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Mainstream, VOL LVIII No 1 New Delhi December 21, 2019 | ANNUAL NUMBER

On the Centenary of the Amritsar Congress (December 1919 - December 2019)

Saturday 21 December 2019, by Anil Nauriya

The new Act... ignores the insistent demand of the country for a Declaration of Rights... A feature of the Act which has disappointed me much is the failure to do justice to the political rights of Indian women... To the Kisan delegates present here, I am glad to see in their hundreds, who represent the great agricultural proletariat of this country and to the labour delegates, this Congress owes a special duty. We have to see to their enfranchisement and to the improvement of their hard conditions of life. Motilal Nehru [Presidential Address at the Amritsar Congress, December 27, 1919]

It is difficult to characterise a mind that invents and takes pleasure in inflicting a punishment whose object is merely to degrade man’s state. [Report of the Commissioners appointed by the Punjab Sub-Committee of the Indian National Congress, 1920, p. 61].  

April 13, 1919 can never be forgotten by us, not only because of the wanton killing of the innocent, but because it signified the utter failure of the bureaucratic Government of India. It was the final appeal to force and terrorism and it signally failed to achieve its object.  Motilal Nehru, The Independent, April 6, 1920

I

In a few days we will be observing the centenary of the historic 34th session of the Amritsar Congress held from December 27, 1919 to January 1, 1920. “The Amritsar Congress was the first Gandhi Congress,” Jawaharlal Nehru tells us in his Autobiography (1936).1 “Lokamanya Tilak was also present and took a prominent part in the deliberations, but there could be no doubt about it that the majority of the delegates and even more so the great crowds outside looked to Gandhi for leadership.”2 This session was held in the aftermath of the massacre at Jallianwala Bagh in April 1919, the air-bombing of Gujranwala and the imposition of martial law in the Punjab. These events were themselves the reaction of a nervous colonial government to the widespread nationwide response to the call given by Mahatma Gandhi for a hartal against the Rowlatt legislation (observed on March 30, 1919 in Delhi and on April 6, 1919 throughout India).

The centenary of the Amritsar session, which saw the emergence of Mahatma Gandhi to the national leadership, comes up from its eve on December 26, 1919. This article is meant to draw attention to certain aspects at the juncture of which the session was held and does not purport to be a comprehensive account of it.3 The session was opened in the afternoon of December 27, 1919 in a pandal in the Aitchison Park opposite the railway line in Amritsar, with around 10,000 delegates attending from all over India. Hasan Imam, who had served as the Congress President in 1918, proposed the name of Motilal Nehru as the President and Lokamanya Bal Gangadhar Tilak seconded it. Motilal Nehru delivered his Presidential address on the same day. Gandhi spoke on December 29 and 30 and on January 1, 1920. Motilal Nehru’s concluding address was read out by Dr Saifuddin  Kitchlew. The session passed a resolution
asking for the withdrawal of the Viceroy Lord Chelmsford from India. Similar resolutions
were passed regarding action against Michael O’Dwyer on the one hand and General R. Dyer from his command on the other. S. Satyamurti summed up the case against the Viceroy. While “pointing out Lord Chelmsford’s failures in other directions”, Satyamurti said “that in regard to the Punjab he introduced martial law without justification, extended Sir Michael O’Dwyer’s period of office while the people were asking for his removal and did not visit the Punjab during the disturbances.”4 Mahatma Gandhi’s resolution regretting excesses by mobs was carried. It read: “This Congress, while recognising the grave provocation that led to a sudden outburst of mob frenzy, deeply regrets and condemns the excesses committed in certain parts of the Punjab and Gujarat resulting in the loss of lives and injury to person and property during the month of April last.”5 Resolutions were passed, inter alia, to promote Swadeshi and to support the formation of Labour Unions. Gandhi also proposed, strongly supported in this by M.A. Jinnah, an amendment to C.R. Das’ Resolution on the Reforms Act. Ultimately a compromise resolution was agreed to and passed.6 The compromise consisted in the addition of a proviso to the Resolution indicating that pending introduction of Responsible Government “this Congress trusts that so far as may be possible, the people will so work the Reforms as to secure the early establishment of full Responsible Government”; further, the efforts of Mr Montagu on India’s behalf in regard to the Reforms were recognised and gratitude expressed. A significant feature of the Amritsar session was the participation of many women. Begum Hasrat Mohani made a speech on the Khilafat resolution. Further developments, inter alia, in connection with redressal of the Punjab wrongs and Khilafat in the coming months were, however, to rapidly take the country towards non-co-operation.

II

The events in Punjab had been preceded by Army and Police firing in Delhi on March 30, 1919 on those protesting against the Rowlatt legislation. The centenary of this historic protest in Delhi against the Rowlatt legislation went for the most part unnoticed by Gandhi-related institutions as well as the Democratic Rights organisations.

A quick list of those killed in the Delhi firing is set out below and shows the participation of persons from diverse communities in the protest.7

Abdul Ghani, b. 1894. Took part in public demonstration against the Rowlatt Act on March 30, 1919. Killed in bayonet charge by a British Army unit near the Town Hall, Delhi. Died the same day.

Atam Prakash: Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by the police and died the same day.

 Chandra Bhan, b. 1889 : Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by an Army unit and died the same day.
Chet Ram : Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by the police and died the same day.

 Gopi Nath : b. 1889 : Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by an Army unit and died the same day.

Hashmatullah Khan: b. 1890: Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by an Army unit and died the same day.

Mam Raj : Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by the police and died the same day.

 Radha Saran : b. 1897; Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by an Army unit and died the same day.
Radhey Shyam: b. 1891; Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by an Army unit and died the same day.

Ram Kishan: b.1897. Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Seriously wounded in firing the by Army Unit near are Town Hall on that day. Succumbed to injuries a week later.

Ram Lal: b.1886; Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by an Army unit and died the same day.
Ram Saroop: Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by the police and died the same day.

Ram Singh: b. 1891; Took part in a public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by an Army unit and died the same day.
Chander Mal Rohatgi: Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by the police and died the same day.
Seva Ram : Took part in public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wounds in firing by the police and died the same day.

Swattin, son of Abdul Karim: Took part in a public demonstration in Delhi against the Rowlatt Act on March 30, 1919. Received bullet wound in firing by the police and died the same day.

This was then repeated on a larger scale in the Punjab and elsewhere a fortnight later.

For these events, and for the admitted toll alone at Jallianwala Bagh, Amritsar on April 13, 1919, see the analysis in Raja Ram, The Jallianwala Bagh Massacre, Panjab University, Chandigarh, 1969; a list of names of 381 persons killed, based on Punjab Government Archives, is given at pp. 152-174. This appears to be a list of such dead persons whose names could be ascertained. Unofficial estimates are obviously higher. According to Raja Ram : “At least 2000 persons lay in the Bagh, either dead or wounded.”8 The Commissioners appointed by the Indian National Congress had this to say: “In the matter of the death roll, it is interesting to note that according to the Government’s own showing, they did not commence investigating the figure before the 20th August, i.e., four months after the tragedy. Mr Thompson then announced that not more than 290 had died. Now they have practically accepted the Sewa Samiti’s figures viz., 500, which are based on actual tracing and represent the minimum. The exact figure will never be known, but after careful investigation, we consider that Lala Girdhari Lal’s computation of 1000 is by no means an exaggerated calculation.”9

The agitation against the Rowlatt legislation was not, of course, restricted to Delhi and Punjab. It was nationwide and a new generation of leaders arose as a result. It was in the course of this agitation that the Frontier Gandhi, Khan Abdul Ghaffar Khan, son of Behram Khan, rose to prominence in the North West Frontier Province (now in Pakistan). Both young and old were drawn in. The socialist Yusuf Meherally would write: “Gaffar Khan carried the impress of the new ideas into his province, and set about organising his people. Opportunity came when the agitation against (the) Rowlatt Act was started: So great was his power that thousands attended his meetings. After one such meeting, at which his old father, nearing ninety, was also present, Gaffar Khan was arrested and imprisoned without a trial....Subsequently the Government arrested his aged father also...” (my emphasis).10

In his Presidential address at Amritsar in December 1919, Motilal Nehru made a lucid summary and analysis of the Rowlatt legislation:

“You must be perfectly familiar with the provisions of this Act and I shall only notice a few salient features which are enough to condemn it. It invests the Government with “emergency powers” to enable it to deal with anarchical and revolutionary movements. Part I of the Act supersedes the ordinary mode of trial by a special procedure when the Governor-General in Council is satisfied that it is expedient in the interests of public safety to provide for a speedy trial. This speed is attained by doing away with commitment proceedings and the right of appeal which in one word means speed at the expense of justice. It is impossible to underrate the importance of commitment proceedings which give fair notice to the accused of what the case against him is, and how the prosecution seeks to prove it. As to the value of the right of appeal there can be no two opinions. The most remarkable feature of the Act in this respect is that no right of appeal is given even when the judges differ, the only consideration shown being that no sentence of death shall be passed if there is such difference of opinion.

