ASK any lawyer. The law changes those who study and practise it.

Never was this truer than in the case of Mohandas K. Gandhi. After being sent off to study law in London at the age of eighteen and then spending the better part of the following two decades practising law in British colonies in South Africa, Gandhi returned home to India at the age of forty-five a different man altogether. In the interim, the law not only helped transform Gandhi’s personality, it offered him a laboratory for creating his philosophy of nonviolent civil disobedience.

Gandhi’s two decades as a lawyer in India and in colonial South Africa (1891-1911) transformed him in several important ways that made a difference in his ability to lead India’s struggle for independence.

Gandhi’s struggles with shyness and timidity during his early adulthood are well known; he writes about them in his autobiography. He describes, for example, how one of his early court appearances ends in disaster because he was overcome with fear and nervousness. Similarly, on a brief visit to India while he was living in South Africa, he was unable to deliver a speech to a large gathering, handing his notes over to someone else to read his remarks for him.

What is not so well known is how Gandhi faced down his fear and nervousness and moved beyond them. He cured his inability to speak in public by putting himself in a position that gave him no other choice but to speak in public – over and over again. A lawyer is, by definition, a public person, one who is constantly called upon to think, speak and act in public. The forum might be as elevated as a Supreme Court hearing or as pedestrian as a town council meeting. The challenge to the lawyer, however, is always the same: to persuade one’s listeners in a public setting.

When Gandhi set up his law practice in Durban, South Africa, he did so as an advocate who had the right to appear in any court, high or low. And appear he did, litigating cases for his many Indian clients. He also had a vibrant office practice that dealt with a variety of commercial and property issues, which brought him into contact with lawyers, businessmen and government officials. All of these contacts and contexts required Gandhi to think, speak and act in public. By the time he left South Africa, the tongue-tied boy had transformed himself into a confident and competent man who could hold forth to crowds of thousands for hours at a time. Had Gandhi become the physician he originally wanted to be rather than the lawyer he did become, it is doubtful this transformation would ever have taken place.

 

The law also taught Gandhi how to write. Gandhi read carefully written law treatises while a student at the Inns of Court in London. In practice, he was called upon to draft complaints for filing with the courts. Together, these experiences taught Gandhi how to write in a way that was logical, structured, comprehensive and persuasive. His better petitions in South Africa, parts of Hind Swaraj, many of his contributions to Indian Opinion, and many of his voluminous later writings bear testimony to these characteristics.

When Gandhi sat down to negotiate with Lord Irwin in the wake of the salt campaign in the 1930s, Irwin was not facing an amateur negotiator; Gandhi had spent twenty years negotiating settlements for his clients. He first got the chance to put these skills to the test when he negotiated with South Africa’s leader, Jan Christian Smuts. The two lawyers (like Gandhi, Smuts too had prepared for the law in England) butted heads time and again while Gandhi was practising in South Africa. Gandhi did not always meet success in his negotiations with Smuts, but he did learn from them and brought that learning to his negotiations with Irwin and others in India.

The law had one other transformative effect on Gandhi’s personal skill set. It taught him how to organize people. Legal training, with its emphasis on clear analytic structures and lines of authority, changes the way one looks at the world. The world, in this view, is not a roiling, ungovernable mess. Rather, it is malleable matter, able to be shaped and moulded to serve specified ends. The material effect of this attribute on those who study and practice law can be seen in an array of Gandhi’s efforts – among them his establishment and organization of ashrams in South Africa and India, the famine relief efforts he undertook in South Africa, and in his conception and execution of the salt campaign in India. These successes, of course, had more than one cause. One central cause, however, was the experience Gandhi had in the law – experience that enabled him to impose on these undertakings unity, order and structure.

These are some of the discrete skills the law imparted to Gandhi – the ability to think, act, and speak in public, to write, to negotiate, and to organize people, movements, and institutions. These skills readied him for leadership in India.

