M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  During the time Gandhi was in jail, Polak had begun mounting a novel defense. On behalf of Indians charged with a failure to register, he claimed that registration could not be required of the Indians, because the government had not properly appointed a registrar of Asiatics to take their registration applications. This was a clever defense, but one that could serve no useful civil disobedience purpose. It could not advance the public debate on any substantive or determinative issue, it could not lead to the withdrawal of consent, it could not do honor to the defendants’ consciences, and it could not bring the Indians sympathy. It might test the law, but not on an issue of relevance. It was a purely technical defense designed to do nothing other than force an acquittal of the defendants—a handy defense if the Indians were ordinary criminal defendants, but not so useful for defendants out to make a political point.

  Gandhi was nonetheless determined to try out the defense Polak had invented when he represented the pickets. To Gandhi’s undoubted disappointment, the magistrate scoffed at it and convicted the defendants. Another not-guilty plea, another defense, another conviction, another missed opportunity. Gandhi simply did not understand that his courtroom tactics were interfering with the effectiveness of the very disobedience he was encouraging. To the extent the disobedience of his clients could have drawn attention to their cause, his tactics clouded over the substantive issues by diverting attention to a defense that had nothing to do with the merits of the debate. To the extent the disobedience of his clients could have made an appeal to consciences in London and Johannesburg through the quiet acceptance of undeserved suffering, his tactics destroyed this possibility by painting a picture of defendants stoutly resisting suffering.

  The failure of the “no registrar” defense did not end this round of experimentation. In fact, jail had given Gandhi the opportunity to think about yet another form of experimentation with the legal system, one that did elevate the role of suffering, to a fault. The courts in the Transvaal observed that jail sentences were not discouraging Indian merchants from disobeying the licensing laws governing hawking. Accordingly, magistrates began to hand out stiff monetary penalties to the merchants, with no alternative of a jail sentence. The magistrates’ aim was to substantially hurt the businesses of Indian merchants. Gandhi’s goal in January 1909 was to outflank the courts by encouraging convicted Indian businessmen to voluntarily surrender their goods to the European wholesalers from whom they had taken the goods on credit. There would then be nothing for the government to seize upon the merchants’ refusal to pay the civil penalties assessed by the courts. The tactic combined an appeal for sympathy with an attempt at coercion. It would encourage sympathy by showing the willingness of the merchants to suffer large losses. (Indeed, this tactic was emphatically Gandhian in that it called for a commitment on the part of Indian merchants to what could be a huge amount of self-suffering.) It would also threaten economic harm to the European wholesalers with whom the Indian retailers did business and owed money; if the Europeans refused an Indian retailer’s offer, the retailer might become insolvent upon the government’s seizure of the goods, and there would be insufficient assets remaining after liquidation to fully pay all the wholesalers whose goods the Indian retailer had in his store on credit.6 Gandhi hoped the wholesalers would foresee this outcome and avoid it by running the stores themselves, using the Indian owners as their managers. In this way, Gandhi surmised, Indians might be allowed in some fashion to stay in business.

  Gandhi’s threatened tactic got the attention of the European community—but not its sympathy. Rather, European backs stiffened. The executive committee of the Johannesburg Chamber of Commerce, after an emergency meeting, warned the Indians against such a move. The Rand Daily Mail predicted that Gandhi’s tactics would “destroy the last shred of sympathy with the Asiatic cause.”7 The Johannesburg Star referred to any who might follow Gandhi on this course as “deluded faddists.”8

  The chairman of the BIA, the merchant Adam Mahomed Cachalia, had agreed to lead the way. Gandhi represented him in a meeting with his creditors at which Gandhi suggested the creditors take over Cachalia’s business. Cachalia’s European creditors were not about to capitulate, however, and were willing to take some losses for principle. They declined to assume control of the business and instead demanded a cash payment. Cachalia refused to pay. The next week, when the merchants took the initiative by moving a Transvaal court to put Cachalia in full-fledged bankruptcy and to liquidate his business, his lawyer, Mohandas K. Gandhi, was powerless to stop the process.9 Gandhi’s creative but unrealistic experiment with the bankruptcy system had backfired on his client. Not surprisingly, no other Indian merchants followed Cachalia’s example.10

