He then read out a written statement to explain how he had turned from being a British loyalist and cooperator to an uncompromising ‘disaffectionist and a non-cooperator’. He had supported the British Empire in South Africa as well as in India during the First World War despite having felt denigrated by them. The turning point for him came in 1919 with the Rowlatt Act, which was followed by the horrors of Punjab, especially the massacre at Jallianwala Bagh in Amritsar. The third setback was the breaking of promises when it came to the treatment of Turkey at the hands of the British. This spelled the start of the Khilafat Movement, which was wholeheartedly supported by Gandhi. He strongly criticized the bureaucracy and judiciary for having repressed innocent Indians, who always ended up getting the short end of the stick as compared to their British and European fellow citizens.
On the charges against him he said, ‘Section 124A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be measured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr Banker and I are charged is one under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it and I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section. I have endeavoured to give in their briefest outline the reasons for my disaffection. I have no personal ill-will against any single administrator, much less can I have any disaffection towards the King’s person. But I hold it to be a virtue to be disaffected towards a Government which in its totality has done more harm to India than any previous system. India is less manly under the British rule than she ever was before. Holding such a belief, I consider it a sin to have affection for the system. And it has been a precious privilege for me to be able to write what I have in the various articles tendered in evidence against me.’
He thereafter called upon the judge to first consider whether the law of sedition was evil or not, and punish him with the severest penalty if he found that it was not. He called upon the judge to resign and dissociate himself from evil if he found otherwise.
The judge appeared to hold Mahatma Gandhi in high regard and found it difficult to determine the sentence against him. He acknowledged the fact that Gandhi was not an ordinary accused. He was revered by millions for whom he was a leader and a patriot. However, he found it difficult to understand how Gandhi could believe that his political teachings would not amount to violence even though he asked people to refrain from it. He felt that violence was the inevitable consequence of Gandhi’s message to the masses.
Judge Broomfield invoked the second trial of Bal Gangadhar Tilak under Section 124A of the IPC and proposed to pass a similar sentence as the nature of both trials was similar. He therefore imposed an identical sentence of six years’ simple imprisonment; two years for each article. He, however, hoped that the government would reduce the sentence in the future. Shankarlal Banker was sentenced to one year’s simple imprisonment—six months each for the first two articles—and a fine of Rs 1000 for the third article. Failing the payment of the fine, Banker was to serve an additional six months’ simple imprisonment.
Gandhi thanked the judge for associating his name with that of Bal Gangadhar Tilak and stated that the sentence was more lenient than he had expected. Banker and Gandhi were then taken to serve out their sentence at Sabarmati Jail in Ahmedabad, which marked the end of the hundred-minute trial! 14
Judge Broomfield’s wish came true as the government of Bombay reduced Gandhi’s sentence and ordered his release on 4 February 1924, which was carried out the next day at Yeravada Central Prison in Poona where he was serving his sentence by then.
As collateral damage, Gandhi’s conviction resulted in him losing his place as a barrister with Inner Temple in London. It removed him from its roll of barristers and disbarred him from practising law. 15 Not that Mahatma Gandhi was looking at a career in law, but the collateral damage was remarkable, nonetheless.
At about the same time, another leading light of the Khilafat and Non-cooperation Movements, Maulana Abul Kalam Azad, was arrested in Calcutta in December 1921 before the arrival of the prince of Wales. Maulana Azad was charged with sedition under Section 124A of the Code for a couple of speeches he had delivered in July 1921. He was tried before the presidency magistrate in Calcutta within the jail premises itself. Like Gandhi and Banker, even Azad refused to defend himself and pled guilty to the charge of sedition and was duly sentenced on 9 February 1922 to one year’s rigorous imprisonment. 16
Azad felt that the sentence was too light for him. Prior to his conviction he read out a written statement running into thirty pages, which Gandhi called ‘. . . an eloquent thesis giving the Maulana’s view on Khilafat and nationalism . . . an oration deserving penal servitude for life’. In his statement, Azad claimed to have descended from a long line of satyagrahis starting from Jesus. Talking about sedition, he said, ‘. . . nothing can be a higher crime against the domination of Government, as at present established, than the agitation which seeks to terminate its unlimited authority in the name of liberty and justice. I fully admit that I am not only guilty of such agitation, but that I belong to that band of pioneers who originally sowed the seed of such agitation in the heart of our nation and dedicated their whole lives to the cherishing and breeding of this holy discontent.’ 17
The start of the next decade saw another wave of civil disobedience, which had its roots in the purna swaraj (complete independence) declaration of the Indian National Congress on 31 December 1929. The All India Congress Committee even decided to mark 26 January as Independence Day! Civil disobedience included non-payment of taxes and a demand for removal of the salt tax which was repressive for the poor sections of society. In March 1930, Mahatma Gandhi embarked on a historic march to Dandi in coastal Gujarat, from his ashram in Sabarmati, to break the law prohibiting the indigenous manufacturing of salt. The march was an era-defining event and was the real birth of that phase of civil disobedience. In October 1930, Jawaharlal Nehru, fresh from his release from prison after serving a sentence for breaking salt laws, called for a no-tax campaign at a meeting of the United Provinces Congress Committee. He called upon landlords and peasants alike to participate in the campaign. 18
On 12 October, while addressing a large gathering, Nehru said:
We have adopted the policy of nonviolence because we believe in it and wish to give it the fullest trial in all honesty . . . The first phase of the great struggle has come to an end. It has been marked by a national awakening to which the world has been an admiring witness. Now the second stage is beginning, the stage of our laying the foundations of a future, free India. Every city, every mohalla, every village must now play its part in this effort by making itself ready to become a living, self-dependent entity in free India. We must be prepared not only to pay any taxes to the British Government but also to do without any service which they may render to us. 19
Thereafter, Nehru was forbidden to speak in public by the police, but he defied orders and addressed a mass gathering of peasants at Allahabad on 19 October and decided to start the no-tax campaign from Allahabad itself. However, before he could even reach home from the rally, he was arrested for sedition and taken to prison.
