He understood that self-suffering, in order to lead to sympathy, must first catch the eye of the public: “Passive resisters depend upon creating public opinion. . . . It will not be denied that their suffering has at last made some public men in this Colony think.”3 With the attention of onlookers captured, self-suffering can then go about the work of creating sympathy in them. Just before his imprisonment Gandhi said that “he had sufficient faith in human nature to believe that when the Colonists saw husbands torn away from their wives, [and] . . . wives . . . left to be starved to death . . . then the Colonists of the Transvaal themselves would tell General Smuts that he had not received a mandate to treat human beings in that fashion.”4 A few days earlier, he had shared a related sentiment in a letter to a friend: “Passive resistance . . . means self-imposed suffering of an acute type, intended to prove the justice of the cause, and thus to bring conviction home to the minds of the Colonists.”5
These understandings would soon be put to the test. The issue that Gandhi would eventually face before the end of 1908 was whether he could employ these insights about self-suffering to achieve broad social change or whether he would allow his role as a lawyer to overwhelm and suffocate that opportunity.
THE FIRST FRONT: INCINERATION AND INCARCERATION
Of one thing Gandhi was certain—that if he could reignite the fervor his community had shown earlier and if he could thus get his community fully recommitted to jail-going, he would have enormous leverage on Smuts. But first he needed an essential ingredient—an act that defied the law. His initial hope was that the Supreme Court would order the voluntary applications returned so that the Indians could then be restored to their position when the registration period expired—in violation of the mandate to register. Gandhi had great faith in the courts—and it was occasionally justified.6 It was naïve, however, to think that the Supreme Court, on a question of this magnitude, would turn its back on the very power establishment of which it was a central part. The Court would not be a party to setting up the conditions needed for thousands of dissidents to defy the government.
His frustration with the Supreme Court drove Gandhi from passive resistance to active resistance: “Our object in demanding that the applications be returned was to make certain that we were arrested as soon as possible. We must now achieve the same object by burning the registers.”7
He was perfectly clear about what the Indians’ agenda was when the Court turned down their petition:
There is only one remedy. And that lies in our hands. We should ignore the Government’s law and act as follows:
When necessary, we should burn the certificates of voluntary registration.
We must refuse to affix our finger-impressions or signatures [on any documents] or to give our names when asked for these by the police.
We should tender the licence fee, but if the licence is refused, we should carry on trade without one. . . .
We want to go to jail.8
Before the Indians began burning their registration certificates, however, Gandhi hoped that the threat of doing so—and thereby filling the jails—would cause Smuts to honor what Gandhi considered to be their original agreement. To make the threat real, the Indians, at a mass meeting held the Sunday following the Court’s decision, announced their plans to publicly burn their registration certificates on the following Sunday, July 12, 1908. The Indians did not meet on that date, however, and later in the month Gandhi stated that “the question of burning voluntary registration certificates which were now in the hands of the BIA would not be decided until they knew what legislation the Government intended to introduce.”9
This deferral proved to be unproductive. For some time, Smuts had insisted that any agreement to repeal the Act had to be accompanied by a complete ban on the entry of Indians into the Transvaal. The Indians sought Smuts’ agreement to an exception to the ban that would permit educated Indians to continue to enter—something Gandhi contended the law presently allowed.10 Smuts refused to budge from his position. At the same time, the secretary was intent on following through with Selborne’s recommendation that the voluntary registration the Indians underwent be regularized by supplemental registration. A measure known as the Validation Bill was introduced into Parliament for just this purpose on August 13.
Matters moved quickly after that. Gandhi and the Indians immediately petitioned the Transvaal Parliament against the Validation Bill.11 Not surprisingly, the Parliament gave no weight to the petition. After some six weeks of threats by the Indians, a day was set for the burning of the certificates. Gandhi wrote one final letter of appeal to Smuts, setting forth the date and seeking a settlement, short of which the Indians would burn their certificates.
