That night, however, there was a speech to be made at the Hamidia Islamic Society hall, packed to overflowing with a large crowd of six hundred or more anxious Indians.23 Gandhi minced no words, saying that if “Jesus Christ came to Johannesburg and Pretoria and examined the hearts of . . . General Smuts and the others, [Gandhi] thought he would notice something strange, something quite strange to the Christian spirit. . . . [S]ome sections of the Act [were] savage, and he said they were only worthy of an uncivilized Government. . . . He would never be sorry for the advice he had given them. . . . [H]e would give the same advice that he had ventured to give them for the last 15 months.”24
The next morning, with their spirits fortified by Gandhi’s defiant words, the Johannesburg defendants gathered at Gandhi’s office. There their spirits were buoyed even further by the presence of a huge crowd of Indians. Shortly before the appointed time of 10 A.M., the ten defendants, accompanied by their supporters, marched off to court to face their accusers. Upon their arrival at the courthouse, Gandhi and the others were asked by Superintendent George Vernon of the Transvaal Town Police, Division B, to display the registration certificates required by the Act. When the defendants did not, they were immediately arrested and put on trial before Magistrate Harry H. Jordan.
The courtroom was filled to overflowing. A large crowd of hundreds of Indians and Europeans who could not squeeze their way into the courtroom milled about on the courthouse grounds. The appearance in court of the well-known English-trained barrister in his role as a defendant rather than as a lawyer was quite the draw.
The case of Rex v. Mohandas K. Gandhi was the first to be called. Prosecutor P. J. Schuurman called Superintendent Vernon to testify that Gandhi, an Asiatic over sixteen years of age, had failed to produce his registration when asked to do so that morning. Gandhi, representing all the defendants, including himself, asked no questions. Rather, he pled guilty and stepped into the witness box: “I hope you will allow me to make an explanation. I do not want to make a long explanation, but I think it is necessary, seeing that I am an official of the Court, that I should render an explanation as to why I have not submitted to this Act.”
Magistrate Jordan’s reaction must have immediately communicated to Gandhi that he had made an unfortunate tactical mistake: “I don’t think that has anything to do with the case. The law is the thing, and you have disobeyed it. I don’t want any political speeches here, and I won’t allow them.”
Gandhi agreed: “I don’t want to make any political speeches.”
Jordan then erected the narrow analytic framework familiar to civil disobedients over the centuries:
The question is, have you registered or not? If you have not registered there is an end of the case. If you have an explanation to offer ad misericordiam [in mitigation] as regards the order I am about to make, that is another story. There is the law, which has been passed by the Transvaal Legislature and sanctioned by the Imperial Government. All I have to do and all I can do is to administer the law as it stands.
Gandhi said that he would decline to give evidence in extenuation. Jordan responded: “All I have to deal with is legal evidence. What you want to say, I suppose, is that you do not approve of the law and you conscientiously resist it.”
“That is perfectly true,” Gandhi replied. Jordan then gave Gandhi a renewed opening by saying, “I will take the evidence if you say you conscientiously object.” When Gandhi resumed his testimony by recounting his arrival in the Transvaal and describing his service as secretary to the BIA, Jordan cut him off: “That does not affect the case.” Gandhi acknowledged as much and “asked the indulgence of the court for five minutes.”
Jordan turned him down: “I don’t think this is a case in which the Court should grant any indulgence. You have defied the law.”
Gandhi capitulated: “Very well, sir, then I have nothing more to say.”
Numerous observers from the press were present at the trial, ready to provide their papers the copy from which bold headlines are made.25 By failing to clearly think through his strategy, Gandhi, by far the Indians’ preeminent spokesman for passive resistance, had needlessly forfeited his best opportunity to appeal directly to the European public for its understanding and sympathy.
