Nonetheless, some justice was done. The responsibility for processing permit applications was transferred to others, and the defendants were discharged from their employment.23 The demonstration effect of the prosecution and firings was a healthy one; Gandhi was able to later declare that “the Asiatic Department became comparatively clean.”24 In the end, it was a considerable win for a lawyer who had only that year arrived in the Transvaal.
RELOCATION
At the same time Gandhi was fighting the corruption of the Asiatic Department, the government was busy opening another front against the Indians. The government and major elements of the Transvaal business community remained intent on driving Indian merchants out of business. Their strategy was to revive the notion of locations. As indicated earlier, the ability of the government to segregate Indians into locations had its roots in Law 3 of 1885. It prohibited Indians from owning property outside these locations and also required Indians to live and, as interpreted by the courts, trade in locations. Much of Gandhi’s work in the Transvaal in the early part of his practice there dealt with resistance to this attack on Indian interests.
The Indians discovered soon after the war that the 1885 prohibition on property ownership outside locations would be enforced. Gandhi was first approached by his clients on this issue in 1903. He swung into action by instructing the advocates who would represent the Indians in this matter—and did so in a revealing way. He defined the issue solely as a question about the contract rights of the Indian purchasers.25 At this time, he did not raise the question of whether Law 3 itself could be challenged. While Gandhi was still in India, several Indian merchants had secured the opinion of Seward Brice, a high-profile member of the Johannesburg bar, that statutes such as Law 3 were “certainly unconstitutional and without precedent in our legal history.” Brice went on to offer the Indians a plan of action, recommending they petition first and, should that fail, litigate. Gandhi likely was aware of Brice’s opinion but chose not to act upon it.26 While we are not privy to Gandhi’s thinking on this question, it is clear that he did not take the 1903 case to the Supreme Court, and its outcome is unknown.27
A case raising the same issue, however, did wind its way up the court system; the Supreme Court rendered a decision on the question in 1905. Gandhi was the instructing attorney for the plaintiffs, who were once more represented in court by J. W. Leonard, the well-respected advocate of whom Gandhi speaks highly in his autobiography. The facts of Lucas’ Trustee v. Ismail and Amod were that Lucas, a European, held property in his name at the request of some Indian friends who understood that Law 3 prohibited Indian property ownership. The Indians paid for the property. Lucas, who made no financial or other investment in it, eventually went bankrupt. While he was in bankruptcy, the government seized his property and paid his bankrupt estate £2,000 for it. The Indians claimed this money, arguing that Lucas was their trustee and they were the beneficial owners of the property.
The Supreme Court of the Transvaal refused to accept the Indians’ argument. The Court stated that under Law 3 the Indians could not own the land themselves nor could they claim to be the beneficial owners. The Court refused to grant them the £2,000 they sought, but did permit them to claim £650 from the estate for improvements on the property. As for the £1,350 difference, Chief Justice Innes was less than clear on this question, saying that the Indians could lodge a claim for that money against the estate, but that their right to do so might “be affected by the further question whether their claim is defeated by the fact that they attempted to commit an illegality.”28 It appears that the Indians never tried to assert this claim. In the main, then, this case was a serious loss for the Indians. That is not how Gandhi painted it, however. Gandhi wrote that it seemed from the decision that “the holding by Europeans of land for Indians is not illegal.” This conclusion is unjustified in light of Innes’ statement. Gandhi did recognize that Indians who entered into agreements with Europeans ran the risk of losing their investments, but he nonetheless called the decision one that “takes the Indians a step further in their fight, and renders Law 3 . . . still more ineffective as a weapon to be used against them.”29 While that assessment might have been somewhat accurate, the decision was no cause for rejoicing. In this instance, optimism triumphed over realism.
ASIATIC TRADING COMMISSION
The locations issue arose with full force when the infamous “Bazaar Notice,” requiring compliance by the end of the year, was published in April 1903. It angered Europeans as well as Indians. Indians were upset because the notice represented a mortal threat to their very livelihoods. Europeans were upset because the policy contained exceptions. It essentially exempted “those Asiatics who were trading outside Bazaars at the commencement of the late hostilities.” It also allowed higher-class Indians an exemption for out-of-location residences. Emotional, rhetoric-filled protest meetings of white colonists occurred all over the colony, with commercial interests demanding strict enforcement of the notice. The British colonial secretary resisted, expressing reservations about dispossessing Indian merchants who had traded before the war with either tacit or explicit governmental approval.
