The Indian National Congress was openly opposed to the partition since 1903, and Gopal Krishna Gokhale in his presidential address in 1905 called it a ‘cruel wrong’. The Bengalis reacted to the partition by starting the Swadeshi Movement whereby they boycotted all foreign and British goods and products and championed the use of indigenous goods and products. Tilak said, ‘We must raise a nation on this soil. Love of nation is one’s first duty. Next comes religion and the Government. Our duty to the nation will be the first. Swadeshi and Swadeshi will be our cry forever and by this we will grow in spite of the rulers.’ 10 The Swadeshi Movement crippled imports and hurt the British government financially.
From 1905 onwards, the Indian National Congress was divided into two groups: the moderates and the nationalists. The moderates were led by Gopal Krishna Gokhale and Phirozeshah Mehta and the nationalists by Bal Gangadhar Tilak and Lala Lajpat Rai. In 1906, the Indian National Congress session at Calcutta supported the Swadeshi Movement and called for Swaraj or ‘self-rule’ which, in the words of Dadabhai Naoroji, meant ‘the absolute right of self-taxation, self-legislation and self-administration’.
A violent revolutionary movement in Bengal was promoted by a periodical called Jugantar, which meant ‘new era’. It was founded in March 1906 by Barindra Kumar Ghose, Abinash Bhattacharya and Bhupendranath Dutt as a revolutionary weekly and was published in Bengali. It was used as a platform for propaganda by Bengali revolutionaries like Barindra Kumar Ghose and Jatin Banerjee. The periodical made no pretence and openly served the cause of overthrow of the British government. It suggested fighting the British through brute force and once wrote, ‘In a country where the ruling power relies on brute force to oppress its subjects, it is impossible to bring about revolution or a change in rulers through moral strength. In such a situation, subjects too must rely on brute force.’ In another article titled ‘Sedition and the Foreign King’ it questioned the legitimacy of the British rule as it was based on treachery and thus lacked legal and ethical basis. The government reacted by arresting Bhupendranath Dutt in July 1907 and charged him under Section 124A of the IPC. He was sentenced to one year’s imprisonment on being found guilty of sedition. 11
The trial, known as the Jugantar case, titled Emperor v. Phanendra Nath Mitter 12 took place in 1908 at the Calcutta High Court. Mitter was accused of committing the offence of sedition for the publication of three articles in Bengali in Jugantar. The first article ‘Death Wished For’ said:
The extensive undertaking which we have begun for making our country independent. The hand of him who shrinks from uselessly shedding blood will tremble at the time of usefully shedding blood . . . So long as we shall not be fit for entering into this field of devotion, so long shall we have to practise useless shedding of blood, so long the play of this sort of fruitless death will have to be played . . . But the restless youth, who has for many days wandered about restless, aiming at the life of the enemy of his country with the object of removing him altogether, the hopeless fellow who has run into the jaws of death as the result of failure, why do not the tears of sympathy of the people of the country keep his memory alive? Why does his conduct get soiled by the stigma of rebellion? If self-destroyer and self-offeror be the epithets applied to rebels and heroes, respectively, where then lies the difference between them? . . . Whom have we placed in the van of the preparations for an expedition against the ruling power, which we have recently made? . . . A call to death is now being sounded. Let nobody remain indifferent any longer, let those who know how to die lead the van in this party of pilgrims. So long as the preparations for the work of war are not complete, so long will you have to die in vain. There is no help for it, even the shaft levelled at the foe hurts the breast of the innocent. 13
The second article, title not mentioned in the judgment, said:
These untold self-sacrificing, firmly resolute, heroic, self-restrained young men afraid of dharma, who in the opening days of the year 1315, having staked their lives in an attempt to remove the sorrows and the unhappy lot of the country, have to-day fallen into the grasp of the firingee, through the efforts of the traitor, have been born again and again in order to establish the kingdom of righteousness in India . . . The rod of providence has been uplifted in order to destroy the Mlechchha kingdom.
