Recalling Jinnah And Tilak Trials

RECALLING JINNAH AND TILAK TRIALS RECALLING JINNAH AND TILAK TRIALS By Syed Sharifuddin Pirzada, Senior Advocate Lokamanya Bal Gangadhar Tilak has been described as the Hercules and Prometheus of modern India. Gandhi had once compared him with the ocean. In 1897 Tilak was prosecuted for sedition. An application for bail was moved by his counsel Dinshaw Davar which was granted by Mr. Justice Tyabji. The trial began before Mr. Justice Stretchy and a special jury. The jury was divided in their opinion; the European jurors gave a verdict of guilty while the three Indian jurors held the accused not guilty. Tilak was sentenced to 18 months' rigorous imprisonment. In 1908 Tilak was prosecuted again under sections 124‑A and 153‑A for certain articles in Kesari in connection with the bomb thrown by terrorists in Bengal. When the case was committed to the Sessions, a bail application was preferred to the High Court on his behalf. The case came before Mr. Justice Davar, who was Tilak's counsel in an earlier sedition case. It may also be mentioned that in this very case, when the matter was at the stage of enquiry before the Chief Presidency Magistrate, J.D. Davar, son of Mr. Justice Davar, was one of the counsel of Tilak. The High Court procedure required that the party applying for bail must give clear forty‑eight hours' notice to Government. Tilak's solicitors accordingly gave intimation that they intended to move the Sessions Judge on the point of bail. It was somewhat late in the afternoon of June, 29 when the intimation was given. When, on July 1, 1908, Mr. Jinnah appearing for Tilak sought to be heard, he was confronted with the objection that the forty‑eight hours were yet to run. Mr. Justice Davar informed Mr. Jinnah that considerations of health would prevent him from sitting after 5‑30 p.m. The bail application, in consequence, stood adjourned to the next day. When the matter was taken up the next day, Government opposed the application tooth and nail. Mr. Jinnah tried to refute the arguments advanced by advancing cogent reasons in support of the application. He referred to Tilak's health and informed the Judge that Tilak was under medical treatment for diabetes when he was arrested. The translation of the articles held objectionable, Mr. Jinnah added, bristled with mistakes. For correct translations to be submitted to the Court and for enabling Tilak to prepare his own defence, the only course, according to him, was to grant him bail. Assuring the Judge that Tilak could be relied upon to appear in Court in time on the day fixed for the hearing, Mr. Jinnah tried to clinch his argument by relying on the earlier ruling of the late Mr. Justice Tyebji who, agreeing with Barrister Davar, had, a decade back, granted bail in Tilak's case. Mr. Jinnah's attempt to win over the Judge by reminding him of his own argument as a barrister was no doubt a shred one. S.L. Karandi Kar recalls: "Mr. Justice Davar of 1908 was a man altogether different from Barrister Davar, who had defended Tilak in 1897. He refused to follow the ruling cited by Mr. Jinnah. Whether the accused would present himself or not for taking his trial was, he remarked, no doubt a weighty consideration". In rejecting the application, the learned Judge observed: "it would be wise, under the present circumstances, not to give any reasons or enter into discussion of the considerations weighing with me in refusing the application". It is submitted, with respect, that in the absence of reasons, the wisdom, if any, behind the said order appears to be otherwise. Thereafter, Mr. Jinnah requested a certain line of action, which Tilak did not agree at that time. Jinnah thereupon withdrew and Tilak decided to defend in person. Jinnah later reminisced: "I am not disclosing any secrets, I hope, with reference to his trial before Mr. Justice Davar when I say that he was determined not so much to secure his acquittal, but to establish that Anglo‑Indian Press was guilty of defaming India and Indian people, which was as such a libel and the government did not take any steps against them. There arose a serious difference of opinion between him and myself as a counsel, because I proposed to adopt any line, as a counsel, except that I considered best for his defence". Now, reverting to the subsequent developments in the trial, Davar, J. granted the application of the Crown that special jury be empanelled. Seven jurors who happened to be Europeans gave a verdict of guilty while two who were Indian returned a verdict of not guilty. The Judge sentenced Tilak to six years' transportation. In his summing up Mr. Justice Davar had said that Tilak's was a "diseased and perverted mind", and "that such journalism as was represented by his articles was a curse to the country". These observations, to say the least, were injudicious, undignified and uncalled for. Fourteen years later, this decision being that of the High Court had to be followed as a precedent by Sessions Judge Mr. Broomfield who sentenced Mahatma Gandhi to a similar period. The learned Judge, however, was considerate and courteous in his remarks. Gandhiji said: "I would say one word. Since you have done me the honour of recalling the trial of Lakmanva Bal Gangadhar Tilak. I just want to say that I consider it to be the proudest