M.K._Gandhi_attorney_at_law___the_man_before_the_Mahatma-University_of_California_Press_(2013).pdf

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Unformatted text preview: M. K. Gandhi, Attorney at Law The publisher gratefully acknowledges the generous support of the General Endowment Fund of the University of California Press Foundation. M. K. Gandhi, Attorney at Law the man before the mahatma Charles R. DiSalvo university of califor nia pr ess ber keley los angeles london University of California Press, one of the most distinguished university presses in the United States, enriches lives around the world by advancing scholarship in the humanities, social sciences, and natural sciences. Its activities are supported by the UC Press Foundation and by philanthropic contributions from individuals and institutions. For more information, visit . University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England © 2013 by Charles R. DiSalvo Library of Congress Cataloging-in-Publication Data DiSalvo, Charles R., 1948–. M.K. Gandhi, attorney at law : the man before the Mahatma / Charles R. DiSalvo. p. cm. Includes bibliographical references and index. isbn 978-0-520-28015-1 (cloth : alk. paper) 1. Gandhi, Mahatma, 1869–1948. 2. Lawyers—India—Biography. 3. Gandhi, Mahatma, 1869–1948—Travel—South Africa. 4. South Africa—Politics and government—1836–1909. I. Title. DS481.G3D473 2013 340.092—dc23 [B] 2013021967 Manufactured in the United States of America 22 21 20 19 18 17 16 15 14 10 9 8 7 6 5 4 3 2 1 13 In keeping with a commitment to support environmentally responsible and sustainable printing practices, UC Press has printed this book on Natures Natural, a fiber that contains 30% post-consumer waste and meets the minimum requirements of ansi/niso z39.48-1992 (r 1997) (Permanence of Paper). To Kathleen con t en ts Introduction xi 1 2 3 • • Dispatched to London 1 • The Barrister Who Couldn’t Speak 17 An Abundant and Regular Supply of Labour 31 4 Dada Abdulla’s White Elephant 36 • 5 Not a White Barrister 49 • 6 Formation Lessons 67 • 7 Waller’s Question 84 • 8 9 10 A Public Man 95 • To Maritzburg 104 • Moth and Flame 126 • 11 12 • Sacrifice 138 Transition and the Transvaal 146 13 • 14 15 • • No Bed of Roses 159 Disobedience 180 • Courthouse to Jailhouse 197 16 • Malpractice 216 17 Courtroom as Laboratory 227 • 18 • Closing Arguments 249 Mohandas K. Gandhi Chronology 269 Abbreviations 273 Notes 275 Sources 311 Acknowledgments 323 Index 327 Illustrations follow page 196 viii • c on t e n t s South Africa in Gandhi’s time. Courtesy of Cornell University Press. i n t roduct ion To other countries I may go as a tourist, but to India I come as a pilgrim. m a rt i n lu t h e r k i ng , j r . , on the occasion of his visit to India, 1959 the image the world has of Mohandas Gandhi is a stark one. Say the name “Gandhi,” and the listener invariably conjures up a vision of an elderly, unassuming, bald-headed man. He peers at us through well-worn wire-rimmed glasses, notable because they constitute one of the few items owned by one who has stripped himself of virtually all material possessions. As we see him, he wears not manufactured clothing from England’s factories, but plain, white, homespun cotton from India’s fields—and a minimum of that, too. He is an ascetic man: he prays, he keeps silence, he fasts, he refrains from wine, meat, and sexual relations. He knows the strength he has in the political arena is derived from decidedly higher sources: his clear and unswerving devotion to the cause of Indian freedom and a view of life that sees the spiritual as the underpinning of the political. There is, however, another Gandhi. We find a photograph of him in the Sabarmati Ashram in Ahmedabad, India. The place is Johannesburg, the year about 1905. In this picture a tie, a starched shirt, and a three-piece suit replace the homespun. A younger Gandhi, with a head of hair and a striking mustache, sits with authority in an office chair placed outdoors for the occasion of this photograph. Surrounding him are four members of his staff, including, on his immediate left, the smiling Sonja Schlesin, his longtime secretary, and, on his immediate right, H. S. L. Polak, his trusted associate. xi Dominating the picture, and found slightly above Gandhi’s head, is a large opaque window in the center of a brick wall with these words carefully arranged on it: “M. K. Gandhi. Attorney.” Despite his having studied and practiced law for twenty-three years (1888–1911), this is the Gandhi about whom the world knows little. My own image of Gandhi had always been that of the ascetic—until 1978, when I encountered a small volume entitled The Law and Lawyers. Gandhi was named as the author, but I quickly noted it was not a monograph by Gandhi but rather a collection of statements he made over the course of his life about the law and lawyers, ably compiled and edited by S. B. Kher. In it I learned for the first time that Gandhi himself had practiced law—for a short time in India, but chiefly in