See Judgment

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 ".

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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