37. Deputation to Lord Selborne, 1905

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

A deputation of Indians went to see Lord Selborne the British High Commissioner, on 29 November 1905. The members were M. K. Gandhi, Abdul Gani, chairman of the British Indian Association, Haji Habib of the Pretoria Committee, E. S. Coovadia, Moonsamy Moonlight, and Ayob Haji Beg Mahomed. The deputation concerned itself with the position of British Indians in the Transvaal. On behalf of the deputation, Gandhi addressed Lord Selborne. Source: Collected Works of Mahatma Gandhi, vol. 5, pp. 144-52.

Before beginning to deal with the subject matter of this deputation, I have to tender our respectful thanks to Your Excellency for having spared the time amidst the many calls upon it to receive this deputation. As Your Excellency has personally interested yourself in every question submitted to you, it was felt we should, instead of simply sending memorials, seek the opportunity of expressing our sentiments and feelings in a more tangible manner.

Before I deal with the statement I am to hand to Your Excellency, I have been asked to mention two matters that have occurred during your recent tour through the Transvaal. Your Excellency is reported to have said at Potchefstroom that 'no non-refugee British Indians would be allowed to enter the Colony until the Representative Assembly has considered the question next year'. If the report were correct, it would, as I hope to show this afternoon, be a very grave injustice to the vested rights of the Indian community. At Ermelo Your Excellency is reported to have used the expression 'coolie-storekeepers’. This expression has given very great offence to the British Indians in the Colony, but the British Indian Association has assured them that the expression has probably not been used by Your Excellency, or, if it has, Your Excellency is incapable of giving thereby any intentional offence to British Indian store-keepers. The use of the word 'coolie' has caused a great deal of mischief in Natal. At one time, it became so serious that the then Justice Sir Walter Wragg had to intervene, and to put down the use of that expression in connection with any but indentured Indians, it having been even imported into the court of justice. As Your Excellency may be aware, it means 'labourer 'or 'porter'. Used, therefore, in connection with traders, it is not only offensive, but also a contradiction in terms.

THE PEACE PRESERVATION ORDINANCE

Coming to the statement that the British Indian Association is submitting to Your Excellency, I would take first the Peace Preservation Ordinance. Soon after the Transvaal became part of the British Dominions, the services rendered during the war by the dhooly-bearers that came with Sir George White, and those rendered by the Indian Ambulance Corps in Natal, were on many people's lips. Sir George White spoke in glowing terms of the heroism of Prabhu Singh who, perched up in a tree, never once failed to ring the gong as a notice to the inhabitants each time the Boer gun was fired from the Umbulwana Hill. General Buller's despatches, praising the work of the Corps, were just out, and the administration was in the hands of the military officers who knew the Indians. The first batch of refugees, therefore, who were waiting at the ports, entered the country without any difficulty, but the civilian population became alarmed, and called for the restriction of the entry of even the refugees. The result was that the country was dotted with Asiatic Offices, and from that time up to today, the Indian community has known no rest; whereas aliens, in every sense of the term, as a rule got their permits at the ports on application there and then, the Indian, even though a refugee, had to write to the Supervisors' of Asiatics, who had to refer the applications to the Colonial Office before permits were issued. The process took a very long time, from two to six months, and even one year and more, and then, too, the Colonial Office had laid down a rule that only so many permits should be issued to British Indian refugees per week. The result of this mode of operation was that corruption became rampant, and there grew up a gang of permit-agents who simply fleeced innocent refugees; and it was a matter of notoriety that each refugee who wanted to enter the Transvaal had to spend from £15 to £30 and more. The matter came to the notice of the British Indian Association, repeated representations were made, and ultimately the Asiatic Offices were wiped out. The mode of granting permits was, however, unfortunately still kept up, and the Chief Secretary for Permits has been always subject to instructions from the Colonial Office. Thus, the Peace Preservation Ordinance, which was intended to apply to dangerous characters and political offenders, under the influence of the Colonial Office, had become an Indian Immigration Restriction law, as it remains to this day. Under the present regime too, therefore, it is a most difficult matter for even bona-fide refugees to get permits and it is only in rare cases that it is possible to get them, except after a delay of months. Everyone, no matter what his status may be, has to make an application on a special form, give two references, and put his thumb-impression upon the form. The matter is then investigated, and the permit is granted. As if this were not enough, owing to the charges made by Mr. Loveday and his friends, the Chief Secretary for Permits received instructions to insist on European references. This was tantamount to the denial of the right of British Indian refugees to enter the country. It would be hard to find twenty Indians who would be known to respectable Europeans by name as well as appearance. The British Indian Association had to correspond with the Government, and, in the meantime, the issue of permits was suspended, and it has been only lately realised that the insisting upon European references was a serious injustice.

