§ LORD OLIVIER had given Notice to ask the Secretary of State for India for information as to the outcome of action recently taken under the Bengal Criminal Law Amendment Ordinance, 1924, and, in connection therewith, under Regulation III of 1813, in Bengal, and as to the results of the investigation of the cases of persons arrested under that Ordinance or that Regulation; and to move for Papers.
§ The noble Lord said: My Lords, a few days before the late Government went out of office there was promulgated by the Governor-General of India in Council, under the authority conferred upon him by Section 72 of the Government of India Act, an Ordinance entitled the Bengal Criminal Law Amendment Ordinance, a copy of which has been laid on the Table of the House, together with certain memoranda and copies of the statements made by the Governor-General in connection with the Ordinance. These statements, and the Ordinance itself, sufficiently explain the grounds on which the Ordinance was introduced, but I should like to detain your Lordships for a few moments while I give you a little preliminary history as to how the Ordinance came to be introduced in the form it was.
§ Last July the Secretary of State for India received from the Governor-General a communication indicating that the Government of Bengal were becoming dissatisfied with the powers it had for dealing with conspiracies for criminal violence. This criminal violence was organised by one or more secret societies, and some reference has been made to it in the White Paper that has been issued. There had been a series of robberies with violence, and there had been two murders and several attempts at murder directed against the police. One of those murders was that of a police witness. Later there was another murder of a witness who had given evidence in a case brought against one of the perpetrators of a criminal outrage. The Government of which I was then a member received from Lord Beading a communication asking what were their views upon this subject and indicating his own very strong reluctance to take any action outside the ordinary law. His Majesty's Government wrote back entirely sympathising with him in 834 that view and urging that he should assist the Government of Bengal, if necessary, to reinforce their police, and that sooner than bring in any exceptional legislation the Government of Bengal should use whatever powers they might have for dealing with this special form of crime.
§ There the matter rested for some weeks. Towards the end of August, however, the Governor-Genera again telegraphed the Secretary of State at some length stating that he was now convinced by the representations made to him by the Government, of Bengal that the ordinary powers of the law, and even the extraordinary powers which the Government of Bengal have by virtue of what is known as Regulation III, were not sufficient to deal with these conspiracies for criminal outrage, and that the Government of Bengal desired to bring in a special Ordinance practically, as we should say here, dispensing with the Habeas Corpus Act, for the purpose of dealing with these conspiracies. He intimated that unless such measures were taken he could not find himself in a position properly to exercise his responsibilities for the prevention of crimes of this character and for the protection of his police officers and other individuals from assassination or intimidation, or from otherwise being subjected to duress and violence for the purpose of fomenting disorder in India and bringing the Government into a state of powerlessness.
§ Consequenly, we entered into correspondence with the Viceroy, who submitted an Ordinance, as drafted by the Government of Bengal in complete accord with the Governor-General, and the form of that Ordinance so settled is that which you have before you at the present time. It was agreed very precisely between the Governor-General and ourselves that the Ordinance should not aim at any kind of political activity, whether that activity might or might not be described as seditious or revolutionary or as likely to destroy public tranquillity. The Ordinance was to be carefully drawn so as to apply only to the commission of acts of violence or intimidation or the organisation of such acts, as specified in the Indian Penal Code. The whole Ordinance legislates by reference to that Code and sets up in its Schedules only such offences as may be dealt with under the Ordinances 835 which are already included in the Penal Code. You will find in the First and Second Schedules on page 12 of the White Paper a number of sections, numbering thirty-four altogether, beginning with Section 148, which concerns rioting armed with a deadly weapon, and ending with Section 506 which deals with criminal intimidation; and also a reference to "any offence under the Explosive Substances Act, 1908; any offence under the Indian Arms Act, 1878; and any attempt or conspiracy to commit, or any abetment of, any of the above offences." That Ordinance, as we understood from the Governor-General, was sufficient for his purpose and we authorised it to be introduced.
