Lokmanya Tilak
Page 39
The Arrest
Paranjpe’s arrest, as predicted by many people, was merely a prelude to a bigger haul that the government intended. Tilak also could foresee the event. He went to Bombay in the third week of June, to advise and assist Paranjpe. When Tilak was about to leave for Bombay, a police officer accosted Bapusahib Gandhi, pleader, who was accompanying Tilak and whispered to him that Tilak was likely to be arrested soon. Bapusahib Gandhi conveyed this to Tilak and remarked, “You had better go tomorrow, so that you can now go home and make all arrangements.” Tilak only laughed at this and said, “What are the arrangements after all? Have I to mobilise an army or to dig trenches so that the fort should not be attacked? The government has converted the entire nation into a prison and we are all prisoners. Going to prison only means that from a big cell one is confined to a smaller one.” Tilak went to Bombay and had his lodgings at Sardargriha. The warrant to arrest Tilak was signed on 23rd June and was served on him on the 24th. Yeshwantrao Kulkarni, who was with Tilak, got the news earlier and informed Tilak about it. Tilak immediately said, “What is the use of conveying such a news earlier to the leader of a nation that is not strong enough to offer any resistance?” Tilak then slept with his usual equanimity and after getting up lightheartedly asked Kulkarni why the warrant was delayed. The bureaucracy has its perverse ways and the warrant was served at 6 p.m. so that Tilak should not get time for a bail application and should be immediately sent to the police lock-up. On the next day, the Gaikwad Wada and Tilak’s bungalow at Sinhgad were searched. The search of Gaikwad Wada went on for more than four hours and was carried out by Mr. Sullivan, a police inspector from Bombay, and by the District Superintendent of Police, Poona. Besides the files of the Kesari and the Mahratta and other relevant papers in the office, the police officers examined every scrap of paper at Tilak’s house and in the Kesari and the Mahratta offices. After about two and a half hours, the police inspector Mr. Sullivan almost became frantic with joy. At long last he had secured a covetable secret document! In the open locker of Tilak’s table, he had found a card on which were written the names of two books which gave information about explosives. Here was a key that unlocked the whole mystery. Conclusive proof was now in the government’s hands which was strong enough to prove Tilak’s complicity in the crime of terrorist activity. The imaginative sweep of the official Sherlock Holmes easily brushed aside the elementary consideration that a person engaged in secret activities would not keep a piece of evidence in an open lockers1. With such a strong piece of evidence in their hands, actual names of books on explosives, a fresh warrant under the Arms and Explosives Act was also found to be necessary, which was issued on 24th June for the article The Country’s Misfortune’ printed in the Kesari of 12th May 1908. On 25th June he was placed before Mr. Aston, the Chief Presidency Magistrate. Tilak’s application for bail was rejected. On the 26th June, another prosecution was instituted against him in respect of the article, ‘These Remedies are not Lasting’ in the Kesari of 9th June 1908. A fresh warrant was executed on Tilak in jail. On 29th June, some formal evidence was recorded and Aston committed Tilak to the third Criminal Sessions of the Bombay High Court on two sets of charges under Sections 124A and 153A, by two separate orders of commitment. As an under-trial prisoner Tilak was kept in Dongri jail at Bombay. This almost rendered him helpless in the preparation of defence.
The Trial
On the 2nd of July an application for bail was made on Tilak’s behalf by M. A. Jinnah, Bar-at-Law, to Justice Davar. It was indeed an irony of fate that Davar who, during the trial of 1897, had submitted the bail application for Tilak should now sit in judgment on Tilak. The attitude of Justice Davar proved the general notion that a person’s behaviour is determined by the office he holds. Jinnah argued for Tilak’s release on bail, and said that any amount would be furnished as security. When the Advocate-General Mr. Branson was about to appear, Mr. Justice Davar said, “I will not trouble you.” In disposing of the application he said, “it would be wise under the present circumstances, not to give any reasons or enter into discussion of the considerations weighing with him in refusing the application.” This showed, as N. C. Kelkar remarked, “which way the judicial wind was blowing.” The Crown had applied to the Court for a special jury to be empanelled to try Mr. Tilak. On the 3rd July, the application came for hearing. Mr. Baptista, Bar-at-Law, appeared for Tilak and very ably opposed the application for a special jury. He argued, “Ordinarily Tilak should have been tried in Poona.... He would then have had the advantage of being tried by a judge who knows the language well and who would have been assisted by Assessors who would unquestionably be Marathas.... He would thereby obtain that very kind of jury which a trial by jury really contemplates, viz men taken from the place and from the people who know the language and the accused and would, therefore, be the fittest judges.... On the contrary, a special jury would be prejudicial to a fair trial and would be opposed to all the fundamental principles of justice and jrurisprudence.” ;
Mr. Justice Davar, however, disposed of the application and said, “There is no doubt what ever that the cases against Mr. Tilak are important cases from his own standpoint and I feel in his own interest he should have the benefit of being tried by a Jury selected from the citizens of Bombay, but from the higher class of citizens.” Justice Davar would do nothing against Tilak’s interest and gave him all the benefits —refusal of the bail application and a special jury!
