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40. The Lahore Judgment

"Whoever wages war against the Queen, or attempts to wage war, or abets the waging of such war, shall be punished with death or transportation for life, and shall forfeit all his property." Section 121, Indian Penal Code.

Lala Harkishan Lai, Bar-at-Law, Chaudhary Rambhaj Dutt, Vakil, and Mr. Duni Chand Bar-at-Law and Messrs. Allah Din and Motasingh have been convicted by one of the Special Tribunals, under sections 121 and 121 A of the Indian Penal Code and have been sentenced to transportation for life and forfeiture. The reader may dismiss from his mind section 121 A for the time being. Having convicted the accused under Section 121, the Tribunal had no option but to pronounce the sentence of transportation for life and forfeiture. That, it will be seen, is the lowest penalty the court could inflict, the highest being the penalty of death by hanging. The Judges felt the severity to be so great in the last two cases that they were constrained to remark, "Allah Din and Motasingh are minor offenders, and had it been in our power, we should in their cases, have awarded much lighter sentences." The learned Judges had in their powers not to convict any of the accused at all or to convict them on other charges. But they have said, "We do not consider it necessary to record findings on other charges."
Though the judgment covers twenty-seven sides of the foolscap size, it is being presented to the readers of Young India, and I would urge every reader to go through it word by word. For the judges have made it the cause celebre of all the cases and shown to the world what the Punjab, and incidentally the whole of India, is in their estimation.
This judgment, read together with the Amritsar one, forms the saddest commentary on British justice, when the judges are ruled by passion and prejudice and not by a sense of justice. To me the judgments are a proof of the contention I have ventured to urge that we need not be enamoured of British justice and that it, in its essence, is no better than any other justice. We deceive ourselves into a false belief when we think that British courts are the palladia of liberty. Justice in British courts is an expensive luxury. It is often 'the longest purse that wins'. It is the crucial moments which provide the surest test. The judges' business is to rise superior to their surroundings. The Punjab Tribunal, in my opinion, has signally failed to do so. Mr. Winston Churchill at the time of the education crusade permitted himself to admit that even the judges were not free from political bias. It is possible, though highly improbable, in this case, that the Privy Council will or can set the matter right, but if it does, what then? At what cost will it have been done? How many of tens of thousands feeling, and having cause to feel, aggrieved by decisions of lower courts can afford to go to appellate courts and finally to the Privy Council? It is much to be wished that people would avoid litigation. 'Agree with thine adversary quickly' is the soundest legal maxim ever uttered. The author knew what he was saying. But it will be asked, what when we are dragged, as we often are, to the courts? I would say, 'Do not defend.' If you are in the wrong, you will deserve the sentence whatever it may be. If you are wrongly brought to the court and yet penalized, let your innocence soothe you in your unmerited suffering. Undefended, you will in every case suffer the least and what is more, you will have the satisfaction of sharing the fate of the majority of your fellow-beings who cannot get themselves defended.
But I have digressed. I do not wish to inflict on the reader my special views on law courts, though I hold them to be thoroughly sound. This Lahore judgment shows clearly what our duty is as to the Rowlatt Act and as to the sentences. The judgment is designed to condemn the Rowlatt Legislation agitation.
The opening paragraphs of the judgment set forth in some detail the "public agitation against the Rowlatt Bills" which "began with a protest meeting held at the Bradlaugh Hall on the 4th February, 1919". They refer to my letter of the 1st March including the Satyagraha Vow and bring up the events to the 15th April, including the firing at Delhi, the disturbances at Amritsar, and the meetings at the Badshahi Mosque and say, "Such are the main facts and the Prosecution sets out to combine and connect these facts with the accused in such a way as to show that there was a conspiracy to secure the repeal of the Rowlatt Act by criminal means." The court indicates the criminal means in the very next sentence. "The defence has asked us to believe that there was no sort of organization of the hartal and that every individual shopkeeper in Lahore, Muzang, and Bhagwanpura decided of his own accord that he must close his shop as a protest." It then describes what it calls two violent posters in order to show that the hartal was organized. I can see no violence in any of them, but I can detect in them the agony of an embittered soul. The criminality consists in the hartal having been organized and continued, langarkhanas having been opened during its continuance and meetings having been held during the time. I venture to think that hartal is the inherent right of the people when they are deeply grieved by any action of the authorities. From time immemorial it has been held to be meritorious to organize hartal without using force as a means of protest against acts of the governing authority. And when merit becomes a crime, it is a sacred duty to commit that crime, and imprisonment for it, instead of being a disgrace, becomes an honour that every good citizen should cherish. And the least that he can do is to continue the agitation against the Rowlatt Legislation so intense and formidable that Government must withdraw the liberty of the agitators. And were I not afraid of an outbreak of violence in the present state of tension, I would certainly advise hartals again.
The tension was no doubt brought about, not by the advent of Satyagraha, but by the folly of the Government in precipitating and almost inviting violence by arresting me whilst I was proceeding to Delhi, and if necessary to Lahore and Amritsar, with the deliberate intention of calming the atmosphere and bringing about peace. The Government invited violence by the mad act of arresting Drs. Kitchlew and Satyapal, who were leaders of the people but who, whilst they were no doubt carrying on a stubborn agitation against the Rowlatt Legislation, were able to curb the temper of the people and were entirely on the side of law and order. The tension must someday go. And if the Government persist in the folly of retaining the Rowlatt Legislation they must prepare for a repetition of hartals, well organized but without any force being used and without a drop of blood being shed by the people. When the masses have imbibed the message of Satyagraha, we shall repeat from a thousand platforms Chaudhary Rambhaj Dutt's formula which has been interpreted into threat by the Tribunal in order to prove the existence of criminal conspiracy. The formula is "Remove our sufferings or we close our shops, suspend our business and we ourselves shall starve." There is no doubt that a great and effective demonstration was degraded by the cries such as "Hai Hai Rowlatt Bill", "Hai Hai George mar gaya", or by an inspector of the C. I. D. having been beaten and driven out, or by disgraceful sheets like the Danda Akhbar, or by the destruction of pictures of their Majesties. The accused could not be held responsible for them any more than Mr. Shafi and others who were endeavouring to bring about the peace. What right had the Government to launch out a prosecution for criminal conspiracy or, what is worse, for waging war against the King in respect of men who are not proved to have brought about any of these excesses, whose whole character and status make them almost proof against any such incitements? Whatever may be the technical view of the expression "waging war", to dub a powerful agitation against an odious law an act of war is a descent to the ludicrous. One might as well incriminate a Government for the unauthorized crimes of its servants. If the acts of Lala Dunichand, Lala Harkishanlal and his co-accused were acts of war, no organized agitation is possible in the country. And as organized agitation must be the breath of public life when there is stagnation in the body politic, whether of a social, economic, or political character, it must be counted as a 'merit' to wage war after the style of the Lahore accused.
The whole of the judgment is tinged with a political bias. This is how the Judges dismiss from their consideration the previous record of the accused:

