by A K Bhagwat
...And the Arrest
Tilak gave a warning to the government in the Kesari on the 20th July and appealed to the people to send their complaints to the Kesari. Equipped with these, he hoped to give a rejoinder to the government by publishing some of these complaints in the Bombay press. Accordingly, he went to Bombay on Tuesday, the 27th July, and was arrested on the same night under Section 124, I.P.C., and placed before the Chief Presidency Magistrate. Bail was applied for but refused and the case adjourned to 30th of July. Messrs. Russell and Deshpande, Barristers-at-Law, instructed by Mr. Bodas, High Court Pleader, appeared for the defence. From the time the Anglo-Indian papers raised the cry of sedition Tilak knew that he was going to be arrested. Pressure was brought on him that he should modify his language and after his arrest it was also suggested that he should withdraw his remarks and apologize. The Indian Nation - English weekly of Calcutta - wrote after the trial: “Great interest attaches, and, when history comes to be written, will attach, to the letter which Mr. Tilak wrote to a friend shortly before the trial:14 “The other side expects me to do what amounts to pleading guilty. I am not prepared to do so. My position amongst the people entirely depends upon my character; and if I am cowed down by the prosecution - in the heart of my hearts I know the case for the prosecution is the weakest and that was even placed before a jury - 1 think, living in Maharashtra is as good as living in the Andamans. On the merits of the case I am confident of success though I cannot, in this letter and in the present state of my health, give you all my reasons. I am afraid only of a non-Marathi-knowing jury and not of justice. You as well as I know that we are incapable of nourishing any sinister feeling against British rule and it is thus impossible for any of us to be convicted of such a heinous charge as sedition. Such risks, however, we must take if we dabble in politics. They are the risks of our profession, and I am prepared to face them. If you will advise, I am prepared to go only so far as this; I don’t think that the articles are seditious, but the advisers of the government think otherwise. I am sorry for it. But this will not satisfy the government. Their object is to humiliate the Poona leaders, and I think in me they will not find a ‘kutcha’ reed as they did in Professor Gokhale and the editor of the Dnyan Prakash, Then you must remember beyond a certain stage we are all servants of the people. You will be betraying and disappointing them if you show a lamentable want of courage at a critical time. But, above all, as an honest and honourable man, how can I plead guilty to the charge of entertaining sedition when I had none? If I am convicted, the sympathy of my countrymen will support me in my trouble.”
On the 28th July, Keshavrao Bal, publisher of the Kesari and the Mahratta, was arrested and a number of documents and papers were confiscated from the office of the Kesari and the Mahratta. A warrant was issued for the arrest of Hari Narayan Gokhale, proprietor of the Aryabhushan Press, but as he was out of Poona it could not be executed. Kelkar, the editor of another Marathi paper, was also arrested at Talegaon and brought down to Bombay to meet charges of sedition, etc. On Wednesday the 28th July, Sardar Balwant Ramchandra Natu and his brother Hari Pant were arrested under warrants issued by the government and deported to places outside the limits of Poona District, where they were to be detained at the pleasure of the government. All the arms in the possession of the Natu family were seized by the police and their landed and other property attached by the government. The government had to rake up an old and musty regulation passed in 1827 in support of these repressive measures against the Natus. On the 29th June, a bail application on behalf of Tilak was made to the High Court which was disallowed; but permission was given to apply again. It was not until August 2nd, when the case was committed to tne High Court Sessions, that bail was admitted by Mr. Justice Badruddin Tayyabji, the presiding judge. The application was made by Mr. Davar, Barrister-at-Law, instructed by Messrs. Bhaishankar and Kanga, Solicitors.
