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The Epic Trial of the INA
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I was with several other colleagues closely associated with the late Shri Bhulabhai Desai during his defence of the INA case, and I may be considered somewhat partial to his great effort, but nevertheless I make bold to say that it will rank as a great forensic performance. It was definitely, I believe, the first argument delivered before a tribunal which endeavoured to justify in point of law, both International and Municipal, the right of the Indian people to wage a war for the liberation of their country from foreign bondage. The argument could have had indeed a wider application; it would cover all peoples at present subject, like India, to foreign rule and desirous of regaining their lost liberties. The case of Indonesia is directly in point. The late Bhulabhai Desai delivered an oral argument. He spoke on two days, altogether for over ten hours, and had almost no notes. The argument was well worthy of consideration in the highest law-courts of the land. There, counsel would have been assisted in the development of his points by observations made from the Bench. In the superior courts of justice, a legal argument of this magnitude and high importance would occasion the keenest lively debate between the Bench and the Bar, both engaged in the search and elucidation of first principles of International law relevant to the controversy before them. But speaking before a Court Martial consisting of military officers the late Shri Bhulabhai Desai had no such advantage. There were no interruptions of any kind from the first to the last, and the whole argument was a sustained effort to present a point of view which Counsel thought was well-founded in Law and fully applicable to the facts of the case. Speaking purely as a lawyer and in the interest of law and jurisprudence, I regret the absence of a formal judicial pronouncement on the merits of the case as presented by Shri Bhulabhai Desai. His thesis was controverted by the Advocate-General of India (Sir N. P. Engineer) who appeared for the Prosecution, but the matter must rest without a judicial decision, at least for the present. |
Shri Bhulabhai Desai quoted extensively from the authoritative textbooks, — British, American and Continental on International Law. It was noteworthy that all these books having been written by European jurists dealt at length with the States to be found in Europe and America. There was scarcely any mention of the countries or the peoples — or the inherent right of these peoples — in Asia and Africa, then under the domination or protection or influence of European States. But it is beyond question that International Law is not static. It is a dynamic force. It has grown from century to century, and owes its exposition and development to the labour of publicists, of textbooks, of writers, of jurists, and agreement between the nations and international practice. Furthermore, International Law from the 16th to the 19th century was professedly limited to the Christian nations of Europe and America; the rest of the world was considered to consist of savages and uncivilised barbarians. But there have been vast developments in the 20th century; old conceptions have changed, the so-called uncivilised peoples, the coloured races, have fought in the European theatres of war, with or against the allies, — the British Indian troops and the Negro forces of America have fought all over the globe. International Law must therefore be extended in its scope to include all the peoples of the world living under recognised administrations in definite societies irrespective of considerations of colour or race. Furthermore, in the 18th and 19th century the peoples living in the so-called colonies were considered to be unfit for government and wholly incompetent to govern themselves. In this century that conception must be discarded. In 1946 America has definitely agreed to grant full independence to the Philippines; the Arab countries including Egypt are independent in fact and in law. India has been promised independence. This being so, International Law must recognise the right of India to raise in revolt against its foreign rulers.
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Even in a national State, International Law recognises the validity and the legality of civil wars. Every civil war is a definite revolt against constituted government. A civil war in a national State is nothing but an attempt on the part of one political group or party to overthrow the constituted government and substitute its own authority therefor. It is really nothing but a mere change in the form or structure of the national government. If the insurgents in such a civil war can under International Law engage in a civil war and acquire the status of belligerents, the greater must be the right conceded under International Law to a subject people to rise in revolt against an external authority which is in military occupation of another country, and holds another people under domination without any colour of natural right or justification. In view of the principles enunciated in the Atlantic Charter and by President Truman, all people are entitled to be free and all foreign rule is unjust and without any basis under International Law.
