However, as the 1908 Act proved insufficient, the more comprehensive Indian Press Act was enacted in 1910. In moving the 1910 Act, a member of the Legislative Council said, ‘These things are the natural and ordinary consequences of the teachings of certain journals. They have prepared the soil on which anarchy flourishes; they have sown the seed, and they are answerable for the crop. This is no mere general statement; the chain of causation is clear. Not only does the campaign of violence date from the change in the tone of the Press, but specific outbursts of incitement have been followed by specific outrages.’ 27
The Sedition Committee laid a large part of the blame for the rise in seditious and revolutionary activities on the ‘pernicious operations of the revolutionary press’. 28
The preventive measures undertaken by the government during the period under review of the committee were deemed to be inadequate. The committee was wary of the fact that preventive enactments were due to be terminated by efflux of time, including the Defence of India Act which was an emergency wartime enactment. With the end of the First World War, the British army units comprising of Indian soldiers, mostly from Punjab, were to be disbanded. The committee feared that it was possible to incite and stir up discontent amongst these returning soldiers. 29
To that effect, the committee suggested major legislative measures to deal with sedition and revolutionary crimes. It recommended that measures to secure the punishment of seditious crimes may either be brought about by changes in the general law of evidence and procedure applicable to all offences, or by changes in the substantive law of sedition and changes in law of evidence and procedure to specifically deal with such offences.
With regard to changes in the general law of evidence and procedure, the committee was of the view that criminal courts were quite liberal in granting time for the trial and cross-examination of witnesses. The courts rarely interfered in witness deposition so the examination and cross-examination of witnesses took a considerable amount of time. The committee was of the view that this could be curtailed by the courts by preventing irrelevant questions during trial. Another change suggested was the amendment of the Criminal Procedure Code to permit inducement to extract evidence from witnesses by promising protection against harm caused by the criminal acts of others. 30
After proposing general changes, the committee moved on to making recommendations for changes in criminal procedure to take care of emergent situations. The changes it suggested were specifically for future emergencies and to be deployed at short notice. These emergency measures were supposed to lie in limbo on statute books only to be pressed into action on declaration of emergency by the governor general. While the committee desisted from drafting the form of any such notifications, it felt that it would be sufficient to declare that seditious offences were prevalent due to which it would be expedient to provide for speedy trials to prevent endangering public safety. The committee, however, was awake to the fact that the government should not have the authority to assume powers to take stringent emergency measures without the ‘declaration of a crisis of proportionate gravity’. 31
The committee suggested that crimes of sedition should be tried by a bench of at least three judges, without juries. It also recommended doing away with committal proceedings. Under criminal law, committal is usually the mechanism where a magistrate takes cognizance of a crime and directs the trial of an accused by the appropriate criminal court. The committee felt this was a waste of time and persons accused of seditious offences should be brought directly to trial. Another draconian measure suggested was that the accused should not have the right to appeal against any order of conviction! The flawed logic behind this was that this would have a demoralizing effect and prevent excitement of the disgruntled masses. The Special Tribunals envisaged to carry out trials for sedition were supposed to have judges selected by the chief justice or the head of the court having territorial jurisdiction. It also recommended that the Special Tribunals should be empowered to hold closed-door trials if deemed necessary. 32
Apart from procedural changes, the committee recommended certain preventive measures to be imposed upon persons who were likely to commit seditious offences. It felt that the government should have power to demand securities, restrict residences, require notification of change of residence, require abstention from acts such as journalism or attending meetings, and require periodic reporting to the police. In addition to this, the committee thought it fit to empower the police to take persons of interest under preventive detention. 33
In the course of preparing the report, the committee claimed to have gained insight into the minds of revolutionaries and on the movement. The report says:
These revolutionaries vary widely in character. Some merely require to be kept from evil associations and to be brought under the closer influences of sensible friends or relations. At the other extreme are some desperados at present irreconcilable to the point of frenzy. Some are ready to quit the movement if only it can be made easy for them. More may be brought to this frame of mind in time. 34
This passage is quite illuminating. The British saw oppressed masses fighting to take back their country as ‘evil desperados’!
As a parting shot, clearly a fallout of the Ghadr Movement, the committee suggested the restriction of ingress into India. It was recommended that the government may prohibit or restrict the ingress of Indians returning to their homeland if it deemed it fit to do so to protect the country’s safety, interests and tranquillity. It recognized the threat from foreign entities and persons who were purportedly conspiring to cause seditious violence within India.
As mentioned, the Defence of India Act formed the core basis for the Sedition Committee report. The said Act along with other emergency laws had a major impact in Punjab. At the Amritsar session of the Indian National Congress in 1919, Motilal Nehru in his presidential address said, ‘The years 1915 to 1917 were occupied with various conspiracy trials by special tribunals constituted under the Defence of India Act. The vernacular press was ruthlessly suppressed and hundreds of persons were interned under the Defence of India Act or the Ingress Ordinance. It was during this period that Lokmanya Tilak and Srijut Bipin Chandra Pal were prohibited from entering the province lest they should introduce the virus of Home Rule here.’ 35
The report amply demonstrates that the age of moderation was past, and nationalists were gaining more ground than the moderates. The extremists who had split from the Congress received a boost with the release of Tilak from prison in 1914, rejoining the Indian National Congress at the session in 1916.
