The Great Repression

by Chitranshul Sinha

  Disaffection, as thus judicially paraphrased, is a positive political distemper and not a mere absence or negation of love or good-will. It is a positive feeling of aversion which is akin to ‘disloyalty’, a defiant insubordination of authority, or when it is not defiant, it secretly seeks to alienate the people, and weaken the bond of allegiance, and prepossesses the minds of the people with avowed or secret animosity to Government, a feeling which tends to bring the Government into hatred or contempt by imputing base or corrupt motives to it, makes men indisposed to obey or support the laws of the realm, and promotes discontent and public disorder. 51

  Justice Ranade’s exposition of ‘disaffection’ was at odds with Justice Strachey’s exposition in Tilak’s case and appeared to be the more accurate of the two expositions. Being restrictive in nature, Justice Ranade’s exposition was representative of what James F. Stephen intended to include within Section 124A of the IPC, which was that mere thoughts or state of mind cannot be considered sedition. The case ended on 24 November 1897 with the High Court upholding the conviction, but the sentences were considerably reduced for being disproportionate. The editor was sentenced to one year of rigorous imprisonment, and the proprietor to three months’ simple imprisonment.

  The year 1897 was rounded off by the third sedition verdict of the year in the case of Queen Empress v. Amba Prasad 52 which was decided on 14 December 1897 by a full bench 53 of the Allahabad High Court comprising Chief Justice John Edge, Justice Harrison Falkner Blair and Justice William Robert Burkitt. The court was hearing an appeal arising out of a conviction for sedition by the Sessions Court at Moradabad 54 pertaining to an article published on 14 July 1897 by one Amba Prasad, who was the proprietor, editor and publisher of a vernacular newspaper named Jami-ul-Ulam. The article was titled ‘Azadi band hone se kabal namuna’. 55 Amba Prasad was quick to plead guilty, and on being asked to show cause why he should not be punished he said, ‘I can give no reason. Through inexperience I have committed this fault, for which I am very ashamed, and I wish to throw myself unconditionally upon the mercy of the Government. This is all I wish to say.’ The Sessions Court accordingly held him guilty of sedition under Section 124A and sentenced him to eighteen months’ rigorous imprisonment.

  Finding the sentence too severe and harsh, Amba Prasad appealed before the Allahabad High Court and argued that the Sessions Court should have taken his unconditional apology into consideration. He also compared his case with Tilak’s case and contended that his offence was much milder as compared to Tilak’s but the sentence was still the same, and therefore asked for a lesser nominal penalty in this context.

  The High Court deemed it fit to look at past cases to determine the degree of offence and whether the milder nature of the offence would entitle Amba Prasad to a lighter sentence. Thus, it looked at the Bangobasi case, Tilak’s case and the Pratod case and reached the conclusion that the difficulty in determining the true meaning of Section 124A was caused by the explanation to the section. The judges relied heavily on the charge to the jury by Justice Strachey in Tilak’s case, which in turn had relied on the Bangobasi case. In relying on the Pratod case the judges found the reports of the case, as far as the opinions of Justice Parsons and Justice Ranade were concerned, to be too imperfect to be relied upon. Seems convenient when you look at it now, considering Justice Ranade had probably provided the most accurate exposition of the law at that time. The judges merely assumed that if their opinions differed from Justice Strachey’s exposition then the Privy Council would most probably not approve of the same having approved Justice Strachey’s exposition in Tilak’s case.

  After looking at the facts of the case, the court reached the conclusion that Amba Prasad had attempted to excite active disloyalty and rebellion amongst the Mohammedan subjects of the British government in India, as the newspaper in question enjoyed a largely Mohammedan readership. Having found so, the High Court held that he did not deserve any reduction of sentence and dismissed his appeal.

  Soon thereafter, on 25 December 1897, a Bill to amend Section 124A was introduced in the governor general’s Legislative Council considering the events of 1897. The Council was of the view that the law which existed then was not drafted clearly by James F. Stephen. It felt that the judgments by the Calcutta, Bombay and Allahabad High Courts interpreted Section 124A in accordance with English law, so it would only be appropriate to amend the section to bring it explicitly in accordance with English law. The Bill therefore sought to repeal Section 124A and proposed to replace it with a new Section 124A which would read as: 56

  Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Government, or promotes or attempts to promote feelings of enmity or ill-will between different classes of Her Majesty’s subjects shall be punished with transportation for life or any shorter term to which fine may be added, or with imprisonment which may extend to ten years, to which fine may be added, or with fine.

