Justice Davar did not find any merit in the opposition to a special jury and directed that a special jury with at least half the jurors being European be empanelled. He felt it was so required because the case was of great importance and required a jury selected from citizens of Bombay but from a higher class. The racial undertone, especially coming from an Indian judge, was remarkable but unfortunately par for the course at that time. Davar also directed that the official translations be relied upon in ordinary course, but assured Baptista that he would ensure application of mind whenever any glaring error was pointed out by the defence. A special jury comprising of seven Europeans and two Indians was eventually empanelled.
The modalities having been concluded, the trial began on 13 July 1908. The prosecution was represented by James Branson, the acting advocate general, with John Inverarity as barrister. Tilak famously acted in his own defence, having been constrained by his incarceration.
At the outset, Branson proposed to try Tilak for both the articles together, even though the charges were framed by the magistrate separately. He claimed that it would be more convenient to do so rather than have two trials before two separate juries. Towards this end, he decided to prosecute Tilak under Section 153A of the IPC against the second article only, which was ‘The Remedies Are Not Lasting’, and dropped the charge with regard to the first article. Therefore, Tilak was tried for two charges of sedition under Section 124A and one charge of promoting enmity between classes under Section 153A.
Tilak opposed the proposal for consolidation because the two articles were on separate subjects and therefore required separate trials. He displayed his inability to conduct his defence in two trials together. Justice Davar, however, allowed the consolidation of the trial conditional upon only three charges being prosecuted upon. He also found that the consolidation would be in the interest of the accused despite Tilak’s submission to the contrary!
The prosecution began with a reading of the first article, ‘The Country’s Misfortune’, which pertained to the Muzaffarpur incident. It claimed that the article meant to imply that the British rule was governed by self-interest, except insofar as it is restricted by the need to prevent the exasperation of its Indian subjects. The article advocated that the power to govern should be taken out of the hands of the British and put into the hands of Indians. It claimed that the people wanted swarajya, which meant self-government or self-rule, and advocated the methods used by Russians to be used by Indians towards attaining swarajya, which included bombings. The prosecution contended that the writer of the article claimed to represent 300 million Indians burning with indignation and suggested that it is possible that some people can be expected to commit outrages induced by the oppressive system of government. The prosecution pointed out that it was defamatory against the government to suggest that the British government was acting for the benefit of Britain at the expense of the natives of India. The article compared the Indians to a cat and the government to a master who treats it with cruelty. In that scenario, it said, it was only natural that the cat would pounce on its master with intent to kill.
Therefore, in summary, the prosecution argued that the article sought to convey ‘that the only thing which comes between the people of India and the blessings of this country is the English rule’. In light of the same, the prosecution contended that Tilak was guilty of sedition under Section 124A of the IPC.
With regard to the second article, the prosecution contended that it made a veiled suggestion that other countries ‘enjoyed the advantages of use of bombs and assassination’, and that bombs could easily be made even in India. It again called the British government a selfish administration as it was devoted to the benefit of Englishmen and not to the benefit of Indians. It said that a bomb ‘is a charm, an amulet’ which protected Indians from total exploitation by the government for the benefit of England’s enrichment. The British government was a curse upon the people of India, it argued. The prosecution argued that Tilak was guilty of sedition under Section 124A of the IPC because of the attack on the government. Additionally, it was contended that Tilak was also guilty of promoting enmity between Englishmen and Indians which was punishable under Section 153A of the code.
Upon examination of witnesses by the prosecution, and their cross-examination by Tilak, it became clear that the Marathi to English translations relied upon by the prosecution were wildly inaccurate and contrary to the context. Tilak addressed the court on 15 July by pointing out that the Marathi terminology in the discussion of political subjects was not settled at that time, and therefore the translations of the articles were not accurate.
