Mr.SubodhMarkandeya

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BHULABHAI DESAI AND INA TRIALS

ADDRESS TO THE FRIDAY GROUP ON JANUARY 20, 2017

 

 

 

                                                         BHULABHAI  DESAI  AND  INA  TRIALS

                                                   Their Place in India’s National Legal Legacy

 

                                                                      Subodh Markandeya

                                                                          Senior Advocate

 

The defence address delivered by Mr. Bhulabhai Desai, Senior Advocate and the doyen of the

Bombay Bar at the trial of Maj. Gen. Shah Nawaz, and Cols. GS Dhillon and PK Sehgal of the Indian

National Army [INA] by the General Court Martial held in the  Red Fort of Delhi was published by the

“INA Defence Committee” in January 1946. A bound copy of that defence address is lying in my

library. It should be re-published as a tribute to the incomparable advocacy of Bhulabhai Desai, the

case – and the cause  that he espoused.

 

So first about the great lawyer.

Bhulabhai Desai was born in Valsad a town in south Gujrat on October 13, 1877. His father, Jivanji

Desai, was a Government Pleader.  After early education at Avabai School in Valsad, in south Gujrat

he went to Bombay and  matriculated in 1895 from  Bharda High School  standing first in his school. 

 He graduated from Elphinston College, Bombay with History and English literature, winning the

Wordsworth Prize. After obtaining M.A. in English from the Bombay University he became Professor

 of English and History at the Gujrat College, Ahmedabad and was very popular amongst the

 students.  He simultaneously studied law.  After obtaining LL.B. he passed the Advocates (Original

 Side) examination, and was enrolled as an advocate and started practice on the original side of the

 Bombay  High Court. By dint of his intellect and hard work, by 1913 he became one of the front

 ranking lawyers, and was acclaimed by the Bench and the bar. Amongst his distinguished juniors

were Hiralal J. Kania, the first Chief Justice of India, Motilal Setalwad, Republic of India’s first

Attorney General and K.M. Munshi who earned fame not only as a lawyer but as the most prolific

author of modern Gujrati literature and founderof Bharatiya Vidya  Bhawan. In his Reminiscences

Munshi relates an interesting anecdote about the human side of Desai’s personality:  Munshi  had 

received court summons for having depicted a Jain hermit in adverse light in one of his novels as a

result of which  Jain community of Bombay brought criminal action against Munshi.  With fear of

being severely admonished writ large on his face he approached Bhulabhai Desai, who asked:

“Aren’t there enough briefs in my chamber that you have to write novels? To enable me to decide

whether I have to defend you, tell me what else have you written?” On being informed that under

pseudonym “Ghanshyam”,  Munshi  had written popular social novel called “Ver ni Vasulat” Desai

relieved Munshi’s tension by saying that he would definitely defend the author of “Ver ni Vasulat” as

he was in love with the heroine of that novel!

Desai joined Indian National Congress and was elected to the Central Assembly.  He distinguished

himself as the Leader of Congress Legislature Party. The defeat of war budget in 1945 was largely

due to his strategy.

Now, about the caseand the cause:

Due to tight censorship imposed by the British Government in India from 1939 and the draconian

Defence of India Act and Rules, very few people in India knew that Subhas Chandra Bose had –

  •  escaped from British dragnet and on reaching Berlin, organised the Free India Centre on the scale of a legation, which made broadcasts in 12 languages; he founded the India Legion from the Indian Prisoners of War [POWs] captured in Libya by the legendary German Marshal Rommel [Desert Fox], but
  • sensing that his mission to liberate India by combination of diplomatic and military efforts, may  materialise from Far-east better than Germany,  left for Japan in a German U-boat and
  • after perilous sea journey arrived in South East Asia by Japanese submarine, and
  •  on reaching Singapore he galvanised two million persons of Indian origin (PIOs) throughout South East Asia.

Information about the Provisional Government of Free India, Indian National Army, Free

India Centre, Berlin and the Indian Legion was perceived to be so dangerous that the Government

of UK forbade the BBC from publishing anything about them. Listening to broadcast by Bose was

punishable with death. 

On October 23, 1943 Bose formed the Provisional Government of Free India (PGFI) which -

  • was accorded recognition by nine countries[Burma, China, Croatia, Germany, Italy, Japan, Manchuko, Philippines and Thailand].Ireland also extended full support to the PGFI,
  • pledged to free India from the British yoke, and protect life and property of Indians in the Far East and for those purpose it raised three-division strong Indian National Army (INA), from the remnants of Indian officers and men who had been delivered by the British Army to Japan on the collapse of Singapore and fresh civilian PIOs recruited  by the PGFI and also formed Police force.
  • acquired territories including Andaman and Nicobar islands [which Bose named as Swaraj and Shahid islands] and administered them through its trained civilian arm – Azad Dal,
  • established Azad Hind Bank having at least 60 crore rupees at the time of end of WW 2,
  •  printed for issue, the currency notes and postage stamps
  • promulgated INA Act to govern raising, training and discipline of officers and men; INA Act also avoided the application of Japanese Military Code to the INA.

PGIF inspired the whole generation of leaders in Indonesia, Malasia, Viet Nam and other countries.

The INA and its ally the Japanese Army came knocking at India’s eastern cities of Imphal and

Kohima. However, the tide of war had turned against them forcing their withdrawal, first to

Rangoon and then to Singapore.

With the U.S. use of atom bombs on Hiroshima and Nagasaki, Japan surrendered to the allied forces

on August 15, 1945 bringing the Second World War to end. President Bose paid off and discharged

the officers and men of the PGIF and INA and himself flew off to seek help for India’s  freedom –

never to return.  His accredited representative Major General  A.C. Chatterjee  was arrested in

Rangoon by the advancing British forces . Maj. Gen. Chatterjee’s counterpart in Singapore Major

General M.Z. Kiani was arrested by Lord Louis Mountbatten’s forces.  On landing on 6th September

1945 their first act was to dynamite the marble memorial “Shaheed Smark” fondly built by Netaji on

the Connaught Drive in Singapore to honour the INA heroes who had died fighting for India’s

freedom. For decades, various Government in India dithered in getting the Shaheed Smark restored

but Government of Singapore has restored it as part of its own national heritage.

The arrested officers and men of the INA and ministers and functionaries of the PGFI were

hastily brought to Delhi and incarcerated in the detention camps without being accorded the status

of Prisoners  of War (POWs) that they were.                   

 

End of War loosened tight censorship imposed in 1939, enabling the nationalist press to publish

mass of material brought from South-East Asia and Europe about the exploits and activities of the

PGFI,  the INA, the Free India Centre and the Indian Legionaries. Such silent spread of saga of

Netaji and his achievements impacted the general public but much more the Indian jawans and

officers of the British armed forces.   Film about the P.G.F.I. and I.N.A. brought from Singapore was

doing rounds and rounds of sympathetic audiences in Delhi and elsewhere. As recorded by “The

Hindu” Mahatma Gandhi eulogised Netaji’s achievements :

      “...the greatest amongst these was to gather together, under one banner, men from all religions

        and races of India, and to infuse into them the spirit of solidarity and oneness to the utter

        exclusion of all communal or parochial sentiments.  It is an example that we should all emulate.”

 In this background the decision of the British Government to try three officers of the INA – Major

General Shah Nawaz, Colonel G.S. Dhillon and Col. Prem Kumar Sehgal created outrage throughout

India. Mahatma Gandhi wrote to Viceroy Lord Wavell:

      “I am never blind to the valour and the patriotism of these men.  India adores them. No doubt

        the government has overwhelming  might on their side.  But it would be misuse of that power if

        it is used in the teeth of universal Indian opposition.”

In the words of Pandit Jawaharlal Nehru, the trio  had become “symbols of India’s right for

 independence. It was a trial of strength between the will of the Indian people and the will of those

who held power in India.” Muslim League President M.A. Jinnah advised “leniency” in dealing with

them.  Jaya Prakash Narain the noted socialist leader of his times lauded Netaji as a “fervent

patriot” and justified acceptance of military aid by him from the Axis powers for securing India’s

 independence. Gandhiji even met the Commander-in-Chief Claude Auchinleck to dissuade him from

 proceeding with the trial.  The Viceroy turned down Gandhiji’s plea to abandon the trial.

Charge-sheets dated September 17, 1945 were served on three accused under the Indian Army Act,

1912.  By order dated 25th October 1945 of Brig. L.L. Thwaytes, British commander of Bahadurgarh

Area a seven member General Court Martial under the presidentship of Maj. Gen. A.B. Baxland was

convened. The GCM consisted of four British and three Indian officers. Sir N.P. Engineer, the

Advocate General for India was appointed as the Chief Prosecutor. Shahnawaz, Dhillon and Sehgal

faced charges of –

  • Waging War against the King-Emperor
  • Murder
  • Abetment.

The All India Congress Committee (AICC) in its Resolution dated September  22, 1945 stated:

      ” It would be a tragedy if these officers, men and women were punished for the offence of

        having laboured for the freedom of India.”

It constituted the “INA Defence Committee” of 17 distinguished lawyers of India, including Bhulabhai   

Desai, Tej Bahadur Sapru, Asaf Ali, K.N. Katju and Jawaharlal Nehru, former High Court Judges, Tek

Chand, Dilip Singh and P.K. Das, I.D. Dua [who later became a Judge of the Supreme Court of India]

 and S.N. Andley [who later rose to be the Chief Justice of Delhi High Court]. Bhulabhai Desai, doyen

of the Bombay Bar and leader of the Congress Legislature party in the Central Assembly was

entrusted with the task of defending the accused.

On the eve of the INA  trial Bhulabhai Desai was taken seriously ill and was advised complete rest

by his doctors.  Disregarding medical advice he drowned himself in INA papers. Reading them

brought about a complete transformation  of his perceptions about Netaji  and the INA.  He

unreservedly confessed to Dilip Kumar Roy  great musician of his time  and disciple of Sri Aurobindo:

     “I had grown to echo what coterie in which I moved said against him...finally scales fell

       from my eyes. Netaji was a far-seeing statesman, a born realist, a strategist to his finger tips

       and an idealist cum seer who was haunted by an irresistible, almost a mystic  call he had to

       answer with his freedom-hungry blood.”

The trial opened on 5th November 1945 in a make-shift court in the historic Red Fort of Delhi. The

prosecution placed before the court over 250 pages of oral evidence of 30 PWs and about 150 pages

of Exhibits which included the “Proclamation of the Provisional Government of Free India” dated

23rd October 1943 and statement made by the Japanese Premier General Tojo in the Diet [Japanes

Parliament regarding  transfer of Andaman and Nicobar islands to the Provisional Government. The

defence evidence consisted of depositions of 12 witnesses - Japanese dignitaries and top

functionaries of the PGFI and the INA to prove -

  • their aim viz. liberation of India, and
  •  their total independent functioning , organisation, campaigns etc.

Facts were established by the prosecution evidence itself. Bhulabhai Desai sharply cross-examined

the prosecution witnesses to demolishet its case of murder; he could establish that -

  • the charge of murder was baseless,
  • in fact those persons who were allegedly murder were deserters,
  •  they were tried and found guilty by INA court martial and were  sentenced to be shot, but
  • in fact that no death sentence was, however, carried out.

Bhulabhai Desai’s defence address was spirited.  He spoke for two days - over ten hours without

notes. Published verbatim it occupies 132 pages. He marshalled facts with great ability and built up

the legal case that -

  • as a consequence of British surrender of Singapore and handing over of Indian men and officers to Japan, they stood released from their oath of allegiance to the British crown, which formed the basis of the charge of “Waging War against the King”,
  • with the Proclamation  of the  Provisional Government of Free India ,the INA  became an instrumentality of the  sovereign PGFI which had all the trappings of the “State” under Public International law,
  • the PGFI and the INA  were following  their goal of winning India’s independence and

under Public International law as well section 79 IPC, acts of officers and men of the INA were beyond the purview of the Court martial trying Shah Nawaz, Dhillon and Sehgal,

  • expression “law” in section 79 includes Public international law, therefore, the principal of Public international law that acts of belligerents are beyond the purview of municipal courts like the court martial trying Shahnawaz, Sehgal and Dhillon, and
  • recognition envisaged under Public International law for immunity of acts  is recognition as a belligerent and not diplomatic recognition of the INA by the British Government.

Dr. Kailash Nath Katju a leading member of the Allahabad Bar who at different times was Union

Minister for Home and Defence, Chief Minister of Madhya Pradesh and Governor of West Bengal

ranked Bhulabhai Desai’s defence address at the INA trial as a great forensic performance, adding:

        “It was definitely the first argument delivered before a tribunal which endeavoured to justify

          in point of law both International and municipal, the right of the Indian people to wage a

          war for the liberation of their country from foreign bondage.”

Historian N.G.Jog adds:

           “Desai’s extempore address was a tour de force of great legal erudition and forensic skill.

             The pity of it was that it was addressed to a court martial composed of officers innocent

             of law and not to judges trained to understand and appreciate the subtleties and intricacies

             of international law.”

The court martial gave its verdict on December 31, 1945 finding the accused guilty of the charges

levelled against them and sentenced them to transportation for life.  The Commander-in Chief,

however, remitted their sentence to cashiering.

This was perhaps the last major case argued by Bhulabhai Desai.  He fell seriously ill on April 30,

1946 and passed  away on May 6, 1946.

INA trials had electrifying effect –

  • In the elections to the Constituent Assembly, Indian National Congress won massive majority,
  • There were mutinies on limited scale in the Army and R.IA.F.at Dehradun and Jabalpur which were put down with heavy hand,
  • Ratings aboard the Royal Indian Navy ship “Narbada” mutinied on 18-2-1946 and it soon

spread on almost all the ships stationed in Karachi, Bombay, Madras, Vishakapatnam, Calcutta and Andamans. They hauled down the Union Jack and hoisted the Tricolour; firing raged for almost a week in Bombay and Karachi; with heavy deployment of British officers and men, the mutiny was put down but it shook the British Empire from its foundation,

In the file titled “Treatment of Bose” Lt. Gen. Tucker, GOC-in-C, East Command, Field Marshal Claude

Auchinleck, the War and Home Members of Viceroy’ Executive Counsel and F.M. Archibald Wavell,

the Viceroy himself attributed the sea change in the attitude of officers and men of the British India

Army, Navy and Air Force, the police and civil staff from deep loyalty to the Crown to undiluted

patriotism to Netaji and his INA. Their view was confirmed by Clement Atlee , the then British Prime

Minister himself. London came to the inexorable conclusion that it is no longer possible to govern

The Empire. Such transformative change, in my humble view, makes the INA Trials, our glorious

legal legacy.      

             

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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