It was not immediately introduced, and here I should perhaps point out to your Lordships that, as those who have read the Ordinance will see, it is an Ordinance which gives very unusual powers to the police and to the Administration and which really takes away from any one who is charged or proceeded against under it any protection for liberty which the history of our criminal law and jurisdiction has established for ourselves. I should like to quote—I could not put the matter more concisely—the words in which Blackstone has indicated our own position in that matter. He says:
To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person"—
that is precisely what this Ordinance aims at—
by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government, and yet sometimes, when the State is in real danger, even this may be a necessary measure. But the happiness of our Constitution is, that it is not left to the executive power to determine when the danger of the State is so great as to render this measure expedient. For it is the Parliament only, or a legislative power, that, whenever it sees proper, can authorise the Crown, by suspending the Habeas Corpus Act for a short and limited time, to imprison suspected persons without giving any reason for so doing.
§ The Ordinance provides a special Court for the trial of persons accused or reasonably suspected of any of the offences set 836 out in the Schedule, and the special Court is constituted of three Commissioners, two of whom must be either Judges of Sessions or persons of the rank of Sessions Judges, or persons who have qualified for appointment as Judges of a High Court. Judges of Sessions in India are not judicial officers, but are only Indian civil servants, or executive officers, and I think that all of us would rather be tried by a Judge of the High Court than by an executive officer, who, however fair-minded and just he may be, is nevertheless a subordinate of the Government. Further, in this Ordinance there is a provision that persons who are interned, or directed to live under control, cannot be heard, before the two Commissioners who may be appointed to try their case, by counsel or pleader.
Further, among the many anomalies of this Ordinance, there is a provision that within one month of the issue of an order by the Local Government, enabling the persons accused to be assigned certain places of residence, or to be placed in gaol,
the Local Government shall place before two persons, who shall he either Sessions Judges or Additional Sessions Judges having in either case, exercised for at least five years the powers of a Sessions Judge or Additional Sessions Judge, the material facts and circumstances in its possession on which the order has been based or which are relevant to the inquiry, together with any materials relating to the case which may have subsequently come into its possession, and a statement of the allegations against the person in respect of whom the order has been made and his answers to them, if furnished by him, and the said Judges shall consider the said material facts and circumstances and the allegation and answers, and shall report to the Local Government whether or not in their opinion there is lawful and sufficient cause for the order.
§ That is to say, these Commissioners are not even confronted with the accused, but are confronted with the written statements made by the police, and the prisoner's written answers, if he has made any. That cannot be a judicial inquiry.
§ What were the reasons for the Government of India considering that this drastic Order was required? It comes to this, that whereas under our own law any person may arrest and prevent any one whom he sees bent upon committing a crime, they had had experience that in India it was practically impossible to obtain conviction in these cases. It was 837 also the fact that, where any person was suspected of giving evidence, that person ran great danger of losing his life. Practically, the criminal law did not operate to prevent these things. They could only be prevented by such action being taken by the police as could not be justified by evidence, because witnesses would run serious danger of being assassinated. Those were the particular circumstances which justified the Government of India in making the representation which they did—that they could not prevent these acts of crime without these special powers.
§ However, that relates to only one part of the matter. After the promulgation of the Ordinance a question was asked in Parliament, I think in December last, as to the number of persons who had been arrested under the Ordinance, and Lord Winterton gave the information desired. I have not the statement at hand, but I think he said that fifty-nine persons had been arrested under the Ordinance, and about forty-six under Regulation III of 1318. That rather surprised me, because we had been informed by the Governor-General, before we authorised the framing of the Ordinance, that Regulation III of 1818 was not sufficient to give the Government of Bengal the power which they required for preventing these crimes. Accordingly, we gave them the stronger measure, which we presumed was sufficient to cover all cases. Nevertheless, a certain number of persons were arrested and interned under Regulation III.
Now I want to remind your Lordships, for a moment, of what Regulation III does. I will read the preamble. It is as follows:—
Whereas reasons of State, embracing the due maintenance of the alliance formed by the British Government with foreign Powers, the preservation of tranquillity in the territories of Native Princes entitled to its protection and the security of the British Dominions from foreign hostility and from internal commotion, render it necessary to place under personal restraint individuals against whom there may not he sufficient ground to institute any judicial proceedings …
they may in those circumstances be interned and kept under restraint, subject to a report being made from time to time to the Governor of Bengal, of any representations made by the person so interned and confined. Your Lordships will see
that the scope of Regulation III only applies to the danger of internal commotion, and has been resorted to on former occasions when there has been reason to believe that it was necessary, in order to avoid internal commotion, that certain persons should be arrested under it. But, as I have said, it was not, as we understood it, the desire or intention of the Government of India, in October last, to take action against certain persons for fear they were engaged in internal commotion, but solely on the ground that they were believed to be engaged in acts of physical violence or intimidation.