"Before proceeding to consider the case of each accused it is necessary to remark that each of them according to their station in life have been able to produce testimonials from more or less eminent members of society to their moderation and loyalty, These could doubtless have been multiplied as often as they wished. Some of them again have been able to show that in recent times they have not merely prayed for the success of the British arms but have advocated War Loans, helped in recruiting and have even given relatives to the Indian Defence Force or clerks for Mesopotamia. Perhaps all of these efforts were not very valuable, and it has to be remembered that some of the accused are men who are always in the lime-light; but we have no doubt that everyone of them, however much he may dislike the existing Government, at least preferred it to the prospect of German rule. None of these things, however, really affect the matter before us."

When one's judgment is so warped, as is evident was the Judges', from the passages above quoted, it is impossible to expect an impartial decision.
The issue raised by the case is abundantly clear, though not stated. Can we or can we not, legally cany on a sustained powerful agitation involving processions, hartals, fasting etc. but eschewing, always and invariably, violence in any shape or form? The implication in the judgment is that we may not do so. If the sentences are allowed by the Government to stand, it is quite clear that they are of the same opinion as the Judges. I, for one, would not welcome the release of the accused on any side-issue or as an act of clemency. There is nothing in the judgment to show that any of the accused either directly or indirectly encouraged violence. And where there is absence of intention to do violence, it is absurd to call a peaceful combination a criminal conspiracy, even though uncontrollable spirits may find their way into that combination and do mischief. The happening of untoward incidents may be used as a warning to leaders. They may be used for justifying the declaration of Martial Law, but they ought not to be used for the purpose of making out peaceful, law-abiding citizens as criminals and liars. The duty of the Indian public is clear: By a quiet, persistent and powerful agitation, but without violence and irritation, to secure repeal of the Rowlatt Legislation and the reversal of the sentences.

Young India, 23-7-1919