 

The law helped transform Gandhi into a leader. Perhaps even more importantly, Gandhi’s experience in the law helped give birth to his philosophy and practice of nonviolent civil disobedience.

Gandhi arrived home in India from his law studies in England in 1891. His attempts to establish a law practice were, to the disappointment of his family, largely unsuccessful. When he received an offer of a year’s employment in South Africa in 1893, he embraced the idea. Two Gujarati-speaking Indian merchants with substantial interests in South Africa were entangled in a business dispute. They were already represented by some leading European lawyers. Gandhi’s job, at bottom, was not so much to act as a lawyer in the case but to serve as a translator.

When Gandhi arrived in South Africa in 1893, Indian merchants were meeting with growing commercial success there. In addition, thousands of Indians, who had served out their indentures on South Africa’s tea and sugar plantations, were electing to remain in South Africa. These twin developments created jealousy among the Indian merchants’ European competitors and fear in the hearts of European tradesmen who envisioned freed Indians taking their jobs. The result was a long stream of anti-Indian legislation by the colonial government. When Durban’s Indian merchants saw this movement against them building, they convinced Gandhi to stay behind in South Africa and be their political organizer for the purpose of defeating the government’s efforts.

Gandhi agreed to do this work, but refused to accept pay for it, thinking that no one should be paid for ‘public work’. There was, however, something the merchants could do for him; they could give him legal work. They agreed to do so and Gandhi instantly had something he was never able to establish in India – a thriving law practice.

 

The immediate cause of the merchants’ concern was the intention of the Natal provincial government to deprive Indians of the right to vote. When in the late fall of 1894 Gandhi agreed to stay in Natal and fight the legislature on this issue, the Franchise Law Amendment Bill had already received its second reading and was poised for its third and final reading in early July. Gandhi began his public work by lodging the first of many petitions he was to write while in South Africa with the Natal Legislative Assembly.

This petition, the first known formal handiwork of this novice lawyer, stands as a superb reflection of Gandhi’s developing legal mind. The petition is quite well organized – much like a legal complaint. It cites several authorities as well as the public statements of prominent public figures. It is compactly written, clear, straight-forward and easy to follow. Its tone is polite and deferential, yet firm. There is not so much as a hint of anger, but neither does it lack in confidence. Indeed, it is written with complete self-assurance.

Despite this petition – and two more that Gandhi would later lodge with the legislature – the legislature passed the bill and sent it on to the Governor for his signature. Gandhi petitioned the Governor, but the bill was signed. The home government had to approve the petition. Gandhi petitioned London, tendering a document that carried on it the signatures of 10,000 of Gandhi’s Indian compatriots. The British government approved the bill with only minor modifications.

 

Five petitions. Virtually no effect. This was not the end of anti-Indian legislation. When the Natal legislature convened in early 1897, it had before it four pieces of proposed legislation, all opposed by the Indian community: the Quarantine Act, the Uncovenanted Indians Act, the Immigration Restriction Act, and the Dealers’ Licences Act. Together these acts would block Indian immigration, make life uncomfortable for Indians already in the colony, and extinguish the capacity of Indian businessmen to compete with Europeans.

Gandhi’s tactic in response? More petitions. He filed a fifty-four page petition with the Secretary of State for the Colonies, two shorter petitions with the Natal Parliament, and a second petition with the Secretary of State for the Colonies. These efforts met with the same response as his previous petitioning efforts: they were, for all practical purposes, ignored by their recipients.

Gandhi’s faith in reason and his expectation of British fair play under-girded his petitioning work. The constant and repeated failure of his petitions, however, eventually forced him to abandon petitioning and to absorb a pivotal first lesson: the law is rarely changed by appeals to reason and fairness alone.

 

Gandhi was, to some degree, a product of his age. Petitions were in vogue. In Gandhi’s case, however, belief in their efficacy gradually slipped away, not only by reason of the fairly steady failure of his efforts but also by the contemporaneous allure of a different approach – litigation.

