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From the book: A Documentary History of Indian South Africans edited by Surendra Bhana and Bridglal Pachai
On 2 July 1897 Abdul Carim Haji Adam and others from Durban sent a petition to Joseph Chamberlain, the Colonial Secretary. The petition discussed four Bills: those dealing with Quarantine, Immigration Restriction, Trade Licenses and Uncovenanted. All were later enacted. The general objective of all but one was to curtail the immigration of Indians into Natal. The anti-Indian sentiment intensified after Gandhi, who was in India then, published The Grievances of British Indians in South Africa in June 1896. Gandhi's return on the Courlandin December 1896, and the presence of about 500 Indians on that ship as well as on the Naderi, were seen as an 'invasion' of Natal; and in the anti-Indian hysteria that followed the ships were quarantined for an unnecessarily long time. Gandhi himself was nearly lynched by a mob of white demonstrators. The petition is reproduced here, with a portion containing press comments and appendices omitted. Source: Collected Works of Mahatma Gandhi, vol. 2, pp. 324-38.
That your petitioners hereby respectfully venture to approach you with reference to four Indian Bills passed by the Honourable the Legislative Assembly and the Honourable the Legislative Council of the Colony of the Natal and which, having received the Governor's assent, have been gazetted as Acts. These Bills were, in the order in which they were passed, respectively: the Quarantine Bill, the Immigration Restriction Bill, the Trade Licenses Bill, and the Bill to protect the Uncovenanted Indians from liability to arrest.
Your petitioners alluded to the first three Bills in their last memorial and said therein that, if these Bills passed the Natal Legislatures, they might have to approach you again with special reference thereto. It has now become your petitioners' unfortunate duty so to do, and they confidently trust they would be excused for the trouble they have to give you, seeing that the question underlying these Bills touches the very existence of the Indian community in Natal.
As soon as the last two of these Bills were gazetted as Acts, your petitioners wrote to the Honourable the Colonial Secretary praying that the despatch of Bills to Her Majesty's Government should be postponed till the receipt hereof; a reply from the Honourable the Colonial Secretary was received to the effect that the Bills had already been forwarded. Thereupon, the following humble telegram was sent to you: INDIAN BILLS MENTIONED LAST MEMORIAL GAZETTED ACTS. WE HUMBLY REQUEST DEFERRING CONSIDERATION. MEMORIAL PREPARING.
Your petitioners ventured to approach both the Houses of the local Parliament with reference to these Bills, without avail.
”¦ [The] petition to the Honourable the Legislative Assembly ... endeavours to show that restrictive legislation for Indians is not warranted by the circumstances, and, therefore, that before embarking upon such legislation a census should be ordered to be taken of the total Indian population of the Colony and inquiry instituted as to whether the presence of the Indian in the Colony is a benefit or an evil to the Colony.
The Quarantine Bill gives the power to the Governor not only to return any ship coming from infected ports without allowing her to land her passengers and cargo, but also prevent any person coming, in the first instance, from an infected port from landing in Natal, even though such person may have trans-shipped into some other boat on his way to Natal. Your petitioners can have no objection against any Quarantine Law, no matter how severe, so long it is meant as a protection against the introduction of infectious diseases. But the present Bill is merely a part of the anti-Indian policy of the Natal Government. As has been pointed out in the anti-Indian demonstration memorial, the Natal Government made a promise to the Demonstration Committee that a Bill to extend the Governor's powers of imposing quarantine was under consideration. The present Bill has been looked upon as one of the Indian Bills of the session; thus, says the Natal Mercury, 24th February 1897, with conference to the Quarantine and other Indian Bills:
The first three Bills published in the Gazette this week are in fulfilment of the promise of the Government that measures to deal with the question of Indian immigration would be introduced during the forthcoming session of Parliament. None of the Bills specifically relates to Asiatics and, therefore, [they] do not come under the suspensory conditions attached to such measures. They have been drafted to apply to all and sundry and certainly no fault can be found with their comprehensive character. It may be frankly admitted that the Bills are more or less of an objectionable character, but desperate diseases require desperate remedies. It is to be regretted that such measures are necessary, but that they are necessary is beyond dispute, and however disagreeable may be to pass such legislation, it has been an imperative duty and must be undertaken. The Bill to amend the laws relating to Quarantine may be fairly termed an extraordinary measure of precaution taken in the face of plague stricken countries. Something more than the ordinary measures are necessary if we are to secure immunity from dread diseases.
