Defending Aurobindo

Political trials in which prosecutors, usually the regime in power, aided by the judiciary, try to eliminate their political opponents by using the formal procedures of law have always raised difficult questions. There is a general unease about such trials, as if the very association of the terms “trial” and “politics” corrupt the majesty of the law. But what is the source of unease about political trials? Is it that they are political? Or that they often promote a reprehensible kind of politics? Stalin’s show trials, which exemplified Goebbel’s famous dictum that “trials should not begin with the idea of law, but with the idea that this man should go”, are clearly reprehensible on any measure. But on Nuremberg, a trial that at one level was, as Noorani argues, clearly political, opinions are more divided. And in between there is a whole range of cases that raise profound questions about the relationship between law and politics.

Noorani’s characteristically erudite and thorough selection of 12 Indian political trials, beginning with Nanda Kumar’s in 1775 and ending with Sheikh Abdullah’s in 1946, makes for an extraordinary book. This volume acts as a kind of history of the political uses of judicial machinery to achieve political ends in British India. It is difficult to convey the sense of excitement the reader will get on reading any of the trials. The figures on trial are grand: Tilak, Aurobindo, Gandhi, Azad, the Ali brothers, amongst others. The lawyers in question are equally extraordinary: Nehru, Jinnah, C.R. Das. The judges in question are surprisingly impressive, combining an extraordinary sense of the law with unparalleled powers of articulation. And all of the characters, especially in the trials after 1857, are bound together by an utterly serious respect for the law. Although in some cases, for instance the trial of Bahadurshah Zafar, where an emperor was tried as almost as a common subject rather than a sovereign monarch, the law was clearly manipulated to political ends, the evidence in the other trials is more equivocal. The difficulty with the notion of a political trial is that in many instances the law itself is thoroughly political and loaded against the defendants. In many sedition cases, British judges show an extraordinary sensitivity to the defendants but were bound by the laws that existed. In these cases, it is the law itself, rather than the trial that turn out to be political.

Noorani does a wonderful job of stitching together a narrative from the words of the principal actors themselves. Jinnah’s extraordinary defence of Tilak is a sing read. Anstey’s performance during the great Wahabi case, where the issue was the applicability of habeas corpus and the principles of the Magna Carta to subjects of British India, is as inspiring a defence of liberty as anything since Burke. This chapter should be compulsory reading for anyone interested in liberty.

Noorani’s thoughtful introduction provides a series of wide ranging reflections on the idea of a political trial. He is motivated by an acute sense that a political trial, the enlistment of the judiciary in the cause of a persecuting order, ought to be resisted at all costs. But from this he seems to conclude too quickly that there can be such a thing as a trial entirely outside politics. If politicisation is one danger to the majesty of law, legalism, the confusion between the process of law and the ends it ought to achieve, is another. As a general matter, the subversion of justice by law ought to be as much of a concern as the subversion of justice by politics.

Noorani’s book is also a fine example of a genre of history that vanished under assorted methodological premises of both the right and the left. The critique of nationalist historiography was animated largely by a passion for social history. As a result the study of constitutionalism, law and public reason itself almost completely vanished. This book is an astonishing exercise in claiming a history of public reason, as embodied in trials. It will inspire, delight and enlighten.