By the time the court turned its attention to the remaining defendants, they found themselves represented by a wiser lawyer than the one who represented Gandhi. “Not guilty!” each of them pled. Unfortunately none of them had Gandhi’s capacity for eloquence, as would become evident when Gandhi questioned each defendant as to why he had defied the law. P. K. Naidoo was first. After Superintendent Vernon provided the same testimony against him that he had given earlier, Gandhi examined his co-defendant:
Are you a British subject?
—I am.
Were you in the Transvaal before the war?
—Yes; since 1888.
Did you pay the Dutch government £3?
—I paid nothing.
You have not taken out a registration certificate under this law?
—No, not under any law.
Why not?
—I thought it was not fit for me to do so; it was degrading.
C. M. Pillay testified in a fashion similar to P. K. Naidoo, stating that he did not believe that any self-respecting person should comply with the law. Seeing no irony in his answer, Thambi Naidoo said that to register would have “placed him a grade lower than a Kaffir.” Karwa claimed registration was against his religion.26
In what amounted to his closing argument, Gandhi directed the court’s attention to the fact that all of the defendants had
said something more or less with reference to the finger-print system. He [Gandhi] asked the Court to dismiss from its mind the idea that these men did not know what they were doing. He knew that what he was about to say could not affect the decision of the Court, but he thought it was his duty to himself and his clients to make this explanation. There were certain things in this world which one could not explain, and there were certain things in this world which men felt but could not express, and he left it to the Court to interpret the feelings of the accused with regard to the finger-print system.27
Gandhi was correct that this vague defense would have no effect on the decision of the court. After Jordan pronounced himself puzzled by the argument that fingerprinting was against the Indians’ religion, he found all the defendants guilty.
The Asiatic Law Amendment Ordinance, along with the Peace Preservation Ordinance and the IRA, equipped the court with the power to order violators out of the country. Schuurman, the prosecutor, took a hard-nosed tack. He pointed out to the court that the defendants had enjoyed a long period of time within which they might have registered and that it was quite plain that they had no intention of registering now. The court should not now give them a long period of time within which to depart the colony. Speaking to Gandhi’s case, he urged the court to order him out within forty-eight hours.
Before Gandhi could respond to the prosecutor’s position, Jordan openly shared his thoughts, revealing a magistrate who was caught between understanding and intolerance:
The Government had been extremely lenient . . . yet it appeared that none of these people had registered. . . . He [Jordan] had no wish to be harsh, in the matter; and he did not intend to adopt the suggestion of Mr. Schuurman in regard to 48 hours. He should make reasonable orders. He must give Mr. Gandhi and the others time to collect their goods. . . . He did hope that a little common sense would be shown . . . and that the Asiatic population . . . would realise that they could not trifle and play with the Government. If they did that they would find that when an individual set[s] himself up against the will of the State the State was stronger than the individual, and the individual suffered and not the State.
Gandhi interrupted Jordan. “Make the order for 48 hours,” he asked. And if the court could make it for a shorter time, Gandhi continued, he would be even more satisfied. Jordan sarcastically replied: “If that is the case I
should be the last person in the world to disappoint you. Leave the Colony within 48 hours is my order.”
Jordan gave the remaining defendants forty-eight hours to two weeks to depart the Transvaal. The proceedings closed with Gandhi in command of the courtroom. He stood and thanked “the Court, the Public Prosecutor and the Police for the courtesy which had been shown throughout the trials.”28
The court’s order to quit the Transvaal created even more intense press interest in the “Asiatic question” than had previously existed. Would Gandhi and the others leave? If not, when would the government apprehend them? And, once the nonregistrants were apprehended, would the government attempt to exercise its right to deport them, a right disputed by some? Gandhi would be a free man for at least another forty-eight hours. Making up for the opportunity he had lost in the courtroom, he would use the time to bring home his message to both his supporters and the European colonists. He started quickly; he announced at a rally held immediately after the trial that neither he nor his co-defendants had any intention of leaving the Transvaal and that they were “perfectly resigned to being rearrested.”29 He urged his large audience on Government Square to retain their resolve to go on
with the struggle, no matter what happened to him or anyone else. He [Gandhi] would certainly not change his views, and he urged the Asiatic communities to strive against the . . . Act even if it meant deportation. . . . He held that it was better to leave the Colony than to lose their self-respect and honour by remaining as slaves. This was a religious struggle, and he gave them the advice he had always given them—to fight to the bitter end.30
The next afternoon Gandhi was in Pretoria to address a large Indian crowd that greeted his presence with enthusiastic applause. He took the occasion to announce that Ramsundar had fled rather than face the possibility of a second, and harsher, prison term. “So far as the Indian community was concerned, Pandit was civilly dead.” Encouraging his audience to persevere, he stated that if Indians “did their duty it did not matter that the Government of the Transvaal or the might of the whole Empire was against them, he was still certain of victory.” Cognizant that his remarks would be read by European readers the next day, he pointedly argued that the Indian struggle was not “against the Europeans as such, but a struggle for self-respect.” He concluded by expressing his confidence in the notion that God was on the Indians’ side.