THE ENTRY OF CHILDREN

But still the difficulties, apart from the necessity for European references, are there. Male children, under 16 years of age, are now called upon to take out permits before they can enter the Colony, so that it has been not an uncommon experience for little children of 10 years of age and under to be torn away from their parents at the border towns. Why such a rule has been imposed we fail to understand.

THE HIGH COMMISSIONER: Have you ever known a case where the parents have stated beforehand that they have children and which children have been refused permission to come in?

MR. GANDHI: Yes; and the parents have been obliged to make affidavits before the children have been allowed to come in.

If the parents have the right to enter, so far as I am aware, every civilised country has admitted the right of minor children also to enter with them and, in any case, children under 16 years, if they cannot prove that their parents are dead or that their parents have been resident in the Transvaal before the war, are not allowed to enter or remain in the Colony. This is a very serious matter. As Your Excellency is aware, the 'joint-family' system prevails all over India. Brothers and sisters and their children live under the same roof from generation to generation, and the eldest member in the family is nominally, as well as in reality, the supporter and the bread-earner. There is, therefore, nothing unusual in Indians bringing the children of their relatives into the country, and it is submitted that it will be a very serious injustice if such children, who have hitherto been left unmolested, are either deported from the Colony or are prevented from entering the Colony. The Government, again, intend to require the female relatives of resident Indians also to be registered in the same liner as the males. The British Indian Association has sent an emphatic protest against any such measure, and has even submitted that it would be prepared to fight the question in a court of law, as, according to the advice given to it, wives of resident Indians are not required to take out registration certificates and pay £3.

THE ENTRY OF SPECIAL CLERKS, ETC.

The Government, no matter how necessary it may be in certain cases, grants no new permits. We were all extremely pleased to read in the papers Your Excellency's emphatic declaration that the vested interests of the Indians who are already settled in the country should not be disturbed or touched. There are merchants who have constantly to draw upon India for confidential clerks, in order to enable them to carry on their business. It is not easy to pick out reliable men from the resident population. That is the experience of merchants all over, and belonging to all communities. If, therefore new Indians are absolutely shut out of the country until the establishment of Representative Government, it will seriously interfere with these vested interests; and, in any case, it is difficult to see why men of attainments and educational whether they be refugees or not, should not be able to have their permits on application. And in spite of all these hardships, our anti-Indian friends are never tired of saying the country is flooded with British Indians who werenever in the Transvaal. They have made a point of saying that every Indian who was before in the country was registered. I hardly think it is necessary for me to dilate upon this matter, as Your Excellency has been told that all facts with reference to this charge are wrong, but I may be pardoned for referring Your Excellency to a case that happened in 1893. Shire and Dumat were large contractors of labour. They brought into the country at one time 800 Indian labourers. How many more they brought I do not know. The then State Attorney insisted that they should take out registration certificates and pay £3 each. Shire and Dumat tested the matter in the High Court, and then Chief Justice Kotze held that these men were not, in terms of the law, called upon to pay £3, as they did not enter for purposes of trade, and that he could not help the Government, even if the men, after the contract was over, subsequently remained in the country. That is only one instance, which cannot be gainsaid, in which hundreds of Indians remained in the country without paying £3 each. The British Indian Association has always submitted, and that from personal experience, that hundreds of Indians, who did not take out trade licences, remained in the country without ever registering themselves and paying £3.

BAZAARS AND LOCATIONS

Coming to Law 3 of 1885, it has been often urged that Indians, after establishment of British Government in this country, have received relief with reference to trade licences. Nothing, however, can be further from the truth. Before the war, we were able to trade anywhere we liked, as against tender of payment of licence money. The long arm of the British Government was then strong enough to protect us, and up to the very eve of the war, in spite of constant threats of the then Government to prosecute British Indians who were trading, no action was taken. It is true that now, owing to the decision of the Supreme Court, Indian trade is unfettered, but that is in spite of the Government. Up to the very last moment the Government declined to come to the rescue, and a notice was published called the 'Bazaars Notice’ which stated that, after a certain date, every Indian who did not hold a licence to trade at the outbreak of war outside locations, would be expected not only to remove to locations, but to trade there also. After the notice was published, locations were established in almost every town, and when every effort to get justice at the hands of the Government was exhausted, as a last resort it was decided to test the matter in a court of law. The whole of the Government machinery was then set in motion against us. Before the war a similar case was fought, and the British Government aided the Indians to seek an interpretation of the law, which we have now received from the present Supreme Court. After the establishment of the British Government, all these forces were against us. It is a cruel irony of fate, and there is no use disguising the fact that we have felt it most keenly; and this, I may state, as has now transpired, in spite of the fact that the then Attorney-General told the Government that the interpretation they sought to place upon the law was bad, that if it went to the Supreme Court the matter would be decided in favour of British Indians. If, therefore, British Indians have not been sent to locations and are free to trade anywhere they like and to live where they like ”” as I say, it is because it is notwithstanding the intentions of the Government to the contrary. In every instance, Law 3 of 1885 has been, so far as the Indians are concerned, most strictly interpreted against us, and we have not been allowed advantage of any loop-holes that are left in it in our favour. For instance, British Indians are not debarred from owning landed property in 'streets, wards, or locations that may be set apart' by the Government. The Government has resolutely declined to consider the words 'streets and wards' and have simply clung to the word locations; and these locations, too, have been established miles away. We have pleaded hard saying that the Government has the power to give us the right to ownership of land in streets and wards, that they should make use of that power in our favour, but the plea has been in vain. Even land which is being used for religious purposes, the Government would not transfer in the names of the trustees, as in Johannesburg, Heidelberg, Pretoria and Potchefstroom, although the mosque premises are good in every respect from a sanitary standpoint. It is time, we therefore submit, that some relief was granted to us while new legislation is under consideration.

