Gandhi then mounted a substantial argument against conviction, pointing out Sorabji’s ability to qualify under the IRA and the inapplicability of the Act to a person in Sorabji’s circumstances. The magistrate found Gandhi’s arguments “very subtle and very able,” but ruled against him one more time. The only important fact for the magistrate was that Sorabji had not registered. He was ordered out of the colony within seven days.20 On July 20, he was once more brought before Jordan. The charge was failure to obey the order to leave the colony. On the stand, Sorabji freely admitted that he had disobeyed the order and that he had intended to disobey it all along. Gandhi, recognizing that his client was bound for jail, described Sorabji’s desires to the court: “The accused wished to suffer for the sake of principle. He had chosen between his conscience and the order of the Court, and he had chosen by his conscience.”
For choosing his conscience above the law, Sorabji received a sentence of one month’s imprisonment with hard labor.
Sorabji’s resistance was helpful to the Indian cause in two ways. First, the government’s failure to prosecute him under the IRA was a tacit admission that such a prosecution would be unsuccessful and that Gandhi’s interpretation of the IRA was correct.21 Moreover, the government’s prosecution of Sorabji for failure to register gave the Indians multiple opportunities to ventilate Gandhi’s IRA interpretation in court and in the press and thus to advance the debate.22 This was not the outcome Gandhi had sought through this test case; rather, he had sought to use Sorabji’s disobedience to create the occasion for a court ruling on the applicability of the IRA. The actual outcome was, however, nearly as effective in making the Indians’ point.
The second way Sorabji’s resistance was helpful is that it provided the Indians with a heroic figure whose disobedience could serve as an example to others in the movement. Defiant, Sorabji pledged to the Indian community that he would never comply with the law. Indeed, he would refuse to leave the Transvaal as ordered, would continue to refuse to register, and would be jailed again and again. Gandhi would lionize him in the pages of Indian Opinion.23
Sorabji would make Ramsundar Pundit a faded memory.
THE THIRD FRONT: TAKING UP BASKETS
The large crowd of Indians that had gathered to observe the proceedings in Sorabji’s case quickly reassembled afterward outside Gandhi’s Court Chambers law office. There Gandhi announced what he called the next step in the movement. Indians “who possessed licences [would] return them and stand the consequence of being arrested for trading without licences and going to gaol.” A number of Indian hawkers promptly surrendered their licenses on the spot so that they might be returned to the authorities. (Hawkers were generally Indians on the lower rungs of the economic scale who made their livings by selling fruits, vegetables, and other items on the streets, often from baskets.) The purpose of this phase of disobedience? According to Gandhi, it was to suffer and thereby to “bring conviction to the minds of the European community that they were fighting for principle.”24 At first blush, one might think that Gandhi’s purpose was to create change through self-suffering.25
On July 20, the first unlicensed hawkers were arrested. Many more would be arrested in the coming months.26 In the period running from the time of the first arrests up to early October 1908, Gandhi appeared in court to represent fifty-eight resisters in a total of thirteen known criminal trials. Is there any sign from Gandhi’s conduct in these cases that he understood the role they played in achieving one or more of the purposes for civil disobedience described earlier? Let us examine the evidence.
The record discloses how Gandhi pled his clients in eight of the thirteen cases. We know that in four cases he pled his clients not guilty, while in four others he pled them guilty. While the lawyer holds great sway, the client has the ultimate choice in the question of how to plead. These, however, are resistance cases in which resistance prisoners were being represented by the very person leading the resistance effort. Accordingly, while one normally would be reluctant to charge the lawyer with a disproportionate responsibility for the plea, here we can charge Gandhi with a fair degree of influence. Viewing these eight cases together, however, one finds no discernible pattern that explains why some clients were pled guilty and others were not. It does not appear from the pleas entered that Gandhi had a unified and coherent approach to these cases.