The Trial
Tilak’s arrest aroused wide interest and expressions of sympathy too were nation-wide. A Tilak Defence Fund was started simultaneously in Bombay and Calcutta and soon reached the respectable figure of Rs. 47,000. The Indian press, with the exception of Anglo-Indian papers like the Times of India, was loud in condemning the government for its high-handed policy which reminded one of the days of Mogul rule. The arrest was also welcomed in certain quarters as it afforded Tilak an opportunity to clear himself of certain charges that were ceaselessly levelled at him by his enemies. Thus an Englishman writing from London to the Champion of Bombay on July 30th, 1897, observes: “The action of the Bombay Government in arresting Mr. Tilak and others on the charge of sedition has attracted attention here. Generally the action of the government is approved for it is felt that there have been so many rumours in the air that it is better that the whole matter be placed before a judge and jury and the truth, if possible, be discovered.”
However, one thing particularly noticeable was the fact that the British press prejudged the issue, insinuated that Tilak and the Natus were directly connected with the murders and blamed the government for having followed a weak-kneed policy in respect of sedition-mongers. The Standard (London) went even so far as to declare, “The refusal of Lord Sandhurst to exercise his right of veto when Mr. Tilak was elected a member of the Provincial Legislative Council has been denounced as an indication of administrative imbecility which was certain to encourage further outbursts of sedition.” However, some of the more liberal journals in England took a different view. Referring to the Memorial sent by the citizens of Poona complaining against the Plague Administration and the evasive replies given to it by Lord Sandhurst, the Daily News observed, “It is quite possible that the Memorial is an absolute fabrication, a tissue of lies from the beginning to end... but one may well doubt whether any such result will be obtained or approached by quartering a punitive force upon the impoverished inhabitants of Poona.” Regarding the dismissal of the Poona Memorial it was pointed out by another English journal, “Red-tape is becoming far too plentiful, nothing is more fatal to good government. Is self-complacency a criterion of good government?” Others had already demanded a full and searching inquiry into the charges and had sounded the warning that “Nothing can be more criminally striped than a policy of hushing up the facts of the case or a mere brute force suppression.”
The case against Tilak came up for hearing on the 8th of September and lasted for a week. Mr. Justice Strachey was the presiding judge and the jury consisted of six Europeans, two Hindus and one Parsee. Tilak was defended by Mr. Pugh, of the Calcutta Bar, assisted by Mr. Garth, who also hailed from Calcutta. The Hon. Mr. Basil Lang, the Advocate-General, conducted the prosecution.
A case of this nature and its proceedings were unprecedented in modern Indian history. The Englishman, after 80 years of rule, was still a foreigner and a stranger in India, and therefore had always a feeling that he was sitting on the top of a volcano that would erupt any time. No wonder therefore that the Indian Penal Code and the whole paraphernalia of the law were brought forth to demonstrate the might of Imperial Britain and crush any disruptive, seditious voice. As Tilak was fully aware, it was not merely a case against an individual. He had become symbolic of a tendency and represented a trend in Indian politics and the government was sure to do its best to check this tendency by adopting the most ruthless measures. The merest scrap of evidence to incriminate him in the Rand murder would be exploited to the full by the government. Mr. Bruin, the special officer appointed by the government to investigate the Rand murder, had several meetings with Tilak and did his best to connect Tilak with it. The meetings between Tilak and Bruin were bouts of wit between two shrewd persons and Tilak emerged victorious out of them, though each felt admiration for the other’s talents.
An account of the trial has been given by J. Chaudhari, Bar-at-Law, of the Calcutta Bar, who says:15 “Prosecution for sedition in those days was rare. Prosecution of such an eminent leader of public opinion like Mr. Tilak for sedition, shocked the whol
e of India.” Mr. Chaudhari refers next to attempts made in Calcutta to engage an eminent barrister to defend Tilak; but as the trial was to take place in September, which was the time of the long vacation for the Calcutta High Court, no eminent barrister was forthcoming. At last Messrs. Pugh and Garth were engaged on payment of an honorarium of Rs. 10,000 and Rs. 5,000 respectively. “Before the trial commenced, we had long consultations with Mr. Tilak. At these consultations Mr. Pugh, Mr. Garth, myself, Mr. Tilak and his solicitors were present. Mr. Pugh and Mr. Garth were greatly impressed with the great ability, keenness of intellect, strong common sense, spirit of independence, and the remarkable knowledge of law that Tilak displayed in course of the consultation.” They were at once convinced that their client was no ordinary man. Cultured Englishmen always admire a man when they find elements of greatness in him, although they may not always fall in with his views.
