M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  His listeners greeted these defiant remarks of Ramsundar, whom they regarded as a martyr, with cheers. As an icon in the fight for Indian rights, Ramsundar Pundit had become by far Gandhi’s most celebrated client.

  Soon after his release the government threatened him with reimprisonment.

  In response, he fled the Transvaal.

  FIFTEEN

  * * *

  Courthouse to Jailhouse

  We have made up our mind to make this a white man’s country, and, however difficult the task before us in this matter, we have put our foot down, and shall keep it there.

  COLONIAL SECRETARY JAN SMUTS

  True victory will be won only when the entire Indian community courageously marches to the gaol—when the time comes—and stays there as if it were a palace.

  GANDHI

  THE RAMSUNDAR CASE, WHICH UNFOLDED in the closing months of 1907, foreshadowed the mass arrests of the leaders of the Indian resistance movement that would occur shortly afterward. After threatening action for months, the government moved decisively at the end of 1907 to enforce the Asiatic Law Amendment Ordinance by prosecuting Gandhi and many of his colleagues for their refusal to comply with the Act’s registration scheme. To understand how his part in this resistance changed Gandhi’s life, some background concerning the Act, and Indian opposition to it, is in order.

  GANDHI FOR THE DEFENSE: PRELUDE

  The timing of the introduction of the Act in the Transvaal legislature could not have been more insulting to the Indian community. When the Zulu Rebellion erupted in Natal in 1906, Gandhi made the same argument for Indian support of the British and the colonists as he had made when he urged Indian support of the British in the South African War in 1898—and with no better result. Gandhi and other Indians gallantly served in an ambulance corps in mid-1906, and, for their trouble, the Transvaal government enacted the Asiatic Law Amendment Ordinance shortly after the fighting concluded and the corps disbanded. The Act, as described in the preceding chapter, would require Indians to carry registration certificates and was widely understood as also requiring Indians to give all ten of their fingerprints.

  After the Act passed, the Indians decided upon a major initiative to block the Act from coming into effect. They committed a large amount of funds to send Gandhi and H. O. Ally to London in an attempt to persuade the British government to disapprove of the colony’s legislation. (Because the Transvaal did not yet have responsible government, London wielded substantial authority to veto legislation of which it disapproved.1) A one-man whirlwind of activity, the indefatigable Gandhi was masterful in his role as leader of the Indian opposition. Displaying the organizing ability that characterizes excellent lawyers, he fashioned a strong coalition of influential Britons to oppose the legislation. And he applied the force of his personality to the moment. The London correspondent for the Rand Daily Mail cabled home: “Mr. Gandhi . . . has, with his intellectual face, his low, intense voice, and his unusual power of concentrating his thought, carried all before him.”2

  And he did meet with great success. The imperial government disallowed the legislation. When the news came, the Indians were overjoyed. In Gandhi’s mind, however, this joy had to have been tempered by a realistic concern that the colonists would have the last word.

  Prior to the Indian delegation’s departure from England, Winston Churchill, then the undersecretary of state for the colonies, predicted to Gandhi that the colonists would simply reenact the legislation when the colony received responsible government status. At that point, Churchill warned Gandhi, there would be little London could do about it.

  Churchill was right. The Transvaal received responsible government status on January 1, 1907, held elections in February (from which Indians and natives were, of course, excluded), and convened its legislature in March. The legislature promptly passed legislation virtually identical to the bill London had earlier disallowed, enacting the Asiatic Law Amendment Ordinance in March 1907 by a unanimous vote.3

  The Transvaal’s whites saw the Act as a necessary response to the mortal threat to white society they believed the Indians posed. As the Act’s author, Lionel Curtis, articulated the issue: “The question which hangs in the balance is whether the white man in South Africa is to maintain his place for himself and his kindred or to yield it to the Asiatics.”4

  It was not a surprise when the Act received royal assent in early June 1907. The registration scheme was set to become effective on July 1, 1907. Despite Churchill’s warning, Gandhi and the Indians were “staggered” by the Act’s passage.5 Gandhi later would write: “I saw nothing in it but hatred. . . . [It meant] the absolute ruin for the Indians. . . . I clearly saw that this was a question of life or death for them. I further saw that even in the case of memorials and representations proving fruitless, the community must not sit with folded hands. Better to die than submit to this law.”6

  Throughout the remainder of 1907, the Indians and the government, in the person of Colonial Secretary Jan Smuts, played a cat-and-mouse game. The Indians would state their refusal to register. The government would extend the registration period. The Indians would again state their refusal to register. The government would again extend the registration period. All the while, Gandhi offered to compromise with the government. On numerous occasions, he suggested that Indians be allowed to register voluntarily, with enforcement of the Act reserved for those who failed to do so. The government unwaveringly rejected Gandhi’s repeated compromise efforts. In the meantime, he busied himself with motivating Indians to resist, a task at which the Johannesburg Star found him proficient: “Mr. M. K. Gandhi, the well-known Indian barrister, is the leader of the passive resistance movement. He has certainly marshalled [sic] his forces well, and the Indians as a rule are prepared to follow him to the extreme.”7