  At the same time as this failure, there was bad news from the Supreme Court in a resistance test case. The Court dismissed the appeal of an Indian claiming the right to enter the colony as a lawful immigrant. This case was followed up in the next several weeks by two more significant Supreme Court cases—one on the question of whether the alleged improper appointment of the registrar of Asiatics invalidated convictions for failure to register (Polak’s argument, but not Polak’s case),11 and the other on the definition of “prohibited immigrant.”12 The Indians lost both cases.

  These defeats added to the palpable sense of the Indian community that its cause was hopeless. That sense was reflected in a steep drop in the number of Indians keeping faith with the resistance movement. By early 1909 almost all Indians had registered under the 1908 act. Gandhi had little popular support for active opposition to the government beyond a small band of hard-core resisters—and most of those were in jail. He himself conceded that “many Indians have given in.”13 The Rand Daily Mail gloated: “The back of the passive resistance campaign has been broken. In asking the traders to take a step which means the sequestration [bankruptcy] of their estates, the leaders of the British Indians have gone further than their fellow-countrymen are prepared to follow.”14

  Gandhi’s most recent experiments with invoking the processes of the legal system had failed. With a stunning rapidity, he once again swung away from the courts and toward the alternative remedy of suffering and civil disobedience of which he had eloquently spoken on his release from jail in December. He would challenge the government to arrest him yet again. In mid-January he traveled back to Natal, entered the Transvaal, was arrested for not having registered, was quickly deported to Natal, returned immediately, and was re-arrested and released on bail. He was allowed to attend to his ailing wife for a period of several weeks before being tried on February 25, 1909. By the time of his trial his movement was almost in full retreat. Nonetheless, in his statement to the court he remained faithful to his previous discipline—he mounted no defense and accepted, indeed invited, punishment:

  I am quite aware that my offence is deliberate and wilful. . . . I maintain the conclusion that, . . . as a citizen of the State and as a man who respects conscience above everything, I must continue to incur the penalties so long as justice, as I conceive it, has not been rendered by the State to a portion of its citizens. I consider myself the greatest offender in the Asiatic struggle, if the conduct that I am pursuing is held to be reprehensible. I, therefore, regret that I am being tried under a clause which does not enable me to ask for a penalty which some of my fellow objectors received, but I ask you to impose on me the highest penalty.15

  After Gandhi thanked the court and the prosecutor for having delayed the trial so that he could attend to his wife, the magistrate sentenced him to a fine of £50 or three months’ imprisonment with hard labor.

  Gandhi brought this round of experimentation to a close.

  He chose jail.

  LONDON AGAIN

  When Gandhi was released from jail in late May 1909, South Africa’s European colonists were in dialogue with London about the formation of the Union of South Africa, a federation of the Cape, the Transvaal, Natal, and the Orange Free State. Believing that their interests also should be represented, the In
dian community decided to send a delegation to the United Kingdom. Although Gandhi’s popularity was at a low point at this time, he was chosen as one of the delegates—thanks to a series of serendipitous events that allowed him to survive a strong challenge to his leadership.16 He had no confidence, however, in the ability of the delegation to do any good, claiming that “passive resisters depend upon their sufferings for relief and not upon the appeal of any deputation.”17 On the other hand, while Gandhi “did not want a deputation to London . . . he evidently did not want to be bypassed if there were one.”18 So, on June 21, 1909, he went—as did Smuts. Gandhi spent about four months in London, during which time all efforts by the Colonial Office to mediate a settlement between the two leaders failed miserably. Gandhi’s time in England, however, was not uneventful—it brought him into contact with a number of Indian nationalists there who subscribed to anarchism as a philosophy. Gandhi felt challenged to “meet their arguments as well as to solve the difficulties of Indians in South Africa who held similar views.” He would have a period of uninterrupted solitude to do just that—and “to demonstrate the sublimity of Satyagraha”—while he was on board the SS Kildonan Castle, the steamer that would carry him home to South Africa.19

