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Wednesday, March 28, 2012

In Jinnah's defence A.G. NOORANI For Jinnah, commitment to his code of conduct as a lawyer came first, as his defence of a communist showed.


In Jinnah's defence


For Jinnah, commitment to his code of conduct as a lawyer came first, as his defence of a communist showed.

Mohammad Ali Jinnah when he was practising as a barrister in Bombay.

BOTH admirers and critics of Mohammad Ali Jinnah will be astonished to learn that he vigorously defended one communist revolutionary in court and also gave sound legal advice to his friends. But neither admirers nor critics care one bit to consult his remarkably rich record spread over nearly half a century. Both seem to agree on the date of his political birth, March 23, 1940, the day the Muslim league adopted the Pakistan resolution. He was a national figure around 30 years earlier. Jinnah was not a complex person like Jawaharlal Nehru. He was transparent and uncomplicated, as his friend Sarojini Naidu noted.

Frank Moraes wrote in his book Yonder One World that Jinnah was the most completely honest politician he had known, adding that he had known many in his time.

The episode teaches lessons more than one. Jinnah was, of course, opposed to the communist ideology. But his commitment to his code of conduct as a lawyer came first. It reveals also that he was free from hate.

However, Jinnah imposed a quaint, self-serving rule on himself – never accept an unpaid brief. His nephew, who was also a junior in his chambers, Akbar A. Peerbhoy, would reminisce to colleagues at the Bombay Bar that the rule would not be relaxed even if the case concerned a mosque. Jinnah would, instead, ask the prospective clients to raise funds, dutifully paying his own contribution to the funds.

On the other hand, he was fearless and uncompromising in his commitment to professional ethics and etiquette. There is the well-known instance of a client who was short of money and pleaded that Jinnah accept the fee he was offering and give advice on the basis of the time the fee could sustain, since he charged by the hour. Jinnah agreed; gave his advice – and refunded a substantial part saying he had read whatever was relevant to read.

Now for the episode. The Communist Party of India (Marxist) leader Muzaffar Ahmad published his autobiography in 1970 ( Myself and the Communist Party of India 1920-1939; National Book Agency P. Ltd, Calcutta). It records two encounters with Jinnah in his own inimitable style.

"Ours being an international movement, defence committees were formed abroad, including one in London. Charles Ashleigh, about whom I have written before, became secretary of this committee. I have written that George Lansbury also was interested in our defence. Friends in London requested Mr M.A. Jinnah through Mr Markmaduke Pickthall or, it may be, through some solicitors' firm in London to accept the brief for the accused. Although he did not refuse, he demanded £2,000 (Rs.30,000) as his fee. Considering that Mr C. Ross Alston's daily fee was Rs.1,000, Jinnah's demand was not excessive. But Mr Jinnah was not prepared to show towards communist prisoners the sympathy usually shown by lawyers in defending accused persons in political cases. In this respect, he was a class-conscious person"; an utterly unfair remark to make (page 358).

This concerned the Kanpur Conspiracy Case (1924). The other approach concerned Philip Spratt. "From the Communist Party of Great Britain following George Allison came Philip Spratt. Taking occasion of Sakalatvala's visit to Bombay in January 1927, George Allison also came to Bombay. At that time he had long discussions with Philip Spratt for several days. Spratt was then a young man aged only twenty-seven. He had graduated with Honours in Physics (Tripos) from Cambridge University and became a member of the Communist Party of Great Britain. Clemens Palme Dutt sent him to India after instructing him properly. Spratt reached Bombay in December 1926. Some writers have put the date as December 30, 1926. I met Philip Spratt for the first time on the evening of January 13, 1927, at the Bombay YMCA. C. Krishnaswami Ayengar had taken me to see him.

"I have already said that George Allison got involved in a case for using a forged passport. Before long Philip Spratt also got involved in a case for sedition (124-A, IPC). His co-accused were S.S. Mirajkar and another person. Spratt wrote a book entitled India and China, which was published by Mirajkar and printed by another person. A case for sedition was instituted against all three of them. They were, however, released on bail.

"Our Bombay comrades, who addressed Mrs Sarojini Naidu as mother, all of them together pressed her to persuade Mr M.A. Jinnah to look after the case, but he declined the brief. However, he gave a valuable piece of advice to Mrs. Naidu. His advice was that we should make an application and get the case transferred to the High Court Sessions, where Philip should give up the demand for trial by a European jury; and then the case would be tried by a majority of Indian jurors, who would naturally be sympathetic to an Englishman being tried for treason in India. The Bombay comrades acted according to Mr Jinnah's advice. The case was committed to the High Court Sessions and a jury, consisting of one European and eight Indians, was selected for the trial. At the end of the trial, the eight Indian jurors returned a verdict of not guilty. Only the European juror adjudged the accused guilty. Agreeing with the majority verdict, the judge acquitted the accused. The ' India-China' case ended in this manner" (pages 465-466).

More details emerge from the Oral History Transcripts of two communist veterans, S.V. Ghate and S.S. Mirajkar, which are lodged in the Nehru Memorial Museum and Library in New Delhi. Both were close to S.A. Dange in the 1920s, though each had a persona of his own. Their reminiscences of the communist movement merit a separate study. It is their versions of the Jinnah engagement that we are here concerned with.

As we shall see, the three accounts conflict somewhat – Muzaffar Ahmad's, Ghate's and Mirajkar's – but the core is not affected.

According to Ghate, Jinnah did defend Spratt. He recalled: "During the period of his [Allison's] trial, Spratt had come. He wrote a pamphlet India and China, for which Saklatvala wrote a foreword…. Spratt was tried in the Bombay High Court. He was not allowed bail. Mohammad Ali Jinnah argued his bail. Some strange things happen some time. Jinnah was the topmost lawyer in the Bombay High Court. Nobody could stand against him. He said: 'Why are you dragging me unnecessarily?' He used to charge 1,500 rupees a day whereas we had not at that time even 1,500 paise. So our friend, Lotvala, promised to give the fees and he was engaged. Of course, the bail application was rejected. After that, some other lawyer came and argued the case and he was acquitted."

Mirajkar's recollections are as clear. "In 1927 the India-China case was an important event in the life of our party and in my personal life as well. Philip Spratt wrote a series of articles in National Herald of B.G. Horniman, which dealt with great events that were taking place in China in 1927. There was more or less an uprising of the working class and the peasantry in China against the nationalist rule of Kuomintang led by Chiang Kai-shek. I decided to collect those articles and publish in pamphlet form, and I did so. Within a month after the publication of the pamphlet, the British government decided to ban it. So the pamphlet was banned. One day, while we were having some discussions in our Workers' and Peasants' Party office at Girgaum, the police pounced upon us and arrested Philip Spratt under Section 124-A, namely, the section which was always used against Indian patriots like Lokmanya Tilak and others. Philip was the first Englishman to be nabbed under this section, and was taken to prison. They refused to grant bail for Spratt, for which we immediately made an attempt. And, poor fellow, remained in police custody for a number of days.

"In this connection, there is a small story, with which M.A. Jinnah was concerned. Philip Spratt was a British and he had no help here, and it was our duty to see that he was at least released from jail before the trial begins. Therefore, I went to Jinnah, whom I had known and asked him that he should take up the bail application and argue it in the High Court and get Spratt released on bail. Jinnah said: 'Well, Mr Mirajkar, we are friends, but business is business. You must approach me through a solicitor. A barrister is always to be approached through a solicitor, not directly.' This is how Jinnah told me to go. I was helpless, but an idea occurred to me. I went to Mrs Naidu – our friend. When she heard this story and the discussion between Jinnah and me, she said: 'All right, let us go to Jinnah. What does he mean by telling you that you must approach him through a solicitor?' So we, two of us, again went to Jinnah's place and she started hammering him as soon as we entered his house. She said: 'What is this, Jinnah, to ask this poor boy to approach you through a solicitor when a British friend of ours who is fighting for us is arrested and is to be assisted and helped legally?' He showed all softness in front of Mrs Naidu. He said: 'Well, what can I do? I did say that, but now since you have come, I will take it up.' He promised that he would take up the bail application and would do whatever preliminary was necessary in that connection. Next day the bail application was filed by Jinnah in the Bombay High Court. Of course, the case immediately came before Justice Davar. He took up the High Court seat and heard the bail application argued by Jinnah. Jinnah, of course, was quite eloquent and did his utmost. He argued for four hours for a simple bail application and everyone thought, who had assembled to listen to the arguments of Jinnah, that something might happen. But, next day, Justice Davar once again refused Spratt's bail and all the arguments presented by Jinnah before him were of no use.

"Spratt remained in jail all this while. The very next day I was arrested as publisher as well a printer of that pamphlet. The manager of Lotvala press, on whose address I had printed that pamphlet – the pamphlet's price was six annas – was also arrested. So we were also in prison. But we were granted bail. I was out within one or two days.... So when I came out, I, of course, arranged for further defence, etc. A solicitor, F. Ginwala, was engaged. He was one of the trade union leaders, along with Jhabwala, a Parsee. He took up the case in right earnest, without asking for money in advance, and the defence of Spratt and myself was thrust on him. So the case was to begin after a week or so. That was the time for the preparation of the defence. But it must be recorded that this was the first case against an Englishman after the establishment of British rule in the country. Spratt was a British. It was attracting great public attention in the city. So much so that a huge crowd had attended the trial, which went on for about five or six days in the Bombay High Court. It was as largely attended as Tilak's trial, under the Sedition Act, Section 124-A. The fact that a British was being tried for the first time for sedition against the British government itself attracted the people's attention in the city.

"Jinnah once again was approached but he had some other engagements and unfortunately, he could not take up this brief. Therefore, we found a new lawyer. There were lots of young lawyers, volunteer lawyers, and one of them was a young, almost junior barrister, Barrister Ambedkar – not the same Babasaheb Ambedkar, who later on became a big leader of the Scheduled Castes – who had started practising in the Bombay High Court. He was also one of the defence counsels. I do not remember the names of the senior counsels now. Thus, the case started in the Bombay High Court. It was very well argued by our lawyers. On the very first day, Philip Spratt being a British had a choice to ask for a special jury. But he waived that choice, that right, and he went in for a common jury. This was based on Jinnah's advice. All the special jurors were challenged and thrown out and common jurors, consisting of nine jurors took up the jury's place.

"So the common jurors took up their seats and the trial began, with Justice Fawcett taking up the seat on the criminal side. It was a criminal case. As I said before, the trial began in right earnest and it went on for six or seven days. Our lawyers argued the case to the best of their ability. They were quite prominent lawyers in the Bombay High Court. And, finally, Justice sat in the chamber to sum up the case and the jury went in. Spratt and myself, the printer, sat in the dock, and waited for our fate. Fortunately, the jury brought us a verdict, eight to one, declaring all of us, under Section 124-A, not guilty. Therefore Justice Fawcett had no choice but to let us off." Jinnah's advice to Spratt to waive his rights as a European proved very sound, indeed.

We live in a different clime in which lawyers decline to defend unpopular causes, violating the code of honour established over the centuries. The finest statement of the duties of counsel was made by Thomas Erskine in his celebrated defence of Tom Paine when he was tried in 1792 for a seditious libel: "I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from the moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment, and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel" (T.B. Howell (ed.); State Trials, T.C. Hansard, London; 1816 Edition, Vol. XII, page 411).

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