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Journalism of Courage
Who was Anwar Ali Sarkar? A freedom fighter? A member of a mob? A union worker? While there are few references to him in court records or history books, it’s a name that is immortalised as the respondent in Appeal No. 297 in a landmark Supreme Court ruling of 1952 on the right to equality.
While striking down a law which fast-tracked his case and tried him in a special court, the apex court said that the move fell foul of the right to equality under Article 14 of the Constitution. The court also for the first time spelt out the nature of the right and how it works.
On February 26, 1949, Sarkar was part of a mob of 50 young men who attacked the Jessop factory, an engineering company in Dum Dum, killing three European supervisory staff. Court records show that the victims were “battered to death and their corpses were thrown into blazing furnaces.”
In what was a coordinated attack led by the Revolutionary Communist Party of India (RCPI), a breakaway group of the Communist Party of India (CPI), mobs also captured the Dum Dum airport, where they set a plane on fire, and attacked an ammunition factory and shot the sentry. Some of the raiders fled to Basirhat, where they attacked a police station, killed two guards and looted about 26 rifles. The “most regrettable incident” led to a diplomatic row and was discussed in the House of Lords in London.
Acting swiftly to mitigate international tensions, the West Bengal government on August 17, 1949, promulgated the Special Courts Ordinance, a law that called for swift trials in special cases. Special courts set up under this law could conduct the trial without the presence of the accused and even refuse to summon key witnesses. Sarkar was arrested on October 11.
On January 25, 1950, just a day before the new Constitution came into force, it was notified that King v Anwar Ali Sarkar would be heard under the Special Courts law.
Court records show that the prosecution alleged that Sarkar was a member of the Executive Committee of the Union of workers of Jessop & Co., and took a leading part in the workers’ agitation against retrenchment and for Puja bonus. The defence, however, argued that he wasn’t present at the spot.
On March 31, 1950, S N Guha Roy, then Sessions Judge of Alipore, awarded Ali and 49 others a sentence of “transportation for life”, a punishment that involved sending a convict to exile or banishment. Under colonial laws, dissidents of the State were routinely given punishments that included sending them to ‘Kala Pani’ in the Andaman and Nicobar Islands.
In an appeal filed in the Calcutta High Court, Anwar Ali Sarkar invoked Article 14 of the Constitution that guaranteed his right to equality before the law and equal protection of the law and sought to be treated like an ordinary criminal and thus tried in an ordinary court and not a special one only because he had killed white men.
Sir Arthur Trevor Harries, an Englishman who was then Chief Justice of the High Court, agreed with the petition. The HC held that while “classes of offences” or “classes of cases” could be referred to the special courts, only referring “cases” is violative of Article 14. For example, sexual assault cases are currently tried in special, fast-track courts, but the government cannot pick one case, however gruesome, and try it under a different procedure.
As the State went in appeal to the Supreme Court, it was veteran lawyer N C Chatterjee, a Hindu Mahasabha leader and father of former Lok Sabha Speaker Somnath Chatterjee who argued for Sarkar and the other communists.
In a Republic that had placed its hope in the Constitution, the judgment and the conviction jarred and the case ended up being an opportunity to truly decolonise the legal system. Like Chatterjee, many other legal stalwarts picked the brief for similar cases. Hyderabad and Mysore states, which had similar laws on special courts, mounted a concerted effort along with then Attorney General for India M C Setalvad.
On January 11, 1952, in a 6:1 ruling, the Supreme Court upheld the Calcutta High Court ruling in the Anwar Ali case and struck down the Special Courts Act for falling foul of the right to equality. The ruling was one of the rare instances in which the Chief Justice of India, Patanjali Sastri, was the sole dissenter.
Justice Vivian Bose said in the judgment, “We find men accused of heinous crimes called upon to answer for their lives and liberties. We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim…The question with which I charge myself is, can fair-minded, reasonable unbiased and resolute men, who are not swayed by emotion or prejudice, regard …it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.”
The ruling became the foundation for the “reasonable classification” test under Article 14 that is now applied almost as second nature. The test dictates when a law can provide an exception to the right to equality and apply to a specific class of people. However, the classification must be based on “intelligible differentia” (clear reasons for singling out that class of people) and must have a “rational relation” to the object of the law.
The ruling also underscored that the lofty protections of the Constitution must extend even to ordinary citizens.
Speaking to The Indian Express, Rohit De, Associate Professor of History at Yale University, said that it did not matter who Anwar Ali Sarkar was for the court to recognise his rights. It was clear, he said, that Sarkar and his fellow detainees were not high-profile Communist leaders but just ordinary citizens. “Nor were they being suppressed because of their views. They had carried out a brutal attack, killing people. It was far from being a sympathetic case,” he said.
His name, however, continues to be invoked with every plea for equality and equal protection under the Constitution.
