Interestingly, after the British government’s strategic decision, Parker zoomed in on the time they arrived at Marseilles, adding fanciful details to it. The governor of Bombay’s telegram dated 20 August 1910 shows how in less than a month Parker managed to remember so much more than what he had testified to in a departmental inquiry. He suddenly mentioned the details of the commissaire spécial of the port, who came on board and spoke to him in French, which he could understand only a little. He then showed him the letter exchanges. He even said that among the gendarmes who were introduced to him, Brigadier Pesquié too was most probably one of them, although he could not be ‘absolutely sure’. 28 It was a wonderful manipulation of concocted facts.
Sir Edward Grey also took care to note that after his escape, Vinayak was ‘arrested and conducted back to the “Morea ” by a French gendarme. This officer never relaxed hold of Savarkar from the moment he arrested him till he was delivered on board the “Morea ”.’ 29 The testimonies of Amarsingh and Muhammad Siddik were thus craftily airbrushed. Speaking of their role, Sir Grey however mentions:
The action of the ship’s steward and two Indian constables who, on hearing of the escape of Savarkar, had landed and taken part in the pursuit seems, as a result of the fullest investigation to have wholly confined to assisting the French police officer to escort Savarkar back to the ‘Morea ’ and it can hardly be contended that there was anything unlawful or irregular in this proceeding. It is a common occurrence in every country for independent individuals to assist police officers, if they think they need it, in the execution of their duties. In any circumstances the action of these persons on this occasion in no way affected the final issue and being, as it was, cooperation with a French official willingly accepted by him at the time it cannot be regarded as derogatory to French authority either in fact or intention. 30
Interestingly, as per this account the head constables had merely ‘heard of the escape’, and not seen it themselves, as they had testified solemnly in their depositions. Sir Grey argued that Ambassador Cambon’s demand to restore Vinayak to France on the grounds that he had acquired a right of residence and asylum on French soil was negated by their authorities at both Paris and Marseilles. Moreover, Vinayak was not a French citizen to lay claim to such a right which could be made by France only if it felt that its sovereign rights had been violated. But with this new reconstruction of events that possibility too had been effectively negated. He cited the case of one Lamirande in 1866. A French criminal, Lamirande, who was a cashier at the Poitiers branch of the Bank of France, had escaped to Canada, where his surrender in extradition was demanded by the Government of France. Before the legal proceedings of extradition could be completed, the French consul applied to the British Governor General for a warrant by the latter for the immediate dispatch of the prisoner to France. The Governor General, in complete ignorance of the legal proceedings that were under way for extradition, issued the warrant and the man was shipped off. Before the mistake was discovered, he was given to French custody on board the French ship, and it was too late to prevent his departure. This case, according to Sir Grey, presented striking similarities to the ‘Savarkar Case’. Concluding his argument, Grey mentioned that in case the French still did not agree, the British government was open to submitting the matter to arbitration in accordance with international law.
The French government was totally taken aback by this argument and was found fumbling for a response. Ambassador Cambon called the British Foreign Office in panic and conveyed that the likelihood of Minister Pichon being attacked violently in the French Chamber was considerable. They desperately wanted to get the trial in India postponed. Cambon explained his difficulties that the French Chamber saw no distinction between the jurisdictions of the British government and the Indian government. But the British government was not going to budge, neither was it willing to give any assurances to their French counterparts. 31
Clutching at straws, the diplomat at the French embassy in London, Émile Daeschner, wanted to know if an oral assurance that Vinayak would not be executed in India could be given confidentially. An amused Morley suggested that Sir Grey instead give a formal assurance that ‘whatever may be the result of the trial of Savarkar, no step involving “irreparable consequences” will be taken pending the settlement of the international question’. 32
Accordingly, by an exchange of notes dated 4 and 5 October 1910, Britain and France agreed to submit to arbitration ‘on the one hand the questions of fact and law raised’ by the Marseilles episode, and on the other hand ‘the demand of the Government of the Republic of France with a view to the restitution to them of Savarkar’. 33 On 25 October, an agreement was concluded between the two governments about the constitution of such an arbitration tribunal and the questions to be placed before it. The following articles were drawn up for the tribunal:
Should Vinayak Damodar Savarkar, in conformity with the rules of International Law, be restored or not be restored by His Britannic Majesty’s Government to the Government of the French Republic?
