Bakhle Sedition and Savarkar

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Savarkar (1883–1966), Sedition and Surveillance: the rule of law in a colonial situation Janaki Bakhle a

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Savarkar (1883–1966), Sedition and Surveillance: the rule of law in a colonial situation1

INTRODUCTION On 20 July 1910, The (London) Times reported a daring escape attempt by a young Indian law student who was being extradited to India for trial on a charge of treason and abetment of murder. En route to India, the ship in which he was being transported docked in the port of Marseilles. He jumped out of an open porthole and swam to shore in the hope that he might be handed over to the French authorities. Apprehended as soon as he reached the shore, he was returned to the British detectives in charge of him. Had he been any other student, it is unlikely that he would have received much attention in Britain’s most prominent national newspaper, but he was no ordinary student. His name was Vinayak Damodar Savarkar, a young Indian nationalist, uncompromising in his conviction that armed struggle was the only way for India to free itself from British colonial rule. At the time of Savarkar’s arrest, the main voice of anti-colonial nationalism in India was that of the Indian National Congress (INC), founded in 1885.2 A moderate body in its early years, the mission of the INC was largely defined by leaders such as G. K. Gokhale who worked with the British to achieve greater participation in affairs of state. However, a number of young Indian nationalists became increasingly impatient with the INC, which in 1907 divided into two factions. The factionalism concerned different approaches to the protest against the 1 I would like to thank Janet Blackman, Partha Chatterjee, Valentine Daniel, Mamadou Diouf, Nicholas Dirks, Saurabh Dube, Michael Hassett, Rashid Khalidi, Elizabeth Kolsky, Adam Kosto, Claudio Lomnitz, Mark Mazower, Mae Ngai, Keith Nield, Gyanendra Pandey, Susan Pedersen, Sheldon Pollock, Anupama Rao, Satadru Sen, Dorothea von Mucke and the reviewers of Social History for their critical comments and suggestions. 2 On the Indian National Congress, see N. R. Ray, Ravinder Kumar and M. N. Das, Concise

History of the Indian National Congress 1885–1947, ed. B. N. Pande (New Delhi, 1985). See also Richard Sisson and Stanley A. Wolpert (eds), Congress and Indian Nationalism: Pre Independence Phase (Berkeley, 1988); Edwin Hirschmann ‘White Mutiny’: The Ilbert Bill Crisis in India and Genesis of the Indian National Congress (New Delhi, 1980); and D. A. Low (ed.), Congress and the Raj: Facets of the Indian Struggle, 2nd edn (Oxford and New Delhi, 2004).

Social History ISSN 0307-1022 print/ISSN 1470-1200 online ª 2010 Taylor & Francis http://www.informaworld.com DOI: 10.1080/03071020903542286

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partition of Bengal in 1905 by Lord Curzon, the Viceroy of India. Bengal’s partition was widely seen as a colonial attempt to divide and rule on communal grounds, and to break the back of a revolutionary nationalism that had gathered momentum in the previous decade. Moderate nationalists in the INC favoured a regionally restricted peaceful protest. They were opposed by the ‘extremists’ who denounced partition in the strongest terms, and spearheaded a nationwide agitation called the Swadeshi (self-rule) movement. During those years, Indian nationalist activity in London revolved around a figure named Shyam Krishnavarma.4 In 1905, Krishnavarma had founded a monthly called the Indian Sociologist which published critical essays about the colonial government in India. He had also started a secret society called the ‘Indian Home Rule Society’ which, following the Irish example and in the context of the partition of Bengal, agitated for the complete withdrawal of Britain from India. Krishnavarma owned a house in Highgate – called ‘India House’ – which was turned into a mess-cum-hostel for Indian students studying in England. It soon became a hotbed for young Indian revolutionaries, many of whom were drawn to the activities of anarchists, and Russian and Italian nationalists.5 These young revolutionaries were placed under intense surveillance and viewed by the British as extremely dangerous. Savarkar was an undergraduate college student in India when the Swadeshi movement commenced, and he had come to the attention of the nationalists with his fiery speeches against partition. His affiliation with the extreme wing of Indian nationalism, however, was apparent even earlier when as a high school student he had organized a secret revolutionary society, ‘Mitra Mela’ (‘Society of Friends’), in his home town of Nasik.6 As a result, when he arrived in England in 1906 to study for the bar at Gray’s Inn, he was a well-watched figure in the secret world of colonial surveillance. The Pune police in India had informed officials in England of his arrival, and as soon as he set foot in the UK, Scotland Yard took over the surveillance.7 This surveillance raises several questions, the most important concerning the differential use of sedition law between the metropole and the colony, and the use of dangerous words as evidence of conspiracy. At the historical moment when J. S. Mill’s On Liberty made it a citizen’s right to be critical of the government, and when sedition law was increasingly unusable in Britain, in the British colony of India sedition not only became the legal means by which anti-colonial nationalist conspiracies were prosecuted, it also acquired a prominence it no longer had at home. This raised the issue that the real danger posed by revolutionaries lay in a violence that was far more rhetorical and symbolic than physical, as they questioned the fundamental legitimacy of colonial rule. Revolutionary nationalism is an important (and largely ignored) feature of Indian nationalist history, not merely because it provided the historical backdrop for the spectacular emergence 3

See Sumit Sarkar, Swadeshi Movement in Bengal, 1903–1908 (New Delhi, 1973), passim. 4 See T. R. Sareen, Indian Revolutionary Movement Abroad (New Delhi, 1979). See also Dhananjay Keer, Veer Savarkar (Bombay, 1950), in particular chap. 2, 28–55; and Chitragupta, Life of Barrister Savarkar (Madras, 1926), 35. 5 Keer, op. cit. 6 See Arvind Godbole, Ase Ahet SavarkarI (Pune, 2005), 19.

7

British Library, London, Oriental and India Office Collections (hereafter OIOC), IOR/Home Political/A, no. 37, Confidential, December 1909. A letter from India Office, Whitehall, on 10 September 1909, stated that the Director of Criminal Intelligence was in contact with Scotland Yard about the activities and movements of the students in India House. See also Godbole, op. cit., 20.

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of a nationalist movement based on Gandhi’s non-violent civil disobedience. Perhaps the most lasting legacy of revolutionary nationalism (and its successful suppression by the British) was a militant and masculinist Hindu nationalism, of which Savarkar became the leading exponent. The possible connection between British colonialism and the specific brand of secular Hindu political fundamentalism Savarkar exemplified is a critical question for colonial historiography. Here I will examine a prior question, focusing on how the colonial state’s response to revolutionary nationalism gave rise to two principal colonial weapons against all anti-colonial nationalism, ranging from Savarkar’s call for armed rebellion to Gandhian non-violent noncooperation. The first weapon was surveillance, a developing technology of state control that placed an increasingly large number of young revolutionaries under systematic monitoring. Some of these revolutionaries were learning about guns and bombs while others were engaged in fiery nationalist rhetoric. Both sets were placed under surveillance to monitor not just what they were doing, but also what they were thinking, writing and speaking. Related to this surveillance, the second and perhaps more important weapon of the colonial state in India was sedition law. The connection between surveillance and sedition law reveals a great deal about the precision with which a case was developed against anti-colonial conspiracies. The colonial state, of course, had to worry about guns, bombs and political assassinations. But student revolutionaries were often amateurish and more often than not their planned attacks came to nothing.8 What was far more of a threat was the seditious potential of revolutionary rhetoric. While violent acts could be pre-empted and violent offenders could be put away, sedition – the incitement to disaffection – was much harder to control or contain. Seditious words were, in effect, a propaganda apparatus that ensured a constant supply of fresh recruits to the cause. For that reason, the word itself became the evidence of a crime, and leaders of so-called conspiracies had to be implicated primarily by proving that the conspiracy lay in the particular use of words.9 Leaders of conspiracies were rarely those who pulled a trigger, but they could provoke others to do so through their words. Since control of dangerous words fell under the purview of sedition law, what we see is the emergence of sedition law as both the chief weapon of the colonial state and the offence with which generations of Indian nationalists would be charged. Historians of Indian nationalism have usually argued that sedition law was introduced into the Indian Penal Code by the British as a way of warding off the threat posed by groups such as the Wahhabis, student revolutionaries, and nationalists such as Savarkar. As a way of rethinking the causal relationship between sedition and terror in the Indian colonial context, I offer the following argument. Sedition law in India was not put in place to avert terrorism. To continue to believe such an argument is to mistake the symptom for the cause. The real terror was neither guns and bombs, nor anarchism or nihilism. It was Indian disaffection with colonial rule. Sedition as a criminal offence was introduced into the Indian Penal Code (IPC) in 1870 as the offence of ‘exciting disaffection’ against the colonial government. At the same time, in

8 See Chitragupta, op. cit., 40–3. This is the earliest known biography of Savarkar, written by someone who knew him well during his London days. Chitragupta describes the numerous times when young revolutionaries blew off their own

hands, or lost eyes, or were duped by bogus European revolutionaries. 9 I am grateful to Partha Chatterjee for this insight.