Parts II and III are designed to deal with two classes of anarchical and revolutionary movements but the difference between them is only one of degree. Part II applies when such movements are “extensively promoted” and Part III when they are “prevalent to such an extent as to endanger public safety” But whatever the difference between the two it is impossible in any given case to show that the movement in question was of the one kind and not of the other. For all practical purpose, therefore, the Governor General in Council has a free hand in the matter and may proceed under Part II or III as he likes. The fact that a person is concerned in any movement of either kind is in the first instance to be determined behind his back and later on, when his case is referred to the investigating authority, he is to be given an opportunity to appear at “some stage” (not all the stages) of the proceedings, which are to be held in camera. The unfortunate person is not to be allowed to be represented by counsel. He may not be told the name of his accuser, nor even all the facts on which the accusation is based and is not entitled as a matter of right to examine any witness, or produce any document if the investigating authority considers it unnecessary. To crown all this the investigating authority shall not be bound to observe the rules of the law of evidence and there shall be no appeal from its finding. We then have the drastic powers given to Local Government, which are milder under Part II than Part III but extend to the search of any place and confinement in jail of the person concerned. These, fellow delegates, are some of the staggering provisions of the new law against which the whole country rightly rose as one man.”11

Many Punjab leaders, arrested earlier in the year, had been released on the eve of the Congress session on account of a Royal Proclamation. In his address, Motilal Nehru pointed out also that the Reform Bill, which had been enacted earlier in the month on Indian constitutional reforms, along with certain other measures, had been pushed through to ‘pacify’ this ‘big meeting’, as it had been described in England; a measure of reconciliation after severe coercion. “The new Act”, Motilal Nehru said, “demands our most careful consideration”.12 It “gives us some power”, but “it does not give us free citizenship or the power to check the misuse by the executive of the functions of law and order” and : “It ignores the insistent demand of the country for a Declaration of Rights”.13

Motilal Nehru supported the enfranchisement of women: “A feature of the Act which has disappointed me much is the failure to do justice to the political rights of Indian women. I had hoped that Parliament would profit by the lesson of the women suffrage agitation in England, but they have repeated the mistake of the Franchise Committee. The justice of the claim was recognised and the flimsiest of arguments were advanced in favour of delay. I trust that Indian men will come to the rescue of their sisters and hasten the day of their enfranchisement”.14 He spoke also of the enfranchisement of Labour and the masses and the duty of the Congress towards the “great agricultural proletariat”: “Another unsatisfactory feature of the Act is the attitude shown towards the enfranchisement of the masses and the wage-earning classes. The Joint Committee have limited the total number of people enfranchised to about 1.5 per cent of the population. Mr Montagu welcomed trade unionism in India but added that industrial labour had as yet attained a very small development. He did not choose to tell us how India’s industrial development has been obstructed by the British Indian Government. Nor did he refer to the 80 per cent of our people who depend on agriculture. To the Kisan delegates present here, I am glad to see in their hundreds, who represent the great agricultural proletariat of this country and to the labour delegates, this Congress owes a special duty. We have to see to their enfranchisement and to the improvement of their hard conditions of life”.15

III

These developments occurred in the midst of the preparation of the Report of the monumental fact-finding inquiry, which came to be known in later years as the “The Congress Punjab Inquiry, 1919-1920”. It was published a few months later as the “Report of the Commissioners appointed by the Punjab Sub-Committee of the Indian National Congress”. The Punjab Subcommittee of the All India Congress Committee (AICC) initially had Motilal Nehru, Fazlul-Haq, C.R. Das, Abbas Tyabji, and Mahatma Gandhi as Commissioners, with K. Santanam as Secretary. In a statement published on November 20, 1919 the “Punjab Enquiry Sub-Committee of the AICC”, as it was then described, explained the genesis of the inquiry and why the Congress Sub-Committee had withdrawn its co-operation from the Lord Hunter Committee appointed by the Colonial government.16 The Congress Punjab Inquiry Report was finally submitted on February 20, 1920 by four Commissioners, that is, Mahatma Gandhi, Das, Tyabji, and M.R. Jayakar. Set out further below are some extracts from the Report and the voluminous evidence gathered by this committee. Volume 2 of the Report contained more than 600 statements personally obtained and sifted by the members of the Committee. How was this material collected? Jawaharlal Nehru tells us : “As soon as martial law was withdrawn from the principal areas and outsiders were allowed to come in, prominent Congressmen and others poured into the Punjab offering their services for relief or enquiry work. The relief work was largely directed by Pandit Madan Mohan Malaviya and Swami Shraddhananda; the enquiry part was mainly under the direction of my father and Mr C.R. Das, with Gandhiji taking a great deal of interest in it and often being consulted by the others. Deshbandhu Das especially took the Amritsar area under his charge and I was deputed to accompany him there and assist him in any way he desired. That was the first occasion I had of working with him and under him and I valued that experience very much and my admiration for him grew. Most of the evidence relating to Jallianwala Bagh and that terrible lane where human beings were made to crawl on their bellies, that subsequently appeared in the Congress Inquiry Report, was taken down in our presence. We paid numerous visits to the so-called Bagh itself and examined every bit of it carefully.”17

As the facts of the massacre at Jallianwala Bagh in Amritsar have already been widely discussed, I have focused here not merely on that event but also on extracting some material on the use of aircraft by the Colonial regime both for reconnaissance and for intimidation and aerial bombing in various places, including particularly the district of Gujranwala (now in Pakistan). This aspect of the events of 1919 is less well known. It represents perhaps the earliest use of aircraft by an imperial power for bombing parts of Asia—before Hiroshima and Nagasaki in Japan and before Vietnam and Iraq.

Use of aircraft for reconnaissance, intimidation and aerial bombing in Punjab 1919 [Extracts from the Evidence Volume, i.e. Volume II, of the Congress Report]

Extracted from pp.72-73 : 

Statement of Lala Bhagwandas, son of Lala Ramchand, aged 30, resident of Gali Ramanand, shop Purani Kanak Mandi, Jallianwala Katra, Amritsar....

I went to the Bagh at about 4 p.m. on the 13th. Large crowds were present. A funeral procession passed, and a number of Muham-madans went with it. Then an aeroplane hovered over us. People got frightened, but the speaker at the time assured them, and they sat down. About half an hour later, soldiers (Gurkhas) arrived. They fired immediately, and I fled towards Lala Dholan Das’s house. Between the Samadh and Lala Dholan Das’s house, I lay flat on the ground for a few minutes, and then I jumped over the katcha (mud) wall near Lala Dholan Das’s house. Many people jumping near me were hit and fell. I went home.

Extracted from pp. 84-85:

Statement of Lala Hardyal Mal, age 45 years, son of Lala Daryana Mal Sahai, Proprietor of Hariya Ram & Co., Purani Kanak Mandi, Amritsar. 

My office and house is situated on the left hand side of the passage from the street to the Jallianwala Bagh. I was in my house from 9 a.m. on the 13th of April till the next morning. People began to assemble in the Bagh from 2 or 2-30 p.m. An aeroplane was hovering over the place at about 4-30 p.m. I was in the window of the first floor looking out into the street below. Bhagwan Singh, Sergeant C.I.D., came in plain clothes about 3 or 3-30 p.m. and entered the Bagh. Ten minutes later, Ibadullah, C.I.D. Sub-Inspector, in plain clothes, came and entered the Bagh. The latter came out about 7 minutes later and went away towards the Kotwali. Shortly after, Pandit Saeen Das, a Gujarati Brahman, a priest came to see me and sat down. Then came Mohanlal who proposed, they should go up to the roof of the top storey and watch the meeting from there. He said he was sent by Sub-Inspector Ibadullah to the Bagh to see what was going on there, and that he had been to the Kotwali and reported about the people assembling, and had come back from the Kotwali. The door opening on the first floor was closed and we three went up to the roof. Shortly after, some Baluchee soldiers (40 or 50) came from the direction of the Kotwali and marched past the entrance of the Bagh to the Lakkar Mandi side (left of main entrance). Ten minutes later, the Muhammadan City Inspector and Mir Singh Sub-Inspector came on horseback, followed by 35-40 Gurkhas on foot, who, as they were walking along the street, were harassing people sitting in front of closed shops. After the Gurkhas, there came two motor-cars from which five or six European officers alighted. There were two armoured cars following the motor-cars, in each of which one European soldier was visible. The police, about 40 or 50, brought up the rear. The officers posted four or five policemen on each motor-car and entered the garden with the Gurkhas; the policemen stayed outside. Soon after, the order to fire was given and the meeting consisting of about 20,000 people was fired upon. Some indistinct English words were heard by me which I took to be the order to fire. Those words were immediately followed by the sound of muskets. Someone was standing on the dais and appeared to be lecturing, though he could not be heard from the roof where we were. Some men were noticed running away as soon as the soldiers entered. It was after the first shots were fired that all the people began to run in all directions. Shooting, even then, was continued on all sides of the garden and many fell while running away. The firing continued for about 10 minutes and it was done by the Gurkhas. After which, the officers and soldiers went back out of the same door as they entered, on to the road to Lakkar Mandi, but turned towards the Kotwali. My estimate was that about 1,000 were killed, Mohan Lal and Saeen Das estimated 500 to 700. We three then came down; the visitors having gone to their homes, I sat in the window of the first floor again, smoking and watching the people carrying away the corpses. At about 7 p.m., Sub-Inspector Mir Singh came and entered the garden, and came out again after a few minutes. At about 11-30 p.m., the Gurkhas, officers, and armoured cars came from the Kotwali side and went towards the Lakkar Mandi. I did not hear any proclamation, prohibiting meetings or declaring Martial Law. At about 10 in the morning, I heard a boy make an announcement near the Allahabad Bank. He announced the meeting that afternoon at Jallianwala Bagh.