Smuts had no interest in Gandhi’s proposed settlement. When the appointed day, August 16, arrived, a huge throng of Indians poured into the grounds of the Fordsburg mosque—some three thousand people in all. They had come from all parts of the Transvaal, and they filled every inch of available space as well as the rooftops in the surrounding area. On the stage were representatives from Indian organizations in Durban, Cape Town, and Pretoria. The Indians’ Chinese allies were represented by Leung Quin. While civil disobedience was quite the draw, many of those in attendance were not there as mere spectators. Some fifteen hundred registration certificates had been handed in for burning, as well as some five hundred trading licenses.12
After the BIA chairman spoke, Gandhi took the stage. He conceived of his role as that of a lawyer who was responsible for giving his client sound advice. Gandhi shared with his audience the careful process he had undergone to come to the counsel he was about to offer. After giving the matter a great deal of thought and prayer, he said, his decision about what advice to give reduced itself to a choice: the Indians could disobey and suffer, or they could obey and accept the indignity of the Validation Act. His choice was for disobedience and suffering. His advice to those present was plain and direct: burn the certificates. With the British flag flapping in the chilly winter wind above, the crowd erupted in protracted applause.
In some of the most eloquent and forceful language used by him in South Africa, Gandhi continued:
What is this fight that we are engaged upon?
What is its significance?
To my mind, its significance did not commence with a demand for the repeal of the Asiatic Act, nor does it end with the repeal of the Asiatic Act. I know full well that it is open to the Government of the Colony to give a repeal of this legislation today, to throw dust into our eyes and then embark upon other legislation, far harsher, far more humiliating, but the lesson that I wanted to learn myself, the lesson I would have my countrymen to learn from this struggle is this: that unenfranchised though we are, unrepresented though we are in the Transvaal, it is open to us to clothe ourselves with an undying franchise, and this consists in recognizing our humanity, in recognizing that we are part and parcel of the great universal whole, that there is the Maker of us all ruling over the destinies of mankind and that our trust should be in Him rather than in earthly kings, and if my countrymen recognize that position I say that no matter what legislation is passed over our heads, if that legislation is in conflict with our ideas of right and wrong, if it is in conflict with our conscience, if it is in conflict with our religion, then we can say we shall not submit to that legislation.13
Gandhi then explained how the version of civil disobedience he was promoting was consistent with the rule of law: “We use no physical force, but we accept the sanction that the legislature provides, we accept the penalties that the legislature provides. I refuse to call this defiance, but I consider that it is a perfectly respectful attitude, for a man, for a human being who calls himself man.”
After Gandhi spoke, the crowd’s attention turned to a huge, black cauldron present for the occasion. It was filled with the offending documents, paraffin was poured into it, and it was lit afire, according to the Transvaal Leader, “amid a scene of the wildest enthusiasm” and, accordin
g to the Johannesburg Star, amid “indescribable excitement.” Hats were hurled into the air. The Rand Daily Mail, always hostile to the Indian cause, sarcastically reported: “There was not one Asiatic amidst the huge throng who did not seem to be under the impression that the witnessing of the burning of the certificates, or the actual depositing of his parchment upon the pyre, was the mission of his life.”
An Indian who had earlier withheld his support from the cause approached the cauldron, set his registration on fire, and held it up for all to see. When the leaders on the stage tried to address the crowd, there was so much shouting and so many whistles being blown by the exuberant crowd that they could not be heard.
Fifteen hundred registration certificates and five hundred trading licenses were now ashes.
Gandhi had his ticket to jail.
THE SECOND FRONT: THE PENALTY FOR WEARING A BROWN SKIN
When Gandhi realized earlier in the year that Smuts was not about to have the Act repealed, negotiations reopened between the two. Smuts offered repeal, but only on a number of conditions. One of those conditions was that immigration into the colony from India be completely halted. Part of Gandhi’s response was to argue that the current law permitted the entry of educated immigrants,14 and that to now exclude educated Indian immigrants—while continuing to welcome educated immigrants of other racial and ethnic groups—would constitute an unacceptable form of discrimination. Smuts replied that Gandhi was wrong about his view of the law; he claimed that educated Indian immigrants were not entitled to entry under the current law.
The relevant section of the Immigration Restriction Act (IRA) of 1907 barred those who were “unable through deficient education to write out (from dictation or otherwise) and sign in the characters of an European language an application for permission to enter this Colony or other such document as [a duly authorized] officer may require.”15 Under this standard, it was plain that any Indian able to understand and write English would not be barred from entry. Gandhi set out to arrange a test case that would reach that conclusion and prove Smuts wrong.
Gandhi had his client when a Natal store manager and bookkeeper, Sorabji Shapurji, learned of this dispute, communicated with Gandhi, and volunteered to enter the Transvaal to test Smuts’ contention. Sorabji had mastered English through years of study and would easily qualify under the IRA. His attempt to enter the Transvaal from Natal at the same time Gandhi was threatening to burn the registration certificates would thus open a second of what would eventually be a total of four civil disobedience fronts in the dispute with Smuts. If Sorabji were denied entry into the Transvaal, Gandhi would have the test case he needed to prove that the law did allow educated Indians into the country.
Before Sorabji presented himself to the border officials, Gandhi notified Chamney of Sorabji’s intentions, specifically telling him that Sorabji would attempt to enter, that he had sufficient means, and that he possessed the requisite English skills. Sorabji did in fact appear at the border crossing at Volksrust on June 24, 1908. And then the unexpected happened. He was admitted without challenge. Perhaps sensing that they would be defending an extremely weak legal position, Smuts and Chamney simply were not willing to give Gandhi the forum he wanted.
Sorabji proceeded to Johannesburg, where he was watched by the police, but was left unmolested for more than a week. He was finally arrested on July 4—but not for being a prohibited immigrant. Rather, he was arrested for being in violation of the Act by failing to register. Again, the government would simply not create the issue Gandhi wanted tried.
Four days later, on the afternoon of Wednesday, July 8,16 Magistrate H. H. Jordan presided over a courtroom filled to capacity for the government’s prosecution of Sorabji Shapurji. When Sorabji stood to plead not guilty, Gandhi was at his side. After Prosecutor Schuurman adduced the routine evidence from the police about the defendant’s unauthorized presence (under the Act) in the colony, Schuurman called Chamney to the stand to testify that Sorabji had earlier made application for voluntary registration and that Chamney had turned him down because he did not believe Sorabji qualified for voluntary registration under the terms of the compromise.
Under cross-examination by Gandhi, Chamney admitted that the defendant had tendered a number of certificates of good character when he applied. When Gandhi asked Chamney to read them aloud, Schuurman objected. Magistrate Jordan immediately sensed what Gandhi was trying to show with the documents—that Sorabji easily qualified under the IRA for admission into the colony, that Sorabji was being prosecuted under the wrong statute, and that the court should therefore dismiss the charges. The magistrate, however, was of no help to Gandhi. He concluded that because the documents were now the property of the police, he would refuse to require Chamney to involuntarily produce them or read them, despite Gandhi’s having earlier served notice on the witness that he wanted them produced.
Undeterred, Gandhi plowed ahead with his cross-examination. Gandhi demonstrated that Chamney’s immigration officers had not examined the defendant at the border to see if he qualified under the IRA. Then Gandhi squarely confronted Chamney with the issue, asking Chamney whether he would admit that Sorabji had “sufficient educational attainments” to qualify under the IRA. Chamney said he knew nothing about that. Gandhi asked Chamney whether he would admit that Sorabji had “sufficient means.” Chamney said he knew nothing about that, either. When Gandhi asked Chamney why the defendant was allowed to pass through the border crossing, Chamney refused to answer. When Gandhi asked whether Chamney would allow an immigrant to cross if the immigrant could show compliance with the IRA, the witness claimed he would not allow such a person to pass because the person would have been a prohibited immigrant under the Act; under further questioning by Gandhi, however, Chamney admitted that he had allowed what he considered a prohibited immigrant to enter the colony. As a result of Gandhi’s skillful questioning, Chamney had painted himself into a corner.