South Africa, where he worked and resided for the better part of two decades. Curious, I headed for the library to locate a biography of his life as a lawyer. There was none. Because the library was a superb one (that of the University of Chicago Law School), I felt relatively secure in concluding that none had been written. I resorted to the standard biographies. Relying almost entirely on what little Gandhi himself had written about his time in the law, they did little more than acknowledge in passing his having studied and practiced law. No one, it seemed, had made an investigation of his long years in the law. No one had asked whether his professional experiences influenced the development of his philosophy and practice of civil disobedience. No one had explored how his legal career shaped the man. It was as if the two decades Gandhi had spent in the law had been declared irrelevant by all his many biographers. Th is was as stunning as it was inexplicable. Civil disobedience is the conscientious breaking of the law. Gandhi was a civil disobedient—and became one while he was a practicing member of the legal profession. Was there no relationship between Gandhi’s practice of law and his embrace of civil disobedience? Was there no relationship between Gandhi’s practice of law and the person he became over those years? I set about writing this biography of Gandhi’s life as a lawyer to answer those questions and to explain how Gandhi’s experience as a lawyer set him on a path that would lead to his being one of the preeminent fi gures of the twentieth century—with a dramatic impact on the twenty-fi rst. xii • i n t roduc t ion gandhi’s experiences in the law Had Gandhi become the physician he wanted to become rather than the lawyer his family insisted he become, it is quite likely that the Indian independence movement would have taken an entirely different trajectory, revolutions around the globe would have more often been violent rather than nonviolent, and Mohandas K. Gandhi would not have developed into India’s leading twentieth-century nationalist. But the man before the Mahatma did become a lawyer—and that made all the difference. That and the South African legal system. Sent abroad as a novice lawyer, it was Gandhi’s intention simply to earn some money for himself and his family. Before long, however, he found himself at the center of the fight for Indian civil rights in British South Africa. Because he had been trained for the bar in London, Gandhi had come to take British fair play as a settled expectation that he then projected onto the courts of Britain’s South African colonies. So it was quite natural for the young lawyer to look to the legal system for help in defending against attacks on Indian rights. Gandhi’s belief in the capacity of the courts to render justice was so strong that in South Africa he repeatedly knocked on the legal system’s door for justice for his community. The door rarely opened. He kept knocking. The more he knocked, the less frequently it opened. This repeated, persistent, and finally predictable refusal of the legal system to render justice to South Africa’s Indians slowly but inexorably frustrated Gandhi. It drove the lawyer out of the legal system—as most of us understand it—and into the arms of civil disobedience. I say “as most of us understand it.” It is true that Gandhi eventually lost faith in the traditional legal system—courts, judges, lawyers, litigation—but he never lost faith in the law. At the end of his period of experimentation with civil disobedience in South Africa, he understood civil disobedience actually to be an expression of one’s highest respect for the law. A choice presents itself to every resister who breaks the law in the course of opposing an oppressive regime: to accept responsibility and punishment or to avoid them. In Gandhi’s time in South Africa, both responses to this choice were on display. The Boers (descendants of the Dutch settlers whom the British displaced) felt oppressed by the British and took up arms against them. No Boer openly opposed the British and stood by to be arrested and punished. By contrast, Gandhi and the Indians did openly oppose the British, broke South African laws, and accepted their prosecution and i n t roduc t ion • xiii punishment. This put Gandhi and his followers firmly under the law’s ultimate dominion—which is just where Gandhi, who had a great deal of esteem for the law, wanted to be. Gandhi’s goal was, in large part, to change the mind of the oppressor. In South Africa Gandhi was feeling his way toward an understanding of the dynamic by which civil disobedience creates social and political change. That dynamic relies on the power of willingly accepted self-suffering to awaken and convince the public of the virtue of the disobedient’s cause, such that the public sympathizes with the disobedient and then puts pressure on decisionmakers to redress the problem. Gandhi conceived, rightly so, of the willingness to endure suffering and accept punishment