Reading the proceedings of the Legislative Assembly on January 28 last, I see that a question was asked of the Home Member, Sir Alexander Muddiman, with regard to the cases of the men arrested under Regulation III. His reply was:—
As regards the persons recently arrested under Regulation III of 1818, the evidence was scrutinised by two Judges of the standing of Sessions Judges, who were satisfied that there were reasonable grounds to believe that all these persons were members of a revolutionary conspiracy and that their being at large involved a danger to the State.'
§ But that is not the purpose of the Ordinance, nor is it at all the purpose for which the late Government, as I under-stand, approved of that Ordinance being introduced. "A revolutionary purpose" is a phrase very widely, or perhaps I should say very stringently interpreted, by persons connected with the Government of India, the Government, of Ireland, and the Government of this country. Anything which aims at altering the Constitution of this country is constantly denounced as being a revolutionary purpose. But the idea of the Government to which I belonged, in sanctioning such proceedings, was solely that such proceedings should be addressed to repressing outrage and crime, definitely defined in these sections of the Code to which the Schedule of the Ordinance refers.
I see that yesterday a Question was asked in the House of Commons by the hon. Member for Mile End. He asked the Under-Secretary of State for India this Question, which I had wished to ask of the noble and learned Earl opposite:—
Whether there is any distinction between the men arrested under the Bengal Ordinance and those arrested under the
Bengal Regulation III of 1818; whether orders of detention under the Ordinance have been substituted for those under Regulation III in respect of all prisoners arrested in October, 1924, whether it is intended to use Regulation III again so long as the Ordinance or the Criminal Law Amendment Act, which takes its place, are in operation; and whether all State prisoners are now under the Ordinance, with the exception of those who were arrested and detained before the Ordinance came into operation.
To this Lord Winterton replied:—
All the persons recently arrested in Bengal under the Regulation of 1818 are now treated as arrested under the Ordinance, which permits less rigid treatment of individual cases, and authorises the grant of allowances to their families.
§ Lord Winterton's answer did not answer the Question which was put to him, a Question which I want very definitely to put to the noble Earl opposite; that is to say, whether all persons who are now detained in Bengal, owing to the action taken in October last, are persons who are definitely detained under orders made within the scope and intention of the Bengal Criminal Law Amendment Ordinance, or whether there are a certain number of persons who are more or less vaguely detained under Regulation III of 1818, on the charge of their being occupied in some kind of revolutionary agitation, or some kind of intention to produce commotion, to the danger of the State, which is an entirely different thing from the purposes for which the Ordinance was sanctioned?
§ Very severe attacks have been made on this Ordinance in India on the grounds on which they would naturally be made, in the first place, because, from the political point of view, it is a very good point d'appui for an attack on the Government, on the pretext that it was introduced for the purpose of repressing political agitation; and therefore the late Government was the more desirous, and I should be the more desirous, that any excuse whatever for saying that this was aimed at any kind of political agitation should be without foundation. The Ordinance was justified in the view of the Government of India on its merits, and was justified in the view of His Majesty's Government on the recommendation of the Viceroy and of his advisers, in whose judgment as to its necessity we had absolute and entire confidence.840
§ But when we come to the question of Regulation III that is a little different, because I find that among those who were arrested under the provisions of Regulation III are three gentlemen who are very conspicuous politicians. One of them is Mr. Subhas Bose, the Chief Executive Officer of the Calcutta Corporation, and a man who has been commonly spoken of as Mr. C. R. Das's right-hand man, Mr. Anil Baran Roy, a member of the Legislative Council and secretary of the Bengal Provincial Congress Committee, and Mr. Satyendra Chandra Mitra, also a member of the Legislative Council. The allegation against the Government of India is that these men have been arrested on political grounds under Regulation III and were not liable to be arrested under the provisions of the Ordinance. The names of one or more of these gentlemen were mentioned to me in correspondence before the question of the Ordinance came up at all, and the operations in which it was represented that they were engaged were definitely of a character which, I should have said, fell absolutely within the four corners of the Schedules of this Ordinance, and there should have been no need whatever, if these representations were correct, to go outside the provisions of the Ordinance and to arrest them under Regulation III.
