The otherwise reluctant British government, which did not want to offend its Hindu subjects, was forced into action by the death of a child bride, Phoolmani, who was all of ten years old in 1889. She was married to a man named Hari Mohan Maiti who was over thirty years of age. Hari Mohan had sexual intercourse with her on their wedding night which allegedly led to her death that night itself. Hari Mohan was consequently charged for her rape and murder, and the case led to the coinage of the term ‘Harimaitism’ for the practice of consummation of marriage with child brides. Unfortunately, Hari Mohan was acquitted of the charge of rape by the court because the law against rape did not apply to the marital rape of a girl ten years of age. 13
The British government enacted the Age of Consent Act on 19 March 1891, which amended Section 375 and raised the age of consent from ten to twelve years, thus making sexual intercourse with any girl below the age of twelve, whether with or without her consent, an offence amounting to rape. This law was religion-neutral and applied to all native communities in British India. 14
A vernacular by the name of Bangobasi was a weekly newspaper which had a large circulation in Bengal; its name meant ‘Citizen of Bengal’. On 26 March 1891, the newspaper published the first of five articles attacking the Age of Consent Act as being opposed to Hindu traditions and morality. A translated extract of the first offending article goes: 15
The English ruler is our lord and master, and can interfere with our religion and usages by brute force and European civilization. The Hindu is powerless to resist; but he is superior to your nation in good morals, in gentle conduct and in good education. Hindu civilization and the Hindu religion are in danger of being destroyed. The Englishman stands revealed in his true colours. He has a rifle and bayonet and slanders the Hindu from the might of the gun. How are we to conciliate him? We cannot expect mercy or justice from him. Our chief fear is that religion will be destroyed, but the Hindu religion nevertheless remains unshaken. We suffer from the ravages of famine, from inundations, from the oppressive delays of the law courts, from accidents on steamers and railways. All these misfortunes have become more prevalent with the extension of English rule in India; but our rulers do not attempt to remove these troubles or to ameliorate our condition. All their compassion is expended in removing the imaginary grievances of girl-wives and interfering with our customs. We should freely vent our real grievances. We are unable to rebel, but we are not of those who say it would be improper to do so if we could. We have been conquered by brute force, but we are superior to the English in ethics and morality, in which we have nothing to learn from them. You may crush the body but you cannot affect the mind. Others like Aurungzebe and Kalapahar have tried before you and failed. You should not try and suppress girl-marriage because you won at Plassey and Assaye. It is error and presumption on your part to attempt to reform our morals.
As a consequence of publication of the offending articles, the proprietor, editor, manager and printer of Bangobasi were all charged by the government for sedition under Section 124A before the Calcutta High Court in the famous case known as Queen Empress v. Jogendra Chunder Bose & Ors. 16
The defence argued that only the actual writer of seditious libel could be prosecuted under Section 124A, and not the publisher and others who helped in publication of the writing in question. This was based on the fact that Section 124A as originally enacted did not mention that even the publication of seditious writing by anyone other than the original author would amount to an offence. In the present case, the identity of the author of the article in question was unknown. The defence further argued that the defendants could not be made criminally liable for the acts of the author, who was merely their agent. The defence relied on an English judgment 17 to substantiate its arguments. Justice C. Petheram, the chief justice of the Calcutta High Court, negated this submission and stated that the essence of Section 124A was the attempt to excite disaffection by words intended to be read, and did not restrict the scope of the offence to the writer alone. Therefore, anyone, including the publisher, who uses such seditious writing to excite disaffection as provided under Section 124A was liable for punishment for sedition.
The defence then argued that the articles published in Bangobasi did not contain any direct incitement to rebellion or use of force against the British government and therefore did not exceed the bounds of legitimate criticism. However, Justice Petheram felt that comparisons with ‘tyrants’ like Aurangzeb 18 and Kalapahad 19 was bound to cause feelings of hatred and enmity against the British government which could have resulted in violence.
Justice Petheram summarized the charge to the jury and placed two issues before them. Firstly, they had to understand what an offence under Section 124A would be, and secondly, based on that understanding and the evidence produced before them, they had to determine if the accused were guilty of sedition. He further explained that the words ‘disaffection’ and ‘disapprobation’ in Section 124A were not synonymous as contended by the defence. He was of the opinion that whenever the prefix ‘dis’ is added to a word, the word formed conveys an idea which would be the opposite of whatever would be conveyed by the word without the prefix. Therefore, he believed that disaffection meant a feeling contrary to affection which would amount to dislike or hatred. On the other hand, he believed that disapprobation meant mere disapproval. He summarized:
If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling. (Emphasis added)
He went on to distinguish between the British government and the administration to which powers were delegated by the government. He asserted that there was a great difference between dealing with government in that sense and dealing with any particular administration which exercised powers delegated to it. He asked, ‘Were these articles intended to excite feelings of enmity against the Government, or, on the other hand, were they merely expressing, though in strong language, disapprobation of certain Government measures?’ The jury was advised to bear in mind that the question they had to decide was whether the articles were published with the intention to commit the offence of sedition or not.
