TRAIL OF BAL GANGADHAR TILAK LEGAL LANGUAGE SEM II

TRAIL OF BAL GANGADHAR TILAK

Bal Gangadhar Tilak,  (born July 23, 1856, Ratnagiri [India]—died                      Aug.  1, 1920, Bombay [now Mumbai], India), scholar, mathematician, philosopher, and militant nationalist who helped lay the foundation for India’s independence. He founded (1914) and served as president of the Indian Home Rule League. In 1916 he concluded the Lucknow Pact with Mohammed Ali Jinnah, which provided for Hindu-Muslim unity in the struggle for independence.

Tilak was born into a cultured, middle-class, Brahman family. After earning his university degree, Tilak studied law but then decided to teach mathematics in a private school in Poona (now Pune). The school became the basis for his political career. He developed the school into a university college after founding the Deccan Education Society (1884), which aimed at educating the masses, especially in the English language. He then turned to the task of awakening the political consciousness of the people through two weekly newspapers: Kesari (“The Lion”), published in Marathi, and The Mahratta, published in English. Through these newspapers Tilak became widely known for his bitter criticisms of British rule and also of those moderate nationalists who advocated social reforms along Western lines and political reforms along constitutional lines. He thought that social reform would only divert energy away from the political struggle for independence.

Tilak sought to widen the popularity of the nationalist movement (which at that time was largely confined to the upper classes) by introducing Hindu religious symbolism and by invoking popular traditions of the Maratha struggle against Muslim rule. He thus organized two important festivals, Ganesh and Shivaji, in 1893 and 1895, respectively. Ganesha is the elephant-headed god worshipped by all Hindus. Shivaji, the first Hindu hero to fight against Muslim power in India, was the founder of the Maratha state, which in the course of time overthrew Muslim power in India. But, though this symbolism made the nationalist movement more popular, it also made it more communal and thus alarmed the Muslims.

Tilak’s activities soon brought him into conflict with the British government, which prosecuted him for sedition and sent him to jail in 1897. The trial and sentence earned him the title Lokamanya (“Beloved Leader of the People”). When Lord Curzon, viceroy of India, partitioned Bengal in 1905, Tilak strongly supported the Bengali demand for the annulment of the partition and advocated a boycott of British goods, which soon became a movement that swept the nation. The following year he set forth a program of passive resistance, known as the Tenets of the New Party, that he hoped would destroy the hypnotic influence of British rule and prepare the people for sacrifice in order to gain independence. These forms of political action initiated by Tilak—the boycotting of goods and passive resistance—were later adopted by Mohandas K. Gandhi in his program of nonviolent noncooperation with the British.

Tilak’s approach was strong fare for the moderate party in the Indian National Congress, which believed in making “loyal” representations to the government for small reforms. Tilak aimed at Swarajya (Independence), not piecemeal reforms, and attempted to persuade the Congress to adopt his militant program. On this issue, he clashed with the moderates at the Surat session of the Congress in 1907. Taking advantage of the split in the nationalist forces, the government again prosecuted Tilak on a charge of sedition and inciting terrorism and deported him to Mandalay, Burma (Myanmar), to serve a sentence of six years’ imprisonment. In the Mandalay jail, Tilak settled down to write his magnum opus, the Śrīmad Bhagavadgitā Rahasya (“Secret of the Bhagavadgita”), an original exposition of the most sacred book of the Hindus. Tilak discarded the orthodox interpretation that the Bhagavadgita taught the ideal of renunciation; in his view it taught selfless service to humanity.

On his release in 1914, on the eve of World War I, he once more plunged into politics and launched the Home Rule League with the rousing slogan “Swarajya is my birthright and I will have it.” In 1916 he rejoined the Congress and signed the historic Lucknow Pact, a Hindu-Muslim accord, with Mohammed Ali Jinnah, the future founder of Pakistan. Tilak visited England in 1918 as president of the Indian Home Rule League. He realized that the Labour Party was a growing force in British politics, and he established firm relationships with its leaders. His foresight was justified: it was a Labour government that granted independence to India in 1947. Tilak was one of the first to maintain that Indians should cease to cooperate with foreign rule, but he always denied that he had ever encouraged the use of violence.

By the time Tilak returned home in 1919 to attend the meeting of the Congress at Amritsar, he had mellowed sufficiently to oppose Gandhi’s policy of boycotting the elections to the legislative councils established as part of the Montagu-Chelmsford reforms. Instead, Tilak advised the delegates to follow his policy of “responsive cooperation” in carrying out the reforms, which introduced a certain degree of Indian participation in regional government. But he died before he could give the new reforms a decisive direction. In tributes, Mahatma Gandhi called him “the Maker of Modern India,” and Jawaharlal Nehru, independent India’s first prime minister, described him as “the Father of the Indian Revolution.”

Mahatma Gandhi called him the "Maker of Modern India." Bal Gangadhar Tilak was a mathematician and philosopher, but he is best remembered as the man who built his own defiance of British rule into a national movement that eventually gained independence for India.

