The two trials that I wish to comment upon bear significant bearing on the growth of both law, and history at their distinct levels. The attempt is to analyse the two historical events and evolve a scheme to explain the evolution and changes brought about in legal systems over a period of time.
Second Tilak Trial: In 1908, Bal Gangadhar Tilak authored a two articles in his Marathi mouthpiece ‘Kesari,’ which became the subject matter of a charge of sedition by the colonial government, culminating into a trial in 1909 by a jury directed by Justice Davar, at the Bombay High Court. Tilak was convicted and sentenced for six years’ imprisonment. This was accompanied by seemingly casual but grave and solemnly “disparaging” remarks by Justice Davar as to the means adopted by Tilak in particular and Indian nationalist struggle in general. Tilak was transported to Mandalay in Burma.
Mahatma Gandhi’s Sedition Trial: In 1922, Mahatma Gandhi, in a similar, or rather a more aggravated vein had authored three sets of articles in what he started as ‘Young India.’ Gandhi was tried for having committed the offence of sedition by ‘exciting disaffection’ against the ‘Crown Representative established by the law’ in 1922 at the Ahmedabad Sessions Court, by Judge CN Broomfield. Gandhi too was convicted, and awarded the very same punishment. But, what was different in this case was the reverence and consideration by Judge Broom field to Gandhi and his methods in no equivocal terms. Reliance is placed upon S.B. Kher, The Law and The Lawyers by M.K. Gandhi, 108-126 (1962 Navjivan Trust).
The function of an historiographical exposition is to uncover the differences across various entities such as place, time, culture, nation as to the sense of what constitutes the “past.” It is this which establishes a “dialogue” between the past and the present, thus shaping the perspectival discipline known as “history.”
Law, in that sense is in deep affection with the idea of a chronology; it develops as time progresses. Legal evolution is grounded on temporal underpinnings of what we understand as the requirement for order and regulation.
The two trials, grounded on the same positive legal formulation, in the form of a written statutory provision, offer starkly contrasting consequences in the form of the dictum of two courts forming a part of one jurisdiction, and one state system.
From Tilak’s conviction to Gandhi’s, there seems to have been a shift in the juristic policy, reflecting the bigger changes in the wider governmental apparatus vis-à-vis the Indian nationalist movement.
Perhaps, of a similar magnitude were the changes occurring at the side of the government, or even more profound, as were the transformations in the means, methods and demands being made by the nationalists. The latter had evolved from seeking more representation within the British scheme of governance to dominion status, and later to Purna Swaraj, or complete independence. This seems to have effectuated policy shifts on the side of the Raj as well, making it proportionately aware of its shortcomings and lapses in carrying out the government.
The historiographical contention being proposed here is as to the way in which Judge Broomfield, in his capacity of being the mouthpiece of the law, seems to have made the law a “respecter of persons,” while unnecessarily and inconsequentially making the futile caveat to the contrary in his judgment. This is both, in furtherance of, and despite the dozen year old case of Bal Gangadhar Tilak, decided in 1909 by Justice Davar of the Bombay High Court.
Therefore, Judge Broomfield’s way of looking at the past (where he used Davar’s dictum as a “precedent”), is in one way adopting the past into the then present, and yet traversing a path unknown to the past. His obiter takes a stance which is at the other end of Davar’s musings, and thus re-interprets the Indian nationalist struggle in his own way, being the veil of his judicial function of deciding punishment for Gandhi’s commission of the offence of sedition.
Therefore, I draw a distinction between historical prominence and magnificence on the one hand, and “judicial precedent” on the other. An integral ingredient of a precedent is its reasoning. Therefore, Broomfield’s reliance over Davar’s judgment did not give in to the judicial notion of a precedent, but to the prominence of his judgment as a prominent historical fact, which couldn’t have been afforded to be ignored in this “similar” case of Gandhi’s commission of the offence of sedition.