  Ample evidence suggests that, during this period of intense public involvement, Gandhi, a glutton for work,8 did not ignore the needs of his commercial clients, as he continued to regularly represent their private interests in court.9 And as Gandhi’s capacity for work grew, so did his comfort with being a public figure. He appears to have had no difficulty in finding words, whether in speaking before huge audiences—such as the crowd of three thousand who heard him speak on September 11, 1906, or the crowd of two thousand who heard him in Durban in March 1907—or before smaller, more intimate groups such as the fifty or so leaders of the Indian community who heard him speak at a dinner held in his honor (and that of Ally) in January 1907. Of that performance it was written that “Mr. Gandhi, in his calm and expressive tones, held the audience spell-bound whilst he told them of the work they had tried to do in England.”10 Years of public appearances—first in the rough-and-tumble backwaters of Durban’s courtrooms and town council chambers, then in the Transvaal’s somewhat more sophisticated courts, and finally in the salons of London—taught Gandhi to trust in himself. The tongue-tied youngster so lacking in self-confidence that others had to read his speeches for him had vanished. There now appeared a mature man who spoke with the natural assurance that characterizes the advocate who knows from experience who he is and what he wants. This change in Gandhi developed at the same time he was imposing on himself several self-denial disciplines. During 1906, for example, he decided to permanently refrain from sexual relations with his spouse, Kasturba, and to engage in certain dietary restrictions. All these changes were parts of a larger whole.

  By the time of the registration crisis, Gandhi was as comfortable in advocating the Indian position in public as he was in collecting on a promissory note in magistrate court.

  And the change, slow in coming, blossomed in Gandhi not any too soon. Indians throughout the Transvaal turned to the man they called “Barrister Gandhi” for guidance in their struggle with the white colonists. The pressure was on him to deliver a singularly clear message—and that he did. In unequivocal terms, he urged his countrymen to refuse to register under the new act and to instead court imprisonment. Over and over, from late 1906 and t
hroughout all of 1907, this lawyer’s advice to his community was constant—disobey the law.

  What are we to do in this situation? We have only one answer. We have hailed the refusal of assent to the . . . Ordinance as a victory. But true victory will come only when we show our strength. It is certain that the . . . Ordinance will be introduced. When that happens, there should only be one thought in the mind of every Indian: never to accept such a law. And, if it is enforced, he will rather go to gaol than carry a pass like a Kaffir. True victory will be won only when the entire Indian community courageously marches to the gaol—when the time comes—and stays there as if it were a palace.11

  To dispel any doubts about his own intentions, Gandhi promised to break the law himself: “I hereby declare my pledge that, should the new law come into force, I will never take out a permit or register under the law but will go to gaol; and even if I am the only one left who has not taken a permit, my pledge shall stand.”12

  The courage to resist the law came more easily for Gandhi than for ordinary Indians who had no experience of courts and jails. Gandhi sought to reassure them by repeatedly guaranteeing that he would personally represent all who defied the law and would do so for free.13 He publicly made this pledge on several occasions between September 1906 and November 1907.14 At the start, the pledge was unrealistic on at least three levels. There did not appear to be an effective defense to the charges. Furthermore, if resistance was as widespread as Gandhi hoped it would be, and if the government prosecuted resisters in any numbers at all, Gandhi could not possibly appear everywhere throughout the Transvaal to represent them all. Finally, there was the very real possibility that the government would arrest Gandhi early on—a prospect he recognized—such that the lawyer himself would be imprisoned before his clients were summoned to court.

  To make matters worse, the terms of Gandhi’s several pledges of aid were unclear, inconsistent, and ill-founded, leading those contemplating resistance to wonder not only whether there was some hope of acquittal but also whether Gandhi would represent them and under what conditions. Gandhi’s first offer to represent every Indian who refused to register under the new act appeared to be unconditional. The offer engendered hope among would-be resisters that the purpose of Gandhi’s representation would be to effect their discharge. In response, Gandhi attempted to educate his countrymen as to what his approach to their defense would be. It would have two parts. Gandhi would first claim that the resister was only following the advice of his lawyer and the BIA and that therefore the lawyer and BIA leaders, not the resister, should be arrested and convicted. Gandhi’s second line of defense, following the lead of his Natal mentor Frederic Laughton, would be to seize upon irregularities in the proceedings, if any, to justify the resister’s discharge.

  Some of these defenses held no promise. The defense of “on advice of counsel” has never been recognized outside of very limited circumstances. The defense that one acted on the advice of other laypersons (here the BIA) has enjoyed virtually no support in the law. By intending to rely on these defenses, Gandhi exposed his naïveté about the criminal law. Procedural irregularities on the part of the prosecution or court offered somewhat more promise and were, therefore, a more legitimate defense. Although irregularities are always welcomed by defense counsel, they are unpredictable in the frequency of their appearance and, when they do appear, not always strong enough to justify a discharge.