Gandhi did not take going to court lightly. Litigation was a sign of the failure of the parties to come together. Petitioning, however, had no effect on white leadership in either South Africa or in the United Kingdom. The failure of petitioning taught Gandhi that what an oppressed people needed was power – power that could be exercised over one’s opponents. Was litigation the source of that power?

A victory in Dundee led Gandhi to think that it might be. A large group of Indians who were residents of Natal had been arrested at the Natal-Transvaal border for violating Natal’s anti-Indian immigration law. Gandhi rushed up to the scene and argued with the local magistrate that the Indians should be released. The magistrate agreed and set Gandhi’s Indian clients free.

This was a heady triumph of the law over racism for the fledgling lawyer. But Gandhi’s subsequent experiences with the courts showed that the potential represented by the Dundee victory was but a mirage.

In the 1890s, the main engine of the European establishment’s attack on rising Indian economic power was the Dealers’ Licenses Act. By the terms of this act, the Natal government required businesses to hold licenses issued by licensing officers employed by town councils. The standards articulated in the act for issuing such licenses were intentionally vague and imprecise, thereby permitting the government to exercise enormous discretion over who received such licenses. The openly discussed purpose of the legislation was to put Indians out of business by denying licenses to them – and that is how the act was used.

In response, Gandhi, working in tandem with Frederick Laughton, a sympathetic and highly skilled Durban lawyer, conducted a court campaign against the act. The two lawyers succeeded in convincing the Natal Supreme Court to order licensing officers to provide reasons for the denials of licenses. They also persuaded the court to require that town councils employ fair procedures in hearing appeals from the decisions of licensing officers. But these were their only significant victories – victories giving the Indians procedural but not substantive rights. Gandhi and Laughton never asked the courts to rule on the ultimate question: would the law permit a town council to deny an applicant a license solely because the applicant was an Indian?

 

A similar reluctance was on exhibit with regard to Gandhi’s attack on another form of anti-Indian discrimination. Durban mandated a policy of segregation in the use of the town’s rickshaws. Gandhi approached both the Durban city government and the Governor of Natal with his legal argument that rickshaw discrimination violated the municipal corporations law. His argument was ignored – and Gandhi never followed up by taking the issue to the courts.

In the Transvaal it was trams, not rickshaws, from which Indians were barred. Sending Indian riders on to white-only cars, a more experienced Gandhi now employed the court system to test the validity of the laws that held tram car segregation in place. This strategy resulted in Indian victories in early skirmishes, but the white defendants deprived the Indians of ultimate victory when they cut off Gandhi’s chances of getting an authoritative Supreme Court ruling.

If it were needed, a final nail in the coffin of Gandhi’s belief in the court system as a tool for social change came in early 1911. Laughton convinced the Natal Supreme Court to order the immigration authorities to allow a certain group of Indian boat passengers to disembark in Durban. Those authorities defied the court’s order. In the face of this defiance, the court surrendered, stating that ‘it could not order the government to do anything.’ Gandhi looked on as the rule of law crumbled in front of him. If the government, anti-Indian as it was, controlled the court, what hope was there for legal vindication of Indian rights?

The lesson the law taught Gandhi here? That the legal system is a very limited tool for creating social change. A procedural victory might be won here and there. In the end, however, 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.

 

Petitions failed Gandhi. Litigation and legal argumentation were limited in their effectiveness. So did the law have anything left to offer Gandhi? Surprisingly, yes. Driven away from petitioning, litigating, and legal argumentation by their failures, Gandhi found in the law a way it could be used against itself to create social change – change even in the law itself. That way was disobedience.

Disobedience can create social change in several ways, two of which are especially relevant here. The first involves the withdrawal of consent on a mass scale. The purpose of this type of disobedience is to disempower the government or one of its policies by removing the cooperation of the public on which it depends. The resistance to regimes in Serbia in 2000 and Tunisia in 2011 are examples of effective consent-withdrawing disobedience on a grand scale.

