The Great Repression
Page 7
Meanwhile, on 26 July, the Bombay government directed Mirza Abbas Ali Baig, the Oriental translator to the government, to file a complaint under Section 124A against Tilak in his capacity as publisher, proprietor and editor of Kesari, and against Hari Narayan Gokhale, the printer of the newspaper. The complaint was filed before the chief presidency magistrate of Bombay on 27 July and Tilak was arrested late at night even though the government was aware that he was in Bombay throughout the day. Unsuccessful bail pleas on behalf of Tilak were rejected on 28 July by the magistrate and on 29 July by the Bombay High Court. However, when his trial was committed to the Bombay High Court on 2 August, another bail plea filed on the same day was allowed by Justice Badruddin Tyabji. 40
A word on the characters at this stage. Justice Tyabji was the first Indian barrister to practise before the Bombay High Court. He was a founding member of the Indian National Congress, and he presided over its 1887 session, making him the first Muslim person to do so. Interestingly, the judge who denied bail to Tilak was none other than Justice Mahadev Govind Ranade, the founder of the Industrial Association of Western India and another founding member of the Indian National Congress! 41
The lawyer who represented Tilak before the magistrate and the High Court in his bail proceedings was Sir Dinshaw Davar, who was later appointed as a judge of the Bombay High Court in 1908. He eventually became its acting chief justice in 1914.
After being enlarged on bail, Tilak was under great financial strain. However, he was bolstered by the help of friends and supporters who raised a public fund to help him prepare for his defence, for which supporters from even as far as Bengal sent contributions. The trial for sedition was scheduled for 8 September 1897 but no Bombay-based barrister was willing to take up the defence for Tilak. Rabindranath Tagore was forced to intervene and helped Tilak engage Mr Pugh and Mr Garth, two Calcutta-based English barristers, to appear for his defence before the High Court. The prosecutor on behalf of the government was Mr Basil Lang, the advocate general. The trial was presided over by Justice Arthur Strachey and was heard by a jury of nine members, out of which six were European and thus unacquainted with Marathi, the language in which the articles were published. 42
The advocate general opened the case by reading Section 124A of the IPC. He referred to the word ‘disaffection’ in Section 124A to have the same meaning as defined by Johnson’s Dictionary and Webster’s Dictionary, among others, and referred to the Bangobasi case where the term was defined by Justice Petheram in his charge to the jury. He laid out the government’s case before the jury by stating:
It is not necessary to prove that the writings in the Kesari, whether poetical or otherwise, incited a particular person to commit a violent act or create sedition in his mind. It is enough if there is only a possibility of it. If a particular piece of writing is calculated to create in the reader’s mind a desire to try overthrow of Government, it should fall under the category of sedition. Tilak is an honourable gentleman, a fellow of the Senate of the Bombay University and a Member of the Legislative Council. The circulation of the Kesari is about 7,000 copies, about a thousand of which are distributed in Bombay. The paper is a weighty and influential journal and calculated to mould the reader’s mind. It describes the Government as foreign. It asserts that the people are being crushed under tyranny. The Shivaji festival may be unexceptional in itself, but it has been given a political colour and has been used as an instrument to create a feeling of disaffection against the Government. The court has to consider the total effect of the articles and not isolated words or passages. It is one thing to say that India is suffering from poverty and another to connect that statement with the story of Shivaji and Afzal Khan. The whole aspect [of] it is changed. The duty of remaining discontented in order to flourish has been preached by the accused without any disguise. All writings of the accused tend towards creation of a feeling of resentment against the powers that be.
Lang further contended that it was significant that the two murders happened within a week of the publication of the articles in Kesari, despite having no evidence to substantiate this imputation.
Pugh, in defence of Tilak, submitted that the articles on the basis of which Tilak was charged did not fall within Section 124A. He stated that Tilak had taken an independent line with regard to the measures against the plague and had in fact cooperated with the government in ameliorating the condition of the victims. He contended that the articles were in fact in furtherance of loyalty to the government even though they set forth certain grievances, which could not be called seditious. He contended that there was no suggestion of overthrowing the British government, as such action could only be brought about by Hindus and Muslims uniting, which was something that praise of Shivaji Maharaj could not have brought about. He referred to James F. Stephen’s speech in the Legislative Council delivered while introducing Section 124A to contend that the dictionary meaning of the word ‘disaffection’ had to be ignored in favour of a legal meaning. He contended that ‘disaffection’ under Section 124A could only refer to the creation of a rebellious spirit against the government. In his statement to the jury, he said:
But for the murder of Rand, Tilak would never have been hauled up in court. Most of the subject-matter of Tilak’s alleged offences is in the form of verses. A metrical composition does not lend itself to a strictly legal, precise and scientific analysis. The Shivaji festival is very much like the festival of Robert Bruce and William Wallace. When people are fired with enthusiasm for such national festivities, they do use some extravagant, hyperbolic and metaphorical language. The controversy about Afzal Khan’s murder was in the Press long before Rand’s murder, and by no stretch of the imagination could that murder be related to the murder of Afzal Khan. If the Government seriously believed Tilak guilty of the abetment of murder, it ought to have openly accused him of it. The very fact that he has not been so charged but prosecuted under 124A, shows the weakness [of the] Government’s case. . . . Sedition whether in England or in India, must have the same connotation. A spicy description of a thousand and one grievances of the people, even when enumerated for the purpose of creating discontent among them must not be condemned as sedition. An isolated murder like that of Rand would neither ruin nor shake the foundations of the British Empire. Tilak’s articles written in connection with the Diamond Jubilee of Queen Victoria constituted sufficient proof of his loyalty to the Crown as of his genuine patriotism.