“One of their questions to Mr. Tilak and the answer that he gave them, are still fresh in my memory. His counsel asked him, ‘Surely, Mr. Tilak, you desire self-government for India and not absolute independence.’ Tilak laughed, as he often did when any awkward question was put to him, and answered, ‘Desire for independence on the part of a subject people is nothing dishonourable and is no crime.’ He quoted from memory some passages from some English writers as also legal dicta in support of his views. Then he laughed again and told his counsel that they might take it that self-government for India was his present political aim and absolute independence was then beyond the range of practical politics.”
The Advocate-General in the opening speech for the prosecution read out Section 124-A of the Indian Penal Code, under which the two accused were being prosecuted. He also read out the explanation of the words “Disaffection” and “Disapprobation”, given by Sir Comer Petheram, the Chief Justice of Bengal, who said, “Whenever the prefix ‘dis’ is added to a word, the word formed conveys an idea the opposite to that conveyed by the word without the prefix. Disaffection means a feeling contrary to affection, in another words, dislike or hatred. Disapprobation means simply disapproval. . . . The meaning of the two words is distinct....”
Reference was made next to the two incriminating articles in the Kesari, entitled, “Shivaji’s Utterances”, a sketch of Shivaji’s career was drawn and lastly Tilak’s references to the murder of Afzalkhan were cited. Seven witnesses were called forth to give evidence on behalf of the prosecution and the main contention rested on the meaning and explanation of certain Marathi expressions. The whole process was extremely cumbrous, for the judge and at least six of the jury, in addition to the counsels for defence and prosecution, did not know Marathi. Tilak himself advised his counsel about the interpretation of certain words and when called upon by the judge, gave grammatical explanations of the incriminating words.
The defence decided not to call any witness and Mr. Lang addressed the jury. He spoke about the stormy atmosphere of the city of Poona and dwelt at length on the high social position of the accused. “He is, therefore, a person of position in Hindu society and a man, who, you may imagine, would have a certain amount of influence.” He referred next to the fact that Tilak had made a deliberate attempt to give a political aspect to the Shivaji celebrations and to take advantage of the fact to excite disaffection towards the present rulers. He referred in detail to the lectures by Professors Paranjpe and Jinsiwalle which were reported in the kesari articles and pointed out, “Tilak suggested that it was perfectly justifiable for anyone to remove persons in the same way as had been done in the French Revolution”. Tilak’s articles on the Jubilee celebrations were also cited as evidence to show that the accused had not the slightest feeling of loyalty for the British Government or the Queen.
In his speech for the defence Mr. Pugh pointed out that as Marathi was the language of the Court of Poona the case should have been tried at Poona and not at Bombay. He referred to the considerable delay that had occurred in launching the prosecution. The incriminating article was first published in the Kesari on the 15th June 1897. In the meanwhile letters signed as ‘Justice’ appeared in the Times of India, and questions were asked in Parliament. Reading between the lines, “The government at home were much exercised over this matter, and they thereupon sent out a mandate to have it cleared up, and the result is that this trial is instituted.” Regarding the objection that the Shivaji celebrations were used for political purposes, Mr. Pugh said, “There was no doubt a great jubilation over Shivaji, just in the same way as any of you, gentlemen of the jury, who are Scotchmen, would have done while celebrating the memory of Bruce and Wallace, in Scotland, in India or anywhere else.... We like to keep up the spirit of patriotism which we desire to cultivate amongst the people.... The Shivaji festival was instituted entirely upon the western model...”, and further, “There was nothing in the articles which incited murders or hatched a plot for the overthrow of the empire.” Paying a tribute to the work done by Mr. Tilak in the plague, Mr. Pugh remarked, “Here is a man who has been working heart and soul with government during the time of the plague.... He was loyal while the people were disturbed and perturbed.... Tilak had no animus against the government.” Lastly, Mr. Pugh appealed to the jury to dismiss all the prejudices in this case and consider it fully upon its merits. Concluding his speech, he said, “And I will say if you will do that, you cannot... come to any other conclusion but that you have here an honest man before you, who might perhaps have said things, but who never for a moment intended to preach disaffection against government.”