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Under the rules governing procedure prior to the holding of a Court Martial, it is necessary to record preliminary evidence, as far as possible, in the presence of the accused, and when it is finally decided to bring the persons concerned to trial before Court Martial, the accused are furnished with a summary of this evidence. Such a summary had been furnished to the accused in the present case. Its perusal made it evident that the Prosecution were themselves anxious to establish that the accused were members of a well-organised and well-disciplined army which was maintained by a newly-formed State called the Provisional Government of Free India. At the trial, voluminous evidence, oral and documentary, was recorded. The defence produced high officers of the Foreign Department of the Japanese Government, and many members, officers and men of the INA were also examined as defence witness. At the end, really there was little dispute as to the actual facts of the case, and Shri Bhulabhai Desai was able to establish — I say successfully — that the facts were really beyond controversy. He has marshalled those facts with great skill in his argument, and I may briefly summarise them here:
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Over 2 millions of Indians were settled prior to 1941 in the various countries of East Asia, for example, Burma, Malaya, Singapore, Annam, Java, Sumatra, Borneo, etc. These people considered themselves to be a homogeneous community and were not the nationals or the domiciled subjects of the country where they resided.
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As soon as Japan declared war on the 8th December, 1941, the conditions of Indians in East Asia became very precarious. As country after country in East Asia was run over by the Japanese in quick succession in a few months, Indians were left completely unprotected, open to depredations of all kinds, and their life, honour and property were entirely at the mercy of the invaders. Their first thought was to take such steps as were open to them for their own security. British power, to which they might possibly have looked up for protection, had for the moment disappeared, and the future was dark and uncertain. The demand of the present was insistent.
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In February, Singapore fell, and large number of Indian troops were surrendered to the Japanese. Col. Hunt handed over these troops with bag and baggage to the Japs, and expressly stated that henceforward they should obey orders of the Japs just as they would have obeyed the orders of the British, otherwise they might be punished.
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Shri Bhulabhai Desai submitted that this open handing over absolved in law Indian troops from their allegiance to the British king. This allegiance being purely legal, when protection was withdrawn, the duty of the subject to the King was also extinguished. In the case of the subjects of a national State there may or may not have been a different result, but that question did not arise here in the case.
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It was proved that the Japanese made a clear offer to the Indian troops to organise, if they wanted to, as a separate State for the protection of their own countrymen in East Asia. This matter was carefully discussed by the Indian civilians, and the purposes of the Japanese in making this offer were closely scrutinised. There was not the least desire or inclination to become puppets in the hands of the Japanese. The real anxiety was, first, protection of the Indians in East Asia, and secondly, the achievement of freedom of India. This latter object was also important, because in 1942 there was a real danger of the collapse of the British power in India, and then the existence of a free Indian Government to carry on the administration in India was a matter of vital importance.
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Representative Indians living all over East Asia met in conference in Bangkok, and decided upon the formation of an Indian National Army. Immediately after the commencement of hostilities between Japan and Britain, the Indian Independence Movement had been launched, and an Indian Independence League had been established, and its branches had been formed in Malaya. After the Bangkok Conference in June 1942, the movement spread all over East Asia. Branches of the II League were formed everywhere with a large membership. The Indian National Army was wholly national in the sense that it was manned and officered by Indians alone and was also supported end financed by Indians. Under the stress of circumstances it had to buy, or take on a lend and lease basis, arms, ammunitions and military equipment from the Japs.
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It was proved that while the INA was formed in 1942, it did not engage in any warlike operation against the British in 1942.
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Owing to internal differences and some suspicion arising out of the vagueness of the statements of Japanese Ministers in relation to India, the INA was disbanded in December, 1942, and ceased to function even on paper as a military organisation. A Council of Action, however, continued to look after the security of the Indians in Malaya and elsewhere.
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On the arrival of Shri Subhas Chandra Bose in Singapore in June 1943, the Indian National Movement took a definite concrete shape. There was immense enthusiasm and support among Indians of all communities behind Subhas Chandra Bose. By common consent a new Indian National Stale was formed. Subhas Chandra Bose was by common consent elected to be its Head. He owed allegiance to this State. He had a Government consisting of many Ministers and again all swore allegiance to the newly formed State. The Provisional Free Government of India was formed. An Army, the INA was organised, equipped and trained in a strict accordance with Military Law as obtaining in other countries in Europe and America. It was recognised as an Independent State by many Powers who were then fighting the British and its allies. All the Indians in East Asia owed allegiance to this State, and as many as 2,23,000 were proved to have taken the oath of allegiance to the new State, and out of them at least over 23,000 actually volunteered to serve among the combatant ranks of the INA The Provisional Government had its own funds and resources, and subsequently acquired its own territories. From 1944 it engaged itself in active war-like operations against the British. It took part in the Arakan campaign in 1944; it fought in Burma in 1945.
