M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  When Harilal refused to obey the order to leave, he was brought before the magistrate on that charge on August 19, with Indian Opinion reporting that he “appeared quite cheerful in the dock.”47 With the elder Gandhi away in Pretoria negotiating with Smuts, George Godfrey, a recently arrived Indian lawyer, volunteered to represent Harilal—and did so consistently with Mohandas’ representation of him earlier. Godfrey offered no defense, presented no evidence in extenuation, and declined to make any statement. Accepting the defendant’s guilty plea, the magistrate sentenced Harilal to a one-month term with hard labor.

  Gandhi also represented other prominent disobedients in August who had either presented themselves at the border without registration papers or were recent and prominent intracolony transplants who lacked registration papers. The contrast between Gandhi’s response to these prosecutions and that of Harilal could not have been greater. A week before Harilal’s arrest, a leading member of the BIA who had previously been arrested for unlicensed hawking was taken into custody for having earlier entered the Transvaal without a registration certificate. In contrast to the course he had taken in Harilal’s trial, Gandhi did not pass up the opportunity to cross-examine the prosecution’s chief witness or to produce evidence in extenuation.48 Two weeks later, the government sent out instructions to arrest another prominent Indian for failing to register, as a result of which Gandhi found himself before Magistrate Jordan again. Gandhi pled his client not guilty. Gandhi then argued without avail for a dismissal of the charges—a move he would never have made for Harilal.49

  In an effort to provoke the government, other Indians—many of them with high profiles in the Transvaal or Natal—openly courted arrest during August, September, and October for refusing to register. Although it was not necessarily in its best interest, the government reacted to these provocations by arresting the Indians as they deliberately tried to cross into the Transvaal from Natal without registration papers. These Indians claimed a right of entry as educated immigrants, as prewar residents, or because they held permits under the Peace Preservation Ordinance. Many of these disobedients were represented by Gandhi’s friend, protégé, and office associate, H. S. L. Polak.50 In the ensuing trials, neither Polak nor his clients stood by silently in the face of prosecution.

  In addition to simply wearing out the prosecution, it is likely that Gandhi and Polak’s aim was to show the reading public, especially those in London, the injustice of making the Indians comply with yet another registration regime—all in aid of Gandhi’s goal of encouraging the intervention of the imperial government on this issue.51

  In a disobedience campaign designed to “tire the government out,” it makes good sense to resist prosecution every step of the way and to erect as many obstacles to conviction and sentencing as possible. The same tactics might also serve the purpose of advancing the debate; the newspapers would be filled with the Indians’ arguments against the Act. A disobedience campaign designed to secure the sympathy of onlookers in London and elsewhere would be far better served, however, by different tactics—namely, the refusal to mount legal arguments and the quiet, brave acceptance of punishment and self-suffering. Standing mute is effective in garnering sympathy because it engages the emotions of the audience. Looking upon willingly accepted self-suffering, the public naturally becomes inquisitive about the motives of disobedients: “Why are these people undergoing voluntary suffering? What is the injustice that moves them?” Suffering voluntarily accepted leads to these questions—and to sympathy. Sympathy leads to pressure on decision-makers—and pressure on decision-makers leads to change. The erection of legal defenses and the tendering of mitigating evidence, by contrast, are too readily seen by the public as efforts to escape or diminish punishment, thus interfering with the image of a self-suffering disobedient completely willing to accept the full consequences of his actions and thus short-circuiting the chain reaction that otherwise would be initiated by silent self-suffering and would eventually result in change.52 To purchase the possible benefit of showcasing the Indians’ argument that it was unjust to subject them to multiple registration regimes, Gandhi had to forgo a very different kind of public sympathy that may have resulted from standing mute, as he had done in Harilal’s cases.

  When a defendant resists prosecution at trial and mounts arguments against conviction, the public’s attention is invariably drawn to the disobedient’s particular arguments for acquittal. Such an approach may engage the intellect of the audience, but not its emotions. It is true that if the disobedient can win a debate on the legal merits, then, perhaps, the disobedient can make an appeal for the audience’s subsequent sympathy. By that stage, however, sympathy is much harder to come by. Moreover, the sympathy available at that time is an intellectual sympathy in reaction to a logic problem, not an emotional sympathy in reaction to a gross injustice.

  None of this is to say that Gandhi and his clients were unaware of the self-suffering the Indians would have to undergo by reason of their jail sentences. They were quite aware of that hardship.53 They might not have fully appreciated, however, the differences in how the public perceived them and their disobedience. They could be seen either as humbly and courageously accepting their punishment and willingly undergoing suffering, or as determinedly resisting conviction and reluctantly undergoing suffering. These images send very different political messages—a distinction Gandhi did not capitalize upon, in part because he did not yet fully understand it. His and his colleagues’ insistence on erecting defenses and presenting evidence in extenuation interfered with the most productive use of the Indians’ disobedience.

  The Indians’ 1908 resistance did produce a modicum of attention in London and can be said, therefore, to have succeeded in advancing the debate. With respect to the far more important goals of withdrawing consent and creating political change, however, the movement failed. The border-crossing resistance carried out in August and September—like the burning of registration certificates, Sorabji’s disobedience, and hawking without licenses—had produced neither Smuts’ capitulation nor London’s intervention.

