M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  In addition to the implausibility of Gandhi’s argument from the text, it is impossible to see how Gandhi’s argument could have succeeded as a matter of politics. The Republic’s judicial system had just come through a bruising battle with the executive and legislative departments over the question of whether the judiciary had the power to review legislative acts, a battle that it had decisively lost and that had left it in a greatly weakened position.39 Chief Justice Kotze, deeply influenced by the American constitutional experience in which the United States Supreme Court had established its power to rule legislation unconstitutional,40 resisted the president and legislature and refused to renounce the testing right. Kruger dismissed him from office on February 16, 1898.

  Less than two weeks later, with the wreckage of the High Court of the South African Republic before them, Gandhi’s forces filed their lawsuit. Gandhi’s argument that counsel for the Indians should take the position that this Court should interpret, on behalf of a racial minority, an act of the legislature in a manner completely opposite from its clearly intended meaning made little sense when he first articulated it in 1897 and made even less sense in February 1898. Watching the Republic’s judiciary being brought to its knees, the Indians’ hired counsel rejected Gandhi’s advice.

  Rather, Leonard made an argument to the Court that cleverly relied on the Volksraad for authority, but was unavailing.41 Judgment was for the defendant, with costs to be borne by the Indians.

  This was truly an Alice in Wonderland result. The High Court ruled that there was no difference between where an Indian resided and where he conducted business. There being no other court to which the Indians might appeal this travesty of justice, and in light of the many complaints that the Republic’s Europeans had brought against the Indians, one would expect that the removal of Indians would have taken place forthwith. This was not to be so. Several attempts by Republican officials to remove the Indians to locations floundered because of British counterpressure, governmental bungling, and, finally, the start of the South African War between the British and the Republic’s Afrikaners in October 1899.42

  Anti-Indian animus, however, was deeply rooted and remained strong. In the course of his opinion in the test case, Justice Morice demonstrated just how deep and strong it was:

  There is not . . . an equality between the whites and persons of colour, and we are bound to accept, as a principle, that every right possessed by the white man can only be exercised to a limited extent, or not at all, by the person of colour. . . . [T]he principle of an extensive interpretation in favour of the legislature must be followed, and thus, in case of any doubt or ambiguity, against the person of colour.43

  When Gandhi opened his law office in the Transvaal four and a half years later, he did so as a “person of colour.”

  He was not a welcome figure.

  THIRTEEN

  * * *

  No Bed of Roses

  He [Mr. Loveday] asked if . . . it could ever have been contemplated that the Indian trader could come into this country and have the same rights as the white man. He contended that the whole spirit of the law was against anything of the kind.

  Indian Opinion, reporting the remarks of Hon. Richard K. Loveday on the floor of the Transvaal Legislative Council

  The deprivation of a man’s right to trade without any compensation . . . is very much akin to robbery, which is miscalled law when it is done under cover of statute.

  GANDHI

  IS HISTORY THE PRODUCT OF strong-minded individuals who impose their will on the forces of society? Or is it the product of the forces of society that impose themselves on individuals? Or, as many think, are there no clear lines?1

  GANDHI STAYS

  It is easy enough to divide Mohandas Gandhi’s career at the bar into two seemingly distinct phases—the Natal phase and the Transvaal phase. This division has the look of intentionality. When Gandhi returned to South Africa at the very end of 1902, however, it was not for the purpose of resuming his profession. Rather, he was there to lead the Natal Indian deputation that was to meet with Chamberlain. When, after the meeting, Chamberlain headed to the Transvaal for a meeting with Indians there, Gandhi did so too, intending to head the Transvaal Indian deputation. He would be excluded from the meeting by the government, but would go on to articulate the Indians’ grievances in a written statement.

  Gandhi reminded Chamberlain that when the Afrikaners were in control of the Transvaal, the British criticized them for their resistance to providing Indians the respect the empire expected for its subjects. In fact, the British cited the Afrikaners’ poor treatment of Indians as one ground justifying the South African War of 1899. This British advocacy on behalf of Indian rights led the Transvaal’s Indians to believe that their situation would be vastly improved under a British postwar administration.