CLASS LEGISLATION

As to the new legislation to replace Law 3 of 1885, the dispatch drawn by Sir Arthur Lawley has caused us a very great deal of pain. It insists on legislation affecting British Indians or Asiatics, as such. It also insists on the principle of compulsory segregation, both of which are in conflict with the repeated assurances given to British Indians. Sir Arthur Lawley, I wish to say with the greatest deference, has allowed himself to be led astray by what he saw in Natal. Natal has been held up as an example of what the Transvaal would be, but the responsible politicians in Natal have always admitted that Indians have been the saving of the Colony. Sir James Hulett stated before the Native Affairs Commission that the Indian, even as a trader, was a desirable citizen, and formed a better link between the white wholesale merchant and the Native. Sir Arthur Lawley had also stated that, even if promises were made to British Indians, they were made in ignorance of the facts as they now are and, therefore, it would be a greater duty to break them than to carry them out. With the greatest deference, I venture to submit that this is a wrong view to take of the promises. We are not dealing with promises that were made fifty years ago, though we undoubtedly rely upon the Proclamation of 1858 as our 'Magna Charta'. That Proclamation has been re-affirmed more than once. Viceroy after Viceroy has stated emphatically that it was a promise [to be?] acted upon. At the conference of the Colonial Premiers, Mr. Chamberlain laid down the same doctrine and told the Premiers that no legislation affecting British Indians as such would be countenanced by Her late Majesty's Government, that it would be putting an affront quite unnecessarily on millions of the loyal subjects of the Crown, and that, therefore, the legislation that was passed could only be of a general character. It was for that reason that the first Immigration Restriction Act of Australia was vetoed. It was for the same reason that the first Natal Franchise Act was vetoed, and it was for the same reason that the Colony of Natal, after submitting a draft Bill applicable to Asiatics as such, had to draft another measure. These are matters not of years gone by but of recent years. It cannot be said that there are today any net facts that have come to light to change all this. Indeed, even immediately before the war, declarations were made by ministers that one of the reasons [for the war] was to protect the rights of British Indians. Last, but not least, Your Excellency, too, gave expression to similar sentiments on the eve of the war. Though, therefore, the manner in which Sir Arthur Lawley has approached the question is, in our humble opinion, very unjust and inconsistent with the British traditions, we, in order to show that we wish to cooperate with the white colonists, have submitted that, even though no such law existed before, there may now be an Immigration Act after the basis of the Cape or Natal, except that, as to the educational test, the great Indian languages should be recognised and that the already established British Indian merchandise should have facilities afforded to them for importing temporarily men whom they may require in their businesses. That will at once do away with the fear of what has been termed an Asiatic invasion. We have also submitted that with reference to trade licences which have caused so much grumbling, the power should be given to the local boards or town councils to regulate the issue of any new licences subject to the control of the Supreme Court, if the existing licences should be taken out of the operation of any such statute because they represent vested interests. We feel that, if these two measures were passed and Law 3 of 1885 were repealed, some measure, and on some measure, of justice would be done to Indians. We submit that we ought to have perfect freedom of owning landed property and of living where we like under the general municipal regulations as to sanitation and appearance of buildings, and, during the time that the legislation is being formed, the Peace Preservation should be regulated in accordance with the spirit of such regulation, and liberal interpretation should be placed upon Law 3 of 1885. It seems to me to be foreign to the nature of the British Constitution as I have been taught from my childhood, and it is difficult for my countrymen to understand that, under the British flag which protects aliens, its own subjects should be debarred from holding a foot of land property so long as good use is made of it. Under the conditions, therefore submitted by the Association, it ought to be possible for the Government to free the statute-book of the Colony from legislation that, necessarily, insults British Indians. I do not wish to touch on such questions as foot-path regulations when we have to consider the question of bread and butter and life and death. What we want is not political power; but we do wish to live side by side with other British subjects in peace and amity and with dignity and self-respect. We, therefore, feel that the moment His Majesty's Government decide to pass legislation differentiating between class and class, there would be an end to that freedom which we have learned to cherish as a priceless heritage of living under the British Crown.

