The Lion when struck to the heart gives out his mightest roar ;
When smitten on the head, the cobra lifts its hood ;
And the majesty of the soul comes forth only when a man is wounded unto his depths.Swami Vivekananda.
The arrest of Mr. Tilak, though it caused widespread grief and resentment did not surprise anybody. What however extremely surprised all was that such a mild and innocent article as that of May 12th, 1908 had been selected for prosecuting Mr. Tilak under Sections 124 A and 153 A of the Indian Penal Code. The Government of Bombay seem to have realised the risk of getting conviction on the article of May 12th and so, another sanction to prosecute Mr. Tilak for publishing the lead###ing article in the Kesari of June 9th entitled " These remedies are not lasting " was given, a fresh warrant was issued and executed on Mr. Tilak in jail ; and by two separate orders was Mr. Tilak committed to the Criminal Sessions of the Bombay High Court on June 29th, 1908.
Mr. Tilak’s misfortunes did not end here. On July 2nd, an application for bail, made on his behalf by Mr, Jinnah before Mr. Justice Davar was rejected and this was the more curious, as eleven years back, Mr. Davar
THE country’s MISFORTUNE I97
^then a barrister, had strongly pleaded in favour of Mr. Tilak before the late Mr. Justice Tyabji on this very point. Mr. Davar the Barrister had argued that " the ‘Only ground on which this application could be opposed would be an apprehension that the accused might not be forthcoming for his trial." Mr. Davar, the Judge, however declared " I am not in accord with the state###ment, broadly made that the only consideration which ought to guide the Court in deciding whether bail should or should not be granted, was the consideration that the accused would appear to take his trial."
Mr. Tilak’s next misfortune was the successful appli###cation of the Crown to the Court for directing that a Special Jury should be empanelled to try him. Mr. Baptista, appearing for Mr. Tilak conclusively proved how, if a Special Jury was empanelled it would consist of a majority of Europeans, who, besides being ignorant of Marathi would not be the best Judges of articles ** exciting disaffection against the Government." Mr. Tilak was moreover charged with exciting the feelings of Indians against Europeans. The result would be, said Mr. Baptista, that on the charge under 124 A, the rulers would sit in judgment upon a subject for his alle###ged rebellious spirit and under Section 153 A, the accusers would sit in judgment upon the accused for exciting hostility against themselves. A Common Jury would, on the other hand, cons st of a majority of Non-Europeans. Mr. Baptista’s prayer, however, was not granted and a Special Jury was ordered to be empanelled.
On Monday, July 13th, when the hearing of the cases commenced, the Advocate General proposed (Sec. 234
198 LOKAMANYA TILAK
C. P. Code) to put Up the accused on both the charges at’ the same trial ; and to avoid a technical difficulty of law, he proposed to put the accused up on two charges###under Section 124 A and one charge under Section. 153 A, staying for a time proceedings under 153 A with respect to the article of 12th May. This procedure was prejudicial to Mr. Tilak’s interests but in spite of his protests, the joinder of charges was allowed. The result of this was, as the detailed reports of the proceedings clearly show% that practically “one single article of June 9th was made the ground of three convictions and sentences on three different charges.”
The * objectionable ’ passages on which the prosecu###tion relied were not specified. Mr. Tilak drew the attention of the learned Judge to this difficulty. He was however told that the whole lot of the words was objected to and with His Lordship’s permission, the charges were amended by putting in the whole articles###into the charge. This was, of course very convenient to the Prosecution, but it increased Mr. Tilak’s burden and compelled him to explain each and every sentence while conducting his defence.
The only prosecution witness seriously cross-exami###ned by Mr. Tilak, who conducted his own defence, was###the late Mr. B. V. Joshi, First Assistant to the Oriental Translator, Bombay. The cross-examination is a model. of skill and resourcefulness. It reveals Mr. Tilak’s command over the Marathi as also his proficiency in all. the arts of an Advocate. Mr. Tilak completely suc###ceeded in proving that the transaltions were perverted* Words likely to be unfavourable to him were grossly though unintentionally mistranslated ; while expres-
THE country’s MISFORTUNE igg
sions, which were favourable to him were made consi###derably milder.
When Mr. Tilak’s house was searched, a post-card containing the names of two books " Hand-book on Modern Explosives " and " Nitro-explosives " was found. It was quite natural and proper for the editor of a newspaper to purchase books on explosives whea the Government was contemplating legislation on the subject. *’ A book is not a bomb, much less the name ot It." The Post-card, however, received undue promi###nence and it was put in, as one of the Exhibits by the Prosecution. To explain the Post-Card, Mr. Tilak had to put a bundle of sundry papers, by which he lost his right of reply. Finding that this right, so precious###to an accused, especially in a trial by Jury, was thus taken away, Mr. Tilak put in 71 cutting from different papers, to show how his own articles formed part of a political controversy.
