The Rowlatt Act was a de facto extension of the war-time Defence of India Act that provided for emergency preventive and punitive provisions. The First World War ended in 1919, thus terminating the Defence of India Act. So the British establishment took cover under the Rowlatt Act to continue emergency measures, as described above, to ostensibly counter sedition and ‘revolutionary crimes’. However, the provisions were so wide that the government was empowered to use the Act for any political activity opposed to the government by calling it a revolutionary crime. The Act did away with committal proceedings, gave no right of appeal, and accused persons were not even provided legal representation.
Mahatma Gandhi called for a nationwide civil disobedience movement in the form of passive resistance or satyagraha in opposition to the Act. 47 The year 1919 proved to be a watershed year for Gandhi who had only returned to India in 1915 from South Africa. His call for satyagraha was met with support from across the country which observed a strike or hartal from 30 March onwards. He eventually called off the movement due to reports of occurrence of violent activities.
Punjab at this time was under martial law and facing the brunt of British repressive tactics. The Rowlatt Act satyagraha was in full flow in Punjab with strikes and public protests taking place across the state. During this time, on 13 April 1919, occurred one of the greatest massacres in Indian history. The British army under General Dyer without warning opened fire on thousands of people who were holding a peaceful public meeting in Amritsar at Jallianwala Bagh, a park walled from three sides. Hundreds of men, women and children fell victim to the 1650 rounds of bullets on a day when the festival of Baisakhi was being celebrated in Punjab. Thousands were maimed or injured.
During the inquiry into the massacre, Dyer justified it by considering the incident as containing the least amount of firing which would produce the necessary moral and widespread effect! 48 Winston Churchill considered General Dyer’s actions as ‘monstrous’. He said, ‘. . . one tremendous fact stands out—I mean the slaughter of nearly 400 persons and the wounding of probably three or four times as many, at the Jallian Wallah Bagh on 13th April. That is an episode which appears to me to be without precedent or parallel in the modern history of the British Empire. It is an event of an entirely different order from any of those tragical occurrences which take place when troops are brought into collision with the civil population. It is an extraordinary event, a monstrous event, an event which stands in singular and sinister isolation.’ 49
On the same day as the massacre, the British government claimed that a state of open rebellion against the authority of the government existed in the districts of Lahore and Amritsar. Therefore, it suspended the functions of the ordinary criminal courts within those districts as regards the trial of persons who were openly hostile to the British government, were in armed opposition to its authority, had committed an act of rebellion, or openly aided and abetted the enemies of the British government within those districts. The very next day, the government issued Martial Law Ordinance No. 1 of 1919 which established a three-member commission to try such offences in a manner similar to a summary court martial. For good measure, on 18 April the government also issued a Martial Law (Seditious) Ordinance to cover Section 124A of the IPC. These ordinances were subsequently extended to other districts of Punjab and their application later extended to cover all revolutionary crimes committed after 30 March that year. 50
The first prominent victim of the martial law ordinance was Lala Harkishen Lal, barrister-at-law, a respected industrialist and a co-founder of Punjab National Bank. He was accused of instigating agitation against the Rowlatt Act in Lahore, where he issued a notice in the local papers calling for the closure of all shops in the district on 6 April 1919. Even though martial law in Punjab was declared only on 13 April, Harkishen Lal was arrested on 11 April and transported to the north-west frontier outside Punjab on the charge of sedition. Later, the martial law ordinances were declared to be retrospective with effect from 30 March, and their application extended even to territories beyond Punjab. Harkishen Lal was again arrested from the north-west frontier on 8 May on charges of sedition, treason, conspiracy to wage war against the government and membership of an unlawful assembly.