THE STATEMENT

There are, besides laws affecting Coloured people and, therefore, British Indians, the Peace Preservation Ordinance and Law 3 of 1885 as amended in 1886.

The Peace Preservation Ordinance, as its name implies, although framed to keep out of the Colony dangerous characters, is being used mainly to prevent British Indians from entering the Transvaal.

The working of the law has always been harsh and oppressive - and this is in spite of the desire of the Chief Secretary for Permits that it should not be so. He has to receive instructions from the Colonial Office, so that the harsh working is due, not to the chief officer in charge of the Department, but to the system under which it is being worked.

• (a) There are still hundreds of refugees waiting to come.
• (b) Boys, with their parents or without, are required to take out permits.
• (c) Men with old £3 registrations, coming into the country without permits, are, though refugees, being sent away and required to make formal application.
• (d) Even wives of Transvaal residents are expected to take out permits if they are alone, and to pay £3 registration, whether with or without their husbands.
• (e) Children under 16, if it cannot be proved that their parents are dead, or are residents of the Transvaal, are being sent away, or are refused permits, in spite of the fact that they may be supported by their relatives who are their guardians, and who are residing in the Transvaal.
• (f) No non-refugee British Indians are allowed to enter the Colony, no matter what their station may be in life. (The last prohibition causes serious inconvenience to the established merchants, who, by reason thereof, are prevented from drawing upon India for confidential managers or clerks.)

LAW 3 OF 1885

In spite of the declarations of Her late Majesty's ministers, and assurances of relief after the establishment of civil government, this Law remains on the statute-book and is being fully enforced, though many laws, which were considered to be in conflict with the British Constitution, were repealed as soon as British authority was proclaimed in the Transvaal. Law 3 of 1885 is insulting to British Indians and was accepted totally under a misapprehension. It imposes the following restrictions on Indians.

• (a) It prevents them from enjoying burgher rights.
• (b) It prohibits ownership of fixed property, except in streets, wards, or locations set apart for the residence of Indians.
• (c)It contemplates compulsory segregation in locations of British Indians for purposes of sanitation. And
• (d)It imposes a levy of £3 on every Indian who may enter the Colony for purposes of trade or the like.

It is respectfully submitted, on behalf of the British Indian Association, that the Peace Preservation Ordinance should be so administered that

• (a) it should facilitate the entry of all refugees without delay;
• (b) children under 16 should be exempt from any restriction whatsoever if they have their parents or supporters with them;
• (c) female relatives of British Indians should be entirely free from interference or restriction as to the rights of entry; and
• (d) a limited number of Indians, though not refugees, should, on the application of resident traders who may satisfy the Permit Officer that they require services of such men, be granted permits for residence during the period of their contract of service; and
• (e) Indians with educational attainments should be allowed to enter the Colony on application.

Both Law 3 of 1885 and the Peace Preservation Ordinance, and all other colour legislation affecting British Indians, should be repealed so soon as possible and they should be assured as to

• (a) their right to own landed property;
• (b)[their right] to live where they like, subject to the general sanitary laws of the Colony;
• (c) exemption from any special payment; and
• (d) generally, freedom from special legislation and enjoyment of civil rights and liberty in the same manner and to the same extent as the other colonists.

Though the British Indian Association does not share the fear of the European inhabitants that an unrestricted immigration from India will swamp the latter, as an earnest of its intention to work in harmony with them and to conciliate them, it has all along submitted that

• (a) The Peace Preservation Ordinance should be replaced by an immigration law of a general character, on the Cape or the Natal basis, provided that the educational test recognises the great Indian languages, and that power be given to the Government to grant residential permits to such men as may be required for the wants of Indians who may be themselves already established in businesses;
• (b) A Dealers' Licences Law of a general character may be passed, applicable to all sections of the community, whereby the town councils or local boards could control the issue of new trade licences, subject to appeal to the Supreme Court to review the decisions of such councils or local boards. Under such a law, whilst the then existing licences would be fully protected, except when the premises licensed are not kept in a sanitary condition, all new applicants would have to be approved of by the town councils or the local boards, so that the increase of licences would be largely dependent upon the bodies above named.