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England, sedition as a criminal offence had become unusable in British common law, except in a few cases pertaining to Irish agitators. The sole successful prosecution for sedition in Britain after 1896 involved a critique of British colonialism in India, and support for an Indian revolutionary nationalist.10 While sedition had a long history in Britain, the modern history of sedition was in fact inextricably linked to colonial rule. Sedition not only seemed to gain a new lease on life under conditions of colonial occupation, it became a key issue, and tool, for the colonial state. Sedition law was widely used in India to arrest and convict revolutionary nationalists, and with each judicial interpretation and each trial of an anti-colonial nationalist, the parameters of this law became wider and wider. By the time Gandhi was tried for sedition in 1922, sedition had become a catch-all category encompassing all anti-colonial expression, extending from bombs and political assassinations to discursive challenges in books and pamphlets, including even the harbouring of negative feelings against colonial rule. As a result, sedition was both the signature colonial problem and the means by which most forms of anticolonial nationalism were checked, when they were not, as in the case of revolutionary nationalism, suppressed outright. It is with this historical genealogy of colonial sedition that we return to Savarkar and his designation as a revolutionary nationalist. As the surveillance documents show, Savarkar was less a skilled revolutionary warrior than a rhetorical revolutionary – i.e. a seditionist. His lasting impact on the Indian political scene had more to do with changing the terms and scale of the discourse of Indian history and, by extension, the British Raj as well. To say this is by no means to ignore his gun-running or his romance with violent revolution. But of the charges Savarkar faced at the time of his arrest, which included abetment to murder, treason and conspiracy, I argue here that the most important concerned the charge of sedition, for it highlighted some of the most salient colonial contradictions revolutionaries and revolutionary nationalism posed to the state. After the 1857 Rebellion, a diverse group comprising intellectuals, poets, mystics, philosophers, novelists, reformers and spiritual leaders from around the country cultivated a distinctly Hindu anti-colonial nationalist discourse that combined inward spiritual development with external political freedom. It emerged from the anguished belief that despite India’s ancient culture and civilization her heirs had allowed themselves to be defeated by a foreign country with a far inferior civilization. The spread of western attitudes among the small but growing middle class in urban colonial India only made matters more urgent. In response to the diffusion and deepening of the colonial apparatus in India, this group reacted by turning away from the industrialized and mechanized materialism of the West and towards traditional Hindu religion and ethics. The anglicized and deracinated Indian became a figure of ridicule at the same time as the immediate withdrawal of the British from India was being advocated.11 The group’s ideology came to be known as ‘extremism’ by both the colonial regime and a moderate Indian nationalism.

10

Guy Aldred, an anarchist and communist, wrote a proscribed pamphlet, ‘The white terror in India’, which was a left-driven criticism of English colonial sedition laws. See OIOC/EPP/1/3 (Proscribed Publications in European Languages), August 1910.

11

See Amles Tripathi, The Extremist Challenge: India between 1890 and 1910 (Calcutta, 1967); and Leonard Gordon, Bengal: The Nationalist Movement 1876–1940 (New York, 1974). See also David Johnson, The Religious Roots of Indian Nationalism: Aurobindo’s Early Political Thought (Calcutta, 1974).

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Extremist thought in colonial India had several regionally distinct genealogies. While each such strand differed in its approach to Hinduism, the means by which to attain independence, and the texts (and languages) used as the source of an argument, all of them rejected the idea of the Victorian civilizing mission, using instead an idealized ancient (if also modern) Hindu India as the source for imagining a different future. Extremists – pacifist and militant – idealized an ancient Indian polis as the source from which all modern Indian political conceptions – ethical, social and legal – could be derived. Indian rejuvenation was conceptualized in the language of vitality, and physical and emotional strength. They used inspirational figures from India’s literary past, such as the exiled leader (King Rama from the ancient Sanskrit epic Ramayana), or the divine teacher of duty (Krishna from the Mahabharata), and from the more immediate historical past the courageous guerilla chieftain Chattrapati Shivaji, who rebelled against the might of the Mughal Empire. Revolutionary nationalists combined what they had read about European nationalism, anarchism and nihilism with a Sanskritic concept of duty (dharma) taken from a section of the Mahabharata called the Bhagavad Gita.13 To this mix they added the figure of India as a chained and captive mother beseeching her sons to rescue her. Many young men across the country were inspired by such a vision. Devoid of any conviction that independence from British rule could be acquired by gentlemanly negotiation, they chose instead guns, bombs and political assassination as the means by which to convince the British to leave. This potent mixture of Hindu devoutness, nationalist duty and anarcho-terrorist tactics made up Indian revolutionary nationalism. Influential and stirring as it was, neither extremism as an ideology nor revolutionary nationalism as a tactic became the dominant mode of Indian nationalism. From its founding in 1885, the Indian National Congress (INC) bore a different agenda than that imagined by the extremists, and it was the INC that became the dominant mouthpiece of nationalism in India. The extremist wing of the INC dissented sharply from what they saw as a far too moderate criticism of colonialism, and they laboured to move the INC in a different direction.14 The tension between moderate and revolutionary nationalism was resolved only when Gandhi finally assumed control over the nationalist movement. When Gandhi returned to India from South Africa in 1915, the nationalist milieu was very different from what it had been either during the last quarter of the nineteenth century or the first decade of the twentieth. Gandhi would pursue a different model of popular mobilization than that of either the parliamentarian 12

The poet and novelist Bankimchandra Chattopadhyaya (1838–94) and the philosopher Swami Dayananda (1863–1902) in Bengal, V. S. Chiplunkar (1850–82) and B. G. Tilak (1856–1920) in western India, and Dayananda Saraswati (1824–83) in Punjab were key figures. On Bankimchandra Chattopadhyaya, see Partha Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse? (Minneapolis, 1995), chap. 1; on B. G. Tilak, see Ram Gopal, Lokmanya Tilak (New Delhi, 1956); Stanley Wolpert, Tilak and Gokhale: Revolution and Reform in the Making of Modern India (New Delhi, 1961); and Theodore Shay, Legacy of the Lokamanya: The Political Philosophy of Bal Gangadhar (Bombay, 1956). On Dayananda Saraswati, see J. T. F. Jordens, Dayananda Saraswati:

His Life and Ideas (Delhi, 1978) and Shri Ram Sharma (ed.), History of the Arya Samaj: An Account of Its Origin, Doctrines, and Activities, with a Biographical Sketch of the Founder by Lajpat Rai (Bombay, 1967). For Aurobindo’s view of the triumvirate of Bankim, Tilak and Saraswati, see Bankimchandra Chattopadhyaya, B. G. Tilak and Dayananda Saraswati, 2nd edn (Calcutta, 1947). 13 See Sudipta Kaviraj, The Unhappy Consciousness: Bankimchandra Chattopadhyay and the Formation of Nationalist Discourse in India (New Delhi, 1995). 14 The INC extremists were led by Lala Lajpat Rai (1865–1928) from Punjab, Bipin Chandra Pal (1858–1932) from Bengal and B. G. Tilak (1856– 1920) in Maharashtra.

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moderates or the revolutionary nationalists (to whom he was opposed), in part because he realized it would be more difficult for the British to suppress a movement based on nonviolence. Nevertheless, the British would use against him some of the very tactics they had developed – both legal and extra-legal – in their programme against the early revolutionary nationalists of the first decade of the twentieth century. Indeed, they would treat Gandhi as if he were the worst terrorist of them all. But before him, they had to deal with Savarkar.

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THE CASE OF SAVARKAR Vinayak Damodar Savarkar was born on 27 May 1883, into a middling Brahmin family in what is today the modern Indian western state of Maharashtra in a small village (Bhagur) near the city of Nasik.15 When he was nine years old, his mother died of cholera. His older brother Ganesh (Babarao) married a young woman named Yashoda Phadke, and she all but raised Savarkar and his younger brother (Narayan). In 1899, both his father and his uncle succumbed to the plague which had moved into Bhagur. The plague years (1896–9) were tough years for the Deccan and they were made worse by insensitive colonial actions.16 Savarkar and a couple of his friends founded a secret society called ‘Rashtrabhakta Samuha’ (‘Patriots’ Society’) in 1899 which became the ‘Mitra Mela’ (‘Society of Friends’) a year later (1901).17 It was as the Mitra Mela that the society came to the attention of the police. There are few original documents concerning this society because the members destroyed them all to prevent them falling into the hands of the British.18 The society met in the attic of a friend’s house in Nasik, and its main activities consisted of organizing public festivals in opposition to the ban on organizations, and using these festivals to rouse people to anticolonial sentiment. In this sense the Mitra Mela was a consciousness-raising society, holding more lectures than anything else.19 In Savarkar’s memoirs, these early days of political activism are described in a manner that makes clear that he believed he could single-handedly change the direction of Indian history. He had the foresight to persuade other members of the Mitra Mela to eschew liberal politics, and that he alone was born to lead. Education was the means by which to radicalize society, but not by reading only the canonical western writers. Savarkar was aware of the need to have the concept of history become all-important to everyday people, and history could only be the history of a nation. He insisted that members read works dealing with major historical figures, biographies of Mazzini, Garibaldi, Napoleon Bonaparte and, along the way, study a little bit of Spencer and Mill. His populist agenda was to produce through such an education a specifically Indian nationalist and historical consciousness, even among villagers. Politics, Savarkar recounts, could only be waged by turning history and historical words into a weapon. As a political act, this vision was far more threatening than his romance with weapons of individual destruction.20 The late nineteenth century in Maharashtra was a time in which there were active debates about history, the role it played in the life of a nation and its use as a corrective to colonial 15

I have used Dhananjay Keer’s Veer Savarkar (Bombay, 1957) as well as Savarkar’s memoirs in Marathi to compile this brief sketch of his life, in particular vol. 1 of Samagra Savarkar Vangmaya (Bombay, 2000), hereafter SSV. 16 Wolpert, op. cit.