On Monday, December 30, Gandhi took full advantage of what was scheduled to be his last day of freedom to write and speak. On that day he composed a striking letter to the Johannesburg Star. It contains both Gandhi’s harshest and most poetic language to date. Writing about the prospect that deportation would leave the defendants’ families “to die of starvation,” Gandhi condemned deportation as a disproportionate punishment that strongly savored of barbarism. Speaking with the voice of the lawyer who had counseled his Indian constituency to engage in civil disobedience, he defended both the basis and method of the Indians’ resistance to the law: “I claim it to be perfectly honorable . . . to advise my countrymen not to submit to the . . . Act as being derogatory to their manhood and offensive to their religion. And I claim, too, that the method of passive resistance adopted to combat the mischief is the cleanest and the safest, because, if the cause is not true, it is the resisters, and they alone, who suffer.” In language worthy of Thoreau, whom Gandhi would later read, he continued: “I refuse to believe in the infallibility of legislatures. . . . It is no part of a citizen’s duty to pay blind obedience to the laws imposed on him.”
Gandhi saved his most elegant language for the letter’s concluding paragraph: “And if my countrymen believe in God and the existence of the soul, then, while they may admit that their bodies belong to the State to be imprisoned and deported, their minds, their wills, and their souls must ever remain free like the birds of the air, and are beyond the reach of the swiftest arrow.”31
Gandhi also used the day of the 30th to speak before four hundred members of the Chinese Association, to give an interview to Reuters, and to deliver a speech at the Fordsburg mosque. In his speech to the Chinese Association, he made another attempt to explain the religious basis of the resistance and to remind his Chinese allies that if they believed in the rightness of their cause, nothing could stop them.32 He also referred to the opinion the Indians had secured from Leonard that the government lacked deportation powers. In his Reuters interview, he floated the idea of sending the dispute to the Imperial Conference for resolution. In his Fordsburg speech, he articulated his hope that “after sixteen months’ resistance no Indian would now flinch.”33
The press, the public, and the defendants themselves fully expected the resisters who had been given forty-eight-hour deadlines (Gandhi, P. K. Naidoo, Karwa, Pillay, and Easton, the last a Chinese defendant), having not been arrested on Monday, to be arrested on the morning of Tuesday, December 31. Crowds of Indians buzzed about the police courts and Gandhi’s nearby law office on Rissik Street, waiting for the arrest. Gandhi apparently had been told that the defendants should appear in court at 10:00 that morning for the arrest. Word soon began to circulate, however, that the police commissioner had telephoned Gandhi, just as he was about to leave his office for the courtroom, to inform him that the government was not quite ready to have him. The commissioner would send word when the government was, in fact, ready to arrest him. With this news, Gandhi was “almost mobbed” by an elated Indian crowd that then grew to a size so huge and exhibited a tone so defiant that the police moved in to disperse it. Before the police could finish their work, however, Gandhi was able to get in a few words of encouragement. Standing atop a chair, he pleaded with his countrymen to “stand shoulder to shoulder in a strong protest.”34
Between December 31 and the time when the defendants would be arrested for refusing to obey the court’s order to leave, Gandhi would make full use of the intense public interest in the question of when the government would act against him. Ironically, he attracted significant attention on the 1st of January by not speaking. A crowd of some two thousand Indians gathered for a rally that day at the Fordsburg mosque. To demonstrate that the Indians could and would carry on without him, Gandhi, while present, refrained from addressing the crowd. The press made note of this in its coverage of the rally.