The same year also saw the birth of the Home Rule League in India founded by Annie Besant, a British lady who was the president of the Theosophical Society and a champion of the Indian freedom cause. Another Home Rule League had been established by Tilak to champion the cause of self-government within the British Empire by constitutional means. Tilak undertook a campaign calling for Swaraj by publishing article after article espousing the cause of self-government in his two vernaculars, Mahratta and Kesari. Tilak’s speeches and appeals to the masses earned him the sobriquet ‘Lokmanya’, which means revered by the masses. Tilak and Besant worked together with Tilak’s Home Rule League in Bombay and the Central Provinces and Besant’s Home Rule League working in the rest of India.
This invited the third prosecution for sedition against Lokmanya Tilak. He was accused of spreading sedition through his speeches delivered in Marathi while on his lecture tour to spread the message of Home Rule and Swarajya. He was prosecuted for three specific speeches, one at Belgaum on 1 May 1916 and two at Ahmednagar on 31 May and 1 June 1916. However, he was not prosecuted under Section 124A of the IPC as in the earlier two prosecutions. 36 This time he was prosecuted under Section 108 of the Criminal Procedure Code as enacted in 1898, which was the precursor to the current Indian Criminal Procedure Code. Section 108 empowered the chief magistrate in a district or presidency town to call for a surety or bond for good behaviour for a period of at l
east one year upon receiving information about any persons who, either orally or in writing, disseminate or attempt to disseminate any seditious material which would otherwise be punishable under Section 124A of the IPC.
A large number of lawyers turned up in Tilak’s defence before the district magistrate of Poona, with the leader of the defence team being Muhammad Ali Jinnah. The main defence was that Tilak had not attacked the government but had only criticized the bureaucracy, as permitted under Section 124A. The prosecutor, on the other hand, tried to drive home the point that Tilak had been twice convicted of sedition, despite which he was delivering seditious speeches. He also tried to prejudice the judge by telling him that Tilak had attacked the service to which the judge belonged. Tilak told the judge that his lectures intended to explain what the Home Rule Movement was about and were delivered in response to criticism of the movement from various quarters. Jinnah contended that such speeches were protected by Section 124A itself as they sought to bring about change by lawful and constitutional means and did not excite hatred, contempt or disaffection. 37
However, the court was not impressed with the defence. It directed Tilak to furnish a bond of Rs 20,000 and two sureties of Rs 10,000 each under Section 108 of the Criminal Procedure Code. This direction sought to ensure Tilak’s good behaviour for a period of one year. Tilak challenged this order before the Bombay High Court and a bench of Justice Stanley Batchelor and Justice Lallubhai Shah, both of whom were fluent in Marathi. Here, he was again represented by Jinnah, along with his old friend and lawyer Joseph Baptista. This proved to be a case of ‘third time lucky’ for Tilak because the High Court sided with him, for a change. It held that upon a careful reading of Tilak’s speeches, barring a few isolated passages, it was clear that Tilak was calling for political changes to be obtained by lawful and constitutional means. It concluded that the general effect of the speeches was not seditious and thus set aside the order of the district magistrate. 38
Annie Besant was not as lucky. The chief presidency magistrate of Madras passed an order on 22 May 1916 declaring the security deposited by New India, a publication operated by Annie Besant, to be forfeited under the Indian Press Act, 1910, for publication of seditious articles. Ironically, one of the charges on the publication was that it attacked the Indian Press Act and called it an insult to India and a disgrace to England. It said, ‘It is inconsistent with nature and reason. To say it in A.B. Mazumdar’s words, it has transformed the editor to a humble suppliant before the District Officer. It should be expunged from the statute book. It is not a law but an oppression.’ These statements were in reaction to heavy security being imposed on New India under the Press Act due to the activities of Annie Besant in propagating the Home Rule Movement. The articles also attacked the policy of reserving seats and compartments for Europeans on Indian railways. The publication strongly condemned the Anglo-Indian press for being the stooge of the government and for its lack of sympathy for the Indian cause. New India was also proving to be a great proponent of the Home Rule Movement and preached methods to achieve it.
All in all, the publication was proving to be a giant thorn in the side for the British government. A number of articles were alleged to be in contravention of Section 4(1) of the Press Act, 1910. The government was of the view that the articles incited murder, violence or other offences under the Explosive Substances Act, 1908; incited sedition by words, signs or visible representations; and incited and encouraged interference with administration of law and maintenance of law and order. The action was challenged by Annie Besant before a special bench of the Madras High Court presided over by Justice Abdur Rahim, Justice William Ayling and Justice Seshagiri Aiyar. 39
Besant contended that the government did not have the power to deprive her of her property as doing so would be in contravention of the unwritten laws of Great Britain which otherwise protected her by virtue of her being a British subject. She argued that only a court of law could take such an action. She further argued that advocacy for Home Rule does not amount to sedition under Section 124A of the IPC as it is being demanded by lawful means and thus protected under Explanation 2 contained in Section 124A. She further contended that the language of Section 4 of the Press Act was taken from Section 124A and Section 153A of the IPC under which intention to commit an offence is material and must be proved. However, the government contended that intention is immaterial under the Press Act and all that must be seen is whether the general effect of the articles would give rise to a contravention under Section 4 of the Press Act. The government further contended that the High Court did not have the power to interfere with actions taken under the Press Act by virtue of specific provisions in the Act barring such interference.