17

SSV, vol. 1, 122–5. See S. R. Date, Bharatiya Swatantryache Ranazhunzhaar: Abhinava Bharat Smarak Chitraprabodhini (Pune, 1970). 19 SSV, vol. 1, 28–9. 20 ibid., 140–5. 18

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denigrations of India’s past. No stranger to these debates, and the social controversies of the late nineteenth century in Pune involving caste and gender, Savarkar wrote patriotic poetry as a high school student, extolling the figure of mother India. In 1901 Savarkar married; the following year he went to Ferguson College in Pune. He studied the writings of international anarchists and anti-colonial nationalists, especially the Boers. As a student activist, he organized the first bonfire of foreign cloth in 1905. After leaving college, Savarkar wrote editorials for a Bombay weekly called Vihari.22 In 1906 he left for London to study law at the Inns of Court. Almost as soon as he arrived, he embroiled himself in various anti-colonial nationalist activities, most of which were educational and literary. He wrote short descriptions of political and social life in London which he sent to the Marathi magazine Kaal. Within six months of his arrival, he translated Mazzini’s biography into Marathi. By the end of the year he had started a secret, revolutionary society called the ‘Abhinava Bharat’ society, organizing weekly lectures on nationalism. The fiftieth anniversary of the outbreak of the 1857 Rebellion, 10 May 1907, was observed in London as a day of thanksgiving in honour of the final British victory over the rebels. In response, Savarkar wrote and distributed a fiercely patriotic leaflet, ‘Oh Martyrs!’ commemorating the leaders of the rebellion as Indian martyrs which attracted police attention both in India and in England.23 Over the next two years (1908–9), Savarkar completed his own monumental history of the 1857 Rebellion. It was the first systematic analysis of the Rebellion as a failed war of national independence. Attuned to nationalism as a historical force around the globe, he argued that the revolt of 1857 had reflected the unified (Hindu and Muslim) nationalist desire of India to free itself from the oppressive yoke of British rule. The list of authors whose books he consulted included Alexander Duff, Kaye and Malleson (all six volumes of their canonic history), Henry Mead, Meadows Taylor and George Trevelyan, among others. He wrote his work in Marathi, using English primary sources precisely to highlight the ideological biases in the imperial perspective on the subject, in order to make his powerful argument that ‘the nation ought to be the master and not the slave of its own history’.24 The 484-page book contained detailed accounts of historical events such as the Siege of Delhi, as well as analytical descriptions of many of the Rebellion’s leaders, both Hindu and Muslim. He argued that a nationalist ideology was the motivating factor behind the 1857 Rebellion, something he said that English writers were too prejudiced to accept. ‘Is it possible?’ he asked. ‘Can any sane man maintain that all embracing Revolution could have taken place without a principle to move it? Could that vast tidal wave from Peshawar to Calcutta have risen in blood without a fixed intention of throwing something by means of its force?’25 Savarkar proceeded to discount all the usual colonial arguments about the causes of 1857: the greased cartridge, the economic motives of 21 See Prachi Deshpande, Creative Past: Historical Memory and Identity in Western India, 1700–1960 (New York, 2007). See also Mahadev Apte ‘Lokahitavadi and V. K. Chiplunkar, spokesmen of change in nineteenth-century Maharashtra’, Modern Asia Studies, VII, 2 (1973), 193–208; and Richard Tucker, ‘Hindu traditionalism and nationalist ideologies in nineteenth-century Maharashtra’, Modern Asian Studies, X, 3 (1976), 321–48.

22

Keer, op. cit., 24. Reprinted in SSV, vol. 3 (History), part II. 24 Author’s introduction, The Indian War of Independence (London, 1909), i. I am citing here page numbers only from the original English translation of the book. The entire text in Marathi can be found in SSV, vol. 3 (History), part II. 25 ibid., chap. 1, 3. 23

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the elite, the annexation of Oudh. In chapter after chapter, he noted that 1857 had ushered in a new era – in particular the end in perpetuity of Hindu–Muslim enmity – and he imagined a future for India with two distinct religious communities bound together in an unshakeable unity. He also indicted the British for conspiring to ‘trample the Hindu religion and the Muslim faith’ or, as he also put it, for being filled with contempt ‘for the Hindu and Muslim faiths – the two principal religions of India’.27 The Rebellion failed not for lack of planning, he wrote, but because it lacked a clear sense of the future. With the authorship of the book about 1857, Savarkar had added another entry to an already long list of publications. The book did not call for widespread revolution or for anarchist violence. Its true political potential lay not in its inaccuracies or passionate rhetoric, or the fact that it would stir the natives to action. Works of history have not, by and large, ever had much autonomous success in fomenting revolution against the state. Instead, Savarkar intended to give India a history of her own, to change the subject of history from the colonial state to a national state. In his Introduction to the book he made clear that ‘history’ did important work for a nation and a national community, as he recognized it had done for England. He was going to do the same for India. In one sense, writing a work of linear history using English language sources was the perfect example of the success of the civilizing mission. But in another sense, by turning the argument around as he did, he was also the proverbial asp in the bosom. In the dominant English historiography of the time, 1857 was an example of native ingratitude for the beneficence of colonial rule. The successful suppression of the Rebellion was also claimed in several pulpits across England as an instance of God’s grace shining on the British Empire. In his rewriting of the history of 1857, Savarkar not only took on the big guns of English historical authorship but also a popular English understanding of the event. He challenged the diminishing of the Rebellion as a contained and containable mutiny, restricted to a small section of the army which spread irrationally in a limited part of the country. He identified the ideological underpinning of English accounts of 1857 as British nationalism. He castigated English writers for not acknowledging the nationalism of their scholarship. He called English historians to task for not recognizing Indian nationalism even when a rebellion confronted them as evidence. Finally, having skewered English scholars for their unacknowledged nationalism, he was going to pay them back in kind by setting in motion an Indian nationalist rewriting of both British and Indian history. He not only reconceptualized the ‘Sepoy Mutiny’ of 1857 as an Indian national (unified) and nationalist (ideological) rebellion, he did so in the most extreme historical detail over close to 500 pages. His semantic transvaluation would alter the terms of Indian historical discourse once and for all. The hermeneutic innovation of his 1857 book was to broadcast the importance of history for the nationalist expectations of its readers.28 Savarkar was claiming that Indians were not and had never been an infantilized population that needed shepherding into the modern world by their British overlords. The addressee of his book was the Indian nation. By exploding the scale of the argument, he asserted that India had always been a nation and that the events of 1857, the Rebellion’s eventual failure notwithstanding, demonstrated that she could be unified once again in her struggle against foreign rule. In a crucial sense, he was almost ignoring or 26 27

ibid., 5, 7. ibid., chap. 5, 46, 47, 50, 73, 76.

28

I am grateful to Dorothea von Mucke for this insight.

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bypassing the British altogether and appealing directly to the national community he knew was buried in there, somewhere underneath colonial rule. Small wonder that the manuscript of this book was sent to Scotland Yard by an informant and the work was banned before it was even published. Savarkar’s friends at India House translated the manuscript into English and in defiance of the ban used their contacts in Germany to have it published in 1909.29 In the same year, both of Savarkar’s brothers were arrested. It was only a matter of time before Savarkar was brought under control, but for what exactly? So far the mainstay of his revolutionary activity, whether in India or in England, was his writing. As it turned out, one of his two trusted translators, Koregaonkar, who was also a member of India House, turned informant for the government. In his statement to the police, while he notes the desire on the part of India House members to spread revolution all through India, he could not provide much detail about where guns were to be acquired or how bombs were to be placed. He was able to provide some information about Madanlal Dhingra’s plans to assassinate an English official, however, and about the translation and distribution of Savarkar’s 1857 book. But very little in his statement was new to the police. What stands out, however, is the attention the members of India House paid to a work of history. For this reason, Savarkar, a voracious reader of a vast range of literature from the Iliad and Odyssey to Sanskrit epic literature and commentaries, Marathi devotional works and modern writings in Europe on the subject of nationalism, might more accurately be termed a literary figure rather than a revolutionary in the classic sense of the term.30 Over the course of his life he wrote editorials, poetry, prose, speeches, plays, novels, satires and pamphlets. While in London he started a periodical called Tarvaar (‘Sword’) and wrote nationalist editorials in it, as well as contributing to Irish periodicals about Home Rule. In the absence of other information about Savarkar’s activities, from Koregaonkar’s statement to the police we get the sense of a romantic revolutionary but also a rhetorician, a polemicist, a speech-maker and an historian. Savarkar’s actual revolutionary acts were significant, but not nearly as widespread or as successful as colonial officials or subsequent hagiographers have made them out to be. He despatched a few friends from India House to Paris to learn about bomb-making, and while he had grandiose plans, as Koregaonkar’s statement suggests, for sending India House members to Belgium, Switzerland and Germany for military training, they never materialized. He did, however, make copies of bomb manuals which he sent to India, along with a few pistols for political assassinations. One of those pistols was used by seventeen-year-old Anant Kanhere to assassinate a colonial official in Nasik.31 When caught, Kanhere implicated, among others, the Savarkar family. As a result, Savakar’s older brother and some family friends were arrested and sentenced to transportation for life in the Andaman Islands. Savarkar’s younger brother was also arrested in connection with a different conspiracy case in the same year. Back in England, Savarkar and other members of India House were already under surveillance. Despite the close

29

OIOC, Foreign Confidential, R/1/1/1076, 1910. In his statement, Koregaonkar names himself and a W. V. Phadke as the two translators of Savarkar’s book. This is confirmed by Keer, op. cit., 31. 30 SSV, vol. 1, 144–6.

31

See V. M. Bhat, Abhinava Bharat athava Krantikarakanchi Krantikarak Gupta Sanstha (Mumbai, 1950) for a candid account about the revolutionaries and their activities, and how easily Anant Kanhere, being only seventeen, gave up all members of the group.

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scrutiny, Madanlal Dhingra, one of the members of India House, assassinated a British MP, Sir Curzon Wyllie, in July 1909. My intention here is neither to downplay Savarkar’s role in revolutionary terrorism nor to trivialize political assassinations, even when in the name of anti-colonial nationalism. But it is important to put Savarkar’s real political role in revolutionary terrorism into a larger perspective, and there is little reason to suspect that Savarkar was anything more than an amateur in his bomb-making proficiency and his ability to acquire guns. Even more importantly, for my argument, if those were the activities that alarmed the colonial government it could have arrested him at any point during their five-year surveillance. Even as Savarkar was engaged in reading or smuggling bomb-making manuals and guns into India, his literary output and consequent ideological reach were much more dangerous. Although he wrote with great passion against the disarmament of India, and had a naive romance with guns, tanks and even submarines, it is not clear that he even knew how to fire a gun.32 What is far more apparent was that he could inspire others, through his words, to pick up guns and bombs, and in the building of the case against him it was the words themselves that became the evidence of a conspiracy. To arrest Savarkar, evidence was gathered from two main sources. The first was letters he had received or written, mainly to and from family members, and publications such as bombmaking manuals. The second, and more important, included surveillance documents and the testimony of informants. In India House, there were at least three informants – H. C. Koregaonkar, Sukhsagar Dutt and Kirtikar – who were spies for the English authorities. Savarkar knew about one, suspected another, but it was the third who gave him up.33 Savarkar attempted to place his own double agent (M. P. Tirumalachari) to convey misinformation to Scotland Yard, but Tirumalachari was also under surveillance, as was Sukhsagar Dutt.34 The placement of these agents suggests that Savarkar was inserted into a complex web of surveillance whose span extended to Europe and India as well as England. It was a web of surveillance from which he was never to escape. Savarkar was certainly not the only Indian nationalist to advocate violent resistance to the colonial state by means of political assassinations and fiery rhetoric. Yet the colonial government did not simply arrest him for attempted violence. While four rather weighty charges including treason and conspiring against the government of the king were laid before Savarkar, the charge that sticks out is that of sedition. The sedition for which he was arrested 32

SSV, vol. 1, 210. Sukhsagar Dutt was the nom de plume of Sajani Ranjan Banerjea, who was engaged by the Director of Criminal Intelligence as an informant from October 1909 until June 1913. His passage, fees for admission to the bar and the price of law books were all provided, as was a monthly allowance of £20 for the 45 months of his employment. He claims he turned informant to pay off his family debt. His expenses and education was paid for by Scotland Yard (OIOC/IOR/L/ PS/8/67, 1912). He reported to a Superintendent Quinn on the ‘seditionist movement’ and was deemed very useful because he was assessed as 33

having ‘the great merit of reporting, truthfully, and not making sensational statements in order to magnify his usefulness’. Dutt wanted to take a science course, which was approved because ‘it gave him better opportunities of mixing with the Indians and getting information, and the science course is one that appeals to Indians with extremist tendencies’ (my emphasis), 31, 32. See also R. A. Padmanabhan, V. V. S. Aiyar (New Delhi, 1980) for a biographical account of the surveillance on India House. 34 Home Political/Branch A/December 1909, no. 37, Confidential (National Archives, New Delhi).

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took place four years earlier, when Savarkar was a college student in Pune – not for anything he wrote or said in London. Indeed, Savarkar’s surveillance shows us the emphasis the colonial police placed on his long history of writings rather than his short history of gun-running. The unspoken fear in all the surveillance documents is that sedition and its effects were the real threat the colonial police had to contain, and to illustrate this I turn now to the story of the surveillance of Savarkar.

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SURVEILLANCE The first indication of Savarkar’s activities from the police history sheet on him concerns an anti-colonial speech he made at Fergusson College during his first year there (1901). Savarkar, it was noted, ‘possessed neither religious nor moral scruples and was a fluent and fiery speaker’. Furthermore, it was claimed that ‘Vinayek advocated the speedy emancipation of India from British control by the direct method of revolution’ and took for its model ‘the secret organizations of the Russian Nihilist’. The revolution would be preceded by ‘a reign of terror inaugurated by the assassination of high Government officials, European and Indian’.35 The next note is in 1902, when it was reported that he had written ‘a rather objectionable essay on ‘‘Why festivals of Historical persons should be celebrated’’’. Everything about this essay was noted, where and by whom it was published, and by which Government Order it was proscribed. The ‘reign of terror’ about which the colonial government was concerned never happened, in large part because of how well the terrorists were monitored. When Savarkar left for London, Scotland Yard was alerted.36 The correspondence between various colonial policemen and officials from the Home Political File of the year 1908 reveals the extent of their surveillance.37 On 10 May 1908, Savarkar distributed his leaflet, ‘Oh Martyrs!’ in India House to an assembled gathering.38 Less than a month later, on 8 June 1908, C. J. Stevenson-Moore of Criminal Intelligence wrote that ‘Home Department should see the leaflet ‘‘Oh Martyrs’’ which apostrophizes the mutineers of 1857 and prophesies a revolution in 1917. The type of the leaflet is similar to that of the Indian Sociologist.’39 The Indian Sociologist was the mouthpiece of Shyam Krishnavarma and the India House group in London. Two days later, the Home Department in India noted that it was quite possible that the leaflet had been written in England because ‘[t]he phraseology is better than usual, and unlike other fulminations we are accustomed to here’.40 On 15 June 1908, the Home Department received a confidential letter from the government of UP. ‘By the Lieutenant Governor’s direction I send you in original a copy of the pamphlet which was received from England. . . . It might be possible to take some action in England to stop the printing of these pamphlets.’41 The local and central Police Departments were in on the act as well. The Police Commissioner’s office 35 Savarkar Police History Sheet (Calcutta, 1935), 8. 36 For the surveillance game that Savarkar played with the colonial police, see Y. D. Phadke, Shodh Savarkarancha (Bombay, 1984). See also David Garnet, The Golden Echo (London, 1953), 157, in which the author notes that there was always a Scotland Yard policeman hanging about on the street outside India House.

37 Home Political/Deposit/December (National Archives, New Delhi). 38 Godbole, op. cit., 24. 39 Home Political/Deposit/December (National Archives, New Delhi). 40 ibid., 8 June 1908. 41 ibid., June 1908.

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noted that an ‘Inspector Favel has returned from Nasik and brought with him the papers etc. referred to in the attached copy of the Panchnama. 175 (written out) copies of the life of Marzani were seized in the search. 173 have been kept here in the custody of the Nasik police and two brought to Bombay.’ But the police were after more than this. They reported disappointment about not finding anything about Savarkar’s 1857 book, saying: ‘Nothing has been discovered which throws any light on the book we are searching for.’42 In June 1908, Savarkar’s brother was arrested on the charge of waging war against the king and sedition; the family home was searched for suspicious literature.43 Two months later, in Allahabad, Madan Mohan Malaviya, who would emerge as the leader of the Hindu nationalist party, sent warning of the pamphlet to the UP government. He wrote to J. W. Hose: I enclose a most seditious leaflet which I received yesterday with the English mail. Evidently it is a copy of the same to which his Honour referred in his speech on the political situation. I was going to tear and throw it away as I did not wish that it should fall into the hands of any person; and as I thought it was not necessary to send it to Government as the contents of it are already known to them. But it struck me that I should yet inform you that this incendiary leaflet is still being mailed out to this country, so that the Government may take such further steps as it may deem proper to prevent the circulation of such poisonous matter.44 The web of surveillance around Savarkar included not just local and international police, but even some nationalists who were willing to turn him in for his writings. Madan Mohan Malaviya made no mention of Savarkar’s violent activities, only of his seditious leaflet. The government did not, however, take immediate action. Savarkar was not arrested for another two years, during which time the government carefully, and stealthily, developed its case. In March 1909, the District Superintendent of Police in Nasik, Savarkar’s home town, wrote to the District Magistrate. Referring to translations of eight of Savarkar’s letters to his brother, he noted: ‘Vinayak has repeatedly asked his brother to send him the Bande Mataram essay.’45 Excerpts from this essay had been cited as evidence in the full text of Savarkar’s trial judgment. He wrote further that ‘VDS is a well-known rank extremist and it will be observed from one of his letters to Ganesh, that he advocated a defiant stand being made by the extremists should Government prevent the holding of the Congress at Nagpur in December last.’ The letter went on to state about Ganesh Damodar Savarkar that, ‘Apart from the offences he is at present charged with, the correspondence seized in his house after his arrest fairly indicates that he has been conspiring with others to subvert British rule in India.’ From all this, the suggestion was made that ‘Govt may be moved to ask the Home authorities to have the belongings of VDS, whose address is India House London thoroughly searched for incriminating documents in English and Marathi’.46 On the basis of a letter asking for an essay, it was considered legal to have his domicile in England searched. These were dangerous words indeed. 42 Home Department/Political/60-A, 1908–9, S3 (National Archives, New Delhi). 43 ibid. See also Keer, op. cit., 65. 44 Home Department/Political/60-A, 23 August 1908 (National Archives, New Delhi).

45 Home Department/Political/60-A, S21 (National Archives, New Delhi). 46 ibid.

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We know from David Garnet’s first-hand account of being grilled by Scotland Yard that there were always watchers around India House.47 We also know that there were three moles in India House. In addition, back in India, the Director of Criminal Intelligence, and the Deputy Inspector General of Police, worked to put a case together that would force Savarkar’s extradition from England. The subject of discussion was how to justify his arrest and whether the evidence was strong enough to do so. Could letters showing his connection to his brother suffice? Or would the fact that he distributed seditious leaflets work?48 While the government had clear evidence to justify arresting his brother – including bomb-making manuals – so far Savarkar was only guilty of association with his brother, and of founding a secret society. The tangible evidence the colonial government had against him was his own words in a leaflet, a pamphlet and a book. In July 1909, a memorandum was circulated on the anti-British agitation among the natives of India in England.49 Savarkar was in England under close watch, one of his brothers (Ganesh Damodar Savarkar) had been sentenced to transportation for life in the Andamans, while his other brother (Narayan Damodar Savarkar) was under surveillance.50 But what was blinking quite conspicuously on the colonial radar screen was Savarkar’s book on the 1857 Mutiny. A telegram from the Bombay government proposed banning the book under the terms of the Sea Customs Act.51 The matter was referred to the Director of Criminal Intelligence, C. J. Stevenson-Moore, who agreed that it was a good idea even though he didn’t believe the ‘London Extremists’ were doing very much with the book.52 As it turned out, they were busy translating the work into English and arranging for its international distribution, as Koregaonkar would reveal in his role as informant.53 Towards the end of the year, the Bombay government was working out the details: ‘I think that the Customs might be warned to test for fake bottoms in the boxes of Indian students returning from Europe’ and, doubtless wondering about how to make more indictments, ‘whether a prosecution for sedition would stand in the case of a man in whose box a copy of the book might be found on landing in Bombay. Perhaps it is worthwhile having this considered and orders issued?’54 The government was considering whether the sweep of sedition law could be extended to the possession of a book. But even if the colonial government was going to use the Sea Customs Act, they needed to amend it. A proposal was made that they add the term ‘seditious’ after the word ‘obscene’ so that the terms of the Act would now read: ‘By section 18(c) of the Sea Customs Act the bringing into British India of any obscene and seditious book, pamphlet, paper, drawing, painting, representation, figure or article is prohibited.’55 However, Sea Customs Officers, it was pointed out, could not possibly adjudicate about what was and what was not ‘seditious’, and the discussion moved to passing a 47

Garnet, op. cit., 153. Home Department/Special/60-A, 1909–22 (National Archives, New Delhi), 5, 11, 19. See correspondence between the DIG Police (Mr Guider) and the Director of Criminal Intelligence on the question of the legal justification for Savarkar’s arrest. 49 Home Political/Deposit/July 1909, no. 19 (National Archives, New Delhi). 50 Home Political/Deposit/October 1909, no. 29 (National Archives, New Delhi). 48

51 Home Political/A, August 1909, nos 23–7 (National Archives, New Delhi). 52 ibid. 53 See Godbole, op. cit., 23. 54 Home Department/Political/60-B, 1910 (National Archives, New Delhi), 55, 58. 55 Home Political/Deposit/May 1910, no. 1 (National Archives, New Delhi).

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new Press Act. The Press Act in India was designed to monitor local newspapers to ensure nothing critical of the British government was printed. In light of these events, Savarkar’s book might well have occasioned the passing of a new Press Act in 1910. Savarkar’s book was carefully watched as it made its way across Europe and then on to India. For all that Savarkar’s friends were trying to camouflage the book, there was little about its distribution that seems to have been unknown to the police. The banning of the book by using the Sea Customs Act appears to have been successful, and it was noted in the police history sheet that ‘In 1909, Vinayek published an English translation of ‘‘The Indian War of Independence of 1857’’ and printed 3000’ copies but that it received a small circulation owing to its prohibition under the Sea Customs Act.56 The 1857 book remained banned until two years after Indian independence. Alongside the banning of his book and the monitoring of his work, the Benchers at the Inns of Court were planning to prevent Savarkar from getting his law degree.57 They postponed his call to the bar and, once he was arrested, the colonial authorities even stripped him of his bachelor’s degree. The colonial government was like a patient if somewhat disconcerted bird of prey setting a trap. And it was not just setting out to arrest Savarkar, but to prevent him from speaking or writing ever again. What emerges from the historical record is a world of extreme secrecy, of cat and mouse intrigue, moles, informants and double agents. From the moment Savarkar set foot on English soil, responsibility for his surveillance moved back and forth from Bombay to London. The colonial authorities in India were keen to arrest him and took pains to alert the authorities in England about their wishes. We know that Savarkar has been manager of the India House and also that he has had some examination before him. It occurs to me that it might be worth while writing to the India Office to tell them that you have papers showing a close connection between Savarkar and his brother who has now been committed for trial on charges of waging war and sedition, in whose possession was found a voluminous typed document giving detailed instructions as to the manufacture and use of bombs, besides the draft of a most violent essay in praise of various Bengal murderers. If the Indian Office laid this information before the proper authorities, their hesitation should give way to decision presuming the student in question is Savarkar, and the effect would be excellent.58 In other words, all that the British authorities had to do was correctly to identify Savarkar as the author of a ‘violent essay’. Once that was done, his relationship to his brother was enough to suspect him. All telegrams containing any reference to Savarkar were scrutinized for any clues about his movements or plans. All telegrams arriving from or despatched to Europe, or to or from Bombay, between 13 December 1909 and 13 January 1910, ‘which contain or are suspected to

56 Savarkar Police History Sheet (Calcutta, 1935), 12. 57 Home Department/1909/Telegrams 135, Telegram to Secretary of State, 15 May 1909, regarding VDS; Telegram 136 from Secretary of

State, stating that the Benchers have postponed the call to the bar of VDS and Harnam Singh (National Archives, New Delhi). 58 Home Political/Deposit, May 1910, no. 1 (National Archives, New Delhi).

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contain references to the movements or plans of V. D. Savarkar shall be disclosed to the Deputy Commissioner of Police, Bombay’.59 It was noted that ‘Bombay at last sanctioned Savarkar’s case, but he left for Paris sixth. Get Orders for Director General of Telegraphs instruct cable companies for scrutiny by Vincent of wires sent last 30 days and for retention of any suspicious.’60 Finally the trap was sprung. ‘Director of Criminal Intelligence should see after issue with as little delay as possible. I believe he intends to discuss with the Bombay authorities the possibility of framing a charge under section 121-A against V. D. Savarkar and obtaining his surrender under the Fugitive Offenders Act.’61 But why the Fugitive Offenders Act (FOA)? On what grounds could he be considered a fugitive? We shall come to this presently. Savarkar was still in London when Anant Kanhere assassinated the collector of Nasik. A young English student, David Garnet, who would go on to become a novelist and member of the famed Bloomsbury Group, became friends with members of India House. His memoir, The Golden Echo, was condescending in its descriptions of Indians, but written in a mildly confessional tone for harbouring some initial (and short-lived) sympathy for the Indian nationalist cause. It also provides first-hand information about Savarkar in London. Garnet recalled that, to try him in India, the authorities needed to ‘dig up or manufacture, evidence of crimes committed’, eventually alighting on speeches Savarkar had made four years earlier.62 On the basis of these speeches, the Bombay government issued a telegraphic warrant for his arrest under the FOA of 1881. As soon as Savarkar returned to London from Paris, on 13 March 1910, he was arrested as a fugitive. The FOA presumed that the suspect in question had been guilty of a crime and had fled to evade arrest. But when Savarkar came to England as a student, it was not as a fugitive. He had arrived like any other Indian student, to study law. He had not been previously charged with a crime, or evaded arrest, or fled either India or England. Yet the only way he could have been extradited to India was to produce charges of an unresolved crime in India. To this end, the only crime the colonial authorities could come up with was the charge of sedition based on speeches he had made as a college student in Pune. At the time, Savarkar was under surveillance and could easily have been charged and arrested there, had his sedition seemed dangerous. But the colonial government in India did not do so, only charging him four years later while he was in England. The trumped-up nature of the charge was apparent to all his supporters, yet it was important for the colonial authorities to use the FOA and try Savarkar for sedition in India, for two reasons. Sedition as a criminal offence was all but obsolete in British common law at the time, and it would have been much more difficult to secure a conviction in London. At the same time, given the severity of sedition law in India, a conviction was much more likely to yield a harsh sentence. Sedition was one thing in metropolitan England and quite another in colonial India. And so Savarkar was apprehended as a fugitive and arrested on five charges, including delivering seditious speeches in India from January to March 1906 and in London from 1908 to 59

Home Political/A/ February 1910, Telegram nos 31–2 (National Archives, New Delhi). 60 Home Department/Political/1910, Notes of the Criminal Intelligence Office, Telegram from the Director, CI, dated Nasik, 13 January 1910 (National Archives, New Delhi).

61

Home Political/Deposit, May 1910, no. 1 (National Archives, New Delhi). 62 Garnet, op. cit., 153.

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1909. However, as we have seen, the surveillance focused almost entirely on his writings. He was extradited to India, and tried twice by two separate courts for separate offences.64 In his second trial in the Bombay High Court, he was convicted and given the maximum sentence of two life-terms on the Andaman Islands. In July 1911, Savarkar was taken to Port Blair to serve out his sentence in the cellular jail.

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SEDITION LAW As a criminal offence, sedition came under the jurisdiction of the Indian Penal Code (IPC). The IPC had been drafted in its entirety in 1837 by Thomas Babington Macaulay while he was serving as Law Member of the Governor General’s Council. For the next thirty years or so, while the debate about the codification of law raged in England, Macaulay’s draft for India remained untouched. The question of codification in England was eventually settled in Blackstone’s favour, in 1870, which meant that hereafter British common law would remain traditional and uncodified.65 But what prevailed in the metropole did not extend to the colonies. Tradition, while important, was not granted the same status in India as it had in England, with colonial law-makers arguing that the only way to resolve the chaos of the different legal systems in India (Hindu and Muslim) was to codify Indian law. However, codification in India posed its own and particularly colonial problems. The chief law and order problem confronting the East India Company (EIC) from the late eighteenth century until about 1860 was the lawlessness and rampant savagery of a varied group of white non-official Britons and EIC army personnel. Codified law would bring white miscreants and criminals under its purview and, as Elizabeth Kolsky has demonstrated, this posed an untenable racial problem for a supposedly impartial and fair colonial legal apparatus. Codification, by definition, would have to address the problem of colonial judges adjudicating differentially between white settlers and native subjects.66 In the meantime, across one part of the country there had been growing sentiment against colonial occupation. The result was the 1857 Rebellion, which was brutally suppressed by the EIC over the course of two years. The territories of the EIC were annexed by the Crown in the wake of the Rebellion and, two years later, in 1861, Macaulay’s 1837 draft Code became law. The original draft of the Code contained a section (113) that had a provision for sedition, but it was left out of the 1861 Indian Penal Code (IPC). The reasons for such an omission, which concerned the different legal and political climates in England and India at the time, cannot be explored in this article; however, ten years later the rise of revolutionary activity in India prompted an amendment to the IPC. The 1870 amendment first introduced ‘exciting disaffection’ against the government as a criminal offence, and when the IPC was re-enacted in 1898 section 124-A replaced the crime of ‘exciting disaffection’ with ‘sedition’. It is with this new 1898 amendment that sedition law comes into its own in colonial India. While it embodied one aspect of the law of seditious libel taken from English law, the new amendment

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Keer, op. cit., 72. Godbole, op. cit., 40. 65 Michael Lobban, The Common Law and English Jurisprudence, 1760–1850, in particular the chapter on Blackstone and codification (Oxford, 1991). 64

66 Elizabeth Kolsky, Colonial Justice: White Violence and the Rule of Law in British India (Cambridge, 2009).

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was much harsher than the previous one, in that it anticipated possible defences, not something present in the 1870 iteration.67 The terms of the 1898 IPC, section 124-A, read as follows:

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whoever by words either spoken or intended to be read, or by signs, or by visible representation, or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards her Majesty or the Government established by law in British India shall be punished with transportation for life, or for a term which may extend to three years.68

By the second decade of the nineteenth century, in England, ‘offending words’ were being scrutinized almost entirely in contextual terms – where the words were uttered, in what context, to whom, and how they were received. The last of these criteria became ever more important. It was permissible to hold personal political views in opposition to the government (disapprobation); it was quite another to have those views influence others to action that might bring the lawful government into ‘hatred and contempt’. As Michael Lobban has argued, with the expansion of the public sphere and public debate on political issues in nineteenth-century England, the charge of sedition became increasingly unusable because it depended entirely on the jury’s ability and willingness first to interpret the offence as seditious and then to deliver a conviction, something English juries were increasingly unwilling to do.69 As sedition increasingly became linked to the question of public order, any meeting that took as its intent the task of spreading sedition, of either rousing people to insurrection or instilling terror in them, was seen as an unlawful assembly. The actual words themselves, whether spoken or written, were of far less concern than their potential effect to incite anti-government feeling. Given the technical difficulties involving case presentation, as well as the political sensitivity of sedition trials, it became easier simply to stop depending on a jury to determine seditious intent and sidestep the whole issue. Sedition, while still on the books as a misdemeanour, could be better controlled by subsuming it under the law against unlawful assembly.70 67

I am grateful to Philip Hamburger for this clarification. 68 See H. P Gupta and P. K. Sarkar, Law relating to Press and Sedition in India (Bombay, 2002), 157. On the development of seditious libel in England, see Philip Hamburger ‘The development of the law of seditious libel and the control of the press’, Stanford Law Review, XXXVII, 661 (February 1985), 662–765. Hamburger argues that over the course of the seventeenth century, the Crown was compelled to abandon other forms of control over the press such as treason, heresy, libel, Scandalum Magnatum and Tudor felony statues, and only then did the law of seditious libel come to prominence. 69 Michael Lobban, ‘From seditious libel to unlawful assembly: Peterloo and the changing face of political crime, c. 1770–1820’, Oxford Journal of Legal Studies, X, 3 (Autumn 1990), 307–52, argues that sedition all but vanishes from English common law because of the dispute between

judge and jury about the determination of ‘seditious libel’ which brought together the legal question of fact, on the one hand, with subjective interpretation on the other. ‘Sedition’ was a matter for the jury to determine since it addressed the question of the state of mind of the seditionist and the purported effect the alleged sedition had on a group of people; ‘libel’, on the other hand, was a matter of law which could be ruled on by the judge. As a law, it became increasingly unusable, Lobban argues, not least because defence counsel argued hard to protect the rights of the free-born jury to determine such matters. In the process, seditious libel on account of the technical difficulties related to case presentations gave way to an easier and more usable legal instrument that, in effect, avoided the thorny questions of fact and interpretation of seditious content. 70 ibid.

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Towards the end of the nineteenth century the concept of sedition was still used in England, albeit sporadically, and mainly to deal with the phenomenon of Irish nationalism.71 The actions of Irish nationalists (or English anarchists, for that matter) were not regarded by the police or the government (at least not overtly) as signs of a new anti-colonial political language. As in India, they were seen instead as the callous and dastardly actions of murderous thugs, or as terrorist acts. The commonality of perception of Irish and Indian anti-colonial activity is hardly coincidental. The first act of ‘terrorism’ on English soil was the failed attempt by a group of Irish Fenians in 1867 to rescue their comrades from Clerkenwell prison in the City of London. The rescue attempt failed because Dublin police intelligence and informant testimony had alerted the London police to the plans ahead of time. None the less, parts of Clerkenwell prison were blown up and twelve people died as a result. Six conspirators were arrested, and one of them was executed. Outraged by the lone execution, Queen Victoria made her views on Irish suspects clear: ‘They should be lynch-lawed and on the spot.’72 Irish nationalism was murder, not politics. In the wake of the subsequent sustained Irish bombing campaign between 1881 and 1885, a special force was created within England – the ‘Irish’ branches of both the Metropolitan Police and Scotland Yard – to monitor suspicious political figures.73 Within this web of police surveillance, which went back and forth between Ireland, England and Europe, a large group of people was monitored, including Irish nationalists, English anarchists and Indian nationalists. But while Irish nationalists could be monitored, and even arrested, convicting them for sedition was difficult and other means were used. In India things were different. Jury convictions were not difficult to secure in colonial India. The IPC still required a jury conviction for sedition, as in England, but juries in India were three-quarters white European and one-quarter native Indian. These juries were not reluctant to convict, and sedition became increasingly important as a means by which to contain anti-colonial nationalists across the generations. Sedition trials per se were no less politically explosive in India than in England, but the outcome could be guaranteed because the juries could be counted on to convict. The legal definition of sedition made no real separation between word and deed, intention and implementation, representation and reality. In India, sedition became the pre-emptive as well as the ex post facto legal mechanism that allowed the colonial state, in anticipation of a dangerous act, to proscribe all thought, writing or language that might produce it. At the same 71

Alexander Sullivan was prosecuted and convicted for seditious libel in 1868 for articles he had published in November and December 1867 about the execution of three Fenians. In his judgment, Justice Fitzgerald noted that sedition was a crime against society, closely allied to and frequently preceding treason by a short interval. He also wrote that the tendency of sedition was to invite people to insurrection. See R v. Sullivan (1868) 11 Cox CC 44, 45, 54. Fenians were more likely, however, to be prosecuted under the 1848 Treason Felony Act, under which it was a felony, punishable with life imprisonment, to levy war against the king. Under the old 1351 Statute, it was treason to imagine the death of the king, i.e. to plot or plan such an act, but the charge of levying

war required an actual act of hostility. The new Statute allowed people to be prosecuted without actually engaging in any acts of hostility. I am immensely grateful to Michael Lobban for pointing me to these cases, and for clarifying the difference between sedition used in Irish trials, and sedition as it was later used in India. 72 M. E. Hassett, ‘The British Government’s Reaction to Mainland Irish Terrorism, c. 1867– 1979’ (Ph.D., Open University, 2007), chap. 2, 4– 5. 73 For details on the creation of the Criminal Investigation Department and its connection with the Special Irish Branch of the Metropolitan Police, and the ‘Fenian Office’ of Scotland Yard, see Hassett, ibid., chap. 2.

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time, sedition also allowed for a post-event round-up and arrest of everyone even remotely connected with the actual act, on the grounds that their rhetoric had clearly been the cause of incitement of the natives to agitate against the government. At the moment of its demise in England, because of its association with illiberalism, sedition was reborn in India with colonial occupation as the midwife. One of Savarkar’s heroes, B. G.Tilak, was charged with sedition in 1897 (the year before the new amendment was enacted) for writing a poem praising the Marathi chieftain Shivaji for his bravery in resisting foreign rule, and an article in his Marathi newspaper, Kesari. In his defence, he made much of a European jury’s inability to understand the nuances of a language they did not know. On the last day of Tilak’s trial, the judge was reported as clarifying that disaffection . . . meant hostility or ill-will of any sort towards the Government, feelings of ill-will, great or small, intense or mild and any attempt to excite such feelings brought the offender within the section. . . . It was not action but feeling that was the test. . . . . In this case the test was whether the writer intended to excite feelings of disaffection [defined as want of affection] towards the Government in any way by anything he wrote, whether an editorial article, a poem, or a disquisition concerning some hero.74 In this clarification, the judge was being perfectly consistent with the legal definition of sedition as it was laid down in English common law, but he was simultaneously expanding the parameters of the term beyond its original meaning. How, for instance, could one monitor ‘feelings of ill-will, great or small, intense or mild’? (My emphasis.) What instructions could be given to the average policeman? The entire population of the country could potentially be guilty of sedition. The lack of discrimination in the law did not pass without comment by prominent nationalists such as Tilak, as we see in his second trial for sedition. This trial was occasioned by an incident from the other side of the country. In Calcutta, in April 1908, Khudiram Bose hurled a bomb at a District Judge’s carriage, mistakenly killing two Englishwomen who were using it that afternoon. Tilak, ever irrepressible and out of jail at that point, wrote that the bomb was a product of the ‘exasperation produced by the autocratic exercise of power by the unrestrained and powerful white official class’. Furthermore, he argued that repression bred violence and the way to eliminate such bomb throwing was for the government to grant selfrule to the people.75 Two weeks later, he was arrested again. In this second trial, Tilak spoke explicitly of a political language that borrowed from international anarchism. ‘The authorities’, he said, ‘have spread the false report that the bombs of the Bengalis are subversive of society.’ Tilak argued that such a report was simply untrue and gave clear reasons for why that was so. There is an excess of patriotism at the root of the bombs in Bengal, while the bombs in Europe are the product of hatred felt for selfish millionaires. The Bengalis are not anarchists, but they have brought into use the weapons of the anarchists, that is all. . . . The anarchist in America who murders a millionaire for the only reason that he is 74

The (London) Times, ‘The trial of Mr Tilak’, 15 September 1897.

75

A. G. Noorani, Indian Political Trials: 1775– 1947 (New Delhi, 1976), 124.

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a millionaire is one man, while the exasperated Russian patriot who throws a bomb in despair because the Tsar’s officers do not grant the rights of the Duma in Russia is different. No one should forget that the bombs in Bengal do not belong to the first category but to the second.76 Sedition in India, Tilak was suggesting, could not be reduced to an anarchist politics that was critical both of capitalism and of the state; the problem had instead to do with the state in question. Sedition was patriotic anti-colonial nationalism. In insisting on the specificity of the colonial situation in India, Indian extremists were engaged in politics at several levels. Since colonial sedition law made the boundary between non-violent words and violent actions porous, and made no distinctions between generalized resentment and anti-colonial politics, it could spread itself far and wide. No distinction was made between actual acts of violence and inflammatory rhetoric or mild criticism. As a result, sedition became the umbrella term under which nationalists of all stripes were placed under surveillance, arrested and tried. Tilak used the idea of sedition to suggest that the issue was not so much the means of resistance (which can be graded or calibrated) but the fact of resistance (which can only be deemed true or false) to colonial rule. The former would allow for ‘splitting’, the latter only for ‘all are guilty’. And sedition, thereby, became the colonial flashpoint that it did precisely because it posed a fundamental challenge to colonial legitimacy by holding it to its own standards of certainty, with no room for equivocation. Yet some proof was needed in court. On the one hand, sedition could be immediately apparent. If, for instance, upon hearing a seditious pamphlet read by its author the assembled audience rushed off to burn a government building, the case could easily be made for intention to insurrection. But where the offending material was underground literature, such as that written and surreptitiously published by firebrand nationalists like Savarkar, it was much harder to prove. This proof could only be acquired through surveillance which aimed at eliminating guesswork about the actual intent of the seditious material. Furthermore, given the judge’s clarification in Tilak’s trial that ‘disaffection’ meant feelings of ill will, small or great, mild or strong, the reach of the colonial state was now virtually limitless since it allowed for no distinction between politics and generalized ill will.77 At the same time, the potential expansion of sedition law into the unfathomable and invisible sentiments of colonized subjects also brings out one of the many instances of the colonial government straddling an uneasy line. On the one hand, sedition law itself suggests that the colonial regime could not fail to recognize that Indians across a wide spectrum resented and even despised colonial rule. On the other hand, there was the simultaneous production of an elaborate mythology about how much the Indians wanted and loved English rule. This contradiction was resolved by making distinctions between the normative subjects of empire, who were loyal, and the pathological subjects of empire, who were disloyal. The latter were ‘extremists’ or ‘anarchists’ or ‘terrorists’ and colonial sedition law was both part of the mechanism of that resolution and its product. In the official correspondence, it was clear that Savarkar was a threat, but there was also some uncertainty about the nature of the threat. ‘A case should be put up against Savarkar even 76

The (London) Times, ‘The trial of Mr Tilak’, 22 July 1908.

77

I am grateful to Satadru Sen and Elizabeth Kolsky for this insight.

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though its [sic] not very strong. If he is convicted of being a member of a conspiracy the second conviction is by no means unprovable. If he is acquitted of course the whole petition drops.’78 Much was known about him, as the earlier section demonstrates, but not much that was concrete enough for a court of law. In the official correspondence there was also caution. ‘It should be clearly understood,’ it was noted in a confidential telegram to the Secretary of State in London, that ‘there is chance of acquittal on charge of abetment of murder whereas in all probability sentence on conspiracy charge will be transportation for life which would be probably maximum on conviction on other charges. If such a sentence now given, effect might actually be to induce clemency at a second trial. Political effect of second trial would be most unfortunate as vindictiveness of Govt would be alleged.’79 In other words, they wanted to nail Savarkar the first time, not risk the political fallout of a second trial. But they also wanted to nail him on conspiracy charges, not on abetment of murder, and for that all they had were his words. In the text of Savarkar’s trial judgment, published in The (London) Times, he was described as ‘the leader of a group of ardent revolutionaries’ and accused of ‘despatch[ing] to India inflammatory pamphlets styled ‘‘Oh Martyrs!’’ in praise of those Indians who fell on the rebel side during the Mutiny’.80 His major crime, as the text of the judgment put it, was to have been ‘occupied with other associates at the India House in manifolding a number of typed copies of a work dealing with the preparation of bombs and dangerous explosives suitable for anarchical outrages’. As evidence of this crime, passages from the confiscated pamphlet entitled ‘Bande Mataram’ were quoted: Terrorize the officials, English and Indian, and the collapse of the whole machinery of oppression is not very far. The persistent execution of the policy that has been so gloriously inaugurated by Khoodiram Bose, Kanailal Dutt, and other martyrs will soon cripple the British Government in India. This campaign of separate assassinations is the best conceivable method of paralysing the bureaucracy and of arousing the people. The initial stage of the revolution is marked by the policy of separate assassinations.81 Thus the case against Savarkar was made by treating specific and particular words as evidence of a conspiracy. Savarkar’s role in the actual violence was not the major concern of the colonial state. In any event, revolutionary groups were amateurish and often incompetent, leaving behind many careless clues that led to their eventual capture.82 On occasion, they may have carried their assassination plans to fruition, but most of the time the groups lacked any real training to carry out their schemes, despite their conversations about bomb manuals, terror and pistols. Besides, for every one assassination committed by the revolutionaries, the colonial state upped the ante and showed great efficiency and speed in suppressing a wide variety of activities that in today’s terminology would be called ‘insurgency’. The colonial state altered legislation with great speed, and the intrusive scope of a number of Acts (the Arms Act in 1878, the Sea Customs Act 78 Home Department/Political/Notes, 60-B, 1910 (National Archives, New Delhi), 269. 79 ibid., 271. 80 The (London) Times, ‘The Savarkar case. Text of the judgment’, 14 January 1911.

81 82

ibid. Garnet, op. cit., 157, 159.

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in 1898, the Press Act in 1910) was expanded to shut down or monitor the activities of suspicious young students. The government confiscated student knapsacks, ransacked student belongings upon their return to India from abroad, intercepted letters and monitored all communication in student hostels.83 Given the colonial state’s efficient surveillance, and prompt response to sedition, we have all the more reason to rethink the relationship between sedition and terror. And it is with this as background that it becomes especially important to note that the same sedition law that was given its new colonial form in relation to revolutionaries and terrorists was also used to target the leader of non-violent nationalism in India, the Mahatma himself.

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CONCLUSION Unlike Tilak and Savarkar, Mohandas Gandhi had no fondness for extremist ideology or tactics. Gandhi had successfully led a movement using his technique of non-violent resistance, honed through his work over many years in South Africa. When he embarked on what he called a ‘non-cooperation’ campaign across all of India, that began in 1919 and continued until 1922, he was quite clear that violence was not part of his agenda. As a result, after a violent attack on a police station, Gandhi famously called off the campaign, lamenting that Indians were not ready for the challenge of non-violence. Tried in 1922 on the charge of inciting ‘disaffection’ against the ‘British government by law established’, Gandhi brought the question of sedition and terror full circle. If sedition was the crime of harbouring and attempting to spread ‘disaffection’ against the government, Gandhi readily accepted that maintaining ‘affection’ for the government was the right thing to do. Indeed, he claimed that he had in the past felt a great deal of it for the British Empire and government, as demonstrated by his actions during the Boer War and the Zulu rebellion. But, he argued, he no longer had any affection left for a government that was ceaselessly oppressing the people. Gandhi’s shrewdness shows in his completely literal reading not only of sedition law but the assumptions that underlay it. By 1922, after the Rowlatt bills, the massacre of Jallianwala Bagh and the repression directed at the non-cooperation movement, he had lost all ‘affection’, and was actively encouraging other Indians to follow suit. Unlike Tilak (whom he admired) and Savarkar (whom he did not), Gandhi accepted the rule of law and repeatedly claimed that non-violence was the first and last article of his creed. But the colonial government had lost its conscience and, as a result, no affection could be extended to it. Gandhi took the lion by its whiskers and in the first of four articles that would be cited as seditious, titled ‘Disaffection – a virtue’ (15 June 1921), wrote that ‘I hold it to be the duty of every good man to be disaffected towards the existing Government, if he considers it as non-cooperators consider it evil.’84 In a second article, ‘Tampering with loyalty’ (29 September 1921), he went a step further. ‘[S]edition has become the creed of the Congress,’ he wrote, adding that ‘every non-cooperator is pledged to preach disaffection towards the Government established by law. Non-cooperation, though a religious and strictly moral movement, deliberately aims at the overthrow of the Government and is therefore legally

83

Home Department/Special/71, 1908 (National Archives, New Delhi).

84

Mulk Raj Anand (ed.), The Historic Trial of Mahatma Gandhi (New Delhi, 1987), 15.

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seditious in terms of the Indian Penal Code.’ Gandhi conceded that the government had the right to change its policy when its very existence was under threat, but he also made clear that neither he nor the other non-cooperators were asking for any special dispensation. ‘We ask for no quarter; we expect none from the government. We did not solicit the promise of immunity from prison, so long as we remained non-violent. We may not now complain if we are imprisoned for sedition.’86 Sedition and disaffection were now to be embraced as the creed of non-cooperation. On 18 March 1922, Gandhi was tried in Ahmedabad. The charge was sedition on the basis of four of his articles in Young India. He gave his occupation as weaver and farmer, offered no defence, and in his introductory remarks acknowledged that he had no desire whatsoever to conceal from this court the fact that the preaching of disaffection towards the existing system of government has become almost a passion with me. . . . It is the most painful duty with me, but I have to discharge that duty knowing the responsibility that rests upon my shoulders. . . . I know I was playing with fire. I ran the risk and if I was set free I would still do the same.87 But in his statement, he felt he needed to explain why he had made the move from affection to disaffection, despite his earlier history of raising a volunteer ambulance corps in London to support the war effort. The change came after the Rowlatt Act and Jallianwala Bagh. ‘I came reluctantly to the conclusion,’ he said in court that the British connection had made India more helpless than she ever was before politically and economically . . . the Government established by law in British India is carried on for [the] exploitation of the masses. No sophistry, no jugglery in figures, can explain away the evidence that the skeletons in many villages present to the naked eye . . . the law itself in this country has been used to serve the foreign exploiter. In my opinion the administration of the law is thus prostituted consciously or unconsciously, for the benefit of the exploiter.88 Since the law was corrupt, sedition and disaffection were the only conscionable form of resistance. In typical Gandhian fashion, he did not indict the British indiscriminately and admitted that I am satisfied that many Englishmen and Indian officials honestly believe that they are administering one of the best systems devised in the world and that India is making steady though slow progress. They do not know that a subtle but effective system of terrorism and an organized display of force on the one hand, and the deprivation of all powers of retaliation or self-defence on the other, have emasculated the people and induced in them the habit of simulation.89 85

88

86

89

ibid., 18. ibid., 19. 87 ibid. Introductory remarks by Mahatma Gandhi before reading his statement, 39.

ibid., 45. ibid., 46.

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In other words, the real terrorists in India were the British, whose system of rule and law had lost all legitimacy. Lastly, Gandhi took on the actual charge of sedition. ‘The section 124-A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.’ In the passage most germane to our concern here, he said: Affection cannot be manufactured or regulated by law. If one has no affection for a person or system one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite violence. But the section under which [I am charged] is one under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it, and I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore to be charged under that section. . . . I have no personal ill will against any single administrator, much less can I have any disaffection towards the King’s person. But I hold it to be a virtue to be disaffected towards a Government which, in its totality, has done more harm to India than any previous system. India is less manly under the British rule than she ever was before. Holding such a belief I consider it to be a sin to have affection for the system.90 With these words Gandhi brought sedition and disaffection, both of which, as we have seen, were linked to terror and violence, into a different domain of non-violence and political legitimacy. If Tilak had preached violent rhetoric and Savarkar had engaged in violent sedition, Gandhi turned the tables on all of them, including colonial administrators and all earlier forms of nationalist thought. He used the language of sedition and disaffection to demonstrate that the English had abandoned all claims to rule – indeed, all their claims in India to fair play, justice and freedom. The British could therefore no longer claim the right of affection on the part of the ruled. In so doing, Gandhi redefined the ideas of sedition and terror, while at the same time taking sedition law literally – demonstrating that words were indeed more powerful than the sword. Not only was Gandhi promulgating a method more powerful than that of the extremists before him, he was also conceding the concerns previously held by the British about a figure like Savarkar, that his writing was more dangerous than his gun-running. Perhaps the British were right to treat him as the ultimate terrorist, but in doing so they allowed Gandhi to become a symbol of the illegitimacy of colonial rule in India. In invoking the category of ‘terror’ alongside sedition, there is obviously some relevance to contemporary times and the post-9/11 obsession with terrorism as an isolated and inexplicable activity. But that has not been my main interest in this article. The terror of sedition, captured in the surveillance, is a terror produced and generated through the constitutive condition of colonial occupation. En passant we may also note that the colonial occupiers in the case of India were the very same English who were seen as the champions of free speech and liberty in Europe.

90

ibid.

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Winston Churchill’s judgment that two men – Hitler and Gandhi – had been the most dangerous for the twentieth century becomes, in retrospect, a more powerful indictment of British colonialism than anything Gandhi himself might have said. But because Churchill spoke for the imperial establishment, the British were keen to prevent Gandhi from speaking again. After his 1922 trial, the colonial administration learned that letting Gandhi speak was a major mistake. From this point onwards, they imprisoned him without a trial. His embracing of sedition was not a form of terror they wanted to broadcast. Sedition as both offence and symptom, when examined in a historical arc that moves from Savarkar, the militant nationalist, to Gandhi, the opposite, shows us that it is no accident that sedition law survived, and indeed flourished, in a colonial situation long after it had been abandoned as a relevant legal option for the home country itself.

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