Further, he enunciated his views on the political reforms required in India, calling for greater inclusion of Indians in the administration of the country, without which estrangement of the native population was inevitable. He said:
The mere shifting of the centre of power and authority from one official to another is not, in my opinion, calculated to restore the feelings of cordiality between officers and people prevailing in earlier days. English education has created new aspirations and ideals amongst the people and so long as these national aspirations remain unsatisfied it is useless to expect that the hiatus between the officers and the people could be removed by any scheme of official Decentralization, whatever its other effects may be. It is no remedy—not even palliative—against the evil complained of, nor was it put forward by the people or their leaders. The fluctuating wave of Decentralization may infuse more or less life in the individual members of the Bureaucracy, but it cannot remove the growing estrangement between the rulers and the ruled, unless and until the people are allowed more and more effective voice in the management of their own affairs in an ever expansive spirit of wise liberalism and wide sympathy aiming at raising India to the level of the self-governing country.
Tilak demanded that the prosecution be asked to point out the exact passages from the articles for which he was being prosecuted but was told by the court that the prosecution will not be compelled to specify the passages. In fact, the court went one step ahead and made entire articles a part of the charges against Tilak.
Tilak told the court that in such circumstances he would be constrained to give a very long address to the jury in his defence. The court permitted him to do so, which was ironic as the court earlier did not compel the advocate general to point out specific passages in the articles because he did not want to tire out the jury!
The court clearly had no inkling of what was in store for them.
Tilak’s speech, one of the most celebrated in Indian political history, commenced on 15 July (Wednesday), which was the third day of the trial, and concluded only on the eighth day of the trial, which was 22 July. The duration of the speech was about twenty-one hours, according to notes kept by Justice Davar. A break over the weekend was the only breather for the jury when they were excused to tend to their mail!
He read out Section 124A of the IPC for the benefit of the jury and said:
This section is divided into two parts. The first part refers to actually bringing into hatred or contempt His Majesty, etc. But as there is no evidence before the Court that any excitement has been caused by the articles in question, so it seems to me that the prosecution does not mean to proceed under that part of the section. The second part of the section deals with ‘attempts to excite disaffection’. The section does not simply refer to the publication of anything likely to create disaffection . . . Attempt is actually an offence, minus the final act of crime. The mere fact that a certain article is published will not make it an attempt. There must be a criminal mind, a culpable indifference to consequences. In the present case, there has been no evidence to prove that the attempt failed because the Government interfered or because the people refused to listen. Attempt includes both motives and intention . . . Criminal intention cannot be presumed but must be positively proved by the evidence of surrounding circumstances . . . If the writer’s motives are good, if he is trying to secure c
onstitutional rights for the people, trying in a fair way and persevering manner, he is entitled to express his views fully and fearlessly . . . the mere fact that the views of the writer are not correct, or are even absurd, or that he expressed them in violent language, would not make him seditious. 28
Tilak contended that his articles were in response to the Anglo-Indian press and pro-government parties who tried to lay the blame for the Muzaffarpur bomb outrage at the feet of the Congress. His articles were suggestions to the government and addressed to it to discuss the situation and criticize measures taken by the government. He claimed to not have said anything that others in the press had not already said. Tilak’s prosecution was just limited to a charge of exciting disaffection amongst the Marathi-speaking population, but he contended that other Marathi newspapers had also said the same thing. Therefore, he questioned the government’s motives in prosecuting him and argued that such prosecution was unjustifiable.
He beseeched the jury by invoking future generations which would look to their verdict to determine whether Tilak was judged rightly or not. He assured the jury that even if one of them came forward with a not-guilty verdict he would feel satisfied. He asked them to rise to the cause which he represented and arrive at the right decision.
Branson followed Tilak with a four-hour-long address to the jury and liberally indulged in ad hominem against him. He rubbished Tilak’s defence and demanded that he be convicted for the offences he was charged for. Justice Davar followed it with a hurried charge to the jury which was adverse to Tilak’s defence. Unsurprisingly, the jury returned a finding of guilt with a 7–2 majority and convicted Tilak for sedition for causing enmity between Englishmen and Indians.
