was evolving, the legal profession was undergoing change. The profession, which got its start when the East India Company first established itself in India, had a history of being poorly organized and regulated,16 with a wide and confusing range of different types of practitioners, all competing for business.17 Well before Gandhi’s time, however, one clear distinction emerged—that between barristers and native practitioners. On the one hand, barristers, at first almost exclusively English, commanded enormous prestige—and enormous fees.18 Their status and their earning power were the result of two factors: the monopoly on practice barristers held for a considerable period of time and the small number of barristers available for hire. For a good part of the nineteenth century barristers alone were allowed to appear in the highest courts, leaving native practitioners to scratch out their livings in inferior tribunals. For some time barristers capitalized on their legal monopoly by keeping their own numbers low. In Bombay, for example, there were only two barristers in 1807, with the number rising to only thirteen by 1861. As one historian has noted, “Even a new practitioner could begin earning large sums almost immediately.”19 It was with this image of the profession in mind that Gandhi’s family had pooled its resources to give young Mohan a barrister’s education.
In contrast, there existed a broadly defined class of practitioners trained in India, generally known as vakils, who were held in lower esteem, who commanded lesser fees, and whose practice was restricted to certain courts. These practitioners began with very limited roles in the legal system but transformed themselves over time into lawyers some of whose training was arguably better than that received by barristers in the Inn system. While the extent of his training and the precise nature of his practice are unknown, it is known that Gandhi’s brother, Lakshmidas, was such a practitioner.
It was Gandhi’s misfortune to enter practice at a time when the power of vakils was on the ascendancy, while that of barristers was on the decline. From the mid-1800s on, the vakils campaigned with good effect for the right to practice in all courts and for the abolition of the distinctions among and between barristers (known as “advocates”), solicitors (known as “attorneys”), and vakils. Indeed, even before Gandhi took up practice in Bombay, vakils had been permitted to appear before the High Court there, shattering the monopoly barristers once had and greatly influencing the economics of law practice. To make matters worse, it became well known by 1890 that the practice of law could be a most lucrative profession. Accordingly, the profession attracted great numbers to its ranks at just the time Gandhi arrived in Bombay—only to see so many enter the profession that the supply of lawyers exceeded the public’s demand for them. With the laws of economics in play, many a young novice went without work.20
NO CONNECTIONS, NO TOUTS, NO INCOME
Gandhi’s own background provided him with no assets with which to succeed at the practice of law in this changing environment. Much of the Indian economy in the 1890s was tied to the land.21 When Gandhi entered practice, Indian capitalism was just starting to develop alongside the traditional agrarian economy. As the nineteenth century was coming to a close, these two forces, previously in balance, would interact, threatening society and the law with a tumultuous transformation that the Raj was not prepared to accept.22 Thrust into this period of swirling change, Gandhi could have exploited it had he had ties to either the rising capitalist elements or to the traditional agrarian economy. Gandhi, however, had no ties to the landed elite that would help him obtain work representing landowning clients in litigation. With respect to business litigation, Gandhi was already at a disadvantage simply by virtue of being an Indian-born rather than a British-born barrister. Historian Samuel Schmitthener reports that from the time of the founding of the High Courts in 1862 through the end of the nineteenth century, Indian lawyers could not easily find financial success:
The first Indian barristers . . . were disappointed to find that they could not make a success of practicing [in courts], where the lucrative commercial cases were. Work [in such courts] could only come to a barrister through a solicitor. The solicitors’ firms were all British, and they did all the work for the Government departments and the . . . firms. They did not want to patronize an untried Indian barrister. Nor did the few Indian solicitors who were struggling to expand their practice wish to risk the blame that would come upon them if some inexperienced Indian barrister mishandled a case. . . . Not only British firms, but also Indians preferred to be represented by British . . . advocates—perhaps because it was believed they would have more influence with the English judges.23
Gandhi might have overcome the predisposition of potential clients to favor English barristers had he had some ties to the commercial, industrial, and mercantile classes. Because he had none, however, he derived no work from the business community.
To make matters worse, neither did Gandhi have any close relatives or friends in the legal profession in Bombay. This was a significant drawback because barristers in Gandhi’s day obtained clients not directly through contact with them but through referrals from other members of the profession. Indeed, it was often a family matter: many barristers derived their success from having family members in positions from which they could refer cases to their favorite member of the bar. With no one looking out for young Gandhi’s interests among the corps of Bombay attorneys, there was no one to send cases to this “briefless barrister.”24
Finally, there was the matter of professional ethics. At the time Gandhi was attempting to practice in Bombay, some in the profession relied upon touts—mercenaries who would hunt down litigation and bring it to a barrister for a fee. While this practice was considered unethical, it was nonetheless employed by some of the most successful members of the Bombay bar. Gandhi, however, refused to pay touts, even if the practice was winked at and even if it meant he would earn far less than he might otherwise. Indeed, when those advising him in Bombay pointed out that one highly successful criminal lawyer paid touts, Gandhi scoffed at the idea that financial success should rank higher than professional ethics. This was a watershed moment for Gandhi as a person and as an attorney. Faced with the choice of failing with honor or succeeding with dishonor, he chose the more difficult path. This is the first indication Gandhi gives as a lawyer that the world’s way was not his way. In the future he would stake out a definition of his professional life that rested upon the belief that one could find true happiness as an attorney without adhering to the profession’s definition of success. It is not a belief to which he would always be faithful, as we shall see, but it provides us with the first real glimmer of the attorney he was to become. Interestingly, he was hired in Mamibai’s case despite his refusal to pay the tout.
Gandhi would confound his critics from the beginning.
BACKWATERS: A RETURN TO RAJKOT
With all these factors against him, it is not surprising, then, that Gandhi’s Bombay practice collapsed shortly after the Mamibai incident. The most he could manage thereafter was a case in which he drafted a memorial for free for an impecunious client. While his colleagues approved of the quality of his work in the case, Gandhi realized that he could not support himself if his practice consisted of nothing but pro bono work.
At about this time Gandhi started thinking of seeking employment overseas, but because Lakshmidas opposed such a move, Gandhi deferred consideration of it. Moreover, there was a promise of some work in Bombay in the fall of 1892. This new work, however, never materialized.25
New measures were required. Gandhi applied for a part-time position teaching English at a well-known Bombay high school for 75 rupees a month. At the interview, when it became apparent that the high school sought a university graduate, the school lost interest. He pleaded that his passage of the London examination should qualify him to teach, but the school would not budge.
With this door closed, there was nothing more Gandhi could do to sustain himself in Bombay. He had failed. After six months in
