M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

  This was Gandhi’s dream, not just for Indian society, but for himself.

  Hind Swaraj was an opportunity to see if he could convince himself that he was right.

  UNDERLINING HIND SWARAJ: THE ARGUMENT IN PRACTICE

  With Hind Swaraj, Gandhi had expressed his frustrations with the law in writing. As if to validate his theoretical disposition against the law, he would now pair this expression with the actual experience of frustration.

  In late December 1909, three Indian merchants were tried for refusing to produce their registration certificates and for being, as a result, prohibited immigrants. Gandhi appeared for the merchants and argued that because his clients had voluntarily registered, they could be guilty only of the first charge and not the second. The magistrate rejected Gandhi’s argument and found all three merchants guilty on both charges.34

  After this loss, Gandhi would never represent a civil disobedient again. We do not know if this was a conscious decision. We do know that the loss in the merchants’ case came just days after Gandhi published Hind Swaraj. We also know that his behavior in the merchants’ case was consistent with his previous practice. During his entire South African period, he never did allow his community to benefit from the power that would have come from allowing his disobedient clients to suffer silently without raising legal defenses—defenses, notably, that usually failed. Silent suffering was a tactic reserved for defendants named Gandhi.35

  Indian merchants in the Krugersdorp location were not interested in silent suffering. In early 1910 the municipal government was attempting to force them out against their will. The municipality was disturbed by the location’s proximity to white areas—and appeared to be using objections to the condition of the Indians’ buildings as a pretext for its position that the Indians should be relocated. Krugersdorp had no hand in the creation of the location—it had been created by the colonial government years earlier over the municipality’s objection—and now it wanted the Indians out. The Indians did not want to move, because they had made substantial property investments. To determine whether removal of the Indians to a new location was desirable and practical, Krugersdorp established a “Committee of Inquiry into the Krugersdorp Indian Locations.” Gandhi appeared at the committee’s hearing on February 17, 1910, to represent the interests of the Indian residents of the location.

  Gandhi was allowed to examine Krugersdorp’s mayor. His goal was to get him to admit that, if the Indians were to address all the alleged deficiencies through the repair of their buildings, the municipality would have no objection to the location remaining where it was. The mayor refused to agree, however, claiming that what was in order was total demolition and rebuilding. When Gandhi asked if it would satisfy the municipality if the Indians did just that, the mayor conceded it would, but only from a sanitary point of view—and that, he made clear, was not the municipality’s ultimate concern.

  Gandhi had not succeeded in winning his point, but had succeeded in making the municipality’s racial motivations clear. That, of course, was no embarrassment in South Africa in 1910 and certainly not enough to stop the committee from recommending that the Indians be forced into a new location.36 The committee, on which his nemesis Montfort Chamney sat, gave Gandhi a cold reminder of the argument for quitting practice: legal skills were an unreliable mechanism for stopping mass injustice in a system controlled by his opponents.37

  By early 1910, with the lessons of these cases and Hind Swaraj behind him, Gandhi faced two powerful arguments for the abandonment of the practice of law. The first was the failure of the courts to serve as an instrument for social change. The second was that the profession led its practitioners into immorality. Gandhi’s last cases would form a response to these arguments.

  COUNTERARGUMENT: VIRTUE IN THE ORDINARY PRACTICE OF LAW

  The final two cases in which Gandhi would be involved had a common characteristic: each involved innocent people who were not themselves resisters, but who were caught up in the resistance movement and needed help. The first was Mahomed Chotabhai, the sixteen-year-old son of the merchant A. E. Chotabhai.

  One Indian complaint about the Act of 1907 had been that it called for the direct registration of minors. The Act of 1908 addressed this concern by providing for the transfer of the “registration of such children to their parents’ certificates.”38 In 1910, the Asiatic Department recognized a flaw in the 1908 act that the department claimed allowed it to deport children of lawful residents (who had been earlier transferred to their parents’ registration certificates) on the grounds that the children, upon turning sixteen, became prohibited immigrants—a paradigmatic instance of following the letter of the law rather than its spirit.