The final article, titled ‘Conspiracy or Desire for Freedom’, said:
‘The word conspiracy is very ugly, and implies meanness. It is only a secret plot against the King which is called conspiracy. Did the prisoners in Calcutta get up a plot against the King in secret? Surely not. A secret effort or endeavour for gaining independence cannot be called a conspiracy. And the English, again, are not the rulers of this country. Nobody can take as a conspiracy the attempt or expedition against one who is not the king, but a robber, a thief, a barbarian, an uncivilised person, and an enemy of India.
The court referred to a few other articles which were not the subject of the charge of sedition but were used to demonstrate intention. Based on the three articles which were the subject of the charge under Section 124A, the jury found Mitter guilty of sedition. 14
Jugantar was unable to survive the spate of sedition prosecutions and the consequent financial crisis and wound up operations in 1908. 15
The anti-partition Swadeshi and Swaraj Movements spread to the Madras Presidency where in September 1907 a British police inspector named Bell was murdered by a constable, who immediately committed suicide. His funeral became a platform for anti-European and anti-British demonstrations. One Chidambaram Pillai delivered subversive speeches at Tuticorin and Tinnevelly 16 in February and March 1908. In a speech delivered on 9 March 1908, he said:
As soon as the English people set foot in India, poverty also made its appearance in the country. So long as the foreign Government exists we shall not prosper. So long as we continue to be the servants and slaves of foreigners we shall have to endure hardships. Three-fourths of the Englishmen now in India are traders. If we all unite and make up our minds not to purchase their goods what business will they have here? They must all run back to their country. Besides, if we avoid going to these accursed Civil, Criminal and Police Courts, the remaining fourth of the English will have no work to do. Thus all the white men will run away from our country. Being thirty-three crores of people how astonishing it is that we are slaves to three crores. The cause of our growing poorer day by day is that one hundred and eighty crores of rupees are carried away each year in steam ships to a country six thousand miles away. What country can stand such treatment as this? 17
Chidambaram Pillai was prosecuted for sedition under Section 124A, and for disturbing public tranquillity under Section 153A of the IPC for delivering this speech. He was sentenced to four years transportation by the Sessions Court, and the sentence was upheld by the High Court of Madras on 4 November 1908. 18
In the meantime, the rival moderate and extremist factions had a very public falling out at the Surat session of the Indian National Congress in 1907. First, the venue of the session was shifted from Nagpur to Surat, to the displeasure of the nationalist faction. Second, the nationalist faction wanted Lala Lajpat Rai to be the president of the session but this wish was thwarted by the moderates who ensured that Rash Bihari Ghosh was appointed as the president instead. Tilak wished to address the session on this issue, which was not allowed, resulting in an outbreak of violence with delegates assaulting each other. In an unfortunate turn of events, a participant hurled a shoe at Phirozeshah Mehta and Surendranath Banerji in the chaos. In the aftermath of the internal conflict, the Indian National Congress split up, with the nationalists led by Tilak parting way with the moderates. 19
Alarmed by the rise in revolutionary nationalism, the government enacted the Prevention of Seditious Meetings Act on 1 November 1907 20 which sought to prevent public meetings likely to promote sedition or cause disturbance of public tranquillity. The Act mandated that no public meeting for the furtherance or discussion of any subject likely to cause disturbanc
e or political excitement, or of any political subject, or for the exhibition or distribution of any writing or printed matter relating to any such subject shall be held without written notice of such meeting and only after obtaining permission for the same. People were not allowed to hold meetings in areas proclaimed to be out of bounds for such meetings by the government, and no one was allowed to deliver any speech at such prohibited meetings. Any contravention of the Act was punishable by a sentence of six months’ imprisonment or a fine, or both. The Act was valid for a term of three years.
