Notes of Bhagat Singh on Jurisprudence from -Jail Notebook
THE JAIL NOTEBOOK
As we open the Notebook, on the first (title) page, there are some jottings: ‘For Bhagat Singh/ Four hundred and four pages (404 pages)…’ with some initials and the date 12/9/1929. This is an entry duly initialled by the concerned jail authority to the effect that the book was given to Bhagat Singh on that date. -(Scanned copy of first page)
According to jail manual/procedure[1] [PCL2] [PCL3] , know it well that when any prisoner would ask for some writing material etc. the jail authorities note the fact in a similar fashion, both at the beginning and at the end of the notebook. The prisoner or undertrial would also initial an entry to confirm the receipt of the writing material. This practice was followed in this case also,at the end of the notebook there are initials of Bhagat Singh dated 12/9/1929.
(ii)[4] [PCL5] [PCL6] Besides these entries; on the right hand, top corner of the title page, there is the signature of Bhagat Singh. At the lower-left hand corner there is an entry: ‘Copy by Abhey Kumar Singh, nephew of Shaheed Bhagat Singh.’
(iii) The notebook was of the usual size of a school or college exercise book, approximately 6.75 x8.50 inches or 17.50 cm x 21 cm[7]
“Society, however, does not rest upon law. This is a legal fiction. Rather the law must rest on society. It must be the expression of the interest and needs of society which result from the social and invariably material method of production as against the arbitrariness of the industrial. As for Napoleon Code, which I have in my hand, that has not engendered modern civil society.
The society which arose in the 18th century and developed in the 19th finds in the Code only a legal expression. As soon as that no longer corresponds to social conditions, it is merely so much waste paper. . . The law necessarily changed with the changing conditions of life. The maintaining of the old law against the new needs and demands of the social development is at bottom nothing but a hypocritical assertion (in accord with the spirit of the age) of special interest against the common interest.”
Marx (Before the Court of Jury of Cologne)
99. The Trial of the Rhenish District Committee of Democrats by Karl Marx, February1849. The trial of the Rhenish District Committee of Democrats took place on 8February 1849. Karl Marx, Karl Schapper and the lawyer Schneider II were summoned to the Cologne jury court, accused of incitement to revolt in connection with the Committee’s appeal of November 18, 1848, on the refusal to pay taxes. They were acquitted. The backdrop to these happenings was the revolutionary ferment in Europe in 1848.
A Judge Defined
“A judge callous to the pain he inflicts loses the right to judge”
Rabindranath Tagore
103. From ‘The Mother’s Prayer’ from The Fugitive and Other Poems (1921).
All Legislators Defined as Criminals
“All legislators and rulers of men commencing with the earliest down to Lycurgus, Solon, Mahomet, Napoleon etc. etc. have, one and all, been criminals, for, whilst giving new laws, they have naturally broken through older ones which had been faithfully observed by society and transmitted by its progenitors.
Pp. 205 Crime and Punishment Dostoevsky
106 Fyodor Mikhailovich Dostoevsky (1821–81), author of Crime and Punishment (1866). His other well-known books include The Idiot (1868) and The Brothers Karamazov (1879–80). Dostoyevsky has apparently used the term ‘criminals’ for law breakers, and suggested that all law-givers tend to break the existing laws or codes of society. Lycurgus was the reputed founder of the constitution of ancient Sparta. Scholars differ about his being a ‘god’ or a ‘hero’. His biographer, Plutarch (c. AD 46–120) called him ‘the law-giver’, while according to Herodotus (c. 484– 424 BC), he changed ‘all the customs’. Solon was an Athenian statesman (c. 639– 559 BC) who revised the constitution to create a limited democracy and introduce land reforms in ancient Athens/Greece. If the reference is to Prophet Mohammed
(c. AD 570–632) he has been mentioned here as a law-giver—as the founder of
Islamic laws based on the Holy Quran as revealed to him—to suggest that he had to break away from the old laws or customs prevailing in the Arab lands.
Napoleon Bonaparte (1769–1821), is, of course, mentioned here for his Code
Napoleon enforced/adopted in Europe.