  It was not to be. Once in power, the British performed an about-face. They shocked the Indians by not only enforcing the old regime’s discriminatory laws but also enforcing them with a zeal unmatched by even the Afrikaners.2 In fact, the government established a special Asiatic Department to oversee the administration of anti-Indian laws.

  The central issue was trade, just as it was in Natal. Indian merchants consistently undercut the prices for goods offered by rival European merchants, an ability attributed to the Indians’ comparatively frugal mode of living. Rather than reduce their wants so as to reduce their prices, the European merchants preferred to drive their competition out of the field. To this end they had long ago concocted the idea of locations. The Europeans believed that if they could drive Indian businesses from their towns and into the distant countryside where they would be limited to selling to their own community, to native Africans, or to no one at all, their problems would be solved.

  When Gandhi arrived in the Transvaal, Law 3, empowering the government to establish locations, had been on the books for some time. As described earlier, the Indians had unsuccessfully challenged the ability of the government to segregate Indian trade under Law 3 in the South African Republic’s High Court. Even with that victory in hand, however, the Republic was lackadaisical in its enforcement of the law.3 When war broke out in late 1899, the government’s attention was further diverted from the Indian question.

  The tone changed after the war. The Transvaal Indians feared that the laws restricting them to locations, forcing them to pay a special £3 tax, and barring their ownership of real property would remain “unrepealed.”4 These fears were more than confirmed when, in late April 1903, the Transvaal issued Government Notice 356, popularly known as the “Bazaar Notice.”5 “Bazaar” was a euphemism for “location.” Except for certain Indians who had been permitted to trade before the war, Indian merchants were ordered by the new government, now under British control, into these government-created ghettoes.

  Gandhi, who felt this noose tightening well before the notice was issued, was thrown into a state of temporary confusion and indecision. On the one hand, he longed to return to India. On the other, the Transvaal, now a Crown colony, presented him with an opportunity to preserve rights for his countrymen that had been effectively lost in Natal. Moreover, Africa, with its less competitive legal environment, offered him another chance to prosper in his profession.

  Before the end of January 1903, and in evident preparation for a possible application for admission to the Transvaal bar, Gandhi had sought a certificate from the Natal Supreme Court attesting to his good standing as an advocate in that colony. In early February 1903, however, Gandhi professed his indecision with regard to whether he should return to India or take up the fight in the Transvaal. In a letter to Chhaganlal Gandhi, his cousin’s son, he wrote: “There is great uncertainty about me. . . . If it is not possible to stay on here, I may leave in March. . . . I shall make every possible effort to return home. It’s no bed of roses here. I cannot offer more definite news.”6 Later in February, he confided to his mentor Gokhale that because the “old laws [were] being enforced,” “it probably means my
having to stop here longer than March.”7

  Over the following month, Gandhi made his decision. He explained himself to his co-workers in South Africa:

  The work for which you had called me is practically finished. But I believe I ought not to leave the Transvaal. . . . Instead of carrying on my work from Natal, as before, I must now do so from here. I must no longer think of returning to India within a year, must get enrolled in the Transvaal Supreme Court. I have confidence enough to deal with this new department [the government’s Asiatic Department]. If we do not do this, the community will be hounded out of the country, besides being thoroughly robbed. Every day it will have fresh insults heaped on it. The fact . . . that Mr. Chamberlain refused to see me . . . [is] nothing before the humiliation of the whole community. It will become impossible to put up with the veritable dog’s life that we shall be expected to lead.8

  He would stay, open a law office, and fight again for the rights of South African Indians, all in the knowledge that the struggle was “far more intense” than he originally expected.9