In his written Statement, Mr. Tilak accepted full res###ponsibility for the incriminating articles, gave his own English renderings for some of the Marathi words oc###curring in the articles, quoted his views on Political Reform from his statement before the Decentralization Commission and concluded by saying that the Charge###Articles formed part of a controversy, in which he had endeavoured to maintain and defend those views. He also successfully explained the post-card. He commen###ced his speech on “Wednesday, July 15th, at about 4 P.M. the speech occupied full 21 hours and 10 minutes, WTiile it was being delivered, * " The Judge, Jury an(i
• From the Modern Review.
200 LOKAMANYA TILAK
the Prosecuting Counsel shrank into insignificance be###fore the towering personahty of Mr. Tilak.” It was a nice discourse on the law of sedition both Indian and English ; and though Mr. Tilak did not succeed in convincing the Judge and the majority of the Jurors, still " on his countrymen at large, the speech produced an elevating effect.’* After reading out Section 124 A, under which two charges were framed against him, Mr. Tilak said, " This Section is divided into two parts. The first part refers to actually bringing into hatred or contempt His Majesty etc. But as there is no evidence before the Court that any excitement has been caused by the articles in question, so it seems to me that the Prosecution does not mean to proceed under that part of the section. The second part of the Section deals with ’ attempts to excite disaffection ‘. The Section does not simply refer to the publication of anything likely to create disaffection. * An attempt is an inten###tional premeditated action, which if it fails in its objects, fails through circumstances independent of the person, who seeks its accomplishment.’ Attempt is actually an offence, minus the final act of crime. The mere fact that a certain article is published will not make it an attempt. There must be a criminal mind, a culpable indifference to consequences. In the present case, there has been no evidence to prove that the attempt failed because, the Government interfered or because the people refused to listen. Attempt includes both mo###tives and intention. To take a common illustration, I intend to go the Bori Bunder Station and my end in view is to go to Poona. In deciding intention, it is not safe to follow the maxim of the Civil Law * every
THE country’s MISFORTUNE 201
man must be presumed to intend the natural conse###quences of his acts.’ My contention is supported by the caseofRex z;s.Baru3,Hyndmanaai^Or3 which was tried by Justice Cave who in his charge to the Jury said :
’ I am unable to agree entirely with the Attorney###General when he says that the real charge is that though these men did not incite or contemplate disorder yet as it was the natural consequence of the words they used, they are responsible for it. In order to make out the offence of speaking seditious words, there must be a criminal intent upon the part of the accused ; there must be words, spoken with a seditious intent ; and although it is a good working rule to say that a man must be taken to intend the natural consequences of his acts, yet if it is shown from other circumstances that he did not actually intend them, I do not see how you can ask a Jury to act upon what has become a legal fic###tion. * * * * j]^Q maxim that a man intends the natural consequences of his acts is usually true, but it may be used as a way of saying that, because reckless indifference to probable consequences is morally as bad as an intention to produce these consequences, the two things ought to be called by the same name and this is at least an approach to legal fiction. It is one thing to write with a distinct intention to produce disturbance and another to write, violently and recklessly, matter likely to produce disturbances.’
Criminal intention cannot be presumed but must be positively proved by the evidence of surrounding cir###cumstances. The motive of an act must not be con###■" ^ »
- Vol- i6, Cox’s Criminal cases Page 365.