 

The second method by which disobedience can create social change is through the creative use of self-suffering. This method begins with openly-conducted lawbreaking, continues with the willing acceptance of suffering by the disobedient, leads to public sympathy and pressure for change upon decisionmakers, and ends in curative, institutional reform. Examples from the twentieth century include the Dharasana salt raid and the Freedom Rides designed to integrate American bus terminals. Gandhi began to develop his understanding of these two modes of disobedience when he was in South Africa.

By 1908 – when the Transvaal government was in the midst of a campaign to require Indians to register and be fingerprinted – the philosopher and theologian in Gandhi understood self-suffering as a spiritual discipline; the lawyer and political organizer in him also clearly had some sense of it as a tactical weapon, but this understanding, while developing, was incomplete. As the Transvaal government mounted its campaign against the Indian community, Gandhi repeatedly wrote and spoke about the role suffering could play in changing the minds of both onlookers and oppressors. What the press reported him saying just before his 1908 imprisonment is illustrative:

He had sufficient faith in human nature to believe that when the Colonists saw husbands torn away from their wives, when Colonists found that wives were left to be starved to death, and husbands stranded... then the Colonists of the Transvaal themselves would tell General Smuts that he had not received a mandate to treat human beings in that fashion.¹

These sentiments were expressed by Gandhi during a period when he was consumed with his in-court representation of Indians who had resisted the registration law. His typical conduct as a defence lawyer in those cases was completely at odds with what he knew in his heart about self-suffering. Rather than instructing his clients to plead guilty, lawyer Gandhi instead mounted a vigorous defence for them against the efforts of the prosecution to convict. He struggled mightily to see to it that his resister clients did not suffer. As he did this, Gandhi created a picture for the public of resisters actively and strenuously fighting against a result that would subject them to suffering. This was hardly the same picture Gandhi painted when he was contemporaneously expressing his thoughts about self-suffering.

 

Gandhi’s understanding of consent-withdrawing disobedience was initially limited. When he was challenging the segregation of Johannesburg’s trams in 1906, the idea of filling the jails with resisters did not seem to occur to him. When large numbers of Indian resisters defied the Transvaal registration requirement and did begin to fill the jails in 1908, Gandhi was unable to capitalize thanks in part to weaknesses in the structure of his organization. He had not yet mastered the art of organizing and exploiting mass disobedience for the purpose of withdrawing consent.

Gandhi, however, was always experimenting. His understanding of both forms of disobedience would advance. When Gandhi himself was arrested and tried for disobeying the registration law, he experimented with something new – willingly accepting the punishment. There was no plea of not guilty, no defence, no resistance to prosecution. There was only the quiet, willing, and self-sacrificial acceptance of punishment. The public would have no trouble seeing – and perhaps sympathizing with – the suffering of this defendant.

When Gandhi was acting as a lawyer for others, he felt constricted by role. It is the role of the lawyer to defend his client. So, defend he did. When Gandhi was acting as a defendant, he was not constricted by the lawyer’s role. He was free to plead guilty and accept the suffering that would accompany a jail sentence.

This conflict between his perceived role as a lawyer and his dedication to experimentation with disobedience to the law helped lead Gandhi to surrender his practice and become a full-time resister. Released from the confines of a lawyerly role, he now began to see that his fellow resisters could play a role with him in a mass movement by reason of their suffering and by reason of their mass withdrawal of consent.²

Gandhi’s South African experiences in, and his experiments with, the law, were pivotal. They put him on a path to a profound and complete understanding of the potential of mass disobedience, especially when married to willingly accepted suffering, for changing not only hearts, but the law itself.

This revolutionary new approach to change would become the law’s gift to Gandhi – and Gandhi’s gift to India and the world.

 

Footnotes:

1. ‘Meeting of Chinese: Mr. Gandhi’s Exhortation’, The Johannesburg Star, 31 December 1907.

2. The maturation of his understanding first evidences itself in the 1913 Transvaal strike and march and then again in aspects of the salt campaign of 1930.

 

© the author.