The Great Repression Read online

  Oddly, the IPC did not have a provision for the offence of sedition, which was present in the draft code as Clause 113. However, it retained provisions under the chapter on offences against the State.

  This situation attracted the attention of James Fitzjames Stephen, an English Cambridge-educated barrister, who was appointed as the legislative member of the Governor General’s Council in 1869. He went on to become a judge of the Calcutta High Court in 1879. In fact, Stephen had also been offered the chief justice’s position at the Calcutta High Court in 1869 upon the same being vacated by Barnes Peacock. However, Stephen chose to accept the position in the Council instead. Stephen was responsible for, among others, the drafting and enactment of the Indian Evidence Act of 1872, the Indian Contract Act of 1872, and the revision of the Criminal Procedure Code in 1872, which had originally been enacted in 1862 to supplement the IPC. 33 He noted the absence of the provision against sedition and thought it fit to be brought back into the fold of the IPC. 34

  The lack of provisions criminalizing offences against the State had earlier forced the British Indian government to enact the State Offences Act in May 1857 after the outbreak of the revolt. The Act provided for the prevention, trial and punishment of offences against the State, without defining what such offences entailed. The governments of the presidencies were empowered to try the commission of offences against the State, as well as the offences of murder, arson, robbery or other heinous crime against person or property. 35 Judgments of the special courts which tried such offences were final and non-appealable. 36 Only natives could be tried under the Act as natural-born subjects of the British Crown were explicitly exempted from the provisions of the Act. 37

  The more immediate need for enactment of the provision against sedition may have arisen because of the Wahhabi Movement. Wahhabis are Muslims who believe in monotheism (one God) and jihad (waging of war when no other means remain) for protection of Islam. They oppose the belief that saints and seers are nearer to God than ordinary Muslims, and are against practices like the worship of saints and tombs. They are followers of Muhammad bin Abdul Wahab, who along with Amir Mohammed Bin Saud, the founder of the House of Saud, gave birth to Wahhabism in Saudi Arabia. The Indian Wahhabi Movement was started by one Syed Ahmed of Bareilly 38 in the third decade of the nineteenth century. Originally, the movement was against the Sikh empire in northwest India, but after the British defeated the Sikhs in 1849 the movement turned into the most anti-British movement in India. Wahhabis infiltrated the British army in many parts of India and attempted to indoctrinate others through letters and personal contact. Though the Wahhabis campaigned against the British throughout the revolt of 1857, they did not join the general movement but continued their separate campaign. The British discovered a conspiracy in 1863, which spread from Patna 39 to the North West Frontier 40 via Ambala, 41 to supply manpower and money to the Wahhabis to fight the British in the North-West Frontier Province. This led to the trial and transportation for life of notable Wahhabi figures in Ambala (1864) and Patna (1865). Though the trials significantly weakened the Wahhabi Movement, it still did not die but continued in the provinces of Bengal and Bihar and parts of the Madras and Bombay Presidencies till 1882. 42

  After the Ambala and Patna trials, a need was felt by the British Indian government to amend the IPC to provide for seditious offences not amounting to waging war, or attempt or abetment to wage war, against the British Crown. Inquiries were held into the activities of the Wahhabis in Bombay and Bengal. Aravind Ganachari quotes Ashley Eden, secretary to the Judicial Department of the British Indian government, ‘There can be no doubt that where a population is at once ignorant and fanatical, as are the Mohammedans of India, seditious teachings are to be made a substantive offence.’ 43

  One of the most complete descriptions of the sedition law at the time was laid down by Justice Fitzgerald in 1868 44 while trying a case against two journalists for publishing seditious writings. These writings were published at the time of the Fenian Rising of 1867 when the Irish led by the Irish Republican Brotherhood rebelled violently against British Rule in Ireland. Justice Fitzgerald, in laying the charge before the jury, said, ‘Sedition in itself is a comprehensive term and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the Empire. The objects of sedition generally are to induce discontent and insurrection and to stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion.’ He went on to say, ‘Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction; to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm and, generally all endeavours to promote public disorder.’

  Justice Fitzgerald, however, qualified the charge by saying, ‘Journalists are entitled to criticize the conduct and intentions of those entrusted with the administration of the Government. They are entitled to canvass and, if necessary, censure either the acts or proceedings of Parliament, and are entitled to point out any grievances under which the people labour.’ He concluded that, ‘When a public writer exceeds his limit, and uses his privilege to create discontent and dissatisfaction, he becomes guilty of what the law calls sedition.’ Therefore, he created an exception for cases where criticism and disapproval of the government, however severe, does not amount to sedition if it’s a part of free and fair discussion which does not excite disaffection against the government.

  On 25 November 1870, the Legislative Council of the governor general led by Stephen amended the IPC by Act XXVII of 1870 and introduced section 124A, which was a revised version of Clause 113 of the draft penal code.

