Savarkar, Habeas Corpus and Permanent Court of Arbitration: A historical narrative

In 1909, AMT Jackson, the Collector of Nashik, was invited by the locals to attend a drama organized by them as their gratitude for his services. This drama was the famous Maratha play called Sangeet Sharada, which was highly instrumental in inspiring the passage of the Child Marriage Restraint Act (so much so that the CMR Act was also called Sharda Act).

The day the drama was organized, Jackson was shot dead by three Indian revolutionaries. The investigation started and the link for sponsoring the guns was connected to an Indian-born law intern at Gray’s Inn. The reason for assassinating Jackson was his earlier role in arresting another nationalist, Ganesh Damodar Savarkar (for charges under Section 121-A, IPC).

The supplier of guns, now wanted by Scotland Yard, was Vinayak Damodar Savarkar. But on the journey of extradition, VD Savarkar jumped ship and landed on French Soil. Before British officers could get hold of him, a French officer caught him. The French officer in cooperation with the British police returned Savarkar. When the French government came to know about it, they demanded Savarkar's restitution. The British government refused. Thus began the Savarkar Case (Great Britain, France) at the Permanent Court of Arbitration in 1911.

Savarkar had left India in 1906 to study law at the University of London under a “Shivaji Fellowship”. Interestingly, Savarkar was recommended for scholarship by Bal Gangadhar Tilak himself. Before leaving for England, Savarkar founded the Abhinava Bharat Secret Society, which would later play an essential role in the assassination of Jackson. In England, Savarkar established a branch of Abhinav, started translating Giuseppe Mazzini’s writing, and came in close contact with Har Dayal Singh and Bhikaiji Cama. Coincidentally, his most important contacts previously moved to Paris either for personal reasons or to escape Scotland Yard after the assassination of William Curzon Wyllie by Madan Lal Dhingra in 1909.

Savarkar was on the Britishers' list since his days in India. The assassination in Nasik brought the spotlight on him again. As a preventive measure, he was called on to stay in Paris but his days there were not long. As the Nasik Trial progressed in Bombay, the London Branch of the Society called back for Savarkar. The Nasik trial’s verdict had already instructed Savarkar’s deportation.

On his return from Paris, before he could even touch the platform of Paddington, Savarkar was arrested by Scotland Yard detectives.

The local Magistrate at Bow Street Police Court remanded Savarkar to Brixton Jail under the Fugitive Offenders Act, 1881. Section 10 of the Act empowered the superior court to discharge any fugitive absolutely or on bail considering the distance, facilities for communication, and other circumstances, be unjust or oppressive or too severe a punishment. Savarkar approached the King’s Bench Divisional Court for writ of Habeas Corpus because the rules of evidence in India were substantially different and oppressive, and extradition would be unfair. Interestingly, the government was represented by Rufus Daniel Isaacs (later Viceroy of India in 1921) and Sir Sidney Rowlatt. The English law practice followed the system of “rule nisi” under which if the court found prima facie ground for granting the writ, it will pass an “order nisi” show causing the authority to explain why it shall not issue a writ. The Court finally passed an order nisi only on Habeas Corpus (and not S. 10 relief). Later, considering the merit of accusation against Savarkar, the court discharged the nisi order and refused to make it absolute.

The same was appealed on the grounds that the superior court shall exercise its original jurisdiction under S. 10, and the previous nisi order will not act as res judicata because it was limited to Habeas Corpus. The state argued that S. 47 of the 1881 Act barred any appeal from the Divisional Court’s decision unless some error of law was apparent on the record. Without going much into details (considering the decision is a study in itself), the three-judge bench in The King v. Governor of His Majesty's Prison, Brixton. Ex Parte Savarkar on June 16, 1910, held that the order of the Divisional Court was in the nature of criminal cause, and the present appeal was barred by S. 47. A leave to file an original petition was allowed but again in Application under the Fugitive Offenders Act, 1881—Ex-party Vinayak Damodar Savarkar, the application to conduct a trial in England was dismissed considering the proximity of the case to India. Thus, began extradition proceedings.

Savarkar was carried through steamship Morea on July 6, 1910. Due to circumstances unknown, after a couple of days, a halt was made at Marseilles. Savarkar took a chance and escaped through the port-hole onto French soil. What followed makes for a dramatic story.

Savarkar was hoping to get in touch with his contacts in France. In a chase with British officials, he was confronted by one French police officer, Pesquié. As per the Le Petit Provençal report of July 17, 1910, the British officers shouted “Stop thief” while chasing him, causing local attention and assistance to catch Savarkar. Savarkar pleaded to be presented before a magistrate, but the French officer gave into the authority of British officials and handed Savarkar back. By the time Savarkar was deported to India, the case gained traction among the international press and Indian revolutionaries. They decided to raise questions to the French government on its sovereignty.