In the sense of it, the requirement of stare decesis is not fulfilled by Davar’s judgment, for the fact that the considerations which played in there were very different from those in Gandhi’s trial. Broomfield’s disposition, while pronouncing the judgment was drastically different from the pessimism of Davar. Precedent entails to “stand by things (already) decided,” which was certainly not the case with Broomfield, for he stood at a distance from Davar, and the only convergence being in the form of sentence awarded in the form of punishment.
Within the Larger Picture: Colonial “Justice”
Justice, both as a conception and as an ideation, has no uniform or universal sense. The divergent and dichotomous relationship between Indian nationalists and colonial governmental vis-à-vis their conception of what constituted fair, just, and reasonable is well understood
What, on the contrary is remarkable is that this divergence comes on the face of the very same system. This comes into paly when a native English judge (Broomfield) was relatively fairer to Gandhi in his obiter than a native Indian Justice (Davar) was to Tilak. Further, this had to take place within the same colonial overarching instrument of the state machinery, the judiciary.
This changing constant, as I would like to put it, what sets apart judges from other administrative or official authorities within the largest political ideation of the state. How are judges both ‘changing’ and yet ‘constant’ is a matter of extended historiographical analysis and discussion in this sense. Judges, it must be noted, while they are nonetheless functioning within the larger system, which remains static; they are yet at the same time considerably free and autonomous.
This calls for an apt reproduction from Judge Broomfield’s judgment which was more fair to the Indian nationalist struggle than Justice Davar:
“The law is no respecter of persons. Nevertheless, it would be impossible to ignore the fact that you are in a different category from any person I have ever tried or am likely ever to try. It would be impossible to ignore the fact that in the eyes of millions of your countrymen you are a great patriot and a great leader; even all those who differ from you in politics look up to you as a man of high ideals and of noble and even saintly life…I propose, in passing sentence, to follow the precedent of the case, in many respects similar to this case, that was decided some twelve years ago, the case of Mr. Bal Gangadhar Tilak, under the same section. The sentence that was passed upon him as it finally stood, was a sentence of simple imprisonment for six years. You will not consider it unreasonable, I think, that you should be classed with Mr. Tilak… if the course of events in India should make it possible for Government to reduce the period and release you, nobody would be better pleased than I.”
The historiographical contention here being that judges’ autonomous nature to rely or not rely on particular facts, which may have a historical bearing; is tantamount to them being positioned on the driver’s seat and pass different judgments, relying on different facts.
From Davar to Broomfield: A Hazy Highness
Judges, when they speak for the courts, inevitably become the subject matter of not only contemporary criticism, but also historical research, and discussion. The way the discipline of history has treated the two judges who decided over the two trials has been quite dissimilar. This is in keeping with the nationalist -favouring tradition of history writing of the Indian freedom struggle. This might seem to be a correct proposition, that judges are judged for what and how they judge. But, judging the judges is not usually or ordinarily detached or isolated from the notions of hierarchy entrenched and engraved in judicial administration, which takes place at multiple levels.
It is pertinent to note that Davar being a High Court Justice, and where as Broomfield belonging to the creed of Indian civil service offers, and serving as a district and sessions judge, shared a relationship of what has been termed as judicial deference and discipline. Davar was over and above Broomfield in terms of his decision making authority and jurisdiction.
On the contrary, the history treats the latter favorably for his kind and considerate remarks over Gandhi, which are taken in contradistinction to Davar’s obiter in Tilak’s case. The historiographical significance of this divergence in treatment is a trite. It is submitted that Broomfield’s cognition of Davar’s judgment was not in the form of judicial deference, but in its own ways, giving in to historical considerations.
Judicial Dicta and Reverberations: Verdict of History over Judgments
Judgments are operative instruments which have a binding and coercive effect at the time when they are delivered. They influence, and determine human conduct through their own juridical logic. Historical treatment of judgments however, is not always in such a compliant fashion.
People from both the sides, those reading the law, and those studying history have come to terms with the inevitable condition where legal judgments are subjected to historical scrutiny. This is a historiographical contention, wherein the sense which people make of their past legal and juridical works is altered by times and tides. Judgments too, in that sense, are “historical facts,” and are therefore, nowhere above the verdict of the historians.
