These Bills have come to be known as the Black Bills. A strong agitation has been going against them all over India, and the Bills have been felt to be so oppressive that Satyagraha has been started against them. The Satyagrahis have declared in their Pledge that these Bills are unjust, that they are subversive of the principle of the liberty of the subject and destructive of the elementary rights of an individual. It is necessary to prove to the people the propriety of these adjectives and the evidence must be in the Bills themselves?so that (they may see how) submission to laws which deserve such epithets is forfeiting one's humanity and accepting slavery, and those who form such an impression after going through the summary below owe it as a duty to sign the Satyagraha Pledge. Bill No. 2, as its preamble suggests, goes further than the ordinary crimi-nal law. The second Bill seems to us to be the more dangerous of the two and a summary of it is, therefore, given first.
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SUMMARY OF BILL No. 2 of 1919
The object of the Bill is to make provision that the ordinary criminal law should be supplemented and emergency powers should be exercisable by the Government for the purpose of dealing with dangerous situations.
Section 1. This Bill may be called the Criminal Law Emergency Powers Bill.
It extends to the WHOLE of India.
Section 4. Where the Local Government is of opinion that any person should be tried in accordance with the provisions of this Act, it may order any officer of the Government to prefer a written information to the Chief Justice against that person.
Such order may be made in respect of any (scheduled) offence EVEN IF SUCH OFFENCE WAS COMMITTED BEFORE THE ISSUE OF THE NOTIFICATION in the Gazette bringing the Act into force in a particular area.
Section 5, provides that, upon such information being served, the Chief Justice shall nominate three of the High Court Judges for the trial of information.
Section 9. After the charge is framed, the accused shall be entitled to ask for an adjournment for a period not exceeding ten days.
Section 10 provides that the court is bound to arrange for the evidence of each witness to be recorded only in summary.
Comment : Even a layman will readily see that recording only the summary of evidence can lead to serious miscarriage of justice. No judge can know in advance, before all the witnesses have deen examined, what weight to attach to which part of evidence.
Section 11. The court, if it is of opinion that such a course is necessary in the public interest or for the protection of a witness, may prohibit or restrict the publication or disclosure of its proceedings or any part thereof.
Section 12. No question shall be put by the court to the accused until the close of the case for the prosecution. Thereafter, and before the accused enters on his defence, the court shall inform the accused that he is entitled, if he so desires, to give evidence on oath on his own behalf, and shall at the same time inform him that if he does so he will be liable to crossexamination.
If the accused states that he desired to give evidence on oath, the court may put any question to him the reply to which may prove his guilt.
Section 15. If in the course of the trial, the accused is discovered to have committed any offences other than the one he is charged with, he may be charged with and convicted of these as well.
Section 17. The judgment of the court shall be final and conclusive and no High Court shall have authority to revise any order or sentence of the court.
PART II
Section 21. Where, in the opinion of the Local Government, there are reasonable grounds for believing that any person is or has been actively concerned in any movement of the nature referred to above, it may give all or any of the following directions : That such person
(a) shall execute a bond for good conduct for a period not exceeding one year;
(b) shall remain or reside in any area specified in the order;
(c) shall notify his residence and any change of residence as ordered;
(d) shall abstain from any act which, in the opinion of the Local Government, as calculated to disturb the public peace or is prejudicial to the public safety;
(e) shall report himself to such police officer and at such periods as may be specified in the order.
Comment : Under this Section, an order of this kind may be passed against any person merely on suspicion and without a trial.
Section 25 : When the Local Government makes an order as above, such Government shall, as soon as may be, forward to the investigating authority to be constituted under this Act a concise statement in writing setting forth all particulars relevant to the order and the grounds for making it.
The investigating authority shall then hold an inquiry IN CAMERA, summon the person in question at SOME stage in its proceedings and hear any explanation he may have to offer, provided that the investigating authority shall not disclose to the person any fact the communication of which might endanger the public safety or the safety of any individual, and provided further THAT NEITHER THE LOCAL GOVERNMENT NOR THE PERSON IN QUESTION SHALL BE ENTITLED TO BE REPRESENTED AT SUCH INQUIRY BY A PLEADER.
The inquiry shall be conducted in such manner as the investigating authority considers best suited to elicit the facts of the case and, IN MAKING THE INQUIRY, SUCH AUTHORITY SHALL NOT BE BOUND TO OBSERVE THE RULE OF THE LAW OF EVIDENCE.
On completion of the inquiry, the investigating authority shall report its conclusions to the Local Government. Section 26. On receipt of the report of the investigating authority, the Local Government may discharge the order made by it or may make any other order which it is authorized to make; any order so made shall recite the conclusions of the investigating authority and a copy of the order shall be furnished to the person in question.
No order made as herein provided shall continue in force for more than a year from the date on which it was made, though on the expiry of such an order the Local Government may renew it for a further period of one year. An order may also be discharged at any time by the Local Government, or altered or substi-tuted by any other order without reference to the investigating authority mentioned above.
Comment : This means that the Local Government may issue any order at its discretion, and that even the nominal investigating authority will serve no useful purpose.
Section 27. Any person who fails to comply with an order as above shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to a thousand rupees, or with both.
PART III
Section 33. Where, in the opinion of the Local Government, any person has been or is concerned in such area in any offence of that kind, it may make in respect of such person any order authorised in part II and may further order (a) the arrest of any such person without warrant; (b) the confinement of any such person in such place and under such conditions and restrictions as it may specify; (c) the search of any place specified in the order.
An officer executing an order for the search of any place may seize and dispose of anything found in such place, which he has reason to believe is being used or is likely to be used for any purpose prejudicial to the public safety.
Section 36. Where an order has been made under Section 33, the provisions of Section 22 to 26 shall apply in the same way as if the order were an order made under Section 21.
Comment : See comment on Sections 22 to 26.
PART IV AND V
On the expiration of the Defence of India Act, every person who was held prisoner under Section 37 (at the time of the expiration of the Act) and who has in the opinion of the Local Government been concerned in any scheduled offence, and every person who is (on such expiration) in confinement in accordance with the provisions of the Bengal State Prisoners Regulation, 1818, shall be deemed to be in prison under (the provisions of) part III above.
No order under this Act shall be called in question in any court, and no suit or prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act. All powers given by this Act shall be in addition to any other powers conferred by or under any enactment.
BILL No. 1 of 1919
The object of this Bill is to amend the Indian Penal Code and the Criminal Procedure Code so as to put effective curbs on activities dangerous to the State. It creates a new offence, as under :
Any person found in possession of a seditious document or intending to publish or circulate such document will, unless he proves that it was in his possession for a lawful purpose, be punishable with imprisonment extending to a period of two years or with fine, or with both. Comment : This means that, if any book or paper believed to be seditious is found in the pocket of any innocent youth ignorant of its contents, he would be taken to be guilty unless he proves that he was carrying it for a lawful purpose. This new offence alters one of the fundamental principles of the British justice inasmuch as, instead of the prosecution having to prove the guilt of the accused, it is the latter who will have to establish his innocence. If I am charged with anything, how can I prove that I am not guilty ? This can only mean that I shall be in jail.
When trying offences against the State mentioned in the Indian Penal Code, the court is free to order, if it thinks fit, that the accused, even after he has served the sentence of imprisonment passed on him, should execute a bond of good conduct for two years thereafter. Any person who, having been served with a restraint order, under the provisions of this Bill, to report subsequent to his release, his place of residence and any change therein, may be directed by the Local Government by an order in writing to abide by any of the following conditions :
(a) the person in question must not enter or reside or stop in any specified area;
(b) he should confine himself to a particular part of British India;
(c) he must not address any public meeting called to discuss issues which might lead to breach of the peace or public excitement or to circulate any written or printed information relating to such issues or to extend support to any political matter.
Comment : This means that, even after a person has suffered enough for an alleged offence, he may not expect to be free from harassment by the Government.
ALTERATIONS MADE BY SELECT COMMITTEE
Its report was published on March 1. We list below the important changes which follow from the part of the report which has received the approval of a majority. It has not been signed by the Hon'ble Pandit Malaviya, the Hon'ble Vithalbhai Patel and the Hon'ble Mr. Khaparde. The Hon'ble Mr. Surendranath Banerji, the Hon'ble Mr. Shastriar and the Hon'ble Mr. M. Shafi have appended a minute of dissent in which they have suggested several important changes.
The Committee (mainly composed of officials) points out that, though it has made a few changes in Bill No.2, it has hesitated to alter its basic principles.
The Committee has recommended that the Bill be limited to three years.
The Select Committee has recommended that it should apply only to the offences of waging war and inciting rebellion against the State (not to all the scheduled offences).
Under Section 10, the Judge was required to record a summary of the evidence, Now the evidence will have to be recorded in full either by the judge or by a clerk appointed by him.
Under Section 21, the Government is authorized to demand a bond of good conduct without showing any reason. Now it will be required to state the reason and make out a case.
Under Section 26, the accused could be detained for a period extending to three years. Now the Government will have power to do so for a period extending to two years and the case will have to be referred to the investigating authority on every occasion.
Section 33 seemed to imply that the accused could even be confined with the ordinary criminals. It is now made clear that he will have to be kept apart.
Comment : It must be admitted that the alteration suggested by the Select Committee do effect some improvements in the original Bill, but they leave the basic principle of the Bill untouched, and the Bill can be used to harass people so much that, as the Hon'ble Mr. Shastriar has pointed out, even the members of the new Councils with enlarged powers which are to come into being will tremble while making any comments and be able to avail themselves of their nominal freedom only by turning themselves flatterers. If this is true as regards members of the Legislature, what will be the condition of the defenceless, ignorant people? It is the duty of every thinking Indian to save the people from this danger, a duty one can discharge only by offering Satyagraha.
