41. Statement of Indians to the Transvaal Constitution Committee, 1906

From the book: A Documentary History of Indian South Africans edited by Surendra Bhana and Bridglal Pachai

At the time that preparations were being made for Response Government in the Transvaal, Indians presented their case before the Constitution Committee. They were worried because past experience had shown that in a colony enjoying self-government, ‘communities that have no voice in the choice of representatives have been very largely neglected.’ Below, the statement dated 29 May 1906, as well as the addendum, is reproduced. The persons who submitted the document were: A. Ganie, president of the British Indian Association, E. S. Coovadia, H. O. Ally, Ebrahim H. Khota, E. M. Patel, J. A. Patel, and M. K. Gandhi. Source: Collected Works of Mahatma Gandhi, vol. 5, pp. 335-44.

The British Indian Association has always admitted the principle of white predominance and has, therefore, no desire to press, on behalf of the community it represents, for any political rights for the sake of them. But past experience shows that in a colony enjoying self-government, communities that have no voice in the choice of representatives, have been very largely neglected.

HISTORY OF BOER ANTI-INDIAN LEGISLATION

There is in the Transvaal, at the present moment, an estimated population of over 12,000 British Indians. Before war, the adult Indian population was 15,000. The first Indian settlers found their way into the Transvaal in the early ‘eighties. They were then free from restrictions of any kind whatsoever. But by their successful enterprise, they aroused the jealousy of white traders and soon there sprang up an anti-Indian agitation initiated by chambers of commerce wherein the British element was predominant.

As a result, the Government of the late President Kruger approached Her late Majesty's Government for permission to pass legislation restrictive of the liberty of British Indians. They proposed to interpret the term 'Natives' occurring in the London Convention, to include Asiatics. This contention Her Majesty's advisers rejected but they were not unwilling, for 'sanitary reasons’ to sanction legislation restricting Asiatics as to their residence to bazaars or locations with the proviso that British Indians of the trader class should be left entirely free. As a result of these negotiations, Law 3 of 1885 as amended in 1886 was passed.

Immediately it became known, a strong protest went up from British Indians. It was then realized that the Law was, contrary to the expectations of Her late Majesty's Government, sought to be enforced against all British Indians. Then followed a series of strong representations by Her late Majesty's Government, addressed to the late Boer Government, culminating in the matter being submitted to the arbitration of the then Chief Justice of the Orange River Colony.

Between 1885 and 1895, therefore, the Law 3 of 1885 practically remained a dead letter, although the Boer Government always threatened to enforce it. The award of the arbitrator did not define the legal position. But it left the question of interpretation of Law 3 of 1885 to the courts of the late Republic. British Indians again appealed to the British Government for protection.

Mr. Chamberlain, whilst he declined to disturb the award, did not abandon the case for the Indian subjects of Her late Majesty. In his dispatch dated the 4th September 1895, he stated:

In conclusion, I would say, that whilst desirous loyally to abide by the award, and to allow it to close the legal and international question in dispute between the two Governments, I reserve to myself the liberty later on to make friendly representations to the South African Republic as to the traders, and possibly to invite the Government to consider whether, when once its legal position has been made good, it would not be wise to review the situation from a new point of view, and decide whether it would not be better in the interests of its own burghers to treat the Indians more generously, and to free itself from even the appearance of countenancing a trade jealousy which, I have some reason to believe, does not emanate from the governing class in the Republic.

This was in 1895.

Owing, then, to such representations, which continued up to the time of the war, the law in question was never effectively enforced, and Indians traded and lived where they liked, in spite of prohibition contemplated by it. But an enforcement of the law being imminent in 1899, it was, among other things, a subject for discussion at the Bloemfontein Conference, which preceded the war. The subject was considered so important by Lord Milner that, when the question of franchise to the Uitlanders seemed to admit of a settlement, Lord Milner cabled that the question of the status of coloured British subject was still outstanding. Lord Lansdowne declared that it was a contributory cause of war.

At the close of the war, and at the time of the Vereeniging compact HisMajesty's Government informed the Boer representatives that the static Coloured persons should be the same in the two Colonies as at the Cape.

