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Case Analysis Emperor v Bal Gangadhar Tilak, 1908

Section 124-A of The Indian Penal Code has been judiciously used as a tool to silence dissent, both before and after independence. Despite various interferences by the courts which attempted to restrict the scope of sedition and extend the purview of freedom of Speech and Expression, the law continues to be misused. The recent challenge on the constitutionality of Sedition law has rekindled the debate around the need for sedition and freedom of speech and expression. While there is enough material available for and against Section 124-A of the IPC, the historic second sedition trial of Bal Gangadhar Tilak becomes relevant.

The Second Sedition Trial of Bal Gangadhar Tilak, 1908
Facts of the case
Lokmanya Bal Gangadhar Tilak was arrested on June 1908 under section 124-A of the Indian Penal Code (IPC) Sedition. ”Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law and Section 153-A of the IPC for his articles which appeared in Kesari (A Marathi newspaper founded by Tilak):

The Country's Misfortune (Kesari, 19th May 1908)

This article was written in response to the killing of two English women by a bomb hurled by Khudiram Bose, whereby Tilak drew an analogy between India and erstwhile Russia. He wrote that the oppression of the white class resulted in the formation of a secret society of the young generation which aims to assassinate the entire white (British) ruling class. This Tilak defined as something very unfortunate.

He further wrote that the exasperation, fire, and vehemence of the subjects have to be kept within a prescribed boundary, the ruling class does not take into account the views of the subjects and as the demand for Swarajya was rising, along with the rise in western education it was as he argued impossible for the ruling class to ignore the views of the subjects. Tilak further wrote that the ruling class blames such unfortunate incidents on the leaders of the subject and has tried to suppress writing, speeches, etc. dissenting the government and the kind of disregard the government shows towards this suggestion is defined as The country's misfortune¯


These Remedies Are Not Lasting (Kesari, 9th June 1908)

This article was written in response to the repressive measures used by the government to suppress free speech and the way bomb violence was rising in erstwhile India against the repressive policies which according to Tilak was not an outcome of hate but was an outcome of oppression as was evident in the erstwhile Russia and Portugal.

Tilak further expressed his displeasure over the repressive laws that were made by the Britishers to discourage bomb violence, by making it impossible to manufacture bombs and to take every step discouraging people from throwing and manufacturing bombs. On this Tilak wrote that such repressive laws were not even brought by Mughals and nowhere in the world, autocracies have resorted to these methods of repression.

He further wrote that these measures would not create any impact, as at that time, with the advent of western education, the short and not very complex formula of making bombs and the trade of certain chemicals made these remedies not lasting. He in conclusion suggested that the only way to stop bomb violence was to grant people what they want that is Swarajya.

It is noteworthy that Tilak was convicted for sedition in the year 1897 whereby he was sentenced to 18-month imprisonment.

Initially, in the 1908 case M. Jinnah appeared for Tilak and applied for bail, the application was rejected by Judge Davar (Interestingly, Davar appeared for Tilak in 1897 and secured him bail). Tilak fought the 1908 case on his own.

Arguments advanced by the prosecution
During the trial, the prosecution contended that the two articles authored by Tilak were full of seditious remarks which alleged that the government carried its administration in an unscrupulous and iniquitous way; it had a strong desire to benefit its own country; that it sacrificed the interests of the natives to those of Englishmen; that it was autocratical; that it was of an oppressive and tyrannical character and had become unbearable to the people of India these all as per the prosecution clearly comes under the meaning of the term disaffection¯.

The prosecution also contended that Tilak through the second article in a way suggested that other countries have got advantages by throwing bombs and the same result can be achieved in India by same the means. The prosecution further contended that the second article intended to stir up racial feelings by saying that the white class was acting in a manner hostile to the interests of the native. A postcard that belonged to Tilak was also shown as a piece of evidence that contained the names of books on explosives.

Arguments advanced by Tilak
Tilak in his defence argued that for sedition three points were to be considered:
  1. The question of publication
  2. The question of insinuations and innuendoes
  3. The question of intention.
For the first point, he took full responsibility that articles were indeed written and published by him but on the latter two points he contended that it would be unsafe for the jury to convict him just based on a mere opinion that is formed in the minds of the jurors by the articles which were not the original ones but were the English translated versions of the original articles which were written in Marathi, on this he drew a very precise analogy.

They (the jurors) are asked to sit in judgement upon an article written in French in England and to say what effect the French article which was translated in English would produce upon French population in France.

He further argued that the jury comprising a majority of Englishmen had a meagre understanding of the audience of Kesari, which were the Marathi speaking community hence the impact of articles on the minds of the jurors could never be equated with the impact those articles had on the minds of the original audience.

Further, he divided the offence of sedition into two parts (1) brings or (2) attempts to bring in hatred, (1) excites or (2) attempts to excite and argued that the Marathi speaking class (the audience of Kesari) was already aware of the views he advocated a each and every sentence of his article could have been found in the Congress literature. Since no evidence was produced to show (1) he argued that his charge to be reduced to a mere attempt which he referring to certain precedents argued being non-punishable.

He further clarified that those articles were written in response to the articles written by the Anglo-Indian community, the motive the two articles was to suggest reforms to the government during the time of unrest which should fall under the ambit of fair criticism and the articles were written in the spur on the movement.

I am a journalist I have two hundred papers lying on my table, I have to digest and weigh them and read and write on the spur of the movement¯. He further referring to freedom of press urged the jury to consider The law may be rigid law may be harsh stand between me and the law and protect me because I represent the liberty of press.¯

Judgment
The trial of Tilak was a mere formality. Despite all these interesting and logical arguments given by Tilak, the jury consisting of 7 Anglo-Indian and 2 Indians convicted Tilak with a 7:2 majority and sentenced him to 6 years transportation and a fine of ā‚¹1000. Not only this Judge Davar while delivering the judgment described Tilak as a man of diseased and perverted mind¯ his journalism is a curse to India¯.

After being held guilty Tilak very remarkably in his immortal words said:
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 benefitted more by my suffering than by my pen and tongue.¯


Conclusion
After the death of Tilak, a nation named India came into existence with a constitution that guaranteed to its citizens the freedom of speech and expression which according to Tilak gives birth to a nation and nourishes it.

The freedom of speech and expression in India is indeed not absolute, certain reasonable restrictions can be put in place and one such restriction is sedition which Jawaharlal Nehru defined as highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.

The fear of Jawaharlal Nehru was not unfounded. In recent years according to a report by NCRB, there has been a rise of 165% in cases of sedition. The conviction of various journalists like Kappan Siddique, initiation of sedition proceedings against a parent and a principal of a school in Bidar, Karnataka, detention of Sharjeel Imam etc. under the sedition law sets a chilling effect upon the freedom of speech and expression and the Indian democracy.

Courts in these matters have failed to follow the norm Bail is rule, jail is an exception¯ also the prerequisite incitement of violence¯ which was set by Hon'ble Supreme Court in the case of Kedar Nath V State of Bihar, 1962 was not followed. Now that the law of sedition is on review the government must understand that dissent is not something that is not healthy for democracy but is something on which a healthy democracy thrives. In the remarkable words of George Orwell:
If liberty means anything at all, it means the right to tell people what they do not want to hear.

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