SAVARKAR, HABEAS CORPUS AND PERMANENT COURT OF ARBITRATION: A HISTORICAL NARRATIVE
In 1909, AMT Jackson, the collector of Nashik, was invited by the locals to attend a drama organized by them as their gratitude for his transfer from Nasik. This drama was the famous Maratha play “Sangeet Sharada,” which was highly instrumental in inspiring the passage of the Child Marriage Restraint Act (so much so that the CMR Act was also called Sharda Act). The day the drama was organized, AMT Jackson was shot dead by three Indian revolutionaries. The investigation started and the link for sponsoring the guns for the assassination was connected to an Indian-born law intern at Gray’s Inn. The reason for assassinating Jackson was his earlier role in arresting another nationalist, G.D. Savarkar (for charges under Section 121-A, IPC). The supplier of guns now wanted by Scotland Yard was Vinayak Damodar Savarkar. But on the journey of extradition to India, Savarkar jumped from the ship and landed on French Soil. Before British officers could get hold of him, a French officer caught him and in cooperation with the British police returned Savarkar. When the French Government came to know about it, they demanded Savarkar’s restitution. British Government refused. Thus began the Savarkar Case at the Permanent Court of Arbitration in 1911.
Savarkar in England and Habeas Corpus:
Savarkar had left India in 1906 for England to study law at the University of London under a “Shivaji fellowship” to which he was recommended by Balgangadhar Tilak. Before leaving for England, Savarkar had founded the Abhinava Bharat Secret Society, which will later play an essential role in the assassination of AMT Jackson. In England, Savarkar established a branch of Abhinav, started translating Giuseppe Mazzini’s writing in Marathi, and came in close touch with Har Dayal Singh and Bhikaiji Cama. Coincidentally, his most important contacts had moved to Paris due to personal reasons or to escape the Scotland Yard after the assassination of William Curzon by Madan Lal Dhingra in 1909.
Savarkar was on Britisher’s list since his days in India. The assassination in Nasik by members of his organization brought the spotlight on him again. As a preventive measure, he was called on by his close contacts to stay in Paris but his days in Paris were not long. As the Nasik Trial progressed in Bombay the members of Abhinav Society were sentenced to punishment, and the London Branch of the Society called back for Savarkar. The Nasik trial’s verdict had already instructed Savarkar’s deportation for supplying pistols and making seditious speeches in 1906. On his return from Paris, before he could even touch the platform of Paddington, he was arrested by Scotland Yard detectives.
The local Magistrate at Bow Street Police Court remanded Savarkar to the Brixton Jail under Fugitive Offenders Act, 1881. Section 10 of the 1881 Act provided the power of the superior court to discharge any fugitive absolutely or on bail if it found that the nature of the case is trivial or arrest not being made in good faith or considering the distance, facilities for communication, and other circumstances, be unjust or oppressive or too severe a punishment. Savarkar approached the King’s Bench Divisional Court for writ of Habeas Corpus read with Section 10 because the rules of evidence in India were substantially different and oppressive than that of England, and extradition would be unfair. Interestingly, the government was represented by Rufus Daniel Isaacs (then Solicitor General of Britain and later Viceroy of India in 1921) and Sir Sidney Rowlatt. The English law practice followed the system of “Rule nisi” under which if the court found any prima facie ground for granting the writ, it will pass an “order nisi” show causing the authority to explain why it shall not issue a writ (A similar procedure of nisi orders can be found in The Bombay High Court Appellate Side Rules, 1960). The King’s Divisional Court passed an order nisi only on Habeas Corpus (and not S.10 relief). Later, considering the merit of accusation against Savarkar, the court discharged the nisi order and refused to make it absolute.
The same was appealed before the appellate court on the grounds that the superior court shall exercise its original jurisdiction under S. 10, and the previous Divisional Court nisi order will not act as res judicata because it was limited to habeas corpus. The state argued that S. 47 of the 1881 Act barred any appeal from the Divisional Court’s decision unless some error of law was apparent upon the record. Without going much into details (considering the appellate court’s decision is a study in itself), the three-judge bench in The King v. Governor of His Majesty’s Prison, Brixton. Ex Parte Savarkar on June 16, 1910, held that the order of the Divisional Court was in the nature of criminal cause, and the present appeal was barred by S. 47. A leave to file a petition on the original side was given but again in Application under the Fugitive Offenders Act, 1881 — Ex-party Vinayak Damodar Savarkar, the original application to conduct a trial in England was dismissed considering the proximity of the case to India. Thus, began extradition proceedings.