What does an examination of the proof brought forward by Gandhi in the entire set of thirteen cases demonstrate? In the great majority of the cases, Gandhi put on evidence to explain to the court (and perhaps to the reading public as well) why the defendants had no licenses. From the witness box the defendants typically described their circumstances. They stated that as a result of the government having broken the terms of the compromise, they resolved not to provide their fingerprints. The accused had applied for their hawking licenses, even tendering the requisite fees, but when the accused refused to provide their thumbprints, they were denied their licenses and were told that no licenses would issue without prints. In some instances it appears that Gandhi put this evidence on in extenuation, but in other instances it appears that this evidence was somehow intended by Gandhi to serve as a complete, substantive defense. On no occasion did the evidence appear to help. Convictions were the result without exception, indicating that when this explanation was used as a defense, the defense failed. The picture with regard to extenuation is somewhat less clear but still fairly indicative of a tactic that had very little, if any, effect. If the sentences for the defendants had varied widely, then perhaps Gandhi’s extenuation evidence might be credited for the difference in cases of reduced sentences. But the fact is, the sentences in the thirteen trials fell within a narrow band. Judges gave the defendants their choice: they could pay a fine (ranging from 5 s to £1) or serve a jail sentence of from two to seven days, usually with hard labor.27 Every defendant chose jail.
It is conceivable that the real purpose of putting on this evidence was not so much to convince the magistrates sitting on the cases as to advance the public debate.28 The Transvaal newspapers covered these trials with a large degree of faithfulness. By adducing this evidence with reporters present, Gandhi succeeded in explaining his cause many times over to the readership of the colony’s most influential media—the Rand Daily Mail, Transvaal Leader, and Johannesburg Star.
In a very limited number of cases, Gandhi presented defenses based on perceived procedural missteps by the government, thus replicating the defense he had mounted for Sorabji. The reaction of the court to these defenses sent a strong signal to Gandhi: the courts were not concerned with protecting the rights of the defendants as much as they were concerned with protecting the interests of the government. In Rex v. Bawazeer and Others, the court inadvertently revealed that the government had given the chief inspector of licenses a list of fourteen individuals who were exempt from the thumb-impression requirement. While the list’s existence came as a surprise to Gandhi, he was quick to pounce on it. In closing argument, he contended that “there was absolutely no authority given to the Government to grant exemptions” and urged the court to discharge the defendants rather than “countenance an arbitrary administration of the Act.” The court cavalierly ignored this argument, saying that “the charge was admitted and that was all [the Court] had got to do with it.” The magistrate offered the defendants a choice between a 10 shilling fine and imprisonment for four days with hard labor.
Gandhi erected the same defense in Rex v. Ramaswamy and Others.29 In that case, Gandhi had Chief Inspector of Licenses L. H. Jefferson on the stand under cross-examination.30 The way Gandhi’s cross-examination unfolded is instructive:
MR. GANDHI:You have received a list of exemptions?—Fourteen.
MR. GANDHI:Will you produce that list?
The Magistrate and Public Prosecutor both interposed and objected to its production.
MR. CRAMER [the Prosecutor]: I have no objection to Mr. Gandhi asking if the accused’s name is on the list.
MR. JEF
FERSON:It is not on the list.
MR. GANDHI:Does this mean that I cannot see the document?
THE MAGISTRATE (TO MR. JEFFERSON):Are you permitted to show the document?
—No, Sir.
MR. GANDHI:But it must be a public document. Have you been prevented by the authorities?
THE MAGISTRATE (interrupting): I’m not going to allow it, Mr. Gandhi; that is final.
MR. GANDHI:Have you been prevented by the authorities?
