Sir Sankaran Nair had begun to feel that he could not achieve much in England as Viceroy Lord Reading was not inclined to implement further reforms even though Montagu had recommended them. He returned to India, where he could be more effective by seeking further reforms. On his return, he received an invitation to preside at a Bombay conference held to arrange a Round Table Conference with the Viceroy for the release of political prisoners and discuss remedial steps regarding the political situation in India. He accepted the offer as he wanted to ascertain whether Mahatma Gandhi truly held the will to participate in a conference to resolve these issues. When the conference was convened, he found that Gandhi was not interested; in fact, he argued that, prior to any discussions with the British government, it had to show ‘penitence’ in the manner India had been governed.
Gandhi demanded the release of all Congress and Khilafat prisoners, the right to enrol additional volunteers for propaganda, and punishments for those mentioned in the Congress Report for the Punjab disturbances, including depriving O’Dwyer and Dyer of their pensions. Gandhi also demanded immediate grant of dominion status for India, and insisted that as per the Khilafat’s demands, the French should leave Syria and the British should leave Egypt, and that in consonance with the Indian Muslims’ demand, the authority of the Caliphs of the Ottoman Empire be restored. Furthermore, he said he would only attend the conference in his personal capacity if these minimum conditions were accepted. In his opinion, the time for a conference had not arrived.
Nair felt that Gandhi’s terms were impractical, and there was no point in continuing with a conference that would only have ended in a stalemate. Disillusioned, he left Bombay and accepted the post of Diwan of Indore, a princely State. As Nair expected, Gandhi’s demands were rejected by the Viceroy.
While in Indore, not being a man to hold back his views, Nair wrote Gandhi and Anarchy, which was published in March 1922 at the Holkar State (Electric) Press. Nair, being a man of the law, did not agree with the civil disobedience movement. Further, being a “Nair”, he could not accept a fight through non-violence. He did not believe that non-violence, non-cooperation and civil disobedience was the way for India to achieve Home Rule. He believed that such a movement would lead to disorder, chaos, riots and bloodshed. He raised these objections in his book as a dialogue between himself and Gandhi. He also added his criticism of the British Government’s handling of the Punjab situation. He believed the Punjab disturbances took place due to the coercive methods adopted by O’Dwyer as Lieutenant Governor regarding recruitment, martial law, the bombing in Gujranwala and the condoning of Dyer’s massacre at Jallianwala Bagh.
In his chapter on the Punjab atrocities, he wrote, ‘No one feels for the Punjab more than I do. I doubt if anyone was in a position to know more than I was. Even now, with all the enquiries made by the Hunter Commission and the Congress sub-committee many deplorable incidents as bad as any, worse perhaps, than any have not been disclosed… It is with a full knowledge of this that I make the following remarks… Before the reforms, under a Lieutenant Governor, a single individual, the atrocities in the Punjab, which we know only too well, could be committed almost with impunity.’ Nair implied the Punjab atrocities were committed with O’Dwyer’s full knowledge and approval.
Just three copies of the book were sent to England, two of which went to the office of the Secretary of State for India in London. The third was sent to O’Dwyer by a friend of his in India.
The wily O’Dwyer, who had all but given up hope of clearing his name, saw in Nair’s forcefully expressed opinions a means to salvage his tarnished reputation. He seized upon the opportunity to vindicate his actions in the face of the Hunter Commission report and the castigation his actions had received from the British Government, the Cabinet and the Parliament. He took advice from his solicitors, Sir William Joynson-Hicks and Co., and had them write to Nair in June 1922, calling his attention to the passage O’Dwyer felt was libelous and asking him to publicly withdraw the book from circulation and apologize, along with paying £1,000 to charities specified by O’Dwyer.
An apology would have rendered Nair’s resignation from the Executive Council meaningless. Additionally, as he believed what had happened in the Punjab were atrocities, he refused to apologize or retract his statement. He was not going to be cowed down by a threat.
O’Dwyer instituted proceedings in the Court of the King’s Bench in England, knowing full well that an English Court would in all likelihood side with him. Despite the Government of India, the Cabinet and the Parliament rebuking the Punjab atrocities, a large section of the English public still believed Dyer’s inhuman act had saved Britain’s Indian Empire – the jewel in its crown.
As this was a momentous case, on Sir Nair’s request, the English courts permitted the examination on commission of witnesses in India. As far as O’Dwyer was concerned, he had no such need. Many of those he wanted to call as witnesses had already returned to England or were no longer in India. They could, thus, appear in person. These included Lord Chelmsford, Sir Munro and Major General Sir William Beynon, General Officer Commanding the Sixteenth Division in Lahore. As he felt these were strong witnesses who would undoubtedly make an impact, he asked for fewer than 10 testimonies from India.
In the summer of 1923, a commission was issued to the Chief Justice of the Punjab High Court and an Indian senior sub-judge, Rangtal, was appointed to take evidence. O’Dwyer was represented by Khan Bahadur Sheikh Abdul Qadir and Obedulla. Nair was present with his advocates Tek Chand, B.R. Puri and R.C. Soni.
