RECOMMENDATIONS FOR REPRESSIVE LEGISLATION

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.

The Political Future of India · 第 86 / 132 题