M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  SACRIFICE

  Gandhi’s approach to his legal practice and his political work, as illustrated here by his urging restraint on his fellow Indians, was influenced not only by his healthy sense of realism but also by his developing spirituality. For Gandhi, politics, spirituality, and the practice of law were becoming indistinguishable parts of a seamless whole. Tying all these together was Gandhi’s evolving understanding of the relationship between sacrifice and suffering, on the one hand, and social change, on the other. The dimensions of this relationship were often explored in the pages of Indian Opinion and probed in Gandhi’s practice.

  In the January 21, 1904, issue of Indian Opinion he writes:

  Sacrifice is the law of life. . . . We can do nothing or get nothing without paying a price for it, as it would be said in commercial parlance or, in other words, without sacrifice. It would secure the salvation of the community to which we belong; we must pay for it, that is sacrifice self. Working for the community, we may keep for ourselves only a proportion of what is secured, and no more. And herein lies the sacrifice. At times we have to pay dearly. . . . Christ died on the Cross of Calvary and left Christianity as a glorious heritage. . . . The Americans bled for their independence.50

  Gandhi then connected this notion to the particular challenge facing the Transvaal Indians. To prevent the colonists from depriving the Indians of their means to a livelihood and from driving them into ghettos, Indians must provide more time, energy, and money to the cause. Moreover, “individual differences must be sunk in the face of common danger. Personal ease and personal gain must be surrendered. To all this must be added patience and self-control.”51

  Left on the dry page, these words are not very instructive. Gandhi, however, brought them to life in the manner in which he reacted to the wealth his practice brought him.

  MONEY

  The longer he practiced in the Transvaal, it seemed, the more money he made. There were multiple signs that financial success came very easily to lawyer Gandhi. In a June 1903 letter to a friend, Gandhi wrote that he had “built up a decent practice,” one successful enough that he could “afford to pick and choose.”52 For any lawyer to make this assessment a mere two and a half months after being admitted to practice in a new jurisdiction is simply stunning. Much of Gandhi’s success was rooted in the voluminous, broad-ranging, and apparently lucrative nature of the office work he performed for his clients during his years practicing in the Transvaal—and to his insatiable appetite for doing it. In just the months between his admission to the bar in mid-April and his June letter, the new attorney found himself assisting his clients with travel permits, handling the payment of promissory notes, rendering advice in the areas of family law and criminal law, and doing a fair amount of work involving the sale and lease of property. Gandhi’s Johannesburg practice was so vibrant that he required the assistance of four Indian law clerks, in addition to an articled clerk and a secretary. An important client during this time was one Budree, an Indian merchant and landowner with whom Gandhi was developing what would be a long and profitable professional relationship. Gandhi recounts in his autobiography that it was Budree’s money, held in trust by Gandhi, that Gandhi lent to an operator of a vegetarian restaurant in Johannesburg whose business was in distress. The operator quickly lost the money—about £1,000—forcing Gandhi to dip into his own funds to repay Budree. Gandhi’s ability to cover the loss is a good indication of the size of his cash flow at this time.53

  While a great deal of his income was derived from his office practice,54 Gandhi made regular appearances in lower-level courts when his clients’ interests required it. He collected money for his clients in numerous claims concerning promissory notes, rent due, goods sold, wages owed, cash lent, and services rendered. He was successful in representing one plaintiff in an action for ejectment and another in a case against a defendant who had issued a bad check. Gandhi made a rare appearance for a defendant, representing a defendant accused of breaching a contract; Gandhi lost, but got the damages reduced. And he lost two cases for plaintiffs that dealt with wages owed. His overall success rate was quite high, but that was to be expected. Many of these cases involved modest sums and defendants who either represented themselves or simply failed to appear and contest the claims against them.

  He valued the role of money, saying: “In the modern world, money is needed at every step; and if it runs short, one has to face disappointment in the end, however great and noble one’s hopes and aspirations might be.”55 It should not be a surprise that a man with this mindset accumulated wealth by not being shy about money. He did work very long hours,56 but at the same time he squeezed the maximum amount of money out of every transaction and relationship. He was never above hounding his clients for his fees, defending his bills, questioning others’ bills, beseeching his landlord to lower his rent, arguing that others were cheating him, and pleading poverty to his friends and acquaintances.

  At the same time, Gandhi did not forget his reaction to the prosperity he came to know in Durban; he was very sensitive to what riches could do to him. In writing about a fellow Indian who had become a barrister, Gandhi revealed the standard he applied to himself: “He has adopted an honourable profession, but if it is used as a means of amassing wealth, there may be failure staring him in the face. If his attainments are placed at the service of the community, they will grow more and more.”57

  SELF-SUFFERING

  Gandhi followed his own advice. While he could have used his income solely to benefit himself, he instead sacrificed a generous measure of his own interests for those of the Indian community. He quietly donated thousands of pounds from his income to help finance Indian Opinion, the newspaper he helped establish to be the voice of the Indian cause.58 Indeed, he would later claim that he invested “the whole of his savings” in the paper.59 Yet other large portions of his income went into the operation of Phoenix, the communal farm he established in late 1904 and the place to which Indian Opinion’s operations were eventually moved. The income from his practice also permitted him to employ his legal skills on behalf of the Indian cause without concern for remuneration. Gandhi’s campaign against the corruption of the Asiatic Permit Office is an early example of this. What this example lacks, however, is an emphasis on self-suffering that would soon come to be a distinctive mark of Gandhi’s philosophy and strategy of nonviolence, his political work, and his law practice.