When the Legislative Council met in December, this argument came to a head. Some members wanted to allow Indians who had traded before the war without permits to continue to do so, while other members feared that allowing these Indians to resume their businesses would lead to a flood of Indian traders.30 This difference was papered over by a decision of the Legislative Council “to appoint a Commission to investigate the cases of those Asiatics who traded in towns before the war without licenses, and to report what vested rights or interests they may reasonably claim in respect to such trade.”31 This compromise did not resolve the question of how harshly the Indians were to be treated; rather it simply passed the question on to the commission—and it did so in a way that failed to clearly articulate the commission’s charge.32
When the Asiatic Trading Commission held its opening meeting at the Royal Courts of Justice in Pretoria on March 15, 1904, Gandhi was present with an immediate and pressing question for the commission. The notice appointing the commission spoke in terms of Indian merchants “who were trading in the Transvaal in towns outside locations without licenses at and immediately before the outbreak of hostilities”33 (emphasis supplied). Substituting “or” for “and,” Gandhi asked for a ruling on the meaning of the phrase “at or immediately before the outbreak of hostilities.” The chair, J. W. Honey, dodged the question and replied that “a concise ruling could not be given on that point at the present moment.”34 When the commission’s proceedings resumed on March 17, not only were the body’s purpose and scope unclear, but so was its procedure. Present were three commissioners, a secretary to the commission, a representative of the Pretoria Chamber of Commerce, and two lawyers for Indian claimants—a Mr. Rees, who represented one claimant, and Gandhi, who appeared on behalf of twenty Indian merchants who had traded in the Transvaal before the war.
After the commission heard and rejected Rees’ argument on behalf of his client, Gandhi brought on the case of Joosub Hajee Valee, an Indian merchant who had traded on his own until 1896 and who then went to work for another merchant. Chairman Honey, who earlier had refused to give Gandhi any guidance on the terms of the commission’s appointment, pounced on these facts: “Three years before the war cannot be termed at or immediately before the outbreak of hostilities.”35 This comment revealed a gap of huge proportions between what the commission saw as its purpose and what Gandhi conceived it to be. The commission believed it was limited to determining which Indian merchants were deprived of their then-extant businesses by the war and recording the merchants’ requests for compensation. Implicit in the commission’s understanding was the notion that these merchants would then move on to locations.
Gandhi, by contrast, argued for a less literal meaning of the notice and claimed that the commission had a broader, underlying purpose, namely to determine which merchants had been “allow
ed to trade in defiance of the law and were granted protection under the late regime,”36 a determination that should then permit them to trade outside locations under the current government. Gandhi believed that, in light of the debates in the Legislative Council that had resulted in the commission’s creation, the “and” in the notice appointing the commission (“at and immediately before”) could not be read literally, for that would result in the unreasonable conclusion that only traders who were trading on the very day the war broke out could be eligible to make a claim. Rather “and” should be read as meaning “or.” Even the chair of the commission, in what was likely an unintentional concession, provided some support for this reading when he argued that 1896, in Joosub Hajee Valee’s case, could not be considered “at or immediately before” the war.
Gandhi himself recognized that the commission had a strong case in the text of the appointment notice, admitting to his readers in Indian Opinion that “the Commissioners had absolutely no choice” and that the “wording of the reference leaves no loop-hole.”37
It was not surprising, then, that the commission rebuffed Gandhi’s argument. In response, Gandhi announced that he was withdrawing the claims of all twenty of his clients.38 Then, in an apparent attempt to buy time for this dispute to be mooted by a test case,39 he asked the commission to adjourn until after Easter. The chairman rejected Gandhi’s suggestion and stated that the commission would resume hearing Johannesburg cases in four days, on March 29.
Just as the hearing was ending, J. F. Rubie, one of the commissioners and an advocate whom Gandhi respected, spoke up. The Rand Daily Mail reported the exchange between Advocate Rubie and Attorney Gandhi that brought the hearing to a close:
Mr. Rubie informed Mr. Gandhi that, after consideration, some of the claims might be reinstated on application.
Mr. Gandhi smiled in reply, and did not think, as things stood, that such was possible.40
Gandhi was quite likely smiling because his faith in the court system was, surprisingly, still alive.
CIVIL DISOBEDIENCE: THE FIRST SUGGESTION
When the postwar Transvaal government began to get serious about forcing Indian traders into locations, Gandhi and his clients had three choices before them. One option was to resist by refusing to apply for permits. Indeed, this was a possible course of action Gandhi described to the readers of Indian Opinion in January 1904. In addition to establishing the Asiatic Traders Commission, the government had required Indian merchants to apply for temporary permits from the Receiver of Revenue, to whom the merchants had to supply the same proof of prewar trading that they submitted elsewhere. Gandhi was infuriated by this duplication of effort, by the increased costs involved, and, most especially, by the government’s duplicity. Here he is in his own words, raising for the first time the prospect of civil disobedience:
What, then, is to be the attitude of the British Indians amid such a crisis? To our mind, it is quite clear what it should be. The Indians must keep themselves absolutely cool and remain patient, still relying upon justice being ultimately done. They must make respectful representations to the Government, but they should also firmly decline to give proof to the Receivers [sic] of Revenue, offering to do so before the Commission that is to be appointed. It may be that prosecutions will take place for carrying on trade without licences, and if summons are issued and penalties imposed for carrying on trade without a licence, the persons prosecuted should rise to the occasion, decline to pay any fines, and go to gaol. There is no disgrace in going to jail for such a cause; the disgrace is generally attached to the offence which renders one liable to imprisonment, and not to the imprisonment itself. In this instance, the so-called offence would be no offence at all, and it would be a most dignified course to adopt.41
With its call for patience and its expression of faith in the system to ultimately provide justice, this was a cautious excursion into the notion of principled lawbreaking. It was also a temporary one. After the government signaled that it would not prosecute Indians pending the completion of the Asiatic Traders Commission’s work, talk of civil disobedience was not revived.