as a sign of the disobedient’s continuing faith in the law—a grand system understood as transcending courts, judges, lawyers, and litigation—to do justice. And it was the willingness to be ultimately governed by the law that Gandhi saw as a critical element in changing the mind of the oppressor. In the end, Gandhi learned how to use the legal system against itself to transform injustice into justice. From all the lessons Gandhi learned in the practice of law, this lesson that he learned in South Africa and acted on in India was the single most important key for opening the door to freedom in India. the law: a laboratory for personal change Gandhi’s experiences as a lawyer matter not only because it was in the context of his law practice that he developed his philosophy and practice of civil disobedience, but also because his time in the law readied the man for leadership in India. A South African law practice was the perfect hothouse for raising the initially shy and retiring Gandhi into a public person. The colonial courts in which Gandhi practiced were then backwoods jurisdictions where the quality of legal talent would not easily scare a timid novice away. At the same time, being in court anywhere requires a certain amount of courage. Repeatedly advocating before judges and engaging with opponents in courtrooms and a range of other settings had their effect on Gandhi. The law provided him with confidence. The law made him a leader. The law gave him his voice. Moreover, his South African law practice provided Gandhi with an identity. The London-trained barrister received the instant respect of his relatively uneducated countrymen in South Africa. They naturally turned to him—the xiv • i n t roduc t ion only Indian lawyer in an otherwise completely European bar—for advice and leadership. Gandhi also earned the respect of some of his opponents in the bar and in politics, who recognized and valued his sincerity, his intellect, and his thoroughness. The psychological security he derived from having a professional identity, however, did not protect him from the hard edges of law practice. It was as a lawyer that Gandhi learned how to negotiate with the most skilled bargainers. There were times when he showed real talent for it—such as when he negotiated a partnership agreement with an older, seasoned lawyer in the Durban bar. There were other times when he was sent away licking his wounds. Gandhi and the Transvaal colonial secretary, Jan Christian Smuts, spent a good deal of time together negotiating over government recognition of Indian rights—and, after a settlement had been reached, Gandhi spent a good deal of time afterward trying to figure out how he had been had. As a result, when Gandhi sat down in India with Viceroy Irwin years later to negotiate the Gandhi-Irwin Pact, he did so as one who had been schooled in negotiating with the most difficult negotiators the colonial world had to offer. In other contexts, too, Gandhi was toughened and prepared for India. Racist magistrates before whom he constantly appeared had to be tangled with, as did racist functionaries in local and provincial governments. Liars, like the Transvaal registrar of Asiatics, Montfort Chamney, had to be confronted. Corrupt officials, like those in the Transvaal’s Asiatic Office, had to be faced down. And rebels in his own camp, like the former clients who beat him to within an inch of his life, had to be endured. Battle-scarred, Gandhi emerged from all this intact—and ready for all the challenges India could throw at him. What enabled him to survive this trying process of preparation? Role-differentiated behavior is an occupational hazard for lawyers. The adversary system, with party pitted against party, encourages it. There is no impartial investigator of the facts in most legal settings under this system. Rather, the truth, it is said, emerges in the mind of the judge or jury when all sides to a dispute, partisan to the core, zealously investigate their cases and present them to a neutral court. This arrangement permits lawyers to look to the system to produce justice, rather than to themselves. Importantly, it excuses lawyers from having to take responsibility for the positions they advocate. The result is a legal culture in which many lawyers believe they are not morally responsible for their professional behavior and there is no need for their professional conduct to be i n t roduc t ion • xv consistent with their personal morality. The lawyer’s job is simply to play a part. Lawyers thus rationalize professional behavior that is inconsistent with their personal morality by saying that if each player in the system vigorously plays his or her role, the system will take over and sort both the truth and justice out. There is a trace of role-differentiated behavior in Gandhi’s early practice. In representing his wealthy commercial clients, he finds himself taking actions he would never take on his own as an independent moral agent. Gandhi, however, evolves. In the long arc of