  Another approach was needed.

  ROLE-DIFFERENTIATED BEHAVIOR

  The government was not unaware of the dynamics of civil disobedience. Accordingly, it was cautious about conducting an unlimited campaign of arrests against the Indians for their failure to register; Smuts and his government realized that they simply could not house and feed too large a number of disobedients. Moreover, there certainly had to be some measure of political sensitivity on the government’s part to the danger that mass prosecutions would hand Gandhi exactly what he wanted.

  In a final attempt to get the reaction he sought, Gandhi found he had one card left to play—his own arrest. It would be a risky gambit; his last jailing had deflated the movement. Gandhi nonetheless boldly challenged Smuts to arrest him, saying that while he was the one who had encouraged his countrymen to defy the law—as a result of which they had been imprisoned—he was “still at large.” He even taunted Smuts: “Is it courageous to leave me alone and harass poor Indians?”54

  When Gandhi failed to draw a reaction from Smuts and when London failed to intervene, Gandhi put in motion a plan that would make it practically impossible for Smuts not to arrest him. Gandhi would travel south to Natal, ostensibly to offer legal counsel to some Indians there, but knowing of course that he had to cross the Natal-Transvaal border on his journey back to Johannesburg. He knew that, when he did so, the authorities would be confronted with the most prominent Indian in all of South Africa—a person who had no registration papers and who would resist being fingerprinted.

  When Gandhi presented himself at the Volksrust border crossing on October 7, he did in fact refuse to comply with requests for him to produce registration papers and to allow his thumb impression to be taken. He was promptly taken into custody by the Transvaal authorities, along with a number of his companions. After some period of confusion over what the exact charges should be, word came from Preto
ria that he was to be charged with violating the Act by reason of his failure to provide his thumb impression for identification. Gandhi refused bail and remained in the Volksrust jail until his trial on October 14.

  The prosecution chose to try him along with seventeen other Indian resisters. Gandhi represented not only himself but all the other defendants as well. His performance on this day is a microcosm of his legal work during this period—and the fundamental problem it created.

  For fourteen of the seventeen defendants, the record discloses how Gandhi handled the defense. In three remaining instances it does not. In the fourteen cases about which we do have information, Gandhi chose to mount legal defenses for every one of the defendants rather than to quietly accept the punishment.55

  For every one of these defendants, Gandhi found it impossible to remain silent and to counsel his clients to accept their punishment and silently suffer—despite his knowledge of the salutary effects of self-suffering on the public. He raised defenses instead of accepting punishment. He felt compelled to present evidence, cross-examine witnesses, and make arguments for his clients’ innocence. As he stood in the courtroom, facing a hostile magistrate and a prosecutor determined to punish Indian defendants, he could not help but be a lawyer. And the lawyer desirous of playing the lawyer’s role overcame the nonviolent strategist who possessed a remarkably sophisticated understanding of the power of self-suffering.

  He had been practicing law in South Africa for more than fifteen years. His identity was that of Barrister Gandhi, Advocate Gandhi, Solicitor Gandhi.56 This was who he was. If he was in court, he was going to use his standing there to speak and act. This is what lawyers do for their clients.

  Earlier Gandhi had managed to give himself and Harilal an exemption from this self-treatment. And he would give himself an exemption again on Wednesday, October 14, 1908. He would mount no defense for himself. Rather, when his own case was finally called, Gandhi pled guilty. In a brief statement to the court, he made three points. First, the Act offended the consciences of South Africa’s Indians. Second, in light of this affront, he advised his fellow Indians to defy the Act. Third, their disobedience notwithstanding, Indian resisters believed in the rule of law and accepted the sanctions imposed by the law for their disobedience.

  His statement made, Gandhi concluded: “I am now before the Court to suffer any penalty that may be inflicted on me. I wish to thank the prosecution and the public for having extended to me the ordinary courtesies.”

  Even the magistrate—who was openly hostile to Gandhi, but who, in a moment, would impose a sentence significantly less severe than that sought by the prosecutor—recognized the power in Gandhi’s nonresistance to punishment. While he disagreed with Gandhi’s point of view, he conceded that he did understand that Gandhi was suffering for his country.

  This was the sort of performance that could open ears to the Indians’ cries.

  Gandhi’s inability to bring this same powerful, entrancing, and moving approach to the cases of others whom he represented harmed the movement. By pleading his clients not guilty and by mounting defenses, he obscured their suffering from view, thus sapping the sacrifices of many jail-going Indians of the capacity to generate sympathy and create change.

  Gandhi’s role as a lawyer—as he conceived that role—was interfering with his role as a political organizer and civil disobedient.

  Something had to give.

  EIGHTEEN

  * * *

  Closing Arguments

  We shall have to consider how we can realize the self and how serve our country.

