The Committee has said all that it could against individual publicists,
Indian public movements and the native press. They have found no fault
with the Anglo-Indian press and the Government. The whole force of their
judicial acumen has been applied in recommending fresh measures of
repression and suppression which they have divided into two kinds:
Punitive Measures, Permanent, (_a_) Points of General Application.
The measures which we shall submit are of two kinds, viz.,
Punitive, by which term we mean measures better to secure the
conviction and punishment of offenders, and Preventive, i.e.,
measures to check the spread of conspiracy and the commission of
crime.
We may say at once that we do not expect very much from punitive
measures.[1] The conviction of offenders will never check such a
movement as that which grew up in Bengal unless all the leaders
can be convicted at the outset. Further, the real difficulties
have been the scarcity of evidence due to various causes and the
want of reliance whether justified or not, on such evidence as
there has been. The last difficulty is fundamental and cannot be
remedied. No law can direct a court to be convinced when it is
not.
Punitive Measures (Permanent).
Legislation directed better to secure the punishment of seditious
crime may take the shape either--
(_a_) of changes in the general law of evidence or procedure which
if sound would be advisable in regard to all crime, or
(_b_) changes in the substantive law of sedition or modifications
in the rules of evidence and procedure in such cases designed to
deal with the special features of that class of offence.
The recommendation under (_a_) does not amount to much and we will not
mention it.
Under (_b_) they recommend:
In the first place we think that a permanent enactment on the
lines of Rule 25A under the Defence of India Act is required. That
rule provides for the punishment of persons having prohibited
documents (which may have to be defined anew) in their possession
or control with (as we read the effect of the words used) intent
to publish or circulate them....
We also recommend that the principle of section 565 of the Code of
Criminal Procedure (which provides for an order requiring
notification of residence after release in the case of persons
convicted a second time for certain offences) should be extended
to all persons convicted of offences under Chapter VI of the Penal
Code (offences against the State) whether previously convicted or
not. Such persons might be ordered to give security for a period
not exceeding two years for good behaviour so far as offences
under Chapter VI are concerned, and in default be directed to
notify their residence to Government, who should have power to
restrict their movements for the period of two years after their
release and prohibit them from addressing public meetings,--the
term "public meetings" including in its scope political subjects
as in section 4 of the Prevention of Seditious Meetings Act of
1907.
Lastly, we think that in all cases where there is a question of
seditious intent, evidence of previous conviction for seditious
crime or association (of an incriminating kind, of course) with
persons so convicted should be admissible upon written notice to
the accused with such particulars and at such a time before the
evidence is given as might be fair. What we have called seditious
crime would of course have to be accurately defined.
Now it is evident that after such legislation all liberty of speech and
action becomes extinct. These recommendations will we fear directly lead
to secret propaganda and secret action.
Under the head of emergency punitive measures the committee recommends:
Emergency Provisions for Trials. Coming now to the measures
themselves, we are of opinion that provision should be made for
the trial of seditious crime by Benches of three Judges without
juries or assessors and without preliminary commitment proceedings
or appeal. In short, the procedure we recommend should follow the
lines laid down in sections 5-9 inclusive of the Defence of India
Act. It should be made clear that section 512 of the Code of
Criminal Procedure (relating to the giving in evidence under
certain circumstances of depositions taken in the absence of an
absconding accused) applies to these trials, it having, we
understand, been questioned whether section 7 of the Defence of
India Act has that effect.
We think it necessary to exclude juries and assessors mainly
because of the terrorism to which they are liable. But terrorism
apart, we do not think that they can be relied upon in this class
of cases. They are too much inclined to be affected by public
discussion.
We omit the detailed discussion of these provisions in which the
committee has attempted to soften the sting of these recommendations by
giving their reasons and by suggesting certain safeguards against their
abuse. The most startling of their recommendations are however made
under the head of emergency preventive measures.
Emergency Preventive Measures. We have been forced to the
conclusion that it is necessary, in order to keep the conspiracies
already described under control in the future, to provide for the
continuance after the expiry of the Defence of India Act (though
in the contingent form explained and under important limitations)
of some of the powers which that measure introduced in a temporary
form. By those means alone has the conspiracy been paralysed for
the present and we are unable to devise any expedient operating
according to strict judicial forms which can be relied upon to
prevent its reviving to check it if it does revive, or, in the
last resort, to suppress it anew. This will involve some
infringement of the rules normally safeguarding the liberty of the
subject. We have endeavored to make that infringement as small as
we think possible consistently with the production of an effective
scheme.
Existing Temporary Powers. The powers at present temporarily
possessed by the Government are so far as material for the present
purpose to be found in rules 3-7 inclusive and 12A under the
Defence of India Act, 1915. We do not refer for the present to
the Foreigners Ordinance, 1914, or the Ingress into India
Ordinance, 1914.... Shortly stated, their effect is to give power
to require persons by executive order to remain in any area to be
specified or not to enter or remain in any such area, with
penalties for breach of such requirements. These orders may be
made and served on the person affected, whereupon they become
binding upon him, or the person may be arrested without warrant
and detained for a period not exceeding in all one month, pending
an order of restriction. There is also a power of search under
search warrant. It will be observed there is no provision for an
examination of the cases of such persons. The decision lies solely
with the Local Government. There is also the power of confinement
under Regulation III of 1818.
Again:
"Two Grades of Powers Desirable.--We now proceed to elaborate ...
the scheme we suggest.
"We think, as we have already indicated, that the powers to be
acquired should be of two grades capable of being called into
operation separately, possibly under different forms of
notification.
"The first group of powers should be of the following nature:--
"(i) to demand security with or without sureties;
"(ii) to restrict residence or to require notification of change
of residence;
"(iii) to require abstention from certain acts, such as engaging
in journalism, distributing leaflets or attending meetings;
"(iv) to require that the person should periodically report to the
police.
"The second group of powers should be--
"(i) to arrest;
"(ii) to search under warrant;
"(iii) to confine in non-penal custody.
"In Article 196 they provide "that in respect of acts committed before
the Defence of India Act expires (or an earlier date if preferred) and
danger apprehended by reason of such acts in the future it should be
lawful to proceed against any person under any of the provisions which
we have outlined without any notification. In other words, the new law
is to be deemed to be operative for that purpose immediately."
Articles 198 and 199 suggest measures for restricting "Ingress into
India" and also for regulating and restricting "Inter-Provincial
Movements."
Need it be said that if these recommendations are accepted there will be
no liberty of press or speech in India and the Reform will fail to
suppress the revolutionary movement at all. Indian opinion is unanimous
in condemning these recommendations as has been proved by the unanimous
opposition of all sections of Indians in the Viceroy's Legislative
Council to the bills that have been introduced to give effect to them.