In the true spirit of non-cooperation, even Nehru refused to defend himself and pleaded guilty to the charge under Section 124A of the IPC. In his statement to the magistrate, he said, ‘There can be no compromise between freedom and slavery, and between truth and falsehood. We realized that the price of freedom is blood and suffering—the blood of our own countrymen and the suffering of the noblest in the land—and that price we shall pay in full measure . . . To the Indian people I cannot express my gratitude sufficiently for their confidence and
affection. It has been the greatest joy in my life to serve in this glorious struggle and to do my little bit for the cause. I pray that my countrymen and countrywomen will carry on the good fight unceasingly till success crowns their effort and we realise the India of our dreams.’ On 24 October 1930, he was sentenced to two years in prison for sedition under Section 124A and for breaking other laws. However, he was released after serving ninety-seven days. 20
Nehru’s second tryst with sedition was to occur three years after his release from prison after his first conviction for sedition. In January 1934, Nehru travelled to Calcutta in solidarity with the repressed masses of Bengal. During his four-day stay there, he had addressed some meetings, out of which three speeches formed the basis of the sedition charge against him. 21
The first speech was delivered at Albert Hall in Calcutta on 17 January on ‘The Character of the National Struggle’. After apprising the gathering of the nationalist movements across India, Nehru criticized the British government for the brutal, disgusting and vulgar mentality with which it was governing India. He said:
It is an extraordinary vulgarity of imperialism. Why is that so? Because imperialism of today, in spite of the strength that it seems to possess, is in a tottering condition, and when a great system like this totters, when it is afraid of failing, then it loses all control, its culture and education and everything else goes. It becomes vulgar and it becomes abusive . . . these are the signs of a decadent system. The system is utterly decadent. Therefore you find utter cruelty, utter vandalism. That is what is happening specially in Bengal and the Frontier Province . . . Therefore, do not expect anything from appeals to chivalry or appeals to justice or the like. We are today in the midst of a historic struggle, which all nations have to face at a particular time and from that there is only one escape—victory of one side or the other. I hope you will realise that and work for that. 22
The next speech was also delivered at Albert Hall the very next day on ‘The Futility of Terrorism and the Nature of Mass Movement’. As the title suggests, Nehru was critical of terrorism as a form of nationalist movement and called it weak, futile, harmful and completely out of date. However, he preached disloyalty and said:
In the Congress we have nothing to do with loyalty. We are disloyal . . . and it is our business to preach disloyalty . . . Are you going to be loyal to those people who humiliate your people, who degrade your country, or are you going to be loyal to your own country, to your own people? . . . Indian nationalism and British imperialism are at close grips with each other. British imperialism may succeed in suppressing Indian nationalism, but remember this also: that while Indian nationalism will grow again, but British imperialism will be suppressed once for all by Indian nationalism 23
The third speech was delivered in Hindi at Maheshwari Bhawan on 18 January. However, according to Nehru, the translation of the speech was grossly inaccurate, conveyed the wrong impression and misrepresented what he had actually said. The speech has not been published in Nehru’s selected works for this same reason. 24
Nehru was arrested from Allahabad on 12 February on warrants issued by the Calcutta police. He was produced before the chief presidency magistrate on 13 February, who charged him with sedition under Section 124A and offered to hold the trial in private to protect Nehru’s feelings!