He was brought back to Lahore to stand trial before the above-mentioned three-member commission. Lal was denied counsel from outside Punjab even though he had great difficulty in engaging a local lawyer, and eventually sentenced to transportation for life and forfeiture of property. However, his sentence was later commuted to rigorous imprisonment for two years by the government on compassionate grounds. 51
The unrest in Punjab had claimed lives in Delhi on 30 March 1919, followed by disorder and violence in Lahore on 6 April and 10–12 April. The Tribune was a daily newspaper published in Lahore with Kali Nath Roy as its editor. On 6 April and 8–11 April he published articles on the deaths in Delhi with the deceased referred to as martyrs. The newspaper charged the government with grave misconduct in connection with the Punjab unrest. In its issue published on 10 April, it stated that the ‘atmosphere was highly surcharged’ and the ‘public mind in a state of unusual excitement’. Roy was arrested on 6 May and charged with sedition under Section 124A of the IPC. He was tried under martial law and sentenced to two years’ rigorous imprisonment by a special tribunal on 28 May. 52
Roy applied for special leave to appeal against his conviction as there was no right to appeal against judgments of the special commissions set up under the martial law ordinances. He was granted special leave to appeal before the Bombay High Court by the King in Council on 18 August. Roy appealed his conviction on two grounds. First, that his trial by summary court martial was unconstitutional 53 and therefore bad in law; and second, that he was not guilty under Section 124A of the IPC. A bench comprising of five judges of the Bombay High Court dismissed his first ground of appeal at the outset based on a case law 54 which had already held that trial under martial law in Punjab was constitutional. In the earlier case, the Bombay High Court had held that such a trial would have been unconstitutional if the accused were a British subject of the crown. However, that protection did not extend to an Indian subject of the crown.
As to the second ground, the High Court refused to interfere with the finding of the Special Tribunal which had tried Kali Nath Roy. It was of the view that the decision of the tribunal was based on facts which had to be looked at in the context of the local conditions prevailing in Punjab at the time of publication of the offending articles. The High Court refrained from giving its findings on facts as it felt that the special commission would have been in a better position to appreciate whether the intention of the articles was punishable under Section 124A of the Penal Code or not.
Finding no reason to interfere on either ground, the High Court dismissed the appeal filed by Kali Nath Roy. However, the dismissal was more or less an inconsequential outcome as Roy had in the meantime received a royal pardon. His sentence had been reduced to three months’ simple imprisonment along with a fine of Rs 1000 during the pendency of the appeal.
Martial law had initially been introduced in only five districts of Punjab: Lahore, Amritsar, Gujranwala, Gujrat and Lyallpore. On 28 May 1919, it was lifted from the district of Gujrat and by 9 June from the other districts except Lahore. On 11 June, even Lahore was brought out of the shadow of martial law. After the end of this period of martial law in Punjab, all the Special Tribunals were dissolved. 55
The Special Tribunals had tried 852 persons, out of whom 582 were convicted and 270 acquitted. Offences against martial law orders, that is, orders issued by the General Officer Commanding, which included curfew and price control orders, among others, were considered minor offences. About 1500 such cases were summarily decided either by court martial or by ordinary courts. With regard to the serious cases which included waging war against the Crown, and sedition, sentences imposed by the Special Tribunals were always subject to revision by the government of Punjab as well as by the govern
ment of India. In nearly 500 out of the 582 cases of conviction for revolutionary crimes, the government had reduced or commuted the sentences imposed by the Special Tribunals. Further, wherever any sentence of forfeiture of property was imposed by the Special Tribunals, the Punjab government had reversed it without fail. By August 1919, out of the 108 death sentences imposed for revolutionary crimes, only eighteen had been executed. Twenty-eight out of the 108 had been reduced to transportation for life, twenty-three to imprisonment for ten years, thirteen to imprisonment for seven years, and twenty-one to imprisonment for even shorter periods. 56
7
Gandhi, Azad and Nehru: Politics of Sedition