THE POSITION TODAY

But today the position is worse than before war. The Progressive party, from which at least Indians as fellow-loyalists and fellow-sufferers before war may claim a fair measure of justice, has stated it as an item of its programme that the liberty of British Indians should be specifically restricted. If its desire were carried out, the position, bad as it is today, would be much worse then. From the Dutch party, it is now impossible to expect any measure of reasonableness. Under Responsible Government, then, British Indians and others similarly situated, unless they are specially protected, stand practically little chance of justice being done to them.

REMEDY

It would, therefore, seem that the granting of the franchise to British Indians would be the most natural means of protecting their interests. It has been urged that the treaty of Vereeniging precluded the possibility of any such provision being made. But it is respectfully submitted that the term 'Natives', whatever else it may mean, can never include British Indians. The statute-book of the Colony is replete with laws which deal with the 'Natives', but which admittedly do not apply to Asiatics or British Indians. The fact that Law 3 of 1885 deals specially with Asiatics and does not apply to the 'Natives' shows, too, that the Transvaal laws have almost invariably distinguished between 'Natives' and 'Asiatics'. Indeed, whereas Natives can, owing to the meaning that the term has borne, hold landed property in the Transvaal, Asiatics cannot. Thus, therefore, so far as the Vereeniging compact is concerned, there appears to be no justification whatever for depriving the Indians of the franchise.

But the committee of the British Indian Association is well aware of the almost unanimous hostility of white races against provision being made in the Constitution for a grant of the franchise to British Indians. If, therefore, such a grant be considered impossible, it is absolutely essential that, apart from the orthodox reservatory clause as to the power of veto over all class legislation, there should be a special clause which shall be a living reality, and which, instead of being exercised only on the rarest occasions, should ensure the fullest protection to the British Indian settlers as to their right to own landed property, freedom of movement, and freedom of trade, subject to such safeguards of a general nature as may be considered necessary, and are made applicable to all, irrespective of race or colour.

Then, and only then, will it be possible, apart from the inherent right that every British subject should have to ordinary civil rights in British dominion for His Majesty's advisers to redeem the promises specifically made to British Indians as to their status in the Transvaal.

Much of what has been stated above applies to the position of British Indians in the Orange River Colony. There the Indian has no rights, save as a domestic servant. An elaborate anti-Asiatic law deprives him of practically all civil liberty.

The following addendum was prepared at the instance of the Constitution committee.

CIVIL DISABILITIES

The commissioners seem to be under the impression that British Indians have full rights in the Transvaal. Unfortunately, as will appear from the schedule attached to the statement, British Indians have very few civil rights; we venture to recapitulate the civil disabilities:

NO OWNERSHIP OF LAND

British Indians cannot own landed property, including even long leases, except in locations or streets set apart for them. There are no streets sets apart, but there are locations far away from town, like the Continental ghettos. And in these, too, except in one or two places, Indians are only monthly squatters. In Pretoria and Potchefstroom alone do they receive twenty-one years' leases. In Germiston, they have even received notices not to receive any tenants on their stands. The notice reads as follows:

You are hereby notified that you are not permitted to sublet rooms to natives or others. Such subletting to any person is a breach of the contract under which you are allowed to hold a stand, and renders you liable to have your stand permit cancelled, and yourself expelled from this location.

So much is this prohibition carried out in practice that Indians are unable to have their mosques transferred in the names of Indian trustees.

REGISTRATION FEE

Indians have to pay a registration fee of £3 on arrival in this country. The Government has now threatened even to require women and children to take out registration certificates.

FOOT-PATHS AND TRAMWAYS

Indians in Pretoria and Johannesburg are prohibited by law from walking on the foot-paths. They, however, do make use of them on sufferance. An attempt was only recently made to prevent them from using the foot-paths. Indians are not allowed to make use of the tram-cars in Pretoria. They are prevented in Johannesburg from riding in the ordinary cars but special trailer cars are occasionally run for Coloured people.

