As Pakistan and India stand once again on the crossroads of a great tragedy, it is important to revisit, as Indians and Pakistanis, once again the life and times of that dynamo Bombay advocate, M A Jinnah, who, at times, has been unfairly maligned for having partitioned India. It is unfortunate that on both sides of the border, people seem to have assumed that he was born, politically at least, on 23 March 1940. Yet Jinnah had a long and illustrious career both as one of the leading advocates at Bombay High Court, and as one of India’s most effective Parliamentarians, spanning over three decades.

The only politician to be called the Best Ambassador of Hindu Muslim Unity, Jinnah was often the first port of call for any leader of the Independence movement who found himself at the wrong end of the law. Jinnah represented many such leaders in court, none more famous than Lokmanya Bal Gangadhar Tilak. Tilak and Jinnah had been on two different ends of the political spectrum within the Congress Party. While Tilak led the more radical camp of the Congress, Jinnah was from the Gokhale camp, which believed in constitutional advance to freedom.

In 1916, Tilak was accused of sedition. The case began before the District Magistrate in Pune (then Poona) after Tilak was charged of making a speech against the King Emperor in Marathi. At one point, the prosecutor remarked that one of the most offensive statements that Tilak made was that there was more peace in the time of the Marhattas than under the British government, and that this statement was not correct. Jinnah asked the prosecutor how he knew that this was not the case to which the prosecutor responded that he had read history.

Jinnah, ever the nationalist, replied that the opposing counsel had read history written by the British. So sharp was Jinnah’s advocacy that at one point, the prosecutor admitted that he did not want to present the translator as a witness because he would not be able to withstand Jinnah’s skilled cross examination.

Jinnah argued that Tilak’s speeches were translated in a manner which obscured original intent. All of Tilak’s speeches, he maintained, were comments expressing dissatisfaction with governmental measures aiming to bring about change by lawful means, without exciting hatred, contempt or disaffection.

Jinnah then asked the crucial question which remains as valid today as it was then. “What is a government established by law?”

The transcript reads, in Jinnah’s words, “Take the army. Is it sedition to attack it? Suppose he attacked the police or the Forest Service, is that sedition?” Reading Jinnah’s arguments on the question of Section 124-A of the Indian Penal Code and then considering the jurisprudence developed under this section, both in modern India and Pakistan, one concludes that these questions remain unanswered even today.

However, despite his advocacy, Jinnah initially lost the case. The magistrate C W Hatch proceeded to order Tilak to enter into a bond of Rs. 20,000 to ensure good behaviour. Subsequently, Jinnah filed a criminal revision application before the Bombay High Court, arguing that the magistrate had misunderstood Section 124-A and had failed to see the exceptions to its application. He argued that Tilak’s intention was not to cause disaffection but as a genuine criticism and that the translations made were not verbatim, and therefore, not legally admissible.

Jinnah further argued that Civil Service was not necessarily the government; the government strictly meant the King and the Parliament. Quoting Halsbury’s Laws of England, Jinnah declared that there could be no sedition without intention. The Advocate General, however, argued that the government included Civil Service and that the meaning of the government was executive.

The division bench presiding over the case ruled that there was no disaffection and thus there was no sedition. The judgment by Poona Magistrate was reversed. This case cemented Jinnah’s reputation as an advocate for freedom of speech and as a hero of the nationalists of all wings of the Congress.

A few years later, Jinnah would represent Sardar Vallabhai Patel against corruption charges brought by the British government and win again. Years later, Jinnah’s voice would be heard in defence of Bhagat Singh and his comrades in the Central Legislative Assembly of India. What, then, happened to this great doyen of Indian nationalism and defender of patriots? Why did he go on to champion the cause of a separate Muslim homeland?

By the late 1920s, Jinnah had begun to fear what he viewed as Hindu majoritarianism. He felt that India’s unique position called for a consociational solution whereby Muslims would willingly give up separate electorates in return for guaranteed reserved share in governance. He was repeatedly rebuffed.

In 1937, he had gone to elections as an ally of the Congress, but Congress refused to share power with the Muslim League in UP (United Provinces), even though the Muslim League had won almost all of the Muslim seats in the province.

Even at the height of the Pakistan Movement, Jinnah took a step back and accepted the Cabinet Mission Plan, which was the only solution that could have kept India united. Unfortunately, the then Congress leadership was not willing to have any of it. Partition of India thus became the only solution, and the rest, as they say, is history.

Adv Yasser Latif Hamdani

Yasser Latif Hamdani is an Advocate of the High Court of Pakistan and a member of the Honourable Society of Lincoln’s Inn. His biography of Jinnah is to be published this year by Pan Macmillan India.

The views and opinions expressed in the article are those of the authors and do not necessarily reflect the official policy or position of The Tilak Chronicle and TTC Media Pvt Ltd.


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