TRIAL OF MAHATMA GANDHI LEGAL LANGUAGE SEM II

TRIAL OF  MAHATMA GANDHI-1922

    The account of this trial is in substance taken from an admirable summary of it given by Sir Thomas Strangman in his book "Indian Courts and Characters".

    In March 1922, Gandhi was tried before Mr. Broomfield, I.C.S., District & Sessions Judge of Ahmedabad, for sedition in respect of two articles, which he had written in his paper "Young India".  Before that, there was acute unrest and hostility to government, mainly due to the doctrines preached by Gandhi, and his campaign of non-cooperation and civil disobedience.  This had resulted in some acts of violence and bloodshed.  The most recent were attacks on peaceful citizens involving much bloodshed and destruction of property by an infuriated mob in Bombay on the occasion of the visit of the Prince of Wales in 1921.  Another was the inhuman burning alive of a number of policemen by a maddened mob at Chauri Chaura near Agra.  Of course, Gandhi deplored and denounced these acts of violence; and even suspended the campaign for some time, himself going on fast by way of penance.

    The situation was further embittered by the discontent of Mussalmans over the treatment of Turkey by the Allies after the termination of the War.  The Indian Mussalmans looked upon the Sultan of Turkey as their Khaliph, and deeply resented any indignity shown to him by the European powers, including England.  The Muslim masses in India were incited and inflamed by the Ali Brothers who had started the Khilafat agitation.  Gandhi joined hands with the Ali Brothers in their opposition to British rule in India.  According to Strangman, "The Ali Brothers were at one with Gandhi in one particular only; and that was that they desired a cessation of British rule."   The Hindu-Muslim unity at this juncture was artificial and ephemeral based on no common grievance.  Hindus had little to do with Muslim sentiment over the humiliation of Turkey; and the Muslim masses never wholeheartedly shared the Hindu nationalism; and ultimately by insisting on Partition betrayed the national cause so far as the unity of the country was concerned.  Neither the Hindu nor the Muslim could forget past history; for history, although it may be perverted partially, cannot be altogether obliterated.  "They did not share his fantastic dreams either as to the means by which that end should be attained, or the results which should ensue.  The iniquity of the Turkish Treaty was one of their main planks-a matter in which the Hindu was not even remotely interested".  "Naturally enough," observes Strangman in  'Indian Courts And Characters', "after a time the divergence of views as to the method of attack became apparent.  To teach the militant Mohammedan to adopt the principles of non-violent non-cooperation, is to teach the lion to display the playful tricks of the lamb.  The Brothers gave utterances to incitements to violence for which, at Gandhi's instance, they published an apology, as a result of which the Government refrained from prosecuting them; but it was only for a short duration.  The Brothers had subsequently to be prosecuted and convicted."

    On 29th September 1922, Gandhi published under his own name an article in his paper "Young India".  Among the most serious features of the seditious incitements of the Ali Brothers was their attempt to tamper with the loyalty of the Indian troops.  Gandhi wrote in his article that "he was not prepared for the revelation of such hopeless ignorance on the part of the Governor of Bombay.  It is evident that he has not followed the course of Indian history during the past twelve months.  He evidently does not know that the National Congress began to tamper with the loyalty of the sepoy in September last year; that the Central Khilafat Committee began it earlier, and that he himself began it earlier still."  "I have no hesitation in saying," Gandhi proceeded, "that it is sinful for anyone, either soldiers or civilian, to serve this Government which has proved treacherous to the Mussalmans of India, and which has been guilty of the inhumanities of the Panjab.  I have said this from many a platform in the presence of sepoys".  "I shall not hesitate (when the time is ripe), at the peril of being shot, to ask the Indian sepoy individually to leave his service and become a weaver.   For, has not the sepoy been used to hold India under subjection, has he not been used to murder innocent people at Jalianwala Bagh, has he not been used to drive away innocent men, women, and children during that dreadful night at Chandpur, has he not been used to subjugate the proud Arab of Mesopotamia, has he not been utilised to crush the Egyptian?  How can any Indian having a spark of humanity in him, and any Mussalman having any pride in his religion, feel otherwise than as the Ali Brothers have done?  The sepoy has been used more often as a hired assassin than as a soldier defending the liberty or the honour of the weak and the helpless."

    Gandhi wrote and published another article in his paper in which he answered Lord Reading, the Viceroy, who had, in a public speech, said that he felt perplexed and puzzled by the activities of a section of the Indian community.  Lord Reading had stated: "I ask myself what purpose is served by flagrant breaches of the law for the purpose of challenging the Government and in order to compel arrest?"  Gandhi's answer was: "We seek arrest because the so-called freedom is slavery.  We are challenging the might of this Government because we consider its activity to be wholly evil.  We want to overthrow the Government. We want to compel its submission to the people's will.  We desire to show that the Government exists to serve the people, not the people the Government.  "In a third article, he wrote: "No empire intoxicated with the red wine of power and plunder of weaker races has yet lived long in this world, and this 'British Empire " which is based upon organised exploitation of physically weaker races of the earth, and upon a continuous exhibition of brute force, cannot live, if there is a just God ruling the universe." .