202 LOKAMANYA TILAK
founded with the intention ; but is always one of the surest indications in an inquiry as to intention. If the###writer’s motives are good, if he is trying to secure constitutional rights for the people, trying in a fair way and persevering manner, he is entitled to express his views fully and fearlessly. Intention may be inferred from the legal fiction that a man intends the natural consequences of his acts. But if there are circumstances to show that the###motive of a man is different, then the mere fact that the views of the writer are not correct, or are even absurd, or that he has expressed them in violent lan###guage, would not make him seditious. It is not a question of the correctness and acceptability of views^ or of the stylef in which they have been expressed. The incriminating articles form part of a controversy between the Pro-Bureaucratic party and the Pro###Congress party. There was a bomb outrage at Mozuf###ferpore. There was no difference of opinion as to the character of the deplorable event ; but the question was
- what is the cause of it ?’ The Pro-Bureaucratic Party laid the blame at the doors of the Congress or of the Nationalist Party and called upon Government to put us down. I have taken the other side. My wri###tings are (i) a reply to the Anglo-Indian criticism (2) a suggestion to Government and addressed to Govern###ment (3) a discussion of the situation (4) a warning to both parties which, it is my duty as a journalist to give (5) a criticism of the contemplated measures by the Government. I will read extracts from a few Anglo###Indian writings. The Pioneer of May 7th recommends###a whole-sale arrest of the acknowledged Terrorists in a
THE COUNTRY S MISFORTUNE 20^
city or District, coupled with an intimation that on the###repetition of the offence, ten of them would be shot for every life sacrificed. It tries to establish a logical con-^ nection between members of the Council and Bomb###throwers in Bengal. The Asian recommends to Mr. Kingsford’s notice a Mauser pistol and hopes he would secure a big * bag ‘, adding that he will be more than justified in letting day-light into every strange native approaching his house or person. A correspondent of the Englishman suggests that * a few of these worthy agitators should be flogged in public by the town-sweep###ers.’ Now, we honestly believed that these writings###were mischievous, particularly the insinuations of those writers and they had to be counteracted. My reply to the Anglo-Indian Press is written on an occasiou of provocation. It does not intend to excite dis-affection. For every sentence in my writings, I can point out a parallel passage from the literature of our party. Pro###Congress Newspapers, completely hostile to the Kesariy take the same view of the matter. I am charged spe###cifically with attempting to cause excitement, not through-out India, but among the Marathi-speaking population. I do not stand alone in my views. Papers of all parties in the Marathi-speaking community have taken the same view of the matter. This absolves me from any evil intention. If there is no personal preju###dice against me, these articles will show that I was not prompted by my personal prejudices. The arguments have not been invented by me. In charging me with sedition, this must be borne in mind * what impressions will my writings produce on the Marathi speaking public ?’ All they say is, ’ well, the reply has been-
204 LOKAMANYA TILAK
well given/ I have been writing nothing which I have not written for 28 years ; and the view expressed in my article has been already expressed by some leaders of our party. Taking all these points into consideration, the construction put upon the words of the articles by the Prosecution is unjustifiable. Moreover, in my own interest, and in the interest of the cause I represent I am bound to question the translations, which are com###pletely distorted. It is simply intolerable that con###viction for sedition should be based upon such trans###lations. If I succeeded in showing that the wording of these translations is not correct, that in itself is enough to ensure my acquittal. The words on which the Pro###secution is likely to rely are found to be distorted images of the original words. Marathi terminology in the discussion of Political subjects not being settled, I have been required to labour under a very great dis###advantage, especially as, frequently we have to write on the spur of the moment ; and the translator has made an attempt to translate the Marathi language of 1908 with the aid of a dictionary published full fifty years ago, not realizing that old fortifications cannot stand before new guns. I gave Mr. Joshi this sentence to translate " A despotic Government need not necessarily be tyrannical," and the translator himself found it diffi###cult to express the two shades of meaning in Marathi. The charge is based not upon the original Marathi but upon the translations. Therefore the Prosecution must stand or fall by the correctness or incorrectness of the translations. It is likely to be urged ’ take away the Bureaucracy and what hope is left ?’ But I submit, the Bureaucracy is not the Government. The Bomb-
THE country’s MISFORTUNE 205-
outrages were quickly condemned in my papers, as the Anglo-Indian papers. But in condemning them^ we say that we must also condemn the repres###sive measures of Government. Both parties are taking advantage of the presence of the bomb. The Bureaucratic Party are taking advantage of it to suppress political agitation, and the other party is taking advantage of it to claim some reforms. It is the same question which was fought out by Erskine in the case of the Dean of St. Asaph. I can trace a great struggle between the people on the one hand^ and a mighty Bureaucracy on the other ; and I ask you to help us, not me personally, but the whole of India. I am now on the wrong side of life and for me it can only be a matter of a few years, but future generations will look to your verdict and see whether you have judged right or not. If at least one of yoa would come forward and say that I was right, it will be a matter of satisfaction to me ; for I know, that if the Jury are not unanimous in England, another trial takes place. It is not so here, but it would be a moral support upon which I would rely with great satis###faction. I appeal to you, not for myself, but in the interest of the cause which I have the honour to re###present. It is the cause that is sacred and I doubt not, gentlemen, that He, before whom all of us will have to stand one day and render an account of our actions will inspire you with the courage of 3’our con###victions and help you in arriving at a right decision on the issue involved in this case."