The court held that it was unnecessary to determine whether the action of the government was illegal or not as the High Court did not have jurisdiction to do so under the Press Act. Therefore, it held that Besant did not have any remedy before it. Despite holding so, it went on to adjudicate upon the merits of the challenge to determine whether the publication fell foul of Section 4 of the Press Act or not. For that, it held that even though the provision was a combination of Sections 124A and 153A of the IPC, it was different as the element of intention did not come into Section 4 of the Press Act. Though it allowed for criticism of measures of the government, such exemption was subject to the publication not exciting hatred or contempt against the government. The Court quoted James Stephen stating, ‘An intention is not seditious if the object is to show that the King has been misled or mistaken in his measures or to point out errors and defects in the Government or constitution with a view to their reformation or to excite the subjects to attempt by lawful means the alteration of any matter in Church or State or to point out with a view to the removal matters which are producing or have a tendency to produce feelings of hatred or ill-will between classes of the subjects.’ 40
The advocate general, on instructions from the government, had conceded that the advocacy of Home Rule was absolutely valid and legal, which the court agreed with as well. It also did not find anything in the articles in question which would suggest that the newspaper wanted India to sever its ties with the British Empire. The court did not spot any element of disloyalty in the publications. It eventually found that there was largely no wilful attempt on the part of Annie Besant to disseminate disaffection or hatred against the government or to create hatred between classes. However, the court pronounced three separate judgments which were unanimous in holding that certain articles appeared to fall foul of the Press Act and could be called seditious. Therefore, it dismissed the challenge and upheld the validity of actions taken by the government under the Press Act. 41
The very next year, on 16 June 1917, Annie Besant and some of her associates were imprisoned by the government without charge or trial, a move which caused political ripples across India. Leaders who were earlier doubtful about the Home Rule League and reluctant to get involved joined it. People like Jinnah, Tej Bahadur Sapru and Motilal Nehru not only joined the league but also took up leadership positions.
Jawaharlal Nehru, who was already a part of the league, said, ‘Mrs Besant’s internment also resulted in my father and other moderate leaders joining the Home Rule League . . . My father became the president of the Allahabad branch . . . The adoption by the Congress at Lucknow in 1916 of the Joint Congress-League scheme . . . pleased him greatly as it opened the way to a joint effort, and he was prepared to go ahead then even at the cost of breaking up with his old colleagues of the moderate group.’
Mahatma Gandhi, who disapproved of the movement at that time, wrote a letter to the viceroy on 10 July saying, ‘In my humble opinion the internments are a big blunder. Madras was absolutely calm before then, now it is badly disturbed. India as a whole had not made common cause with Mrs Besant, but now she is in a fair way towards commanding India’s identity with her methods . . . I myself do not like much in Mrs Besant’s methods. I have not liked the idea of political propaganda bein
g carried out during the war. In my opinion our restraint will have been the best propaganda . . . The Congress was trying to capture Mrs Besant. The latter was trying to catch the former. Now they have almost become one.’ 42
While Gandhi himself did not approve of the Home Rule League, what he said in the letter captures the political mood of the country at that time. Eventually, he also converted and supported league propaganda. The British government had created a monster. The political fallout and pressure from the US forced the government to release Besant after just three months, but the damage had been done. 43
Now, considering the prevailing political environment, there was a lot of suspicion about the Rowlatt Committee as it was seen to be pro-government. When the report was submitted on 15 April 1918, it was met with fierce backlash as every suspicion stood confirmed. The punitive and preventive measures recommended by the Rowlatt Committee were draconian in nature. The Montague–Chelmsford reforms which provided Indians nominal representation in government were contemporaneous with the publication of the Rowlatt Committee Report. The timing gave rise to the feeling that the committee was set up by the British establishment in India as a reaction to the reforms which had originated from the British Parliament and culminated in the enactment of the Government of India Act, 1919. The Act provided for central and provincial legislative assemblies with limited representation and franchise granted to Indians. 44
The suggestions made by the Rowlatt Committee were accepted and enacted in the form of the Anarchical and Revolutionary Crimes Act, 1919, which was commonly called the Rowlatt Act and derisively called the Black Act. The Rowlatt Act was passed by the Legislative Council of India on 18 March 1919 despite facing vociferous opposition from the non-official (read Indian) members of the council. 45 When the Act was under consideration in the form of a bill, it was opposed along the length and breadth of the country. Surendranath Banerjee, who also opposed the bill in the Legislative Council, was of the view that it had been introduced because of the fear of the European community in India that they would lose their privileged status due to the Montague–Chelmsford reforms. 46
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