persons belonging to one of the aboriginal races of Asia, among whom are comprehended the so-called Coolies, Arabs, Malays, and Mahomedan subjects of the Turkish Empire.”37

  In his notes Gandhi claims that “the meaning of the various expressions in the clause to be accepted by the Court will be the meaning which a standard work, as for instance, a Dictionary, would give them, and not the meaning given them by the populace, either through ignorance or prejudice . . . in the absence of a definition of these expressions in the law itself.”38

  Gandhi then turns to several scholarly sources to show that Indians are of Indo-Germanic stock and thus not aboriginal to Asia. He goes on to argue that the plaintiff could not possibly be an Arab, because he was a British subject, a native of India, and completely without connection to Arabia and Turkey. And, Gandhi contended, the plaintiff certainly was not a “coolie,” that pejorative term being reserved for Indian field workers. In sum, Gandhi wanted Leonard to argue that the High Court should interpret the language of the statute not as it was popularly used by Europeans in the Republic, but as it was defined by scholars.

  There was simply no justification for Gandhi’s position either legally or politically. His turn to the academic authorities might have made legal sense if the statute had been ambiguous. It was not. As a matter of law Gandhi’s argument is defeated by the very text of the statute. It did, in fact, define what it meant by “aboriginal races” when it said “among whom are comprehended the so-called Coolies, Arabs,” and so forth. Moreover, the insertion of the phrase “so-called” before the listing of the discriminated-against classes made it clear beyond a shadow of a doubt that the Republic’s legislature was not making an academic reference but a popular one. Gandhi’s insistence that the insertion of this phrase would not alter his argument was plainly wrong.