It is impossible to adequately summarize the whole of Mr. Tilak’s masterly address within the limits at our
206 LOKAMANYA TILAK
disposal. His disquisitions on Section 153A, and his running commentary on the incriminating articles must be completely dropped. What has been at###tempted above is a bare outline of some of the princi###ple points which he pressed in his favour. He finish###ed his address at about 12-30 p.m., on the eighth and last date of the trial (Wednesday, 22nd July 1908). The reply of the Advocate-General was severely satiri###cal and extremely offensive. He himself seems to have been conscious that he had exceeded the bounds of decorum and in conclusion declared himself to be ready to stand by any rebuke, which His Lordship might offer to him. Some of the gems in his speech are worth recording : —
" You have been told, that you are guardians of the Press. Fiddlesticks ! You are guardians of the Penal Code and the Penal Code protects the Press." " He (Mr. Tilak) has been trying his best to throw all the dust he could collect, even in the monsoon weather, into j^our eyes on this point. It is not what he now says he meant, but what he meant when he wrote them (the articles)
that matters He cannot be allowed
’ to say now ’ of course I wrote sedition and ’ ^ meant affection.’
" Can you conceive anybody with the faintest knowledge of law putting forward such a sug###gestion seriously, that he was entitled to write these articles in self-defence ? This is the right that Mr. Tilak put forward in his defence yesterday. I think the accused must have
THE country’s MISFORTUNE 20/
laughed, when he left the Court, after having put forward that defence, to think that it was received in silence instead of Homeric laugh###ter." " I had intended to avoid the language of passion. But having the misfortune to sit through these ravings from morning to morning etc." Strong exception could have been taken to such "" ravings " and Mr. Tilak was nothing, if not extre###mely jealous of his rights. But he disdained to cri###ticise the satirical language which Mr. Branson used in his speech, which lasted for four hours. The Judge thought it desirable to finish the case that day
- — or rather that night ; and so, perhaps the Advocate###General brought his remarks to a hurried close. The Summing-up of the Judge followed — in lamp light, — and it was an adverse charge to the Jury. The Jury retired for consideration at about 8 p.m., and returned at 9-20 P.M. During the dismal silence of more than one hour in the dim gas-light, every friendly heart quailed. The finger on the wall was but too clear; Mr. Tilak, however, was always peculiarly heroic in such moments and in a whisper gave expres###sion to his feelings in the noble words of Lord Krishna
“If you are defeated, you rule heaven ; if you win, the world is at your feet.” At last, the suspense was over. The Jurors came out and announced the majority verdict of guilty on all charges. They were divided by 7 to 2 ; the Judge agreed with their ver###dict and before passing any sentence, asked the accused whether he wished to say anything before sentence
208 LOKAMANYA TILAK
was passed. Here was an opportunity for Mr. Tilak to withdraw his remarks or express regret for hi& conduct and attitude. But his spirit was unbending ; his cause was sacred and invincible. " In a solemn and piercing tone " he uttered the following words which deserve to be written in letters of gold : — ’ All I wish to say is that in spite of the verdict of the Jury, I maintain that I am innocent. There are higher Powers that rule the desti###nies of things ; and it may be the will of the Providence that the cause which I represent may prosper more by my sufferings than by my remaining free." Let us compare these words with those of the Judge, when he sentenced the accused to six years Transportation (three years on each charge of sedition) to which a fine of Rs. i,ooo (on the third charge) was added: — “It is my painful duty to pass sentence upon you. I cannot tell you how painful it is to me to see you in this position. You are a man of undoubted talents and great power and influence. Those talents and that influence, if used for the good of your country, would have been instrumental in bringing about a great deal of happiness for those very people whose cause you espouse. Ten years ago you were con###victed and the Court dealt most leniently with you and the Crown dealt still more kindly with you.
-
-
- It seems to me that it must be a diseased mind, a most perverted intellect, that could say that the articles, which you have written are legitimate weapons in political agitation. They are seething with sedition, they preach violence ; they speak ol
-
THE country’s MISFORTUNE 209
murders with approval ; and the cowardly and atro###cious act of committing murders with bombs not only seems to meet with your approval, but you hail the advent of the bomb in India as if something has come to India for its good. As I said it can be only a diseased and perverted mind that can think that bombs are legitimate instruments in political agita###tions. And it must be a diseased mind that could ever have thought that the articles you wrote were articles that could have been legitimately written. Your hatred of the Ruling Class has not disappeared during these ten years. And in these articles, delibe###rately and defiantly written week by week, not as you say, on the spur of the moment, but a fortnight after that cruel and cowardly outrage had been com###mitted upon two innocent English women, you wrote about bombs as if they were legitimate instruments in political agitations. Such journalism is a curse to the country. I feel much sorrow in sentencing you. I have considered most anxiously in the case of a verdict being returned against you, what sen###tence I should pass upon you. * * * Having re###gard to your age and circumstances, I think it is most desirable, in the interest of peace and order and in the interest of the country which you profess to love, that you should be out of it for some time.”