The jurisprudential narrative, according to which law is in the closet, isolated from scrutiny of the general or laymen public, is therefore attacked by the “historical materialism” which treats legal and juridical verdicts of the past.
But, can it be said that the historical verdict carries with it the potential to overrule past judicial pronouncements? That is a question, which however finds disputed answers. The same is apparent in the controversy of erecting the statue of Tilak in the quadrangle of the Bombay High Court; where a court caught in obedience to its judicial discipline, struggles to come to terms with the historical treatment meted out its “judicial pronouncement” under the colonial work. Chief Justice of the Bombay High Court, MC Chagla, came under scathing criticism for having made the suggestion that decisions of his predecessors on the Bench had been rightly decided against by the “inevitable verdict of history,” when he said as follows:
“There is no honour and no distinction which I have valued more than the privilege of being able to unveil the tablet to Lokamanya Tilak’s memory this morning…That disgrace tarnished our record and we are here to remove that tarnish and that disgrace. It may be said that those convictions were a technical compliance with justice; but we are here emphatically to state that they were a flagrant denial of substantial justice. He was sentenced for the crime of patriotism…Ladies and gentlemen, the verdict that our contemporaries passed on us, the verdict that our times passed on us, is not of much value. We must always await the inevitable verdict of history.”
This apparent conflict between judicial finality and historical overruling is yet to find its final answer, especially in situations where the overarching system of governance is decimated, but the old courts of law subsist, albeit with new persons.
Birth of a Nationalistic Jurisprudence: Appropriation of Justice
The law of Sedition has survived the British exit from India. This is the same law, for which the Gandhi had to say the following:
“Section 124A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence. But the section under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it; I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section.” (Emphasis supplied).
To say that the intentions to bring into the statute book, Section 124A were utterly anti-national and to further despotic colonial interests would be to add little to what has already been said by others.
What this paper, in this section, seeks to propose and prove is that trials such as those of Tilak in 1909, and of Gandhi in 1922, to be fully and wholly understood in terms of their significance, must be placed within the larger socio-political and juridical framework which can represent the developments taking place in the Indian nationalist struggle in general, and the twentieth century in particular.
The acceptance of the judicial pronouncement by Tilak post his trial, captured by the following extract, has come to exemplify how compliance of British-ordained judgments also, in its own logic, came to stand for causes that were nationalist in their character:
“There are higher powers that rule the destinies of men and nations; and I think, it may be the will of Providence that the cause I represent may be benefited more by my suffering than by my pen and tongue.”
Any historiographical explanation of these two trials, which were definitely not insulated judicial acts, but carried with them larger socio-political penumbral influences. The cases at hand, were to come handy at a later point of time, to the new ‘courts,’ and their new ‘characters’ to make an old law work in the new democratic setup, that India had built for itself.
It was to pave the way for a new Supreme Court to evolve its own jurisprudential basis for upholding the law of Sedition under the auspices of the Constitution of India. This was expressed in terms of its “Tilak Marg jurisprudence” through the challenges that came before it in an India independent of the despotic legal regime of the Raj.
One another, historical proposition, which offers a beautiful sense of how nationalists made sense of this side of the past. They say that, in the case of Gandhi, if not Tilak, the state and its despotic instrumentality was put to trial, in converse by the ‘accused.’ The nationalistic accused’s fervent challenge and protest during the process of the trial, was interpreted to not only sustain, but give a new flavor to their means, methods, and ends.
The alternative version to the officialdom of trial; where the state was put to trial, is perhaps, a peculiar exemplification of historiographical exposition. The different was to look at same instance(s) in the past is perhaps best captured by this nationalistic appropriation of juristic function, giving birth, in its own right, to what I term as nationalistic jurisprudence.
The idea that the state was indicted by Gandhi, is best captured and supported by this extract from Gandhi’s statement in the Court:
“The law in this country has been used to serve the foreign exploiter. My unbiased examination of the Punjab Marital Law Cases has led me to believe that at least ninety- five percent of convictions were wholly bad. My experience of political cases in India leads me to the conclusion that in nine out of ten the condemned men were totally innocent. Their crime consisted in the love of their country. In ninety-nine cases out of hundred justice has been denied to Indians as against Europeans in the courts of India…In my opinion, the administration of the law is thus prostituted consciously or unconsciously for the benefit of the exploiter“.
