Tilak was again
tried
in 1909 before Davar J. and a special jury, for sedition in respect of
certain
articles published in the "Kesari" in May and June 1908.
The
first of these articles referred to the wanton murder of two innocent
European
women at Muzzafferpore with a bomb thrown by Bengali
terrorists.
Tilak condemned the outrage in these terms: "This, no doubt, will
inspire
many with hatred against the people belonging to the party of
rebels.
It is not possible to cause British rule to disappear from this country
by
such monstrous deeds. But rulers who exercise unrestricted power
must
always remember that there is also a limit to the patience of
humanity".
He then alluded to "Russian methods ", and said that "many
newspapers
had warned the government that if they resorted to Russian methods,
then
Indians too will be compelled to imitate the Russian
methods".
Proceeding further, he said, "True statesmanship consists in not
allowing
things to reach such an extreme stage. Where government neglect
their
duties towards their subjects, the occurrence of calamities like that
at
Muzzafferpore is inevitable". Another article commenced with the
Indian
proverb "Vinashakale vipareeta Budhi", "aberration of the
intellect
suggests coming destruction". The article then proceeds to
explain
the causes lying at the root of the "cult of the bomb" in Bengal.
"The
authorities have falsely spread the report that the bombs of the
Bengalis
are subversive of society. There is an excess of patriotism
at
the root of the bomb in Bengal". He then described the bomb
as
a form of knowledge, a kind of witchcraft, a charm and an amulet.
If
bombs are to be stopped, government should act in such a way that no
"turn-headed"
(wild or headstrong) man should feel any necessity at all for throwing
bombs.
When do people who are engaged in political agitation become
"turn-headed
"? It is when young political agitators feel keen
disappointment
that their faculty, their strength and self-sacrifice cannot be of any
use
in bringing about the welfare of their country in any other way than by
acts
of "turn headedness". The real and lasting means of
stopping
the bombs consists in making a beginning to grant the important rights
of
Swarajya to the people". The prosecution also relied on four
other
articles which were not the subject-matter of the charges, but were
exhibited
for the purpose of proving the intention of the accused.
Branson, acting
Advocate-General,
appeared for the Crown with D. B. Binning. Tilak defended
himself.
In his address to the jury, Tilak made some very good
points.
He pointed out to the jury that the alleged insinuations, inferences,
and
innuendoes were drawn, not from the original words used by him, but
from
translations. The jurors were not Marathi knowing
people.
They knew little about the people who read the "Kesari"; and yet they
were
asked to consider the effect on the minds of the readers of the
paper.
The views contained in the first article were written by him to give
advice
at a time of unrest. The object of the second article was
to
reform; this was not sedition. "The jury," he added, "may not
approve
of my views; but the question is of good or bad intention".
As
the bomb outrage was the question of the day, it was his duty as a
journalist,
to press upon the attention of the government the causes of the bomb.
Reporting
an existing feeling was not the same as inflaming feelings.
In his charge to
the
jury, Davar J. told them that a journalist could criticise the
government
as strongly as he liked, but he had no right to attribute dishonest or
immoral
motives to it. He added, "it is the bounden duty of the
subject
to obey the law implicitly and no motives, no amount of honest
intention,
nothing could justify the breach of the law. The true test
is
to look at the various articles and judge of them as a whole; and judge
of
the effect they produce on your minds in the first instance; judge
whether
they are calculated to produce feelings of hatred, contempt, disloyalty
and
enmity towards the government in the minds of the readers of these
articles.
Mere protestations of disapproval of crimes or violence may be a veil
for
the purpose of emphasizing the real object of the articles. Do
these
articles convey to you the meaning that bomb throwing is the legitimate
means
of political agitation?" The judge then referred to one of
the
articles which had been put in as an exhibit, to show Tilak's
intentions,
and pointed out that in one of them Tilak had referred to Irish unrest
and
the outrages committed by Irish extremists. Commenting on
this,
the judge said, "Mark the words, gentlemen, 'such usefulness of
one
sort', 'murders are useful sometimes in order to rivet the attention of
the
authorities to the grievances '. "He referred to another
article
put in as an exhibit, in which Tilak had written that the authorities
lost
their own heads during the agitation in Bengal over the partition of
Bengal,
in letting loose Mussalman Gundas upon Bengali Hindus, causing damage
to
their property and to the honour of their women. Commenting on
this,
the judge said, "Is it, or is it not a charge against
government
of inciting Mahommedans for the most improper purpose of attacking
Bengalis,
to loot their property, and defile their women? Could
anybody
after reading this entertain feelings of respect for government?"