privilege and honour to be associated with his name... So far as the whole proceedings are concerned, I may say that I could not have expected greater courtesy". There are many who question the propriety of Mr. Justice Davar's conduct in presiding over those proceedings. As pointed out by Lord Hewart, C.J.: "It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done". If Jinnah's advice had prevailed, perhaps the verdict in Tilak's as well as Gandhiji's case might have been different. The order rejecting the bail was passed in the pre‑independence period during colonial rule, when the fundamental rights were not guaranteed whereunder, in the words of Justice Iyer, bail not jail is the general rule. After Justice Davar had sentenced Tilak to six years' rigorous imprisonment, the Government conferred knighthood upon Davar, and the Bar Association of the High Court of Bombay wanted to give him a dinner. A circular went round asking those who wanted to join the dinner to sign it. When the circular came to Jinnah, he wrote a scathing note to the effect that "the Bar should be ashamed to want to give a dinner to a Judge who had obtained knighthood by doing what the Government wanted, and by sending a great partiot to jail with a savage sentence". It seems that Justice Davar came to know about this, and sent for Jinnah in his chamber. He asked Jinnah how he thought Davar had treated Jinnah in his Court. Jinnah replied that he hack always been very well‑treated. Davar asked Jinnah next whether he had any grievance against him. Jinnah said he had none. Davar then asked: "Why did you write a notes like this against me". Jinnah replied that he wrote it because he thought it was the truth; and, however, well Davar might have treated him, he could not suppress his strong feeling about the manner in which he had tried Tilak's case. All this goes to demonstrate the great regard which Jinnah had for Tilak, and also the courage and the spirit of nationalism which Jinnah displayed as a young man. M. C. Chagla writes in "Roses In December": "I understand that the regard Jinnah had for Tilak was reciprocated by Tilak. As Chief Justice of Bombay I had a tablet put up outside the Court room where Tilak sat as an accused in the dock. I had always felt strongly about the conviction and I was glad that I had at least an opportunity to make some atonement for the suffering caused by the conviction to Tilak. Disgrace tranished our record and the conviction was a flagrant denial of substantial justice". In 1916 Bal Gangadhar Tilak was ordered to execute a bond in the sum of Rs.20,000 with two sureties each in the sum of Rs.10,000 to be of good behaviour for a period of one year under section 108, Cr.P.C. by a Bombay Magistrate for making seditious speeches. He filed a revision petition in the High Court at Bombay which was argued by Mr. M. A. Jinnah on November 8, 1916. Mr. Jinnah, inter alia, argued; "The first thing that the Court has got to find out is whether in this case the appellant, by speeches, disseminates or attempts to disseminate any seditious matter. The only authoritative pronouncement on this phrase, `Government established by law in British India', as far as I am able to see, is given by Mr. Justice Batty in 8 B.L.R. 438. My submission, my Lords, is this that you should read the speeches of Mr. Tilak as a whole. I don't think it will be disputed; it is laid down over and over again, that you cannot look at a passage here and a passage there, but that you have to read the whole speech, and reading these 3 speeches as a whole, my submission, my Lords, is this that they are nothing but a comment or an expression of disapprobation of the measures of Government with a view to obtain their alteration by lawful means. Mr. Tilak says what `Swaraj' is and he makes his meaning clear. Those who are ruling over you do not belong to your religion, .... it is carried on through those who are now servants, (viz.) the State Secretary, Viceroy, Governor, below him the Collector, the Patil, and, lastly, the police sepoy. Now, my Lords, if you say you object to any particular official or a particular member of Government or the Secretary of State, is that sedition? My Lords, does it cause disaffection towards Government to say: `We make these demands; right or wrong, we make these demands; these are our demands, which are being put off. They are being put off on some excuse or another'. Is this argument, my Lords, likely to cause disaffection? Undoubtedly, throughout the speech there is a condemnation‑‑‑a direct condemnation of the system which prevails, at present, in the whole administration of this country, which is only a part of the Government, and Mr. Tilak says that system should be changed, because that system is bad, and, for that purpose, he further says, `We want to go to Parliament, we want to petition the British nation, we want to petition the British Parliament to have that Act changed'. I ask, my lords, what is wrong in that? Why is that sedition?" Mr. Jinnah's contentions were accepted and their Lordships quashed the order of the Magistrate. The Young India commented: "Thus, a great victory has been won for the cause of free speech. And it is a great victory for the cause of Home rule which has thus been free from the chains that were sought to be put upon it."