Law and Conscience in a Historical Perspective
Gandhi quite openly remarked that he was not obliged to obey the law, which was unreasonable, unjust, and therefore contrary to his conscience, both in its letter and spirit. For Gandhi, their legal system comprising of laws and courts was but a mere tool and technique and one of the many was through which the British Raj fulfilled its exploitative goals, when he said:
“the administration of the law is thus prostituted, consciously or unconsciously, for the benefit of the exploiter.”
When looked at from a historiographical perspective, this tussle between law and conscience seems to have been influenced by the larger socio-political and economic factors within the social setup. For the shaping of one’s conscience, which ultimately takes a shape of something to be contrary to the law, is just but one instance where the enacted and posited law fails to capture the imagination of its subjects.
Gandhi’s statement during the trial, which has been described as an explanation to why “a staunch loyalist and co-operator should become an uncompromising disaffectionist and non co-operator“ went as follows:
“Non violence is the first article of my faith; it is also the last article of my faith; but I had to make my choice. I had either to submit to a system which I consider has done an irreparable harm to my country or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips.”
Historiographical imagination suggests that this was not primarily due to the moral emptiness of the law, but for the unquenched moral thirst of the law makers. The province of law, as Austin remarked, emanates from the command of the sovereign. In this regard, where the law was inextricably linked with despotic interests and goals of British rule, there was dearth of reposition of faith in the law, for the legal rule makers where themselves in search for their own legitimacy.
Anti-Positivist Notions of Natural Law: Historical Legalism
The attempt of this paper has been to establish a relationship between jurisprudential aspects of law and historiographical method of gaining sense of one’s past. When the law which was posited by Judges Justice Davar and Broomfield in 1909 and 1922 was a “good law” insofar as institutionalized British legal system was concerned with it. The nationalist ideation went in directions diametrically opposite to it; for the simple reason of ideological clash of what should have been lawful, was considered unlawful, by an “unlawful” and illegitimate authority which was “illegally” governing them. While for the British, the law still seems to be very clear on purely positivist grounds.
The same, however, cannot be said of the Indian nationalist thought. For them, the law enacted, the law applied, and the law interpreted by the British was inherently contrary to the moral principles of legal-rule making. While doing this, they were alluding to the principles of “natural law,” which ought to and should govern every legal system, in whatever it does.
This positive law-natural law debate and dichotomy runs on the historiographical proposition of something on the lines of “historical materialism,” which I would like to term as historical legalism.
It is through this process of historical legalism that one may understand and make sense of not only of one’s past, but also changes and transformations incorporated or made into a legal system across a span of time. This, has been succinctly attempted at by this paper by looking through annals of history, at the tale of two trials.
Thus, the idea of historical legalism as attempted to have been exposited is apparent at the level of two trials which have been taken as two distinct yet related events in the history of modern India.
It is through this process that once a natural law (but not a positive law as of then) may take the role of a positive law, later in the course of time, as would be determined by the process of historical legalism as explained above.
 K. Satya Murthy, Handbook on Research Methodology in History, 116 (1995 Sterling).
 E.H. Carr, What Is History?, 30 (1987 Penguin Books).
 See ‘Darwin’s Excellent Adventure: Evolution and Law’, in Allan C. Hutchinson, Evolution and the Common Law, 23 (2005 Cambridge University Press).
 Louis E. Wolcher, Law’s Task, 169 (2008 Ashgate).
 Quintessentially, a statutory provision in the form of Section 124A, IPC.
 In the form of the colonial super state-structure.
 See ‘The Fruits of Macaulay’s Poison Tree’ (1985) in Partha Chatterjee, Empire & Nation, 91 (2010 Permanent Black); Rajeev Gowda et.al., Judgments, Decisions, and Public Policy, 9 (2002 Cambridge University Press).