In his summing up, the judge referred to the Shivaji passage and said, “In his justification of the killing of Afzalkhan it is satisfactory to find that Tilak draws a sharp line between the rule to be applied to a great man or hero, and common man like himself. It does not seem to me, however, that a discussion as to how far great men are bound by ordinary rules of morality was a proper one to circulate about. I do not say it never ought to be done, but scrupulous care ought to be exercised, especially by a leader of society like Tilak.” Regarding the question as to whether the accused by these articles wanted to star up rebellion, the judge said “that was not the test of guilt under the section. It was sufficient for the purpose of the section if the feeling the prisoner intended to incite was enmity against the government an - enmity that might take root and spring up in the distant future.”
The judge, having concluded his summing up, the jury retired for consultation and returned after three-quarters of an hour. They gave a unanimous verdict of not guilty in respect of Accused No. 2, Keshaorao Bal, Clerk and Manager, Aryabhushan Press. About Accused No. 1, Bal Gangadhar Tilak, the jury were divided, six holding the accused guilty, while three pronounced a verdict of not guilty. The proportion of European jurors to Indians was also 6:3! The judge upholding the majority verdict sentenced Tilak to eighteen months’ rigorous imprisonment. In giving the sentence the judge observed: “Although I take a serious view of your offence, I do not take such a serious view as to award the maximum punishment.” The points in favour of Tilak, the judge said, were: “You are not an ordinary obscure editor and publisher, but you are one of the leading members of your community; and being a man of influence, a man of remarkable ability and energy, and who might under other circumstances have been a useful force in the State.” Referring to Tilak’s work during the plague the judge observed: “I shall also take into account and will attach still more weight to the fact that at all events for a considerable period, you did good work in connection with the plague and attempted to enforce a reasonable policy upon your countrymen.”
An application was made to the Full Bench of the High Court asking permission to appeal to the Privy Council. About the application to be made to the High Court for leave to appeal to the Privy Council, J. Chaudhari gives the following account, which is a glowing testimony to the judicial acumen of Tilak:16
“After the trial we decided that we should move the Bombay High Court for leave to appeal to the Ju
dicial Committee of the Privy Council. It was arranged with Mr. Pugh and Mr. Garth that I, in company with the solicitors of Mr. Tilak, would see them with a transcript of the judge’s charge at the Byculla Club at about 9 a.m. next day and then the petition for leave would be drawn up in consultation. It was also arranged that as Mr. Tilak might have some instructions to give, a messenger should see him in the morning and bring his suggestions to the club. On arrival at the club we sat down for reading the transcript of the judge’s charge to the jury and before we had finished it, the messenger from Mr. Tilak arrived with a bundle of papers with a lot of writing on the sheets in pencil. After we had finished reading the judge’s charge, Mr. Pugh opened the bundle of papers that had been sent by Mr. Tilak from jail. Mr. Garth and I who were seated on either side of Mr. Pugh, to our unspeakable surprise, found that it was a draft of the petition for leave to appeal to the Privy Council that we had met to draw up. Mr. Pugh with great delight went through it from top to bottom, handed it over to Garth and said that we could not possibly have done it better. Both Mr. Pugh and Mr. Garth said that they could put it in form and settle it by tinkering with it here and there but could not possibly add to or improve upon it. Their appreciation of Tilak’s ability and intellect, which was already very high, now matured into great admiration and they said that during their professional experience, they had not come across any layman or even a lawyer who could draw up a petition of appeal so accurately and exhaustively after having only heard a charge or judgment delivered by the judge in court and without reference to any notes. Such a man was Tilak.”