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Some states in India have imposed a ‘prior restraint’ on free speech in order to prevent rumours and fake news about the novel coronavirus. For instance, a notification issued by the Maharashtra government says that no one can provide any information about COVID-19 through newspapers, websites or social media unless “prior clearance” is obtained from certain officials like the collector. Although rules such as these are often more honoured in the breach, violating them has serious consequences. In Maharashtra, sending a WhatsApp message about COVID-19 without approval from the collector, for example, now attracts a penalty of up to six months in jail or Rs 1,000 or both.

This is not the first time in India’s history that restraints have been imposed on the press in the wake of a serious public health crisis. In 1897, Bal Gangadhar Tilak was punished by the Bombay High Court for sedition under Section 124A of the Indian Penal Code – the first such conviction in colonial India – against the backdrop of a serious plague epidemic in India, one which would eventually reach pandemic proportions. The British colonial government feared that articles carried in Tilak’s Marathi newspaper Kesari would encourage people to thwart the government’s efforts at curbing the plague. Tilak’s 1897 sedition trial holds a lesson for us today: that governments must guard against their instincts to take disproportionate steps against civil liberties in times of crisis.

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The bubonic plague in colonial India

The bubonic plague (so called because of swellings called ‘buboes’ that erupted on the bodies of the infected) arrived in Bombay in October 1896, afflicting China, Japan, Turkey and Russia as well. The numbers of those affected by the plague worldwide went on increasing, such that by 1908, 52 countries had been invaded by the plague, reaching pandemic proportions.

By August 1897, some 1.32 per cent of the population of Bombay, or 10,813 persons, had died of the plague. However, it was fatal for 80 per cent of those who contracted it. Its victims developed symptoms like fever, trembling limbs, hardening of superficial glands (mostly in the groin), delirium, and were sometimes reduced to a comatose or semi-comatose state. On 6 October 1896, the municipal commissioner of Bombay issued an order saying that all infected persons were to be sent to hospital and all infected houses had to be evacuated and disinfected. This caused widespread alarm. People began to flee Bombay in large numbers, in many cases unwittingly carrying the plague with them to other parts of the presidency, like Karachi, Poona and Ahmedabad. On 29 October, around 1,000 mill workers attacked a hospital at Arthur Road in Bombay until they were dispersed by the police. The disease laid waste to the city. As one colonial official subsequently recalled:

“Streets [were] deserted, whole families [were] found dead with no record to tell who they were or where they came from, mothers [were] lying cold with helpless babies beside them whom no one dared pick up to take care of, from fear of this new and terrible disease…Business came to a standstill…”

Although the plague had been around for centuries and had previously been called the ‘Black Death’, it was not known at this time that fleas on rats or lice on humans might have been its cause. In a book of nearly 500 pages about the plague published by the colonial government’s printing office in 1898, the word “rat” appeared on four pages. The colonial government sought help from Dr Waldemar Mordecai Haffkine, a Jewish Ukrainian bacteriologist, who eventually developed an anti-plague vaccine by using himself as a guinea pig. The famed Haffkine Institute in Bombay is named after him.

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Epidemic Diseases Act

In January 1897, Sir John Woodburn, member of the Viceroy’s legislative council, moved a bill to help the government in India combat the plague. Its primary objective, he said, was to prevent the bubonic plague from spreading to other parts of India, and to ensure that foreign countries would not ban British Indian ships from traveling to their ports. “Foreign countries are already much alarmed at the possibility of infection from India,” he said, “and telegraphic news has arrived that Russia has declared the whole Continent of India to be infected.” Therefore, “[f]or the safeguarding of our commerce the Government must be prepared to take steps to allay the fears of other nations”.

The Epidemic Diseases Act, 1897, gave the Viceroy’s council broad powers to combat “any dangerous epidemic disease” in India. Almost immediately thereafter, regulations were enacted in Bombay that gave the municipal commissioner the power to demolish unsanitary buildings. At certain important railway stations, passengers were removed from trains, inspected by a medical officer on the platform, and those suspected of having the plague were detained. If a person had traveled to his/her village from an infected district, s/he was required to furnish information concerning his/her whereabouts; the head of the village then had to observe him/her and “report if he is ill or departs within ten days”. Railway carriages and luggage were routinely disinfected. Similar measures were carried out on ships. The ports of Bombay and Karachi were closed for those who wanted to go for the Haj pilgrimage.

Ordinary Indians at that time were deeply suspicious of hospitals. The lieutenant governor of Bengal remarked that “many of the natives would rather die of the plague than allow themselves to be segregated or removed”. So, government officials made surprise visits to homes to look for plague patients and forcibly send them for treatment. Families tried to conceal their sick loved ones. Patients were found hiding “under bedding and under bundles of clothing” and in “large wooden chests”. In Poona, the work of going from house to house was carried out by the Army, under the supervision of plague commissioner Walter Rand. This caused considerable resentment. The troops were accused of not observing the modesty of women. Further, many Hindus were offended by the presence of foreign army officials in their god-rooms and kitchens. Rand wrote in his report that the attitude of Brahmins in Poona towards the troops was “generally unfriendly”.

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Tilak’s trial

It was against this backdrop that Tilak’s Marathi newspaper, Kesari, which had been in existence for 17 years, carried two articles on 15 June 1897. In the first article, Tilak assumed the persona of Shivaji and lamented the condition of the country. He wrote of how “[r]elentless death moves about spreading epidemics of diseases” in India. He added that in Shivaji’s time, no man could have “dared to cast an improper glance at the wife of another”, whereas now, “opportunities are availed of in railway carriages, and women are dragged by the hand” – a possible reference to plague inspections at railway stations. The other article praised the killing of Afzal Khan by Shivaji, citing Krishna’s speech to Arjuna in the Mahabharata.

A week after the Kesari articles were published, while plague commissioner Walter Rand was leaving the governor’s reception given in honour of the diamond jubilee of Queen Victoria’s reign, he was fatally shot by Damodar Chapekar. Believing that Tilak’s articles instigated the murder, the government moved swiftly against Tilak, arresting him on 27 July on charges of sedition. His trial at the Bombay High Court took place in September 1897.

The bubonic plague loomed large over Tilak’s trial. Arguing for the colonial state, Advocate General Basil Lang told the jury that it was up to them to decide what effect Tilak’s words had “at a time when much excitement and distress existed” because of the famine and the measures undertaken by the government to prevent the spread of the plague. On the other hand, Tilak’s advocate, L.P.E. Pugh, told the jury that Tilak had cooperated with the government in their measures against the plague, which was “surely not consistent with any attempt to cause disaffection”.

In his controversial charge to the jury, Justice Arthur Strachey said that a man was free to strongly condemn the government’s attempts to suppress the plague. However, it was sedition, he continued, for a journalist to make his readers hate the government. He explained that an article “published at a time of profound peace, prosperity and contentment” could be ignored, but not one which was written “at a time of agitation and unrest”. He said that if a person commented on government measures in “violent and bitter” language, such that “ignorant people at a time of great public excitement” would “become indisposed to obey and support the Government”, it amounted to sedition. He advised the jury to consider “the state of things existing…in June 1897, when these articles were disseminated”, and to bear in mind that the readers of the Kesari were not “Englishmen or Parsis or even many cultivated and philosophic Hindus”, but “Hindus, Marathas, inhabitants of the Deccan and the Konkan”.

After being found guilty by a jury verdict of 6-3, Tilak was sentenced to 18 months in prison – the first-ever conviction for sedition in colonial India. The following month, Damodar Chapekar was arrested for the murder of Walter Rand.

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Law in times of crisis

Justice Strachey’s charge to the jury defined sedition very differently from how it was understood in England. There, since around 1832, a speech was only considered seditious if it encouraged listeners to violently revolt against the government. In the Bombay High Court, on the other hand, Justice Strachey said that sedition means the “absence of affection” towards the government, i.e., even making listeners hate the government was enough to be considered seditious. This ruling, issued at a time of widespread panic when British India was battling the plague epidemic, survived for decades thereafter. Scores of Indian patriots were sent behind bars for sedition on the basis of Justice Strachey’s words.

During the Second World War, though the Federal Court of India attempted to bring the definition of sedition in line with its meaning in England, the court was reversed by the Privy Council in London. It was only in 1962 that the Supreme Court of India finally declared that sedition means inciting violence, public disorder or a disturbance of the public peace: which is how sedition is still understood today.

In the wake of the novel coronavirus pandemic, fake news and rumours pose a serious threat to public welfare. However, a good way to combat these is to remind people that not everything they receive on WhatsApp is gospel truth. Those who knowingly spread false rumours must certainly be punished, but imposing prior restraints on everyone indiscriminately is ineffective and disproportionate. We must be careful not to set precedents that may outlive the immediate crisis before us.

The writer is an advocate at the Bombay High Court and the author of Republic of Religion: The Rise and Fall of Colonial Secularism in India (Penguin 2020). Views are personal.

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