BEATEN AGAIN
During the campaign against the Act, so much stress had been laid on the indignity associated with fingerprints that Gandhi had a very difficult time convincing his constituency to accept the settlement.17 His argument was that the community’s real objection had always been to the compulsion inherent in the law and not actually to the giving of fingerprints themselves.18 This historically accurate but politically ineffective argument contributed to an atmosphere in which Gandhi was widely and bitterly viewed by his compatriots as having betrayed them.
To help counter dissatisfaction with the fingerprinting concession, Gandhi announced he would be the first to register and give his prints. The move backfired. This was more than some of his erstwhile supporters could stomach. In a scene reminiscent of the time Gandhi was beaten after coming ashore in Durban eleven years earlier, he was severely beaten again—but this time by his fellow Indians. Some Pathan members of the Indian community—including a Gandhi client, Mir Alam—violently attacked Gandhi as he was walking to Chamney’s office on February 10.19 Alam and his colleagues struck Gandhi’s head from behind with a cudgel, knocked him to the ground, and kicked and hit him repeatedly in the face and ribs until he lost consciousness. If the police had not quickly arrived on the scene and arrested Gandhi’s assailants, there is no telling what his fate might have been. In another piece of good timing, a Johannesburg clergyman, Joseph Doke, happened by and spontaneously offered to take Gandhi in. He was carried off to the Dokes’ home, where the lacerations to his face were stitched up and his other injuries were looked after by a physician who ordered Gandhi to refrain from speaking until his stitches were removed. The patient then stoically and determinedly returned to the business of the day—registration. When Chamney arrived at the Dokes’ home with Gandhi’s registration papers in hand, Gandhi silently turned to face him and, in pain, permitted Chamney to take his fingerprints. Gandhi describes what he learned in that moment about the power of self-suffering: “I then saw tears stood in Mr. Chamney’s eyes. I had often to write bitterly against him, but this showed me how a man’s heart may be softened by events.”20 Gandhi would spend about ten days recuperating under the Dokes’ care. While at their home, he would pointedly and repeatedly announce that he wanted no prosecution of his assailants—just as he wanted no prosecution of his attackers in Durban.21
MALPRACTICE
With the Indians temporarily weary of resistance and the case for the settlement apparently given an emotional boost by the reaction to Gandhi’s beating, registration proceeded apace. At the same time, a semblance of normalcy returned to Gandhi’s life. Relieved of the day-to-day pressures of leading the resistance movement, he now had the luxury of resuming his practice for several months. He also shepherded his friend and associate Henry S. L. Polak, through the process of admission to the bar. Polak had taken articles in Gandhi’s chambers in 1905, subsequently passed his Transvaal bar examinations, completed his three-year term as an articled clerk under Gandhi, and was enrolled as an attorney before the Supreme Court of the Transvaal on April 6, 1908.22 Gandhi had originally brought Polak into his practice to help him deal with the demand by Gandhi’s commercial clients for legal services—a demand Gandhi could not meet by himself.23 Little did Polak know that virtually the whole of his immediate career at the bar would now be consumed by his representation of resisters in the movement for Indian rights.24
That movement became active about six weeks after Polak’s swearing in. By then it had become clear that despite the near-universal compliance of the Indians with the call to voluntarily register, Smuts and his government were not about to repeal the Act. Gandhi and many other Indian resisters were outraged, claiming that Smuts had pledged to repeal the Act upon voluntary registration. They had little, however, by way of convincing proof of Smuts’ pledge, pointing only to rhetoric in a speech the colonial secretary had made at Richmond, to their own memories of the negotiations,25 and to the ambiguous language in the Gandhi-Smuts correspondence.
The settlement collapsed. In an effort to gain what it thought it had already achieved, the resistance movement now had to resurrect itself. Arrests, convictions, jail sentences, bankruptcies, and innumerable other hardships would lie ahead. Gandhi managed to place his community in this unfortunate position because he had not honored a basic principle of law practice. In his January 28 letter to Smuts, Gandhi plainly did not make it clear that repeal was a condition of settlement. In turn, the government’s responsive letter of January 30, 1908, made no mention of repeal. Gandhi was left to claim that in their early February meeting Smuts assured him—orally—that repeal would be given in exchange for voluntary registration.
Gandhi—the careful lawyer who always monitored the actions of opposing counsel with a microscope, the meticulous lawyer who paid attention to every detail of his own practice, the skeptical and persistent lawyer who was doggedly determined to get a written partnership agreement of his liking with Percy Coakes—this same Gandhi failed to follow the one practical rule of negotiation that every beginning law student knows by instinct: get it in writing. Had Gandhi modeled his negotiations with Smuts after his negotiations with Coakes, the parties would have used a document—a single document—to reflect their joint understanding. During the drafting process, this document would have been subject to the inspection and amendments of the parties. It would have been passed back and forth until both parties were satisfied with it. This one controlling document, reflecting the parties’ complete proposed agreement, would then be signed by both parties. Only then would the agreement be both complete and final.
At the end of his negotiation with Smuts, what did Gandhi have? A confusing and ambiguous settlement offer from—but not drafted by—him to Smuts, a letter from a lower government official to Gandhi that never once mentioned repeal, and the recollection of a conversation with Smuts—to which only Smuts’ ally Chamney was a witness—in which Gandhi claimed Smuts said the government would repeal the Act. This collection of ragtag documents and allegations amounted to something less than compelling and conclusive evidence. Yet repeal of the Act had been the central goal of the movement in the Transvaal for some time. Gandhi’s failure to get Smuts’ pledge of repeal in writing permitted Smuts to later deny that he had ever agreed to repeal the Act.26
How could Gandhi make so egregious and so fundamental an error? Perhaps he had confidence in Smuts, a fellow member of the bar, to keep his word.27 Perhaps his time in prison disoriented him, disconnecting him from the usual practices he employed and the usual sensitivities he displayed everyday as an attorney. Perhaps the involvement of the trusted Cartwright in the negotiations gave Gandhi an unjustified sense that the normal precautions were unnecessary.
All the suffering the Indians had undergone, all the economic sacrifices they had made, and all the organizational work they had performed failed to deliver their most important goal, one they thought had been in their grasp. Now they had to repeat virtually their entire effort.
It was nothing short of a political disaster.
TURNING TO THE LAW FOR HELP
According to Gandhi, “the essence of the compromise [was] that, the undertaking of the Indian community being fulfilled, . . . the Act should be repealed.”28 Smuts, Gandhi surmised, had privately promised repeal in exchange for registration, had succeeded in getting the Indians to register—and then had denied repeal had ever been promised. Gandhi felt that he had been played false. Dedicated in his own life to truthfulness and honest dealing, Gandhi was not about to sit still for this.
Despite his many previous disappointments with the judiciary, lawyer Gandhi was still a believer. In 1908, he believed in the power of litigation, he believed in the fairness of the court system, and he believed that the colony’s judges were as dedicated to truthfulness and honest dealing as he was. As a consequence, he felt comfortable when he threatened to take Smuts to court in an effort to retrieve the Indians’ voluntary registration papers. The courts would rescue the
Indians from a dishonest government. Then, with a court ruling in his favor, Gandhi hoped to nullify the voluntary registrations that had taken place and thus return the power relationship between the parties to the state it was in before the settlement. From that position, the Indians would again have leverage on the government by refusing to register.
Gandhi first allowed the government an opportunity to avoid litigation. He wrote to Chamney on May 26, asking for the return of his papers. He reminded Chamney of the agreement he and Smuts had made and Smuts’ breach of it. He assumed Chamney would see that the government had “no legal right to the documents” because they were given to Chamney’s office “only as a matter of grace, and not in virtue of any law.” The naïveté of Gandhi’s faith in the courts was rivaled by the seeming naïveté of his confidence in Chamney to act consistently with what Gandhi believed the law to be.29 He gave Chamney a short deadline for complying: May 29.
Chamney, not surprisingly, ignored the deadline—but evidently passed word of Gandhi’s letter to Smuts, who invited Gandhi to meet with him on June 6. Smuts would not commit himself at the meeting to the Act’s repeal. After the meeting ended, Gandhi wrote to Smuts and took the position that unless Smuts permitted him to “make a definite statement that the Act is to be repealed,” Gandhi would “reluctantly be compelled to fall back upon [his] letter to Mr. Chamney as to withdrawal of the application form.” And if Smuts did not agree that the Government should return the forms? Gandhi threatened “an application . . . to the Supreme Court for an order compelling the return of the documents.”30
In the week following his unproductive meeting with Smuts, Gandhi brought Charles Ward into the case.31 Ward agreed with Gandhi that the Indians were entitled as a matter of law to the return of their paperwork. With Ward’s reassuring opinion in hand, Gandhi sent a telegram to Smuts citing Ward’s opinion to his fellow lawyer and threatening to take the matter to the Supreme Court if no favorable response from Smuts was forthcoming. At the same time, Gandhi began preparing affidavits for use in the case.32
Gandhi set the affidavits aside when he received Smuts’ call for another meeting on June 13. The two talked about using amendments to the Immigration Act as a way to settle the dispute. Again, Gandhi followed up his meeting with Smuts with a letter written the same day. In his letter, Gandhi carefully reviewed the Indian position, making a point-by-point list of the matters he insisted any new legislation must address. In this letter he is careful and detailed and concerns himself with addressing specific contingencies—all hallmarks of good lawyering—and all characteristics he failed to exhibit when negotiating from jail.
Gandhi and Smuts met again on June 22. At that meeting, Smuts did agree to repeal the Act, but only on the condition that the Immigration Act be amended in several ways that Gandhi found harsh and unacceptable.33 Disappointed by Smuts’ position, Gandhi asked for the return of his voluntary application papers. Smuts refused and challenged Gandhi to go to court to get them. In writing to the press about the failure of this meeting, Gandhi pushed back with an attack on Smuts: “The position of the Asiatics is simple. They must revert to the condition that prevailed in January last in this matter, and they have been advised to withdraw their voluntary application forms. General Smuts has declined to return them. If he had the courage to face the passive resisters, he would return them without much ado.”34
Gandhi told the Johannesburg Star on the same day Smuts challenged him that he would immediately go to court. Gandhi did exactly that. On June 23 the Indians filed a petition with the Transvaal Supreme Court for the return of the application papers of Ebrahim Ismail Aswat, a Transvaal merchant and a one-time BIA officer. Aswat’s suit would serve as a test case for the return of all the Indians’ voluntary application papers.
Gandhi’s petition, which was not a masterpiece of clarity, appears to rest on the notion that the government’s refusal to repeal the Act constituted a breach of the settlement agreement and that this breach justified the return of the application paperwork.35
When the matter reached the Supreme Court for argument on July 2, Charles Ward argued for the Indian side that the applications were voluntary and that they were tendered “on the understanding that the Act would be repealed.” The Act was not repealed and therefore the attempt at registration was, argued Ward, a nullity.
D. De Waal, in arguing for the government, fully accepted Gandhi’s legal framework and addressed the breach issue head-on. Aswat, he claimed, had to prove that the government breached the agreement. The government never promised repeal as part of the agreement—thus there was no breach.
In deciding the case, the presiding justice, William H. Solomon, first addressed the question as the parties had framed it: was there a breach of an agreement between the Indians and the government? Solomon considered the two letters (the January 28 letter from Gandhi, Naidoo, and Quinn to Smuts, and the January 30 letter from the government to Gandhi) to constitute the whole of the agreement. After examining the letters, he concluded that “certainly there was no undertaking on the part of the Colonial Secretary to repeal the Act.” He then took up Gandhi’s allegation that the promise had been made orally by Smuts. Noting that Gandhi’s allegation was denied by Smuts and Chamney, Solomon indicated that “in [the] face of their denial I cannot come to the conclusion that any such undertaking was given by the Colonial Secretary.”
Solomon then turned to a related question he himself had raised in the course of the oral argument: was the application the property of Aswat or of the government? Solomon announced that it was his opinion that Aswat “intended to part company with the document” when he tendered it to the government. The document was the government’s.36
For Solomon, the conclusion to all this was inescapable: the Indians were not entitled to their applications back.
It was a thorough defeat for Gandhi. He had not gotten Smuts’ agreement to repeal in writing, and now the Indians were paying the price for that blunder. He tried to downplay the loss in the press the next day by characterizing the decision as a “questionable victory gained by General Smuts on a highly technical point of law.”37 It is difficult, if not impossible, to draw the conclusion from the Court’s opinion that the Court decided the case on “a highly technical point of law.” The result of the case, however, was unquestionable. Gandhi’s reliance on the courts did not get him and the movement where they wanted to go—to the state of affairs that existed before the settlement.
But there was another way that would get them there—and it, too, involved the law.
SEVENTEEN
* * *
Courtroom as Laboratory
I am doing nothing for the community for the sake of reward or fame. Everything I do is as a matter of duty, and I shall continue to do so in the future. If anyone wants legal advice, my office is always open. And I shall give the best advice I can.
GANDHI
LOOKING BACK FROM THE VANTAGE point of the twenty-first century, it is relatively easy to see how civil disobedience leads to social change. Students of civil disobedience understand the chain reaction a civilly disobedient act has the potential to ignite—disobedience, self-suffering, sympathy from the public, pressure on decision-makers, and curative institutional action. They also understand the power of civil disobedience to cripple and even overthrow governments through the withdrawal of consent. They have the benefit of the lessons taught by the Freedom Rides and the Dandi Salt March. For Gandhi, the Salt March was still ahead of him; the Freedom Rides would occur thirteen years after his passing. In 1908, by contrast, lawyer Gandhi had the greatest understanding of the one purpose with which a lawyer would naturally feel most comfortable—testing the law. In fact, he had used disobedience, unsuccessfully as it turned out, to challenge the lawfulness of Johannesburg’s segregated tram system in 1906, and he would again attempt to use the law for testing purposes before the fight in the Transvaal was over.
Gandhi’s broader understanding of civil disobedience was dev
eloping. In particular, his sense of the relationship between civil disobedience and social change, while incomplete, was growing. He was certainly not a complete stranger to the use of disobedience as a tool for creating change, for he had gotten a taste of it in the period surrounding his own arrest, trial, and imprisonment, when some two hundred other Indians were also imprisoned for defying the Asiatic Law Amendment Ordinance. What did Gandhi learn from this? Surely he read in the press Smuts’ extended bemoaning of the colony’s inability to deal with this disobedience. Smuts openly admitted two critical points: he could not force the Indians to obey, and, even if he were to arrest all the resisters, the Transvaal’s jails could not hold them all.1 Looking on, Gandhi received a practical lesson in how a government cannot function without the consent of the governed. True, Smuts was saved by the Indians’ loss of courage in early 1908. Nonetheless, Smuts’ concessions taught Gandhi that immense pressure for change can be brought to bear on a government by a large and dedicated body of disobedients—a luxury he would enjoy when he led the Salt March in India in March, 1930,2 but was not available to him in the Transvaal in January, 1908.
By the time of his jailing, Gandhi had limited actual experience with civil disobedience—and that experience was rather mixed. While there was much talk of disobedience in 1907, no widespread disobedience took place in the Transvaal until after the expiration of the registration period under the Act—November 30, 1907. Earlier he had used disobedience to stage his unsuccessful attack on Johannesburg’s segregated tramways. He had also represented the hero-turned-traitor Ramsundar Pundit in the wake of his disobedience. What is quite remarkable is that despite this limited exposure to disobedience Gandhi possessed a fairly well developed, intuitive sense of the role of self-suffering in creating change. He understood from early on the role self-suffering can play in creating sympathy in the public mind and then pressure upon decision-makers.
M.K. Gandhi, Attorney at Law Page 31