  Gandhi’s effort would take the form of writing done by hand on 271 pages of ship stationery at a furious pace over the period November 13–22, 1909.20 The resulting booklet was, as Gandhi described it, “an attempt to see beauty in voluntary simplicity, poverty and slowness.”21 He called it Hind Swarajya (later to be changed by Gandhi to its more familiar title, Hind Swaraj) and published it in his native Gujarati in two installments of Indian Opinion on his return home in December.22 Soon afterward, he would translate it into English, call it Indian Home Rule, and print that version in March 1910.

  HIND SWARAJ: THE ARGUMENT IN WRITING

  Hind Swaraj is not written as a cohesive, unified treatise. Rather, it is a series of questions and answers between an editor and a reader in somewhat the fashion of a Socratic dialogue. It addresses an array of topics from the influence of Giuseppe Mazzini on Italy to the meaning of swaraj.23 The analysis is usually quite brief—most of its twenty chapters are just a few pages long. At the work’s core is Gandhi’s denunciation of Western civilization.24 Gandhi sharply criticizes its manifestations in parliaments, newspapers, machinery, manufacturing, railways, and educational systems. He argues that the West’s choice to emphasize material goods—while ignoring morality and religion—is so wrong-headed that the end of Western civilization will come about as an act of self-destruction.

  Gandhi’s feelings about the matter were quite pronounced and welled up from the deepest parts of him: “The more I observe, the greater is the dissatisfaction with modern life. I see nothing good in it. . . . The fact is that we are all bound to do what we feel is right. And with me I feel that the modern life is not right.”25

  Nor was the law, as a part of modern life, right. Gandhi devotes an entire chapter of Hind Swaraj to a blistering assault on the legal system to which he had belonged for two decades. In conducting this assault, Gandhi articulates—and, in fact, broadens—his argument for leaving the profession. One might expect Gandhi to identify the failure of the court system to bring justice to his people as a fundamental basis of his argument. He does not disappoint. While he is speaking of India, he reflects the hard lesson he has learned from his frustrating attempts to use the South African legal system: “Do you think that it would be possible for the English to carry on their Government without law courts? It is wrong to consider that courts are established for the benefit of the people. Those who want to perpetuate their power do so through the courts.”

  Gandhi has little more to say about the law as a system. Instead, he uses the occasion of Hind Swaraj to give vent to feelings about his fellow practitioners that must have been building in him for some time. He expresses an “abhorrence for the profession” in large part because of the character and behavior of those persons who become lawyers. In Gandhi’s estimation, people who take up the law are lazy. Moreover, they are interested only in enriching themselves, not in serving others.26 They rejoice when people engage in disputes, because it means business for them. Indeed, Gandhi says, lawyers actually stir up disputes to serve their self-interest.

  People who seek to go to court to settle their disputes are blameworthy, too. Men who use courts become “unmanly and cowardly.”27 Gandhi goes so far as to say that “men were less unmanly when they settled their disputes either by fighting or by asking their relatives to decide upon them.” He argues that resolving a dispute by using a third party is as much a sign of savagery as is settling a dispute by fighting. The basis for this position appears to reside in Gandhi’s stated belief that those who resolve disputes for others in courts are not infallible and that the parties themselves, possessed of a unique knowledge of the right, are better equipped to resolve the dispute by themselves. While one might question whether the resort to a courtroom is a “sign of savagery,” one must certainly admit that this notion that parties should resolve disputes on their own is consistent with the larger emphasis in Hind Swaraj on self-rule as self-control and with a growing emphasis by Gandhi on personal morality of which Hind Swaraj is itself a notable part.28

  So intense is Gandhi’s criticism of lawyers and the legal profession that his emphasis on individual personal morality does not preclude him from faulting lawyers for their collective political effect. While conceding that some lawyers have attended to the public interest, he claims they have done so “as men rather than as lawyers.” The larger effect of the profession is to tighten “the English grip.” If lawyers were to cease their work, “English rule would break up in a day.”