Extracted from p.87:

Statement of Mir Riaz-Ul-Hasan, son of Mir Hussain Shah, aged 19, resident of Nivin (Lower) Baghwali Gali, near Jallianwala Garden, Amritsar.

I was in the garden attending the meeting, near the platform. I estimated the audience at that time, when I was there, at about 30,000. When a funeral procession passed, several thousands joined it. This funeral procession was of a Muhammadan, shot on the 10th. A little later, an aeroplane hovered over the meeting. People got frightened and some left the meeting; and I came to my house. People were asked by someone on the platform not to be frightened and to remain there. I went on the roof of my house and about 20 minutes later, saw the troops arrive from the main gate. The troops spread out and started firing. I could only see the troops, who appeared to the Gurkhas, on the left of the main entrance. A bullet struck my roof near me. I got frightened and came down. The firing lasted for about 20 minutes. There were two intervals of about a minute between each firing. Before firing commenced, Sub-Inspector Ibadullah of the C.I.D., Ghulam Qadir, Head Constable, and Mir Obeidullah, Sub-Inspector came to my house and remained there right through the firing. My younger brother, Asghar-Ul-Hasan aged about eight, had gone with other children of the neighbourhood to the Bagh when the meeting was in progress. There was a good number or children under 12 in the crowd at the Bagh. After the troops had gone, I went out with my father and other members of my family to search for my brother. There were heaps of corpses at various places, particularly at the two entrances on both sides of my house, along the south-east of the garden, especially at the two corners, also at the corner near the Burj, and in the Hansli near the raised ground. We did not then find the boy who, subsequently, was discovered at a relation’s house where he had taken shelter after the firing had commenced.

Extracted from pp. 89-90:  

                                                   Statement of Seth Lakhmi Chand, sond of Seth Nathu Mal, aged 32, Piece Goods Merchant, resident of Gali Lal Wali, Kucha Tarkhana, Amritsar. 

I am a merchant and pay Rs. 1,050 yearly as Income Tax. I reached Jallianwala Bagh on April 13th at about 3-30 p.m., as I heard that Lala Kanhyalal was going to address a meeting there. Hundreds of people were coming in from the few entrances to the garden. An hour later, the meeting commenced. There were about 20,000 persons present in the garden, including many children. I was sitting near the platform, by the side of the Samadh. A little later, I saw an aeroplane. A few minutes after, I saw a funeral procession pass, and many persons left the meeting and joined that procession. At about 5 p.m. I was startled to hear some persons crying, “Woh Agaye! Woh Agaye!” Immediately afterwards, I heard reports of firing. I ran towards the outlet by the side of the well. The passage there was blocked with about 150 corpses. I had to fall back. I then lay down on the ground, but received a shot on my right ankle. I lost all consciousness. On recovering my senses, I saw in front of me in the corner opposite the main entrance a heap of persons, lying dead and wounded. They must have been about 200, I was then removed to a temple opposite the Krishna Market, where I was attended to by a doctor whose name I do not remember. Later on, I was treated by several doctors, including Dr. Kidar Nath who was arrested after a few days. I had to have my leg amputated a little below the knee cap by Dr. Hira Lal of Lahore, assisted by Drs. Ishar Das and Dhanpat Rai. In all, it took me 21/-2 months to get my wound healed up. I had to spend Rs. 7,500 for my treatment.

Extracted from pp. 91-92:

Statement of Mohammad Ismail, age 20 years, s/o Wazir Mohammad, Butcher, resident of Kucha Gujran, Amritsar. 

My house faces the Jallianwala garden on the north-west corner. My shop is just opposite the entrance gate of the garden. At about 4 p.m. on the Baisakhi day, I was watching the meeting from the roof of my house. At about 4-30 p.m., an aeroplane hovered over the garden. At about 5 p.m., I saw Gurkha troops enter the garden, line up on the raised ground near the entrance and began to fire immediately after. I saw one European from where I was. Neither the European whom I saw, nor any policeman, nor anyone else, asked the meeting to disperse before the firing began. I saw men falling down, hundreds of them. I stepped a little behind on my roof to avoid the Gurkhas seeing me. After staying on the roof for about five or six minutes, I went down; but I continued to hear the sound of the firing which went on for about 10 or 15 minutes. After the Gurkhas had left, I went to the Bagh to look for my maternal uncle’s son. Corpses were lying all over. There were some wounded also. My estimate of the persons I saw lying was 1,500. There were specially large heaps of corpses at the corners on both the sides of Riazul Hasan’s house near the well, as also at the corner near Meva Singh’s Burj and along the well facing the platform from where the troops had fired. At several places, the corpses were 10 or 12 thick. I saw some children lying dead. Khair-ud-Din Teli of Mandi had his child, six or seven months old, in his arm. I saw both Khair-ud-Din and the child lying dead near Burj Meva Singh. There were, in all, about 16 to 20 thousand people in the garden, including, I think, about four or five hundred children.

Extracted from pp. 98-99:

Statement of Mian Husain Shah, son of Mian Gholam Shah, age 35 years, resident of Kucha Bagh Wala, Katra Jallianwla, Amritsar.

I am a Raffoogar (Darner) by profession. ...

On the 11th, about 10 a.m., I heard that Bhagwan Das was dead, and that his body had been brought to the city. Soon after, I left for home and saw about seven or eight dead bodies in the Jallianwala garden, where I found Bhag-wan Das’s mother crying bitterly. Afterwards, all the dead bodies were removed in a procession to “Samdu’s talab” (Muham-madan graveyard). Bodies of Hindus were burnt and those of Muhammadans buried. I was told the names of the dead persons there, but do not remember them now. We all returned home about 1 p.m. An aeroplane kept hovering over the crowd.

On the 12th of April, again, a procession of one dead person passed near our place, and I again went with the crowd to the graveyard. An aeroplane was again seen over the crowd. On our return, when we reached near Sultan-wind Gate, I saw troops coming from Ram Bagh side. Near the Sultanwind Gate, one police officer on horseback was standing and shouting to the people to enter the city quickly. We did so and stood in the bazaar Jallianwala; and then I saw some two motors going to Sultanwind Gate, containing military officers and an Inspector of Police. They came back after 10 minutes, followed by all the troops. In the middle of this force were 10 or 12 persons who were arrested at the gate. After this I kept in my house.

On the 13th April, I heard that a meeting would be held in the Jallianwala Bagh and that Lala Kanhyalal would speak at that meeting. Accordingly, I went to the Bagh at about 3 p.m. Lala Kanhyalal was not there.

Later on Hans Raj spoke. An aeroplane was seen. Then a funeral procession passed by and many persons from the Bagh went with this procession. Before the coming of the aeroplane, I saw persons of C.I.D. in the meeting, who entered Mir Hussain Shah’s house bordering on the garden near the well. I know names of two C.I.D. people, Sub-Inspector Ibadullah and Mir Obeidullah. I was in my Gali close to the garden. A neighbour of mine, Qumar Din came into the garden, and said that troops were passing in the bazaar and going to Sultanwind Gate. I then got up with my other friends to go to our houses, when I saw troops enter the garden from the Hall Bazar side gate. I had hardly reached my house, when I heard shots being fired. I then went up to the roof of my house and kept looking at the garden from my privy, hiding myself behind its wall. In my opinion, the firing was kept on for about 15 minutes. Immediately after the firing ceased, the troops left the garden. At the time of firing, there were about 15 thousand people in the garden including children. I think in all, about two thousand persons must have been killed and wounded. I saw big heaps of dead persons at the three outlets from the garden to Baghwali Gali, and a similar heap on the side of the Burj. I also saw about four to six hundred lying dead, scattered over other part of the garden.

Extracted from pp. 108-9:

Statement of Nathi, son of Bashashar Das, age 17 years, caste Khatri, Employee in Lala Hardyal Durga Datt’s shop, Old Market, Amritsar.

On April 13, (the Baisakhi day) at about 4-30 p.m. I went to the Jallianwala Bagh to hear the lecture. I never heard any Dhandora (proclamation) that the meeting was prohibited, or that it would be dispersed by use of arms. 15 or 20 minutes after the lecture began, an aeroplane appeared and hovered over the meeting and then disappeared. About 15 minutes after, the troops arrived. They took their stand and opened fire without any warning. I hid myself in an opening in the trunk of a tree, and waited there till the first firing was over; and before the second firing began, I ran towards the Sultanwind Gate, after climbling and jumping over a wall. While I was scaling this wall, the second firing began. I left my shoes behind. I saw some troops near the Sultanwind Gate. I was stopped by the military, and was allowed to go on, only when I made humble entreaties. Pathan soldiers were at the gate. Many were killed and wounded in the first firing in the Jallianwala Bagh. I was many men running and falling in the well in confusion. After coming out of the Sultanwind Gate, I went to Hall Bazar, where I saw the troops returning.