  When Gandhi learned of the government’s attempt to deport young Mahomed, he was appalled. His commentary on the case as it moved from initial decision to final resolution is a window into the thinking of a man who found himself caught between two poles—his desire to have nothing more to do with the practice of law, on the one hand, and, on the other, his particularized knowledge from years of practice that litigation could help individuals in trouble. He let this internal conflict show in the pages of Indian Opinion as the case was starting to make its way through the judicial system: “This move of the . . . Government has . . . a deeper meaning. It shows that the sheet-anchor of our hope lies not in the uncertainty of law suits but in the certainty of passive resistance.”39

  After the Appellate Division of the Supreme Court of the newly formed Union of South Africa had ruled in Chotabhai’s favor, Gandhi took a completely contradictory position, stating that “the community is . . . justified in attaching great importance to the Court’s judgment.”40

  The second case that occupied Gandhi as 1910 drew to a close involved another nonresister caught up in the movement, Rambhabai Sodha. She was the wife of a resister—Ratanshi Sodha, who by the end of 1910 had spent a year and a half in Transvaal jails. Because the family had no means of support with Ratanshi in jail, Gandhi resolved to bring Rambhabai and her children from Natal to the Transvaal, where the community could help support them. This meant Rambhabai had to cross the border without having registered. Gandhi thought that the Transvaal would permit Rambhabai to enter, because the government had shown a steady disinclination to arrest Indian women. Gandhi had even alerted the authorities to Rambhabai’s intentions, confident they would let her pass without trouble.

  They did not. The government arrested her for being a prohibited immigrant. When she was tried, Gandhi argued that she simply was not guilty of the charge brought against her. The law, he maintained, squarely held that if Rambhabai’s husband was not a prohibited immigrant, neither was she. Gandhi called her husband, Ratanshi, to the stand and demonstrated that he had passed the education test when he had entered the country. He was, accordingly, clearly not a prohibited immigrant. It was true he had been arrested, but for refusing to register, not for being a prohibited immigrant. The difference was crucial. If Rambhabai’s husband was not a prohibited immigrant, neither could Rambhabai be a prohibited immigrant. The common law was consistent with this understanding, for it bestowed on women the right to follow their husbands.

  Gandhi’s last argument as a lawyer was as sound an argument as he had ever made.

  In a decision that had to signal once again to Gandhi that the South African courts would never serve as a dependable defender of Indian civil rights, the magistrate rejected Gandhi’s argument, pronounced his client guilty, and sentenced her to a fine of £10 and a one-month prison term.41 On appeal to the Transvaal Provincial Division of the Supreme Court, the court upheld the conviction, but altered the sentence by providing Rambhabai a choice between a fine and a jail term. She appealed once more and lost. Gandhi would not rest. After Rambhabai let it be known that she would not pay the fine, even to the point of suffering a jail term, Gandhi successfully negotiated directly with Smuts on her behalf, persuading him to pledge that under no circumstances would she be sent to prison.42 Gandhi thus
effectively ended the government’s pursuit of Rambhabai.

  Gandhi received no compensation for his work in this his last case, except for the inconvenient lesson that the lawyering skills he condemned in Hind Swaraj were not worthless. They could sometimes be put to use to help blameless people in trouble—like Mahomed Chotabhai and Rambhabai Sodha.

  A LAST INDIAN DEFEAT—AND A LAST LESSON LEARNED

  The Chotabhai and Sodha cases reminded Gandhi that the profession was not without its redeeming qualities.43 Innocents could be helped. Good could be done. There could be virtue in the ordinary practice of law. Helping individuals, however, was not sufficient; Gandhi’s interest was in large-scale change. Whatever flicker of hope he may have harbored about the court system’s capacity to bring about such change, however, had to have been emphatically extinguished by a remarkably emblematic case that seized the attention of both Gandhi and South Africa in October 1910.