§ Your Lordships have read the Ordinance, and you know that it provides for certain reports to be made to the Government and to the Governor-General. I want to ask the noble Earl, as I have told him I should ask him, first of all, if he can tell us what has practically been the upshot of the operations that have been carried out, either under Regulation III or the Ordinance, in demonstrating to the satisfaction of the Government of India that all the persons arrested have been actually engaged in criminal conspiracy to commit outrages or to commit intimidation, as was intended by the Ordinance?; secondly, what was the reason originally for the discrimination in the arrests, as between Regulation III and the Ordinance, and whether that discrimination has or has not yet been done away with?—because, as I have pointed out, Lord Winterton's reply in another place was entirely ambiguous on that point. He simply said they are treated as if they had been arrested under warrant under the Ordinance. I want to 841 know whether, so far as their detention is concerned, their cases are absolutely covered by the Schedules of the Ordinance. And, generally, I hope that the noble Earl may be able to tell us whether, to his satisfaction and to the satisfaction of the Government of India, the passing of the Ordinance has justified itself in the bringing under restraint of persons against whom criminal intentions have been proved, and in the prevention of further outrages. I beg to move for Papers.
§ THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD)
My Lords, the noble Lord, in a tone and temper of which I have no right to complain, has asked me a number of questions to which I must give some circumstantial answer, not only out of respect to the moderation with which he has asked them, but also to the responsible position which he so recently held. The noble Lord has told your Lordships, and quite rightly told you, that he and his colleagues made themselves responsible for an innovation upon the ordinary methods of criminal trial in India which has seldom, in its drastic character, been exceeded either in this country by what he quite rightly called the suspension of Habeas Corpus, or by what, in Continental systems of jurisprudence, is more commonly known as the declaration of a state of siege.
The noble Lord did not in any way exaggerate the severity of the course which he and his colleagues authorised the Viceroy to take. I have been brought up, as most of those who have spent their lives in the profession of the law have been brought up, in these matters in an atmosphere of constitutional correctitude, and I must make it plain that when I first became aware of the drastic nature of that which the noble Lord and his colleagues, after the fullest possible discussion by correspondence, had sanctioned, I felt it my duty to examine with some care the justification that was alleged before powers so remarkable, almost so unprecedented in India, were authorised. I am bound to say perfectly candidly that the result of the investigation which I undertook has been to satisfy me that the noble Lord, extreme as was the course which he pursued, was absolutely justified, having regard to the 842 nature of the evidence which was before him. Indeed, I think he would have been lacking in his duty, painful as it must have been to him, shattering as it must have been to the prepossessions of some of those who were his colleagues, if he had not authorised the course that was adopted.
One or two facts must be a little more elaborately recalled, I think, if I am to give a full answer to the noble Lord. Revolutionary conspiracy existed in Bengal between the years 1912 and 1917, which was only successfully repressed when the leaders were confined under the provisions of Regulation III of the year 1818 and many of its subordinate members dealt with under the Defence of India Act. Most of these persons were released after the Royal Proclamation of 1919. From the point of view of the psychology of sedition, it is worth while observing that many of those who were released in 1019 have since abstained from revolutionary crime. To the remainder an amnesty was gradually extended, but a large, number of these speedily returned to their old methods and reorganised their old associations.
Your Lordships will ask, and are certainly entitled to know, how far this had become formidable at any period which is relevant to the noble Lord's Questions. By the end of 1922 two main terrorist organisations, each of them very formidable, had been revived and new members recruited, arms and ammunition mostly smuggled from abroad were collected, a new type of bomb was manufactured, and beyond all question elaborate and carefully conceived projects for assassination were devised. During the year 1923 a series of outrages was perpetrated, including a dacoity with double murder at Kona near Howrah, and the looting of the Ultadingi Post Office in May, a robbery with murder in July, the Sankaritolla murder, and others which I need not more particularly mention. In January, 1924, Mr. Day was murdered in Calcutta, and an attempt was made to murder Mr. Bruce in April, in both cases, as it appears, in mistake for a most courageous and undaunted public servant, Mr. Tegart, the Commissioner of Police. In March a bomb factory was discovered, and other activities directed to the manufacture of bombs and the illicit collection of arms 843 were detected. Other crimes were planned and projects of assassination continued to be devised.