The same paper, in answering the objections to the Immigration Restriction ill, says again in a leading article dated 30th March 1897:
It has been urged by those people who consider the Bill (i.e. the Immigration Restriction Bill) objectionable because it is not straightforward, that a Bill could be passed against Asiatics in particular, that we should enter upon the 'long constitutional fight', and, in the meantime, we should protect ourseIves with the Quarantine Act; the inconsistency of such a course is very apparent. It would imply that we were much too high-minded to be dishonest with regard to the Immigration Bill, but we had not the slightest objection to take a mean advantage of the provisions of the Quarantine Bill. To prevent the landing of Indian immigrants in Natal, on the ground that they came from a country infected with dangerous infectious disease within a thousand miles of the district they come from, is just as disingenuous as the operations under the Immigration Restriction Bill.
It is, then, because the Quarantine Bill is intended indirectly to prevent Indian immigration to Natal that your petitioners deem it necessary to enter their respectful protest against it. For, why should an Indian, trans-shipping into a German liner at Zanzibar bound for Natal, be prevented from landing there while other passengers may do so without difficulty? If an Indian is likely to bring an infectious disease into the Colony, so are the other passengers who have come into contact with him.
The Immigration Restriction Bill provides, among other things, that any person who is a pauper and is likely to become a public charge, and cannot write out an application to the Colonial Secretary according to the form given as a schedule to the Bill, shall be treated as a prohibited immigrant. Thus, an Indian, who is learned in any of the Indian languages, but does not know any European language, cannot land in Natal even though it is temporarily. Such an Indian may go to the Transvaal, a foreign territory, but may not set his foot on the Natal soil. Even in the Orange Free State, any Indian may remain for two months without having to undergo any ceremony, but he may not do so in the British Colony of Natal. This is, therefore, going further than either of the above independent States. If an Indian prince wanted to travel round the world and came upon Natal, he would not be allowed to land there unless special permission was accorded to him. Ships on their way to Mauritius, having Indian passengers, have been calling here after the Immigration Law came into operation, and the Indian passengers are not even allowed to land and have exercise or fresh air while the ships are at anchor. By order of the Immigration Department they are kept under strict supervision, and their luggage is stored away in the hold lest they should evade the supervision, and land. In other words, British subjects, because they happen to be Indians, are practically treated as prisoners on the British soil.
It has been authoritatively stated that no Government would dream of applying the Law to the Europeans in the same manner as the Indians.In dealing with the clause 3, sub-clause (b) now modified, the Honourable the Prime Minister said as follows, on the second reading of the Bill:
As to immigrants being in possession of twenty-five pounds, when those words were introduced it never occurred to him that it would be applied to the Europeans. It could be so applied if the Government were foolish enough. The object, however, was to deal with the Asiatics. Some people said they liked an honest straightforward course. When a ship was heading against a wind, she had to tack, and by and by she accomplished her goal. When a man met difficulties, he fought against them, and, if he could not knock them over, he went round them instead of breaking his head against a brick wall.
The want of straightforwardness about the Bill has appealed to almost everyone in the Colony. The Farmers' Conference at Maritzburg, the capital of the Colony, a meeting held in the Durban Town Hall for the purpose of giving the members of the borough an opportunity to express their opinion on the Bills, and other meetings, protested against it on the ground that it was un-British; several members of the Parliament also expressed themselves strongly against it. Mr. Binns, the leader of the unformed opposition in the House of Assembly, said:
They ought to guard against taking a purely local view of so serious a question. The Bill was not straight. It did not go straight to the point, and nothing could be more appropriate than the remark that was made in the petition read that afternoon, that it was un-British. Nobody liked the Bill. There was not a man in all Natal that liked the Bill, and the Premier certainly did not like it. He might think that there was a necessity for it, and that the Bill should assume the form it has done. But if there was one thing clear in his speech, it was that he did not like the Bill.
Mr. Maydon, another member of the Assembly, ventured to strongly express the opinion, and he believed the majority of the colonists of Natal agreed with him, that rather than accept this measure, they would continue to wallow in the mire of the Asiatic immersion.
Mr. Symons, another member, said:
They could not remove the Indians in our midst, nor withdraw the privileges they possess as British subjects. Would any Englishman that called himself a statesman produce such a Bill, and expect it to pass? The Bill was a monstrous Bill. Such a Bill was a disgrace to a British Colony; why not call it an Asiatic Restriction Bill? They did not talk of tacking in these days of steamships, but went straight ahead.
Thus, seeing that there is no unanimity of opinion about the Bill, your petitioners submit that their modest prayer that a census should be taken of the Indian population, and an inquiry made as to the allegation that the presence of Indians is an evil to the Colony, might have been complied with before passing such a drastic measure. Your petitioners submit that there was absolutely no justification for the measure. It has not been proved that the number of the Indians is more rapidly increasing than the number of Europeans. On the other hand, the last report shows that, while there might have been an increase of 666 Indians during the last six months ending January, the increase in the number of the Europeans was close upon 2,000. Further, the class of the Indians whom the Bill is intended to prevent from coming number about 5,000 in the Colony as against 50,000 Europeans. Also, the deliberate opinion of the commission that sat ten years ago in Natal under the chairmanship of Sir Walter Wragg, the first Puisne Judge, stands on record, namely:
We are content to place on record our strong opinionbased on much observation tion that the presence of these traders has been beneficial to the whole Colony and it would be unwise if not unjust to legislate to their prejudice.
