M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  But discrimination would not.

  With great fanfare, the new electrical tram system began operations on February 14, 1906. Its importance to Johannesburg cannot be exaggerated, but, surprisingly, at the start of operations the city had not come to any conclusions about how it would implement its color prejudices with respect to the system’s operations.2 In mid-February the city’s Tramway and Lighting Committee reported its recommendations to the town council. The committee proposal barred all Indians from regular tramcars, except for servants accompanying their masters or mistresses. And even they would have to sit apart from other passengers—in back seats on the top of the car. The committee suggested that the city experiment with colored-only cars for Indians and natives or, should traffic not be sufficient to run them profitably, that further experiments be undertaken to allow Indians to ride either on cars used for hauling parcels or on smaller trailers attached to European cars.3

  Gandhi and the Indians complained that the proposal was both inadequate and insulting. While they claimed that they were entitled to “the same facilities as any other community”—a claim the Transvaal Leader characterized as “absurd”4—they also said they were willing to accept segregated cars in which Europeans would be given the main, inner portions and Indians and other non-Europeans would be given the roofs.5

  After cursorily taking note of the Indians’ objections and their alternative proposal, the town council moved straight to a consideration of the committee’s recommendation. Two very different camps of councillors opposed the committee’s scheme. One camp thought it went too far in disfavoring the Indians, while the other camp thought it did not go far enough. On successive votes, neither was powerful enough to carry the day. The council then adopted the committee’s recommendation unchanged, which had the practical effect, as Gandhi then noted, of prohibiting Indians from using the trams.

  Gandhi quickly reacted on two fronts. On the public relations front, he moderated the Indian position, arguing only for the right of “well and cleanly dressed” Indians to ride on European cars. He also began to formulate and employ a litigation strategy. He planned to challenge the city by setting up a test case. While Gandhi was plotting this course, the city temporarily suspended its newly adopted restrictions on the Indian use of cars until the system was more fully operational; in the meantime, it would continue to run separate cars for Europeans and “coloureds.”6 It appears that Gandhi wanted an immediate confrontation on the discrimination question, however, because he pushed his test case forward despite the withdrawal of the new restrictions. He arranged for a wealthy Indian merchant, Ebrahim Saleji Coovadia, to board a European tramcar in the company of one of his articled law clerks, William J. MacIntyre.7

  Thus would begin Gandhi’s first foray into civil disobedience. He had written about civil disobedience two years earlier in Indian Opinion. Now he meant to try it out. He would send Coovadia out to deliberately breach the color line, hoping that such defiance would land the matter in court. Gandhi envisioned a criminal prosecution, but with a twist. It would not be the activist Coovadia who would be tried, but rather the conductor for refusing to allow Coovadia to board. The city’s old traffic bylaws, apparently written without the prospect of segregation in mind, required conductors to take all comers on board.

  In their first attempt to ride a European car, Coovadia and MacIntyre received no opposition. Still looking to set up the facts necessary to challenge the segregated system, they boarded a second European car. There they got the opposition they sought. The car’s conductor stated that he would allow Coovadia entry only if he was the servant of the white European accompanying him. This was not the case, of course, and consequently, the conductor barred Coovadia from riding. Gandhi had his facts.

  Now he needed to engage the legal process. In early March, Gandhi succeeded in forcing the Crown prosecutor to act on a criminal complaint filed by Coovadia. The exact charge leveled by the prosecutor against the conductor is lost to history, but it likely was “contravening the traffic bye-laws.”8 The conductor was summoned to defend his actions. Trial began on March 7, before Assistant Resident Magistrate J. G. Kerr. The prosecution was undertaken by the attorney for the Crown, a Mr. Blaine, while Gandhi was present to brief the prosecutor on behalf of Coovadia. The town council sent an advocate, a Mr. Hile, to defend the conductor. Blaine surprised Gandhi by conducting “the case well without discriminating between the white and the Coloured.”9

  Coovadia’s testimony that he was forbidden by the conductor from riding and advised by him to use the trams labeled for “coloureds” went unchallenged. The conductor’s defense was that he was simply acting on orders from the city not to allow Indians on European cars unless they were accompanied by their masters or mistresses.

  Blaine, the prosecutor, argued for the conductor’s guilt by pointing out that the traffic bylaws allowed Indians to ride without restrictions. Hile, for the conductor, conceded this point, but claimed that an old Boer regulation prohibited Indians from riding on European cars. The magistrate agreed with Blaine’s response that the Boer provision was no longer in effect and found the conductor guilty. The city immediately announced its intention to appeal to the Supreme Court, but shortly afterward reversed that decision. This left Gandhi and the Indians frustrated. They could not now obtain an authoritative Supreme Court decision upholding the rights they asserted. So Gandhi started over again, sending Coovadia out to board another European car on April 7. He was once again refused permission to board. Another complaint was filed with the Crown prosecutor and trial was set for May 18.