Towards the end of 1907, the revolutionaries of Bengal ventured on the path of political assassinations. A train carrying Sir Andrew Fraser, the lieutenant governor of Bengal, was sabotaged and attacked on 7 December 1907 at Naraingarh in Midnapore, Bengal. The attack proved unsuccessful but announced the escalation of revolutionary violence in Bengal. The revolutionaries were trained and indoctrinated at secret societies which took the form of gymnasiums, athletic clubs, social organizations, etc. The prominent leaders of this movement were the brothers Aurobindo Ghosh and Barindra Ghosh, along with Bipin Chandra Pal and Jatindra Nath Banerjee among others. 21
In early 1908, an attempt on the life of Douglas Kingsford, the chief presidency magistrate of Calcutta, was made. Kingsford was unpopular for the harsh punishments he meted out to Swadeshi activists. On one occasion, he passed a sentence against a young boy of fifteen named Sushil Sen who had been picketing the court during Swadeshi demonstrations. He was punished with fifteen lashes in public view, which he tolerated with cries of ‘Bande Mataram’. The incident caused major outrage and was reported in all newspapers across Bengal. In retribution against this act, the revolutionaries devised a ‘book bomb’ which was sent as a package to the residence of Kingsford in Calcutta. However, under the belief that it was just a book being returned by one of his friends, he did not open the package, thus unwittingly foiling the plan. 22
In the meantime, the government got a hint of plans to assassinate Kingsford and as a safeguard transferred him to Muzaffarpur which was in north Bihar. Two young revolutionaries named Khudiram Bose and Prafulla Chaki were sent after him in April 1908. There, they planned to assassinate him by bombing his carriage, but mistook a different carriage as Kingsford’s. The carriage in fact belonged to a barrister named Pringle Kennedy, and Bose and Chaki blew up a wrong carriage: the one which was actually carrying Mrs Kennedy and their daughter, thereby killing them. Khudiram Bose was hanged for this crime in August 1908, Chaki having committed suicide on being arrested for the murder. 23
Interestingly, Kingsford had a third lease of life when conspirators of the Muzaffarpur incident revealed the ‘book bomb’ assassination plot in January 1909. Kingsford was immediately informed about the plot upon which he discovered the bomb which he had carried to Muzaffarpur from Calcutta, the package still unopened! 24
The second trial of Bal Gangadhar Tilak took place in this context. 25
Tilak was fresh from his break as the leader of the new party opposed to the moderates of the Indian National Congress. Kesari enjoyed a great boost to its circulation post his first trial and became one of the most prominent voices of the new party. Tilak was also considered to have become a nationalist leader with a pan-Indian appeal with his call for Swarajya.
On 12 May 1908, Kesari published an article titled ‘The Country’s Misfortune’ followed by another article titled ‘These Remedies Are Not Lasting’ published on 9 June. 26
The first article was written on the subject of the Muzaffarpur incident. The article described the incident and blamed it on the ‘perversity of the white official class’, which referred to the British government. It compared the state of affairs to the Russian Revolution of 1905 where the oppressed were exasperated into throwing bombs.
The second article was about the practice of bomb-throwing and it pointed out that it was the most mischievous thing to do, that people in other countries had obtained what they want by hurling bombs.
Bombay Police received sanction from the governor of Bombay to prosecute Tilak for being the editor, publisher and proprietor of Kesari. The police filed information of the first article before A.H.S. Aston, the chief presidency magistrate of Bombay, on 24 June. Tilak was arrested that same evening from Sardar Griha near Crawford Market in Bombay after a warrant for his arrest was issued by the magistrate.
Incidentally, Tilak was present in Bombay to help Shivram Paranjpe, the editor of Kal, who was being prosecuted for sedition for publishing an article related to the Muzaffarpur bombing incident. The article said:
People are prepared to do anything for the sake of Swarajya and they no longer sing the glories of British rule. They have no dread of British power. It is simply a question of sheer brute force. Bomb-throwing in India is different from bomb-throwing in Russia. Many of the Russians side with their Government against these bomb-throwers, but it is doubtful whether much sympathy will be found in India . . . Setting aside the question whether bomb-throwing is justifiable or not, Indians are not trying to promote disorder but to obtain Swarajya.
Paranjpe was convicted for sedition on 8 July 1908.
Tilak was produced before the magistrate on 25 June, and an unsuccessful plea for his release on bail was moved by Jehangir Dinshaw Davar, barrister, and Mahadeo Bodas, pleader of the high court.