  GANDHI

  BY THE TIME GANDHI ENTERED the Volksrust jail on October 14, 1908—twelve days after his thirty-ninth birthday—he had spent more than half his life in the study and practice of law. In some ways the law had been very good to Gandhi, his family, and the movement for Indian rights in South Africa. Gandhi’s status as a lawyer had given him credibility with the authorities and with his own community. His practice had provided his immediate family and, at times, his extended family, too, with income. Indeed, Gandhi’s practice was so financially successful that he was able to funnel huge sums of money into the Indian movement’s operations.1

  But in an arena more important than money, the law was not good to Gandhi and his movement. Gandhi’s many encounters with litigation as a tool of social change told another story altogether. His attack against Law 3 of 1885 was rebuffed, first by a noted jurist in an absurd arbitration decision and then predictably by the High Court of the South African Republic. He suffered the painful recognition, when fighting the DLA in Durban, that the Natal judiciary lacked the political independence necessary to invalidate the deliberately discriminatory application of this piece of legislation. His arguments on behalf of Indian property rights were rejected by the judges of the Transvaal Supreme Court. After building an airtight case against the officials of the Asiatic Permit Office and handing it off to the prosecutor, Gandhi was left to stand by helplessly as a white jury acquitted the obviously corrupt defendants. He was stopped cold in his effort to use the courts to integrate Johannesburg’s segregated tram system. When the passive resistance movement sought the return of registration applications, the Transvaal Supreme Court backed Jan Christian Smuts and his repressive government rather than Gandhi and the Indians. And it was the court system that imprisoned Thambi Naidoo and Harilal Gandhi and Sorabji Shapurji and hundreds of other sincere and conscientious Indians whose only crime was to ask for a small measure of human equality.

  With his confidence in the courts slowly but ineluctably disappearing, Gandhi experimented with civil disobedience in 1908. He found that when it came to working with his fellow disobedients, he could not relate to them except as a traditional courtroom lawyer—pleading them not guilty, mounting defenses, and challenging the prosecution—all at a time when he knew from experience that such tactics were more often than not fruitless. Their use only infrequently produced acquittals. More significantly, they failed to lead to social change. And they were even less effective for the simpler goal of garnering attention for the cause of Indian rights than were standing mute and willingly accepting the suffering inflicted by the courts—a response to prosecution that he allowed for himself and that not only got attention but had some potential for moving the feelings of others.

  Over the course of his professional career, Gandhi intermittently expressed a desire to abandon the practice of law. Aware of the substantial advantages his practice had brought him and his community, he turned his back on that notion every time he considered it. As he did so, however, the movement’s accumulated failures in the courts remained a weight on him and persistently goaded him to return to the question of quitting the profession. Should he remain a lawyer? Or should he instead embrace the life of a full-time resister and civil disobedient? Even with the solitude and perspective afforded him by two months in jail in late 1908, Gandhi could not come to a decision.

  He needed a public stage on which to rehearse his answers to both sides of the question, experiment with them, and finally settle the argument he was having with himself.

  THE ARGUMENT FOR SACRIFICE, SUFFERING, AND CIVIL DISOBEDIENCE

  After a term of two months and ten days, Gandhi was released from the Volksrust jail on December 12. Not able to contain it within himself a moment longer, the argument for civil disobedience over litigation came pouring out of him that same day in a speech to his supporters in Johannesburg:

  In a country where people suffer injustice and oppression and are denied their . . . rights, their real duty lies in suffering imprisonment. . . . This, I think, is the true meaning of religion for those who have faith in God.

  . . . [T]he outcome of our campaign does not depend upon whether we win or lose in the Supreme Court. We should rather, if need be, bear separation from our families, sacrifice our property for the sake of truth, endure whatever other hardships we may encounter and thus make the voice of truth heard in the Divine Court. When the echoes
of that voice strike the ears of General Smuts, his conscience will be stirred and he will acknowledge our rights, will see that we invite suffering in order to secure them, that we have suffered more than enough. It is then that we shall get what we have been demanding. It is not the Imperial Government that will secure you your rights; you will get them only from God. If you fight truthfully with Him as your witness, your bonds will be loosened. . . .

  . . . God is present everywhere; He sees and hears everything. I am sure that we shall be free when that God stirs . . . [our opponents’] conscience. We do not sacrifice as much as we should. The moment we do so, our fetters will fall away.2

  There is no more explicit explanation of Gandhi’s argument for civil disobedience over litigation than this tribute to suffering’s ability to create change.3 In an argument in which Gandhi’s faith in civil disobedience appears inseparable from his faith in God, he maintains that undeserved suffering will move both God and the consciences of the Indians’ opponents. Once moved, God will grant the Indians their freedom. Once moved, Smuts will recognize their rights.

  In this process of change, human courts would make no contribution.4

  COULD THE LEGAL SYSTEM YET BE MADE TO WORK?

  As powerful a rejection of the courts as this speech was, Gandhi remained less than fully convinced. In mid-December he fell back upon litigation and his professional role, experimenting with the representation of a large group of Indians who had been arrested while picketing the Johannesburg registration office. As if to give the legal system another chance to make its case, there was lawyer Gandhi—barely a week removed from his Johannesburg speech—in front of the magistrate, pleading his clients not guilty, conducting the defense, and trying a new approach to making the courts work for the Indian cause.5