Your Lordships may reasonably ask what steps were being taken by the responsible Government faced, as they were, by a deliberate and most formidable outbreak of crime. Here let me make the only real observation of dissent or doubt that I shall attempt upon the speech of the noble Lord. I did not follow him with the complete precision which I should have desired in the distinction which at one time I suspected him to be drawing between violent crime and revolutionary outbreaks. It seems to me that the line must be very finely drawn. I have no doubt in my own mind as to the distinction which any precise speaker would draw. If a man, merely in an abstract way, reflects favourably and indulgently upon the idea of revolution he would not fall, in my judgment, either under Regulation III of the earlier Act or under the Ordinance for which the noble Lord was responsible. If such a person, after reflecting favourably—
§ LORD OLIVIER
I did not say revolutionary outbreaks. I should imagine there might be outbreaks in all political affairs. The words I quoted were "revolutionary conspiracy," and I quoted them from Sir Alexander Muddiman. I was distinguishing between a revolutionary conspiracy and crime.
§ THE EARL OF BIRKENHEAD
The noble Lord is surely aware that conspiracy is a criminal offence. That must have occurred to the noble Lord in the carrying out of his responsibilities. Am I to understand that the doctrine of the noble Lord now is that a man who enters into a revolutionary conspiracy, which must mean a criminal offence, to overthrow and destroy the Constitution by means of a revolution, is not to be brought within the terms of the noble Lord's Ordinance? I assure him that the terms of his own Ordinance would cover such a case.
§ LORD OLIVIER
That is just my point. If it was a conspiracy the arrest should have been made under the Ordinance.
§ THE EARL OF BIRKENHEAD
I will tell the noble Lord how that arises in a 844 moment. I was on a rather more important point, because it is fundamental. If I may refer to it, I would most earnestly advise him to study a little closely the criminal law relating to conspiracy, because it has a very great moral importance. Let us at least understand one another, because if there is no difference of opinion it is not very useful for me to waste my time in discussing it. If there is a difference of opinion, I will endeavour in a few words to show that, consistently with the principles laid down by the noble Lord himself, it cannot survive any impartial and competent discussion. Conspiracy is a criminal offence. A conspiracy to subvert the Constitution by revolutionary methods is a very grave criminal offence; few graver offences are known to the law. Men have been beheaded almost within the precincts of this building for that offence in this country. If the noble Lord and I are agreed upon this point, I must honestly confess that I do not think much of his distinction between revolutionary conspiracy and those specific offences which he has alluded to more compendiously as crimes.
At the moment when I diverged upon that topic I was dealing with the view which was taken by the Government of Bengal. The Governor, a distinguished member of this House and well known to many of us, Lord Lytton, took from the first what in my judgment was an enlightened view, and I am the more encouraged to make that statement plain by the fact that it was the view which was ultimately accepted by my noble friend who asked me this Question. The view taken by Lord Lytton, who was in the immediate centre of the gravest of these events, did not immediately recommend itself either to the Viceroy or to the Government of the day. I am bound to make it plain that in my judgment Lord Lytton, who was on the spot, gave wise advice at the time when he gave it. Certain of the ringleaders in the early part of 1924 were arrested under Regulation III of the Act of 1818. This did not, in fact, check the movement, and it became necessary to devise special measures which ultimately, in the circumstances quite accurately spoken of by the noble Lord, resulted in the issue of the Ordinance. Mr. Das, of whom the noble Lord has spoken, admitted, rather more 845 than a month before the issue of the Ordinance, that there was undoubtedly an anarchist movement in Bengal, and stated that it was much more serious than the authorities realised and that it was growing increasingly difficult to suppress it.