Upon considering the charge and the summation, the jury informed the court that it was unable to return a unanimous verdict. Justice Petheram would accept nothing less than a unanimous verdict and declared that a retrial before a different jury would be held at a future date. The retrial never took place because the accused issued an apology for the articles, due to which the prosecution was terminated.
Though the end was anticlimactic, the charge to the jury established the difference between disapprobation and disaffection, and echoed Justice Fitzgerald 20 in distinguishing between the government and its administrative delegates. This would have a bearing on the second trial for sedition, which is probably one of the most famous trials in Indian history and took place six years after the first.
The protagonist of this episode is Bal Gangadhar Tilak, one of the tallest personalities in modern Indian history. He was born in Ratnagiri 21 in the Bombay Presidency in 1856 and was home-schooled by his father, an academician, till the age of eleven. He commenced formal education at Poona High School, from where he matriculated in 1872. He was orphaned just before matriculation on the death of his father; his mother had passed away when he was ten. However, this did not deter him from higher stu
dies and he graduated from Deccan College in Poona in 1876 with a Bachelor of Arts degree. He read law at Bombay University after graduation and obtained an LLB degree in 1879. Three events which occurred during his time at Bombay University shaped his nationalist ideology. 22
The first was the trial and deposition of Malhar Rao Gaekwad, the maharaja of Baroda, by the British government in 1875 on the charges of poisoning the British Resident, 23 though this was not proved. The second event was an unsuccessful and minor uprising against the British in some parts of Maharashtra in 1876 which was allegedly led by one Vasudev Balwant Phadke. Though the uprising was quickly quelled, it left a deep impression on Tilak’s mind. This impression was not one of approval, but he realized that any uprising has to be on the same level as that of the British—through superior education and organization. The third and most tragic event was the great Madras famine of 1877–78 24 caused due to drought and failure of crops in the Deccan, taking the lives of about 5.25 million people in the British Indian territories alone. 25 The famine, which spread to parts of Punjab, the North-West Frontier Province and the Central and United Provinces in the second year, was made worse by the export of crops by the British during the drought which made food grains scarce for the native population and caused deaths due to starvation and malnutrition. 26
Tilak started two weekly periodicals in 1881: Kesari, 27 a Marathi vernacular, and Mahratta 28 which was published in English. His first brush with the law occurred in 1882 when he was imprisoned for four months, along with Gopal Ganesh Agarkar, the editor of Kesari and Mahratta. He was convicted for publishing purportedly defamatory articles against the native administrator of Kolhapur, alleging that he planned to poison the prince of Kolhapur. However, this only made Tilak more popular with the people, and he was given a reception befitting a hero when he was released from prison. Agarkar soon thereafter devoted himself to education and social reform. Tilak, having established the Deccan Education Society in 1880, joined the Indian National Congress in 1889.
Bal Gangadhar Tilak, like Bangobasi and many other orthodox Hindu public intellectuals and leaders, was opposed to the Age of Consent Bill. However, his opposition stood on a different footing than the other orthodox leaders. He believed that a foreign bureaucracy should not pass judgment on Hindu traditions and customs through legislation. He believed that instead of legislation the evil of intercourse with girl brides could be tackled through education. However, he went a step ahead from merely opposing the Bill and proposed that rather than having a general legislation like the Age of Consent Bill, social reformer leaders should bind themselves to the pledge 29 that girls and boys should not be married until they attain the age of sixteen and twenty, respectively. The reformers, of course, refused to be bound to this pledge. 30
On 7 August 1895, Bal Gangadhar Tilak was elected to the governor general’s Legislative Council for two years and took the customary oath of allegiance to the British monarch. However, he did not look at his election as an impediment to his nationalistic work. He said, ‘An additional membership is, as I view it, no sop or gag intended to stop honest and fair criticism. But if it is, I should certainly give it up rather than consent to draw over the gross negligence or the palpable errors of officials, however high they may be.’ 31
The years 1895 and 1896 had deficient rainfall, and the resultant drought caused another great famine in the United Provinces, Central Provinces, Bihar, Bombay, Bengal, Central India, Rajputana, Punjab and Hyderabad. The reported number of deaths in British territories was 7,50,000, but the numbers would have been much greater as the figures for the native princely states were not available. 32
Though the British Crown and Parliament had vowed to ameliorate the condition of the natives affected by famines, the bureaucracy in India was apathetic towards the sufferings of the rural farmers and peasants. Bal Gangadhar Tilak sent out volunteers across the regions in question and discovered that the number of people affected by the famine was far greater than that reported by the local revenue officers and bureaucrats. Tilak’s volunteers apprised the affected population of their right to claim relief from the government and to seek concession from revenue collection. They encouraged them to not pay taxes at the cost of their lives and properties during the famine. Kesari did its part by dedicating its columns to speak out against the bureaucracy and suggested ways to ameliorate the conditions of the victims of the famine. These activities made Tilak very unpopular with the bureaucracy and the British government in India. 33