  Section 124A was inserted between Section 124 (assaulting President, Governor, etc. with intent to compel or restrain the exercise of any lawful power) and Section 125 (waging war against any Asiatic power in alliance with the Government of India) of the Indian Penal Code. The original Section 124A read as:

  Whoever by words either spoken or intended to be read or by signs or by visible representation or otherwise excites or attempts to excite feelings of disaffection to the Government established by law in British India shall be punished with transportation for life or for any term to which fine may be added or with imprisonment for a term which may extend to three years to which fine may be added or with fine.

  Explanation—Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority against unlawful attempts to subvert or resist that authority is not disaffection. Therefore, the making of comments on the measures of the Government with the intention of exciting only this species of disapprobation is not an offence within this clause.

  Within the complicated language of the explanation, the section created a category of actions which would not amount to sedition. The explanation left a lot to be desired and did not help in curing the vagueness and breadth of the original provision. The courts were left to determine the applicability of the provision with guidance from decisions of British courts on each aspect of the provision.

  After the enactment, Stephen asserted that the law on sedition was substantially the same as the law of England at that time, though it was more concise and explicit and thus free from the obscurity and vagueness with which the English law on sedition suffered. In explaining the omission of Clause 113 of the draft code from the IPC, Stephen referred to a letter he had received from Barnes Peacock wherein he stated that the exclusion had been a mistake even though he had drawn up a revised Clause 113. He could not recollect why the clause was omitted but attributed the omission to oversight. He further emphasized
the need for the enactment of Section 124A as he felt that in the absence of a specific provision in the IPC for sedition, the provisions of the Treason Felony Act of 1848 would be attracted. By virtue of Section 3 of the Treason Felony Act, even the mere thought or conception of committing a seditious act against the British Crown was punishable by transportation for life. This was the more severe of the two provisions as Section 124A only published seditious words or writings and not just mere thought. 45

  After the coming into force of Section 124A of the IPC, the British Indian government enacted two preventive laws to supplement Section 124A. The first was the Dramatic Performances Act of 1876 intended to prevent performances of a seditious, defamatory or scandalous nature. Though offences such as sedition, defamation, etc., were punishable after their occurrence, the government wanted to even prevent the staging of plays which would give rise to commission of such offences and would be likely to lead to breach of peace. According to Donogh, a play by the name of Chai Ka Darpan was the most proximate cause for enactment of this law. The play portrayed owners of tea plantations and promoters of migration to tea-growing districts as evil persons who exploited migrants, both physically and sexually.

  Now, if there is one rule that you don’t break, it’s that you do not mess with the Englishman’s tea.

  Angered by the attack on the honour of tea planters, the British thought it necessary to prevent such plays in future and issued an ordinance enabling the Bengal government to prohibit and prevent such plays in future. The Dramatic Performances Act was based on this ordinance. Prosecution under the Dramatic Performances Act did not bar separate prosecution under section 124A of the IPC. 46

  Interestingly, the Dramatic Performances Act was not repealed by the Indian Parliament after Independence and various states continued to employ the Act to censor plays. The Government of India finally repealed the Dramatic Performances Act of 1876 by way of the Repeal and Amending (Second) Act, 2017.

  Another preventive measure by the British Indian government was the Vernacular Press Act of 1878. It was enacted to place newspapers published in local languages under the control of the government for repressing seditious writings which are intended to produce disaffection towards the government in the minds of natives. Newspapers printed in vernacular languages were published in most of the large towns in Bengal, Bombay, North-West Frontier Province and Punjab and enjoyed a wide circulation. The government felt that Section 124A was not sufficient to punish writings in the nature of seditious libel in the vernacular press which incited people to upset the British Raj and cast aspersions on the government by alleging tyranny and injustice. The British Indian government sought to curb such activities by introducing censorship and thus prevention of probable seditious libel from appearing in the vernacular press.

  One of the advocates for the introduction of the Act was the aforementioned Ashley Eden, who had by then risen to the position of lieutenant governor of Bengal. The Act provided for publishers of the vernacular newspapers and periodicals to deposit monetary security as an undertaking not to publish seditious writings, and the security stood forfeited as penalty if there was a breach of the undertaking. Further, it provided for temporary supervision of the publication by the government in case the publisher did not want to furnish any security. The Vernacular Press Act was a short-lived statute which was repealed in 1881. 47

  James F. Stephen published a digest of criminal laws for England in 1877 which was intended to be the draft criminal code of England. This digest also provided for the offence of sedition but divided the offence into two parts as opposed to the singular provision in the IPC. The first part as stated in Article 96 of the digest provided for the offence of ‘seditious words and libels’. The second part created an offence of ‘seditious conspiracy’ under Article 97 of the digest. Both the provisions mandated the presence of ‘seditious intention’ for either of the acts to be an offence. Stephen defined ‘seditious intention’ under Article 98, which was more or less similar to Section 124A of the IPC. Article 99 of the digest provided for ‘presumption as to intention’ for determining seditious intention. It stated that the intention of seditious libel or conspiracy would be presumed to be the bringing about of consequences which would naturally flow from such actions.