The Bombay Police along with the Poona Police searched the residence and office of Tilak in Poona on 25 June and discovered a card in his office with ‘Handbook of modern explosives by M. Eissler published by Crossby Lockwood & Sons’ and ‘Nitro-explosives by P. Gerad Sanford’ printed on one side, and ‘Modern Explosives by Esiel Explosives by Crosby and Lockwood’ printed on the other side.
On 26 June, the governor sanctioned another prosecution against Tilak with regard to the second article, followed by information being filed before the chief presidency magistrate on 27 June. An arrest warrant was issued again and Tilak was nominally arrested in Dongri jail where he was being lodged since 24 June.
Based on the two articles, the Bombay government launched a prosecution against Tilak for sedition under Section 124A, and promotion of enmity between classes under Section 153A of the IPC. The information under Sections 124A and 153A alleged that Tilak had by publication of the articles ‘brought or attempted to bring into hatred and contempt and has excited or attempted to excite disloyalty and feelings of enmity towards His Majesty and the Government established by law in British India and has also attempted to promote feelings of enmity and hatred between the English and Indian subjects of His Majesty’. The magistrate committed the case for trial before the high court on 29 June.
Another bail application was filed before the Bombay High Court on 2 July on behalf of Tilak. The judge hearing this plea was Justice Dinshaw Davar, father of Tilak’s lawyer, Jehangir Davar, and himself Tilak’s erstwhile lawyer who had represented him in bail proceedings during his first sedition trial in 1897!
Tilak was represented by Muhammad Ali Jinnah 27 in the bail proceedings before Justice Davar. Jinnah argued that Tilak was under trial and his enlargement on bail was necessary to help him conduct his defence properly. Tilak faced hindrance in instructing his counsel while in prison as he believed that the translations of his articles were inaccurate. He was also being treated for diabetes which would make his time in jail difficult. Jinnah pointed out that Tilak was a highly educated individual with great social stature which was underlined by his term as a member of the Legislative Council. Jinnah pointed out the objections to certain affidavits filed on behalf of the prosecution as being prejudicial to Tilak’s case. Justice Davar responded by asking Jinnah to argue as if he was arguing ex parte, which means arguing in the absence of the opposite party. In fact, Davar went to the extent of saying, ‘I will not trouble you, Mr Advocate General’ when James Branson, the acting advocate general, attempted to address the court.
Jinnah persisted in pleading that to ensure the conduct of a fair trial, it was important to release Tilak, as had be
en done earlier in his first trial by Justice Tyabji. What was left unsaid was that Dinshaw Davar himself had argued the 1897 bail application, so he was expected to have a view consistent with the arguments in that case.
In deciding the application, Justice Davar said that he personally felt unwilling in keeping an under-trial person in prison and recognized that the court had a great amount of discretion in deciding bail applications. However, he felt that the only question in deciding a bail application was not just whether an accused would turn up in court for his trial or not if released on bail. He was of the view that other circumstances must also be considered, but did not state what was on his mind as he purportedly did not want to prejudice the jury even before the trial began. He rejected the bail application without providing reasons, as he was afraid that the matter was the focus of the press at that time, and his reasons might be printed and circulated to the public. Justice Davar thus contradicted himself because he had argued to the contrary when he applied for bail for Tilak in 1897 before Justice Tyabji. Consequently, Tilak was consigned to face trial as a prisoner.
The next day, the prosecution applied for the empanelment of a special jury for Tilak’s trial. A special jury meant that most of the jurors would be Europeans as opposed to a common jury comprised mostly of Indians. Tilak’s lawyer in this instance was Joseph Baptista, barrister. He raised a spirited objection to the empanelment of a European-majority special jury as it was prejudicial to Tilak’s defence. An Indian-majority jury would have been better suited to try Tilak because the articles in Kesari were in Marathi, and Tilak felt that the translations were wanting in nuance and accuracy and therefore not reliable. Europeans would have to go by whatever the official translations were while Indian jurors would not have felt the necessity to rely on translations due to their knowledge of Marathi. Further, the political nature of the trial also made a European jury unconducive for the trial.
The Great Repression Page 9