Extracted from pp.113-4:

Statement of Manohar Lal, residing at Saraikala, District Rawalpindi.

Next day on the 13th, the Baisakhi day, I came to know, when I went to the bazaar, that a meeting would be held in the Jallianwala Bagh at 5 p.m. under the chairmanship of Lala Kanhyala, Pleader. I also heard that Martial Law would be in force from 8 p.m. I reached the Jallianwala Bagh at about 5 p.m. I found there about 15 or 16 thousand persons present.

The first resolution was that the Rowlatt Act be repealed, and the second resolution was that the firing on the 10th of April be condemned, and sympathy be expressed with the relatives of the dead. When the first resolution was being put to the meeting, I saw an aeroplane hovering over the place. At that time, a funeral procession was passing by, and I saw many people leaving the meeting and joining it. All of a sudden, armed Gurkha soldiers began to enter the Bagh through the main gate and the people began to run away on seeing them. No warning was given to the people to disperse. The soldiers fired on the people, when they were running away. I fell down while running, and was crushed under others. The firing went on for about 12 minutes. There were about 50 armed Gurkhas who were firing. After the soldiers left, many people came to see the dead bodies. I was dragged out from underneath the dead bodies. I had received one shot in the back of my left leg below the knee. I could not move about for about a month on account of this wound. I also tried to find out the dead body of one of my acquaintances at that time. I think there were about 1,500 dead bodies in that Bagh, out of which there were some of children and one or two of women. I saw an aeroplane coming from the direction of the Clock Tower, while the first resolution was being put to the vote. The troops arrived 10 minutes after the aeroplane had disappeared. At the time when the aeroplane appeared, a funeral procession of one, who had died of shots received on the 10th of April, was passing by the Jallianwala Bagh, and many people from the Bagh joined the procession. The aeroplane was seen hovering over the Bagh. I have heard that the people forming the funeral procession were fired at near the Sultanwind Gate.

Extracted from pp.115-6:

Statement of Partap Singh, aged 30, son of Gurdit Singh Ramgarhia, Carpenter, resident of Taran Taran (Bazar Belonianwala).

I reached Amritsar on the morning of April 13 at about 9 a.m., and went to the Jallianwala garden after 3-30 p.m. I kept standing near the entrance to the garden from the Hall Bazar side, and was very close to the troops when they were firing. When I saw the soldiers coming in, I moved to the right a little, and stood right against the wall. Later on, I lay down at the same place, just behind the European officers. About an hour after my arrival in the Bagh, some Gurkhas, with rifles, came to the garden and stood in two lines to the left of the entrance. There were approximately 50 Gurkhas and some five or six Europeans and one Inspector of Police and also Sub-Inspector Mit Singh. There were about 15 thousand men present in the garden. The soldiers began to fire at once. No warning was given. The first volley was fired high. On this, one officer reprimanded the Gurkhas. With a revolver pointed at them, he abused them in filthy language and said, “Why are you firing so high? Fire low; for what else have you been brought here?”, or words to the effect. After this, the firing was continued on the people, especially, aimed towards the entrances wherefrom people were going out. For about 15 minutes, the firing continued. Immediately after the firing, they left the place. I then left the garden by the gate near Lala Dholan Das’s house and stopped overnight at Chabba. I saw the aeroplane as I was going to the garden. The whole garden, principally the side facing the firing line was full of wounded and dead people, about 1,000 or 1,200 in number. About 20 persons were lying dead in the Hansli Gate. The corner near the “Burj” was filled with a large number of dead bodies, as also two or three corners in the direction of the well and the wall behind the Samadh. Some 100 persons were near the place where I was standing. They ran out towards Hansli and were fired at.

Extracted from pp. 236-238:

Statement of Lala Kashi Ram, son of Lala Charan Das, age 47 years, Kaviraj (Physician), Lahore....

On the 12th of April, I went to the Badshahi Mosque with Lala Dharam Chand at about 10 a.m. The speeches made in my presence were not in any way inflammatory. The speakers were addressing the people to end the Hartal and open their shops, as the closing of shops would do no good. I heard Mr. Duni Chand and Pandit Rambhuj Datta addressing the people in this way.

About half an hour later, I heard a rumour that the cavalry had come up to the gate. I mentioned this to Mr. Duni Chand and asked him to make inquiries, as we did not know what might be the outcome of that. I do not know what was done, but feeling anxious, I left the meeting and came out by the Roshni Gate, and met the cavalry at the turning from the Hira Mandi to Roshni Gate Road. I then proceeded towards the Chowk and found that behind the cavalry there was a police party, and behind it were some European civil officers, Nawab Mohammad Ali and others. I saw the European officers and Nawab Sahib at once ordering the shopkeepers to open their shops. Round these officers, a crowd had collected to watch their proceedings. I then went home. It must have taken me 15 or 20 minutes to reach home from the Badshahi Mosque. I had noticed a number of aeroplanes flying very low over our heads.

When I left the meeting, it was in no way unmanageable, and it did not appear to be bent upon any mischief.

Extracted from pp. 239-240:

Statement of Lala Munshi Ram, son of Lala Parab Dyal, aged 38, late Manager of the “Panjabee”, Lahore. ...

I was present at the meeting of the 12th April at the Badshahi Mosque at 10 o’clock. The leaders, i.e., Lala Harkishen Lal, Rambhuj Datta and others told the people that it would be well for them to open their shops. People were asking for the dead bodies before doing so. The leaders said, the bodies would be received, but the people replied they could not rely upon the assurance and that the bodies should be first received. We saw then aeroplanes flying overhead. People became excited and a great confusion arose, increased by the noise of the aeroplanes. Rambhuj Datta had been telling them to go and open their shops, but it was difficult for the people to hear him.

Extracted from p.378:

Statement of L. Manohar Lal, Pleader, Gujranwala....

What I saw subsequent to this, is as follows: At about 12 o’clock, I went to the hospital. Dewan Mangal Sain, Mr. Din Mahomed and Lala Haveli Ram, with a few other men, were standing at the western gate of the dispensary. They stood there, advising the people not to go into the hospital (where they wanted to go) to see the wounded, because their interruptions obstructed them. We heard news here that Messrs. Bhagat and Labh Singh had been making attempts to ask the angry mob, that had collected at the Railway Station, to go back to the city, with little success. A short while later, some people came running inside the hospital compound and infomed us that a vast number of people were breaking the windows of the Post Office, and that the police were preparing to fire. Close upon this, came the noise of buildings being set fire to. The situation having entirely gone out of their hands, the leaders were greatly perplexed, as to what course to adopt. It was proposed that the leaders should go towards the west of the city, to the open space adjoining the Puremwala Talab (tank), and information was sent round that a meeting was to take place at the Talab. The object of this was to draw away the mob from the station and keep them busy hearing lectures till evening. Accordingly, these leaders then came to the house of Din Mahomed, on their way to the Talab. Here news came that the people had begun the attack on the goods shed, and news also arrived that one of the wounded men was about to die. The leaders again separated here. Some of them went to see the wounded, perhaps also to have a declaration of the wounded men recorded, before some respectable persons. The plan of holding the meeing was thus carried out, and I kept where I was, at short intervals, hearing the news of one place being set fire to after another. At about 2 o’clock, an aeroplane was seen flying, as if reconnoitering the position. It went back, and half an hour after that, came two or three aeroplanes which began throwing bombs. The noise that the bombs made was like rapid firing. These aeroplanes came very close to the housetops and, it appears, threw bombs on all sides of the city. On the 15th, at about 10 o’clock, my father was sent for by Colonel O’Brien, as he was a Municipal Commissioner. Then followed the arrests. On the 15th morning also, an aeroplane came and threw bombs around the city. Since I was expecting my own arrest every moment, I did not leave my place for a number of days. The arrests did not stop on the 15h, but went on for a long time. I knew, my name was on the first list of the people to be arrested, and this fact, coupled with the general fright that had overtaken the people, utterly unnerved me and my household. My father was, even against his wishes, requisi-tioned very often by the police authorities. The policemen, who came to summon him, were generally a pair of constables in complete uniform, with handcuffs and chains dangling round their shoulders, and armed with guns with bayonets fixed. The sight of them had an extremely terrifying effect, because nobody knew whether their mission was to serve summons or to make an arrest. Utter demoralisation prevailed throughout the city. Every day I was given to understand that a large number of men were arrested anew and admitted to the local jail, the number ultimately reaching up to several hundreds.

Extracted from pp.383-4:

Statement of Lala Nand Ram, son of Lala Laldar, Retired Teacher, Government School at Lahore.