  The seeds of Gandhi’s understanding of the role of self-suffering in politics, law, and social change were planted in another incident that occurred during this time. In early 1903 the police in Heidelberg, just southeast of Johannesburg, conducted an early-morning raid on the municipality’s Indian stores, arresting all the employees there preparing for the day’s business. They were marched through the streets to the police station, with some being held there without food or drink while the police questioned them one by one as to whether they held the proper permits. Although Gandhi did seek to have an investigation conducted into the behavior of the police, he declined to counsel the Indians to seek either civil damages or criminal penalties. He took this position for a very specific reason. He believed that the patient suffering of the Indians, undergone without thought of retribution, “would create a favourable impression on the minds of the officers immediately concerned.”60 He told his Indian Opinion readers in 1903 that “above all else, what is needed in a community which considers itself to be ill-treated at the hands of others is the virtue of love and charity.”61 Gandhi abstained from using the law as a remedy for injustice in this instance, thinking instead that unmerited, willingly accepted suffering would lead to conversion on the part of the oppressor. This is an early expression of a key component of his philosophy of nonviolent civil disobedience. In this instance, Gandhi’s approach failed, but the groundwork was being laid for what would develop into a more robust and more effective theory and practice of self-suffering in the years immediately ahead.

  Integrally related to this notio
n of self-suffering is Gandhi’s idea of unqualified love for all persons, including—especially including—one’s enemies. It is this love that provides, in great part, the foundation for one’s ability to take suffering on oneself rather than to project it outward on others. Gandhi understood, too, that self-suffering founded on unqualified love was a superb tactical weapon, causing both the opponent and the public to pause and consider the merits of the sufferer’s arguments. This notion began to grow in Gandhi’s mind during an incident that was ancillary to the prosecution of Jackson and Walton, the corrupt permit officers. After they had been let go by the Asiatic Permit Office, the municipality of Johannesburg considered them for employment. The word went out, however, that if Mr. Gandhi objected, the municipality would not hire them. Gandhi let it be known that he would not oppose their hiring. He would afterward reflect on this decision, saying that he understood later that his choice not to harm these individuals who had harmed Indians was an essential element of nonviolence. From this incident Gandhi learned that we are all “children of one and the same Creator, and as such the divine powers within us are infinite. To slight a single human being is to slight those divine powers, and thus to harm not only that being but with him the entire world.”62

  GANDHI’S SPIRITUALITY MEETS HIS PRACTICE

  In the early years of his Johannesburg practice Gandhi had no fully formed philosophy that tied his politics, his spirituality, and his practice of law together. Ideas were swirling around in unorganized fashion in his head. He clearly sensed the connections among the various aspects of his life, but was not yet in a position to fully understand how they related to one another. It was a particular challenge for Gandhi to relate the practice of law, with its immense complexities, to his spirituality and his politics.

  Gandhi wrote about one such complexity in Indian Opinion. There is no more difficult spiritual issue in the law than that created when the representation of a client conflicts with one’s own moral beliefs. Gandhi’s former Durban colleague R. K. Khan had come under attack when he defended a patently guilty client in a criminal case. Gandhi used the columns of his newspaper to defend Khan’s conduct:

  So great an authority as Lord Brougham63 used to say that an advocate who, although he knew the guilt of his client, declined to take up his case, was unworthy of his profession; and on the principle that every man in the eye of the law is innocent until he is found guilty by a duly constituted court, the doctrine is sound enough. . . . What . . . is the duty of an advocate who finds out in the middle of a case that his client is really guilty? Is he to throw up the brief? If he dare do anything of the kind, we fancy that his conduct would be regarded as highly unprofessional. The matter bristles with difficulty. And we think that it is one for every advocate to determine for himself.64

  When in the 1920s Gandhi wrote his memoirs covering the first five decades of his life, he focused some of his attention on his practice of law. To illustrate that truth should be the foremost consideration of every lawyer, he recounted his own experience in dealing with an issue similar to that dealt with by Khan:

  On one occasion, whilst I was conducting a case . . . , I discovered that my client had deceived me. I saw him completely break down in the witness box. . . . I asked the magistrate to dismiss the case. The opposing counsel was astonished, and the magistrate was pleased. I rebuked my client for bringing a false case to me. He knew that I never accepted false cases, and when I brought the thing home to him, he admitted his mistake. . . . At any rate my conduct in the case did not affect my practice for the worse, indeed it made my work easier. I also saw that my devotion to the truth enhanced my reputation amongst the members of the profession.65

  While there are critical considerations in criminal cases like Khan’s that are absent in civil cases like Gandhi’s,66 one cannot help but be overwhelmed with the difference in tone between these two passages that deal with the same broad problem. The first passage is written by a man who is on a journey, the second by one who has arrived. There is no moral absolutism, no moral certainty, in the first passage as there is in the second, later passage.