Before passing to an account of the action taken under the Ordinance, for which the noble Lord has asked, I ought, I think, to emphasise one point and that is that one of the main necessities for employing special measures to combat conspiracies of this kind instead of resorting to the ordinary provisions of the law, is the terrorism of witnesses and juries resulting in a failure of justice because the juries are terrorised from returning verdicts in accordance with the evidence, and resulting, also, as the noble Lord I believe would agree, in the murder of witnesses and persons who confess or turn King's evidence. This formidable fact is the real, and in my judgment in a civilised country is the only, justification for withdrawing from persons accused of crime the protection of the ordinary course of law. If it be indeed established that such is the state of feeling in the country in which this exceptional method of trying crimes is adopted, that no witness can give evidence without his or her life being endangered, that no jury can give an honest verdict without at once becoming a target for the dagger of the assassin or the bomb of the incendiary—if that, indeed, be established, you have gone a great way to justify your exceptional legislation.
Let me give two comparatively recent illustrations of the reality of this risk. In the Alipore conspiracy case, in which members of the revolutionary group were put on trial but were eventually acquitted, the relatives of the approver were subjected in Calcutta to various forms of harassment, and boycott. During the course of the trial, his brother died. Owing to social ostracism, the family were unable to get people to carry the dead body to the burning ghat. Further, his sister, who was engaged to be married, was thrown over by the bridegroom as soon as the relatives heard that her brother was an approver in the case. The approver himself was cross-examined for weeks on end by five different counsel for the defence in circumstances which practically drove him to the verge of 846 insanity. He was unable to sleep in the gaol, and was suffering towards the close of the trial from nightmare and hallucinations. It is no exaggeration to say that from the moment that man, doing his duty as an honest and fearless citizen, gave evidence which the elucidation of the truth required, he and everyone belonging to him were treated like pariah dogs, and none of them could have gone about with any feeling of tranquillity or security in the more vital matters of life.
On August 22 last a bomb was thown into a shop in Mirzapur Street, Calcutta, which belonged to an individual who was suspected by the conspirators of being a police informant and who had been indicated by one of the conspirators as the person from whom he had received a revolver for the possession of which he had been prosecuted and convicted shortly before. The suspected informant was in the shop at the time but escaped. His companion was killed. Two persons were arrested and charged with the offence, one of whom was Santi Chakravarti. These two persons were tried in September, and the jury found both not guilty. The Judge agreed as regards Santi, and acquitted him, but ordered the re-trial of the other accused. On October 3, the body of Santi was found on the railway a short distance outside Calcutta, shockingly mutilated, with the head entirely severed.
Let me answer the specific Question addressed to me by the noble Lord as to the action under the Ordinance and under the earlier Regulation, and as to the reasons for the discrimination, such as it was, at the time of the promulgation of the Ordinance. Not realising at that moment—and the noble Lord, I think will agree that there was some discussion, controversy and doubt about the point in this country—that the Ordinance was so soon to receive the sanction of His Majesty's Government, those responsible in Bengal confined twenty seven Bengali terrorists under Regulation III of 1818. Before the promulgation of the Ordinance warrants of arrest under this Regulation had already been issued by the Governor-General in Council against nineteen of the ringleaders, and were being held in readiness as it was thought it might be necessary to use them at any moment. When the Ordinance was promulgated on 847 October 25, 1924, these nineteen were arrested, but, as a matter of convenience, they were arrested in the first instance under the warrants already in existence under Regulation III instead of under the Ordinance. But on January 19, 1925, it was decided to transfer all these nineteen to detention under the terms of the Ordinance, the provisions of which are more restricted than those of the Regulation. I believe that was completely technically accurate, but whether new-warrants were ever issued—I am not sure whether this was technically necessary—or not, the noble Lord may rest satisfied that the persons detained—I will not say that they are in a favourable position—are being treated under this Ordinance and not under the old Ordinance, for which he is not responsible.
That, I think, deals with the matter which probably causes anxiety to the noble Lord. He did, indeed, use one phrase or argument which I was not able completely to follow. If I understood him aright, he said his anxieties were increased by the circumstance that he noticed that the names of three very well known politicians occurred among the list of these nineteen who were arrested under Regulation III of 1818. On this point I did not completely follow the argument of the noble Lord. Did he mean that politicians could not commit any crime?
§ LORD OLIVIER
Not at all. I thought I made it clear that it was unfortunate if these men could not be arrested under the Ordinance, because political capital was made in India out of the fact that they were politicians and had not been arrested under the Ordinance, but under the Regulation.
§ THE EARL OF BIRKENHEAD
The noble Lord will, therefore, be content with this answer—namely, that the warrants for their arrest were already in existence, not on the ground that they were politicians but that they had committed these grave offences in relation to which every requirement of his own Order had been satisfied in dealing with these very people. Among these nineteen—I had better add a word about this—three, as the noble Lord says, were persons of considerable prominence. They were Mr. Subhas Chandra Bose, Chief Executive Officer of the Calcutta 848 Corporation and a close associate of Mr. C. R. Das; Mr. Satyendra Chandra Mitra, a Member of the Legislative Council, and Mr. Anil Baran Roy, secretary of the Bengal Provincial Congress Committee and a Member of the Legislative Council.
I have received, in the course of my duty, and have examined, the proceedings of the Government of India on which warrants of arrest under Regulation III were issued against the nineteen, including the three persons named, and also the reports of the two Judges on each of their cases, and I have personally satisfied myself that none of these men were arrested for the purpose of restraining political activities, however extreme, but because of their connection with conspiracies to commit crimes of violence or to collect arms and explosives for such purposes. The Ordinance, as the noble Lord has pointed out, requires that two Sessions Judges shall review the facts. I was not quite sure whether the noble Lord was complaining of this provision. He said that most of us would rather be tried by a High Court Judge than by an executive officer, but a Sessions Judge cannot be quite described as an executive officer. If it was indeed in the mind of the noble Lord to make any complaint that these matters should be referred only to Sessions Judges, I would remind him that this is his own provision. It was not I who provided that these matters should be referred to Sessions Judges. As a matter of fact, perhaps the noble Lord has forgotten why, but he was quite right in doing so. If he had said that these matters should be dealt with by two High Court Judges you would have been exposing yourselves to the risk of a very inconvenient conflict of jurisdiction when demands were made by habeas corpus or quo warranto to move the High Court. You would have had the fact that there would have been a conflict of jurisdiction between Courts of equal authority. The noble Lord was entirely right in adopting the course he did, and I think he should speak with benevolent kindness of those to whom he gave this function.
The Ordinance requires that two Sessions Judges should review the facts and circumstances under which any order has been issued against a person under the Ordinance and report to the Local Government whether in their 849 opinion there is lawful and sufficient cause for the order. The Ordinance then provides that the Local Government, on receipt of the report, shall consider and pass such orders thereon as appear just and proper. I have made it my business, as was my duty, to ascertain the view taken by these Judges. I have discovered that the Judges have reported, in the case of all persons against whom the Ordinance has been used, that the Government of Bengal were, in the opinion of the Judges, justified in applying the Ordinance. I have also ascertained, as was equally my duty, that the Bengal Government, after an independent examination, has satisfied itself that the Judges were right in the view they took. Therefore, we find the child of the noble Lord functioning in every way as he must have desired and conceived if everything went satisfactorily. I can assure him, so far as I am concerned, that the dice have nowhere been loaded against these men, and nowhere has there been any critical suspicion or any tendency towards inhumanity. The only desire has been to see that the conditions which the noble Lord rightly accepted as necessary conditions to action, should be completely satisfied.
The Ordinance, which was promulgated on October 25 and had force only for six months, has now been replaced by two Acts. A Bill to continue its provisions for five years was placed before the Bengal Legislative Council in January, but leave for its introduction was refused. It was certified by the Governor as being essential for the discharge of his duty in the administration of justice, and the Act was assented to by the King in Council on March 17, after it had laid on the Table of both Houses of Parliament for eight days, during which I am sure it attracted the attention of the noble Lord. There were two clauses in the Ordinance which could not be enacted in the Bengal Council. One gave persons tried under it the right to appeal to the High Court, and another deprived the High Court of the power of issuing a writ of habeas corpus in the case of persons detained under the Ordinance without trial. A Bill containing these provisions was introduced in the Indian Legislative Assembly. It was rejected by the Assembly but passed as recommended by the Governor-General in the Council of State. The 850 Governor-General, I may inform your Lordships, is about to bring this certified Bill into force as an Act at once.