  Blaine, the public prosecutor, was once again briefed by Gandhi. To defend John Welch, the conductor, the city brought in Richard Feetham, a Transvaal barrister who earlier had been a powerful local official and who later would sit on several appellate courts in South Africa.10 The courtroom was crowded with Indians and members of the press. Coovadia recited the by now familiar facts. Welch reprised the conductor’s role. He confirmed Coovadia’s testimony and stated that he was simply following his instructions not to let “coloureds” on the cars unless they were accompanying their masters or mistresses.

  Then Feetham played what he thought was his trump card. He called the city inspector of vehicles to the stand. T. H. R. Jefferson testified that the responsibility for issuing licenses to tramcars resided in his office and that he had, in fact, issued a license for the tramcar in question. Was it an unrestricted license? No. Was it restricted? Indeed, it was. The car was licensed for use by Europeans only. Feetham thought this restriction would fully justify Welch’s actions.

  Almost before Feetham could sit down, Blaine, with Gandhi at his side, destroyed this defense. The license, they demonstrated, had been issued on April 11, four days after the incident in question. The restrictions imposed by the license were of no effect on the date of the incident, the 7th. These facts constituted a fatal blow to Welch’s defense. Feetham was reduced to arguing that without a license the tramcar was not a public vehicle and the conductor could do whatever he wanted. The magistrate, unconvinced by this feeble argument, as well as Feetham’s other arguments, found Welch guilty. Feetham’s client paid a small fine and went home. Feetham had to read in the next day’s papers how Blaine and Gandhi had upstaged and embarrassed the highly regarded barrister.

  But the city, with local opinion-makers predicting disaster if the tram system were to be integrated,11 was not about to be outfoxed.

  The prosecutor’s charge against Welch was that he had violated the traffic bylaws by refusing Coovadia entry to the tramcar.12 Because the bylaws required conductors to carry passengers without exception, the conductor’s conduct was culpable. The defense had argued that a city regulation, enacted during a time of concern over the spread of smallpox, authorized the city to bar “coloureds” from cars reserved for Europeans.13 This defense was rejected. The magistrates in the two cases had found the regulation to be ineffective because it had been overridden by the city’s more recent by
laws.14

  So the city took the obvious step—it repealed the bylaws. With nothing to block it, the Boer regulation sprang back into effect, and Indians were once again banned from the cars by force of law. Gandhi was angered but resolute: “This is a clear case of betrayal. This means that we will have to put up a fresh struggle beginning all over again—which will be both very troublesome and costly. But it has to be undertaken if the Indian community does not want to submit to this defeat.”15

  Gandhi recruited another prominent Indian, Abdul Gani, to confront the council. Gani, as chairman of the British Indian Association (BIA), was a natural choice because he had been outspoken about the legal right of all coloured people to ride the trams without restriction. To this assertion the Transvaal Leader had replied: “Mr. Gani may talk about law, but 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.”16

  To see what the law was, Gani, in the company of the newest associate in Gandhi’s office, H. S. L. Polak,17 boarded a tramcar in May 1906. Gani was promptly informed by its conductor that he could not take a seat. He refused to get off the car. Both the police and a tram inspector were called. All the parties had a polite conversation, the result of which was an agreement that Gani would get off, but be arrested for interfering with the operation of the tramcar. Everything seemed to be in place for another court challenge to the segregation of the cars.

  But this challenge was different from that mounted in the Coovadia case. In that instance, Coovadia was the victim of the conductor’s violation of the traffic bylaws, thus permitting Gandhi to insist on a prosecution on Coovadia’s behalf. In Gani’s case, the Indian activist was the one accused of committing an infraction. Gandhi could hardly insist on a prosecution of Gani. The city authorities understood this difference. The town clerk called in Gani and Polak and told them that “the Indians had done enough, and that they should not further harass the Council.” The clerk also informed them that the town council was formulating new regulations to govern the trams and that, once they were published, the Indians could challenge them, if they wished.

  In short, the city authorities refused to prosecute Gani and give Gandhi the forum he wanted. Had he more experience with civil disobedience, Gandhi might have responded to the city’s stratagem with one of his own. He might have sent waves of Indians onto the trams and packed the jails to overflowing. This approach, which would have forced the city’s hand and which would later be used by both Gandhi and his spiritual heir Martin Luther King, Jr., simply did not occur to Gandhi in the first half of 1906.18 His understanding of the power of civil disobedience to change the law was still in its infancy. At this early stage, Gandhi looked at disobedience in a limited way—as a mechanism to get test cases before courts. While he did have a rapidly growing appreciation of the relationship between and among self-suffering, public sympathy, and curative institutional reaction, he did not yet fully understand how to use mass disobedience as a point of leverage for engaging larger social, political, and legal forces. He would learn this soon enough. In the meantime, Gandhi’s attack on tramcar segregation, using test-case litigation as his weapon, ended in complete failure.19 Indians would not be permitted on regular tramcars.

  The dogs of European masters, however, would be welcome.

  THE ASIATIC LAW AMENDMENT ORDINANCE: REGISTRATION AND RESISTANCE

  The fight against tram segregation was but one part of a larger movement of resistance to the Transvaal government.

