EMPEROR Vs. BAL GANGADHAR TILAK

JUDGEMENT

(1.) Gentlemen of the Jury, I am afraid, gentlemen, your patience has been sorely taxed during the eight days which this trial has taken. I do not propose to tax your patience at any great length in the case because the case on both the sides has been very clearly and fully put before you. I now ask your earnest attention to what I am going to say and before I say anything else I think it is right to realise that it would be the merest and the idlest of pretences to say that you have not heard of this case before or have not heard of the accused before. I have no doubt that this case has been discussed before this by your friends, and by yourselves and I think the accused must often have been spoken of in your hearing by your friends and others. But need I tell you-I feel that I need not tell you-that it is your duty to confine the consideration of the questions that are submitted to you in this case entirely to what you have heard and read within the four corners of this room. For once, gentlemen, dissociate your mind from everything that you may have heard about the accused or about this case or about this prosecution. I have no doubt you will set aside from your mind and will not allow any passion or prejudice or any outside information to influence you in the least in coming to a decision in this case. I have heard with great satisfaction that the accused trusts in you and trusts in your judgment and has appealed to you in a long and lengthy address. I ask you, gentlemen, to regard him standing before you merely as one of your fellow subjects. Give sympathetic consideration to all that he has urged and after having done so come to a verdict without fear or favour. One thing also I would like to guard you against and that is not to give any undue preference or undue consideration to the fact that the Crown prosecutes. There is nothing in that fact either to prejudice you against the accused or against the prosecution. The Crown is the legitimate prosecutor in all cases that come before the High Court Sessions. In this very Sessions the Crown was the prosecutor before me in a murder case and the Crown was the prosecutor in an old offender's case who had stolen Rs. 2. So that there is nothing that ought to influence you or weigh with you in the fact that the Crown prosecutes. It is the duty of the Crown to prosecute when its responsible officers consider that the law is transgressed. All that the Crown does is to come before you and say "This is the law. This is the act of the accused by which we say he has transgressed the law." And then it leaves the Judge and the Jury to decide whether the law is transgressed and whether there has been a breach of the law or not. The offences charged against the accused are offences of a public or political nature ; and in order to guard against frivolous or vexatious prosecutions started by irresponsible parties under this section the law guards and protects journalists, publicists, and public speakers from such frivolous or vexatious prosecutions by providing that no such prosecution shall be undertaken except with the sanction of Government. That is the only reason why sanction is required for a prosecution to be started under these two sections. Gentlemen we have heard the accused state that "lower officials consider that a sanction is a mandate." I don t think he intended this to be a suggestion applicable to this Court or to you. It would be most improper for any one to suggest that there is any body anywhere who can send a mandate to you or to me which we are bound to obey. We are here to perform our respective duties and the only mandate that I shall obey and the only mandate that you are bound to obey is the mandate of our conscience. My one desire, gentlemen, has been to give the accused a perfectly fair trial. He has entered into every kind of discussion from every point of view and it is possible that there may be somethings that he has said that may not have been permitted, somethings that he has urged may not have been relevant; but nevertheless we lose nothing by giving the accused person absolute freedom to unburden his mind before you and to give you from his point of view the explanation of his conduct and his writings and of the sentiments to which he has given publication.

(2.) Gentlemen, before I proceed I think it would be as well for you to have a perfectly clear idea of what your duties are and what my duties are. The duties of a Judge are defined under the Criminal Procedure Code. I will not take you through all those duties but some of the things he has to do are to decide all questions of law, all questions of admissibility and relevancy of the evidence that is tendered and he has to decide whether any particular question is for his decision or for the decision of the Jury and upon this point his decision shall be binding upon the Jury. So that it is for the Judge to decide what are the points for his decision and what are the points for the jury's decision, and the Judge's decision is binding upon the jury. Then again if the Judge thinks proper he can in the course of his summing up express his opinion on any question of fact or any question of mixed law and fact. Then comes, gentlemen, the duty of the jury defined in the next section and the duty of the jury is to decide which view of facts is true and then to return the verdict which under such view ought according to the directions of the Judge to be returned. You have heard the view of the prosecution and you have heard the view of the accused. Both have addressed you fully, and I am entitled to express an opinion-I am entitled to give you directions ; but, gentlemen, the accused has expressed his confidence in you and I am going to add to your responsibilities by leaving the consideration of the whole case entirely in your hands. From my point of view the case presents no difficulties. The law is there. It is a very well settled law now. During the last ten years cases have come before the Courts and those cases have been most carefully considered and every word in the sedition section, that required expounding has been the subject of legal discussion. I do not propose to give you any law that is not settled before. I do not propose to give you my own view of the law but I will give you the views of eminent judges who had the consideration of the law before them and you will be bound to follow those views. The learned Advocate General has read to you largely from the summing up of Mr. Justice Strachey. With a small slip which does not matter for our present purposes that summing up has got the approbation in that case of the Full Bench of our Court presided over by the late Sir Charles Farran and has got the approbation of the Privy Council. That statement of the law has been followed in other cases by other High Courts and has been referred to with approval. Quotations from that case have been largely read to you and therefore, gentlemen, I will not traverse over the same ground again. But before we proceed further you ought to have a clear idea of the three charges on which you are trying the accused. He is charged in the first instance under Section 124A with reference to the Art. of 12 May 1908 which is Exhibit C in the case. That is the first charge: that is the charge of sedition : and that is the only charge so far as the first article is concerned. The next charge is again the charge of sedition with reference to the article of 9 June 1908 and the third charge is a charge under Section 153A with reference to the same article. So that you will remember, gentlemen, that there are three charges against the accused based on two articles which are before you and which are Exhibits C and D in the case. The sections of the Indian Penal Code have been read to you over and over again and I believe they are before you in print. Follow the wording of those sections and when you follow the wording of those sections you will find that a great many difficulties which are supposed to be difficulties or a great many considerations which have been urged by one side or the other will disappear. First of all you have to notice that Section 1-24A is intended to be a safe-guard and a check against any one either by speech or by writing or by visible means doing or attempting to do certain things and what are they ? He must not bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection against the Government established by law in British India. There is no question now that the Government established by law and referred to here is the British Government or the English Government, which rules over this country and a man must not excite or attempt to excite disaffection towards that Government or bring or attempt to bring that Government into hatred or contempt. Does "contempt require definition ? Does "hatred" require definition ? We are human beings. We all have our weaknesses and our passions and none of us can say that there was no time in our life when we had not felt hatred or contempt for somebody or something. As to the word disaffection which was the subject of much discussion the first explanation makes that clear. Disaffection is a peculiar word. You do not use the word disaffection when you are talking with one person or in connection with another person. A person does not bear disaffection towards another person but disaffection is always used more in the sense of being applied between the subject and the Ruler and the first Explanation leaves you in no difficulty. The expression disaffection includes "disloyalty and all feelings of enmity" so that you will have to read "or excites or attempts to excite disloyalty or feelings of enmity against Government". It includes those. Then of course there are two other Explanations, which you must always keep before your mind. They are Explanations intended to protect criticism of Government measures, and of administrative and executive action of Government and they give perfect freedom to journalists, to publicists, to orators and public speakers,-perfect freedom to discuss the measures of Government, to discuss the administrative acts of Government, to disapprove of them, to attack them and to use forcible language if necessary and do every thing legitimate and honest in bringing before the public or in bringing before the Government the fact that their measures or their actions are disapproved by a section of the public or by that particular speaker or by that particular journalist. He is entitled to urge every reason he can. He is entitled to urge all this in forcible language and to use strong language in asserting such views with reference to those administrative or executive acts of Government. But, gentlemen, remember that no publicist, no journalist, no speaker has any right to attribute dishonest or immoral motives to Government, Freedom of the press, I have no doubt, is. a most valuable right. You would be as anxious to protect freedom of the press as I would be. You will give effect to all that the accused had urged in favour of freedom of the press. The law says, however, that that freedom of the press should not be used for the purpose of bringing or attempting to bring Government into hatred or contempt or exciting or inciting feelings of disloyalty or enmity towards that Government. Barring that, the liberty of the press must be protected. The press and public speakers are entitled to protection against any prosecution that may savour of persecution and every subject of the Crown is entitled to come before the jury and say, "I have not transgressed the legitimate rights of a journalist," It is for you, gentlemen, entirely to judge whether that statement is correct or not. Section 153A is again a simple section. You find that whoever promotes or attempts to promote feelings of enmity or hatred between different classes of Her Majesty's Subjects" shall be punished in a particular way. It only means that no subject of the Crown is entitled to write or say or do anything whereby the feelings of one class of His Majesty's subjects should be inflamed against another class of His Majesty's subjects. I take it, gentlemen, it is a salutary provision of the law for the purpose of preserving order and amity between the various subjects of the Crown.

(3.) Then turning from the sections I draw your attention shortly to two or three cases decided by the different High Courts in India with a view to show what is meant by those two sections. The first of the cases that I am referring to is the case referred to by the Advocate-General and also by the accused and known as the Bangobasi case (1891) I.L.R. 19 Cal. 35,44 tried by Sir Comer Petheram, the late Chief Justice of Bengal. In the course of his summing up he says: "Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man's sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr. Jackson cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them". The last sentence is the most important because that has been the settled law and that is "though no disturbance is brought about by his Words or any feeling of disaffection, in fact produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling". Further he says : "The evidence of the intent can only be gathered from the articles. The ultimate object of the writer may be one thing, but if, in attaining that object, he uses as the means the exciting of disaffection against the Government then he would be guilty under Section 124A". Then he gives directions to the jury, directions which I press upon your mind : "You must not look to single sentences or isolated expressions) but take the articles as a whole, and give them a full, free and generous consideration as Lord Fitzgerald has said; and even allowing the accused the benefit of a doubt, you will have to say whether the articles are fair comments and merely expressions of disapprobation or whether they disclose an attempt to excite enmity against the Government".