I have only one or two brief observations to add. As regards the general effect of the measures taken, it is significant that the promulgation of the Ordinance coincided with a marked improvement in the situation in Bengal, and it is clear that for the moment at all events the terrorists' plans and associations have been disorganised. I give the credit for that to the noble Lord, the Government of India and the Government of Bengal, but I must make it plain that attempts are still being made to recruit and collect arms and to carry on propaganda in favour of violence. These activities require, and they will receive, unremitting vigilance. The powers conferred by the Ordinance must at present be continued. The existence of these powers, apart from their exercise, operates as a powerful preventative. One notable feature is that the morale of the police has been strengthened and the forces of law and order feel that they can take effective initiative. There has, as the noble Lord knows well because he had to face it when he was in office, been considerable agitation in the Press and among politicians against the Ordinance, but there are no indications of any deep and widespread resentment amongst the general public, either in Bengal or elsewhere.
It has been reported in the Press that Mr. Das has issued a statement which every true friend of India believing it to be sincere must warmly welcome. I have not had a full report of that speech, but founding myself on the fullest report which the Press has made available, I understand that he has expressly and formally dissociated himself and his Party entirely from all forms of violence and that he has given utterance to a plea to the youth of Bengal to abandon the adoption of all such methods. Mr. Das asks us, according to the fullest report I have obtained, to "lay aside undue suspicion." There is nothing which I am more anxious to do, in dealing with the responsible trust which I have to some extent in my hands at this moment, there is nothing that I would more gladly do, than to lay aside any suspicion. I shall watch for the results of this appeal to those who accept his guidance and act 851 under his advice, with hopeful interest. If I see that the revolutionary societies begin to atrophy for want of monetary and moral support and that the channels of communication between the political and the anarchical world are effectively closed, then indeed a new era in Bengal will have begun and the need for what Mr. Das calls "repression" will have disappeared.
But let there be no ambiguity about this. When Mr. Das speaks of "repression" he apparently means the repression of political opinion, and he seeks to put this interpretation into our mouths also. But His Majesty's late Government, who sanctioned this legislation, and the present Government, and the Government of India, and the Government of Bengal, have constantly and justly repudiated any such intention and any such practice. The repression which the Bengal Act contemplated is the repression of crime, and no one who is not a criminal is entitled to express a grievance against that legislation. I invite Mr. Das—and I have not used in the course of this debate a harsh word about him—to take a further step. He has publicly dissociated himself from "political assassination and violence in any shape or form." I make allowance for the difficulties of his position, but I suggest that a conscientious citizen cannot quite stop even there. I ask him to go forward and co-operate with the Government in repressing the violence which he deprecates. If he will do that he will find that the way is open and easy for that which we all of us desire—co-operation between the British Government and Indian political Parties with a view to the progressive realisation of responsible government in British India as an integral part of the Empire upon the understanding of a real and honest partnership. That road still remains open to be trodden by the population of India, but never will the goal be reached upon roads of violence attended by desperate crimes.
§ LORD OLIVIER
My Lords, I am very glad to have been the occasion of eliciting from the noble Earl both the reply to my Question and also the concluding part of the observations that he has addressed to you. With regard to the substance of his reply to my Question, I should like to say this: He referred to my having criticised the restriction of the jurisdiction 852 of these cases to Sessions Judges, for which I myself was, as he says, re sponsible. I simply pointed out that Sessions Judges do not always enjoy in India, or even here, so much confidence as members of the High Court, and that consequently it was the more necessary that we should have, and that India should have, an assurance from so high an authority as the noble and learned Earl that he personally, following the personal examination of that high judicial authority, Lord Reading, had examined these cases and was satisfied that all of them—and I take his assurance as a personal assurance—strictly came within the intentions of the Ordinance as being cases where a criminal intention had been proved. That, is what I wanted to elicit. I am only rather sorry that I cannot, I suppose, with any success press him for facts. I would have liked some definite statement as regards the precise character of the offences that had been gone into and had, in the opinion of the Government, been proved against those arrested. I do not know whether he can give any indication—
§ THE EARL OF BIRKENHEAD
The noble Lord will realise that this is too important a question to answer on the spur of the moment. If he will write to me I will consider it.
§ Motion, by leave, withdrawn.