  The creation of distinction between types of seditious offences and the definition of intention as provided by Stephen could have easily been brought into the IPC by the British Indian government, but they did not do so. Such an amendment would have clarified the law on the subject which otherwise suffered from ambiguities. James F. Stephen’s digest of criminal laws was turned into a draft Criminal Code for England, but the British Parliament failed to enact it into law. Attempts have been made by the British Parliament till recently to codify their criminal law, but they have only met with failure.

  PART II

  EARLY LIFE

  4

  Four Trials and an Amendment

  From the time Section 124A was inserted into the IPC there was no prosecution or trial under the section for twenty-one years until 1891.

  In the meantime, nationalist movements were gaining ground in the Bengal and Bombay Presidencies. Organizations like the Arya Samaj 1 and Brahmo Samaj 2 were championing the cause of Hindu nationalism which, as opposed to the Wahhabi Movement, wanted a Hindu nation with place for all religions. In 1867, an annual gathering called the Hindu Mela 3 was started in Calcutta to promote national feeling, a sense of patriotism and spirit of self-help among Hindus. The event was used to assert Hindu nationalism and exhibit pan-Indian indigenous arts and crafts, and was organized for thirteen years till 1880. It saw the emergence of Rabindranath Tagore, who as a boy of eighteen recited patriotic songs and poems at the event in 1879. The Arya Samaj was promoting political independence through the ideas of swaraj 4 and swadeshi 5 before the terms became fashionable. 6

  On the other hand, Surendra Nath Banerji, a former Indian Civil Service officer who was dismissed by the British in 1874, was mobilizing the students and youth of Bengal with his lectures on nationalism. He had started fomenting anti-British feelings. He moved the discourse of the nationalist movement in Bengal towards political nationalism and away from religious nationalism. He also introduced the message of Giuseppe Mazzini to Bengal. Mazzini had spearheaded a movement for a republican-unified Italy in the mid-nineteenth century through a secret organization called the Young Italy Movement and was opposed to the Austrian occupation of Italy. On the west coast, Mahadev Govind Ranade, who was a sub-judge in the service of the British, made a deep study of the economic problems which India was facing at the time. He was an advocate for the industrial and commercial development of India, towards which he set up the Industrial Association of Western India in 1890. 7

  By 1875, there were about 475 newspapers in circulation in Bengal, mostly in vernacular languages. Organized political movements started in Bengal with the establishment of the Indian Association by Surendra Nath Banerji in 1876. In 1878, Banerji toured the Bombay and the Madras Presidencies to influence public opinion against British policies in India. The Vernacular Press Act of 1878, which was discussed in the previous chapter, was enacted by the British government as a reaction to the shift in public opinion against British rule in India. However, the incoming governor general, Lord Ripon, repealed the Vernacular Press Act in 1882 and brought about a bill for the improvement of local self-government in 1883 which attempted to remove the bar on Indian magistrates trying cases involving English and European defendants. However, the Anglo-Indians (the English and Europeans who lived in India then) succeeded in thwarting the Bill. This made the Indians realize that the opposition to the bill was based on the concept of racial superiority. Banerji was even imprisoned for two months for criticizing the Calcutta High Court, which caused public unrest and rioting. His absence weakened the Indian agitation for passage of the bill. His imprisonment attracted sympathy from all quarters and even from far-off provinces in the Madras and Bombay Presidencies.
8

  After his release, a national political conference was organized in 1883 in Calcutta led by Surendra Nath Banerji which was attended by both Hindu and Muslim delegates from across India. This was followed by the establishment of the Bombay Presidency Association in 1885. Prior to this, the Madras Mahajana Sabha, which held a provincial conference in 1881, had been established. Indians realized the need for a pan-Indian organization to further their political goals which in turn led to the convening of the first Indian National Congress in Pune by Allan Octavian Hume in December 1885. The meeting was attended by delegates who were politicians from all parts of the Bengal, Bombay and Madras Presidencies. However, the first meeting could not be held in Pune because of an outbreak of cholera and it was shifted to Bombay. This was a watershed moment in Indian history: the birth of the organized freedom movement in India. 9

  The first trial under Section 124A took place in this backdrop in 1891 when the vernacular press had grown assertive and Indian nationalism was on the rise.

  Age-old misogynistic systems against women were going through a change in the nineteenth century in India. The abolition of sati 10 in 1829, the legalization of widow remarriage in 1856, and the prohibition of female infanticide in 1870 were some of the steps taken by the British government in India towards social reform aimed at ancient practices which victimized women. At that time, the socio-religious Hindu practice was to have girl children married to older men by the tender age of ten, and they were obligated to be impregnated within sixteen days of the wedding under a custom called garbhadaan, which literally means donating the womb. However, instead of challenging such a patriarchal system, activists of the day looked towards reformation of the system to enable a girl to reach physical maturity which would be just enough for garbhadaan while not harming her health. The IPC as enacted in 1860 had provided various ages for ‘intelligent consent’ for offences committed upon a person, ranging from ten to twelve to sixteen years. For statutory rape under Section 375 11 of the IPC the age of consent was fixed at ten years, but this was not extended to marital rape in compliance with socio-religious realities of the day. 12