French newspapers such as Matin, Journal des debats, Liberté, Patrie and the Libre Parole called the incident a violation of French sovereignty. The French government was continuously targeted with headings such as “Humiliating Passivity of the French Government” and “negation of French character.” Similarly, though a few English newspapers such as The Time defended Savarkar’s arrest as merely “socialist agitation,” questions were raised by other liberal newspapers such as The Daily News and the Labour MPs of the incumbent Liberal Party in the House. Even NGOs like Ligue des droits de l'homme (International League for Human Rights) made representations to the French foreign office calling the incident a “violation of a basic principle of international law.”

Taking cognizance of the affair, the French government objected to the British government for the restitution of Savarkar. The negotiations started in July 1910 itself, but it was not before October 25, 1910 that a written agreement was finally signed between the two countries referring the matter to arbitration.

The Indian nationalists living in Paris engaged Jean Laurent Frederick Longuet, the French politician, journalist, lawyer and the grandson of Karl Marx (on his daughter's side). Longuet was a fine choice considering his inclination towards French nationalism with a pro-asylum/refugee stance. Interestingly, Longuet had earlier written articles in L'Humanité calling Savarkar’s arrest a case of “a double irregularity, a double illegality.” Bikaji Cama arranged a power of attorney (PoA) to facilitate the representation. However, the tribunal did not entertain such personal representation in a bilateral arbitration. Though Longuet was able to hand over the copies of his submission, neither his name nor his arguments found any mention in the final award, thus rendering such representation ineffective.

Meanwhile in India, then Secretary of State for India John Morley sent a telegram on August 31, 1910 stating no further suspension of the trial was required “as French Government will be told that proceedings....cannot be stopped but that, if required, we shall still be able to restore him...” Thus, Savarkar’s trial finally began on September 11, 1910.

Savarkar refused to cooperate in the trial on the ground that his arrest was illegal. He was represented by the lawyer and statesman Joseph Baptista, who was also one of the witness signatures to the PoA given on behalf of Savarkar. The preliminary challenge pertaining to the power to conduct the trial when the arrest at Marseilles was illegal, was committed to the Bombay High Court. The Court in a three-judge bench decision on October 06, 1910 held that the circumstances of the arrest in France were irrelevant, and that as long as the accused was charged before a Magistrate for a crime committed within India, the procedural propriety of arrest in some other country cannot impede trial.

The arbitration compromis put two issues before a five member tribunal: legality of arrest and restitution. Further, any other issue was to be decided under the Convention for the Pacific Settlement of International Disputes, 1907.

At that time, the PCA was not frequently resorted for arbitration. It was established only in 1899 as the first permanent intergovernmental organization for peaceful settlement of disputes. The year Savarkar’s case was initiated, only two other cases were earlier decided: the Newfoundland fisheries case and the Orinoco Steamship Company case. But this shall not come as a surprise considering even certain permanent courts like the Supreme Court of USA, though established in 1789, did not have their first case till November 1790!

The line of argument from the French side was that the Britishers could not have, firstly, brought a political prisoner on French territory without permission and secondly, as soon the concerned ship entered the French waters, British jurisdiction was over.

The British government in response argued that the incident cannot fall into the technical meaning of transit of a criminal on foreign land, as what happened was momentary and by accident.

The award written by President Beernaert on February 24, 1911 decided that Savarkar’s custody could not be restored. The tribunal relied on the British submission that they had already sent a letter informing the French authorities about a possible halt and the cooperation requirement from the local police considering Indian nationalists were living in France. Further, there was a letter written by the Director of General Security, France to British Police informing that he had already given orders to the local police for assistance till the ship was docked. The tribunal concluded that such exchange of information confirmed that the French constable acted on the pre-instructions. Further, the British officers must have also acted on the presumption that the French officers were assisting them. The involvement of British officers in taking Savarkar back from French territory was merely contributory with good faith, and it was the French constable who mainly led the arrest.

Lastly, the Tribunal concluded that though there may be irregularity in arrest because of the circumstances, there was nothing in international law that obliges the government to restore custody because of a “mistake committed by the foreign agent.”

In the meantime, Savarkar had been found guilty in the Nasik Conspiracy Case by a Special Tribunal of the Bombay High Court headed by CJ Basil Scott (who later became member of Rowlatt Committee), Sir Narayan Chandavarkar (former leader of Prarthana Samaj) and Justice JJ Heaton. Through the judgment delivered on December 24, 1910, Savarkar was punished with transportation for life. With the decision of the arbitral tribunal on February 24, 1911, Savarkar was finally transported to Cellular Jail, Andaman, and the entire saga came to an end.

The chain of events in the Savarkar case highlights how historically different people and concepts surprisingly interacted with each other. Much more could be written about the incident, especially the Nasik Conspiracy Trial, but that will require a study of its own. This piece is a narration of the chain of events that are otherwise scattered. As Alan Bennett, the famous English playwright in his play The History Boys writes,

“The best moments in reading are when you come across something – a thought, a feeling, a way of looking at things – that you’d thought are special.....”

The author is an LL.M. candidate at National Law University, Delhi.