The Sessions proceedings commenced on Monday, 13th July 1908. Mr. Branson, Advocate-General, appeared for the Crown and he was assisted by Mr. Inverarity and Mr. Binning. Tilak appeared in person to conduct his own case. Not that there was no eminent lawyer who would have appeared on Tilak’s behalf, but Tilak wanted to present his case in a particular manner which he thought he could do best. M. A. Jinnah in his reminiscences of Tilak has written: “I am not disclosing any secrets, I hope, with reference to his trial before Mr. Justice Davar when I say that, he was determined not so much to secure his acquittal, but to establish that the Anglo-Indian press was guilty of defaming India and Indian people, which was as much a libel and the government did not take any steps against them. There arose a serious difference of opinion between him and myself as a counsel, because I refused to adopt any line, as a counsel, except what I considered best for his defence.”
Mr. Inverarity, Bar-at-Law, gave the opening address for the prosecution. The recording of the evidence for the prosecution, which was more or less of formal character, occupied the Court for about two and a half days. The only witness that was cross-examined, with any degree of keenness on the part of Mr. Tilak, was Mr. Joshi who was put into the box to identify certain official signatures, to put in the incriminating and other articles, and to certify to the correctness of the translations which not he himself but someone else had made. The record of this cross-examination, which was searching and creditable to the Marathi scholarship of a man like Mr. Tilak, will show that Mr. Tilak completely succeeded in establishing the merits of the objection which he subsequently dwelt upon in his speech, namely, that though not purposely distorted the mistranslations were numerous enough and calculated to create a wrong notion in the reader’s mind about the spirit of the Marathi articles.
Out of the fifteen exhibits put in for the prosecution seven were articles from the Kesari, two were government sanctions for the prosecution, two more were Mr. Tilak’s formal declarations as press owner, printer and publisher, and two others were the search warrants; one was the copy of the Panchnama of the search in which were noted sixty-three documents which were seized by the police. And the remaining exhibit was the post-card. Of these Mr. Tilak objected to the admissibility of the articles other than the charge articles and to the post-card. But his objections were overruled. As regards the Panchnama, with the exception of the post-card, one portion of the papers included therein was not put in at all by the prosecution, but was returned to Mr. Tilak. The remaining portion was bodily put in a
s a whole bundle by Mr. Tilak along with his written statement. This bundle Mr. Tilak had to put in only for the purpose of showing the character of the papers and the conditions in which the post-card was found. But the putting in of these papers even for that limited purpose was regarded technically as amounting to giving evidence for the defence, and that cost Mr. Tilak the right of reply which is extremely precious to an accused person, especially in a trial by jury. Having lost the right of reply, Mr. Tilak decided also to put in a number of newspapers which were calculated to prove his contention that his articles were written in a controversy, and as replies to the points, as they arose in the controversy, between the Anglo-Indian papers on the one hand and the Indian papers on the other. Mr. Tilak’s statement was a simple and a brief one in which he asserted that he was not guilty and described the real character of the incriminating articles.
With reference to the card, which sent Inspector Sullivan into raptures, Tilak made the following statement: “With reference to Exhibit K, I have to explain that after the Explosives Act was passed I wished to criticise it and especially the definition of explosives in the same. For this purpose it was necessary to collect material and the names of the two books on the card were taken down from a catalogue in my library with a view to send for them in case they could not be found in any of the Poona or Bombay libraries.” In conclusion he said: “The article of 9th June is intended to point out the futility of repressive measures alone in preventing the recurrence of bombs. In support of what is stated above in para 4,1 produce along with this statement papers as per list annexed. The charge articles embody my honest convictions and opinions. I state that I am not guilty of any of the charges brought against me and pray that I may be acquitted.”
Tilak had hardly twelve days to prepare his defence. The facilities given to him were limited. Only a very limited number of friends could go and see him for a limited time. Tilak’s legal acumen had already been testified to by Peugh and Garth, his counsels during the first trial in 1897. They could, however, only get a glimpse of it. On this occasion Tilak had a far more difficult task to accomplish. He had to defend himself against very serious charges without adequate aid either of books or from any legal adviser. Moreover as is evident from the reminiscences of Jinnah he had planned his own line of defence. This was again one of those memorable trials in India’s struggle for freedom in which the accused is not to be looked upon as merely an individual seeking his acquittal. As one who had voiced India’s political aspirations he stood as a symbol of national honour. His speech for defence therefore was to be in reality a virtual manifesto of the nationalist movement. Through it a leader of public opinion was going to vindicate the way in which he discharged his duties to a subject people. Tilak was not therefore interested in legalistic quibbling or hairsplitting. He wanted to justify his writings in the light of the fundamental principles of justice and morality which stood above the notions of justice and morality within the purview of the Penal Code. It was only another extension of the moral sanction to which he had made a reference in the agitation against the Bengal partition. While outwardly he addressed Justice Davar, he was, as a matter of fact, addressing the people of India to whom he was ultimately responsible. He would be satisfied only when he could convince the people that he had spared no efforts in serving their cause and his ultimate reward would be to inspire in them a desire to carry on his unfulfilled tasks. To be in or out of jail was therefore the least of the considerations that weighed with him. Though an accused, he stood also as an accuser trying to indict the Anglo-Indian press for bringing India and Indians into disrepute and the British Government for suppressing India’s natural right to freedom. Through the trial he was going to take an opportunity to declare to the world India’s aspirations, for reiterating the right of the Indian press to educate people and to inform the government of the mighty forces which had arisen in India’s political life and which could no longer be put down. Tilak was no orator and he did not follow the dramatic method of Sheridan or Fox. There was no sentimental touch about his speech nor had he a rare command over English; and yet all those who listened to him were profoundly impressed. The dignified manner, the exalted tone and the ringing sincerity of his utterance had an elevating effect on all those who were present in the Court. Here was a champion of liberty making a spirited plea for justice. He did not ask for mercy. That would go against his grain. He was conscious that he spoke the truth and he knew that the truth had among its rewards a cup of poison, a crucifixion, the consuming flames of fire or least of all a dungeon. He had written earlier that when law was divorced from morality, the only course left open to an honourable person was to break the law and suffer the consequences of his action. Prison therefore was a holy place. He did not, however, just state his claim as a champion of truth; he also pointed out how even within the present framework of law, his writings could be interpreted differently from what the government had done. The speech lasted for twenty-one hours and ten minutes. According to the saying ‘Speak that I may see thee,’ Tilak spoke and those who listened to him saw a master mind having a prolific memory, a wonderful capacity for marshalling arguments, a deep insight in law, a tremendous intellectual sweep and above all an irrepressible moral urge.
At the beginning of his speech, Tilak remarked that the charges brought against him were vague. Whole articles were included in the charges and he had therefore to refer to every portion of the articles, which was likely to be pressed against him. Tilak further remarked: “A case of sedition divides itself into three parts. First, there is the publication of the article; secondly, there are certain insinuations and inuendoes; and lastly, the question of intention. The publication I have already admitted. I have taken full responsibility of the publication of those articles. I may mention that one of the points, namely, insinuation and inuendoes, should not be based on the translations of the articles. They are not the original. The original has got perverted in the translations and any insinuations based upon these translations would be likely to be unsafe. The only evidence of intention produced by the prosecution is the card, besides the articles. They ask you to rely upon the translations of the two incriminating articles and the other three which have been produced before you to prove intention. They say you have to judge from the writings themselves whether they are seditious or not. I think the matter is not so simple as that. The question of intention is the main question in this case; and I hope to show that by reading the articles by themselves you cannot form any judgment as to my guilt or innocence. It is unsafe, nay, dangerous, to adjudge me guilty merely because the words, as conceived by you from the wrong translations, are in your opinion calculated to produce feelings of hatred and contempt in a community of which probably you know nothing.”
N. C. Kelkar has given a fine summary of the arguments which Tilak advanced in his speech. He writes: “Mr. Tilak practically gave a discourse upon the law of sedition in England and the law of sedition in India and made some interesting new points about the construction of Sections 124A, and 153A. With regard to Section 124A Mr. Tilak pointed out that the first portion of the section did not apply to him at all, because that contemplated the fact of an actual excitement of disaffection, and there was in this case no evidence given whatever to show that Mr. Tilak’s writings resulted in such actual excitement of disaffection. What was proved in the case was only the words of the published articles and the identity of their publisher. The real character of the words of the articles was a matter for the jury; but no evidence was given to show to the jury, who did not know Marathi, that the words were really capable of the meaning which the prosecution sought to attribute to them. What remained of Section 124A, therefore, was only an attempt to excite disaffection. Mr. Tilak elaborately discussed the meaning of the word ‘attempt.’ He contended that the word could not be taken in its ordinary meaning but that it had a special meaning of its own. An act under the section must be an intentional and premeditated act with the defi
nite object of exciting disaffection, which must be proved to have failed in accomplishment by causes not dependent upon the will of the man making the attempt but operating quite independently of his control. There was here no evidence of the success of the attempt, or of the failure being due to something operating independently of Mr. Tilak’s will. As regards the object of the attempt, even supposing that the words of the articles were likely to create disaffection, the creation of that disaffection was not the object with which the articles were written. Even when a writing may be violent or reckless and even when there may be a likelihood of disaffection being caused thereby, the writer could not be punished for an attempt under Section 124A, if he has no criminal intention. The question of intention was therefore the principal one to be considered; and in deciding this question it was improper and unsafe to follow the maxim of civil law, namely, that every man must be presumed to intend the natural consequences of his acts. This intention could not be a matter of presumption, nor could it be proved only by the character of the words or inuendoes in writing. Criminal intention must be positively proved by the evidence of surrounding circumstances. The motive or object with which an act is done is of course not identical and ought not to be confounded with intention; but this motive or object is necessarily one of the most reliable indications in an inquiry as to intention.”