  Twenty-one resisters who had been deported from the Transvaal to India had returned, but had been denied permission to land at a series of ports. Finally, they came to Durban. Frederick Laughton, Gandhi’s Natal mentor, sought an order from the Natal Division of the Supreme Court restraining the authorities at the Durban port from deporting the Indians and ordering that they be allowed to land. Surprisingly, the Court issued just such an order and immediately telegraphed it to Durban. The Durban immigration officer defied the Court’s order. He refused to allow the Indians to land, claiming that they could not meet his demand that they post security first. The Indians’ ship, the SS Gertrude Woermann, retreated up the coast to Delagoa Bay.

  Laughton rushed back to the Court to ask it to hold the officer in contempt for having disobeyed its order. During oral argument, the Court asked the government’s lawyer whether he was prepared to admit that the officer had acted contrary to the Court’s order and, moreover, whether the government was prepared to arrange for the Indians’ return passage to Durban. His response was astonishing for what it revealed about the power relationship between the Court and the government. He boldly told the Court that “the Government was not prepared to assent to the course requested by the Court.”

  Faced with ordering the government to do something it plainly would refuse to do, the Court instead chose to back down and save face by adopting the government’s narrative that there had been a “misunderstanding” on the officer’s part. Then the Court made a frank admission: it “would make no comment on the action of the Government in the matter, and felt that it could not order the Government to do anything.” If the Indians wanted to return at their own expense, the Court held, they were free to do so—provided that when they arrived in Durban they posted the nearly impossible £100 bond insisted upon by the officer who had earlier “misunderstood” the Court’s order.

  This was a dramatic capitulation by the Court to the government. Gandhi watched it with great interest—and not simply because of Laughton’s involvement. He understood the magnitude of what had just happened. The rule of law depends, in large part, on the good faith of all parties in honoring an implicit compact that binds all to obey the rulings of the courts, regardless of what the relative political strengths of each party may be in any particular circumstance. Such an arrangement offers hope of both stability and orderly change. When the government in the deportees’ case openly defied the Court, it committed a blatant breach of this compact and signaled its willingness to go to any length to drive the Indians out of the continent.

  The court system rarely sided with the Indians. Now, on this rare occasion when it initially did, it proved impotent. With the Government’s unchecked arrogance staring him in the face, Gandhi would have been foolish to continue to look to the courts for the vindication of Indian rights.

  Gandhi also understood the very human dimension of the government’s defiance. The men on the Woermann, including a resister named Narayansamy, had spent weeks outdoors on deck as their vessel, looking for refuge, was denied entry in port after port. During this time, they were subjected to the harshness of the elements without sufficient clothes, having earlier been robbed of them.44 With Laughton waiting to help, there must have been real hope among these desperate men for relief in Durban. On October 14, however, the immigration officer defied the Court’s order and prevented the Woermann from discharging its passengers. The extended time on deck proved too much for Narayansamy. He died two days later.

  Gandhi condemned the government’s action as “legalized murder”: “The Officer, acting under instructions from the Minister of the Interior . . . gave a meaning to the order of the Court which no common sense man would give, and in indecent haste sent these men to Delagoa Bay with the result that . . . Narayansamy is no more.”45

  And also “no more” was Gandhi’s long-held faith in litigation as a tool for social justice. The argument against practice from the deportees’ case was unmistakably clear—and an echo of Hind Swaraj. The courts could not be counted on to join the attack on basic, underlying norms and on the power establishment of which they themselves were a part.

  LEAVING THE PRACTICE, TO OTHERS

  In 1911, three realities loomed large in Gandhi’s life. The first was the maturation of his understanding of the limitations of South Africa’s court system as an instrument of social change. The deportees’ case closed the book for Gandhi on the argument that litigation could be used for this type of change. His insight into this reality had deepened and taken a final and firm hold of him.