After hearing the advocate general and Pugh, Justice Strachey proceeded to deliver his charge to the jury on the fifth day of the trial. He summed up by saying:
You will thus see that the whole question is one of the intention of the accused in publishing these articles. Did they intend to excite in the minds of their readers feelings of disaffection or enmity to the Government? Or did they intend merely to excite disapprobation of certain Government measures? Or did they intend to excite no feeling adverse either to the Government or its measures, but only to excite interest in a poem about Shivaji and a historical discussion about his alleged killing of a Mahomedan General? 43
Justice Strachey then discussed the articles in detail and suggested that the case be looked at under two issues. He said:
First of all, you must remember the test to be applied is whether these people were trying to stir up a rebellion or feeling of enmity against the Government. Secondly, it is for you to consider the class of readers of the publication and the state of feelings at the time the articles were published, and the natural effect which according to their view the articles of the 15 th of June would have upon them at such a time.
However, he further restricted the first issue by telling the jury:
You are to read the articles with the other evidence and, putting aside all prejudice, say if Tilak was trying to make his readers hate the Government, or was commenting on measures with a view to excite disapprobation compatible with a definite policy to support the Government.
He followed the definition of ‘dis
affection’ as laid down by Justice Petheram in his charge to the jury in the Bangobasi case, which has been discussed earlier in this chapter. Justice Strachey gave a very wide meaning to the word to the extent that ‘disaffection’ would mean a mere lack of affection, and a feeling which did not translate into an overt act of hatred, enmity, dislike, hostility, contempt, or any other form of ill will against the government. He opined that ‘disloyalty’ was perhaps the best term to describe ‘disaffection’ as it comprehended every possible form of bad feeling for the government. He said:
That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government . . . if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section.
He further directed the jury to understand the term ‘government’ to mean ‘the British rule or its representatives as such—the existing political system as distinguished from any particular set of administrators’.
In directing the jury as to the meaning of the Explanation in Section 124A, Justice Strachey said:
. . . while the first clause shows affirmatively what the offence made punishable by the section is, the explanation states negatively what it is not. It says that something ‘is not disaffection’ and ‘is not an offence within this clause’. Therefore its object is to protect from the condemnation pronounced by the first clause certain acts which it distinguishes from the disloyal attempts which the first clause deals with. The next and most important point for you to bear in mind is that the thing protected by the explanation is ‘the making of comments on the measures of the Government with a certain intention’. This shows that the explanation has a strictly defined and limited scope. Observe that it has no application whatever unless you come to the conclusion that the writings in question can fairly and reasonably be construed as ‘the making of comments on the measures of the Government’. It does not apply to any other writings except that.
Thus, he further restricted the scope of inquiry by the jury by directing that the Explanation to Section 124A only applied to writings which consisted of mere criticism of specific measures or actions of the government like an enactment, tax or social schemes, and not to any writings which went beyond such criticism and incited or attempted to incite disaffection against the government. He relied on the explanation provided by Justice Petheram in the Bangobasi case to distinguish between ‘disaffection’ and ‘disapprobation’ and added that this distinction is the ‘essence of the section’.
While the jury deliberated on the case against Tilak, Pugh requested the court to reserve the question on the definition of ‘disaffection’ irrespective of the outcome of the trial. There were other sedition trials pending at that point of time and Pugh did not want the decision in the Tilak case to have a bearing on and prejudicing the other trials by definitively ruling on the meaning of ‘disaffection’. Reserving the question would have ensured that the other courts would have been free to interpret ‘disaffection’ in the manner it was intended to have meant when James F. Stephen proposed the introduction of Section 124A in the IPC. Justice Strachey, however, refused to reserve this question and decided that the definition as expounded in his charge to the jury was fair and balanced.
On the seventh day, the jury found in favour of the prosecution and convicted Tilak for the offence of sedition under Section 124A by a majority of six to three. He was sentenced to rigorous imprisonment for a term of eighteen months by the court.
The defence immediately applied for permission for leave to appeal the verdict mainly on the grounds that the definitions of ‘disaffection’ and ‘government’ as laid down by Justice Strachey were incorrect. The application was heard on 24 September 1897 and rejected by a special bench comprising of Chief Justice Charles F. Farran, Justice E.T. Candy and Justice Strachey.