The drought ended in 1897 on the back of a good monsoon but the sufferings did not end. Post-monsoon, a large number of people became victims of fever as well as a plague caused by rats. The fatalities caused by the disease were estimated to be about 10 million. In the aftermath of the outbreak, the British government took strict measures to arrest the spread of the disease but failed to seek public support. Tilak supported the efforts by starting a Plague Hospital in Poona and acted as a conduit between the people and the government. The government established a body called the Plague Committee comprised entirely of Europeans, headed by one Mr Rand. The committee used British soldiers to conduct house-to-house searches for patients who were sent to government hospitals, while the other members of the households were segregated from the populace. Their belongings were destroyed for fear of the infection spreading and their houses were left unguarded. While supporting the measures taken by the government, Tilak suggested various measures to make the activities popular and proposed that the patients could be sent to his hospital instead to ensure popular cooperation. However, the government did not pay heed and the Plague Committee carried on its efforts without taking cognizance of native sensitivities. As a result, Mr Rand and a British army officer accompanying him were assassinated by Damodar Chapekar, a militant nationalist, on 22 June 1897. The assassinations spread panic among the Anglo-Indian community and provided the government an excuse to mount a campaign of repression against the vernacular press. 34
Earlier, an article in Kesari published on 23 April 1895 had reinvigorated the memory of Shivaji Maharaj in the mind of the public and sparked a campaign to renovate his tomb, which was situated within the Raigad fort in Maharashtra where he lived at the time of his death. In 1896, a festival was started to celebrate Shivaji Maharaj’s birth anniversary on 19 February. The festival could not be held on his birth anniversary in 1897 due to the plague and it was decided that it would be held on the anniversary of his coronation which fell on 13 June. The festival was held over 12–13 June and was marked by speeches, prayers, hymn singing and reading of religious texts. 35
15 June was marked by the publication of an article in Kesari reporting speeches delivered at the festival which justified and defended Shivaji Maharaj for killing Afzal Khan, 36 an act which was described as ‘murder’ by British historians. The speech had disapproved of this label and asserted that the killing was an act of defence and Shivaji Maharaj was justified in his act as he believed he was under attack. The article quoted a speaker as saying, ‘Every Hindu, every Maratha, to whatever party he may belong, must rejoice at this [Shivaji] festival. We all are striving to regain [our] lost independence, and this terrible load is to be uplifted by us all in combination. It will never be proper to place obstacles in the way of any person who, with a true mind, follows the path of uplifting this burden in the manner he deems fit. . . . If any one be crushing down the country from above, cut him off; but do not put impediments in the way of others.’ Another speaker was quoted as saying, ‘If no one blames Napoleon for committing two thousand murders in Europe, [and] if Caesar is considered merciful though he needlessly committed slaughters in Gaul [France] many a time, why should so virulent an attack be made on Shri Shivaji Maharaja for killing one or two persons? The people who took part in the French Revolution denied that they committed murders and maintained that they were [only] removing thorns from (their). Why should not the same principle [argument] be made applicable to Maharashtra?’
Thereafter,
Tilak himself was reported to have delivered a speech justifying the killing of Afzal Khan, reportedly saying, ‘Did Shivaji commit a sin in killing Afzulkhan or how? The answer to this question can be found in the Mahabharat itself. Shrimat Krishna’s advice [teaching] in the Gita is to kill even our teachers [and] our kinsmen. No blame attaches [to any person] if [he] is doing deeds without being actuated by a desire to reap the fruit [of his deeds]. Shri Shivaji Maharaj did nothing with a view to fill in the small void of his own stomach [from interested motives]. With benevolent intentions he murdered Afzulkhan for the good of others. If thieves enter our house and we have not (sufficient) strength in our wrists to drive them out, we should without hesitation shut them up and burn them alive. God has not conferred upon the Mlenchhas 37 the grant inscribed on a copperplate of the kingdom of Hindustan. The Maharaja strove to drive them away from the land of his birth; he did not thereby commit the sin of coveting what belonged to others. Do not circumscribe your vision like a frog in a well. Get out of the Penal Code, enter into the high atmosphere of the Shrimat Bhagwatgita, and [then] consider the actions of great men.’ 38
Anglo-Indian press like the Times of India blamed Tilak and Kesari for the assassination of Mr Rand as it occurred immediately after the publication of the above article. Such imputations were made even though there was no apparent link between the articles and the murder. The Times of India openly suggested that Tilak was guilty of sedition. To counter the Anglo-Indian narrative, Tilak started publishing a series of articles in Kesari from 20 July 1897 to explain what sedition meant. He went to Bombay from Poona on 27 July to seek legal recourse against the Times of India. 39
The Great Repression Page 6