THE MAGISTRATE:Mr. Gandhi, for the last time, I will not allow this.31
Gandhi, ever stubborn, went on to make his point to the magistrate in closing argument. The Transvaal Leader was there to capture Gandhi’s closing: “Mr. Gandhi said that he held it was a most curious position that here they had a list which applied to the whole community, and which could not be produced. He thought it was very remarkable that they were not allowed to see it. . . . He thought it within the jurisdiction of the Court to say whether Mr. Jefferson should produce the document.”32
The magistrate continued to oppose Gandhi’s position and imposed a fine of £1 or seven days in jail with hard labor. There could hardly be a clearer example of the failure of judicial independence than the magistrate’s refusal to order Jefferson, a government official, to divulge the government’s list of exempt Indians. The magistrate simply bowed to the government’s wishes without entertaining argument on the point and without explanation of the decision. It was this essential, bedrock characteristic of ultimate deference by the Transvaal courts to the government—despite a few aberrational decisions to the contrary—that helped drive Gandhi away from litigation and into civil disobedience.33
Gandhi had resisted convictions in these cases on procedural grounds and lost each time. It is difficult to see what purpose of civil disobedience could be achieved by disobedience that resulted in a courtroom defense that primarily rested on a technicality having nothing to do with the merits of the controversy.
Finally, there were two cases in which Gandhi mounted no defense and presented no mitigation evidence at all. We have very little information about one of these.34
The other such case was quite telling. It demonstrates how Gandhi’s understanding of civil disobedience and its purposes was incomplete, but evolving. A group of six Indians charged with hawking without licenses came before Magistrate P. C. Dalmahoy on July 28. All the defendants pled guilty. Gandhi announced that he intended to call no witnesses. He did have a statement to make, however. He said that he had conducted a long conference with the accused during the course of which the prisoners had instructed him to seek the severest penalty possible for them. This was so, Gandhi indicated, because the defendants had acted “with deliberation.”35
The magistrate sentenced five members of the group to a fine of £1 or seven days in prison. The sixth member of the group—Thambi Naidoo—received a double sentence of a £2 fine or fourteen days in jail because of his previous convictions.
A few days after the conclusion of this trial, Gandhi wrote to his Indian Opinion readers about his representation of these disobedients:
[T]hose who are prepared for imprisonment should go to gaol without depending upon a lawyer or myself. That is not to say that I go back on my promise of defending Indian satyagrahis36 arrested in connection with the campaign against the law. I shall go wherever I find my presence is needed. But the best way is to have no lawyer and go to gaol straight away and undergo whatever sentence is passed.37
For those who wanted to resist jail, Gandhi would act as a traditional lawyer by mounting defenses, adducing evidence in extenuation, and throwing procedural roadblocks in the prosecution’s path. For those who held themselves to a higher standard, standing mute was best. In all of this, Gandhi was experimenting with self-suffering in civil disobedience and with his role as a lawyer for the disobedient.
In the case before Magistrate Dalmahoy, Gandhi had essentially stood silent. An important reason for his doing so was the identity of the one of the five defendants receiving the £1/seven days sentence—Harilal Gandhi, the defense lawyer’s eldest son, who had been arrested for unlicensed hawking.38
Harilal’s father believed that the purest act of disobedience involved the most self-sacrificial suffering.39 He himself was not available to court arrest because, as he put it, he was “enrolled as an attorney.”40 Did he mean that his role as an attorney for the unlicensed hawkers was indispensable? Or did he mean that it was somehow unseemly or disreputable for an attorney to hawk? It is not clear what Gandhi meant. What is clear is that he was using Harilal as a stand-in for himself—and that the Gandhis would hold themselves to the highest forms of self-sacrificial suffering while refraining from clouding the public’s picture of their disobedience with distracting legal maneuvers in court.41
Gandhi believed that the manner in which he and Harilal had acted in Harilal’s case—by not fighting the prosecution, but simply accepting punishment—set the standard. He explained this approach as an experiment:
When I go to defend those who have been arrested, I do not, strictly speaking, defend them but only send them to gaol. If we have acquired real courage, there should be no need for me to present myself in Court. I thought it only proper that I should make this experiment in the first instance with my son. Accordingly, no arrangements were made for him at Volksrust, and he was left to fall back on his own strength. Since there were others with him in Johannesburg, I attended the Court, but asked for the maximum penalty for him and for his associates. It was their misfortune that they did not get it.42
For most ordinary disobedients, Gandhi would appear in court and act like a defense lawyer. He would explain the reasons for the disobedients’ actions, he would try to get the charges dismissed on procedural grounds, and he would make as much trouble as possible for the prosecution. For his son and other idealistic, self-sacrificing disobedients, however, he would stand mute, just as they would stand mute. Silent acceptance of the punishment would allow the public to see the suffering of the disobedient without interference, on clear lines, in clear terms. If the public could see the suffering clearly, the public might well sympathize with the disobedient. Such sympathy could lead to pressure on decision-makers, which in turn could lead to change in the form of curative, institutional reaction.
One of Gandhi’s quintessential features was that his understanding of the world never came to a rest. It was always under development. In regard to civil disobedience and its purposes, he was determined in 1908 to advance his understanding through experimentation—even if it meant sitting down, being silent, and surrendering his role as a lawyer in his own son’s case.
THE FOURTH FRONT: CROSSING THE BORDER
While he had surprisingly perceptive insights into self-suffering, Gandhi’s understanding in 1908 of its role in civil disobedience campaigns was nonetheless limited and in an early stage of development. Judging from his speeches and writings during this period, he did understand the immense power of self-suffering to generate the sympathy and help of onlookers—one of the major uses for civil disobedience. There was an important reality, however, he did not grasp. He did not understand how easily this power could be disrupted and diminished by the legal process—and, in particular, by lawyers. This limitation in Gandhi’s understanding is evident in the manner in which he and his associates, acting as the disobedients’ lawyers, shaped the fourth civil disobedience front between July and early October 1908.
In July Gandhi publicly and defiantly urged Indians to “fill the jails.”43 What was his purpose in rendering this advice? Gandhi articulated three different goals for Indian disobedience to the registration requirements. The first was to win a war of attrition with the Smuts administration. By sending forth wave after wave of disobedients for the government to prosecute and imprison, Gandhi hoped to “tire out the government” and thus force it into capitulation.44 The Indians’ disobedience would, in a sense, be a limited withdrawal of consent to be governed by the Smuts regime. In addition to thi
s goal, Gandhi was open about his interest in using the Indians’ disobedience, and the self-suffering that would accompany it, to attract the attention and sympathy of London—a development that might lead, in turn, to intervention in South Africa by the British on behalf of the Indians. With respect to London, the hope was that the Indians’ disobedience could both advance the debate and create political change.
In aid of these three goals—withdrawing consent, advancing the debate, and creating political change—Gandhi would send prominent Indians into the Transvaal from Natal for the purpose of challenging the government’s interpretation of the IRA that educated Indians and prewar residents of the Transvaal were not entitled to entry. When at the border, these volunteer disobedients would be asked to produce registration papers that, of course, they did not possess. As a consequence, the government’s registration requirements would also be challenged. Much of Sorabji’s disobedience was centered on these same objectives. The twist now was to send prominent Indians to the border and to send them repeatedly.45
The Indians would have had to look hard to find a more prominent disobedient than one whose name was Gandhi. When Harilal Gandhi presented himself at the Transvaal-Natal border in July, the authorities refused to play Mohandas Gandhi’s game. They let Harilal pass unchallenged. After displaying prolonged forbearance in refusing to arrest him, the government’s decision to finally move against him on August 10 for failure to register under the Act can best be explained by the quite public nature of Harilal’s defiance.46
When Harilal was tried that very afternoon before Magistrate H. H. Jordan, Mohandas Gandhi reprised the role he had played in Harilal’s earlier trial for hawking without a license. He pled Harilal guilty and refrained from asking any questions of Superintendent Vernon, the prosecution’s usual witness. Gandhi then asked the magistrate to order Harilal out of the colony within twenty-four hours, rather than the standard seven days, so that Harilal could begin his jail time with other young Indians who had also defied the law. The magistrate declined to accede to the senior Gandhi’s request and gave Harilal seven days to leave.
M.K. Gandhi, Attorney at Law Page 33