Justice Davar afforded an opportunity to Tilak to make a statement before his sentence was pronounced. Tilak famously said:
All I wish to say is that in spite of the verdict of the jury, I maintain that I am innocent. There are higher powers that rule the destinies of things; and it may well be the will of the providence that the cause which I represent may prosper more by my sufferings than by my remaining free. 29
The dignity of the statement was met with an extremely harsh response from Justice Davar who said:
It seems to me that it must be a diseased mind, a most perverted intellect that could say that the articles which you have written are legitimate weapons in political agitation. They are seething with sedition, they preach violence; they speak of murders with approval; and the cowardly and atrocious act of committing murders with bombs not only seems to meet with your approval, but you hail the advent of the bomb in India as if something has come to India for its good . . . Your hatred of the ruling class has not disappeared during these ten years. 30 And in these articles . . . you wrote about bombs as if they were legitimate instruments in political agitation. Such journalism is a curse to the country. I feel much sorrow in sentencing you . . . Having regard to your age and circumstances, I think it is most desirable, in the interest of peace and order and in the interest of the country which you profess to love, that you should be out of it for some time. 31
Thus, on 22 July 1908, Tilak was sentenced to three years’ transportation each for two counts of sedition under Section 124A of the IPC, which would run consecutively, thereby totalling six years’ transportation. He was also fined Rs 1000 for the third charge under Section 153A of the code. Tilak turned fifty-three the next day.
He was first taken to Sabarmati jail in Gujarat on 23 July and eventually transported to Mandalay in Burma on 13 September 1908 to serve out his sentence in a 240 square feet cell. In the meantime, Tilak lost his appeals before the full bench of the Bombay High Court and subsequently before the Privy Council in England. 32
Another trial of note which took place in 1909—the outcome of which had far-reaching consequences—was the case of Emperor v. Ganesh Damodar Savarkar. 33 Ganesh Savarkar, better known as Babarao Savarkar, was the elder brother of the more illustrious Vinayak Savarkar, also known as Veer Savarkar. Ganesh Savarkar, along with Vinayak, was a founding member of Abhinav Bharat (‘new India’), a group of young revolutionaries formed in Nashik in present-day Maharashtra. Savarkar was a close associate of Tilak and had been arrested when he went to Bombay to help Paranjpe with the Kal sedition trial. This was about the same time in June 1908 when Tilak was arrested for sedition when he was also in Bombay to help Paranjpe. He served a month’s imprisonment in the same jail as Tilak. 34
Savarkar was again arrested while he was in Bombay on 28 February 1909 and taken to Nashik to stand trial for abetting the waging of war against the emperor (Section 121 of the IPC) and for sedition. The offences arose from the publication of four poems out of eighteen in Laghu Abhinava Bharat Mala, which translates to ‘A short series for new India’. They were written by the poet Govind and were based on mythology and history. However, the court was of the view that the poems actually encouraged Indians to get rid of British rule by taking up arms against the government. There were allusions in the poems referring to ‘black’ people being ruled by ‘white’ people, and talked about the destruction of foreign demons by Krishna and Shivaji.
Another poem invoked the deity Ganesha and asked him to take up his sword against ‘demons of subjection’ which had spread lamentation all across the world. On 8 June 1909, Justice B.C. Kennedy, the sessions judge of Nashik, convicted Savarkar for sedition and abetment of waging of war against the emperor (Section 121) on the basis of the said poems. Savarkar was sentenced to transportation for life for the offence under Section 121 of the code and for two years’ imprisonment for the offence of sedition to run simultaneously with the first sentence.