I would like to state that I entirely endorse the learned Advocate-General’s remarks in connection with my humble self. I think that he was entirely fair to me in all statements that he has made, because it is very true and I have no desire whatsoever to conceal from this Court the fact that to preach disaffection towards the existing system of Government has become almost a passion with me. And the Advocate-General is also entirely in the right when he says that my preaching of disaffection did not commence with my connection with ‘Young India’ but that it commenced much earlier . . . I do not plead any extenuating act. I am here, therefore, to invite and submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of the citizen. 1
This was what Mahatma Gandhi told the trial court in Ahmedabad on 18 March 1922 before reading out his formal written statement during his trial for sedition. Calling sedition the highest duty of the citizen, he asked the judge to either resign or to inflict the highest penalty possible under Section 124A, if he believed the system of law being enforced by him was good for the people of India. 2
Before we go to the trial, it is important to understand why the prosecution took place. 3
In April 1919, Gandhi had called off the satyagraha against the Rowlatt Act as it had led to violence in many parts of the country. Even in the face of the campaign of repression unleashed by the British government, Gandhi dissuaded his associates and followers from holding strikes or demonstrations against the government. He justified his decision by saying:
We cannot close the shops or suspend business, because that would mean risk of disturbances. Disturbances are not a part of satyagraha. The foundation of satyagraha is based on truth and non-violence . . . We have declared that we will not submit to the Rowlatt Act and that we will disobey other laws. That civil disobedience can only be practiced by one who adheres to truth and non-violence. Without that civil disobedience is foolish and could not help us to achieve anything for the public good. 4
In an announcement published in Sanj Vartaman on 3 May 1919, Mahatma Gandhi announced that he would resume the Satyagraha and Civil Disobedience Movement on 1 July of that year unless the Rowlatt Act was withdrawn by then. He intended to extend the movement to Punjab, which was under repressive martial law and was still reeling from the horrors of Jallianwala Bagh. He exhorted the need to refrain from violence or rioting during the movement. The British government was convinced that Mahatma Gandhi had assumed absolute leadership of the ‘satyagraha sabha’, which they considered to be a secret society whose objective was to break laws and excite anti-government feelings in order to make governance of India impossible.
Ironically, the Rowlatt Act, the campaign against which brought Mahatma Gandhi to the forefront of the freedom movement in India, remained a non-starter and was effectively a dormant legislation which was never invoked. On 21 July 1919, Gandhi called off the Civil Disobedience Movement ‘on account of indication of goodwill on the part of the Government and advice from many of his friends’. 5
This period was followed by the Khilafat Movement by Indian Muslims against the British government in 1920 (whose seeds were sown in 1919 itself). The movement had resulted from the defeat of Turkey at the hands of the British army in the Second World War. Turkey was dispossessed of its lands and the Ottoman sultan of Turkey placed under the control of the allied powers led by the British. Therefore, the allies became the real rulers of Turkey with the sultan reduced to a figurehead. This caused great resentment amongst Indian Muslims as they saw it as an attack against Islam because the sultan was considered the caliph of Islam. Gandhi backed the movement to the hilt as he saw it as a vehicle to unite Hindus and Muslims. He combined the Khilafat Movement led by the Ali brothers with his non-cooperation movement to create a bigger and better weapon against the British government. The non-cooperation movement involved giving up honorary posts, titles and government posts, including police and military jobs, and refusing to pay taxes. Though the government considered the movement unconstitutional, it was wary of prosecuting the people involved in the movement. It was also mistaken in its belief that the non-cooperation movement would dwindle on its own. 6
The government, however, came out of its misbelief at the time of the visit of the Prince of Wales on Christmas Eve in 1921. The visit was opposed through the observation of protest meetings and strikes across India, some of which turned violent. The government reacted with repressive measures like the re-introduction of the Seditious Meetings Act across Punjab, Bihar, Bengal, Assam and Burma. The government took on the civil disobedience and non-cooperation juggernaut with its full might and restricted the freedom of speech and association. In early 1922, Mahatma Gandhi gave an ultimatum to the British government. He referred to the government’s assault on innocent people, harsh treatment of prisoners, and suppression of freedom of speech, freedom of press and freedom of association. He called mass civil disobedience an ‘imperative duty’ in the face of the repressive policies of the government. He asked the government to revise its policy and set free political prisoners convicted of non-violent crimes, failing which he announced a campaign of mass civil disobedience to be launched from Bardoli in Gujarat. The government rejected his demands, thereby laying the ground for a pan-Indian, non-violent Civil Disobedience Movement. The entire nation was galvanized and preparations made across all the presidencies and provinces. No one realized that their preparations would be in vain. 7