  The second was his expectation that the new Union government would come to a settlement with him and his community over the question of Indian rights to immigrate and travel throughout the new country. While these hopes would eventually be dashed and a final settlement not reached until 1914,46 Gandhi was quite optimistic that 1911 would bring an end to the struggle.

  The third was the move Gandhi had made just a few months earlier to Tolstoy Farm to take up a life more focused on manual labor.47

  All this meant that the time had arrived to make a final break with the profession to which he had dedicated most of his life. The opportunity to do so presented itself in the person of Lewis W. Ritch. Ritch had articled in 1903 in Gandhi’s Johannesburg office before being sent by Gandhi to London, where he both served as the animator of the South African British Indian Committee (SABIC) and had an opportunity to complete his legal training. Now Gandhi’s former clerk was on his way back to South Africa from his SABIC post in London. He had two items on his agenda—continuing to aid the Indian cause and providing for his family. When he arrived in Cape Town, he assumed the role of the Indians’ official representative to the new Union government in the settlement talks. Gandhi remained in Johannesburg, instructing Ritch by telegram and letter. Smuts, however, eventually refused to deal with Ritch.48 As a result, Gandhi and Ritch switched places, with Ritch moving to Johannesburg and Gandhi taking up Ritch’s mission in Cape Town.

  With Ritch in need of income to support his family and Gandhi in need of someone to take over what remained of his practice, Gandhi’s route out of the profession was clear. In April of 1911, Ritch opened his law practice in Gandhi’s office, 21–24 Court Chambers, Rissik Street, Johannesburg.49 Putting the attention on Ritch rather than himself, Gandhi made the announcement to the community in the pages of Indian Opinion: “Mr. Ritch has started legal practice in Johannesburg. . . . Now that he has started practice, it is . . . the community’s duty to extend to him their patronage. We trust all those who need the services of a lawyer will engage Mr. Ritch and so show their readiness to encourage him.”50

  With Ritch installed in his office,51 Gandhi gave vent to his feelings. On May 8, 1911, he wrote to a friend that “I can make at least £200 if I forget all else and only practise. But I am resolved not to have anything to do with that.”52

  By the South African fall of 1911, Gandhi had made his decision. He was resolved to be done with litigation and resolved to be done with practice.

  He was not, however, resolved to be done
with the law. The lesson that Gandhi learned in South Africa was that he had to break the law, and accept the punishment of the law, if he wanted to achieve justice under the law. While it would not do so in the manner he originally expected it would, the law would thus help liberate Gandhi and his people.

  TRANSFORMATION AND FREEDOM

  In the end, Gandhi realized that he had to choose between two fundamentally different futures for himself.

  The first was to continue in a world of legal practice controlled by those who were no friends to the Indian cause. It would be a world in which disappointment would ordinarily be encountered, a world in which victories would almost never be won, a world in which progress, if it were to come at all, would always be incremental and slow. This would be a world that Gandhi understood most men and women to populate—including those concerned with the public good, such as Lewis Ritch and, indeed, the Gandhi of the previous two decades. It would be a world of compromises where aspirations were limited by hard realities: self-interest as a powerful motivation for behavior, the constrictions of time and place on the ordinary person’s vision, and the limitations of all imperfect human institutions—the court system included—to create the good. It would also be a world where even the most self-sacrificing, well-intentioned lawyers would be distracted from their true mission by the prestige, respect, and access to wealth and power the profession enjoys. It would be a world where the signposts were up, the path was well trod, and the journey safe and predictable. At the end would await a numbing and ultimately unfulfilling sense of right order for those who dutifully respond to the world’s expectations.

  The second was to walk through the door opened by civil disobedience, a door leading to an entirely different and challenging world. This would be a world of unlimited possibilities, of a vision beyond the horizon, of aspirations confined only by imagination. It would be a world where the perfect, while never achieved, would be striven after and where saintliness, while never reached, would be prized—a world, in short, where the community might be saved and the law might be faithful to its ideal of equal justice.