On the 5th of April, at 4pm, when I came down after finishing my teaching work in the girls’ school, I saw and attended a big meeting of the citizens of Gujranwala, in the compound of Lala Amar Nath’s house. In this meeting it was unanimously decided to have a hartal on the 6th of April, as a protest against the Rowlatt Act. In this meeting the speaker exhorted the people to observe the 6th of April as a day of prayer and humiliation, and, in observing the day, they were to refrain from all violence. On account of these exhortations, the 6th of April passed off calmly and peacefully.

On the 8th, I went to Lahore to see my son, who is a student of D.A.V. College, in the 1st Year. I returned to Gujranwala on the 12th of April...

The 13th of April was the Baisakhi day...

On the 14th, there was a Hartal in the city....

At about 2 p.m. I again went to the roof of my house, to see the aeroplanes flying over the city. As my house has a high roof, many neighbours had also assembled there to see the aeroplanes. We soon saw that the aeroplanes were dropping bombs and firing guns. I requested my neighbours to disperse from my roof, or the roof might bring down a bomb on my house. All of us came down. After some time, I observed, through a window, that some two aeroplanes were hovering over the Khalsa High School. The boys were playing in the playground. At this time a bomb was thrown, as it appeared to me, in their midst.

The boys soon took shelter under the porch of the boarding-house. I heard the bomb bursting and saw the smoke also.

Extracted from pp.416-417:

Statement of Sardar Autar Singh, Bhatia, Bar-at-Law, Gujranwala. ...

There was a public meeting at Niani at about 9 a.m. or so on the 14th April 1919. Speeches were made by the leaders inducing the people not to commit any violence and they read the Mahatmaji’s message from Palwal. While Mr. Lal Khan was addressing the audience, we heard firing. After a few minutes, some people brought a wounded man on a charpoy (cot) there. This excited the people, when they came to know that it was done by Mr. Herron. After this, the meeting was dispersed; and the people took their way to the civil hospital where the wounded were brought. Some boys and grown-up persons of illiterate and low classes went to the Railway Station where the police had been posted. They set fire to the premises, and the police there was quite indifferent to it. I saw the same day, aeroplanes hovering over the city, and I heard the aeroplanes firing.

Extracted from pp. 819-22:

Statement of Dewan Mangal Sain of Gujranwala....

14th April is a day of Baisakhi fair at Wazirabad, which is about 20 miles from Gujranwala on the main railway line...

At about 3 pm Colonel O’Brien came from Lahore and went about the Civil Station, revolver in hand. He did not come across even a single rioter anywhere, a fact which shows conclusively that rioting had altogether subsided by that time.

About half an hour later, i.e., about 3-30 p.m., the aeroplanes came and commenced an indiscriminate bombardment of the town proper by means of bombs and machine-guns. This went on for quite a considerable time. The people in the streets ran to shelter, but, even then, the number of casualties was pretty heavy, 40 or 50 would not be an exaggerated estimate. This estimate does not include the casualties effected by the police firing in the morning. The bombs and bullets fell into the most thickly populated portions of the town. Even the Khalsa High School Boarding-House was not spared, where the inmates, about 160 in number, had almost a miraculous escape. It may be mentioned also that the machine-gunning from aeroplane was done from a very low range and there was absolutely no chance of mistaking that there were any groups of rioters about. Moreover, no disorder had taken place in the town proper and the mischief that was done had been done on the other side of the Railway line in the so-called Civil Station. Between the Civil Station and the town proper, there is the clearest and most unmistakable line of demarcation, in as much as the two are separated by the railway line. The facts, therefore, that the aeroplanes did their work of execution after the riots had been quelled and that they confined their activity to the town proper only render their action not only absolutely unjustifiable and uncalled for, but are suggestive of unnecessary cruelty and vindictiveness. It was a sheer act of terrorism.

That the lives of Europeans in the Civil Station were in danger, is a pure myth and a lie invented to justify bombing by aeroplanes. In the first place, it is not even alleged that any European was in danger of being attacked in the Civil Station, and in the second place, only one or two European families in the Civil Station had taken refuge in the Treasury building which is a fortified place. While on the subject, I may add that the aeroplane returned to Gujranwala on the morning of the 15th and some bombs were again thrown. Some bombs fell in the neighbouring villages and caused some casualties or damage. Not a single bomb or shot fell in the whole of the Civil Station area, while some of the houses near and in the town were particularly marked out for attack. ...

I had only a kurta and dhoti on when I was arrested... After half an hour, the prisoners were marched at a rapid pace through and round about the town...We were then taken to the Railway Station...The prisoners were seated in an open coal truck, all chained together and surrounded by a military guard with fixed bayonets. The truck was joined on to a reverse engine, the soot and, smoke and vapour from which had thoroughly blackened the faces of the prisoners by the time we reached Lahore.... The Lahore Railway Station was quite dark and seemed to be as if deserted. Only one Kitson lamp was burning in front of the 1st and 2nd class booking office. The prisoners were then all taken out from the coal truck, and our names called out by an European official, probably deputed for the purpose. We were then marched out of the station and thrust into a motor lorry and its shutters were vigilantly shut up on all sides. There were two armoured cars in front, besides one or two ambulance lorries which were occupied by solders and others. The aeroplanes continued to hover over our lorry.

Extracted from p.839-840:

Statement of Lala Amar Nath, B.A. LL.B., Pleader, 1st grade, Gujranwala.

On 15th evening at about four, we were arrested indiscriminately and handcuffed in pairs, chains also linking the various pairs. Some of us were not allowed even to put on our shoes or head-dresses. Guarded by military guards we were led to march through the streets over a distance of about two miles in the sultry rays of the sun. The courtesy of even water for drinking was denied to us. We were exhibited in the streets where we were respected by the people simply to heap indignities upon us. Then we were marched back to the Railway Station, led by the Hindu and Muhammadan Municipal Commissioners and followed by the guards, the police and the Lewis guns, as they were called. We were all in handcuffs and were put in a coal truck. Two engines drove the truck and the face of one of them was turned towards the truck we were in. We were told that the engine had machine-guns and that aeroplanes kept flying overhead up to the walls of the Lahore Jail where we were taken on alighting from the train in the night to be put in solitary cells. On our way, I happened to ask a soldier where our destination was and what our destiny was to be. He by a move of his fingers round his neck, indicated that we would be beheaded at some unknown place.

IV

The First Volume of the report of the commissioners appointed by the Punjab Sub-Committee of the Congress contains significant observations about aeroplane bombing in Gujranwala. Some of these are set out below.

Extracted from p.107: 

[Martial Law (Gujranwala)] ... When Col. O’Brien returned, the mob’s fury had subsided. He had asked for assistance, and it came promptly at 3 o’clock in the shape of aeroplanes, which dropped bombs on utterly innocent people. At no place, where bombs were dropped, was any meeting going on. Bombs were dropped on the Khalsa Boarding-House. This is how a student describes the scene. “We heard the noise of aeroplanes at about 3 p.m. ... They remained hovering over the Boarding-House for about 10 minutes. ... Suddenly a noise was heard and a shell came down, which struck our confectioner Ganda Singh. ... A small piece of it injured the finger of my right hand. A boy fell down on account of the shock.” (Statement 296, p. 408) The Superintendent of the Boarding-House has also made a statement. He says:- “No political meeting was ever held in our school, nor is it allowed. On the 14th April, none of the boarders went to the city. Our hostel and school are at a distance of about half a mile from the city and more than a mile from the station.” (Statement 297, p. 409.) According to the evidence given by Captain Carbery before Lord Hunter’s Committee, his orders were “to disperse crowds going or coming”. So far as the bomb-throwing in the Khalsa Boarding-House is concerned, there was no crowd either going or coming, there was no meeting and it appears to us that there was no necessity whatsoever for throwing bombs in the Khalsa Boarding-House, and it was by a stroke of good luck only that no lives were lost.

Extracted from pp.108-9:

[Martial Law (Gujranwala)] ... In our opinion, all this firing from the aeroplanes was entirely unjustified. It was begun after the destruction by the mob was over, and the crowds had dispersed. There was, therefore, no question of preventing further damage. We believe, too, that the firing was thoughtless, if not vindictive, and the officers in charge of the machines, on their own showing, held the lives of the villagers cheap, and fired in order to terrorize the people. The casualties, according to the list supplied and embodied in the statements produced before us, amount to 12 killed and 24 wounded and if the loss of life was not greater, it was no fault of the officers concerned. The bombs would not explode.

If there was no excuse for the bombing of the 14th, there was less to bring the aeroplane into play on the 15th, because Col. O’Brien had by that time more military aid than he needed, certainly all he had asked for.