Nehru refused the offer and conveyed his preference of being tried in public. His trial was held on 15 February before the chief presidency magistrate. He refused to take part in the proceedings, just like his earlier sedition trial, and did not enter any defence, thereby pleading guilty. He admitted that his activities had been seditious for years, that is, if sedition meant the desire to achieve the independence of India and put an end to foreign domination. He further admitted having attempted to put an end to British rule in India and therefore being guilty of sedition. He condemned the British government in Bengal and its brutalities. He concluded his statement by saying, ‘It is a terrible thing when brutality becomes a method of behaviour.’ 25
Thanks to his guilty plea, Nehru was sentenced to two years’ simple imprisonment under Section 124A of the IPC on 16 February 1934. In fact, Sushil Kumar Sinha, who was the chief presidency magistrate, felt regret for the trial and conviction and thought Nehru would be wasted in prison. He suggested that if Nehru would express some form of regret, he could put an end to the matter and save himself from incarceration. He offered to adjourn the sentencing hearing and also offered to see the governor himself to speak on behalf of Nehru. Though moved by the earnestness of the gesture, Nehru refused to show any remorse or regret. He felt that any such move would result in a win for the government. Therefore, Sinha was forced to impose the sentence of two years’ imprisonment. 26
Again, Nehru did not have to serve the full sentence but was released after serving 565 days. The remainder of the sentence was suspended by the government on compassionate grounds as his wife, Kamala Nehru, was seriously ill. 27
PART III
SEDITION IN THE REPUBLIC
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No Love Lost: ‘Sedition’ in the Constituent Assembly
On 22 November 1934, a gentleman by the name of Kamal Krishna Sircar delivered a speech at Shradhanand Park in Calcutta. It was a meeting of the Bengal Youth League, a communist group. Naturally, the meeting had a red banner with the hammer, sickle and star signage on it. It was attended by young Bengali students and featured a number of speeches. At this meeting, Sircar moved a resolution condemning the outlawing of the Communist Party of India and various other trade and labour associations. He attributed capitalist motives to the government’s decision to ban various communist organizations, and even called Gandhi and the Congress government stooges. All in all, the speech recommended the communist form of government over the capitalist one and called upon young Bengali students to join the Bengal Youth League to propagate communism. 1
Unfortunately for Sircar, the government saw red.
Sircar was charged with sedition under Section 124A of the IPC and convicted to serve one year’s rigorous imprisonment. Upon an appeal being filed, a two-judge bench of the Calcutta High Court set aside his conviction. It found it absurd to say that such a speech would amount to sedition. It was of the view that if such speeches were considered seditious then every argument for one form of government over the present form would amount to hatred of the government and bring it into contempt. The court felt that the magistrate did not like communism, and neither did the High Court, but it deemed that feeling irrelevant for the purpose of a trial under Section 124A. It did not find such dislike of an ideology to be good reason to hold someone guilty of sedition. Holding that the right to free speech existed in India, unlike other countries, the court did not find it wise to institute sedition prosecutions against speeches of the kind delivered by Kamal Krishna Sircar. It accordingly acquitted him of the sedition charge. 2
Even earlier, the Calcutta High Court had held that in a charge under Section 124A of the IPC, the prosecution must prove to the hilt that the intention of the writer or the speaker, as it may be, was to bring or attempt to bring into hatred or contempt or attempt to excite disaffection towards the government established by law in British India. The essence of the crime of sedition was to be found in the intention of the accused. The prosecution, therefore, had to establish that the intention of the accused was exactly as what is defined in the section, and mere tendency to promote such a feeling was not sufficient to justify a conviction. 3
However, the intention of the writer or the speaker had to be gathered from the particular language used in the offending article or speech. Basically, what needed to be seen was whether the meaning of a writing or speech, as understood by people to whom the same was addressed, was seditious or not. In fact, it was not open to the speaker or writer accused of sedition to contend that he or she did not intend their language to bear the meaning which it would naturally or literally mean. 4 Basically, it follows the principle that people are assumed to intend the natural an
d reasonable consequences of their actions. This was consistent with Justice Strachey’s view that if hatred or contempt against the government was caused or disaffection excited, then whether the accused intended to commit sedition or not was irrelevant. Therefore, under Section 124A, if the article or speech in question excites or attempts to excite hatred, contempt or disaffection towards the government, then it is assumed that the accused intended to do so in fact.
In ascertaining intention, as explained above, it was important to read any offending article or speech as a whole in a ‘fair, free and liberal spirit’. The Calcutta High Court said:
. . . one should not pause upon an objectionable sentence here, or a strong word there, but that the article as a whole should be dealt with in a spirit of freedom and should not be viewed with an eye of narrow and fastidious criticism but, as has been said in another case, should be viewed in a free, bold, manly and generous spirit towards the accused. As we read the cases to which our attention was drawn during the course of the argument, the expression in the section ‘calculated to bring into hatred or contempt or excite or attempt to excite disaffection’ must, as a rule of construction, be very narrowly construed so as to interfere as little as possible with the liberty of the subject and the freedom of speech. 5
The Great Repression Page 14