This is the only authoritative opinion that the local legislatures could be guided by. In the teeth of these facts, your petitioners yet venture to trust that Her Majesty's Government would order that the inquiry of the nature above indicated be instituted before arriving at a decision as to the necessity of legislation restrictive of the freedom of the British Indians in Natal; that is, if Her Majesty's Government decide that, in spite of the Proclamation of 1858, a British Colony can legislate to the prejudice of British Indians, and if Her Majesty's Government come to the conclusion that the Proclamation does not, confer any such privileges as are contended for herein, and if they are satisfied that the number of Indians in Natal is increasing at an alarming rate, and that the presence of the Indians is an evil to the Colony, it would be far more satisfactory that a Bill specially applicable to the Indians should be introduced.
With the greatest deference, it does seem strange that, while the Transvaal Government have been compelled to withdraw their Aliens Law, the Natal Government have passed an Immigration Act which is far more severe than the Transvaal one....
The Dealers' Licenses Bill is, if possible, the worst of all. It not only requires that traders should keep their books in English, but also gives absolute power to the licensing authorities to refuse to issue or renew licences without the right to the aggrieved party to appeal to the highest tribunal of justice. It is thus subversive of one of the most cherished principles of the British Constitution. Your petitioners cannot better express their objections to the Bill than in the words of Mr. Tatham, a member of the Legislative Assembly:
He had no hesitation in saying that this Bill would establish a monopoly in favour of existing traders. Members who had discussed the Bill discussed from the point of view of the trader apart from the point of view of the consumer. One of the most disastrous courses which legislation could take was a course which had for its object the restraint of trade, and so far was this principle recognised that, by the common law of England, a private contract entered into between two persons was invalid if that contract could be shown to be prejudicial to the community by placing a restraint on trade. It was recognised as a principle of trade all the world over that there was nothing like competition, not only for those engaged in the competition but also for consumers. The effect of a Bill of this sort would simply enhance the profits of traders at the expense of the consumers. He dealt with this Bill, not from the point of view of its effects as an Asiatic Repression Bill, but from the point of view upon which it was presented to the House. The Bill included all sections of the community, whether Europeans or Asiatics, and it contained provisions of an alarming character. It was provided that one individual would issue licences, and licences already in existence were liable to be taken away by that individual. That applied to country districts. How did it apply in towns and municipalities? Let him take Durban as an example. The town council might consist of a majority of persons who studied their own interests before the interests of the community, and might refuse licences to trade in that borough. The Premier would say that these people were subject to the control of the popular vote, but how was the popular vote to be brought into operation when it was a case of one individual against the whole body.
Even the Honourable the Prime Minister found it very difficult to justify the Bill, and was not eager that it should pass. He said:
They asked that powers be given to each municipality, in excess of its present powers, to control the issuing of licences, and there need be no hesitation in saying what their object was. It was to prevent persons who competed with Europeans from getting licences to trade, as Europeans were required to do. This was the intention of the Bill, and, if that intention were accepted, then, of course, the second reading would pass, and then they would have to deal with details. It would not be possible to pass this Bill without appearing to take away a part of the liberty of the subject, because the subject now had a right to a licence as a matter of course, and if this Bill were passed into law, the subject would no longer have the right. He would only have that right if the licensing authority thought fit to grant it. This Bill intereferes with the course of law, because the Bill would be defeated in its objects if the courts had jurisdiction. The town councils would be responsible to their constituents, and there would be no appeal from their decisions, as regards the granting of licences, to a court of law. The objection had been taken to this Bill that it would not allow the law to have its natural course. The answer was if they should be granted, then they would not pass this Bill; but under this measure the licensing authorities only would have this discretion. [Hear, hear!] He thought it right to emphasise the fact that the courts of law would have no jurisdiction over trade licences under this Bill. The licensing authorities would exercise this jurisdiction. If the Assembly thought that the Bill should go through the second reading then there would be a discussion on details in committee. He submitted the Bill to the Assembly, and wished to point out that the main object of it was to affect those persons dealt with under the Immigration Bill. Ships would not bring these people if they knew they could not be landed, and the people would not come here to trade if they knew they could not get licences.
Mr. Symons ‘opposed this Bill. He looked upon the measure as most un-English and oppressive.'