Sir Michael O’Dwyer seems to have been the originator of the suggestion of bombing from aeroplanes. Whether he was or not, it is certain that he approved of it. It should be remembered that the people of the Punjab were not used to the aeroplane or any other bombing. It must be admitted that aeroplane bombing can be justified only in proved necessity, and in the face of existing or imminent danger. All danger had been over in Gujranwala when the aeroplanes arrived. The mere presence of the aeroplanes was absolutely sufficient protection. The European population of Gujranwala was in no danger. Not a single European life was lost. Nothing has been shown to prove a military necessity for bombing. The official evidence shows that bombing was recklessly practiced upon an unresisting people, and at a time when there was no danger, threatening life or property, and when the experience of Amritsar and Kasur had shown that the mob fury was a sudden and momentary outburst with no persistence about it. On the 15th, began indiscriminate arrests of barristers, pleaders and other leaders, some of whom, the authorities knew, had helped, at considerable risk to themselves, to curb the fury of the mob. There was at the time of these arrests, on Col. O’Brien’s own showing, not a little of evidence to justify these arrests. They were made, as he says, in virtue of regulation 12 of the Defence of India Act regulations. This regulation simply authorizes arrests on suspicion well-grounded.

V

From the Indian nationalist critique of the conduct of the Colonial government in 1919, certain standards and yardsticks of judgement may be derived. For it is in the parallax of vision created between the Constitution and the highest standards of the national movement that useful tests can emerge. These tests are derivable from the standards applied by the national movement to colonial legislation. It is therefore instructive to refer to the report of the Commissioners appointed by the Punjab Subcommittee of the Indian National Congress (INC) in November 1919. Various documents can be cited to underline points similar to those made in this report. I confine myself largely to this report as an illustrative exercise and convenience. At a critical stage in the national movement, the report covered a wide spectrum of democratic rights. In 1919, the colonial power introduced two bills, known respectively as the Indian Criminal Law (Amendment) Bill, No. 1 of 1919, and the Criminal Law (Emergency Powers) Bill, No. 2 of 1919.18

The first of these Bills was not pursued by the regime, but the second came to be known after enactment as the Anarchical and Revolutionary Crimes Act, 1919 . It is this that came to be known as the Rowlatt Act after the President of the Sedition Committee appointed by the govern-ment in December 1917. The legislation, that was severely criticised by public opinion in India, sought to confer extraordinary powers upon the executive for the ostensible purpose of curbing revolutionary and anarchical move-ments. The Act provided that whenever there was an inconsistency between it and the Criminal Procedure Code, the latter would not be applicable to trials under the Rowlatt Act. The result of the trials was to be subject neither to appeal nor to revision. The trial was to take place before a court of three persons who were required to have been permanent judges of a High Court. Even if the offences contemplated under the Act had not in fact taken place, but were, in the opinion of the Governor-General, likely to occur, certain areas could be specified as areas to which special provisions would apply. The local government was empowered to use ‘all means reasonably necessary to enforce compliance with its orders’. The trial was to be incamera. A person could be detained for up to two years without a proper trial.

Popular opinion condemned this Act with the words:

Na Appeal, Na Dalil, Na Vakil [i.e. No Appeal, No Argument, No Pleader].

In the protests that were organized thereafter, the situation in Punjab became especially tense. The violence inflicted by the colonial state grew in scale, reaching its high point in the massacre at Jallianwala Bagh in Amritsar on 13 April 1919, and continued thereafter. The remit of the Punjab Subcommittee of the AICC (comprising, as noted above, Motilal Nehru, Fazlul-Haq, C.R. Das, Abbas Tyabji, and Mahatma Gandhi as Commissioners, with K. Santanam as Secretary) was:

to examine, shift, collate and analyse the evidence already collected [and] to supplement such evidence where necessary, and to present their conclusions [Report, Vol 1, 1920: 1].

The Report was finally submitted on 20 February 1920 by four Commissioners, i.e. Gandhi, Das, Tyabji, and M.R. Jayakar. The analysis that the Report provides of executive and legislative action during this period yields important principles of judgement in relation to democratic rights. I take this Report to provide a basis for a more complete standard of judgement on the question of democratic rights, and as providing the essence of those values of the national movement that serve as a source of legitimacy for the Constitution. These values, as concretely expressed in this Report, have an important advantage over merely constitutional discourse of standard. Unlike the Constitution, the standards laid down and judgements made by the Commissioners are beyond amendment or manipulation.

Whilst a purely constitutional standard may be set against itself or limited by other constitutional or legal considerations, the values, judgements, and standards traceable in this Report are not subject to such manipulation and are, in that sense, absolute. They provide us with another point of reference, apart from the Constitution; the actual parallax thus created being a measure of the democratic rights situation. The Commissioners examined the statements of more than 1,700 witnesses from all over Punjab. Their report yields important principles that may be set out in relation to the actions of the colonial state, from the Viceroy downwards.

The Commissioners indicted the Viceroy on the following grounds:

His Excellency the Viceroy never took the trouble of examining the people’s case. He ignored telegrams and letters from individuals and public bodies. He clothed the officials with indemnity in indecent haste. He never went to the Punjab to make a personal enquiry even after the occurrence.

On these broad charges, supplemented with certain further details, the Commissioners demanded the ‘recall of His Excellency, the Viceroy’ (Report, Vol 1, p.157). The Commiss-ioners stated that:

The Government were wholly unjustified in placing on the statute book ... an extraordinary measure to deal with anarchy, as if anarchy had been endemic instead of being rare in India [Report, Vol 1, p.36].

They described the situation where a person arrested may have to remain under confinement for two years without a proper trial as leading to a

reign, not of law and order, but of organized terror and disorder, or martial law without the name [Report, Vol 1, p. 35].

The Commissioners condemned punishments

whose object is merely to degrade man’s state (Report, Vol 1, p. 61),

and argued that

no self—respecting person can tolerate what is an outrage upon society. The crime of the government became complete when they persisted in it in the face of unanimous popular opposition. We would note, too, that the ‘Viceroy had sufficient powers by means of ordinances to deal with extraordinary situations’. [Report, Vol 1, p. 36.]

It was argued further that even although extraordinary powers may improve the effective capacity of a policeman by as much as four times,

this is done at the cost of the liberty of the subject, by depriving him of all the wholesome checks which regulate police procedure [Report, Vol 1, p. 24].

The Commissioners warned in their report that it was necessary to ensure that the Acts will not be used for purposes for which they are not meant. They pointed out that though the government had declared that it would use the Defence of India Act only in case of ‘real necessity’ and not for the purpose of ‘stifling political agitation or hindering the movements of public men’, Annie Besant and her associates had been arrested under this law (Report, Vol 1, p. 24). An important principle stated by the Commiss-ioners, and which has contemporary relevance, relates to the increasing resort to special courts, designated courts, or special tribunals to try persons accused of an offence under extra-ordinary legislation. The Commissioners pointed out that even High Court judges constituting a special bench provide ‘illusory comfort’ when the ‘High Court atmosphere is withdrawn’ (Report, Vol 1, p. 33).

According to the Commissioners, it was not enough for a case to be decided by a judge. They held that

... even a mind saturated with judicial tradition cannot do even-handed

justice if it is surrounded with the licentious conditions created by the Section quoted [Report, Vol 1, p. 34].19

Commenting on firing from aeroplanes that was resorted to at some places in Punjab, the Commissioners observed that

... the officers in charge of the machines, on their own showing, held the lives of the villagers cheap, and fired in order to terrorize the people [Report, Vol 1, p. 108].

The Commissioners held that the martial law tribunals and the summary courts

were made the means of harassing innocent people and resulted in abortion of justice on a wide scale, and under the name justice caused moral and material sufferings to hundreds of men and women [Report, Vol 1, p. 158].

They demanded that the guilty officials be relieved of any responsible office. An exception was made in the case of two officers who were inexperienced and whose

brutality was not so studied and calculated as that of the experienced officers [Report, Vol 1, pp. 159—60].

From the Commissioners’ report, it is possible to extract the following principles and pro-positions:

1. When any extraordinary law either provides for, or operates in such a manner as to permit confinement of up to two years without a proper trial, and when this affects ‘large bodies of people’, the prevailing situation is ‘not one of law and order, but of organized terror and disorder, or martial law without the name’.

2. Extraordinary laws must never be used for purposes for which they are not meant or for the purpose of stifling the movements of public men, for stifling political agitation or for the purpose of restraining political freedom.

3. Executive action and extraordinary laws must not permit or cause the infliction of punishments, the object of which is to degrade the human being.

4. Laws affecting liberty must provide for proper legal assistance, for adequate opportunity to argue the case of the citizen, and for an adequate opportunity to appeal. Any deviation from this is an outrage on society.

5. The checks which regulate police procedure are ‘wholesome’ and must on no account be dispensed with.

6. Any special benches, designated courts, or extraordinary tribunals or boards set up under extraordinary laws will provide only an illusion of justice (‘illusory comfort’) even if these comprise High Court judges, so long as such judges sit in an atmosphere that is not judicial in character (‘when the High Court atmosphere is withdrawn’).

7. No provision in an extraordinary law can result in ‘even—handed justice’ if it creates ‘licentious conditions’.

8. If any extraordinary law provides for detention on mere suspicion, in which a citizen is ‘entirely at the mercy of the police’, then it defeats its own purpose for:

If this is prevention, it is worse than the disease and the prevention itself is calculated to produce the very disease sought to be prevented.

9. If it is determined that firing was resorted to in such a manner that the lives of citizens were considered ‘cheap’, the persons responsible for these excesses and sufferings shall at the very least be relieved of ‘any responsible office’.