 See ‘Colonialism, Stages of Colonialism and the Colonial State’, in Bipan Chandra, Essays on Colonlialism, 58 (1999 Orient Longman).
 See ‘Mass Nationalism-Emergence and Problems’ in Sumit Sarkar, Modern India, 165 (1983 Macmillan India).
 Sekar Bandyopadhyay, Nationalist Movement in India, 139 (2009 Oxford University Press).
 See S.B. Kher, The Law and The Lawyers by M.K. Gandhi 108-126 (1962 Navjivan Trust).
 See ‘Stare Decisis-A Sociological Perspective’ in A. Lakshminath, Precedent in Indian Law, 52 (2005 Esatern Book Company).
 See Arvind Narrain, “My Experiments with Law”: Gandhi’s Exploration of Law’s Potential, 6, NUJS L. Rev., 273 (2013).
 See Sudipto Kaviraj, Gandhi’s Trial and India’s Colonial State in Experiencing the State, 308 in Lloyd I. Rudolph et.al., Experiencing the State (2006 Oxford University Press).
 Walter F. Murphy et.al., Courts, Judges, and Politics-An Introduction to the Judicial Process, 60 (1929 Random House).
 Carlo Guarnieri et.al., The Power of Judges, 68-134 (2002 Oxford University Press).
 Walter F. Murphy et.al., Courts, Judges, and Politics-An Introduction to the Judicial Process, 3-24 (1929 Random House); Also see Cass R. Sunstein, Are judges Political?, 107-129 (2006 The Brookings Institution).
 David Hardiman, Gandhi in his Time and Ours, 238, (2003 Permanent Black).
 See ‘How I Decide a Case’ in Judge Robert Satter, Doing Justice, 63 (1990 Simon & Schuster).
 See Chief Justice MC Chagla’s speech, which the Bombay High Court’s website describes as “admirably patriotic, or patriotically admirable; but legally and judicially inexplicable and indefensible.” Available here http://bombayhighcourt.nic.in/libweb/historicalcases/cases/Second_Tilak_Trial_-1909.html (last accessed 1 September, 2016).
 R. Prakash, S.D. Singh’s Judgments and How to Write Them, 1-5 (2005 Eastern Book Company).
 Jonathan Seoharno, The Integrity of the Judge, 47 (2009 Ashgate); Also Dato’ Dr. Cyrus Das, Judges and Judicial Accountability, 255 in Soli J. Sorabjee, Law & Justice (2004 Universal Law Publishing).
 Penny Darbyshire, Sitting in Judgment, 406 (2011 Hart Publishing); Henry J. Abraham, The Judicial Process, 1-18 (1998 Oxford University Press); Also see Robin C. White, The Administration of Justice, 73 (1985 Blackwell Publishers).
 Mahatma, Vol. II, (1951) pp. 129-33, This speech is from selected works of Mahatma Gandhi Volume-Six; The Voice of Truth Part-I.
 Kedarnath Singh v. State of Bihar, AIR 1962 SC 955. And before the Supreme Court, the Federal Court had done something similar in Niharendu Dutt Majumdar v. The King Emperor, 1942 F.C.R. 38.
 See S.B. Kher, The Law and The Lawyers by M.K. Gandhi 108-126 (1962).
 Sekhar Bandopadhya, From Plassey to Partition and After: A History of India, 289 (2014).
 Richrd A. Myren, Law and Justice-An Introduction, 31 (1988 Brooks/Cole Publishing).
 Ramachandra Guha, Gandhi Before India, 115 (2013).
 Lon L. Fuller, The Morality of Law, 95 (1969 Yale University Press).
 John Austin, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence, 1-9 (1965 The Humanities Press).
 P.J. Fitzgerald, Salmond on Jusrisprudence,15 (1966 Sweet & Maxwell).
 Sir Thomas Erskine Holland, The Elements of Jurisprudence, 43 (1924).
 Historical materialism is a methodology to study human societies over a long duration of time and was first exposited by Karl Marx (1818–1883).