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The late Bhulabhai Desai contended that under International Law the Provisional Free Government complied with all the requirements of a Sovereign State. Over 2 millions of a homogeneous community were the members of the Slate. The Government carried on in so far as it was possible in the circumstances then prevailing, all governmental activities. It had numerous departments. It had a well-organised disciplined army, it had its own Act, and it was at war with Britain.
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The leading counsel for the defence clearly showed from the evidence that suggestions made on behalf of the prosecution that Indian prisoners of war had been coerced into enlisting in the INA were baseless. Evidence was almost unanimous that no pressure of any kind was ever exercised. Shri Subhas Chandra Bose — Netaji — as he was called affectionately throughout East Asia by all Indians — made it clear over and over again that any one who did not wish to fight, may without the least hesitation withdraw. This option was given, almost quixotically, even at the front by some of the accused. Evidence was also emphatic that volunteers were too many to be absorbed in the INA and there was a large surplus of volunteers. And as the late Bhulabhai Desai said, in those circumstances it would be ridiculous for anybody to try to coerce any one to enlist. From Netaji downwards, all leaders and officers insisted upon with almost painful reiteration, that this was an army for a noble cause, viz., the liberation of India, that Netaji could not offer anything but blood and sweat and toil and tears; that conditions of service were bound to be hard and austere; the rations were scanty; and the pay was meagre. With all this, the spirit and morale were high, because the resolve was great. The Army had its own flag, its own emblems, its own badges, and was definitely treated as allies by the Japanese Government. He pointed out that even in Europe as between Allies there were unified commands and mutual help of all kinds. He further insisted that whatever may have been the intentions of the Japanese Government, it was clear that the members of the new Indian State and their Army believed in good faith that they were fighting on terms of equality, and that when they entered India they would enter as liberators. Proclamations were issued by which it declared that every inch of Indian territory conquered, would be administered by the Azad Hind Government, and for that purpose special officers had been trained for civil administration.
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The late Bhulabhai Desai also discussed at length that the Azad Hind Government had territories of its own. The Andamans and the Nicobar Islands had been formally ceded to them and had been renamed by them. They had also some territory in Burma, 15 sq. miles in area under their direct administration, and they exercised control over extensive tracts on the Assam border, which were temporarily occupied by the INA.
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It is true that in the text-books on International Law, great emphasis is laid when dealing with insurgents on the possession by them of a definite territory. This must be so in the case of internal rebellions or civil wars, whether by some of the residents of the country or by a colony situated outside the mother country. If the insurgents are able to set up an independent State, have an organised army, it is obvious that they cannot live in the clouds, and must have some definite territories under their control and administration. The case of Azerbaizan in Persia is an instance in point. Similarly, with a colony like the American Colonies in 1775 — the late Bhulabhai Desai relied greatly upon the Declaration of Independence issued by Washington and his colleagues. It is equally obvious that the insurgents in such colonies may set up a State by denouncing the rule of the mother country. But the same rule in International Law, he argued, would apply with equal force to a liberating army coming from outside. Indians in East Asia were over 2 millions in number but they had no territories of their own. They resolved to organise themselves for their own security as well as for the winning of the freedom of India. They formed a State. They organised an army; hut obviously they could only depend for a territory of their own either by cession from their allies or by the anticipated liberation of their own country. He pointed out that in the two world wars, landless Governments were a common feature. In World War No. 1, Belgium lost all its territory. In World War No. 2, London was a heaven of the emigres Governments of Poland, Belgium, Holland, Czechoslovakia, Yugoslavia and others, who had for many years not an inch of territory under their control. They had lost all their possessions. The period of time makes little difference, it is the fact which matters. Similarly, under modern circumstances it is perfectly possible for a State to function as an independent unit under International Law, whose chief aim is to liberate its own territories from foreign occupation.