The Arbitral Tribunal shall be constituted of five arbitrators chosen from the members of the Permanent Court at The Hague. The two Contracting Parties shall settle the composition of the Tribunal. Each of them may choose as Arbitrator one of their nationals.
On 6 December 1910, each of the High Contracting Parties shall forward to the Bureau of the Permanent Court fifteen copies of its case, with duly certified copies of all documents, which it proposes to put in. The Bureau will undertake without delay to forward them to the Arbitrators and to each party: that is to say two copies for each Arbitrator and three copies for each Party. Two copies will remain in the archives of the Bureau. On the 17th January 1911, the High Contracting Parties will deposit in the same manner their Counter-Cases, with documents in support of them. These Counter-Cases may necessitate replies, which must be presented within a period of fifteen days after the delivery of the Counter-Cases. The periods fixed by the present Agreement for the delivery of the cases, Counter-Cases, and replies may be extended by mutual agreement between the High Contracting Parties.
The Tribunal shall meet at The Hague on the 14th of February 1911. Each Party shall be represented by an Agent, who shall serve as an intermediary between it and the Tribunal. The Arbitrary Tribunal may, if it thinks necessary, call upon one or other of the Agents to furnish it with oral or written explanations, to which the Agent of the other Party shall have the right to reply. It shall also have the right to order the attendance of witnesses.
The Parties may employ French or English language. The members of the Tribunal may, of their own choice, make use of the French or English language. The decisions of the Tribunal shall be drawn up in the two languages.
The Award of the Tribunal shall be given as soon as possible, and, in any case, within thirty days following the date of its meeting at The Hague or that of the delivery of the written explanations, which may have been furnished at its request. This period may, however, be prolonged at the request of the Tribunal if the two High Contracting Parties agree. 34
The agreement was signed by Paul Cambon and Sir Edward Grey. It was decided that any other points in connection with the arbitration that might arise and which were not provided for by the agreement would be determined by the provisions of the International Convention for the Pacific Settlement of International Disputes signed at The Hague on 18 October 1907. The Hague tribunal, formerly known as the Permanent Court of Arbitration, owed its existence to a Europe-based agreement, which later became international law codes.
The composition of the tribunal for the Savarkar case was agreed upon as follows:
Monsieur Beernaert, Minister of State at Brussels and a member of the Belgian Chamber of Representatives who was to act as the President of the Tribunal.
From Britain, it was the Earl of Desart, KCB, formerly Solicitor to His Majesty’s Treasury, late King’s Proctor and Director of Public Prosecution.
From France, it was
Monsieur Louis Renault, Legal Advisor to the French Ministry for Foreign Affairs.
Monsieur le Jonkheer A.F. de Savornin Lohman, formerly Minister of the Interior at The Hague.