PAGE 105
Law:
1. Legal exposition as it exists.
2. Legal History as it developed.
3. Science of Legislation as it ought to be.
1. Theoretical (i) Philosophy. Supplying foundation for the science
2. General Jurisprudence
1. Analytical
2. Historical Jurisprudence
3. Ethical
1. Analytical jurisprudence explains the first principles of Law. It deals with:
(a) Conception of Civil Law
(b) Relation between Civil and other Laws
(c) Various constituent ideas that constitute the idea of Law viz. State, Sovereignty and administration of justice.
(d) Legal sources of Law and Theory of Legislation etc.
(e) Scientific arrangements of Law
(f) Legal rights
(g) Theory of Legal (civil and criminal) liability
(h) Other legal conceptions.
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2. Historical Jurisprudence deals with the general principles governing the origin and development of Law; legal conceptions. It is the history.
3. Ethical Jurisprudence: is concerned with the theory of justice in its relation to Law.
Law and Justice
The total disregard of the ethical implications of the law tends to reduce analytical jurisprudence to a system rather arid formation.
in England
Two different words, “Law” and “justice” are a constant reminder that these are two different things and not the same thing. And their use tends to hide from view the real and intimate relation which exists between them.
& in Continent
(Rechet: Right = Droit: Law)
Continental speech conceals the difference between “law” and “right”, whereas
English speech conceals the connection between them.
PAGE 107
“We term any kind of rule or canon whereby actions are framed a law”.
Hooker
108. Richard Hooker (1554–1600), English theologian who codified principles of Anglicanism in Of the Lawes of Ecclesiastical Politie.
“Law in its most general sense signifies a rule of action, and is indiscriminately to all kinds of action whether rational or irrational, animals or inanimate.
Thus we say, the Laws of motion, of gravitation, of optics, of nature and of nations.”
Blackstone
109. Sir William Blackstone (1723–80), English Jurist, author of Commentaries on the Laws of England (1765–69), an authoritative book on English legal doctrine.
Kinds of Laws
1. Imperative Law
2. Physical Law or Scientific Law
3. Natural or Moral Law
4. Conventional Law
5. Customary Law
6. Practical or Technical Law
7. International Law
8. Civil Law or the Law of the State.
PAGE 108
1. Imperative Law means a rule of action imposed upon men by some authority which enforces obedience to it.
The sanction of Imperative Law-1- Punishment, Wars etc.
‘A Law is a command which obliges a person or persons to a course of conduct.’
Austin
110. John Austin (1911–1960), British philosopher who investigated linguistic use for knowledge. Author of How to Do Things with Words.
Positive morality in society also amounts to the Imperative Laws.
Hobbes’ View:
It is men and arms that make the force and power of the Laws.
Hobbes
111. Thomas Hobbes (1588–1679) English philosopher, author of the celebrated
Leviathan (1651; on the social contract theory) and several other works.
2. Physical Law is an expression of actions as they are. (Moral Law or the
Law of Reason is an expression of actions as they ought to be).
3. Natural or Moral Law means the principles of natural right and wrong— the principles of natural justice including all rightful actions.
Justice being of two kinds—the Positive and Natural.
Natural justice is justice as it is indeed and in truth.
Positive justice is justice as it is conceived, recognised and expressed.
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4. Conventional Law: is any rule or system of rules agreed upon by persons for the regulation of their conduct. Agreement is a law for the parties to it.
5. Customary Law: is any rule of action which is actually observed by men— any rule which is the expression of some actual uniformity of voluntary action.
Custom is law of those who observe it.
6. Practical or Technical Law: consists of rules for the attainment of some practical end. In games, there are both ‘Conventional Laws’ and ‘Practical
Laws’, the former being the rules agreed upon by players, the latter being the rules to make the play a success or for the successful playing of the game.
7. International Law: consists of those rules which govern sovereign states in their relations and conduct towards each other.
(i) Express Laws (Treaties etc.)
(ii) Implied Laws (Customary)
Again divisible into two kinds:
(i) Common Laws (between all nations)
(ii) Particular Laws (between two or more particular nations).
8
. Civil Law: Law of the State or of the land; is applied in the courts of justice.