his practice he moves away from role-differentiated behavior. At the end, there is almost no difference between Gandhi’s morality, on the one hand, and his professional behavior, on the other. Rather, they reflect each other. It is this merger in South Africa of the man and the professional that demonstrates to him the power to be gained from personal integrity and that serves as a precedent for uniting his spirituality with his politics in India. civil disobedience: its purposes The notion of civil disobedience developed by Gandhi in South Africa did not suddenly spring forth from him in its full maturity. It emerged in an evolutionary way—and did so as a result of a series of bold experiments. To understand these experiments as well as the civil disobedience campaigns Gandhi would later lead in India, an overview of the purposes to which civil disobedience can be put is necessary. Over its long history, its practitioners have found civil disobedience useful for a variety of aims. While it is certainly true that a single civilly disobedient act often involves multiple, interrelated purposes, it is helpful for understanding Gandhi’s experiments with civil disobedience to identify its most salient discrete purposes and to give examples of each. Moving from the simplest to the most complex, these are as follows. Honoring one’s conscience. While much civil disobedience has multiple motives, a disobedient might defy the law principally for reasons of conscience. Such a disobedient may have little concern for larger political, social, or cultural goals; this disobedient’s primary motivation simply may be to act in a manner consistent with his or her own conscience by protesting a wrong. In this vein are those, for example, who engage in the Plowshares civil disobedience movement against nuclear weapons by trespassing on sites that have xvi • i n t roduc t ion these weapons. They consistently say they are more interested in being faithful to the Christian gospel than being politically effective.1 Testing the law. Often the quickest—and in some circumstances the only— way to get a ruling on the validity of a law is to break the law and thus force a criminal prosecution of the disobedient. In that event, a forum is created for the disobedient to mount his or her argument to a court against the validity of the law as part of the disobedient’s defense. This was precisely the purpose for which five African Americans in 1964 entered a Louisiana public library designated by the local government for whites only. To challenge this discrimination, the men occupied the library’s reading room and refused to leave when asked to do so. They were arrested for breaching the peace. In defending against this charge, the disobedients were able to attack the library’s segregation as unconstitutional. Not only did the United States Supreme Court agree, but the Court also ruled that the disobedients had a constitutional right to mount their protest.2 Advancing the debate. When public discussion of a vital issue is stagnant or nonexistent, civil disobedience can cause discussion to occur in a higher key or to arise for the first time. A disobedient’s act, if sufficiently out of the ordinary and sufficiently open, attracts the attention of the media and the public. Debate on the substantive issue often follows. Susan B. Anthony, the great American advocate of woman’s suffrage, knew this purpose well. In 1872, she attempted to vote when she knew she was prohibited from doing so on the grounds of gender. Her prosecution and trial made for front-page news all across the United States, stirring up a discussion of women’s rights as no other single act had done.3 Creating change. Civil disobedience can be used to create a variety of forms of change—political, social, cultural, legal, and more. It often does so through what is now a fairly well established dynamic. The disobedient breaks a law; the disobedient suffers; the public takes note of the suffering and inquires as to the reason for the disobedient’s action; the public sympathizes with the disobedient; the public puts pressure for change on those in power; and those in power react by enacting curative, institutional reform. While this dynamic does not fully explain every case of successful civil disobedience undertaken to create change, it does explain many such cases and it does highlight the critical role self-suffering plays in a civil disobedience campaign to create change.4 i n t roduc t ion • xvii A leading example of civil disobedience undertaken to create change occurred in 1961 when equality activists boarded passenger buses in Washington, D.C., with the intent to travel to New Orleans and to challenge racial segregation in bus stations along the way. As the Freedom Riders moved from terminal to terminal, they drew the attention of the media, the public, and state and federal governments to the segregated terminals, particularly when they were severely beaten, their ...
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