  As the months passed from the time of Gandhi’s initial offer in September 1906, he began to modify the conditions attached to it. In April 1907 Gandhi announced that he would represent only poor Indians free of charge and, to qualify for this offer, they must hold a permit under the previous registration schemes.15 In late May 1907 he repeated the offer, dropping the restriction of poverty on the part of the defendant, but adding several new terms, including his refusal, “with or without fees, [to] defend those who do not desire a gaol sentence.”16

  This last-mentioned proviso must have been a wake-up call for those who harbored hopes of acquittal. Indeed, in commenting on his offer, Gandhi warned resisters that his main aim in representing them was to simply “keep up the courage of the accused” and that, in the circumstances resisters would find themselves in, “neither lawyers nor anyone else can help.”17 Yet anyone who had hopes of acquittal could not be faulted for maintaining those hopes in the face of these comments, for Gandhi himself, after discouraging resisters from thinking about any outcome other than jail, repeated the notion that a meritorious defense was possible. The defense he articulated was a variation of the “advice of counsel” and the “advice of others” defenses. Gandhi explained that he would testify that “the Indian community has been bound, by oath and resolution, not to submit to the new law, that the accused has accepted the said resolution, and that, if for such action a sentence has to be passed, it should first be passed on the office-bearers of the Association.” The resister would then testify that he was bound by the September 11 resolution not to register. As a result of all this, according to Gandhi, “the accused may be let off.”18 This defense, however, was quite unlikely to find support from the bench. It is difficult to think of a lawyer with any experience at all as actually having confidence in it.

  Perhaps Gandhi can be excused for his contradictory statements about the purpose and availability of his services and for not maintaining a firm embrace of his original pledge to represent every nonregistrant. In the months before the government initiated its program of arrests to enforce the Act, he was already engulfed in an increasingly intense blizzard of uncompensated defense work on behalf of Indians resisting the government.19

  GANDHI FOR THE DEFENSE: FROM COURTHOUSE TO JAILHOUSE

  Done with delay, the government, led by colonial secretary and former general Jan Smuts, finally set November 30, 1907, as the last date for registration—and the Indians, led by their lawyer and organizer, Mohandas Gandhi, responded with persistence in their defiance of the law. They would not register. Of the seven to eight thousand Indians in the Transvaal, less than 10 percent—about five hundred—had registered.

  There was little conjecture as to whether the government would act against the Indians. Smuts had taken a particularly harsh position on the question, saying that he would “carry out in full the provisions of the . . . Act, and if the resistance of the Indians residing in the country leads to results which they do not seriously face at present they will have only themselves to blame.” Gandhi replied in kind, stating that he made “no apology for drawing the General’s attention to the solemn declaration of British Indians with reference to the Act.”20

  There was tremendous tension within the Indian community, however, over the question of when and in what manner the government would act. On December 3, 1907, the Transvaal Leader reported: “All yesterday afternoon unregistered Indians were enquiring at Mr. Gandhi’s office, Court Chambers, as to what was going to be done, and disappointment seemed to be expressed because nothing definite had eventuated.”21

  The question of his own arrest surely was on Gandhi’s mind. The enormous demands on his time and talents during December 1907, however, must have provided a measure of distraction from his concerns. The middle two weeks of December are illustrative. He defended some three dozen resisters in Volksrust. He traveled back to Johannesburg, where he defended another resister. He penned letters to the Johannesburg Star and Indian Opinion. He escorted Ramsundar from jail and spoke at his post-release rally. He wrote eight separate pieces for the Indian Opinion of December 14. He wrote two letters to Smuts. Through correspondence with the general manager of the Central South African Railway, he represented the interests of forty workers who had been discharged from their employment for failing to register. He wrote another five articles for the Indian Opinion of December 21. And he did all this while continuing to operate his private law practice.

  The speculation about when the government would act reached a peak at about the time that the Transvaal Government Gazette announced tha
t the king had not disallowed the Immigration Restriction Act (passed earlier in the year by the legislature) and that the act would come into force on the first of the year. Some believed that this act would permit the government to deport those who had not registered.22 The Gazette announcement helped fuel rumors throughout the whole of the Transvaal of impending arrests, causing Gandhi’s law office to be besieged by throngs of worried Indians seeking consolation and advice. Finally, two days after Christmas, H. F. Papenfus, the acting commissioner of police for the Transvaal, telephoned Gandhi. Papenfus wanted to know whether Gandhi would meet with him that day. Gandhi agreed to do so. At their meeting at Marlborough House, Papenfus informed Gandhi his arrest had been ordered. He also disclosed to Gandhi that the arrests of twenty-two other persons had been ordered. Among those to be arrested were Thambi Naidoo, the chief picket in Johannesburg, and M. I. Desai, the chief picket in Pretoria. Three were Chinese allies, including the leader of the Chinese resistance, Leung Quinn. Ramsundar Pundit was to be arrested in Germiston. Gandhi pledged to Papenfus that he and all the other defendants would voluntarily appear in court the next day, December 28.