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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
Page-442 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
Page-443 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
Page-444 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
Page-445 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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