10. The punishment to be inflicted upon officers responsible for ‘harassing innocent people’ and causing ‘moral and material sufferings to hundreds of men and women’ will be greater (and not lesser) to the extent that the officers concerned are more experienced and have a longer period of service behind them.

11. Wherever any major incident involving material sufferings to citizens as a result of police or other state excesses takes place, this will be ground for removal of the constitu-tional head of state.

12. If the President and the Central Government fail to examine the case of the people concerned, they shall have no further claim to continue in office.

These were some of the standards adopted by the national movement relevant to our discussion, and these are the minimum standards in the light of which the executive, legislative, and even the constitutional actions of the state require to be tested so as to provide a more complete measure of the democratic rights situation.20

The parallax that emerges from testing democratic rights, not merely in constitutional terms but also on the political basis of the Constitution, is a simple and useful device for understanding. It is, indeed, used unconsciously and unsystematically almost all the time in the reasoning process. In a slightly modified form and context, it was used to devastating effect in 1943 by a Chief Justice of the Calcutta High Court when considering a provision in the (colonial) Defence of India Rules which permitted detention without requiring communication to the detenu of the grounds on which (s)he had been detained. The Chief Justice pointed out that even such an early colonial law as Regulation III of 1818 had provision for such communication and for showing cause against such detention.

Since there was no effective discontinuity between the regime in 1943 and that in 1818, one law could be set against another law to create a parallax, displacing one image of executive action under the 1943 law with another image that revealed its dubious character. This could be done without idealizing the 1818 law, but merely by utilizing it as a measure of legitimacy. The principles extracted by me represent an element in the legitimacy of the post-colonial regime and are meant for a similar purpose.

The exercise also has some auxiliary jurispru-dential importance. This arises from the fact that judicial decisions are based not merely on the written word of the Constitution or law, but also on the basis of a ‘penumbra’ that surrounds it. This penumbra consists of intuitions, hunches, and what has been described as the ‘hydraulic pressure of events’; it is here that the ideology of the national movement is of importance. Although repeatedly acknowledged by the Supreme Court itself as a source imparting legitimacy to, or providing the ‘philosophy’ of, and accounting for the ‘aspirations’ behind, the Constitution, the high points of the national struggle have been much neglected as a constitutional resource. Any form of general struggle is perforce based upon a critique of existing institutions and practice.

To lay down fundamental principles is therefore an intrinsic part of the activity of the struggle, notwithstanding variations, discontin-uities, and deviations in the formulation and presentation of these principles. The principles tend to distil not only the experience and genius of the nation, but also the comparable constitutional and political achievements of other nations.

When the movement gives rise to a constituted state, this distillate forms the resource which it draws upon for its own justification. At the very least it must therefore be held to it, so that, in the words of the French Declaration of the Rights of Man (1789),

...the acts of the legislative power and those of the executive power may be each moment compared with the aim of every political institution . . .

The mechanism by which transgressions of rights take place require some conceptual dissection. I use the expression ‘modes of interception’ as appropriate to the more complete standards sought to be referred to. If the Constitution alone is taken as the touchstone, it is usual to speak of ‘violation’ of these rights. Since I do not accept at its face value the notion that the Constitution is the source of all rights, and postulate in addition norms outside the Constitution, it is possible to conceive even of, say, the Constituent Assembly as having acted contrary to such norms. The wider expression interception of rights would seem to cover such situations, while violation is inadequate, connoting as it does only overt factual transgression. It seems possible to obtain an improved understanding of democratic rights by examining the processes by which these are intercepted. These processes are by no means immediately obvious. The first of the modes of interception consists simply in the non-recognition by the state of vital rights. By this means, these are virtually withdrawn from the constitutional rights discourse and, as I shall seek to show, even forgotten. This non-recognition is in many cases traceable to the Constituent Assembly itself and to the rushed manner in which the Assembly sometimes functioned.

The borrowings and adaptations from foreign constitutions by the Drafting Committee and the Assembly are often mentioned. Oddly enough, most of the obvious omissions and silences are seldom noticed. One important omission widely recorded is that of the ‘due process’ clause in the 5th and 14th Amendments to the US Constitution that was consciously not incorporated into Article 21 of the Indian Constitution. This is the right relating to life and liberty. This omission was supplied in part by subsequent judicial interpretation. But there were other significant omissions too. The Constituent Assembly did not make adequate use of, or even reference to, several insights afforded by classic charters of liberty or even of constitutions in the tradition of these charters. A comparison with some of these charters is instructive.

More than 150 years before the Indian Constitution was framed, the Declaration of Rights of Man in 1789 in France had reflected a subtle understanding of the ground-level functioning of the state in regard to the rights of citizens, and a republicanism based upon the experience of French political history and the working of French administrative institutions.

The Declaration had identified ignorance, forgetfulness or contempt of the rights of man as the sole causes of the public miseries and of the corruption of governments.21

The French Declaration thus opened with a fundamental intuition into the social condition and the role and impact of government. The Declaration stressed the need to eradicate ignorance and to interdict forgetfulness and disregard of the rights of men. By identifying these as the sole cause of public misery, the Declaration imparted to the concept of Rights a potency and inherent character that was not expressly set out by the Constituent Assembly of India in the Constitution that it framed. The French Declaration spoke of the natural, unalienable, and sacred rights of man, thus making it clear that the French document was largely declaratory of pre-existing rights rather than a source of those rights. Nearly 200 years later, the Supreme Court of India was still able to claim, on the basis of its particular interpretation of the Constitution, that even the right to life and liberty mentioned in part III of the Constitution was conferred by the Consti-tution, and had no existence once these were purportedly suspended by resort to other provisions of the Constitution.

The Declaration had identified forgetfulness or disregard of the rights of men, as a major mode of interception of rights. Nearly 200 years later it might have been expected that a country framing its constitution would build upon this idea. But the Constituent Assembly did not incorporate the insight, let alone develop it. Nor apparently has France.22 There are no constitutional or other safeguards against delays of negligence in executive or judicial functioning. The harassment caused to citizens in respect of the enforcement of elementary democratic rights (e.g. the right to lodge a complaint with the police on having suffered a physical injury or being able to retrieve, say, a deduction made from one’s salary, and now due) cannot be efficaciously enforced because the Constitution and the laws provide no really effective sanctions against such abuses. On the contrary, special protection is provided to public servants by statute.

In the same category of rights not recognized and, therefore, not incorporated into the Constitution, are safeguards in the matter of preventive detention. These were not incorpo-rated by the Constituent Assembly even though there were, before it, elaborate amendments moved by various members, and relating to such matters as right of access to courts, right to cross-examination of witnesses produced against the person detained, right to a pleader and to a public trial unless public interest demanded an exception, right of at least one effective appeal, a maximum limit on detention without trial, limitations on detention without trial so as to limit such detention only to particular classes of cases, and provision for mandatory review by an independent tribunal.

As I seek to show elsewhere in this paper, these amendments were not accepted and the matter was not debated in depth or even with an open mind by the Drafting Committee.

VI

The events in the Punjab in 1919 had brought the communities together. Amritsar itself has played a vital role in modern Indian history. But with time comes forgetting. And with forgetting people become vulnerable even to versions of history that subserve sectarian objectives.

The emphasis in Amritsar is now decreasingly on the city’s own history (which was so crucial to India’s 20th century independence movement) and increasingly on the Partition motif. There is now a Partition Museum and even outside Jallianwala Bagh visitors are subjected to deafening cries of “Wagah Border! Wagah Border” from cab drivers and others seeking to divert visitors to that peculiar border ceremony.

A visit to Amritsar a couple of years ago brought home to this writer that very few in Amritsar seemed to remember or even know the location of the “Crawling Lane” where the Colonial regime had ordered in 1919 that Indians must crawl while passing through it.
It was finally, with the help of a few eminent academics and intellectual fellow-travelers, located near the Lohgarh Gurdwara. There was not even a plaque there.23 This is extracted from what the Commissioners appointed by the Congress, who included Gandhi, had to say about the “Crawling Lane” in their Report:

“We shall now deal with what is called the crawling order. The lane in which the crawling took place is a narrow and thickly populated place, with double-storey buildings on either side of it, and with numerous blind alleys shooting out of the lane and containing several houses. For the inhabitants of the lane, if they wanted to make any purchases or to go the city, there was no option but to pass through some part of it, and therefore to crawl in and out. Sanitary or medical service could only be rendered on condition of crawling. The full length to the lane in which the order was enforced is about 150

yards. In the middle of it will be seen, on the plan hereto attached, an oblong marked “tiktiki”, which was the specially erected flogging booth.