Upon the High Court’s refusal to grant the certificate of leave to appeal to the Privy Council in England, which exercised the power of sitting in appeal over the Indian High Courts, Tilak filed a petition in the Privy Council seeking leave to appeal against the verdict of the Bombay High Court. The petition was filed mainly on the ground that the meaning of ‘disaffection’ as laid down by Justice Strachey was incorrect. Tilak was represented by H.H. Asquith, QC, who later served as the prime minister of England from 1908 to 1916. He contended that Tilak’s comments had not exceeded what in England would be considered within the meaning of public journalism. He emphasized that the misdirection by incorrectly defining ‘disaffection’ would not only affect Tilak but also the entire Indian press and Indian subjects of the British Crown. He argued that the definition adversely affected the liberty of press, the right to free speech and public meeting, and the right to petition for redressal of grievances. It was further contended that the right direction would have been that an essential ingredient of the offence of sedition under Section 124A would be such a state of enmity as would be incompatible with a disposition to obey the government. 44
After hearing the arguments for and against granting leave to appeal to the Queen in Council, the Privy Council decided that it was not a fit case for grant of such leave as no case had been made out by Tilak to entitle him to leave to appeal. The dismissal of the petition on 19 November 1897 concluded the appeals process and Tilak was consigned to suffer rigorous imprisonment.
He was initially imprisoned in the Dongri and Byculla jails in Bombay but was subsequently transferred to Yerawada jail in Poona. His health suffered greatly while he was in prison, and a person of his stature and intellect being imprisoned like a hardened criminal caused a major outrage. The British government was petitioned by Professor Max Mueller, Sir William Hunter, Sir Richard Garth, William Caine, Dadabhai Naoroji, Romesh Chandra Dutt and some members of the British Parliament seeking an early release for Tilak. The British government sought to impose the condition that he would give up politics if he was released early, a condition that was rejected outright. Another condition was that he would accept public receptions or felicitations upon his release, which Tilak readily accepted. He was also told that if he was found guilty of sedition again, he would be sentenced with an additional period of six months, which was the remainder of his term of sentence. Upon acceptance of these conditions, Bal Gangadhar Tilak was released from prison on 3 September 1898 at 10.30 p.m. after serving fifty-one weeks of his sentence. 45
At the time Tilak’s trial was going on before the Bombay High Court, another trial for sedition under Section 124A was under way before the Sessions Court 46 of Satara, a district in present-day western Maharashtra. 47 A vernacular by the name of Pratod 48 published at Islampur in Satara district was prosecuted for sedition for publishing an article titled ‘Preparations for Becoming Independent’ on 17 May 1897 which stated: 49
Canada is a country in North America under the British rule, the people of which have now become intolerant of their subjection to England. Though they are subject to the British people, they are not effeminate like the people of India. It is not their hard lot to starve themselves for filling the purse of Englishmen. They are not obliged to pay a pie to England. Their income from land-revenue and taxes are expended for their own benefit. They enact their own laws independently, and appoint their own officers, except one or two who are sent from England. Of even this nominal dependence they have become impatient, and are now busy making efforts to throw it off. It is natural for them to envy their neighbours, who after casting off their English nationality, and assuming the designation of Americans, are now enjoying the blessings of a free nation. They have appointed a committee to frame an independent constitution for themselves. This committee has issued a notification of their aims, copies of which have been distributed even in India. In this notification they have clearly stated their intention of throwing off the English yoke, and establishing a Government of their own. Like us, they are not men given to prattling, but can act up to their word. There i
s also strong unity amongst them. Spirited men show by their actions what stuff they are made of. There are no people on earth who are so effeminate and helpless as those of India. We have become so callous and shameless that we do not feel humiliation, while we are laughed at by all nations for losing such a vast and gold-like country as India. What manliness we can exhibit in such a condition is self-evident.
The Sessions Court found the publisher and proprietor of Pratod guilty of sedition under Section 124A and sentenced them to transportation for life and seven years’ rigorous imprisonment, respectively. The accused filed an appeal 50 before the Bombay High Court which was heard by a full bench of the High Court comprising Chief Justice Charles F. Farran, Justice H.J. Parsons and Justice Mahadeo Govind Ranade. The High Court upheld the guilty verdict passed by the Sessions Court and found that the article was based on false assertions and misreported the aspirations of the Canadian subjects of the British Crown. In doing so, the court found that the article provoked and instigated its readers by calling them effeminate and asking them to be strong-spirited men. Therefore, Chief Justice Farran held that the accused were guilty of exciting disaffection against the government established by law in British India. Justice Parsons concurred with the chief justice and found that the article attempted to excite its readers to overthrow the British government and replace it with another government. Justice Ranade also agreed with his fellow judges and found that the article intended to excite feelings of aversion and hatred against the British government. He further held that it attempted to use an ‘imaginary ideal of independence’ and tried to instigate its readers to imitate that ideal against the British government in India. He held that the article would be covered by the provisions of Section 124A and thus punishable for sedition. Justice Ranade’s definition of ‘disaffection’ is to be noted. He said: