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Documents in the Life of Sri Aurobindo

THE KARMAYOGIN CASE


1

Extracts from Government of India, Home Department, Political-A, Proceedings, December 1910, Nos. 14-42, “Prosecution, under section 124-A., Indian Penal Code, of the Editor and Printer of the Karmayogin newspaper.”1

[a]

Attention is invited to the letter from Arabindo Ghose at pages 4 and 5 of the issue of the Karmayogin of the 25th December. It will be seen that this has been reprinted in the Mahratta of the 2nd of January. It seems to me to be seditious and I recommend that we should ask Bengal to consult its legal advisers and, if they think a prosecution will be successful, to start proceedings against Arabindo unless they have already done so.

Vide Appendix.2

H.A. Stuart, — 12-1-10.
H.H. R[isley], — 12-1-10.
H.C. Woodman, — 13-1-10.

* * *

[b]

No. 73, dated Calcutta, the 14th January 1910.

From — The Honourable Sir Harold Stuart, K.C.V.O., C.S.I., Secretary to the Government of India, Home Department,

To — The Chief Secretary to the Government of Bengal.

I am directed to invite the attention of His Honour the Lieutenant-Governor to an article “To my countrymen” signed by Arabindo Ghose which appears on pages 4-5 of the Karmayogin of the 25th December 1909, and was reprinted in the Mahratta of the 2nd January 1910. I am to ask that, with His Honour’s permission, the legal advisers of the Government of Bengal may be consulted (if this has not already been done) whether they consider that a prosecution of the writer will prove successful. If their answer is in the affirmative, I am to suggest the expediency of the early institution of proceedings against Arabindo Ghose.

* * *

[c]

Mr. Duke tells me that Bengal has decided to prosecute if the connection of Arabindo Ghose with the Karmayogin can be definitely established. This is essential to avoid another fiasco such as that of 1907.

H.C. Woodman, — 25-2-10.

His signature appears below the article of 25th December I think.

H.A. Stuart.

Please see notes above. It is now more than a month and we have still not heard what Bengal is doing. For orders whether we should remind.

A.L., — 4-4-10.

Yes.

H.C. Woodman, — 4-4-10.

Extract from Indian News Agency Telegram no. 11.

Calcutta 5th. The Chief Presidency Magistrate yesterday issued a warrant for the arrest of Arabindo Ghose under section 124-A, Indian Penal Code. The warrant remains unexecuted owing to Ghose’s whereabouts not being known.

* * *

[d]

Telegram, from Secretary of State to Viceroy, dated 7th April 1910.

Private. — A telegram from Calcutta appears in this morning’s Times3 that warrant has been issued for arrest of Arabindo Ghose for article published in Karmayogin, December 25th; telegram also contains summary of article. It further contains reference to some more violent publication of his. I should like to know whether any truth in this. If so, under what law has the warrant been issued? Does the article contain direct inducement to violence or assassination? Do you know where Arabindo is? Please reply fully and immediately.

On the face of it the telegram is obscure.

* * *

[e]

No. 1956-P., dated Calcutta, the 7th April 1910.

From — The Honourable Sir Charles Allen, Kt., Officiating Chief Secretary to the Government of Bengal,

To — The Secretary to the Government of India, Home Department.

I am directed to acknowledge the receipt of your letter no. 73-Political, dated the 14th January 1910, in which you draw attention to an article “To my countrymen,” signed by Arabindo Ghose, which appeared in the Karmayogin of the 25th December 1909, and suggest the expediency of the early institution of proceedings against the writer, if the legal advisers of this Government consider that a prosecution will prove successful.

2. In reply I am to say that this article has been carefully examined by the legal advisers of Government, and the Advocate-General, Bengal, has given it as his opinion that there is good ground for the prosecution of the writer. Careful consideration had, however, to be given to the point whether authorship could be established against Arabindo Ghose should he deny it. It appears that the evidence will be mainly circumstantial, but the Advocate-General holds that there is ample evidence to justify a prosecution. The Lieutenant-Governor has accordingly granted sanction to the institution of proceedings against Arabindo Ghose under section 124-A Indian Penal Code. His Honour has also sanctioned the prosecution of Monmohan Ghose, printer and publisher of the Karmayogin under the same section, but it is not intended to proceed against the editor of the newspaper, as it has not been found possible to prove what person holds that position.

* * *

[f]

Telegram from the Private Secretary to the Viceroy, to the Secretary to the Government of India, Home Department, dated 8th April 1910.

His Excellency desires to be informed why issue of warrant for Arabindo Ghose’s arrest was, before it could be executed, made public.

* * *

[g]

Pro. no. 23

Telegram dated Darjeeling, the 14th April 1910.

From — The Chief Secretary to the Government of Bengal,

To — The Secretary to the Government of India, Home Department.

Please refer to your telegram no. 423-Political, dated the 8th April 1910. To conceal issue of warrant for the arrest of Arabindo Ghose, no steps were taken because of apparent information that Arabindo would surrender; moreover fact that warrant for the arrest of Monmohan Ghose, printer and publisher of the Karmayogin had been issued simultaneously and was executed on same date rendered concealment difficult. Arabindo is reported to be in Pondicherry but this is not certain and requires to be confirmed.

* * *

[h]

Telegram dated London, the 26th April 1910.

From — His Majesty’s Secretary of State for India,

To — His Excellency the Viceroy, Simla.

Arabindo Ghose’s prosecution. I request that I may be furnished with a full copy of the article in Karmayogin of December 25th without the delay of a single mail. I ought to have had it earlier. The passages that have reached me so far are extremely weak. The case will cause many difficulties and I must know the facts on which you rely accurately and fully.

* * *

[i]

Pro. no. 31

Telegram dated Calcutta, the 18th June 1910.

From — The Commissioner of Police, Calcutta,

To — The Secretary to the Government of India, Home Department.

Monmohan Ghose accused printer Karmayogin case convicted and sentenced to-day six months’ rigorous imprisonment by Chief Presidency Magistrate.

Pro. no. 32.

Telegram no. 666, dated the 20th June 1910.

From — His Excellency the Viceroy,

To — The Secretary of State for India.

In continuation of my telegram dated 3rd May, Monmohan Ghose, printer, Karmayogin, convicted and sentenced to six months’ rigorous imprisonment by the Chief Presidency Magistrate, Calcutta.

Pro. no. 33.

No. 1738-P.D., dated Darjeeling, the 23rd June 1910.

From — E.V. Levinge, Esq., I.C.S. Officiating Chief Secretary to the Government of Bengal,

To — The Secretary to the Government of India, Home Department.

With reference to paragraph 4 of my letter no. 1568-P.D., dated the 15th June 1910, regarding the prosecution of Monmohan Ghose, printer and publisher of the Karmayogin newspaper, under section 124-A, Indian Penal Code, I am directed to report that on the 18th instant, the Chief Presidency Magistrate, Calcutta, found the accused guilty and sentenced him to six months’ rigorous imprisonment. A certified copy of the judgment is enclosed.

Poll. A., August 1910, nos. 42-43.

2. As the Government of India are aware, Arabindo Ghose is also an accused in this case. He is still at Pondicherry and is being watched by the Madras Police. Should he attempt to escape by way of Colombo he will be arrested under the Fugitive Offenders Act. Meanwhile the Lieutenant Governor has directed that the Chief Presidency Magistrate, Calcutta, should be moved to take action against Arabindo Ghose under sections 87 and 88 of the Criminal Procedure Code. Any further or important developments in the case will be reported in due course.

 

Case no. 1936 of 1910.
Emperor
versus
Monmohan Ghose.
Charged under section 124-A, Indian Penal Code.
18th June 1910.
Judgment.

In this case, the accused Monmohan Ghose is charged under section 124-A, I.P.C., as the printer and publisher of an article headed “To my countrymen,” contained in the issue of the newspaper called the Karmayogin, dated the 25th December 1901. The prosecution was instituted on a complaint laid by Superintendent Ellis of the Calcutta Criminal Investigation Department, after having, on the 2nd April 1910, obtained the sanction of the local Government. Search Warrants were obtained and the premises no. 4, Shampukhur Lane, where the Sree Narayan Press is situated, was searched and a copy of the Karmayogin newspaper, dated the 25th December 1909 was found, as also a letter dated the 17th December 1909, addressed to Monmohan Ghose, printer of the Sree Narayan Press, from the Inspector General of Registration, Bengal. Publication in Calcutta of the article in the issue of the 25th December 1909 has been proved by Superintendent Ellis and Sub-Inspector Nripendra Nath Ghose. On the 4th April last the accused Monmohan Ghose was arrested. The writer of the article Aurobindo Ghose could not be arrested and is still absconding. On the 17th June 1909 the accused made a declaration, under the Press Act XXV of 1867 which was signed by him, in this Court, under the Printing Presses and Newspapers Act, that he was the Printer and Publisher of the periodical work entitled the Karmayogin, which was being printed at 105, Upper Chitpore Road and published at 14, Sham Bazar Street.

On the 17th July 1909 he again made a declaration that he was the Printer and Publisher of the Karmayogin, which was being printed and published at 14, Sham Bazar Street. On the back of this declaration is the following note by Mr. Thornhill, the Chief Presidency Magistrate, “warned having already been convicted 124-A, I.P.C., on 19 February 1908.” Chief Court Inspector Mukherjee who was present when the declaration was made by the accused, states that the note was made in consequence of the accused having informed Mr. Thornhill of his, the accused’s previous conviction. On the 19th November 1909, owing to a change of address, the accused made a further declaration before this court, stating he was the Printer and Publisher of the Karmayogin at 4, Shampukhur Lane. These declarations have been proved by Narain Das Dutt, a pleader of the Police Court, who appeared on behalf of the accused on the twice above mentioned dates. He also states that, the accused signed the declarations in English and appeared to understand that language. The declarations have also been proved by Kristo Chunder Dutt, the Head Clerk of the English Department of this Court and by the Chief Court Inspector Mukherjee. The fact that he made the declarations is not denied by the accused. The Karmayogin is a weekly paper. On the cover is a picture representing Krishna in a chariot drawn by a pair of horses reviewing some troops. Below this is printed the words “a weekly review of national religion, literature, science, philosophy, etc. Contributors:– Sj. Aurobindo Ghose, Office 4, Shampookhur Lane, Calcutta”.

On the back of the cover at the bottom of the page appears the words “Printed and Published by Monmohan Ghose, at the Sree Narayan Press, 4, Shampukhur Lane, Calcutta.”

On pages 4 and 5 of the issue of the 25th December 1909, appears the article the subject matter of this charge entitled “To my countrymen” above the signature of Aurobindo Ghose.

The defence urges that the article is not seditious, that the idea advanced by the writer is self-government under the suzerainty of the British Government, his object being to prevent the country from relapsing into a state of anarchy and to obtain by lawful means more substantial reforms than those already granted. It is further urged that the article merely criticises the reform scheme, but does not go beyond legitimate criticism. The article, it is stated, is an appeal to the Government to permit lawful political activity and so prevent crime and anarchy. The prosecution on the other hand contends that the article is a veiled attack upon and attributes dishonest motives of the Government, at the same time suggesting that the only means to compel the Government to adopt remedial measures is to apply violence. The article further alleges that the reforms were a mere piece of hypocrisy on the part of the Government and not a genuine effort at constitutional reform — that persistence in moderate methods would only result in humiliation to the people and retrogression to their politics. The tendency of the article taken as a whole, it is urged, is to hold up the Government to the hatred and contempt of the people.

The article “To my countrymen” commences with an appeal to the Nationalist party to take action and assume their legitimate place in the struggle for Indian liberties. It then proceeds to attack the Government and hold up to ridicule and contempt the reforms granted by it to the people as follows:– “The reforms so long trumpeted as the beginning of a new era of constitutional progress in India, have been thoroughly revealed to the public intelligence by the publication of the Councils regulations and the results of the elections showing the inevitable nature and composition of the New Councils.”

“The survival of moderate politics in India depended on two factors, the genuineness and success of the promised Reforms and the use made by the Conventionists of the opportunity given them by the practical suppression of nationalist public activity. The field was clear for them to establish the effectiveness of the moderate policy and the living force of the moderate party. Had the reforms been a genuine initiation of constitutional progress the moderate tactics might have received some justification from events. What we seek is to evolve self-government either through our own institutions or through those provided for us by the law of the land. No such evolution is possible by the latter means without some measure of administrative control. We demand, therefore, not the monstrous and misbegotten scheme which has just been brought into being, but a measure of reform based upon those democratic principles which are ignored in Lord Morley’s Reforms — a literate electorate without distinction of creed, nationality or caste, freedom of election, unhampered by exclusory clauses, and effective voice in legislation and finance and some check upon an arbitrary executive.”

The writer further suggests that without recourse being had to violence advancement is impossible. “The reforms” he says “have shown that nothing can be expected from persistence in moderate politics except retrogression, disappointment and humiliation”. The article next imputes dishonest motives to the Government in their policy towards the nationalist and moderate party. It states “The experience of the last year has shewn that, without the nationalists at their back the moderates are impotent for opposition and robust agitation. The political life of India in their hands has languished and fallen silent.… The policy of Lord Morley has been to rally the moderates and coerce the nationalists: the policy of the moderate party led by Mr. Gokhale and Sir Firoze Shah Mehta has been to play into the hands of that Policy and give it free course and a chance of success. This alliance has failed of its object. The beggarly reward the moderates have received, has been confined to the [smallest] and least popular elements in their party.”

The nationalists are next called upon to stand together to meet repression. The writer says “The period of waiting is over.… Let us then take up the work God had given us, like courageous, steadfast, and patriotic men willing to sacrifice greatly and venture greatly because the mission also is great. If there are any unnerved by fears of repression, let them stand aside.… The movement of arbitration, successful in its inception, has been dropped as a result of repression.”

It then imputes corruption, partiality and dishonesty to the administration as follows:–

“But if a corrupt police, unscrupulous officials or a partial judiciary make use of the honourable publicity of our political methods to harass the men who stand in front by illegal ukases, suborned and purjured evidence or unjust decisions, shall we shrink from the toll that we have to pay on our march to freedom?”

In order to gain their ends the writer advises the people to refuse all co-operation with the Government and thus by hampering the administration compel the Government to accede to their demands. “What is it” says the writer “for which we strive? The perfect self-fulfilment of India and the independence which is the condition of self-fulfilment are our ultimate goal.… We demand, therefore, not the monstrous misbegotten scheme which has just been brought into being but a measure of reforms based upon those democratic principles which are ignored in Lord Morley’s Reforms.… We demand also the gradual devolution of executive Government out of the hands of the Bureaucracy into those of the people. Until those demands are granted, we shall use the pressure of that refusal of co-operation which is termed passive resistance. We shall exercise that pressure within the limits allowed us by the law, but apart from that limitation the extent to which we shall use it, depends on expediency and the amount of resistance we have to overcome.… social problems are pressing upon us which we can no longer ignore.… we must free our social and economic development from the incubus of the litigious resort to the ruinously expensive British Courts.… But the first requisite is the organization of the nationalist party. I invite that party in all great centres of the country to take up the work and assist the leaders who will shortly meet to consider steps for the initiation of nationalist activity.”

The point for the decision of this court is whether the article taken as a whole is a fair comment and a mere expression of disapprobation or whether it discloses an attempt to bring into hatred and contempt or excites or attempts to excite disaffection towards the Government. Fair and reasonable criticism with moderation, of the action and policy of the Government is permissible. The country at the period at which the article was written and at the present time was and is in a state of great unrest. And any imputation of dishonesty partiality or base motives would undoubtedly excite disaffection and bring the Government into the hatred and contempt of the people. The article taken as a whole is not a fair or reasonable criticism of the actions or measures of the Government. It imputes repression, dishonesty, partiality and base motives to the Government in its administration of this country and appeals to the people of India to abandon moderate methods and to join the nationalist and with their aid coerce the Government and compel it to alter its present policy of which the writer strongly disapproves. It is a deliberate attack upon and an attempt to excite disaffection towards the Government and is in my opinion seditious.

The accused in his written statement does not deny that he is the Printer and Publisher or that the article is seditious. He states that owing to his slight knowledge of the English language he was wholly unaware of the meaning and purport of the article. He has however adduced no evidence to prove his statement. There is no doubt upon the evidence before me that the accused is a Printer and Publisher and according to the rulings of the Calcutta High Court, as the accused has subscribed to the declarations under the Press Act XXV of 1867 he must under section 7 of that Act be presumed to be [cognizant] of all that he has printed and published, and there being no evidence to the contrary his liability as such printer and publisher cannot be gainsaid.

On a [careful] consideration of the evidence I am of opinion that the accused is guilty as charged. I convict him under section 124-A, Indian Penal Code, and sentence him to six months’ rigorous imprisonment.4

Calcutta;
Dated 18th June 1910.

D. SWINHOE,
Offg. Chief Presidency Magistrate.

* * *

[j]

Pro. no. 34.

No. 699, dated the 7th July 1910.

From — The Secretary to the Government of India, Home Department,

To — The Chief Secretary to the Government of Bengal, Darjeeling.

Has any appeal been preferred by the printer in Karmayogin case against his conviction? Please telegraph reply.

Pro. no. 35.

Telegram, dated the 9th July 1910.

From — The Chief Secretary to the Government of Bengal,

To — The Secretary to the Government of India, Home Department.

Your telegram no. 699, dated 7th instant. No appeal has been preferred by printer.

Pro. no. 36.

Telegram, dated the 23rd August 1910.

From — The Commissioner of Police, Calcutta,

To — The Secretary to the Government of India, Home Department.

Appeal preferred Karmayogin sedition case on behalf Monmohan Ghose. Date of hearing not fixed.

* * *

[k]

Extract paragraph 7 from the Director, Criminal Intelligence’s Weekly Report, dated the 6th September 1910.

7. Karmayogin Sedition Case. — On the 18th June last Monmohan Ghose, the printer, was convicted by the Chief Presidency Magistrate under section 124-A, Indian Penal Code, and sentenced to six months’ rigorous imprisonment. Although the sentence is one against which no appeal lies under the Criminal Procedure Code, the High Court, in the exercise of their revisional jurisdiction, have issued a rule on the Chief Presidency Magistrate in accordance with an application filed on August 19th on behalf of the accused. The grounds on which the rule was issued have not been set out in the intimation furnished to the Chief Presidency Magistrate, but the appellant contended that the writing was not seditious, that he did not understand the nature of the article, that the article appeared over the signature of the writer of the same, and that the sentence was too severe. It is said that the accused Monmohan personally had no wish to move the High Court against his conviction, as he feared an enhancement of the sentence, and the appeal appears to be preferred in the interests of Arabindo Ghose at the instance of Girija Sunder Chakravarty, former “Manager” of this paper. It is believed that if, by any chance, Monmohan Ghose should be acquitted it would mean the triumphant return of Arabindo Ghose to Calcutta. Owing to the unaccountable delay of two months which has taken place in filing the application the case will have to go before the Vacation Bench of the High Court, from which some sympathy is said to be expected.

Extract from the Government of Bengal’s letter no. 2097-P.D., dated the 12th July 1910, regarding the report on the political situation in Bengal for June 1910.

9. * * * * * The Chief Presidency Magistrate, Calcutta on the 4th July issued orders against Arabindo Ghose under sections 87 and 88, Criminal Procedure Code. In pursuance of this order the press where the Dharma was printed has been seized and an order for the attachment of a fourth share of the Maniktollah Garden will shortly be executed. Arabindo Ghose is reported to be still at Pondicherry.

* * *

[l]

No. 38

Telegram no. 3134-P.D., dated the 3rd October 1910.

From — The Chief Secretary to the Government of Bengal,

To — The Secretary to the Government of India, Home Department.

Please refer my telegram 3538-P., dated 25th August 1910, regarding motion filed in Karmayogin case. Motion was heard 28th ultimo by Justices Holmwood and Das. After partly hearing counsel for Monmohan Justice Holmwood said Justice Das thought the articles subject matter of charge required careful consideration to decide whether or not it was seditious within meaning section 124-A, Indian Penal Code, and that as he, Justice Das, was retiring in a fortnight’s time he did not consider he should hear appeal. The case was therefore adjourned to 20th October when fresh proceedings will be begun before new Bench. Meanwhile High Court directed release of accused on substantial bail. Chief Presidency Magistrate, Calcutta, fixed this at Rs 5,000 with two sureties of Rs 2,500 each. It is reported that they have not yet been found.

* * *

[m]

No. 41

No. 4374-P., dated the 26th November 1910.5

From — The Hon’ble Mr. C.J. Stevenson-Moore, I.C.S., Chief Secretary to the Government of Bengal,

To — The Secretary to the Government of India, Home Department.

In continuation of Mr. Levinge’s telegram no. 3134-P.D., dated the 3rd October 1910, regarding the appeal preferred in the High Court, Calcutta, by Monmohan Ghose, the accused in the Karmayogin case, I am directed to submit, for the information of the Government of India, a certified copy of the judgment delivered by the High Court setting aside the conviction of the accused.

2. I am to add that under instructions from this Government, the warrant under section 124-A, Indian Penal Code, against Arabindo Ghose, and the orders issued under section 87 and 88, Criminal Procedure Code, for proclamation and attachment of his property in connection with the case, were withdrawn in the court of the Chief Presidency Magistrate, Calcutta, on the 21st November 1910.

IN THE HIGH COURT OF JUDICATURE AT FORT WILLIAM IN BENGAL.

(Criminal Appellate Jurisdiction.)
The 7th November 1910.
Present:
The Hon’ble Mr. Justice Holmwood,
and
The Hon’ble Mr. Justice Fletcher.
In the matter of
Criminal Appeal no. 744 of 1910.

Monmohan Ghosh, accused, — Appellant,

versus
Emperor.

For appellant. — Mr. B.C. Chatterjee with Babu Monmotho Nath Mukherjee.

For the Crown. — The Advocate-General and Mr. Orr.

Holmwood, J. — I have had the advantage of reading the judgment which my learned brother is about to deliver and I find myself in agreement with him that the present appellant, the printer and publisher of the Karmayogin, cannot be convicted under section 124-A, Indian Penal Code, on the article which we have before us in this case.

It is unfortunate that of a series of articles alleged to have been written by one and the same hand the prosecution should have selected the one which on the face of it appears the least amenable to a charge of sedition and it is doubly unfortunate that the case should have been so inadequately tried in the Lower Court. It is true that under the law the printer and publisher of a seditious article can be punished merely on proof that the article is calculated to excite feelings of hatred, dislike, ill-will, enmity or hostility towards the Government established by law in British India but that renders it all the more incumbent on the prosecution to show either that the article does as a fact bring the Government into hatred or contempt or that the intention of the writer was to excite disaffection. Edge, C.J., in delivering the judgment of the full court in Queen Empress versus Amba Prosad, 20 All. 55 at page 68 points out that the writer may be guilty of exciting or attempting to excite feelings of “disaffection” as that term used in 124A, no matter how guardedly he may attempt to conceal his real object, but it is idle to contend that the printer and publisher can be punished if the concealed object is not established by evidence on the record. Now in the case although the prosecution alleged that a series of articles had been written by one individual and had those articles produced by a police officer who said that it was his duty to read them and if objectionable to forward them to his superiors no evidence was offered who that individual was nor whether all the articles were by the same author.

It was urged by the learned Advocate-General that these articles were admissible under section 15 of the Evidence Act for the purpose of showing that the publication of the article before us in this case was not accidental, but that has obviously nothing to do with their admissibility for the purpose of showing the intention of the writer. articles is not before us and there is nothing to show that they are the work of one and that all the articles were produced by the same hand. This not having been done we are compelled to take the article before us as it stands without any of the informing commentaries which were sought to be drawn from one previous article in particular by the learned Advocate-General.

The author of the present article may be a very ingenious and subtle master of language — there are indications throughout the article that he is. Several of his conditional hypotheses if they were interpreted with the double meaning that is sought to be read into them from other sources, on the footing that the aims of the Nationalist party are really different from what they purport to be in this article might bear a very sinister interpretation indeed; but as the possible author of this and the other articles is not before us and there is nothing to show that they are the work of one and the same hand it would be extremely unfair to the appellant to judge him by any standard other than that of what the article before us really purports to contain.

The learned Presidency Magistrate in the Court below has not dealt with the purport of the article as a whole. He has selected isolated passages and in my opinion given them an interpretation that they will not bear and in some cases appended a quite inaccurate account of what they purport to convey. For instance the article does not attack the Government when it is criticising the alleged inadequacy of the Reform Scheme. It attacks the Moderate Party who have been assumed to have expressed their concurrence with the Scheme. Again the writer nowhere suggests that without recourse being had to violence advancement is impossible, as the learned Magistrate finds he does — and so on in other passages of the judgment.

Having regard to the very inadequate way in which the case was dealt with in the Lower Court I have had to seriously consider whether it would not be our duty to direct a retrial, but having regard to the fact that the appellant had already served more than half his sentence before he was admitted to bail and to the fact that the prosecution must be presumed to have abstained from proving the identity and intentions of the writer upon grounds which to them seemed good and sufficient, I do not think any good purpose would be served by carrying the case against the present appellant any further. I therefore concur with my learned brother that the appeal must be allowed, the conviction and sentence set aside and the appellant acquitted and released from bail.

Fletcher, J. — The appellant in this case has been convicted by the learned Officiating Chief Presidency Magistrate for an offence punishable under section 124-A of the Indian Penal Code as being the printer and publisher of an article entitled “To my countrymen” which appeared in the issue of the Karmayogin newspaper on the 25th December 1909 and has been sentenced to undergo six months’ rigorous imprisonment. The appellant has preferred an appeal to this court against the conviction and sentence passed upon him. The article forming the subject of the charge purports to be an open letter addressed by one Arabindo Ghose to his countrymen. The principles applicable to cases of this nature are not open to doubt and all that we have to do is to apply those principles to the case now before us.

Section 124-A of the Indian Penal Code coupled with the three explanations thereto contains in clear and concise language the law in this country relating to sedition which is practically identical with the law in England. It may, however, be useful in passing to quote one judicial utterance as to the limits permitted by the law writers commenting on the actions of the Government. In charging the jury in Reg. versus Tilak, 22 Bom. 112, Strachey, J., made the following remarks “It (i.e. the section) shows clearly what a public speaker or writer may do and what he may not do. A man may criticise or comment upon any measure or act of Government, whether Legislative or Executive, and freely express his opinion upon it. He may discuss the Income Tax Act, the Epidemic Diseases Act or any military expedition or the suppression of plague or famine or the administration of justice. He may express the strongest condemnation of such measures and he may do so severely and even unreasonably, perversely or unfairly. So long as he confines himself to that he will be protected by the explanation. But if he goes beyond and whether in the course of comments upon measures or not holds up the Government itself to the hatred or contempt of his readers, as for instance by attributing to it every sort of evil and misfortune suffered by the people or dwelling on its foreign origin and character or imputing to it base motives or accusing it of hostility or indifference to the welfare of the people then he is guilty under the section and the explanation will not save him.” Now in this case the general theme of the writer of the article is a severe criticism on the policy of what is called the Moderate Party and a call to his countrymen to “Come forward and take up their burden.” The learned Advocate-General in course of his argument has taken us through the whole of the article line by line and pointed out the portions which in his view are open to complaint. The learned Advocate has moreover relied upon two other articles, exhibits 16 and 18, which he states were written by the same writer and appeared in the issues of the Karmayogin on the 24th and 31st July 1909. These two articles he claimed to use for the purpose of showing the meaning of certain expressions used in the article complained of and also to show the intention of the writer.

But as we pointed out during the argument that apart from all other questions these articles were not proved in such a manner as to entitle us to take them into consideration, we must, therefore, deal with the article complained of as it stands.

Now the first words that the learned Advocate-General has laid stress upon is the call to the Nationalist Party to “once more assume their legitimate place in the struggle for Indian liberties.” This it is said is a clear invitation by the writer to his countrymen to join in a movement having for its attainment the liberation of India from foreign rule. But in my opinion the words standing alone are capable of a much more innocent meaning. The use of the word “liberties” in the plural would not prima facie point to liberation of the country from foreign rule, but to certain specific liberties and this view appears to be supported by the subsequent portion of the article when the writer sets out what the demand of the Nationalist Party must be, viz., an effective voice in legislation and finance and some control over the executive.

The next portion of the article on which the learned Advocate-General laid stress is the portion “The survival of moderate politics in India depended on two factors — the genuineness of the promised reforms and the use made of them by the conventionists of the opportunity given them by the practical suppression of Nationalist public activity.… Had the reforms been a genuine initiation of constitutional progress the Moderate tactics might have received some justification from events.… The reforms have shown that nothing can be expected from persistence in moderate politics except retrogression, disappointment and humiliation.”

The argument put forward on this part of the article is that the statement that the reforms are not “genuine” or a “genuine initiation of constitutional progress” holds the Government up to hatred and contempt as implying that they have given the people something that is not “genuine.” To my opinion this is a very farfetched argument. The writer was obviously entitled to express his opinion on the reform scheme and the mere fact that he states that the scheme is not a genuine reform or not a genuine measure of constitutional progress cannot be seditious. But then it is said that the statement that “nothing can be expected from persistence in moderate politics except retrogression, disappointment and humiliation” followed subsequently by the words “discomfited and humiliated by the Government” are obviously seditious as the words mean that Government has humiliated a large portion of the people, viz., the Moderate Party, and therefore the statement brings the Government into hatred or contempt. It is obvious that this is not the natural or ordinary meaning of the words. The natural meaning of the words is that the Moderate Party has been humiliated by accepting the reform scheme which is not a measure of “Constitutional progress.” Then a portion of the article was relied upon as showing that the writer was advocating that violent methods should be used if necessary. The words are “if the Nationalists stand back any longer either the national movement will disappear or the void created will be filled by a sinister and violent activity.”

But that the intention is not such is shown by the sentence that immediately follows, “Neither result can be tolerated by men desirous of the country’s development and freedom.”

The learned Advocate-General next referred us to the following part of the article. “The fear of the law is for those who break the law. Our aims are great and honourable, free from stain or reproach. Our methods are peaceful though resolute and strenuous. We shall not break the law and therefore we need not fear the law. But if a corrupt police, unscrupulous officials or a partial judiciary make use of the honourable publicity of our political methods to harass the men who stand in front by illegal ukases, suborned and perjured evidence or unjust decision, shall we shrink from the toll that we have to pay on our march to freedom? We must have our associations, our organisations, our means of propaganda and if they are suppressed by arbitrary proclamations we shall have done our duty by our motherland and not on us will rest any responsibility for the madness which crushes down open and lawful political activity in order to give a desperate and sullen nation into the hands of those fiercely enthusiastic and unscrupulous forces that have arisen among us inside and outside India.”

The argument on the first part of this paragraph is that as the Government appoint the police officials and judiciary to describe them as corrupt, unscrupulous and partial, reflects upon the Government and brings it into hatred and contempt. But though the words used are such that one may strongly disapprove of, I am unable to see that the words taken in their context necessarily bear this meaning. The first portion of the paragraph states that the movement is to be a movement within the law and then follows the sentence commencing “But if” which words clearly govern the sentence which follows. It seems to me reasonably clear that the writer does not intend to designate all the police, officials and judiciary as corrupt, unscrupulous and partial. It is also to be remembered that the article is not one written on the police, officials or judiciary. Although one may regret the use of such words, I cannot bring myself to believe that the use of these words in the context in which they are used falls within section 124-A of the Indian Penal Code.

The other three expressions in the paragraph which have been dealt with are the expression “Arbitrary proclamations” “Madness” and “A desperate and sullen nation.”

It is very obvious that the expression “Arbitrary proclamations” coupled with the words “associations” points to proclamations under the Criminal Law Amendment Act suppressing associations. I take it, however, that there is no particular harm in a writer stating that if his association which he believes to be a lawful one is suppressed the proclamation will be arbitrary. It is difficult to deal seriously with the other two expressions “Madness” and “A desperate and sullen nation.”

That the first of these two expressions charges the Government with insanity cannot be argued. It is said, however, that the meaning of the word as used is that of recklessness and therefore falls within section 124-A. The word, however, is clearly used to indicate an act of folly which in the context is clearly innocuous. Similarly with regard to the expression “A desperate and sullen nation” the learned Advocate urged that these words were seditious as implying that the Government had made the nation desperate and sullen and therefore brought the Government into hatred and contempt. But if arguments of this nature were assented to the right of comment on the action of the Government given by law would be wholly taken away.

Then we come to what the writer states is to be the demand of the Nationalist Party. “We demand, therefore, not the monstrous and misbegotten scheme which has just been brought into being but a measure of reform based upon democratic principles and effective voice in legislation and finance, some check upon an arbitrary executive. We demand also the gradual devolution of executive Government out of the hands of the bureaucracy into those of the people. Until these demands are granted we shall use the pressure of that refusal of co-operation which is termed passive resistance; we shall exercise that pressure with the limits allowed us by the law but apart from that limitation the extent to which we shall use it depends on expediency and the amount of resistance we have to overcome.”

The argument for the Crown is that the use of the words “Monstrous and misbegotten scheme” hold the Government up to “ridicule and vituperation.” But that does not appear to me to be the consequence of these words. Doubtless the words are a strong condemnation of the reform scheme framed by the Government. The law, however, permits comments on actions of the Government provided they do not bring the Government into hatred or contempt or promote disloyalty. A statement that the reform scheme is monstrous and misbegotten because it is not founded upon democratic principles is not by itself one that exceeds fair and reasonable comment.

The next words that the learned Advocate-General much relied on were the words “Arbitrary executive” which he stated were “Sufficient of themselves to contravene the law.” He urged that any constitutional lawyer would know that the executive Government in India was not an arbitrary executive as no person is liable to be deprived of his liberty or to have his property forfeited without recourse to the courts of law. In the first place, however, it is to be noticed that we must look at the words used by the writer not as if he were a constitutional lawyer but as a writer in a journal.

I quote from the very pertinent remarks made by Strachey, J., in charging the jury in Tilak’s case. “A journalist is not expected to write with the accuracy and precision of a lawyer or a man of science; he may do himself injustice by hasty expressions out of keeping with the general character and tendency of the articles.” Moreover, there is a more general and popular meaning to the words “arbitrary executive” than that given by the learned Advocate-General. Further if the definition given by the learned Advocate is correct it may be a matter of opinion how far the Government does or does not fall within that definition. The next expression to which exception was taken was “Passive resistance.” The writer has, however, defined it himself as being “refusal of co-operation within the limits allowed us by the law.” It seems difficult to deduce a seditious meaning from this [phrase]. But then it is said that although the writer states that the pressure is to be used within the limits allowed by the law yet there is a covert threat to use pressure outside those limits if necessary.6

All I can say on this argument is that I have not been able to discover this covert threat from the words used. The next and last part of the article which the learned Advocate-General has called our attention to is “The movement of arbitration successful in its acception has been dropped as a result of repression. The swadeshi boycott movement still moves by its own impetus … We must free our social and economic development from the incubus of the litigeous resort to the ruinously expensive British Courts.”

The learned Advocate-General stated that the expression swadeshi boycott referred to a boycott of the Government. But it is a matter of public knowledge that it refers to a boycott of foreign goods; and again he laid stress upon the expression “Ruinously expensive British Courts.” The question as to the expense involved in litigation before the Courts is surely a matter on which a writer is entitled to comment.

This is not the first time nor will it I imagine be the last when the Courts will be described as ruinously expensive and I cannot see how such a statement can come within section 124-A.

I have now dealt with the arguments that have been made before us in detail on the article and I have given the best consideration I can to the article as a whole and I have come to the conclusion that it does not appear from the article that it is such as is likely to cause disaffection or produce hatred or contempt of the Government nor can I find from the article that such was the intention of the writer.

Doubtless to many if not to most people the writer’s view on the great reform scheme would appear to be unreasonable and one that does not recognise the great advance that has been made.

But with that we are not concerned. All that we have to decide is whether the law as it is has or has not been broken by the appellant by the publication of this article and I have come to the conclusion that it has not.

The learned Advocate-General has pressed upon us strongly to take into consideration the state of the country at the time this article was published. The authorities show that that is a matter to be taken into consideration but that obviously does not entitle the court to convert an article not falling within the mischief aimed at by section 124-A into one that does.

In my opinion the appeal ought to be allowed and the conviction and sentence set aside.

* * *

[n]

From C.J. Stevenson-Moore, Esq., to A. Earle, Esq., I.C.S., C.I.E., no. S-248, dated the 10th November 1910.

You have no doubt seen that the accused in the Karmayogin case was acquitted. Authenticated copies of the judgments will be submitted to you in due course, but you might like to hear from me regarding the Judges’ decision before waiting for that. The line taken by the Judges seems to have been utterly unsound. The law on the subject of the use of several articles in order to prove the animus of the article under trial is almost elementary. It is stated in section 14(e) of the Evidence Act, also in 19 (Calcutta) 35 at page 45, 20 (Allahabad) 55 at page 69, 22 (Bombay) 112 at page 139. All that it was necessary to prove was that the publisher of the various articles was the same, and that was done in the Karmayogin case. The Advocate-General seems to have laid so much stress on these articles being the work of Arabindo Ghose (though it is very doubtful whether that fact could have been proved), that the Judges seem to have been misled into thinking this point relevant. Holmwood’s remarks seem to have been framed with the desire to help us, but as a matter of fact they do not do so in the least. Arabindo Ghose is apparently at Pondicherry and not anxious to return at present. But if he were to do so, we could not of course touch him.

* * *

[o]

The warrant out against Arabindo has been cancelled and he can return to British India without fear of molestation from Government whenever he likes. It would have been unwise, I think, for the Government of India to press for the continuation of the criminal proceedings against him, after the acquittal of the printer, although the law seems to be in favour of such a course.

Meanwhile there is reliable information to the effect that Arabindo has come by steamer from Pondicherry to Chandernagore where is is keeping himself closely shut up partly because he is ill with an abscess in the stomach.

But the Pondicherry watchers declare he has not left that place. Already, I am informed, while at Chandernagore, he has written some characteristic newspaper articles which are about to see the light. We shall know more about his plans in a few days’ time.

C.R. Cleveland, — 21-11-10.

Home Department

For information. His Excellency may now see.
A.L., — 25-11-10.

* * *

[p]

Pro. no. 42

This sort of prosecution does a great deal of harm and brings the Executive into contempt.

H[ardinge], — 5-12-10.

Director, Criminal Intelligence.

2

Extract from Government of India, Home Department, Political Section B, May 1910, 37-41. “Parliamentary questions and answers regarding the issue of a warrant against Arabindo Ghose”.

Mr Ramsay Macdonald. To ask the Under Secretary of State for India whether he can confirm or otherwise the report in this morning’s “Times” that a warrant has been issued against Mr Arabindo Ghose for an article which appeared in the “Karma Yogin” of the 25th. December and whether, if the report be accurate, a copy of the paper can be placed in the Library for the information of Members.

…o…

Answer to Mr Ramsay Macdonald’s Question, dated 7th. April, 1910.

…o…

The Secretary of State has seen the announcement in the “Times” but has no official information on the subject. He has telegraphed to India for a full report.

3

Extracts from Correspondence between Secretary of State (Lord Morley) and Viceroy (Lord Minto).7

[a]

Extract from letter Morley to Minto, 7 April 1910.

We are vastly puzzled here today by a telegram in The Times about a warrant being issued for the arrest of Arabindo Ghose, on account of a certain article on Xmas day last. I summoned Risley and D. Smith into counsel and we all agreed that the telegram was too obscure to found either action or opinion upon. So I sent you a telegram requesting for the facts of the matter. The summary of the article given in The Times does not seem to make it an incitement to murder. We shall see. I only hope that Arabindo Ghose does not find his way into this country. ‘Fugitive offenders’, where the offence has been a newspaper article, may prove awkward customers in a free country.

* * *

[b]

Extract from letter Minto to Morley, 14 April 1910.

I have been somewhat exercised by the questions in the House of Commons about Aurobindo Ghose. He is the most dangerous man we have to deal with at present and he has great influence with the student class. I believe every effort has been made by his Indian friends to reclaim him and they tell me it is hopeless. There is madness in his family and he probably has a bee in his bonnet. It was I think Bhupendra Nath Basu who said to me lately that though he certainly did not approve of deportation, if anyone is deported it should be Aurobindo Ghose, and as I dare say, you know, Bhupendra Nath Basu has himself not always been reckoned among the most loyal subjects of the King. In the meantime Aurobindo has disappeared and it will be very unfortunate if there should seem to be any sympathy with him at home. But as to this, I have telegraphed to you.

* * *

[c]

Extract from letter Minto to Morley, 28 April 1910.

I don’t know that I need go into the case of Aurobindo Ghose as I hope our telegram to you will explain the action taken by Bengal. But certain conditions affected that action which may not appear in the telegrams, and for which I was largely responsible. At the time when the “Karmayogin” article appeared, Bengal was anxious to go in for wholesale deportation — there was great alarm in Calcutta and after consultation with Jenkins I determined against deportation and to proceed by means of our legal machinery. My decision was, I believe, thoroughly distasteful to Bengal at the moment. They and the Government of India were aware of the existence of a Sedition Conspiracy on a large scale in Calcutta and its neighbourhood and it was well known that Arabindo was the most dangerous man with whom we had to deal. The local Government would have dealt with him and the conspiracy by means of deportation. I thought they would do a great mistake by doing so and the results fully confirm my opinion. But our insistence on legal procedure, in opposition as it was to the original wishes of Bengal, may have given an appearance of lukewarmness in Bengal’s action in respect to the prosecution of Arabindo which is not justified. Also proceedings were taken against the printer to the “Karmayogin” as well as against Arabindo and in those against the former the question whether the article is seditious under section 124a will be directly at issue, and if the courts hold that it is not, the proceedings against Arabindo will naturally lapse. If the court held that the article is seditious, then the prosecution in accordance with the advice of the Advocate General will be fully vindicated. At the present moment I don’t know what stage the case had reached — I have not all the papers with me and am writing largely from memory. Speaking generally, there was at one time a very decided slackness on the part of the local governments in respect to prosecution for sedition. They were much more inclined to advise deportation and throw the responsibility on the Government of India and the Secretary of State, and there was a tendency to complain of the weakness of our legal machinery, the truth being that it was always ample, but that its application was neglected.

* * *

[d]

Extract from letter Morley to Minto, 5 May 1910.

As to the famous Arabindo, my satisfaction is not at all lively. You are mistaken if you think that there is any sympathy with him at home. That is not the point. The point is, in my mind that the institution of proceedings against him was a foolish blunder, from the side of policy. I have always understood that proceedings for sedition was only advised when a conviction was reasonably certain. Is a conviction reasonably certain in this case? I should think decidedly not, and I hope not. So far as I can make out, the article (so far back as last Xmas) simply paraded passive resistance and abstention from taking part in public life. That may be as odious and objectionable as you please, but it is at least doubtful whether any decent court will find it to be sedition. If there is any strong doubt, it would have been far better to let the thing alone. I had heard of an Advocate General who had 200 cases submitted for his opinion, and he only advised proceedings in a dozen of them. What a sensible example! I wonder what Sinha would say about the matter: Nothing will induce me to defend such work. As for deportation, I will not listen to it.

* * *

[e]

Extract from letter Minto to Morley, 26 May 1910.

As to the celebrated Arabindo, I confess, I cannot in the least understand your hope that we shall not get a conviction against him! I can only repeat what I said to you in my letter of April 14th that he is the most dangerous man we now have to reckon with … and has an unfortunate influence over the student class, and Indians who know him well have told me he is quite beyond redemption. Surely you cannot hope that such a man should remain at large? We had to consider two courses of procedure against him — deportation and prosecution in accordance with law. The former I was decidedly opposed to, though Indians who knew him intimately would have thought it thoroughly justified. The alternative was to proceed by the machinery of the law. As to this it has always been an accepted axiom that Prosecutions are not to be undertaken unless there is good reason to believe that conviction will be obtained and the Bengal Government after consulting their legal advisers, satisfied themselves as to this. In the meanwhile Arabindo is in Pondicherry where he seems to have formed some undesirable French connections and will probably sail for France.

* * *

[f]

Extract from letter Morley to Minto, 15 June 1910.

You say you cannot in the least understand my hope that you won’t get a conviction against the redoubtable Arabindo. The belated proceedings were a thorough blunder from the first, and their institution does little credit to Baker. I have not met a single person, having read the indicted matter, who thinks there is any indictable sedition in a single line of it. Nothing will induce me to pretend to support the action taken. My fear is that the man may reach this country, and resort may be requested either by the Government of India or somebody else to the Fugitive Offender’s Act. Well, I shall be bound (so far as I have power!) to veto anything of the kind. Your information may be good about the mischief that the man may have tried to brew but we have information here that he means to ‘retire from the business’ of political agitator. Deportation! I should think not.

1 The voluminous proceedings are preceded by equally voluminous notes, the proceedings and notes being presented in separate chronological series. The editor has followed the notes, inserting the proceedings in the places indicated. A row of three asterisks indicates the end of one continuous extract. For ease in reference, each extract is identified by a lowercase letter.

2 The reference is to a copy of the text of the letter reprinted from the Karmayogin. See Plate 2; for the full text see Sri Aurobindo, Karmayogin (1972), pp. 324-28.

3 See Plate 3.

4 Most errors made by the magistrate in transcribing Sri Aurobindo’s text have been allowed to stand.

5 This extract has been presented somewhat out of its sequence in the document so as to preserve the chronological order.

6 Errors made by the judge in citing Sri Aurobindo’s text have been allowed to stand. One obvious typographical error has been corrected within square brackets.

7 The two ends of the correspondence are preserved both in Morley Papers, India Office Library, Eur. MSS. 573D and in Minto Papers, National Library of Scotland, M 978-87. The editor has taken the present extracts from Manoj Das, Sri Aurobindo in the First Decade of the Century (Pondicherry: Sri Aurobindo Ashram, 1972), pp. 133-39.



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