The jury by a
majority
of 7 : 2 returned a verdict of guilty. On being asked by
the
judge whether he had anything to say, Tilak uttered these memorable
words
"All that I wish to say is that, in spite of the verdict of the jury, I
still
maintain that I am innocent. There are higher powers that
rule
the destinies of men and nations; and I think, it may be the will of
Providence
that the cause I represent may be benefited more by my suffering than
by
my pen and tongue". The judge sentenced Tilak to six
years'
transportation and a fine of Rs. 1,000. In passing
sentence,
the judge indulged in some scathing strictures against Tilak's
conduct.
He threw off the judicial restraint which, to some extent, was
observable
in his charge to the jury. He condemned the articles as
"seething
with sedition", as preaching violence, speaking of murders with
approval.
"You hail the advent of the bomb in India as if something had come to
India
for its good. I say, such journalism is a curse to the
country".
One can hardly
help
contrasting this trial of Tilak by Davar J. with the later trial of
Mahatma
Gandhi before Judge Broomfield. Both were tried for
publication
of seditious articles in their papers. Both were convicted,
and
both were given the same sentence. But a dozen years had
made
a world of difference between the political atmospheres of the two
periods.
The World War and its aftermath had made, in the course of less than a
decade,
an immense and amazing difference between the temper of the people, and
the
tempo of political unrest and agitation in India. This is
reflected
in what Tilak wrote in 1908 and what Gandhi wrote in
1921.
Tilak's sedition, such as it is, is guarded, cautious and veiled. It is
on
the whole moderate in terms and tone. Gandhi's is open,
strident,
flagrant, and virulent. Tilak demands change in the methods
and
attitude of Government. Gandhi preaches open overthrow and
destruction
of the British Raj. Yet, Tilak left the court with the
stigma
of a dangerous convict, reprimanded and admonished by the judge in
strong
scathing terms. Gandhi took his departure in an odour of
sanctity
and a blaze of glory. The latter, though a worse sinner
from
the standpoint of law, was treated both by the prosecuting counsel and
the
judge with restraint and respect, bordering on veneration.
Such
is the difference in treatment which the personality of the accused
persons,
and the spirit of the times make even in the administration of law,
which
professes to be "no respecter of persons". Whereas
Broomfield's
observations on passing sentence were marked by perfect judicial
restraint,
poise, and due respect for the personality of the person charged,
Davar's
final observations addressed to the accused were ill-timed and
intemperate,
entirely lacking in judicial restraint and dignity. But apart
from
the change of atmosphere at the two relevant periods, Davar J. belonged
to
the old school of "die-hards", who sincerely believed in the
beneficence
of British rule in India. Besides, he had the one-track,
unjudicial
mind of the militant advocate, which he carried with him from the Bar
to
the Bench.
Tilak's trial if
legally
justified was a grave political blunder. The blunder was
aggravated
by the judge's intemperate strictures on the popular patriot as a man
with
a "diseased and perverted mind". This provoked a
ready
retort from one of his compatriots, N. C. Kelkar, who ridiculed the
judge
assuming gratuitously the role of an expert on mental diseases. He
called
him in his paper: "Lal zagyacha vaidu", a "quack in red
robes".
Morley, then Secretary of State for India, disapproved of both the
trial
and the sentence, in a letter he wrote to Lord Sydenham, the then
Governor
of Bombay, at whose instance the prosecution was launched.
In
his view, "the mischief of the trial and condemnation of Tilak would be
greater
than if you left him alone". Sydenham tried to
justify
himself. Morley stuck to his opinion, observing that
although
it was morally and legally right, it was politically wrong.