An appeal was filed before the Bombay High Court where Ganesh Savarkar was represented by Joseph Baptista, Tilak’s associate and lawyer. The High Court, while confirming his conviction on 8 November 1909, said:
No doubt the writer has used several words, each having a double meaning, but that meaning only serves to emphasise the fact that the writer’s main object is to preach war against the recent Government, in the names of certain Gods of the Hindus and certain warriors such as Shivaji. Those names are mere pretexts for the text which is: Take up the sword and destroy the Government because it is foreign and oppressive. For the purpose of finding the motive and intention of the writer it is unnecessary to import into the interpretation of the poems sentiments or ideas borrowed from the Bhagwad Gita. The poems afford their own interpretation, and no one who knows Marathi can or will understand them as preaching anything but war against the British Government. Mr Baptista has conceded that of the poems be construed as referring to the British Government, they fall within the meaning of sedition under section 124A of the Indian Penal Code. That they are such as to excite disaffection goes without saying . . . Briefly summarised, the teaching of this book is that India must have independence: that otherwise, she will be unworthy of herself: that independence cannot be obtained without armed rebellion and that, therefore, the Indians ought to take arms and rebel. This is quite plain though the teaching is thinly veiled by allusions to mythology and history. It is sedition of a gross kind and very little attempt was made to show that the conviction under section 124A of the Indian Penal Code was not correct. 35
Ganesh Savarkar was convicted to transportation for life and subsequently incarcerated in the dreaded Cellular Jail in the Andamans. The response to his conviction was immediate and violent. On 1 July 1909, Madan Lal Dhingra, an Indian revolutionary, shot and killed Colonel William Curzon Wyllie in England. A statement discovered on him when he was arrested read: ‘I attempted to shed English blood intentionally and of purpose as an humble protest against the inhuman transportations and hangings of Indian youths.’ 36 This was followed by the murder of Jackson, the district magistrate of Nashik, on 21 December 1909 because he was the one who had committed Ganesh Savarkar to the Sessions Court for trial. 37
As the Prevention of Seditious Meeting Act, 1907, finished its three-year term in 1910, another identical and n
amesake Act was brought about in 1911 to revive the deceased 1907 Act. The Prevention of Seditious Meeting Act, 1911 lived up to the grand old age of 107 years, with post-Independence amendments, and was finally put to rest by the Repealing and Amending (Second) Act, 2017 with effect from 4 January 2018. Ravi Shankar Prasad, the law minister of India, while replying to a debate on the passage of the repealing Act, said that old and irrelevant pre-Independence colonial laws were an unfortunate part of our colonial legacy and repealing them was a progressive move that reflected the ‘pro-reform’ approach of his government. 38 The irony of this statement will be clearer in a later chapter.
As Hirendranath Mukherjee notes in India’s Struggle for Freedom, 39 Vladimir Lenin summed up the first decade of twentieth-century India saying:
In India the native slaves of the ‘civilised’ British capitalists have recently been causing their ‘masters’ a lot of unpleasantness and disquietude . . . the Indian masses are beginning to come out into the streets in defence of their native writers and political leaders. The despicable sentence that the English jackals passed on the Indian democrat Tilak . . . this act of vengeance against a democrat on the part of the lackeys of the moneybags, gave rise to street demonstrations and a strike in Bombay. And the Indian proletariat too has already matured sufficiently to wage a class-conscious and political mass struggle . . . The class conscious workers of Europe now have Asiatic comrades and their number will grow by leaps and bounds.
In introducing the Press Act of 1910, Sir Herbert Risley, a member of the Legislative Council, said:
Sedition has the monopoly of its audience, and that audience is large, and is increasing daily . . . The consequences of this ever-flowing stream of slander and incitement to outrage are now upon us. What was dimly foreseen a few years ago has actually come to pass. We are at the present moment confronted with a murderous conspiracy, whose aim is to subvert the Government of the country, and to make British rule impossible by establishing general terrorism. Their organization is effective and far-reaching; their numbers are believed to be considerable; the leaders work in secret and are blindly obeyed by their youthful followers . . . There is plenty of work in India waiting to be done, but it never will be done if the energies of the educated classes are wasted in incessant abuse and suspicion of Government. 40
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