PAGE 110
Punishment
Political Crimes
We agree with the great body of legislators in thinking, that though, in general a person who has been a party to a criminal design, which has not been carried into effect, be not severely dealt with, yet an exception to this rule must be made with respect to high offences against the State; for State crimes, and especially the most heinous and formidable State crimes, have this peculiarity, that, if they are successfully committed, the criminal is almost always secure from punishment. The murderer is in greater danger after his victim is despatched than before. The thief is in greater danger after the purse is taken than before; but the rebel is out of danger as soon as he has subverted the Govt. As the penal law is impotent against a successful rebel, it is consequently necessary that it should be made strong and sharp against the first beginning of rebellion . . .
II L.C.C. Judgement 1916 pp. 120
112. . Details not available Second Lahore conspiracy case 1916
Punishment
Dream that merited Capital Punishment
When Marsays dreamed that he had cut Dionysius throat, the tyrant put him to death, arguing that he would have never dreamt of such a thing by night, had he not thought of it by day.’
113. Dionysius the Elder (c. 430–367 BC) Greek political leader in Sicily, became tyrant of Syracuse (406 BC) and resisted Carthage.
The Laws of Draco affixed the penalty of death in almost all crimes alike, to petty thefts, for instance, as well as to sacrilege and murder; and the only explanation Draco is said to have given of that is, that minor offences deserve that penalty, and he could find no greater for more heinous. Punishment is thought by many philosophers to be a necessary evil.
114 Draco (Dracon) 7th century BC, statesman of Athens who codified the previously unwritten laws. The word ‘draconian’ is derived from his name, since his laws were rather severe, with the death penalty for even minor offenses
State and Man
The State is not really an end in itself and man is not here for the sake of Law or the State, but that these rather exist for man. 115-Not clear if quote or Bhagat Singh own observation
Justice
The maintenance of right within a political community by means of the physical force of the State.
It has replaced the personal vengeance, when men avenged their own wrongs by themselves or with the help of their kinsmen. In those days, the principle of ‘Might is Right’ worked.
Civil and Criminal Justice
Civil Justice enforces rights. Criminal justice punishes wrongs.
A man claims a debt that is due to him, or the restoration of property wrongfully detained from him. This is Civil.
In a Criminal Case, the defendant is accused of a wrong. Court visits the accused with a penalty for the duty already disregarded and for a right already violated as where he is hanged for murder and imprisoned for theft.
Both in civil and original proceedings, there is a wrong complained of
In civil it amounts to a claim of right;
In criminal it amounts nearly to an accusation of wrong
Civil justice is concerned primarily with the plaintiff and his rights;
Criminal with defendant and his offence.
The Purposes of Criminal Justice
Punishment
1. Deterrent: Chief end of the Law is to make the evil-doer an example and a warning to all that are like-minded with him. It makes every offence, “an ill bargain to the effender.” (Changing motive)
Then this cannot be useful in cases of disinterested ‘offenders’ such as politicals.
It can be an evil bargain for him!
2. Preventive: In the second place, it is preventive or disabling. Its special purpose is to prevent a repetition of wrongdoing by the disablement of the offender.
Justification of Capital Punishment
We hang murderers not merely that it may deter others, but for the same reason for which we kill snakes, namely because it is better for us that they should be out of the world than in it.
3. Reformative: Offences are committed through the influence of motives upon characters, and may be prevented either by a change of motives or by a change of character.
Deterrent punishment acts in the former event while Reformative deals with the second. 116
PAGE 114
Advocates of “Reformative theory” admit only such forms of penalty as are subservient to the education and discipline of the criminal, and reject all those which (are) profitable only as deterrent or disabling. Death is in their view no fitting penalty; ‘we must cure our criminals not kill them.’ Flogging and other corporal punishments are condemned as relics of barbarism. Such penalties are considered by them to be degrading and brutalising both to those who suffer and to those who inflict them.
Result of severe punishment. Dangerous and desperate class of criminals springs up.
The more efficient the coercive action of the State, the more successful it is in restraining all normal human beings from the dangerous paths, and the higher becomes the proportion of degeneracy among those who break the law.
4. Retributive Punishment: The most horrible theory! People thinking in these terms are really maintaining the barbaric faculties of ancient and pre civilisation times.
It gratifies the instinct of revenge or retaliation, which exists not merely in the individual wronged, but also by way of sympathetic extension in society at large.
According to this view, it is right and proper that evil should be returned for evil. An eye for an eye and a tooth for a tooth is deemed a plain and self-sufficient rule of natural justice. Punishment becomes an end in itself.
117. This page probably has Bhagat Singh’s own comments.
PAGE 115
Punishment an evil
Punishment is in itself an evil, and can be justified only as the means of attaining a greater good.
But the—supporters of Retributive theory argue this way—“Guilt plus punishment is equal to innocence”.
“The wrong whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid . . . the first object of punishment is to satisfy the outraged law.”
Peine forte et dure: was death with torture . . . judgement for which was delivered as follows:
“That you be taken back to the prison whence you came, to a long dungeon into which no light can enter; then you be laid on your back on the bare floor, with a cloth round your loins, but elsewhere naked, that there be set upon your body a weight of iron as great as you can bear, and greater; that you have no substance save, on the first day, the morsels of the coarsest bread; on the second day, three draughts of stagnant water from the pool nearest to the prison door; on the third day again three morsels of bread as before, and such bread and such water alternately from day to day until you die.”
This punishment was inflicted on people of both the sexes alike, for all sorts of offences not extraordinary.
Law
“The end of Law is not the abolish or restrain but to preserve or enlarge freedom.”
Quoted from Locke
From The Bhagat Singh Reader (HarperCollins)-Pages 478-488
Bhagat Singh wrote two letters, no. 41 and 42, in reference to the young revolutionary Harikishan’s case, who had thrown a bomb on the Governor of Punjab on 23 December 1930, during the Panjab University Lahore convocation. Despite being the son of a rich and influential father, Gurdas Ram Talwar from Mardan, now Pakistan, he was bound to receive a death sentence, which Bhagat Singh knew. But Harikishan’s lawyers in order to defend him, made some averments in his petition, which did not enhance[1] [PCL2] [PCL3] the respect of a revolutionary. Bhagat Singh was very upset about this and wrote to some of his unnamed contacts about it. The first of his letters did not reach its destination and was ‘lost’, as Bhagat Singh himself mentions in his second letter, which had almost a repetition of arguments made in first letter. The first letter, till now considered to be lost, was published in the 18 June 1931 issue of Hindu Panch from Calcutta in a Hindi translation, which was sent to the editor, courtesy of Dr. Raghuvir Singh from Palwal and Ram Sharma from Beena. Since the original English letter is yet to be found, here, the retranslation from Hindi to English has been done by the editor of this volume. Harikishan was hanged on 9 June 1931 in Lahore jail. The Hindu carried these letters in its issue of 22 March 1914)
Dear Brother,
I was surprised to know that Sh. Harikishan wants to present the same arguments for defence in the court that were used in the Assembly bomb case. I was no less surprised to know that Sh. Asaf Ali was called for arguing the case from Delhi and, apart from charging a fat fee for the case; he was paid double first class rail fare. Though any good lawyer from Lahore would have agreed to take up the case, at a much lower fee. But anyhow the second aspect is not the main reason for writing this letter. I mean here the first aspect.
Possibly I have no right to intervene or meddle with the matter of a young man, who is certain to get the highest punishment in law that is the death sentence. Seeing that it is certain that he would be sentenced to death, I am daring to speak on the political aspect of the matter, leaving behind the issue of personality. At the moment I am writing this letter to you at a personal level, though I don’t know for sure whether you can do something about it or not. I hope that before taking any final decision in this matter, my views will be taken into account.
The incidents of the case are clear, and the consequence is also clear. The accused himself understands this most clearly. He has accepted his crime in the lower court, can give his statement in the session court and he should give the statement.
Whatever I have heard that defence lawyer is advising him to state:
1. He had no intention to kill the Governor.
2. He only wanted to hurt him.
3. And this he wanted to do it as a warning.
I request you to please think calmly over this issue. Would not such statements be ridiculous? What would be the meaning of such statements on this occasion? Would it not be repeating the same thing, which has already been stated in an appropriate manner and which has no meaning at present?