It was contended on behalf of the Indians that, under the ordinary bye-laws, they could insist on riding in the tram-cars. The town council opposed the contention on the ground that certain smallpox regulations that were promulgated by the late Dutch Government in 1897 were still in force. The matter was twice tested before the magistrate at Johannesburg and, each time, the town council lost. It has, therefore, now met the Indians by cancelling the bye-laws regulating the traffic on the tram-cars. In order to gain its end, the town council is now running the municipal cars without any bye-laws whatsoever. Whether under the common law Indians will be able now to make good their right or not is an open question.

It is worthy of note that the above-mentioned cancelling bye-laws was repetitiously published in the following manner:

Prior to the 9th May 1906, in accordance with section 22 of Proclamation 16 of 1901, a notice had been published in a newspaper circulating in then municipality setting forth the general purport of these proposed amendments and stating that they were open to inspection at the office of the council.

On the 9th inst., a meeting of the town council was held. The notice was apparently advertised in such a manner as to render it almost a matter of impossibility for parties concerned to challenge the proposed amendments, owing chiefly to the fact that no report of them had appeared in the ordinary column of the newspapers, and to the further fact that, as will be seen, the proposal came through the Works Committee, instead of the Tramways and Lighting Committee, which would ordinarily concern itself with tramways regulations as it has done in the past.

On the occasion of the aforesaid council meeting, the Works Committee brought forward the proposed amendment on the following pretext:

Since the tramway system was taken over by the municipal council, the traffic bye-laws applicable to tram-cars are no longer required as they were only intended for application to private tram-cars. It is proposed, therefore, that the bye-laws should be amended accordingly.

The proposals were submitted at the end of a long agenda, when even most vigilant councillor might have been lulled into a sense of security, especially in view of the seemingly innocuous nature of the preamble, and passed without comment. A notice appeared in the Government Gazette of the 18th inst., adopting the proposed cancelling bye-law, and giving it the force of the law. The whole matter, therefore, was settled practically behind the backs of British Indians within a period of nine days, for all practical purposes, withoutwarning.

Attempt is now being made to expropriate what is known as the Malay location in Johannesburg, which has a large Indian population, and to send Indians to a place thirteen miles away from Johannesburg.

PERMIT ORDINANCE

Whereas formerly Indians were free to immigrate into the Transvaal, at present the Peace Preservation Ordinance, which is purely a political law, is being wrested from its legitimate purpose to prevent Indians from entering Transvaal. Not only are new Indians being prevented from entering the country but also the following exceptional hardships are imposed on all residents of the Transvaal:

• (a)There are no published regulations regarding the administration of Ordinance.
• (b)It changes according to the whims or prejudices of the officials administering it.

The following is, therefore, the practice in vogue today:

• (i) Indians, who were in the Transvaal before war and who paid £3 for registration, are prevented from returning, unless they can prove absolutely they left on the outbreak of hostilities.
• (ii)Those who are allowed to enter the Transvaal have to put their thumb impressions upon their applications, as also upon their permits, and they are required to put them each time they enter the Transvaal. This is applicable to all Indians without regard to their position and without regard to the fact whether they can sign their names in English or not. An England-returned Indian gentleman, who speaks English well, and who is a very well-known merchant, was twice obliged to put his thumb-impression.
• (iii) Wives and children under twelve years of such Indians are now required to take out separate permits.
• (iv) Children, twelve-years-old or over, of such Indians are not allowed to join or accompany their parents.
• (v)Indian merchants are not allowed to import any trustworthy clerks or managers, unless the latter are themselves such as fall within the first clause hereinbefore referred to.
• (vi) Even those who are allowed to enter have to wait for months before they are permitted to enter the country.
• (vii)Even temporary permits are refused to Indians of respectability. Mr. Suliman Manga, who is studying for the bar in London, wishing to pass through the Transvaal on his way to Delagoa Bay, was refused a permit when his case was considered as of a British subject. When it became known that he was a Portuguese subject, for fear, evidently, of international complications, he was granted a temporary permit.
• (viii)Such is the terrible position of British Indians who are resident in the Transvaal. It is growing daily worse, and unless the Imperial Government is willing and ready to protect them, the ultimate result can only be slow extinction

WHAT EUROPEANS WILL DO

The following facts will shew what the Europeans of the Transvaal will do, if they are left to themselves:

• (a) The National Convention, which specially met to consider the Asiatic question, passed the following resolutions: