During the pandemic I have written a lot about judges and lawyers who have been denied their rightful seat at the High Table of History. Now is a good time to make a double exception.

So I instead write about a litigant and one who already has a venerated place at the High Table. This litigant coincidentally is credited with having popularized Ganesh Chaturthi as a symbol of patriotic bonding just as Tagore, who admired this litigant to no end, was credited with making the tying of Rakhis by Hindoos and Moslems, an instrument of protest against Curzon’s Partition of Bengal.

This is the story of the trial of this litigant defended by the one of the most celebrated lawyers of the Bombay Bar which, historian Irfan Habib claims, is known by very few people.

While neither the client nor his lawyer need any rehabilitation, perhaps their relationship might. In fact, it from the warmth of their relationship that sprung the Lucknow Pact of 1916 which was the last hope for a united India!

What better way to start than to recall Kanji Dwarkadas, who is cited by the legendary AG Noorani in his book, Jinnah and Tilak: Comrades in the Freedom Struggle:

“The two great political circles in Bombay at that time [c 1916] were Sardar Griha, where Tilak lived and Jinnah’s chambers in the High Court. All political roads led to these two places for organization, consultation and decision”.

Jinnah’s junior, MC Chagla recalls “I might mention here that during my long association with him, I found that Jinnah always showed the greatest respect and regard for Tilak. Two persons in public life for whom Jinnah showed the greatest respect where Gokhale and Tilak.”

‘Lokmanya’ Tilak was a veteran at being pitted against his sovereign for sedition. He faced the Queen Empress for the first in 1897 in Queen Empress v. Bal Gangadhar Tilak (ILR [XXII] Bom 112) when he was 42 years old. He had written articles in his publication Kesari which the British found objectionable. Tilak was found guilty and sentenced to 18 months in prison. The Full Bench of the High Court refused to interfere quibbling on what the term “disaffection” meant. The famous Kanga was part of Tilak’s legal team.

The story, however, did not end for our famous litigant as Tilak was not one to rest easy. He would go on to make more speeches and publish his writings unnerving the colonial masters. He would again return to the dock for Emperor v. Tilak [ (1908) 10BOMLR 848] in 1909, and this time he was tried by a special jury in the High Court itself presided by the Parsi judge Justice Davar at the Third Criminal Sessions of the Bombay High Court. Tilak was defended by Calcutta Barristers LP Evans Pugh and Garth, though at some stage, even Jinnah was associated with the proceedings. After 8 days of trial from July 13 to 22, 1908, Davar packed off the jurors with controversial instructions. For instance, referring to Tilak’s article which referred to terrorism in Bengal with alleged admiration, Davar’s jury instruction was:

“If one talks of patriotism in connection with bombs, bombs that effect murders, you are the judges of the question whether such a discussion tends or does not tend to bring Government established by law in India into hatred or contempt in the minds of the readers.”

The jury retired to deliberate for a couple of hours and the big court room was silent. ‘The dim gas-light in the hall only added to the effect of the dead silence on the part of the spectators who were looking from the Judge to Mr Tilak and from Mr Tilak to the judge.’

Justice Davar sent message to the foreman, and by 7 PM, he knew what he had to do. However, he waited till the Court could be beefed up. His was right to be concerned, as within hours of the news of the jury deliberations leaking out, thousands had gathered at the Court Complex. The torrential Bombay Monsoons only worsened it for all.

The jurors were called in at ten at night and the foreman informed that being deadlocked at 7 to 2, they were unable to arrive at a unanimous verdict. The judge, without hesitation, hastily sentenced Tilak to 6 years imprisonment, ruling:

“Your hatred of the ruling class has not disappeared during these ten years and these articles deliberately and defiantly written week after week…”.

He termed even this as “misplaced leniency”, as he reminded in his judgment that he could have well packed off Tilak to the Andaman Cellular Jail on transportation for life!

As Davar made his ruling, the gathered crowd which witnessed Tilak being whisked away, erupted in furore. Chaos reigned and the mounted police was galloping in every direction to disperse the crowd.

MC Chagla, who was a Dadar school boy when Tilak was sentenced and riots broke out in Parel, recalls that close at the heels of Justice Davar sentencing Tilak to six years imprisonment, he was rewarded with a Knighthood and the Bombay High Court Bar Association wanted to host a dinner in his honour. When the circular came to Jinnah’s chamber, the future Father of Pakistan wrote a scathing note to the effect that the Bar should be ashamed to want to give a dinner to a judge who had obtained a knighthood by doing what the Government wanted and by sending a great patriot to jail.

News travels fast, and the furious judge summoned the lawyer to his chambers.

“How do you think I have treated you in my court Mr Jinnah?”

“Very well Sir.”

“Why did you write a note like this against me?”

Jinnah answered that he had so written because he thought that it was the truth and however well Davar may have treated him, he could not suppress his strong feeling about the manner in which he had tried Tilak’s case.

Tilak was not done being in the dock. On July 22, 1916, J A Guider, the deputy inspector-general of police, moved the District Magistrate of Poona charging history-sheeter Tilak with “orally disseminating” seditious content in three speeches. One delivered at Belgaum on May 1, 1916 and the other two at Ahmednagar on May 31 and June 1 of the same year.

Tilak had to face his third sedition trial, and this time he reached out to his friend Jinnah.This is the story of that third trial. Jinnah, by now, was recognized as one of India’s top political leaders.

The case of the prosecution was that in the Marathi speeches, Tilak had committed sedition. In his excitement, the English prosecutor Bimming admitted that the most damning part of Tilak’s speech was that he had claimed that there was more peace in the time of the Peshwas than under the British Imperial Government.

Jinnah sneakily interrupted and asked “Do you have personal knowledge to disprove this assertion?” The prosecutor snapped back “I have read my history”.

Jinnah had got his English opponent precisely where he wanted him and calmly replied in the presence of the anxious Magistrate C W Hatch,

“Yes, you have read the history written by the British”.

As the trial proceeded, the prosecutor felt Jinnah’s heat. In fact, he candidly admitted to the judge that he was hesitant to offer the translator as a witness as he was afraid Jinnah would demolish him in his cross examination!

Noorani claims that Tilak wanted to fight the case with a “political spin” which was shot down by Jinnah, who would, in coming years, be found cold and emotionless by India’s most glamourous Viceregal couple. Jinnah was adamant that the case should only be tried on legal technicalities.

Jinnah’s central argument was that Tilak’s intent had been lost in translation and that all his speeches, he advocated pacific and lawful means to bring about change in government policies.

Hamdani, in his latest biography of Jinnah, writes:

“Jinnah then asked the crucial question, what is a government established by law? “Take the army. Is it sedition to attack it? “

Magistrate Hatch remained unconvinced. He ruled:

“Mr Jinnah’s contention that it is not the government that Mr Tilak is attacking but only the Civil Service will be discarded at once by anyone who reads the speeches through.”

He sentenced Tilak to a good behavour bond of Rupees Twenty Thousand.

Jinnah would have none of it. He had a criminal revision application filed in the High Court wherein he complained that the nuances of and exceptions to Section 124A of the Penal Code had escaped the Magistrate’s attention. He insisted that Tilak’s intention was not to cause disaffection, but was a genuine criticism and the translations made were not verbatim and hence inadmissible.

Jinnah again pressed his point that the Civil Service was not the same as the “Government” and the “Government” was the “King in Parliament”. He even cited Halsbury’s Laws of England to make his point that there could be no sedition without intention.

The Division Bench of Batchelor and Shah JJ in their decision on November 9, 1916 in Emperor v Bal Gangadhar Tilak, ruled that disaffection was not simply the absence of affection. However, the Court would not buy Jinnah’s arguments that expressing loyalty to the Crown was sufficient to ward off a sedition charge or that attacking civil servants was not the same as attacking the Crown. However, in a shot in the arm for Tilak, it held that advocating Swarajya was not synonymous with creating disaffection.

Both the European and Indian justices had issued concurring opinions and Jinnah’s revision stood allowed, making him the Congress’ most sought after leader! Whether the growing colonial realization that the colony’s demand for some measure of self-rule could not longer be put-off, influenced the Court will never be known. However, what we know is that Justice Shah, in his concurring opinion, went out of his way to pin the Advocate General to his concession that the Imperial Government had no objection to the general theme of Tilak’s three speeches - Swarajya or self-rule!

The story of Jinnah’s victorious defence of Tilak has been conveniently white-washed by the two nations which were born from their efforts.

It was that Dadar School boy, MC Chagla, who would, as Chief Justice of the same Court that convicted the litigant, inaugurate on July 15, 1956, the tablet outside the courtroom where Tilak was tried, long after both litigant and lawyer were no more.

Chagla confessed to the gathering:

“Justice according to law becomes a rather empty and futile expression when you are dealing with much greater and a more exalted force like freedom or patriotism and the love of one’s country. Therefore, without imputing motives to the judges who did their duty according to their light in convicting and sentencing Tilak, it was equally the duty of judges functioning in a free country to make it clear that what constituted a crime in British times had become a positive contribution to the freedom and progress of the country”.

The tablet he inaugurated immortalized the litigant’s last words at his second trial:

The author is a Delhi-based lawyer.