  European retail businesses faced stiff competition from Indian retailers. Just as had been the case in Natal, Indian businesses in the Transvaal were quite good at controlling costs and thus regularly undersold Europeans. As a result, the loyalty of both European and Indian patrons steadily moved from European to Indian establishments. The Rand Daily Mail reflected white sentiment when it editorialized that the Indians “seriously limited the market for white enterprise.”20 The European business community reacted by applying enormous pressure on the government to act on its behalf. In response to this and other pressures, the government proposed a number of measures, of which the Asiatic Law Amendment Ordinance provoked the most strident Indian opposition.

  Supporters of this new legislation (simply referred to as “the Act” during this time) claimed that a tidal wave of illegal Indian immigration was sweeping over the colony and that, to help control it, it would be necessary to first identify those Indians currently in the country lawfully. To do this, the government proposed an amendment to Law 3 that would require all Indians to register with the government. Indians would be required to carry certificates showing that they had done so. Indians who had not registered would be denied business licenses and ordered out of the colony. While the legislation itself did not explicitly call for fingerprinting, it was broadly understood that, as part of the registration process, Indians would be forced to provide impressions of all ten digits.21

  The Indians reacted to this proposal with tremendous indignation. They had already been subjected to registration regimes under Law 3 and the Peace Preservation Ordinance of 1903.22 They saw no need for yet another. They believed, moreover, that the proposed act treated them not with the respect to which British subjects were entitled, but as a class of common criminals. While investigating the proposed act, Gandhi read Edward Henry’s book Classification and Uses of Finger Prints (1900), from which he concluded that “finger prints are required by law only from criminals.”23

  The day after the text of the Act was published in the August 22, 1906, issue of the Government Gazette, Gandhi and other leading Johannesburg Indians laid out their plans for a large protest meeting.24 Shortly afterward Gandhi prepared the ground for this meeting by proclaiming in the pages of Indian Opinion that Indians would choose jail over compliance with the Act::

  If, disregarding our attempts at gentle persuasion, the Government enforces the Ordinance, Indians will not abide by it; they will not register themselves, nor will they pay fines; they will rather go to gaol. We believe that, if . . . Indians . . . firmly stick to this resolution, they will at once be free of their shackles. The gaol will then be a palace to them. . . . And the Government, for its part, will realize that it cannot with impunity go on humiliating Indians. . . . It is our duty to make some sacrifice for the sake of others. We do not realize there is real beauty in this: that it is thus that we please God and do our true duty.25

  Indians of all social and economic classes had great respect for their countryman who had achieved the lofty status of lawyer. This lawyer was now publicly and unreservedly advising them to break the law. This was not the polite violation of the law in which the lone Coovadia had engaged to help Gandhi set up his court challenge to the segregation of the trams. Rather, this was mass lawbreaking intended to alter the balance of political power between the Indian community and the European colonists. The adoption of such tactics would put the Indians in uncharted territory.

  This change in how the Indian community positioned itself was paralleled by a change internal to Gandhi. The day after the early September issue of Indian Opinion landed on its readers’ doorsteps, Gandhi made a dramatic offer in a speech to the Hamidia Islamic Society:

  Let the accusation of breaking the law fall on us. Let us cheerfully suffer imprisonment. There is nothing wrong in that. The distinctive virtue of the British is bravery. If therefore we also unite and offer resistance with courage and firmness, I am sure there is nothing that the Government can do. . . .

  I do not want to say more. I would only advise you not to register yourselves again. If the Government sends us to gaol, I shall be the first to court imprisonment. And if any Indian is put to trouble because of his refusal to register afresh in accordance with the Draft Ordinance, I will appear in his case free of charge.26

  For years Gandhi had used his law license almost exclusively to serve the commercial interests of his clients. With the tram test cases and the DLA cases before those, he gra
dually transformed himself into a part-time civil rights lawyer. Now he was entering upon a new stage in his understanding of the relationship between his practice of law and his politics.

  THE EMPIRE THEATRE MEETING

  At the end of his Hamidia Islamic Society speech, Gandhi asked his fellow Indians to attend a protest meeting: “On Tuesday next, we are holding a mass meeting, and I expect you all to close your business on that day and attend it.”27

  And attend they did. On Tuesday, the 11th of September 1906, Indian opposition to the proposed Act reached the boiling point when a huge crowd of Indians pressed into Johannesburg’s Empire Theatre, specially rented for the occasion of this protest. The meeting was set for 3 P.M., but Indians from all parts of the Transvaal began arriving at 11 A.M. The doors, not set to open until 2 P.M., had to be flung open at noon. By 1:30 there was not a seat left in the house. Every bit of standing space was taken. Hundreds were turned away. The stage alone was packed with some two hundred Indian leaders. By the time Abdul Gani, as chair, stood up to convene the proceedings, some three thousand people had crammed themselves into the Empire’s every nook and cranny.

  The theater was cast in semidarkness. There was no artificial illumination, for there would be no electricity available until later in the day. A bright stream of sunlight, however, coursed through one of the theater’s windows and fell, auspiciously, upon the chairman’s seat and the yellow silk covering that decorated it.