The order remained in force for 8 days. Although General Dyer has called it “going on all fours”, and it has been called “hand-and-knee order” by the Press, the process consisted in the persons lying flat on their bellies and crawling exactly like reptiles. Any lifting of the knees or bending thereof brought the rifle-butts on the backs of the persons who were made to crawl. The whole motion had therefore to be performed by movement of the belly and the arms. The lane, like most Indian lanes, is dirty and full of the usual rubbish, not excluding grit. It is worthy of note that the order was only given verbally and was withdrawn after orders from superior

authorities.”24

Similarly, National Week (April 6-13) has been largely forgotten. The week April 6-13 used to be observed in the course of India’s freedom movement and for many years thereafter as National Week in memory of the nation-wide protest strike (hartal) on April 6, 1919 against the draconian colonial Rowlatt legislation and in memory of the massacre of unarmed people that occurred a week later at Jallianwala Bagh in Amritsar on April 13, 1919. The hartal on April 6, 1919 marked the first all-India level protest on a democratic rights issue. Mahatma Gandhi had looked upon April 6 to 13 as the week of India’s awakening. Its significance, not least as a caution against the arbitrary use and abuse of state power, was outlined by Motilal Nehru in a statement published on April 6, 1920.25

As intellectual critiques of the notion of ‘nation’ grew, it became increasingly unfa-shionable for opinion-leaders to engage in defining the nation. Many of these critiques emerged from Europe which where many one-language-one-religion states had evolved, in contrast to India where the emphasis was on a multi-lingual multi-religious nation. Even so, such influences had a dampening impact on secular intellectual activity in India aimed at defining the nation. Yet when non-sectarian forces or civil society lose interest in defining the nation, the field is left free for a narrow-minded understanding of nation to grow and to spread. It appears that this process has been underway for some years now.

In contrast, almost every year after 1919, had Gandhi reminded the country during National Week of how several persons belonging to diverse religious communities and vocations had gathered together for a common purpose and met their end together in the massacre at Jallianwala Bagh, Amritsar. He stressed the importance of the incident in educating the people and uniting them in a common nationhood. Maulana Mohamed Ali referred to the massacre to stress that Hindus and Muslims and others had come together in a common nationhood which would “fear no man on earth”.

The incident acquired the same decisive importance in India’s modern history as the Easter Rising of 1916 in Ireland, although the two are not, strictly speaking, comparable.
April 6-13 was observed as National Week right up to the 1960s in Indian schools and colleges. Jamia Millia Islamia in Delhi traditionally observed Qaumi Hafta (National Week) at least until Dr Zakir Husain and Prof Mujeeb remained actively associated with the University. Old Jamia hands still remember how National Week was an occasion jointly to take over and perform civic service in classrooms, bathrooms, latrines and the villages around Jamia, shed distinctions of high and low, break barriers of caste and religion and inculcate a sense of dignity of labour.

At several places in the country the week would be observed to encourage hand-craft , mass plying of the charkha and the performance of other kinds of manual work. It was, as Gandhi saw it, an occasion for all to introspect, shed hatred, carry out constructive activities, spin, promote the sale of hand-spun and hand-woven cloth (Khadi), and perhaps occasionally even to fast jointly.

April 6 has an additional significance. When in 1930 Gandhi launched on the salt march, he timed its conclusion at Dandi on 6 April 1930 to coincide with the beginning of National Week.

Gradually, as a composite culture and a secular understanding of Indian nationhood came to be taken for granted in independent India by the end of the 1960s, National Week began to pass without much notice and was even forgotten. In fact even Gandhi-related institutions in India hardly observe it anymore.

Yet it remains a defining moment for India, certainly a moment of awakening; an occasion to reassert India’s composite nationhood; and a salutary reminder in independent India of the critique which Indian nationalists had made of violations of the democratic rights of the people.26

The contemporary relevance of the above materials will be evident to the reader. Civil and democratic liberties have been restricted in various parts of the country, including Jammu and Kashmir, in the same way as they were under martial law in the Punjab. Entry into certain areas has been restricted just as they were 100 years ago in the Punjab. Draconian legislation without adequate remedies has been sought to be introduced. There is a growing arbitrariness in the actions of the executive, including the police and the courts. The lives and liberty of people at large has been endangered over a period of time both by the state and by para-statals.

Endnotes

1. Jawaharlal Nehru, An Autobiography, New Delhi, Jawaharlal Nehru Memorial Fund, 1980, p. 44.

2. Ibid., pp. 44-45.

3. For the entire proceedings, discussions and resolutions passed see Report of the Thirty-fourth Session of the Indian National Congress held at Amritsar on 27th. 29th, 30th, 31st December 1919 and 1st January, 1920, Reception Committee, 34th Indian National Congress, Amritsar, 1922.

4. Indian Annual Register, 1920, Volume 1, p. 372.

5. Indian Annual Register, 1920, Vol. I , p. 373.

6. See Report of the Thirty-fourth Session of the Indian National Congress held at Amritsar on 27th. 29th, 30th, 31st December 1919 and 1st January ,1920, Reception Committee, 34th Indian National Congress, Amritsar, 1922.

7. The sources for this list are mainly (a) Prabha Chopra (ed.) Who’s Who of Delhi Freedom Fighters, Gazetteer Unit, Delhi Administration, Delhi, 1974,Vol I; (b) Uma Prasad Thapliyal (ed.) Who’s Who of Delhi Freedom Fighters, Gazetteer Unit, Delhi Administration, Delhi, 1985,Vol II; and (c) Reva Dhanedhar, Struggle for Freedom in Delhi: Role of Delhi 1919-1934, Natraj Publishers, Dehra Dun, 2011.

8. Raja Ram, The Jallianwala Bagh Massacre, Panjab University, Chandigarh, 1969, p. 119. For an official account by the Colonial Government see (reprint of) Memorandum on the Disturbances in the Punjab : April 1919, by Sang-e-Meel Publications, Lahore (Pakistan), 1997, pp. 9-11. It is stated in the Memorandum at
p. 10 : “On the conclusion of the firing troops retired; the number of casualties were not counted.”

9. Report of the Commissioners appointed by the Punjab Sub-committee of the Indian National Congress, published by K. Santanam, Secretary to the Commission of Inquiry, Lahore, 1920, Vol 1, p. 57. This report has since been reprinted in 1994 by the National Book Trust, New Delhi with a different pagination.

10. Yusuf Meherally, Leaders of India, Bombay, Padma Publications, 1946, p. 52.

11. Indian Annual Register, 1920, Vol. I , p. 331.

12. Selected Works of Motilal Nehru, [Ravinder Kumar and D.N. Panigrahi (ed.)], New Delhi, Vikas Publishing House, Volume 2, 1984, p. 265.

13. Ibid., p. 290.

14. Ibid., p. 300.

15. Ibid., pp. 300-301.

16. Ibid., 408-413. Madan Mohan Malaviya was Chairman of this committee and Motilal Nehru the Vice-Chairman. Other members included Sir Rashbehary Ghosh, Syed Hasan Imam, B. Chakravarty, C.R. Das, Kasturi Ranga Ayengar, Umar Sobhani and Pandit Gokaran Nath Mishra as secretary. The Sub-Committee, which had power to co-opt members, added the following members on October 16, 1919 : Gandhi, Swami Shraddhanand, Purushottam Das Tandon, Jawaharlal Nehru, Ganpat Rai, Umar Baksh, Bakshi Tekchand, Gokul Chand Narang, Santanam, Badrul-Islam Ali Khan and Lala Girdhari Lal. According to the statement issued over the signatures Malaviya and Motilal Nehru, and published on November 20, 1919, Malaviya and Motilal Nehru “proceeded to the Punjab shortly after the withdrawal of Martial Law and began our investigations on the 25th June last”.

17. Jawaharlal Nehru, An Autobiography, New Delhi, Jawaharlal Nehru Memorial Fund, 1980, pp. 42-43.

18. This legislative exercise appears to have drawn some inspiration from the English enactments for the coercion of Ireland.

19. This was a reference to Section 26 of the Rowlatt Act which provided that the local government and the person charged would not be entitled to be represented by a pleader.

20. In the Additional District Magistrate (Jabalpur) case (1976), a question arose regarding a provision that no reasons need be given to the detenu when (s)he is preventively detained under the Maintenance of Internal Security Act (MISA). This led to a memorable query by a judge of the Supreme Court: ‘You are not required to give any reason. Very well. But how do we know that you have a reason?’

21. Malezieux, R. and J.J. Rousseau, 1950: The Constitution of the Fourth Republic, trans. R.C. Ghosh Calcutta: Das Gupta and Co., 1950, p. 9.

22. The French Constitution of 1958 is silent on such matters.

23. Tarun Saint, friend, academic and literary scholar, then sent me the following suggestion with regard to the Crawling Lane: ”(M)aybe some artist could create shadows/silhouettes on the walls of the lane where people were forced to crawl in Amritsar... signifying memory of the event, and the difficulty of representing this.”

24. Collected Works of Mahatma Gandhi, Vol 17, pp. 178-179.

25. Message for Observance of National Week, The Independent, 6 April 1920; reproduced in Selected Works of Motilal Nehru, [Ravinder Kumar and D N Panigrahi (ed.)], New Delhi, Vikas Publishing House, Volume 2, 1984, p. 307.

26. This coming year April 13 will mark 101 years since the Jallianwala Bagh Massacre.

The author is a writer and an Advocate of the Supreme Court of India.

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