  Explanation 1.—The expression ‘disaffection’ includes disloyalty and all feelings of enmity or ill-will.

  Explanation 2.—Comments on the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence.

  The Bill underwent further revision on 18 February 1898 by the removal of ‘or promotes or attempts to promote feelings of enmity or ill-will between different classes of Her Majesty’s subjects’ from the principal section, and the term ‘ill-will’ from Explanation 1. The term ‘Government’ was replaced by ‘Government established by law in British India’, and another explanation was added to protect the fair criticism of government measures which did not necessarily seek reforms as provided under Explanation 2. Section 124A was revised as follows (the italicized words are the additions): 57

  Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Government established by law in British India, or promotes or attempts to promote feelings of enmity or ill-will between different classes of Her Majesty’s subjects shall be punished with transportation for life or any shorter term to which fine may be added, or with imprisonment which may extend to ten three years, to which fine may be added, or with fine.

  Explanation 1.—The expression ‘disaffection’ includes disloyalty and all feelings of enmity or ill-will.

  Explanation 2.—Comments expressing disapprobation of on the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.

  Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

  Clearly, Justice Petheram’s and Justice Strachey’s charge to the jury, in the Bangobasi case and the Tilak case respectively, prevailed upon the Legislative Council which explicitly defined ‘disaffection’ in line with their exposition and made it wider than the offence under English law, contrary to what was intended by James F. Stephen. Explanations 2 and 3 were added as a positive assertion of the principle that people were at liberty to criticize the actions and conduct of the government and the bureaucracy—including demanding rollbacks or reforms—by lawful means.

  Sir Alexander Mackenzie, then lieutenant governor of Bengal, explained that the necessity of the revision stemmed from the fact that ever since the Vernacular Press Act had been repealed in 1881, the vernacular Indian press had grown more adversarial and defiant of the British government. He felt that the growth of such writing would eventually result in the collapse of law and order and activ
e resistance against the British government. He even blamed English education for the rise of unemployed but educated youth who turned to writing such articles in the vernacular press out of discontent. 58

  Therefore, upon revision of the proposed provision, the new Section 124A as enacted by Act IV of 1898 read as under:

  Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Government established by law in British India, shall be punished with transportation for life or any shorter term to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

  Explanation 1.—The expression ‘disaffection’ includes disloyalty and all feelings of enmity.

  Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.

  Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

  The deletions from the proposed Section 124A were separately enacted as a new provision, Section 153A of the IPC, which punished the promotion of enmity between classes, or class hatred. The new Section 153A as enacted in 1898 read as under: 59

  Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of Her Majesty’s subjects shall be punished with imprisonment which may extend to two years, or with fine, or with both.

  Explanation.—It does not amount to an offence with the meaning of this section to point out, without malicious intention and with an honest view to their removal, matters which are producing, or have a tendency to produce, feelings of enmity or hatred between different classes of Her Majesty’s subjects.

  The removal and separate enactment of this provision was necessary because retention of the provision would have expanded the scope of Section 124A to also cover promotion of class hatred, which was never the intention of the Legislative Council. Therefore, Section 153A was inserted under the category of offences against public tranquillity and not as an offence against the State.

  Another provision which was recast and enacted by the same Act IV of 1898 was Section 505 of the IPC which penalized statements conducing to public mischief. Even though it was under the chapter of offences of criminal intimidation, insult and annoyance, it was closer to Sections 124A and 153A in its application. Section 505 as enacted in 1898 read as under: 60

  Whoever makes, publishes or circulates any statement, rumour or report,

  (a) with intent to cause, or which is likely to cause, any officer, soldier or sailor in the Royal Indian Marine or in the Imperial Service Troops to mutiny or otherwise disregard or fail in his duty as such; or

  (b) with intent to cause, or which is likely to cause, fear or alarm to the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity; or

  (c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community;

  shall be punished with imprisonment which may extend to two years, or with fine, or with both.

  Exception. It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true, and makes, publishes or circulates it without any such intent as aforesaid.

  The exception to Section 505 distinguished it from Section 124A as the latter did not carve out an exception for writings or words which may be true. In other words, there was no defence of truth available under Section 124A as long as the writings or words excited disaffection against the British government.