    It must be admitted that in comparison with this stark and strident sedition, the veiled sedition preached by Tilak for which he was prosecuted in 1908, pales into insignificance.  This was an open and avowed challenge to Government and an attempt to inflame the masses of the Indian people including the sepoys, to throw off their allegiance, and destroy the government.  It was impossible for any government to ignore this sort of sedition, proceeding from a man of such power and influence as Gandhi had by that time acquired over the masses of India.  Gandhi was prosecuted and committed for trial before the Sessions Judge of Ahmedabad where the paper was published.  Strangman as Advocate-General of Bombay proceeded to Ahmedabad to prosecute.  Gandhi defended himself.  Obviously there was no defence.  There was little to do for Strangman and the court; for, Gandhi admitted all the charges and more than the charges.  He and his co-accused Shankarlal Banker, the printer of "Young India ", both pleaded guilty.  The Advocate-General suggested that, in view of the seriousness of the charges and the desirability that they should be fully investigated, the court should proceed with the trial.  The judge, however, decided to accept the plea of guilty; adding, that he would hear counsel on the question of sentences.  Strangman stressed the fact that the articles were not isolated instances, but formed part of a regular campaign to spread disaffection, openly and systematically, to render Government impossible and so to overthrow it.  Further, that the author was a man of high intellectual power and a recognized leader; that  "Young India" was a paper enjoying a wide circulation.  Lastly, that a campaign of this nature must, if unchecked, necessarily lead to happenings such as had taken place in Bombay and Chauri Chaura rioting, murder and destruction of property, involving numerous persons in misery and misfortune.  "Of what value is it ? he pleaded,  "to insist upon non-violence, if at the same time, you preached disaffection to the Government, holding it up as sinful and treacherous, and openly and deliberately sought and instigated others to overthrow it. "Gandhi had prepared a lengthy written statement; but before reading it, he dealt orally with what the Advocate-General had said: "I would like to state that I entirely endorse the learned Advocate-General's remarks in connection with my humble self.  I think that he was entirely fair to me in all the statements that he has made, because it is very true . . .that to preach disaffection towards the existing system of Government has become almost a passion with me.  The Advocate-General is also entirely right when he said that my preaching of this disaffection did not commence with my connection with "Young India" but much earlier. . . . It commenced much earlier than the period stated by the Advocate-General.  I wish to endorse all the blame that the Advocate-General has thrown on my shoulders in connection with the Bombay occurrences, Madras occurrences, and the Chauri Chaura occurrences.  Thinking over these things deeply. . . I have come to the conclusion that it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay.  The Advocate-General is quite right when he says that as a man of responsibility, a man having received a fair share of education and experience of this world, I should know the consequences of my acts.  I knew them.  I knew that I was playing with fire.  I ran the risk; and if I am set free, I would still do the same.   I wanted to avoid violence.  Non-violence is the first article of my faith.  It is the last article of my faith.  But I had to make my choice.  I had either to submit to a system which I considered has done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips.  I know that my people have sometimes gone mad.  I am deeply sorry for it; and I am, therefore, here to submit not to a light penalty but to the highest penalty.  The only course open to you, Mr. Judge, is, as I am just going to say in my statement, either to resign your post or inflict on me the severest penalty."

    The judge then proceeded to pronounce sentence.  He said: "Mr. Gandhi, you have made my task easy in one way by pleading guilty to the charge.  Nevertheless, what remains, namely the determination of a just sentence, is perhaps as difficult a proposition as a Judge in this country could have to face.  The law is no respecter of persons.  Nevertheless, it would be impossible to ignore the fact that you are in a different category from any person I have ever tried or am likely ever to try.  It would be impossible to ignore the fact that in the eyes of millions of your countrymen you are a great patriot and a great leader; even all those who differ from you in politics look up to you as a man of high ideals and of noble and even saintly life.  I have to deal with you in one character only.  It is not my duty, and I do not presume to judge or criticise you in any other character.  It is my duty to judge you as a man subject to the law, who has by his own admission broken the law, and committed what to an ordinary man must appear to be a grave offence against such law.  I do not forget that you have consistently preached against violence, or that you have on many occasions, as I am willing to believe, done much to prevent violence.

    "But having regard to the nature of your political teaching and the nature of many of those to whom it was addressed, how you can have continued to believe that violence and anarchy would not be the inevitable consequence, it passes my capacity to understand.  There are probably few people in India who do not sincerely regret that you should have made it impossible for any Government to leave you at liberty.  But it is so, I am trying to balance what is due to you against what appears to me to be necessary in the interest of the public; and I propose, in passing sentence, to follow the precedent of the case, in many respects similar to this case, that was decided some twelve years ago, the case of Mr. Bal Gangadhar Tilak, under the same section.  The sentence that was passed upon him as it finally stood, was a sentence of simple imprisonment for six years.  You will not consider it unreasonable, I think, that you should be classed with Mr. Tilak; and that is the sentence two years' simple imprisonment on each count of the charge, six years in all, which I feel it my duty to pass upon you. "The Judge added, "if the course of events in India should make it possible for Government  to reduce the period and release you, nobody would be better pleased than I".
         The Judge then rose.  Gandhi bade goodbye to his friends.  Many of them wept but he remained calm and smiling.
     Strangman adds: "So ended the trial.  I confess that I myself was not wholly unaffected by the atmosphere."
     This trial is remarkable not only for the personality of the principal accused, but for the calm dignity and utter absence of any acrimony, conflict or denunciation on the part of either the accused, the judge or the prosecuting counsel.  In spite of the intense excitement prevailing in the public, there were no untoward incidents marring the proceedings, no note of jubilation or indignation but only of subdued sadness on all sides.  There was not much of a trial; but so far as it went, it was absolutely fair.  The address of the Advocate-General, although he had to deal with a case of flagrant sedition, was marked by exemplary fairness and restraint.  It is almost the only political trial in the history of Indian unrest which reflects credit on all parties concerned.  It stands out in clear and wholesome contrast to the previous trial referred to by the judge.  This kind of calmness, fairness, restraint and moderation, is all the more remarkable when we consider the nature of the sedition which provoked the prosecution, the personality of the accused, and the prevailing political atmosphere.
 

    From the standpoint of the Government, the situation was peculiarly difficult and dangerous.  Not only the Hindus under the inspiration of the Mahatma, but the Mussalman masses incited by the Ali Brothers, were in a turmoil of excitement and agitation.  Counsel for the Government would have been justified, in such an atmosphere and such a case, to indulge in strong denunciation of the sedition charged and admitted.  The trial is memorable not so much for its political importance, as for the appositeness, and the felicity and fairness of the speeches of the three principal actors in the drama.

    Great credit is due to the two Englishmen who, in the face of what, from their standpoint, was a wanton, vehement, virulent and venomous denunciation of their Imperial history, and a gross perversion (as they believed) of the benevolent role of British rule in India, maintained a fair and calm attitude throughout.  The address of the judge to Gandhi while passing sentence stands out in notable contrast to the ill advised and utterly uncalled for remarks of his predecessor in the Tilak trial in 1909.  All the three speeches on the occasion of this trial of Gandhi, viz., of the Advocate-General, the judge, and of Gandhi himself, are models of moderation, mutual respect, and felicity of expression.

FAMOUS SPEECH OF MAHATMA GANDHI

Sir J. T. Strangman, Advocate-General, with Rao Bahadur Girdharlal Uttamram, Public Prosecutor of Ahmedabad, appeared for the Crown. Mr. A. C. Wild, Remembrancer of Legal Affairs, was also present. Mahatma Gandhi and Shri Shankarlal Banker were undefended.
Among the members of the public who were present on the occasion were : Kasturba Gandhi, Sarojini Naidu, Pandit M. M. Malaviya, Shri N. C. Kelkar, Smt. J. B. Petit, and Smt. Anasuyaben Sarabhai.
The Judge, who took his seat at 12 noon, said that there was slight mistake in the charges were then read out by the Registrar. These charges were of “bringing or attempting to excite disaffection towards His Majesty’s Government established by law in British India, and thereby committing offences punishable under Section 124 A of the Indian Penal Code,” the offences being in three articles published in Young India of September 29 and December 15 of 1921, and February 23 of 1922. The offending articles were then read out : first of them was, “Tampering with Loyalty”; and second, “The Puzzle and its Solution”, and the last was “Shaking the Manes”.
The Judge said that the law required that the charges should not be read out but explained. In this case it would not be necessary for him to say much by way of explanation. The charge in each case was that of bringing or attempting to excite into hatred or contempt or exciting or attempting to excite disaffection towards His Majesty’s Government, established by law in British India. Both the accused were charged with the three offences under Section 124 A, contained in the articles read out, written by Mahatma Gandhi and printed by Shri Banker.
The charges having been read out, the Judge called upon the accused to plead to the charges. He asked Gandhiji whether he pleaded guilty or claimed to be tried.
Gandhiji said : “I plead guilty to all the charges. I observe that the King’s name has been omitted from the charge, and it has been properly omitted.”]
The Judge asked Shri banker the same question and he too readily pleaded guilty.
The Judge wished to give his verdict immediately after Gandhiji had pleaded guilty, but Sir Strangman insisted that the procedure should be carried out in full. The Advocate-General requested the Judge to take into account “the occurrences in Bombay, Malabar and Chauri Chaura, leading to rioting and murder”. He admitted, indeed, that “in these articles you find that non-violence is insisted upon as an item of the campaign and of the creed,” but the added “of what value is it to insist on non-violence, if incessantly you preach disaffection towards the Government and hold it up as a treacherous Government, and if you openly and deliberately seek to instigate others to overthrow it?” These were the circumstances which he asked the Judge to take into account in passing sentence on the accused.
As regards Shri Banker, the second accused, the offence was lesser. He did the publication but did not write. Sir Strangman’s instructions were that Shri Banker was a man of means and he requested the court to impose a substantial fine in addition to such term of imprisonment as might be inflicted upon.
Court : Mr. Gandhi, do you wish to make any statement on the question of sentence?
Gandhiji : I would like to make a statement.
Court : Could you give me in writing to put it on record?
Gandhiji : I shall give it as soon as I finish it.
[Gandhiji then made the following oral statement followed by a written statement that he read.]
Before I read this statement I would like to state that I entirely endorse the learned Advocate-General’s remarks in connection with my humble self. I think that he has made, because it is very true and I have no desire whatsoever to conceal from this court the fact that to preach disaffection towards the existing system of Government has become almost a passion with me, and the Advocate-General is entirely in the right when he says that my preaching of disaffection did not commence with my connection with Young India but that it commenced much earlier, and in the statement that I am about to read, it will be my painful duty to admit before this court that it commenced much earlier than the period stated by the Advocate-General. It is a painful duty with me but I have to discharge that duty knowing the responsibility that rests upon my shoulders, and I wish to endorse all the blame that the learned Advocate-General has thrown on my shoulders in connection with the Bombay occurrences, Madras occurrences and the Chauri Chuara occurrences. Thinking over these things deeply and sleeping over them night after night, it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay. He is quite right when he says, that as a man of responsibility, a man having received a fair share of education, having had a fair share of experience of this world, I should have known the consequences of every one of my acts. I know them. I knew that I was playing with fire. I ran the risk and if I was set free I would still do the same. I have felt it this morning that I would have failed in my duty, if I did not say what I said here just now.
I wanted to avoid violence. Non-violence is the first article of my faith. It is also the last article of my creed. But I had to make my choice. I had either to submit to a system which I considered had done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips. I know that my people have sometimes gone mad. I am deeply sorry for it and I am, therefore, here to submit not to a light penalty but to the highest penalty. I do not ask for mercy. I do not plead any extenating act. I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime, and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge, is, as I am going to say in my statement, either to resign your post, or inflict on me the severest penalty if you believe that the system and law you are assisting to administer are good for the people. I do not except that kind of conversion. But by the time I have finished with my statement you will have a glimpse of what is raging within my breast to run this maddest risk which a sane man can run.
[He then read out the written statement : ] I owe it perhaps to the Indian public and to the public in England, to placate which this prosecution is mainly taken up, that I should explain why from a staunch loyalist and co-operator, I have become an uncompromising disaffectionist and non-co-operator. To the court too I should say why I plead guilty to the charge of promoting disaffection towards the Government established by law in India.
My public life began in 1893 in South Africa in troubled weather. My first contact with British authority in that country was not of a happy character. I discovered that as a man and an Indian, I had no rights. More correctly I discovered that I had no rights as a man because I was an Indian.
But I was not baffled. I thought that this treatment of Indians was an excrescence upon a system that was intrinsically and mainly good. I gave the Government my voluntary and hearty co-operation, criticizing it freely where I felt it was faulty but never wishing its destruction.