The press was also present in force on January 3 to cover Gandhi’s defense of Nawab Khan and Sumander Khan, the defendants whose cases had been postponed for lack of an interpreter. Not only was the press present, but also on hand was yet another huge crowd of Indians, estimated to be between 1,000 and 1,500. Those relatively few who could find seats in the courtroom could hear the low hum of the crowd throughout the proceedings.
Vernon testified for the prosecution, as he had in the first case. Gandhi had no questions for him. On direct examination of his clients, Gandhi emphasized their military service, and the injuries they had sustained, as a means of communicating to the public that Indians, their resistance to the Act aside, were actually quite loyal citizens of the empire. This testimony had no effect on Magistrate Jordan. He ordered Nawab Khan out of the colony within fourteen days and then interrupted the proceedings to complain that “he had been approached by both Indians and Chinamen who told him that the question of putting their finger-prints on the permits had nothing to do with their religion—absolutely nothing at all. . . . [T]he truth of the whole thing was that they were frightened to register for fear of being molested by their countrymen.”35
Hearing this, Gandhi attempted to use Sumander Khan’s direct examination to rebut this accusation:
MR. GANDHI: Have you been frightened by anyone?
—No, if they threatened to hang me they could not frighten me. [Laughter.]36
After inadvertently using his client’s own testimony to make the magistrate’s point, Gandhi attempted to recover by stating that he was surprised “to hear that some Indians and Chinamen had approached the Magistrate with reference to the registration question. Fortunately or unfortunately the Court had be
fore it two soldiers who were not likely to be frightened, as had been suggested. . . . [T]here was no question of fright. If there was a question of fright the arms of the law were strong enough to protect the King’s subjects.” Gandhi “thought it was futile,” he continued, “to suggest that anyone was frightened into not taking out registration certificates. It was not a question of thumb or finger prints, but this was a thing that touched on their liberty.”
At this point, Magistrate Jordan, who had initiated the discussion of this topic, cut Gandhi off, sharply reminding him, much as he had done in the first trial, that if he “wanted to address a meeting he could doubtless do so, but the Court was not the place for such speeches.”37
Gandhi did not go silent: “The Bench has led the way, otherwise I would have held my peace. I don’t wish the public to leave the Court with the impression that the whole of this objection to registration has reference to thumb and finger impressions. It is a religious fight and a fight for liberty.”38
Magistrate Jordan tried to have the last word, repeating his charge that he had been told by Indians and Chinese that they “were frightened of their lives to register” and ordering Sumander Khan out of the colony in fourteen days.39 The last word, however, belonged to Gandhi, who had already succeeded in seeing to it that the Transvaal press would carry his message.
Indeed, over the course of the following week, Gandhi carried on a vigorous campaign in the press, highlighted by his response to a much-noticed speech given by General Smuts.40 On January 5 Smuts broke his silence on the Asiatic question when he returned to the capital from an out-of-town trip to deliver a lengthy speech. In it, he alleged that massive forgeries of permits had taken place and that fingerprinting was now essential. He distinguished the Indian community from its leaders, arguing that resistance to the law was not so much the product of a natural aversion to it on the part of the Indian population as the result of “organized agitation on the part of certain leaders of the Asiatic community.” The Asiatics who objected to the law “had been misled by certain of their leaders whom they had trusted.”41 He invited the community, as opposed to its leadership, to confess being misled, plead mistake, and ask for one more chance to register.
M.K. Gandhi, Attorney at Law Page 29