The events of 5 February 1922 ensured that the movement would be stillborn. A procession in a village named Chauri Chaura in the United Provinces was fired upon by police officers who shut themselves inside a police station to escape mob fury once they ran out of ammunition. The mob, however, did not relent and set the police station on fire. The officers, in their attempt to escape the blaze, were captured by the rampaging mob. Twenty-two persons were hacked to death and their bodies burnt in the blaze. The event sent shock waves across the nation. As collateral damage, Mahatma Gandhi called off the Civil Disobedience and Non-cooperation Movements indefinitely. While the Chauri Chaura incident was condemned by all, most Indians felt aggrieved by the withdrawal and suspension of the nationwide campaign. Without passing judgment on Gandhi’s decision, it is safe to say that his popularity suffered a major downward spiral due to his retreat. 8
The government considered it an opportune moment to arrest Gandhi, something which it had not done during the movement for fear of mass reprisals. But they were emboldened by his loss of popularity and support and arrested him in Ahmedabad on 10 March 1922. 9
The complete record and detailed account of Gandhi’s trial for sedition under Section 124A of the IPC is contained in Trial of Gandhiji, published by the registrar of the Gujarat High Court at Ahmedabad in 1965.
Gandhi was the editor and publisher of a weekly journal named Young India which he had founded in 1919. His arrest was the result of four articles published in Young India, namely ‘Disaffection a Virtue’, 10 ‘Tampering with Loyalty’, 11 ‘The Puzzle and Its Solution’ 12 and ‘Shaking the Manes’. 13 The sanction for his arrest was issued on 4 March 1922 by the secretary to the government of Bombay (Home Department), which also included the sanction to arrest Shankarlal Banker, who was the proprietor of Young India. Banker was arrested a day before Gandhi’s
arrest. Though the sanction for prosecution under Section 124A was issued with respect to four articles, the actual prosecution focused on three articles, with ´Disaffection a Virtue’ being left out.
The first article, ‘Tampering with Loyalty’, had supported the Khilafat Movement and reiterated the call to Indian sepoys to quit serving in the British army. Gandhi wrote that sedition had become the creed of the Congress and every non-cooperator was pledged to preach disaffection towards the government established by law. He further said that non-cooperation deliberately aimed at the overthrow of the government and was therefore legally seditious in terms of the IPC.
Both Gandhi and Banker pleaded guilty to the charge of promoting sedition before the Sessions Court of Ahmedabad and refused to call any witness in their defence. The Sessions Court, presided over by Judge R.S. Broomfield, conducted their trial on 18 March 1922. Sir J.T. Strangman, the advocate general, contended that the offending articles were part of an organized campaign harmful to the government.
Strangman had wanted a full trial against both the accused but the judge disagreed with him because of the guilty plea submitted by them. He felt that examination of evidence would be unnecessary, but he was prepared to hear out the prosecution as well as the accused. Neither Gandhi nor Banker had engaged any lawyer and were representing themselves before the court.
The prosecution had contended that since Gandhi was a highly educated individual and a recognized leader, the harm caused by his writings was considerably higher. Strangman referred to occurrences in Bombay, Madras and Chauri Chaura which led to murder and destruction of property. He pointed out that even though the articles impressed upon the practice of non-violence, the effect of preaching disaffection was contrary to it. Mahatma Gandhi responded by endorsing what Strangman had said and admitted that preaching disaffection had become a passion with him. He accepted the blame for the crimes of violence committed in Bombay, Madras and elsewhere and said, ‘I wish to endorse all the blame that the learned Advocate General has thrown on my shoulders in connection with the Bombay occurrences, Madras occurrences and the Chauri Chaura occurrences. Thinking over these deeply and sleeping over them night after night, it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay . . . I should have known that I was playing with fire. I ran the risk, and if I was set free, I would still do the same.’
The Great Repression Page 13