Two other courses of action were left for dealing with the location question. The Indians could attempt to bargain with the government for a different arrangement, or they could contest in court the government’s power to establish locations. In light of the decision in Mohamed v. Government, litigation did not appear to be a completely promising route.
Not surprisingly, the Indians initially declined to take the postwar government to court on this issue and instead pled their case through political channels and in the court of public opinion. After a protracted and unsuccessful attempt at effecting a compromise, however, the Indians did elect to go to court. Here is Gandhi in January 1904 on the issue of turning to the courts:
The Indian community . . . has hitherto deliberately refrained from standing on its legal position, hoping that in the end the Government would do it justice; but if the Government would abdicate its function and decline to protect the Indian community, it must invoke the aid of the Supreme Court, and test the question of whether residence includes trade. The Law 3 . . . requires Indians to reside in locations; it says nothing as to trade. . . . [T]hough we still hope that recourse to a law-suit will be unnecessary, if the Government insists on withholding protection to all the existing licence-holders we see no way out of an appeal to the highest tribunal of justice in the Colony.42
Two weeks later, he revealed that the decision had been made:
As a last chance, therefore, the Indians have wisely decided to test . . . the right of the Government to refuse to grant licenses to British Indians to trade outside Locations . . . . It will undoubtedly stand to the credit of the British Indians . . . that they have refrained from bringing the matter before the . . . Court for two years. . . . . They have . . . attempted to come to a reasonable understanding with the white traders and the Government . . . and it is even when this is being denied to them . . . that they must perforce see what they can raise out of the . . . Court.43
This preference for negotiation and compromise over litigation was a frequent theme of Gandhi’s practice, as well as his politics. Gandhi cited Emerson for the proposition that “the world . . . is governed very largely by the law of compromise.”44 In this instance, however, the route of conciliation failed.
MOTAN V. TRANSVAAL GOVERNMENT
The Indians hired some leading lights of the bar to represent them in their challenge to Law 3, including J. W. Leonard as lead counsel, the principal advocate for the Indians in Mohamed v. Government. Gandhi praised these lawyers as possessing “the very best legal talent” and capable of providing the “best legal advice.”45 Why wasn’t Gandhi among them? Why did the attorneys from the firm of Lunnon and Nixon act as the instructing attorneys, rather than Gandhi? The case was being litigated just as Gandhi was being admitted to the bar, and so he would not have been admitted to practice for a substantial portion of the case’s life. Had he already been licensed as an attorney, he would have been able to instruct the advocates who argued the case, but he would not have been permitted to appear in the Supreme Court to argue it himself. And finally, even if these factors had not been present, Gandhi, a Transvaal newcomer, simply may not have considered himself as possessing the surefootedness that these more experienced hands possessed.
The Indian hires did well. The decision they secured, Motan v. Government, decided on May 11, 1904, was not welcome news to the European business community. The Supreme Court of the Transvaal announced that Law 3 did not empower the government to require Indian businesses to operate in locations. The decision stood in high contrast with the 1898 Mohamed decision. In that case, which had tested the right of the government to force Indians businesses into locations under Law 3, Justice Morice had said that “the 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.”46 The Motan court adopted a sta
rkly different starting point, stating that when a statute “imposes disabilities upon one section of the community it should be strictly interpreted, and the benefit of any doubt should be given in favour of those affected by it.” The Court rejected Mohamed and Suleiman, both South African Republic decisions, as not binding and found that the text of Law 3 did not support the government’s position, saying that if the legislature had intended to force Indian businesses into locations, “some definite provision to that effect would surely have been inserted.”47
It was a thorough defeat for the government.
For Gandhi, the result may have both dampened thoughts of civil disobedience and revived his hope, previously dashed by the failure of his attack on the DLA, that the courts, with their sense of British fair play, would come to the rescue of the Indians. In victory, however, Gandhi refused to gloat. Rather, he was realistically restrained, as usual, and counseled Indians in the pages of Indian Opinion to “make only a moderate use of the right of trading.” Fearing a European backlash, Gandhi predicted that if “the people go mad over the victory and begin to apply for licenses to trade here, there and everywhere, a great deal of harm would be done, and [our] detractors would not be slow to use such a state of things as a weapon for dealing further blows.”48 In the weeks afterward, Indians did, in fact, begin to take out licenses in what the Europeans perceived to be large numbers. The European reaction to Motan, whether caused by the decision itself or the enthusiastic reaction to it by Indian businesspeople, was just as Gandhi had predicted. The Rand Daily Mail reported that “the Asiatic peril ha[d] materialised,”49 some European colonists began to call for legislative action to counter the court’s decision, and soon afterward, members of the Transvaal legislature began to press the imperial government for a legislative solution to the matter.
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