  Perhaps the harshest and most important of all the harsh points Gandhi makes in his argument against the profession is that it “teaches immorality.” Lawyers are obligated by professional duty “to side with their clients, and to find out ways and arguments in favour of the clients to which they (the clients) are often strangers.” In other words, Gandhi is arguing that it is in the very nature of the lawyer’s job to focus on and magnify disputes—rather than repress them—by creating from whole cloth purely utilitarian arguments where none existed before. A better way, says Gandhi, is for clients to refrain from going to lawyers, to admit that fault lies on both sides of every dispute, and to just stop quarreling.

  One must wonder whether Gandhi was thinking of himself when he mounted this attack. Was he thinking of his advocacy of the no-registrar defense? Or his successful use of purely technical defenses in the initial Sorabji case?

  Those were arguments to which his clients surely were strangers.

  ROOTS

  To understand Gandhi’s argument that society would be better off without lawyers, one must see it in the context of his overall mission in Hind Swaraj. Gandhi was interested in not merely rejecting the trappings of Western civilization, but in embracing a more authentic and historic Indian way of life—a life that was simpler, was centered in small communities, and was based on a universal observance of morality. It was in such a setting that Gandhi imagined that each person would master self-control, making possible a society free of lawyers, courts, and the regulatory machinery of modern life.29 Lawyers would simply be unnecessary.

  What were the intellectual and experiential roots that gave rise to this thinking? They were many. In his introduction, Gandhi confesses that the ideas in Hind Swaraj were not original with him. Indeed, for the broad framework of his thought Gandhi took inspiration from a wide range of thinkers and activists and from Christian, Muslim, and Hindu scripture.30 Of all these, Sir Henry Sumner Maine’s Village-Communities in the East and West may have had the greatest effect on what Gandhi wrote regarding the legal system. As Anthony Parel, in his review of the influences Gandhi cites, explains:

  It was Maine’s contention that villages in traditional India were representative institutions, and that the ancient village council had enjoyed both quasi-judicial and quasi-l
egislative powers. The introduction of the new utilitarian state, with its new adversarial court system, led to the ruin of the villages as the ultimate unit of national life, shifting . . . their quasi-judicial and quasi-legislative powers to the new breed of lawyers condemned in . . . Hind Swaraj. As far as Gandhi was concerned, this was one of the worst consequences of the introduction of modern civilisation into India. The life of the Indian peasant had become a veritable hell. He had become prey for the greedy urban middle class.31

  While Gandhi’s reading of Maine and others was enormously important to the development of the ideas he expressed in Hind Swaraj, so too was his experience in South Africa’s justice system. Oliver Wendell Holmes once famously wrote, “The life of the law has not been logic; it has been experience.”32 Never was the role of experience more important than in the case of Mohandas K. Gandhi’s transformation from lawyer to civil disobedient. Over the course of his professional career, Gandhi had repeatedly cried out to the court system for justice—and had been rarely heard. Had the court system responded favorably to his pleas, Gandhi would likely have never written chapter 11. But it did respond unfavorably, Gandhi did write chapter 11, and he was thinking—aloud—about turning his back on the profession.

  A month before he wrote Hind Swaraj, he had shared his frustrations with his confidant and colleague Henry Polak. He wrote: “The railways, telegraphs, hospitals, lawyers, doctors, and such like have all to go, and the so-called upper classes have to learn to live conscientiously and religiously and deliberately the simple peasant life, knowing it to be a life giving true happiness.”33