Both sides were allowed to cross-examine witnesses. Voluntary follow-up examinations were also permitted. The statements were recorded in English (translated from the native language where necessary), with cross-examinations and follow-ups in question-and-answer form. These were all signed.
O’Dwyer’s supporting witnesses were drawn solely from the old landed and privileged class who had not suffered from the atrocities. In addition, they had profited from the British Government’s rule and were loyal to it. They were:
- Nawab Colonel Sir Malik Umar Hayat Khan Tiwana KCIE, CEI, MVO, zamindar of 48,000 bighas at Shapur, Rawalpindi, Honorary Magistrate 1st Class;
- Nawab Sir Bahram Khan Mazari, KCIE, KBE of Rojhan, Dera Ghazi Khan, jagirdar of the Mazari tribe, Member of the Punjab Legislative Council in 1919 and Member of the Council of State;
- Rai Bahadur Lala Amar Nath MBE, Kaisar-i-Hind Medallist, Sub-Registrar, Lahore, jagirdar, Secretary of the Punjab Branch of the Imperial Relief Fund Committee;
- Rai Bahadur Chowdri Lal Chand, Vakil of the High Court of Rohtak, Member of the Punjab Legislative Council Member in 1919;
- Khan Bahadur Sayyad Mehdi Shah, OBE, CIE, President of the Municipal Committee of Gojra, zamindar, Honorary Magistrate 1st Class, Honorary Civil Judge 2nd Class, lambardar, zaildar, Member of the Punjab Legislative Council in 1919;
- Honorary Major Nawab Sir Chad Baksh OBE, KCIE, Vice President of the Council of Regency, Bahawalpur State;
- Honorary Major Nawab Sir Khuda Baksh Tiwana OBE, KCIE, Vice President of the Council of Regency, Bahawalpur State.
Nair’s witnesses could not have been more different. Apart from Sir Muhammed Shafi of Lahore, a member of the Government of India; Sir Setalvad, a member of the Hunter Commission; Home Secretary for the Government of India Raja Narendra Nath; and Raizada Bhagat Ram, formerly of the Punjab Legislative Council, his witnesses were men of relatively low status and included 15 lawyers, 11 medical men (doctors, surgeons and a dentist), three educators (professors or teachers) and a few businessmen. A very large number of people’s testimonies were documented.
Once the evidence was procured, the stage was set for the trial with both parties engaging leading barristers to represent them. O’Dwyer was represented by Ernest Charles KC and Sir Hugh Fraser. Nair entrusted his case to Sir Patrick Hastings, one of the most prominent barristers in England at the time. Hastings had first risen to prominence as a result of the Case of the Hooded Man in 1912, and became noted for his cross-examination skills. After his success in Gruban v Booth in 1917, his practice had steadily grown and, in 1919, he had become a King’s Counsel (KC).
But Sir Patrick Hastings was elevated to Attorney General once the new Labour government came into power before the case came up, and could not appear for Nair. He then entrusted the case to Sir John Simon, another eminent barrister.
Simon went through all the papers and evidence and opined that the case was damaging to O’Dwyer. He said that if all that happened in Punjab was published in England there would be a furore. However, the day before the trial was due to take place, Nair received a telegram from Simon, who was in Paris, expressing his inability to conduct the case. His abrupt withdrawal left Nair without a lawyer on the eve of the trial.
Caught in a difficult predicament, Nair was forced to engage Sir Walter Schwabe, a former Chief Justice of the Madras High Court. Schwabe, sensing an opportunity, readily accepted the case if he was given the same fee as Sir Simon, even though he was certainly not of the same calibre as Simon or Hastings. To make matters worse, Schwabe did not even have adequate time to prepare for the case. Hubert J. Wallington KC and J.M. Parish assisted him.
It is unclear as to why Nair did not choose to defend himself when Simon withdrew. He would have certainly acquitted himself better than Schwabe who was not as experienced, strong or as knowledgeable about the case. Nonetheless, his decision to fight an Englishman in an English court was a courageous move. There were innumerable disadvantages for Nair, not least of which was a less-than-proficient legal practitioner. The trial was to be held in England, the jury would be English, and because the witnesses providing evidence for the defence could not be present, their evidence would merely be read out, leaving it open to possible misinterpretation. Most significant of all was the fact that the English continued to believe themselves to be far superior to Indians, which is why the latter were rarely treated fairly. English juries had acquitted Englishmen who had killed Indians (one was acquitted after killing a coolie and another after killing a washerman who had asked for his wages) and here was an Indian accusing an Englishman of atrocities, in an English court. It was destined to be a case that made history.
Excerpted with permission from The Case That Shook The Empire: One Man’s Fight for the Truth about the Jallianwala Bagh Massacre, Raghu Palat and Pushpa Palat, Bloomsbury India. Read more about the book here and buy it here.