Extradition and the escape to Marseilles:
Savarkar was carried through P. & O. steamship’s Morea on July 06, 1910. As per the plan of the British officers, a new route was to be taken for security purposes under which no foreign stops were to be made once having crossed the Bay of Biscay. Due to circumstances unknown, after almost a couple of days, a halt was made at Marseilles. Savarkar took the chance and escaped through the port-hole onto the French Soil. What followed makes for a dramatic story and led to an International Arbitration.
Savarkar was hoping to get in touch with his contacts in France. In a chase with British officials, he was confronted by one French police officer, Mr. Pesquié, and a few local dockhands. As per the Le Petit Provençal report of July 17, 1910, the British officers shouted “Stop thief” while chasing, causing the local attention and assistance to catch hold of Savarkar. Savarkar pleaded to be presented before a magistrate, but the French officer gave into the authority of British officials and handed Savarkar back to them. By the time Savarkar was deported to India, the international press and the Indian revolutionaries realized the incident. They started a solid agenda to raise questions to the French government on its sovereignty.
The French newspapers such as Matin, Journal des debats, Liberté, the patrie and the Libre Parole called the incident a violation of French sovereignty, liberal ideas and protection of individual liberty. The French government was continuously targeted with headings such as “Humiliating Passivity of the French Government” and “negation of French character.” Similarly, though a few English newspapers such as The Time defended Savarkar’s arrest as merely “socialist agitation,” questions on arrest were raised by other liberal newspapers such as The Daily News and the Labor MPs to the incumbent Liberal Party in the House. Even certain NGOs like Ligue des droits de l’homme (Human Rights League; now called International League for Human Rights) made representations to the French foreign office calling the incident a “violation of a basic principle of international law.” [collective reference]
Taking cognizance of the affair, the French government objected to the British government for the restitution of Savarkar. The negotiations started in July 1910 itself, but it was not before October 25, 1910 that a written agreement was finally signed between the two countries referring the matter to arbitration.
The Indian nationalists living in Paris then wanted the best representation for Savarkar and they engaged Jean Laurent Frederick Longuet, the French politician, journalist, a trained lawyer and the grandson of Karl Marx (on daughter’s side). Mr. Longuet was a fine choice considering his inclination towards French nationalism with a pro-asylum/refugee stance. Interestingly, Mr. Longuet much before in many articles written by him in L’Humanité had called Savarkar’s arrest on French soil as a case of “a double irregularity, a double illegality.” Bikaji Cama arranged power of attorney by 3–4th November 1910 to facilitate the representation. However, the tribunal did not entertain such personal representation by Mr. Longuet in a bilateral state arbitration. Though Mr. Longuet was able to hand over the copies of his submission, neither his name nor his arguments find any mention in the final award. Thus, such representation was effective of not much result. On a side note, Mr. Longuet continued raising his voice for asylum and refugees, including work permits to Jewish refugees of the 1930s and his co-authored appeal for Asylum Law at the International Conference on Asylum Law, 1936.
Meanwhile, efforts were being made by Nationalists in India to contact Savarkar. Then Secretary of State for India, John Morley was constantly in touch with legal offices and the Bombay Government for a proposal on suspension of Savarkar’s trial till the settlement of deliberations with the French government. The attempt to seek an interview by a few lawyers with Savarkar was denied by the Magistrate First Class on August 1, 1910, only to be finally granted a conditional interview on September 02. However, Morley sent a telegram to the Bombay government on August 31, 1910 stating that no further suspension is required “as French Government will be told that proceedings in Court cannot be stopped but that, if the conclusion arrived at on the international issue should require it, we shall still be able to restore him to their jurisdiction after judgment has been pronounced.” Thus, Savarkar’s trial finally began on September 11, 1910.
