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
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 case – and 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
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
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