After a long careful consideration, I have come to the conclusion that there is no person who could understand and appreciate the complete individual efforts, even if these efforts may be much scattered and disconnected. No one tries to ensure that each such occasion is used to strengthen the movement. Because of a lack of vision in political matters, the defence lawyer has dared to give such advice, or due to his personal ambition, the lawyer has thought of getting such statement. I don’t mean that people should not offer defence in the cases, rather my opinion is the reverse. But this also does not mean that lawyers, without understanding the real problems, should intervene to put revolutionaries in confusion and discourage them. Despite participating in public causes, these lawyers – and I am referring to Punjab alone – have not adopted revolutionary thinking at all. They neither understand the viewpoint of the revolutionaries nor their mentality.
Rather than talking in general terms, let me come to the point. In this matter, to state that the aim of Harikishan was only to issue a warning is absolutely inadequate. Just ponder over it; this incident has occurred after the Assembly bomb case, the attempt to blow up the Viceroy’s train, the Chittagong revolt and many such incidents. It is foolishness to say that the accused just wanted to hurt the Governor as a form of protest. For him, a more appropriate statement would be:
1. That, despotic use of power like the lathi charge in Bombay and Amritsar, the arrest of women, beatings and the unprovoked firing on people (here the reference is to one-sided proceedings of the tribunal in the Lahore conspiracy case and the award of death sentences, which can link this incident to a continuous chain of actions of the whole revolutionary movements, can also be made), motivated him to act in that manner.
2. This is just the beginning; the accused has only given an indication of the resentment prevalent among people, which if it explodes, will bring destruction.
3. This is standard government policy to take the country towards bloodshed.
4. People can become impatient anytime and take to violent methods by renouncing non-violence.
5. The accused does not want the the government to stop this policy as it would encourage people to rise against it.
6. Government has already stopped following the rule of law in general.
7. And the aim of the revolutionary movement is to show the people that the British rule is here only through military power and so this government should be overthrown through political action.
After this he can define the socialist programme. He can make an appeal to Lahore students that they should shed their laziness and join the people’s movement. Under the circumstances this is the best statement he can give.
He can state like an idealist that he has not come to kill an individual; he rather wanted to destroy the system. He feels anguished at the killing of a man, but there is no other way. Individuals have to be sacrificed at the altar of revolution. After all he is also an individual.
He can express sorrow at the killing of the senior inspector, whom he had not wanted to kill. He can also congratulate the Governor for surviving the attack. He can also add that to liberate the oppressed people, loss of individuals cannot matter much.
He should say all these things. Does the lawyer think that by saying that he did not want to kill the Governor, he can be saved? This is sheer childishness. It has no advantage but the harm it causes is immense. If an incident is detached from a movement, it loses its significance. When a sacrifice has to be made, then it should be fully utilized for the best purpose. In future also, all such incidents should be linked to the revolutionary movement and other such efforts; the revolutionary movement should be linked to mass movements. The best way in such matters is to invite a panel of lawyers........ (Incomplete...few words and sentences left out.)
48. Another letter regarding Harikishan February 1931 (Originally in English)
I am very sorry to note that my last letter in this connection did not reach its destination at the proper time and therefore could be of no use, or failed to serve the purpose or which it was written. Hence, I write this letter to let you know my views on the question of defence in the political cases in general and the revolutionary cases in particular. Apart from certain points already discussed in that letter, it shall serve another purpose too, i.e. it shall be a documentary proof that I am not becoming wise after the event.
Anyhow, I wrote in that letter that the plea that the lawyer’s suggestion to offer defence should not be adopted. But it has been done in spite of your, and mine, opposition. Nevertheless, we can now discuss the matter in a better light and can formulate definite Ideas about the future policy regarding defence.