Consequently when the existence of the Empire was threatened in 1899 by the Boer challenge, I offered my services to it, raised a volunteer ambulance corps and served at several actions that took place for the relief of Ladysmith. Similarly in 1906, at the time of the Zulu ‘revolt’, I raised a stretcher bearer party and served till the end of the ‘rebellion’. On both the occasions I received medals and was even mentioned in dispatches. For my work in South Africa I was given by Lord Hardinge a Kaisar-i-Hind gold medal. When the war broke out in 1914 between England and Germany, I raised a volunteer ambulance cars in London, consisting of the then resident Indians in London, chiefly students. Its work was acknowledge by the authorities to be valuable. Lastly, in India when a special appeal was made at the war Conference in Delhi in 1918 by Lord Chelmsford for recruits, I struggled at the cost of my health to raise a corps in Kheda, and the response was being made when the hostilities ceased and orders were received that no more recruits were wanted. In all these efforts at service, I was actuated by the belief that it was possible by such services to gain a status of full equality in the Empire for my countrymen.
The first shock came in the shape of the Rowlatt Act-a law designed to rob the people of all real freedom. I felt called upon to lead an intensive agitation against it. Then followed the Punjab horrors beginning with the massacre at Jallianwala Bagh and culminating in crawling orders, public flogging and other indescribable humiliations. I discovered too that the plighted word of the Prime Minister to the Mussalmans of India regarding the integrity of Turkey and the holy places of Islam was not likely to be fulfilled. But in spite of the forebodings and the grave warnings of friends, at the Amritsar Congress in 1919, I fought for co-operation and working of the Montagu-Chemlmsford reforms, hoping that the Prime Minister would redeem his promise to the Indian Mussalmans, that the Punjab wound would be healed, and that the reforms, inadequate and unsatisfactory though they were, marked a new era of hope in the life of India.
But all that hope was shattered. The Khilafat promise was not to be redeemed. The Punjab crime was whitewashed and most culprits went not only unpunished but remained in service, and some continued to draw pensions from the Indian revenue and in some cases were even rewarded. I saw too that not only did the reforms not mark a change of heart, but they were only a method of further raining India of her wealth and of prolonging her servitude.
I came reluctantly to the conclusion that the British connection had made India more helpless than she ever was before, politically and economically. A disarmed India has no power of resistance against any aggressor if she wanted to engage, in an armed conflict with him. So much is this the case that some of our best men consider that India must take generations, before she can achieve Dominion Status. She has become so poor that she has little power of resisting famines. Before the British advent India spun and wove in her millions of cottages, just the supplement she needed for adding to her meagre agricultural resources. This cottage industry, so vital for India’s existence, has been ruined by incredibly heartless and inhuman processes as described by English witness. Little do town dwellers how the semi-starved masses of India are slowly sinking to lifelessness. Little do they know that their miserable comfort represents the brokerage they get for their work they do for the foreign exploiter, that the profits and the brokerage are sucked from the masses. Little do realize that the Government established by law in British India is carried on for this 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. I have no doubt whatsoever that both England and the town dweller of India will have to answer, if there is a God above, for this crime against humanity, which is perhaps unequalled in history. The law itself in this country has been used to serve the foreign exploiter. My unbiased examination of the Punjab Marital Law cases has led me to believe that at least ninety-five per cent of convictions were wholly bad. My experience of political cases in India leads me to the conclusion, in nine out of every ten, the condemned men were totally innocent. Their crime consisted in the love of their country. In ninety-nine cases out of hundred, justice has been denied to Indians as against Europeans in the courts of India. This is not an exaggerated picture. It is the experience of almost every Indian who has had anything to do with such cases. In my opinion, the administration of the law is thus prostituted, consciously or unconsciously, for the benefit of the exploiter.
The greater misfortune is that the Englishmen and their Indian associates in the administration of the country do not know that they are engaged in the crime I have attempted to describe. I am satisfied that many Englishmen and Indian officials honestly systems devised in the world, and that India is making steady, though, slow progress. They do not know, 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-defense on the other, as emasculated the people and induced in them the habit of simulation. This awful habit has added to the ignorance and the self-deception of the administrators. 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. 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 to violence. But the section under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it; 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 endeavored to give in their briefest outline the reasons for my disaffection. 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. And it has been a precious privilege for me to be able to write what I have in the various articles tendered in evidence against me.
In fact, I believe that I have rendered a service to India and England by showing in non-co-operation the way out of the unnatural state in which both are living. In my opinion, non-co-operation with evil is as much a duty as is co-operation with good. But in the past, non-co-operation has been deliberately expressed in violence to the evil-doer. I am endeavoring to show to my countrymen that violent non-co-operation only multiples evil, and that as evil can only be sustained by violence, withdrawal of support of evil requires complete abstention from violence. Non-violence implies voluntary submission to the penalty for non-co-operation with evil. I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is deliberate crime, and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge and the assessors, is either to resign your posts and thus dissociate yourselves from evil, if you feel that the law you are called upon to administer is an evil, and that in reality I am innocent, or to inflict on me the severest penalty, if you believe that the system and the law you are assisting to administer are good for the people of this country, and that my activity is, therefore, injurious to the common weal.