  RACISM IN THE LAW SOCIETY

  Among his first tasks in Johannesburg was deciding whether he wanted to make application to the bar as an advocate or as an attorney. When Gandhi arrived as a newly minted barrister in Natal, there was an insufficient supply of both advocates and attorneys. As a result, he, like many of his Natal colleagues, was permitted to engage in dual practice. Such a privilege did not exist in the Transvaal, where there was a heightened sensitivity to the divisions within the profession.10 By the terms of the Administration of Justice Proclamation of 1902, practitioners were forced to enroll either as advocates or as attorneys, a distinction that mirrored the traditional British distinction between barristers and solicitors. Advocates in the Transvaal had what was called the “right of audience”—the unlimited right to appear in all courts, high and low, on behalf of clients. By contrast, attorneys in the Transvaal, while permitted to appear in some low-level courts, were not authorized to appear in all courts. Rather, like solicitors elsewhere, their principal work was that of rendering legal advice, assisting with the purchase and sale of property, and dealing with a broad range of the legal needs of businesses, among many other things. A client who had a problem requiring a court appearance would first contact an attorney, who would then bring the case to an advocate. Attorneys had a front-line relationship with clients, while barristers did not.

  As an English-trained barrister and an experienced Natal advocate, Gandhi could have applied either as an advocate or as an attorney. He chose to apply for admission as an attorney, later explaining that “as an advocate I could not have come in direct contact with the Indians and the white attorneys in South Africa would not have briefed me.”11 He does not mention that the attorney’s role would also allow him to more often avoid the public-speaking pressures of the courtroom.

  In a petition filed in Pretoria on March 31, 1903, Gandhi applied for admission to the Supreme Court of the Transvaal as an attorney. He tendered to the court, along with his Natal certificate, a certificate of good standing from the High Court of Judicature of Bombay and the same Inner Temple certificate, attesting to his having been called to the bar in England, that had given the bar the pretext to oppose him in Natal.

  Gandhi’s earlier uncertainty about whether it would be possible to remain in the Transvaal was likely founded, at least in part, on his apprehension about whether the Transvaal would admit him to practice.12 In any event, the bar did not oppose him. On April 14, 1903, the Court granted the application, directing Gandhi to appear in the chambers of Mr. Justice Wessels in Johannesburg to take his oath as an attorney.13

  The bar’s surprising lack of formal opposition should not be taken as a sign of welcome. In fact, the members of the Transvaal bar were not pleased with Gandhi’s appearance among them. Eight days after Gandhi’s application for admission was approved by the Court, the Council of the Incorporated Law Society of the Transvaal met in the boardroom of the Exploration Building in Johannesburg. Gandhi was on the minds of those assembled. The society’s minutes of that meeting are astonishing for what they unabashedly reveal about the bar’s distinct racial attitudes:

  re: Admission—M. K. Gandhi: It was reported that this gentleman, who is an Indian, had been admitted as an Attorney of the Supreme Court of this Colony, but as his qualifications were sufficient and as there was nothing in the Administration of Justice Proclamation against the admission of such persons, the Council did not think anything could be done in the matter.14

  The bar had apparently scrutinized Gandhi’s admission application for deficiencies and studied the proclamation in search of a provision that might be used against this dark interloper. Neither exercise bore fruit. It seems beyond question that had the bar found defensible grounds on which to base an objection to Gandhi’s admission, it would have seized upon them. None being found, the Transvaal bar was saddled with this Indian attorney.

  Gandhi was free to practice law.

  If Gandhi sensed any prejudice against him by his colleagues at the bar—as he certainly must have—he defied it. Just days after his admission, a large meeting of practitioners convened in Johannesburg. Gandhi appeared at the meeting, presenting himself to the very people who had just recently noted that they were unable to keep him out of their midst. The subject of the meeting was one that would have interested Gandhi. The meeting had been called to protest the government’s licensing tax of £40 per year on attorneys. When the president of the law society pledged that the organization would “agitate, agitate, agitate, until we get reform,” it was a sentiment with which Gandhi could surely identify. He and his new colleagues voted unanimously in favor of a resolution protesting the tax.15 Later that year, the bar assembled again, this time to give encouragement to law students in the Transvaal. Gandhi apparently felt no reluctance in joining with some of the most powerful members of the bar for this purpose.