Following
this, Morley issued orders that henceforth, local governments, before
launching
upon a political prosecution, should refer the matter to the Government
of
India. But the Indian Governments persisted in their
purblind
policy of prosecuting patriots. The tragedy of the British
bureaucrats
was, that like the Bourbons, they learnt nothing and forgot
nothing-except
the vital lesson that persecution of patriots always sends up their
stock,
and enhances their prestige and popularity with their countrymen. Tilak
was
right when he stressed the wisdom of the Indian adage " Vinashakale
vipareeta
Budhi ", " those whom the gods wish to destroy first make mad ".
Postscript
These words of
Tilak,
uttered just before sentence was passed on him lingered, as they
deserved
to, in the memory of later generations; and led to a strange sequel,
about
50 years afterwards. They were inscribed on a marble tablet
fixed
outside the court where he was tried. Honouring a patriot
of
the stature of Tilak with a statue or memorial tablet is right and
proper.
But Courts of law are not the right and proper places for political and
patriotic
memorials and demonstrations.
That the tablet
was
of a "political" nature and involved passing a judgment on previous
verdicts
was placed beyond doubt by the speech of Chief Justice Chagla, who said:
"There is no honour and
no
distinction which I have valued more than the privilege of being able
to
unveil the tablet to Lokamanya Tilak's memory this morning.
In
this very room on two occasions within the space of 12 years, Lokamanya
Tilak
sat in the dock as an accused; and on two occasions he was convicted
and
sentenced to a term of imprisonment. We have met here today
to
make atonement for the suffering that was caused by these convictions
to
a great and distinguished son of India. That disgrace
tarnished
our record and we are here to remove that tarnish and that disgrace. It
may
be said that those convictions were a technical compliance with
justice;
but we are here emphatically to state that they were a flagrant denial
of
substantial justice. He was sentenced for the crime of
patriotism.
He was sentenced because he loved his country more than his life or his
liberty.
Ladies and gentlemen, the verdict that our contemporaries passed on us,
the
verdict that our times passed on us, is not of much value.
We
must always await the inevitable verdict of history; and the inevitable
verdict
of history is that those two convictions are condemned as having been
intended
to suppress the voice of freedom and patriotism, and the action of
Lokamanya
Tilak has been justified as the right of every individual to fight for
his
country. Those two convictions have gone into
oblivion-oblivion
reserved by history for all unworthy deeds. The fame and
lustre
of Tilak has grown and increased with the passage of time. . . ."
" May I be permitted a
slight
personal reminiscence. As a boy Tilak was always my
hero.
I remember the day when he was sentenced to six years' imprisonment in
1908,
when I was a school boy studying in a school at Dadar; and I remember
serious
riots broke out in Parel; and so great was my anger and indignation at
what
happened to Tilak, that I almost felt like joining the rioters; but I
suppose
my deep law-abiding instinct prevented me from doing that. . . ."
It is rather
strange
that the 'deep law-abiding instinct', which curbed the law-breaking
impulse
of the precocious school-boy, should have momentarily deserted the
Chief
Justice, so that he overlooked the fact that the previous verdicts and
judgments,
which were condemned as having 'tarnished' and 'disgraced' the judicial
record
of the High Court, were, perhaps, inspired and impelled by a similar
sense
of loyalty to the law then prevailing. The C.J.'s speech is
admirably
patriotic, or patriotically admirable; but legally and judicially
inexplicable
and indefensible; and was delivered from a wrong platform.
The tablet,
taken
in conjunction with this illuminating speech, is also unfortunate as
establishing
a very undesirable precedent. If successive generations of
judges,
with fluctuating loyalties and ideologies, are to be at liberty to put
up
memorial tablets, "atoning" for the misdeeds of previous generations,
there
would be no end of such memorial tablets; and judges henceforth will
have
to decide cases with an eye, not to the law and evidence, or even to
the
Supreme Court, but to the "Inevitable verdict of History", which, of
course,
is to be taken as always infallible and final-Pace Herodotus, Tacitus,
Gibbon,
& Macaulay! In point of fact, the verdicts of History
are
no more inevitable or infallible than those of judges and juries; and,
in
any case, are utterly irrelevant in the context of judicial
pronouncements.
It is also an
irony
of human life that the "inevitable verdict of History" occasionally
overtakes
us sooner than we anticipated.
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