It would be noticed that even hawkers, who move about with a few pounds’ worth of goods from place to place, would be expected to keep their books in English. As a matter of fact, they do not keep any books at all. The objection to the aggrieved party going to the highest tribunal of justice in the land seems to be based on the ground that the licensing officer will not be able to justify the use of his discretionary power in a court of law.
The question also arises as to what would be done with reference to renewals of licences. Are the merchants, with hundreds and thousands of pounds' worth of goods, to be called upon to shut up their businesses if the licensing officer thought it fit to order so? It suggested itself to Mr. Smythe, a member of the Assembly, who moved that a year's time should be given to persons in possession of licences, and drew the House's attention to the fact that even the Free State gave the traders reasonable time, before compelling them to close their businesses. But, unfortunately, the motion was lost.
The Natal Advertiser, 5 April 1897, thus expresses itself on the Bill:
It is matter for regret that so many members, who boldly protested against the violation of British traditions embodied in the Immigration Bill, should have swallowed, without a grimace, the much more serious infringement of the liberty of the subject involved in the Licenses Bill. With the object of the Bill we are in thorough accord; and we do not either attach very much weight to the fears of some of the members as to the large powers granted to corporations. A very much graver danger is the negation of appeal to the courts of justice. It is only this, in fact, which could make the powers granted under the Bill dangerous. It would have been easy to frame a measure which would I safeguard the interests to be protected quite as effectively as this one, without resorting to the crude and unstatesmanlike expedient of depriving persons of their right to appeal to a court of law. No urgency could justify such a provision. The Premier's argument that 'there would be no discretion if the discretion was to be in the Supreme Court or any other court; they could not give discretion to a licensing authority and allow the discretion to be exercised by somebody else', is unworthy of himself and his audience. Licensing authorities under the existing law have discretion, but that does not exclude the ultimate jurisdiction of the Supreme Court. Moreover the argument is destroyed by the provision in the Bill itself which allows appeal to the Colonial Secretary. So that it actually does give discretion to a licensing authority, and then allow the discretion to be exercised by somebody else.
Your petitioners have not attempted to discuss the details of the above Bills at length, since, in their humble opinion, the principle of the Bills is so utterly opposed to the spirit of the British Constitution, as also of the Proclamation of 1858, that it seems useless to discuss the details.
This is clear, however, that if the Bills are not disallowed, Natal would have gone much further than the Transvaal in oppressing the Indians. The Indians in virtue of the Immigration Law cannot enter Natal, except a few who are able to read and write English, though they may go to the Transvaal without any hindrance. The hawkers may not get licences to hawk in Natal, though they can get them as of right in the Transvaal. Under such circumstances, your petitioners venture to trust that, if nothing else is done, Indian immigration to Natal would be stopped, and a great anomaly, i.e. the fact that Natal gets all the advantage of the presence of the Indian in the Colony, while, she would give none, removed.
The Bill to protect Uncovenanted Indians from liability to arrest is not in answer to the anti-Indian clamour in the Colony, but has its origin in a certain correspondence that passed between the Government and some Indians. Indians that are not under indenture are sometimes arrested under the Indentured Indian Immigration Law, as being deserters from their estates. To avoid this inconvenience, some Indians approached the Government with a view to get it minimised. The Government were good enough to issue a proclamation authorising the Protector of Immigrants to issue certificates to free Indians certifying that the bearers were not indentured Indians. It was, however, meant to be a temporary measure, and the present Bill is intended to replace it. Your petitioners recognise the good intentions of the Government in introducing the Bill; but your petitioners are afraid that, owing to the clause 3, rendering the police, arresting any Indian for being without a pass, free from liability for wrongful arrest, takes away all the good that the Bill is no doubt intended to do, and makes it an engine of oppression. The taking out of passes is not compulsory, and it is admitted that only the poorer Indians would take advantage of the pass clause. Before, too, much trouble only arose through the over-zeal of officers in making arrests. Now, the 3rd clause gives almost a licence to arrest with impunity any Indian they choose. Your petitioners further draw your attention to the argument against the Bill as set forth in the memorial to the Honourable the Legislative Assembly”¦. and venture to hope that the Bill will be disallowed. Instructions to the police to use caution when making arrests under the Indenture Law would have met the difficulty.
In conclusion, your petitioners pray that the above Bill be disallowed, in virtue of the power reserved to the Crown under the Constitution Act, to disallow any Act within two years after its promulgation, or the inquiry of the nature above indicated be ordered before Her Majesty's Government refuse to disallow the above Acts or any part of them, that a definite pronouncement as to the status of the British Indians outside India be made, and that, should it not be deemed feasible to disallow the above Acts, the indentured immigration to Natal be stopped, or grant such other relief as Her Majesty's Government may think fit.
And for this act of justice and mercy, your petitioners, as in duty bound, shall forever pray.