legal language chapter no.5 RESERVATIONS BLS LLB SEM II

CHAPTER NO. 05

RESERVATIONS

PREAMBLE

"WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a SOVERIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC, and to secure to all its Citizens:

JUSTICE – Social economic and political:

LIBERITY of thought, expression, belief, faith & worship:

EQUALITY of status and of opportunity:

and to promote among them all.

FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation.

IN OUR CONSTITUTENT ASSEMBLY, this twenty-sixth day of November, 1949.do HERBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTIONS."

The preamble to the constitution declares that India is a sovereign, Socialist, Secular & Democratic Republic that secures to all its citizens. Justice- Social Economic & Political.

1.   RESERVATION FOR SCHEDULED CASTES/SCHEDULED TRIBES AND

OTHER BACKWARD CLASSES

            On attainment of independence, instruction was issued on 21.9.1947 providing for reservation for Schedule Castes in direct recruitment. After promulgation of the constitution, reservation for STs in direct recruitment was provided vide MHA resolution dated 13.9.1950. Reservation in case of promotion for SCs/STs was introduced in 1957. Reservation for OBCs was started in direct recruitment with effect from 8.9.1993. Persons belonging to creamy layer of OBCs, however, are excluded from the purview of reservation.

·         Art 16. Equality of opportunity in matters of public employment.- 

·         Article 16(4) –

Nothing shall prevent the state to make provision for reservation of appointment or past in favour of any backward class of citizen which in the opinion of state, is not adequately represented in the service under state.

·        Art 17. Abolition of Untouchability.-

"Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability rising out of "Untouchability" shall be an offence punishable in accordance with law.

·         Art 29. Protection of interests of minorities.-

·         Article 29(2) –

No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

·         Art 46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.-  

The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Case –

Mr. Baja v/s state of maysor

Air – 1960 Sc 649

·         RESERVATION IN DIRECT RECRUITMENT –

            Reservation for SCs, STs and OBCs in case of direct recruitment on all India bases by open competition is 15%, 7.5% and 27% respectively.

·         RESERVATION IN PROMOTION –

1)    Reservation in promotion by non-selection method is available to SCs and

the STs in all groups of posts at the rate of 15% and 7.5% respectively. In case of promotion by selection, SCs and STs get reservation up to the lowest rung of Group 'A' at the same rates. There is no reservation when promotions by selection are made from a Group 'A' post to another Group 'A' post. However, when promotions by selection are made from a Group 'A' posts to another Group 'A' post carrying an ultimate salary of Rs. 18,300/- or less, the

Scheduled Caste/Scheduled Tribe officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for

which the select list is to be drawn up, are included in that list provided they are not considered unfit for promotion.

2)    There is no reservation for OBCs in the matter of promotion.

·         RESERVATION IN PRIVATE SECTORS –

1)    The matter regarding reservation in private sector came up for

Examination before the DOPT in connection with a Private Member Bill. The

Attorney General of India was consulted in the matter who opined that Article

16(4) of the Constitution enable the State to provide reservation of

Appointments or posts in favour of any backward class of citizens in the services under the State and that reservation in Private Sector will not be permissible under Article 16 (4) of the Constitution and will be violative of the equality provision in the constitution.

2)    The Ministry of Social Justice & Empowerment is, however, exploring the

Possibilities of introducing reservation in private sector.

2.   RESERVATION FOR WOMAN –

·         Art 42. Provision for just and humane conditions of work and maternity relief.- 
The State shall make provision for securing just and humane conditions of work and for maternity relief.

·        Art 44. Uniform civil code for the citizens.- 
The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India.

·         SPECIAL PROVISIONS FOR WOMEN :

Article 15(3) has enabled the state to make special provisions under: -

i) Section: 354 Indian Penal Code (IPC) : Assaulting or using force to a woman with intent to outrage her modesty; imprisonment for 2 years or with fine or with both.

ii) Section 497 IPC : Which only punishes man in cases of Adultery & Exempts the women from punishment even though she may be equally guilty as an abettor. This provision is also applicable for children.

iii) Section 497 (1) Criminal Procedure Code: Making special treatment for women and children in matter of granting Bail.

iv) Section 494 IPC : Which makes Bigamy a punishable offence.

v) The Hindu Marriage Act of 1955 has made Bigamy punishable offence & Given greater strength to monogamy

vi) Reservation of seats in local body.

vii) The Hindu Succession Act, 1956 made for reaching changes in the law improved the position of women & treated women on par with men in case of property succession.

viii) Separate educational institutions exclusively for women.

ix) Reservation of a seats or places for women in public conveyances & places of public resort.

x) The Factories Act, 1948 provides separate facilities & treatment for women.

xi) Maternity Benefit Act,1961 provides free medical treatment & maternity leave for women.

xii) The State is competent under Article 15(3) 16(1) 16(2) & 16(4) of the constitution to give preference to women in Government Jobs where they are equally mentions but more suited than men. These constitutional provisions, no doubt ensures equality of opportunity to women. The purpose of Article 15(3) is to improve the status of women, to empower them in a manner that would bring about effective equality between men & women. The supreme court gave wider interpretation to the phrase “Special Provisions” under Article 15(3) to include with in ambits not only positive state acts like concessions, preferences, benefits, etc but also reservation of posts or appointment in public service in favour of women. Based on wider interpretation of the Supreme Court Rule 22-A(2) of Andra Pradesh State & subordinate service rules provided to the extent of 30% of the posts to women. Therefore, Based on the above instances of Article 15(3) has been described as ‘Protective discriminations’ for women. The framers of the constitution took a

Pragmatic view. In incorporating Article 15(3) because they expected that this provision might compensate the laws of opportunities suffered by women during the last several centuries. Hence clause (3) of Article 15 of the constitution may be described as a compensatory provision for women.

The following are the relevant provisions in respect of women in Directive Principles of State Policy.

Article 39(a) : Equal Right of men and women to adequate means of livelihood and free legal aid .

Article 39(d) : Equal pay for equal work for both men and women.

Article 42 : Directs the state to make provision for securing just human

conditions and for maternity relief.

Article 47: Duty to raise the stand of living and improvement of health.