With Jordan appearing unfriendly to Gandhi’s argument that the Act was inapplicable to this prosecution, Gandhi turned to a defense—a procedural argument—that would have made his mentor Frederick Laughton proud. Gandhi noted that under the Act unregistered Asiatics were subject to arrest if they were found in the colony “after such a date as may be notified in the [Government] Gazette.” Schuurman, in a fatal mistake, had failed to put this date into evidence before closing his case. Gandhi moved for a discharge on that ground. Admitting that “he knew it was a technical error,” Gandhi said it nonetheless “paid the defence to take such action.” The magistrate was not pleased, but Gandhi was stubborn about getting his client discharged:
THE MAGISTRATE:It is this, in short—we must bring the accused up again, and give the Government as much trouble as possible!
MR. GANDHI:That’s the point.17
The next morning Jordan announced that he agreed with Gandhi and would discharge Sorabji. Chamney was not through, however. The government immediately re-arrested Sorabji and charged him with the same offense—failing to register under the Act. Two days after being discharged and found not guilty, Sorabji, with Gandhi at his side, found himself back before Jordan on the very same charge. Of the cast of characters, only the prosecutor was different, with A. J. Cramer now representing the government.
The day before, Gandhi had written to Cartwright about the case. His letter is a window into Gandhi’s legal strategy, his frank opinion of his opposing counsel, and his equally frank opinion of Chamney:
Mr. Sorabji, as you know, is not now to be tried under the [IRA] at all. Indeed, to secure conviction under that Act will, in the case of an educated Asiatic, be, I am sure, impossible, without the instrumentality of the Asiatic Act. It just proves my contention. Owing to the stupidity of the Prosecution and the greater stupidity of Mr. Chamney, I was able to take advantage of a flaw in the evidence . . . , and Mr. Sorabji was discharged. To show the vindictiveness on the part of . . . Vernon and . . . Chamney, he was re-arrested immediately. . . . I do not know what will happe
n tomorrow. I am half inclined to think that there will be a bungle again. If so, I propose to take advantage of it and secure a discharge again. Ultimately, of course, Mr. Sorabji, unless some settlement is arrived at, must pay the penalty for wearing a brown skin and go to gaol.18
When court opened the next morning, Cramer called police superintendent Vernon, who recounted his re-arrest of Sorabji and produced notices from the Government Gazette that indicated deadlines for registration.19 Gandhi used his cross-examination of this witness to show that there was virtually no time between Sorabji’s discharge on Thursday and his re-arrest the same day.
Chamney testified in the same fashion as he had earlier, but this time he added a twist. Realizing the import of his testimony on Wednesday, Chamney offered an opinion “that, under the Immigrants’ Restriction Act, the accused was not eligible to obtain . . . a certificate of registration.” Gandhi immediately objected that Chamney was not qualified to give this opinion; the magistrate upheld Gandhi’s objection, perhaps recalling Chamney’s refusal to answer questions from Gandhi on that very subject in the earlier hearing. On cross-examination, Chamney once more admitted that he had not examined the defendant on his educational qualifications.
With the prosecution’s case now complete, Gandhi and the court then engaged in some procedural skirmishing that Gandhi hoped would result in dismissal again. The magistrate in this instance turned his dismissal request down. The silver lining to his ruling was that it permitted the defense to once more make its case under the IRA. Sorabji testified to his educational attainments, causing the magistrate to inquire: “Do you mean to say that any Asiatic who can read and write in a European language can come into this Colony?” To this, Gandhi responded: “I do, Sir, and I am going to try and argue that before the Court, if I get the opportunity.”
M.K. Gandhi, Attorney at Law Page 32