  5

  Revolutionary Sedition

  The turn of the century saw the beginning of a new chapter in Indian nationalism, considering the British government, more or less, had had a peaceful existence after the mutiny of 1857. It also saw a change in guard at the helm of the British Empire with the death of Queen Victoria on 22 January 1901 and the consequent ascension of King Edward VII to the throne as the emperor of India. Victoria had ascended to the throne of the United Kingdom of Great Britain and Ireland as an eighteen-year-old in 1837 and was officially proclaimed as the empress of India on 1 May 1876. She considered India as the crown jewel of the British Empire even though she never once visited the country. 1

  Globally, the advent of the twentieth century brought about major geopolitical changes. Queen Victoria’s last years saw the South African Boer war (1899–1902) where the British army entered into conflict with the Boers, descendants of the settlers of the Dutch East India Company, for control of two Boer nations which were rich in gold and other precious minerals. 2

  Russia and Japan entered a war in 1904 over a fight for regional economic superiority. The war proved disastrous for Russia, both on the battle fronts and at home. Public opinion against the war resulted in nationwide political campaigns opposing the repressive Russian autocracy headed by the tsar, who quickly lost the people’s confidence. Things went out of control when the tsar used force to crush a peaceful peasants’ march on 9 January 1905 in St Petersburg killing or injuring hundreds of its citizens. This incident, known as ‘Bloody Sunday’, sparked off a countrywide bloody revolution which caused the tsar to concede important civil liberties and legislative powers to the opposition. 3

  The Russian Revolution of 1905 sparked off political unrest across the East. Mass movements occurred in Persia in 1906, China in 1907 and the Ottoman Empire of Turkey in 1908. 4

  The most monumental event that occurred in the first decade of the twentieth century in India was the partition of Bengal in 1905, which changed the face of the Indian subcontinent forever; the ramifications of the action are being felt till date. Before partition, Bengal comprised forty-eight districts with an area of about 1,90,000 square miles. The population of Bengal was about 78 million and the region comprised of present-day Bengal, Bangladesh, Bihar, Orissa and Chota Nagpur (in Jharkhand).

  On 7 July 1905, the British Viceroy Lord Curzon announced the decision to partition Bengal into two provinces of East Bengal and West Bengal. East Bengal was a Muslim-majority province which mainly comprised of parts of Assam, Chittagong and Dhaka (which became the capital) and the Rajasahi regions of Bengal. The British government justified the decision as an administrative necessity as Bengal was too large to be efficiently administered. When the proposal to partition Bengal was officially mooted by Lord Curzon in 1904 it was met with widespread opposition across the region as it was seen as an attempt to destroy Bengali as well as Hindu–Muslim unity and nationalism which was on the rise. Not just publications like the Muslim Chronicle 5 but even Anglo-Indian newspapers like the Statesman, Englishman and Times of India condemned the move. Interestingly, the move was also criticized by newspapers in England such as the Times, Manchester Guardian and Daily News. 6

  The suspicion that the reasons for the partition were more political than administrative was confirmed by Lord Curzon’s letter of 17 February 1904 to the secretary of state for India where he wrote:

  The Bengalis, who like to think of themselves a nation, and who dream of a future when the English will have been turned out and Bengali Babu will be installed Government House, Calcutta, of course bitterly resent any disruption that will be likely to interfere with the realisation of this dream. If we are weak enough to yield to their clamour now, we shall not be able to dismember or reduce Bengal again; and you will be cementing and solidifying, on the eastern
flanks of India, a force already formidable and certain to be a source of increasing trouble in future.

  In another letter dated 22 February 1905 he wrote:

  Calcutta is the centre from which the Congress party is manipulated throughout the whole of Bengal, and indeed the whole of India. Its best wirepullers and its most frothy orators reside there. The perfection of their machinery, and the tyranny which it enables them to exercise, are truly remarkable. They dominate public opinion in Calcutta; they affect the High Court; they frighten the Local Government and they are sometimes not without serious influence upon the Government of India. The whole of their activity is directed to creating an agency so powerful that they may one day be able to force a weak Government to give them what they desire.

  He created a wedge between the two religions predominant in Bengal by claiming that he wanted to partition Bengal to provide the Muslims of East Bengal a province and to promote Muslim unity which he claimed they had not enjoyed for ages. 7

  The move to partition Bengal was met with fierce resistance across the country but the circumcentre of the movement was in Calcutta and across Bengal, both East and West. The government reacted by suppressing nationalist feelings by banning the singing of patriotic songs and the chanting of ‘Bande Mataram’. 8 It hindered public meetings with the use of force and was generous in prosecuting students, including schoolboys. The British were successful in winning over the Muslims of East Bengal and espoused their cause of a separate province led by the nawab of Dhaka, which led to large-scale communal riots in East Bengal. 9