Monsieur Gram, formerly Minister of State in Norway. 35
They were all members of the Permanent Court of Arbitration at The Hague. Eyre A. Crowe of the Foreign Office was to be the British agent. The best course of things would have been to allow this tribunal to settle the case between Britain and France and then continue the trial back in India. The tribunal was anyway mandated to settle the case by February–March 1911. The London press castigated the British government for the mess it had got itself into. As a sharply worded editorial in The Times noted:
It is of course deeply to be regretted that the fate of such a prisoner should in the event of his conviction in the Indian courts be dependent upon the decision of another tribunal on points of international law, which, however important in themselves, are wholly irrelevant to his actual guilt. But, for this, we have unfortunately only to thank the ineptitude of our own officials responsible for sending Savarkar in a ship that touched at any foreign port whilst there were so many ships available that sailed direct from England to India; and secondly that of the officials actually in charge of Savarkar during the voyage on board the Morea through whose inconceivable negligence he was allowed so obvious a chance to escape. 36
The Homeward Mail from India, China, and the East lamented:
Every thinking person reading the account of the escape and recapture of Savarkar at Marseilles must be filled with a sense of humiliation. The administration of this country has again been brought into withering contempt. Savarkar was in custody on charge of waging war against the King and abetment of murder. His guilt or innocence will be determined by the Courts; it is perfectly immaterial to our point, which is that he was in custody on a very grave charge. Four police officers were deputed to bring him to Bombay for trial. How did they discharge their trust? . . . it was obvious, even to the meanest intellect, that if Savarkar meant to escape his one chance was at Marseilles. 37
Many leaders, activists and legal experts also expressed their displeasure at the double standards of the British government for allowing the trial in India to continue even as the arbitration at The Hague was under way. For instance, the Committee of the International Arbitration and Peace Association, London, was quite annoyed with the continuance of the trial in India. They passed a resolution on 27 October 1910, which said:
This Committee, while expressing satisfaction at the reference to The Hague Court of the question of the legality of the arrest of Savarkar on French soil, protests against the continuance of the trial until the decision of The Hague Court has been given. In view of these circumstances the Committee urges that the tribunal shall be called together with the least possible delay. 38
L’Humanite noted with alarm the news of the trial having commenced in India: ‘What we wish to stigmatize is the gross indifference of these magistrates, who, without having the elementary courtesy to await the results of the negotiations actually in progress . . . proceed, despite everything, to try Savakar. If we can call such a procedure a trial.’ 39
But the British government could not care less for such dissent and was simply unwilling to put the Nasik Conspiracy Case trial on hold. All these suggestions to defer the trial were disregarded. On the other hand, it was mandated to expedite the hearings and wrap up the case by the end of 1910 or by January 1911. Vinayak was too dangerous for the British government to be left locked up in a jail, that too in India, awaiting trial. Even as these hectic international parleys were under way, Vinayak’s fate hung in the balance in what was to be a sham of a trial, its outcome a foregone conclusion.
Bombay, September 1910
The special tribunal—without a jury and with no right of appeal to the accused—began its work in September 1910 in Bombay. It consisted of Sir Basil Scott, the chief justice of Bombay High Court, Justice Narayan Ganesh Chandavarkar 40 and Justice Heaton. The prosecution counsels were the advocates general of Bombay—Jardine, Weldon, Welinkar—and Nicolson was the public prosecutor. Defending Vinayak and his co-accused were Joseph Baptista, Govindarao Gadgil, Chitre, Sethna, Thacker and Ranegenekar. Vinayak was moved from Nashik prison to Yeravada in Poona and then to Dongri Jail in Bombay. There were three trials that Vinayak faced here.
In the first one, known as the Nasik Conspiracy Case, there were as many as thirty-eight other co-accused. There were nearly 278 depositions that the prosecution had lined up between January and April 1910. When the proceedings began on 15 September 1910, Vinayak was brought to court in a special van and with extra-special security, given his notoriety. It is said that the moment he entered the dock, he heard the sound of claps. When he looked at the vacant benches and galleries and wondered who were clapping, he realized it was all the other co-accused in the dock below him. It was here that Vinayak also saw his younger brother, Narayanrao, after a long time. The two siblings exchanged affectionate looks and non-verbally boosted each other’s morale. The government had managed to secure four approvers in the case—Kashinath Ankushkar, Dattatraya Joshi, W.R. Kulkarni and Chaturbhuj Amin. 41
At the commencement of the proceedings, Vinayak’s counsel, Baptista, raised the fundamental issue of the validity of the proceedings and the ongoing international row related to his arrest. He said:
Savarkar was prevented from holding any conversation while the P&O Liner Morea, on which he was being taken out to Bombay, was in French waters. Savarkar, on arrival at Marseilles, requested to be landed, claiming that he had been wrongfully arrested. This request was, of course, refused. Not only this, two French officers went on board the Morea but were not allowed to speak to Savarkar. He then determined to escape. Having gained the shore, he saw that two English detectives and three of the Morea ’s officers were in pursuit. He ran about 300 yards but his pursuers gained on him. He then turned to a French gendarme for help asking to be taken at once to the commissary of Police. At this moment, the detectives arrived and one of them took Savarkar by the neck, the other by the arm. In this brutal fashion, he was taken on board, put in chains and kept in secrecy. 42
The judges instantly overruled the objection. In its 28 September ruling it said that since the prosecution had a single, vast conspiracy to expose, it would be appropriate to try the pleaders in conjunction rather than separately. There were allegations of attempts to murder Gopalkrishna Gokhale and Justice Dinsha Davar, who had arbitrated against Tilak in the 1908 sedition case. Hence, the court ruled that the ambit of the trial seemed more expansive than what was initially sought to be examined.