You know that I have never been in favour of defending all the political accused. But this does not imply that the beauty of the real struggle should be altogether spoiled. (Please note that the term beauty is not used in the abstract sense but it means the motive that actuated a particular action). When I say that all the politicals[4] [PCL5] [PCL6] should always defend themselves, I say it with certain reservations. It can be cleared by just one explanation. A man does an act with a certain end in view. After his arrest the political significance of the action should not be diminished. The perpetrator should not become more important than the action itself. Let us further elucidate it with the help of the illustration. Mr. Hari Kishan came to shoot the Governor. I don't want only to discuss the ethical side of the action. I want only to discuss the political side of the case. The man was arrested. Unfortunately, some police official had died in the action. Now comes the question of the defence; well, when fortunately the Governor had escaped there could be a very beautiful statement in his case, i.e., the statement of actual facts as was made in the lower court. And it would have served the legal purpose too. The wisdom and ability of the lawyer depended on his interpretation of the cause of the Sub-Inspector's death. What did he gain by saying that he did not intend to kill the Governor and only wanted to warn him, and all that sort of thing? Can any sensible man imagine even for a moment the possibility of such a design? Had it any legal value? Absolutely none, then, what was the use of spoiling the beauty of not only the particular action but also the general movement? Warning and futile protests cannot go on forever. The warning has once been given long ago. The revolutionary struggle had begun in right earnest so far as the strength of the revolutionary party allowed. Viceroy's train action was neither a test nor a warning. Similarly, Mr. Hari Kishan's action was part of the struggle itself, not a warning. After the failure of the action, the accused can take it in purely sportsman-like spirit. The purpose having been served he ought to have rejoiced in the lucky escape of the Governor. There is no use of killing any one individual. These actions have their political significance in as much as they serve to create a mentality and an atmosphere which shall be very necessary to the final struggle. That is all. Individual actions are to win the moral support of the people. We sometimes designate them as the 'propaganda through deed'.
Now, the people should be defended but subject to the above consideration. This is after all a common principle that all the contending parties always try to gain more and to lose less. No general can ever adopt a policy in which he may have to make a greater sacrifice than the gain expected. Nobody would be more anxious to save the precious life of Mr. Hari Kishan than myself. But I want to let you know that the thing which makes his life precious should by no means be ignored. To save the lives at any cost, is not our policy. It may be the policy of the easy-chair politicians, but it is not ours.
Much of the defence policy depends upon the mentality of the accused himself. But if the accused himself is not only afraid of shrinking but is as enthusiastic as ever, than his work for which he risked his life should be considered first, his personal question afterwards. Again, there may be some sort of confusion. There may be cases where the action is of no general importance in spite of its tremendous local value. There the accused should not be sentimental as to admit the responsibility. The famous trial of Nirmal Kant Rai would be the best illustration.
But in cases like the where it is of such political importance, the personal aspect should not be attached greater value than the political one. If you want to know my frank opinion about his case, let me tell you frankly that it is nothing short of the political murder of an incident of historic importance at the altar of professional (legal) vanity.
Here I may point out one thing more, that the people responsible for this strangulation of the case, having realized their blunder and having become wise after the event in not daring to shoulder their responsibility, are trying to belittle the beauty of the marvellous character of our young comrade. I have heard them saying that Mr Hari Kishan shirked to face it boldly.
This is a most shame-faced lie. He is the most courageous lad I have ever come across. People should have mercy upon us. Better ignored than demoralized and degraded but well looked after.
Lawyers should not be so unscrupulous as to exploit the lives and even deaths of young people who come to sacrifice themselves for so noble a cause as the emancipation of the suffering humanity. I am really . . [1], otherwise, why should a lawyer demand such an incredible fee as has been paid in the above case?
In the sedition cases, I may tell you the limit to which we can allow the defence. Last year when one comrade was prosecuted for having delivered a socialistic speech and when he pleaded not guilty to that charge, we were simply astounded. In such cases we should demand the right of free speech. But where such things are attributed to one a he has not said and are contrary to the interests of the movement, deny. Thought in the present movement the Congress has suffered for having allowed its members to go to jail without defending themselves, in my opinion that was a mistake.
Anyhow, I think if you read this letter along with my previous one, you will come to know very clearly my ideas about the defence in political cases. In Mr. Hari Kishan's case, in my opinion, his appeal should be filed in the High Court without fail and every effort should be made to save him.
I hope both these letters indicate everything I want to say on this subject.
1. Some words missing
From The Bhagat Singh Reader-Pages 78-85 (HarperCollins)-First published in The Hindu of 22nd March 1914