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I wish to emphasise clearly that the late Bhulabhai Desai was addressing a legal argument. He was not addressing a political or a legislative assemhly. He, therefore, insisted that once you find a newly-formed State with a well-organised army carrying on war, then municipal law must cease to apply. The matter passes from the domain of ordinary criminal law to the rules and laws of civilised war. Amidst the clash of arms the ordinary criminal law becomes silent. He quoted copiously from text-books, but still more forcibly from declarations made by British statesmen, including Mr. Churchill in 1937 during the non-intervention controversies arising out of the civil war in Spain, about the right of peoples to rebel against constituted authorities and their further right to be recognised as belligerents by neutral countries. He referred to the announcements of General Eisenhower regarding the status of Marquis of France. He invited attention particularly to a very apposite passage in a leading text-book on International Law, viz., Oppenheim, which was published in 1945, and which, according to the late Bhulabhai Desai, constituted the present position under International Law. He further argued that even under the municipal law of India that is to say, the Indian Penal Code, Section 79 of the Code clearly recognised as a justification for any offence — even an offence of waging war against the King — any law applicable to the matter, and he said that the rules of International Law are always accepted everywhere in all civilised countries, in America and in the English Courts, as rules having the force of law. Therefore, even on the narrow ground of Section 79, a state of war was a complete answer to the charge. Anticipating an argument on the part of the prosecution based on allegiance, he drew a distinction between what may be called legal allegiance as opposed to natural allegiance. In the first place allegiance involves a reciprocal obligation of protection on the part of the Sovereign, and the Defence Counsel insisted that when at the meeting held at Farrer Park on the 16th of February, 1942, Col. Hunt handed over all officers and men of the Indian Army, almost body and soul, to the Japanese, the bond of allegiance was broken. At any rate, the people concerned were justified in believing and did believe in good faith that the bond no longer existed. In a free country having self-governing institutions, a good deal may be said on the virtues of allegiance, but to insist upon an everlasting allegiance on the part of a subject people would be tantamount to asking them to agree to the perpetuation of their slavery. Shri Bhulabhai Desai contended that it was the right of every Indian, if he so thought fit, to disclaim his allegiance to the British king and join an army of liberation for gaining the freedom of India. Dual allegiance to king and country may, in the case of free governing countries, coincide, but in the case of a subject people there is bound to be a conflict of loyalties. The American Colonies in 1776 deliberately disowned the king in preference to the country, and the Indian and the INA were entitled to do the same.
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The accused were charged separately with murder in that in accordance with the provisions of the Indian National Army Act some deserters had been tried by Court Martial and sentenced to death. The late Bhulabhai Desai in the first place argued that there was no reliable evidence that these sentences had been in fact carried out. On the contrary, there was evidence that in many other cases such sentences of death had been remitted. In the alternative, he argued that any such separate charge was really groundless in point of law. The accused, who were members of the INA, were acting in obedience lo superior orders, were units of an organised army, and could not be tried for individual acts. Liability, if any, was of their State. They owed no personal liability at all. There was not the slightest proof that they had committed any atrocities so-called, any acts of torture or anything. They had behaved throughout as honourable men from the highest motives of devotion and patriotism to their country. And they were entitled to be treated as P.O.W., and this was precisely the claim which they made when the INA surrendered in Rangoon and when particularly Capt. Sehgal offered to surrender to a detachment of the British troops.
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I do not want to detain readers any further from a perusal of the late Bhulabhai Desai's effective argument. As I have said, my only regret is that it was not addressed before a Court of Law like the Federal Court or the High Court in India. Had it been, I have no doubt that the Judges would have observed, in the words of the Lord Chief Justice of England in an equally celebrated case, "It was an argument well delivered in accordance with the highest traditions of the Bar and in furtherance of Justice."
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The late Bhulabhai Desai argued not only at a lawyer but at an Indian on behalf of brother Indians, who had sacrificed their all in a notable endeavour for gaining the lost freedom of their country according to their lights.
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From Netaji: His Life and Work, edited by Shri Ram Sharma, published in 1948 by Shiva Lal Agarwala & Co. Ltd., Agra
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