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More about Brutish Justice
WE
commented the other day on the policy of refusing bail which has recently been
adopted by the bureaucracy in a spirit of petty vindictiveness and the
scandalous manner in which men accused of political offences are being punished
before conviction. Of course it is all under the law, but that only proves the
contention we have always advanced that the criminal law in this country on
which our rulers pride themselves is barbarous, oppressive and semi-mediaeval in
its spirit and that its provisions are governed far more by the principle of
repressing the spirit of the people than by the principle of protecting the
citizen. Moreover, in all judicial administration there are two elements, the
letter of the law on one side, a humane and equitable practice on the other. To
suspend the latter in favour of the former shows an oppressive and tyrannical
spirit. The letter of the law enables the Government to appeal against any and
every acquittal in a criminal case; equitable practice forbids it to take
advantage of this barbarous provision except in important cases where it is
convinced there has been a serious miscarriage of justice. But the first
principle of bureaucratic rule in India is repression, to crush the spirit of
the people and keep them down with the strong hand. Every acquittal is therefore
considered by the executive a defeat to Government prestige and resented. Unless
therefore there is a strong and independent High Court, the habit of appealing
against acquittals is bound to become a standing feature of British justice. But
the idea of a strong and independent High Court is becoming more and more a
legend of the past. Future generations will be as sceptical of the possibility
of its ever having existed as the modern world is of the existence of gnomes and
fairies.
There is another equitable practice which has been violated with the most
cynical openness in the Rawalpindi trial. It is a sound principle of legal
procedure that the accused should not be
hampered in his defence but on the contrary should receive
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every
legitimate facility. The unjust judge who denies proper facilities of defence to
a man whose life or liberty, honour or reputation is imperilled by an accusation
which may be false or mistaken, the hanging judge whose diseased brain and
morbid temperament are consumed with the desire to have the accused convicted,
are survivals of mediaeval barbarity. Such men are the lineal descendants of
Jeffreys and Torquemada. In England such men are rareties upon the Bench; in
India especially among Civilian Magistrates and Judges, they are not uncommon.
In England the prosecuting Counsel will seldom throw unnecessary difficulties in
the way of the defence, in India it is too common for the prosecuting Counsel to
regard the defence as an enemy to be beaten down and out-manoeuvred by any means
which the technicalities of the law leave open to him. For the atmosphere is
different. The spirit of bureaucracy in all countries tends to be narrow, hard
and domineering, but in a country where a small alien element subsists in a huge
native mass partly by the maintenance of a hypnotic illusion, partly by a cold
legal repressive severity, ubiquitous and watchful to crush down every least
unit of strength in the indigenous population, this temper is immensely
heightened and exaggerated. Everybody knows that in the local administration of
the law in this country conviction not impartial justice is the object. A
Subordinate Magistrate is rated not by the soundness of his judgments but by
the percentage of convictions to the total number of cases he has tried, and it
is by this test that he is promoted. In that single fact we find the true and
fundamental tendency of British justice in India.
When such is the spirit even in the ordinary administration of the law,
it can easily be imagined to what lengths this spirit of semi-mediaeval
barbarity is likely to be carried when political considerations are imported. To
get justice in a Swadeshi case is nowadays almost impossible; even in the High
Court only
one or two judges have managed to keep a judicial frame of mind in relation to
political cases. This is of course natural and inevitable. A struggle is going
on between the ruling bureaucracy and the people of the country, and every judge
or magistrate is a servant of the bureaucracy, generally a member of it and very
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often
himself one of the caste and race whose monopoly of power is threatened. In his
eyes the accused in a political case is not an ordinary accused but a rebel
prisoner of war; he may not be guilty of the offence with which he is charged,
but he is guilty of Swadeshism, he is guilty of being an opponent of the Government
established by law. His punishment is therefore desirable in
the interests of the ruling class and in the judge's own interests as a servant
and member of that class. The judge is really a party to the case. It is not to
be expected that in such circumstances any facilities will be allowed to the
defence beyond what the letter of the law and bare decency require. A few
magistrates may rise superior to these considerations, but the majority cannot
be reasonably asked to do so. They are after all human beings — and
Englishmen.
Still there is a limit, there is something due to decency and at
Rawalpindi it seems to us that the limit has been overpassed and the dues have
been denied. We have nothing to say as to the guilt or the innocence of the men
under trial. We will assume that they are guilty, we will assume that their
conviction is a thing settled. But still until the trial is over, they are in
law regarded as men who are possibly innocent and should be allowed ordinary
facilities to prove their innocence. One of the principal safeguards of
accused innocence in India is the necessity of identification under stringent
rules which prevent collusion between the police and the witnesses. In the
Rawalpindi trial it has been repeatedly stated that the identification has been
a scandalous farce; the prisoners have been under police custody all the time
and have been repeatedly shown to the witnesses in the jail, and as if this were
not enough, the police in Court are allowed to make signs to the witnesses so
that they may be sure to identify the right persons. These statements have not
been denied. They may be true or they may be false; but when such statements are
advanced by the defence, it is the duty of an impartial judge to inquire into
them and take every precaution against the barest possibility of such practices.
Piteous complaints have been made by several of the accused of police violence
and cruelty in Hajat. Into this also no inquiry has been made and the only
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answer
the unfortunate men have received is a rough and uncivil command to keep
silence.
If this were all, it would be scandalous enough, but the recent
developments have been still more staggering. A hooligan crusade has been
started against the pleaders for the defence so shamelessly persistent and open
as to drive them to throw up their briefs. Sirdar Beant Singh's house has been
invaded, himself and his brother brutally assaulted, his ladies’ apartments
entered and an ornament snatched from the person of his wife. While these brutal
outrages were being committed, the police remained quiet in their Thana which is
in the same compound as the Sirdar's house and made no attempt to give
assistance, nor do we hear of any attempt to trace and punish the miscreants.
The houses of other defence pleaders have been exposed to a campaign of theft
and pilfering and none of them is safe against a repetition of the kind of
intimidation which has been used against Beant Singh. All India has drawn its
own conclusions from these singular occurrences, for indeed, the conclusions are
not difficult to draw.
But the crowning scandal of all was the treatment of the witness
Abdullah. It is possible that seditious speeches were delivered by the accused,
but it is certain that the amazing literal unanimity of the witnesses has
created, rightly or wrongly, an impression that their evidence was given
according to police dictation. When, therefore, a Mahomedan witness actually
declared in the witness box that his first evidence has been given under fear of
the police, it was obvious that the whole foundation of the prosecution case was
threatened; for the example of recantation might easily be followed. Then ensued
a scene which we hope for the credit of humanity at large, has never had a
parallel in recent judicial history. Immediately the prosecuting counsel leaps
up and demands that this inconvenient witness be at once prosecuted for perjury
and handed over to the tender mercies of the police against whom he has given
evidence; immediately the judge complies with this amazing demand; immediately
the unfortunate witness is hustled out of court into the grip of the police. It
is not surprising that the miserable Abdullah should recant
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his
recantation and balance his charge against the police by a charge against the
leading pleader for the defence. And this too is British law and British
justice. Nay, it is the climax, the apex, the acme, the culminating point which
British justice has reached in this too fortunate country. After all, the
British Empire must be saved at any cost.
Bande Mataram,
June 24, 1907
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