When on the morrow, July 23rd, Mr. Tilak’s 53rd birthday, the news of his conviction spread like wild fire, most impressive demonstrations were witnessed. The bazars were spontaneously closed ; schools and colleges were deserted. The Mill-hands of Bombay struck work for six days in honour of Mr. Tilak. 14
210 LOKAMANYA TILAK
Condolence meetings were held all over the country; Many of the Moderate leaders were ungenerous not to take part therein. A notable instance is that of Sir Pherozeshah Mehta. The Hon. Mr. Gokhale, (then in England), too, stood aloof from a condolence meeting in London. He was requested to preside on the occassion, but he refused to take any part in the meeting ; nor did he organize a meeting of his own, for the same purpose. This attitude of Mr. Gokhale created an impression that he and his associates were pledged to support a policy of repression. ^1,^
In noticing Mr. Tilak’s conviction, the London Times said : —
" The real importance of Mr. Tilak’s conviction lies in the fact that he is the acknowledged and un###disputed leader of the Extremists’ Movement in India. That he had a guilty knowledge of the darker deve###lopments of that movement is not, of course, sug###gested. Mr. Tilak remained, at the moment of his -conviction, the most conspicuous politician in India and among large sections of the people, he has enjoy###ed a popularity and wielded an influence that no other public matt in the Dependency could claim to equal. The Extremists’ Movement, in its open mani###festitations both within and outside the Congress was ahnost entirely his conception."
The Indian Press was almost unanimously of opi###nion that Mr. Tilak did not get justice. But the Full Bench of the Bombay High Court as also the Judicial Committee of the Privy Council, thought that he had ; — and there we must leave the question.
THE country’s MISFORTUNE 211
As soon as the sentence was pronounced and the Judge had left the Court, Mr. Tilak was taken charge ©f by the PoUce and was sent to Sabarmati gaol to celebrate his 53rd birth-day (23rd July 1908). He was treated just like a common convict; and it was only when ten days of jail diet brought down his weight by 10 lbs. that apprehension was felt concerning his health, and a gentleman’s diet was given to him.
From Sabarmati, he was removed (Sept. 13th, 1908) to Mandalay. His sentence was commuted to one of simple imprisonment. This ‘* act of grace " acted pre###judicially to Mr. Tilak’s interests. Had the original sentence been executed, he would have got greater remission. Besides, in the Andamans he would have been able to Uve in perfect freedom after furnishing the usual security. While, at Mandalay, he had to confine himself, for six long years, to a room measuring 20x12. He represented these facts to the authorities, but to no purpose.
When Mr. Tilak was sentenced to transportation for six years, there were few, even among his opponents who expected him to survive the term of his exile. Two things however, besides his own fortitude and Faith in God, enabled him to outlive the dread mo###notony and killing soUtude of his life. They were (i) health and {2) mental occupation. But these, in their turn depended upon things quite beyond his control. The Government, however, was pleased to deal with him leniently. He was allowed to have his own food cooked by a Brahmin convict specially kept at his disposal; and when diabetes raised its head, he could
212 LOKAMANYA TILAK
change it and have the special diet which he had after careful research, found suitable for diabetic patients.
As regards mental occupation, though all books or periodicals bearing on current Politics were rigourously excluded, Mr. Tilak could yet command the free use of other books and of writing materials. " Though con###j&ned in a room of 20X12 he could, if he liked, go out hunting with the primeval Aryan warriors in the Rigveda; enjoy the super glory of the Aurora with the Pole-Star at zenith overhead; busy himself with the ritual mysteries of the Vedic sacrificers gathered around their sacred Vedis; revel in the prospective clash of arms, when the numberless armies of the Pandavas and the Kauravas met on the bloodthirsty Kurukshetra; hsten to the Song Celestial as it was delivered in divine accents by Krishna to Arjuna; or take a tour round the world in company with the authors of the Historians’ History of the World." When so much ’ latitude ’ was given to him, surely Mr. Tilak had no " right to complain ! "
Even the longest night has an end; and Mr. Tilak who received neither the benefit of the Delhi Durbar (1911) nor that of the usual remission was at long last secretly brought from Mandalay and liberated in front of his residence at midnight on June i6th, 19 14 !