On 1 October 1910, the court discussed the various provisions of the Extradition Act under which Vinayak was brought back to India. When repeatedly asked, Vinayak merely replied that he did not recognize the validity of the court that was trying him and hence would not wish to make any statements there. He clearly stated his judicial boycott:
I am quite innocent of the charges laid against me. I took part in the proceedings of the trial in England where in courts one can expect to get justice. There the authority does not rely upon brute force. The condition of Indian Courts of Law is quite the reverse. I am not amenable to the jurisdiction of an Indian Court of Law, I therefore, decline to give any statement or bring any evidence for my defence. 43
The five charges that were pressed against Vinayak were: 44
Waging and abetting the waging of war against the King (IPC, 121).
Conspiring to wage war against the King (IPC, 121).
Collecting arms with intent to wage war against the King (IPC, 122).
Sedition (IPC 122).
Abetment of murder (IPC 302 and 109).
As the trial proceeded, some of these charges were dropped, while others were expanded. For instance, the abetment to the murder charge was divided into two parts. The first charge was that Vinayak, while in London and elsewhere, engaged with certain specified persons and others n
ot specified for the murder of officials of the Government of India. In pursuance of this conspiracy, he had sent out twenty Browning pistols from London to Bombay around February 1909. The consequence of this was that Anant Kanhere murdered Jackson in Nashik in December of the same year. The second charge was that Vinayak had conspired with the specified persons and others ‘to overawe by means of criminal force and show of criminal force the Government of India’ 45 and yet again did this by sending Browning pistols. Vinayak’s speeches of 1906 and before in India were also put to trial for sedition. The various offences were clubbed under three cases titled ‘Nasik Murder Case’, ‘Nasik Conspiracy Case’ and ‘Abetment of Murder and Sedition’. As part of the Nasik Murder case, Kanhere, Karve and Deshpande had already been executed on 19 April 1910 and the other accused were yet to be tried.
The Nasik Conspiracy Case had thirty-eight accused, including Vinayak, from Nashik, Bombay, Pen, Poona, 46 Yeola, Aurangabad, Hyderabad and other places in the Deccan. All except one were Brahmins, mainly Chitpawans. Twenty-seven of them were found guilty and given various sentences. 47 The trial went on for sixty-nine days with more than thirty witnesses brought to testify. 48 Three of the accused—Shankar Balwant Vaidya, Vinayak Sadashiv Barve and Vinayak Kashinath Phulambrikar—were discharged earlier in the trial because they had turned approvers. 49
According to J.A. Guider’s deposition, it was the investigation into the Jackson murder that had led the police to unravel a widespread network and to the ‘discovery of arms of various sorts’ and also revealed ‘the existence of secret societies for the overthrow of the British Government in different parts of India’. 50 The plot began to unravel with the investigation of Ganu Vaidya on 23 December 1909. Guider had merely found a piece of paper with Hemchandra Das’s name on it during his raid on Babarao’s house. As per British colonial criminal code and procedure this was sufficient evidence to implicate him. The links between the revolutionaries of Maharashtra and Bengal and their secret societies were a matter of great concern for the British government and the fact that these associations began to emerge in the raids unnerved them.
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