3.   RESERVATION FOR CHILDREN –

·         Art 45. Provision for free and compulsory education for children.- 
The State shall Endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

·         Art 24. Prohibition of employment of children in factories, etc.-

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

SPECIAL PROVISIONS FOR CHILDREN –

Article 15(3) empowers the state to make special provision for children. The constitution makers had known that the India of their vision would not be a reality, if the children of the country are not matured and educated. For this and thief exploitation by different profit makers for their personal gain, the constitution makers incorporated. Under Part III Fundamentals Rights the following provisions. Article 15(3) empowers the state to make special provisions for children under this clause and it is an exceptions for children under this clause  and it is an exception to the rule against discrimination provided by clauses (1) & (2) of Article 15. Special provisions may be made either by legislation or by executive order.

·         Article 21-A : The Constitution (86th amendment ) Act, 2002 added this Article 21-A has made education for all children of the age of 6 to 14 years a fundamental right. For the success of democratic system of Government, education is one of the basic elements. Education gives a person human dignity & develops himself & contributes to the development of the country. The makers of the constitution realising the importance of education have imposed a duty on the state under Article 45 as one of the directive principle of State policy to provide free & compulsory education to all children between the age of 6 to 14 years. The Supreme Court during 1993 in Unnikrishnan Case declared that right to education for the children of the age 6 to 14 is a fundamental right. Even after this, there was no improvement, but the government enacted constitution (86^th Amendment) Act, 2002 which would make education a Fundamental Right. The question arises as to how this right would be implemented since the population of the country has considerably increased & the number of Children of age from 6 to 14 years are in crores.

·         Article 24 :No Child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. This Article prohibits employment of children below 14 years of age in factories & hazardous employment. It is in the interest of Public health & safety of life of children. Children are assets of the nation.

In People’s Union for Democratic Rights – Vs- Union of India, 1983 (Asiad Case) it was contended that the Employment of Children Act, 1938 was not applicable in case employment of Children in the Construction work of Asaid Projects in Delhi since construction industry was not a process specified in the schedule of the Children Act. The Supreme Court rejected this contention & held that the construction work is hazardous employment & therefore under Article 24 no child

below the age of 14 years can be employed in the construction work even if construction industry is not specified in the schedule to the employment of the said Act. This Article however, does not prohibit their employment in any innocent or harmless job or work. The constitution under Article 24 provides for prohibition of

employment of children, the inadequacies, if any arising through constitutional commitment is substantially met with other legislations. In view of increase in the province of economic activities & social life, the incidents of child labour is still visible in many activities in India. However these inadequacies can be met with special power of the State Under Article 15 (3) & 24 to enact legislations to regulate child labour. The following are Indian legislate Child labour. The following are Indian legislations dealing with prohibition & regulation of child labour.

4.   THE MANDAL COMMISSION AFTERMATH –

The Mandal Commission was established in India in 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to "identify the socially or educationally backward." It was headed by Indian parliamentarian B.P. Mandal to consider the question of seat reservations and quotas for people to redress caste discrimination, and used eleven social, economic, and educational indicators to determine backwardness.

·         Criteria to identify OBC

The Mandal Commission adopted various methods and techniques to collect the necessary data and evidence. In order to identify who qualified as an "other backward class," the commission adopted eleven criteria which could be grouped under three major headings: social, educational and economic.

·         Social

1.   Castes/classes considered as socially backward by others,

2.   Castes/classes which mainly depend on manual labour for their livelihood,

3.   Castes/classes where at least 25 per cent females and 10 per cent males above the state average get married at an age below 17 years in rural areas and at least 10 per cent females and 5 per cent mates do so in urban areas.

4.   Castes/classes where participation of females in work is at least 2 per cent above the state average,

·         Educational

1.   Castes/classes where the number of children in the age group of 5–15 years who never attended school is at least 25 per cent above the state average.

2.   Castes/classes when the rate of student drop-out in the age group of 5 15 years is at least 25 per cent above the state average,

3.   Castes/classes amongst whom the proportion of matriculates is at least 25 per cent below the state average,

·         Economic

1.   Castes/classes where the average value of family assets is at least 25 per cent below the state average,

2.   Castes/classes where the number of families living in kuccha houses is at least 25 per cent above the state average,

3.   Castes/classes where the source of drinking water is beyond half a kilometre for more than 50 per cent of the households,

4.   Castes/classes where the number of households having taken consumption loans is at least 25 per cent above the' state average.

5.   RESERVATION FOR ANGLO INDIANS –

·         Article 331 in the Constitution of India 1949

331. Representation of the Anglo Indian community in the Hose of the People Notwithstanding anything in Article 81, the President may, if he is of opinion that the Anglo Indian community is not adequately represented in the House of the people, nominate not more than two members of that community to the House of the People

333. Representation of the Anglo Indian community in the Legislative Assemblies of the States Notwithstanding anything in Article 170, the Governor of a State may, if he is of opinion that the Anglo Indian community needs representation in the Legislative Assembly of the State and is not adequately represented therein, nominate one member of that community to the Assembly