  The law society was not the only association into which an unwelcome Gandhi thrust himself. The Johannesburg Parliamentary Debating Society met weekly to listen to its members give speeches about the issues of the day.16 One of its members caused a stir by moving for Gandhi’s admission. There was some controversy over the propriety of admitting an Indian member. Gandhi’s status, as it was pointed out, as a person of “culture and refinement” was sufficient in the eyes of the membership to overcome his status as an Indian. The motion, in the end, passed.17

  Gandhi’s aggressiveness in locating himself in organizations prominent in Johannesburg public life was matched by his aggressiveness in locating his law office. Assisted in his search for space by friends whom he encountered in Johannesburg’s theosophist circles, he opened his office on Rissik Street at 25–26 Court Chambers, conveniently located near the courts and in the very heart of the town’s legal center.

  From that location, the young attorney started to make trouble.

  THE ASIATIC DEPARTMENT

  Even in light of his joining with Laughton in their attack on the DLA, Gandhi’s practice in Durban was, relative to what his experience in the Transvaal would be, fairly apolitical. Gandhi’s future in the Transvaal would be very different from his Durban experience. The rights of the Transvaal Indian merchants, Gandhi’s clients, would get caught up in an uncertain postwar administrative environment and in the postwar struggle for supremacy between the Transvaal’s defeated Afrikaners and the imperial British administration. The defense of his clients’ economic and political interests would require Gandhi, with more frequency than ever, to act not only as a business lawyer but as a cause lawyer, a movement lawyer, a civil rights lawyer. To be sure, Gandhi’s office would continue to generate a very substantial income from his conventional representation of his clients’ property and business interests. At the same time, however, his law office would become a hub of Indian resistance to white discrimination.18

  The Asiatic Department was discrimination in the flesh. The postwar government had established this agency f
or the specific purpose of administering the colony’s anti-Indian laws. One principal focus of the office was to regulate the readmission of Indian refugees into the colony. These were Indians who had fled the Transvaal at the outbreak of war and were now trying to return to their homes and businesses. Department agents harassed returning Indians not only by subjecting them to what seemed like endless bureaucratic red tape, but also by extorting bribe money from them for the performance of their duties. According to Gandhi, “There grew up an army of intermediaries or touts, who with the officers looted the poor Indians to the tune of thousands.”19 It is not surprising, then, that the department was on the receiving end of Gandhi’s most pointed criticism. He called it “a terror to the people” and described its purpose as inventing “new engines of torture.”20

  Gandhi, who had detested the department from the time it prevented him from leading the Indian party that met with Chamberlain in early 1903, plotted his attack on it from his Johannesburg law office. Teaming with members of the Chinese community that had recently grown up in Johannesburg, and working with a lawyer’s eye for evidence, he set about gathering proof of bribery and corruption on the part of the department’s officers. The suspects were soon on to Gandhi’s activities and began shadowing his movements. Undeterred, Gandhi went about his work. When he had collected what he believed was indisputable evidence of the guilt of two of the officers, he presented it to the police commissioner, an honest public servant. The commissioner soon thereafter arrested Cecil Jackson, the supervisor of Asiatics in the Asiatic Permit Office, and Charles Walton, a clerk in the same office, on charges of taking bribes.21 Walton had earlier fled the jurisdiction and had to be forcibly returned to the Transvaal. By November 1903, proceedings against the two had begun, with Indian witnesses testifying they had given hundreds of pounds to the pair for the issuance of permits. But the jury, which even had the benefit of knowing that Walton had tried to flee, appears to have accepted a rather unbelievable story concocted by the defense to account for the exchange of funds between the defendants and permit applicants.22 In the face of what Gandhi considered “strong evidence” against them, the jury acquitted both defendants.