  If there was no certainty in this realm in his early Johannesburg days, could there have been any certainty in Gandhi’s mind about the efficacy of the law for creating social change? There could have been nothing but confusion for him here. He had experienced the painful limits of the law as a tool for social change in Natal when his legal attack on the DLA fell short. He was then to experience the potential of the law for transformation when, in the Motan case, the Supreme Court of the Transvaal gave an uplifting and unbiased interpretation of Law 3, one that freed Indians, at least temporarily, from some measure of discrimination. In September 1905 the pendulum swung again when Gandhi learned that the Natal Supreme Court had ruled that it was not illegal to deny an Indian a DLA license just because he was Indian—the very question that he and Laughton had declined to take up on appeal in the previous decade.67 After all this, was the law an ally or just an enemy disguised as a friend?

  Gandhi’s feelings about the practice of law were equally jumbled. When he founded his Phoenix settlement, he considered, but then rejected, the notion of abandoning his practice altogether in favor of manual labor. When Jackson and Walton, the corrupt permit officials, were acquitted of the bribery of which they were so clearly guilty, Gandhi pronounced himself “disgusted with the legal profession.”68 Yet, at about this very same time, he was reveling in the light that his training in the law cast on his religious thought. In explaining how he came to understand the spiritual notion of detachment from worldly possessions, he wrote:

  Was I to give up all I had to follow Him? Straight came the answer: I could not follow Him unless I gave up all I had. My study of . . . law came to my help. Snell’s discussion of the maxims of Equity came to my memory. I understood more clearly in the light of the Gita teaching the implication of the word “trustee.” My regard for jurisprudence increased, I discovered in it religion. I understood the Gita teaching of non-possession to mean that those who desired salvation should act like the trustee who, though having control over great possessions, regards not an iota of them as his own.69

  In December of 1905, Gandhi looked back on the year and wrote: “It is not possible to recall anything that may be considered in the light of an achievement. . . . In the Transvaal . . . the position is as indecisive as it was last year.”70

  Here, at the end of 1905, was a man who worked hard and earned great wealth, but consistently emptied himself by giving vast amounts of his money away. Here was a man who believed that a lawyer should take personal responsibility for the causes he represents, but defended a friend who did not take responsibility and a system that encouraged the deflection of responsibility. Here was a man who failed in his use of the courts as an engine of social change in Natal, but experienced their power for good in the Transvaal. Here was a man who practiced law for a living, but was reluctant to take the government to court. Here was a man who urged his fellow Indians to be patient and calm, but also to consider civil disobedience. Here was a man who loved what the law taught him about spirituality, but was beginning to hate the very profession of which he was a part.

  Here was a man who confronted a world of profound complexity, but desired no more, and no less, than a life of simple clarity.

  FOURTEEN

  * * *

  Disobedience

  The law is the will of the people and it is the will of the people that coloured persons shall not ride with whites in this country.

  Transvaal Leader

  1906 WOULD BE A YEAR of turning points.

  Casting aside his past indecision and finding new resolve, Gandhi would volunteer to aid the British in the Zulu Rebellion, embrace a life of celibacy, and undertake a difficult political mission to London. Meanwhile, in a dramatic and historic development, Gandhi and the Transvaal Indian community would openly and solemnly pledge themselves to resist governmental oppression, by civil disobedience if all else fail
ed.

  Amidst all this change—indeed as part of it—Gandhi transformed the shape and nature of his life as a lawyer. When he had first agreed to stay in South Africa in 1894, he had done so on the condition that there be a clear separation between his private legal practice and his public work. That distinction began to break down in Natal in the late 1890s as he and his colleague at the bar Frederic Laughton challenged Natal’s Dealers’ Licenses Act in the courts.

  In the Transvaal, beginning in 1906, the distinction would collapse altogether.

  TRAMCARS, TEST CASES, AND CIVIL DISOBEDIENCE

  A strong sign of a growing unity between Gandhi’s two halves—his public life as a political organizer and his private life as a lawyer—appeared in the campaign against Johannesburg’s restrictions against the use of the city’s tramcars by the Indian population.1

  After Johannesburg was taken over by the British in the Boer War, the occupiers dismantled the then-existing horse tram system and commandeered the animals for military purposes. The horse-dependent system that was put back into operation in August 1902 was widely recognized as inadequate for the times. With the city’s population on the rise, there was a pressing need for efficient, large-scale, and modern transportation technology. Johannesburg, like cities in North America and Europe, decided to take advantage of the development of electricity to install a system of electrical tramcars. The horse-drawn trams that the colonists had long relied upon would rapidly begin to disappear.