Savarkar refused to cooperate in the trial on the ground that his arrest was illegal. Savarkar was represented by the lawyer and the statesman, Mr. Joseph Baptista. The preliminary challenge of the question on the power to conduct the trial when the arrest at Marseilles could have been illegal was finally committed to the Bombay High Court. The Bombay High Court in a three-judge bench decision on October 06, 1910 held that the circumstances of arrest in France were irrelevant, and the only power of the Magistrate here was to conduct a trial on Savarkar. The court reasoned that as long as the accused was charged before a Magistrate for a crime committed within India, the procedural propriety of arrest in some other country cannot impede trial in India.
Permanent Court of Arbitration:
The arbitration compromis between France and Britain put two issues for arbitration: legality of arrest and restitution of Savarkar. Further, any other issue not covered by the Agreement was to be decided under the International Convention for the Pacific Settlement of International Disputes, 1907. Under the Agreement, a five-member tribunal was formed.
At that time, the PCA was not so frequently resorted for Arbitration. PCA was established only in 1899 after the Peace Conference in Hague as the first permanent intergovernmental organization for peaceful settlement of disputes. The year Savarkar’s case was initiated at the temporary tribunal of the PCA, only two other cases were earlier decided: the Newfoundland fisheries case (Great Britain, United States of America) and the Orinoco Steamship Company case (United States, Venezuela). But this shall not come as a surprise considering even certain permanent courts like the Supreme Court of USA, though established in 1789 did not have its first case till November 1790!
The line of argument from the French side was the Britishers could not have firstly brought a political prisoner on French territory without permission and secondly, as soon the concerned ship entered the French waters, British jurisdiction was over. The Britishers could not have arrested Savarkar in France as criminal law has no extraterritorial application.
The British government in response argued that the French government was made aware of such a transition beforehand. Further, the incident cannot fall into the technical meaning of transit of a criminal on foreign land. All that happened was momentarily and by accident. Any irregular help by the French constable was a concern of the domestic government and cannot lead to restitution.
The Award written by President Beernaert on behalf of the tribunal and published on February 24, 1911 decided that Savarkar’s custody could not be restored. The tribunal relied on the British submission that they had already sent a letter on June 29th, 1910 and July 4th, 1910 informing the French authorities about a possible halt at Marseilles and the cooperation requirement from the local police considering Indian nationalists were living in France. Further, there was a letter written by the Director of General Security (Directeur de la Sûreté générale) to British Police informing that he had already given orders to the French local police for assistance till the ship was docked at Marseilles. The tribunal concluded that such exchange of information confirmed that the French constable acted on the pre-instructions of the French authorities itself although he may not be aware of the identity of Savarkar and nature of his offences or any preceding events. Further, the British officers must have also acted on the presumption that the French officers were assisting them. The involvement of British officers in taking Savarkar back from French territory was merely contributory with good faith, and it was the French constable who mainly led the arrest. Lastly, the Tribunal concluded that though there may be irregularity in arrest because of circumstances, there was nothing in international law that obligates the government to restore custody because of a “mistake committed by the foreign agent.”
In the meantime, Savarkar had been found guilty in the Nasik Conspiracy Case by a Special Tribunal of the High Court of Judicature at Bombay headed by Chief Justice Basil Scott (who later went on to become a member of Rowlatt Committee), Sir Narayan Ganesh Chandavarkar (the Hindu Reformist and former leader of Prarthana Samaj) and Justice J.J. Heaton and through the judgment delivered on December 24th, 1910 Savarkar was punished with transportation for life. In another charge of abetment of murder, the Bombay High Court delivered judgment on February 03, 1911 and found Savarkar guilty. With the decision of the arbitral tribunal on 24th February, Savarkar was finally transported to Cellular Jail, Andaman, and the entire saga of assassination of Jackson to trial in London to escape at Marseille and the arbitration at PCA came to an end.
The chain of events in the Savarkar case highlights how historically different people and concepts surprisingly interacted with each other. Much more could be written about, especially the Nasik Conspiracy Trial, but that will require a study of its own. This piece aimed not to analyze the judgments of these cases but to narrate the chain of events that otherwise are found in a scattered manner. As Alan Bennett, the famous English playwright in his play The History Boys writes,
“The best moments in reading are when you come across something — a thought, a feeling, a way of looking at things — that you’d thought are special…..”
This is an unabridged version of a piece I wrote first for Bar and Bench at: