The Unread Judgments on Gandhi's Assassination

Since India was not yet a republic, the prosecutor was the Crown and the title of the judgment is “The Crown versus Nathuram Vinayak Godse and Others”. The charges were read out and explained to the accused. The accused pleaded not guilty and wanted to be tried. The prosecution was led by C.K. Daphtary, then advocate general of Bombay, who later became solicitor general of India, and then attorney general for India. His team of lawyers included J.C. Shah, who would go on to become chief justice of India and later head the post-Emergency Shah Commission of Enquiry. Godse was represented by V.V. Oak, advocate but later on applied for and got permission to argue himself. Apart from other counsel representing other accused, it is noteworthy that Savarkar was represented by the formidable P.R. Das of Patna who would soon thereafter lead a challenge to the zamindari abolition acts after the commencement of the Constitution. The evidence of the prosecution began on June 24, 1948 went on till November 6, 1948. The prosecution examined 149 witnesses, and brought on record 404 documentary exhibits and 80 material exhibits. The recording of the statements of the accused began on November 8, 1948 and continued till November 22, 1948. All the accused, except Shankar Kistayya, an employee of the approver Digambar Badge, filed written statements. They brought on record 119 documentary exhibits. The accused declined to adduce evidence in their defence. Interestingly and significantly, in his written statement, Godse took full ownership of the act and denied that the other accused had conspired with him to commit the murder. Some of the accused pleaded alibi. Kistayya, in his written statement, stated that at the bidding of Badge, he transported revolvers and bombs from place to place. He later retracted his statement, likely at the instance of the other accused. Savarkar contended that he had no control over the acts of Godse and Apte. Among the witnesses to be examined by the prosecution as PW-78 was Morarji Desai, the then home minister of the Bombay Province. His evidence was used to corroborate the meeting of one Professor Dr J.C. Jain (PW-67) with the Premier of Bombay B.G. Kher on January 21, 1948 about the explosion which took place at Birla House, Delhi on January 20, 1948 (Madanlal Pahwa and others made an abortive attempt to assassinate the Mahatma on that day). Final arguments began December 1, 1948 and continued till December 30, 1948 and the judgment running into 110 printed pages was delivered promptly in less than six weeks, on February 10, 1949.

The first thing that strikes a lawyer on reading the judgment of the special court is the logical manner in which the judge divided his judgment into 27 chapters. Judge Atma Charan rejected Godse's defence that he was solely responsible, and disbelieved alibis pleaded by others. He convicted Godse, Apte, Karkare, Pahwa, Gopal Godse, Kistayya and Parchure. Godse and Apte were sentenced to death while the others were sentenced to transportation for life. However, he acquitted Sarvarkar and in acquitting him, he noted that the prosecution case rested only on the evidence of the approver, Badge, and felt it would be unsafe to base any conclusions on the approver's evidence alone. Strictures were passed against the Delhi Police for slackness in investigation of the case from January 20, 1948, when there was an abortive attempt by Pahwa, until January 30, 1948. The court said: “Had the slightest keenness been shown in the investigation of the case at that stage, the tragedy probably could have been averted.” Unlike in the case of a regular death sentence, which required confirmation by the high court under Section 381 of the Code of Criminal Procedure, 1898 (now, Section 366 of the Criminal Procedure, 1973), Judge Charan ruled that under Section 16 of the Bombay Public Security Measures Act as extended to the Province of Delhi, the death sentence was not required to be submitted to the high court for confirmation. Judge Charan was later made the judicial commissioner of Ajmer. He was a judge of the Allahabad high court from December 22, 1952 to March 24, 1954, when he died in office. All the convicted persons filed appeals before the East Punjab high court at Simla, as it was then known. The high court was located at the Peterhof, which had earlier housed at least seven viceroys and governors general. The building is today a luxury hotel run by the Himachal Pradesh Tourism Development Corporation. The three judges on the special bench which decided the appeals were A.N. Bhandari, ICS, G.D. Khosla, ICS and Achhru Ram. Godse once again sought and was granted permission to argue his own case. The judgments of the high court were again delivered swiftly, on June 21, 1949. The main judgment running into 360 typed pages was by Justice Achhru Ram. Justice Bhandari wrote a long concurring judgment without indicating why he felt the need to write a separate judgment. Justice Khosla wrote a one paragraph judgment only to disagree on the recommendation of the Justice Achhru Ram to commute the sentence of Pahwa. Godse's appeal was not to challenge his conviction or sentence but only to dislodge the finding of conspiracy against the others. Obviously, he wanted to be known as the sole 'hero'. Justice Bhandari's judgment is written in the style of a story. It contains political history starting with the return of Gandhi from South Africa in 1914 and he narrates that history with a political slant. He makes character sketches of the different accused in interesting language. For instance, in describing Badge, the approver, he says he had a 'penny-catching meanness of mind'. Justice Bhandari acquitted two accused, Parchure and Kistayya, on the ground that there was insufficient evidence. In the context of Parchure's retracted confession, he makes observations which ring true even today – he says, a retracted confession is a source of great anxiety to criminal courts all over the world and particularly to criminal courts in this country where the police administration has degraded itself by crude methods.

Justice Bhandari found that the strictures by the special judge against the Delhi Police were unjustified and that “it was impossible for any police officer, however capable and efficient he might have been, to have prevented Nathuram from committing the crime on which he had set his heart.” He recommended grant of clemency to Gopal Godse, on the ground of his comparatively young age (27 at that time) and that he had probably joined the conspiracy under the combined and powerful influence of his brother Nathuram and Narayan Apte. Justice Achhru Ram, in his judgment, paid compliments to Godse saying that he “argued his appeal, I must say, with conspicuous ability evidencing a mastery of facts which would have done credit to any counsel…“ He also observed, “although he did not succeed in passing the Matriculation Examination, he is quite widely read. In arguing his appeal in this Court, he displayed a very fair knowledge of the English language and a remarkable capacity for clear thinking.” He convicted Godse and four others and acquitted Kistayya and Parchure. He recommended the case of Gopal Godse as well as Pahwa for commutation of sentence, taking note of their young age. He also held that the strictures passed by the trial judge against the Delhi Police were not justified. Justice Bhandari went on to become the chief justice of the Punjab high court, with a long tenure of seven years. Justice Achhru Ram retired soon after the judgment was delivered and practised as a senior advocate in the Supreme Court in its early years. Incidentally, he was the father of Col Prem Kumar Sahgal of Indian National Army fame and husband of Captain Lakshmi Sahgal. Justice Khosla became the chief justice of the Punjab high court for a shorter tenure of two years. After his retirement, he was appointed the Commission of Enquiry to enquire into the death of Subhas Chandra Bose in 1970. He also headed a Commission of Enquiry on film censorship which was formed in 1968. He recommended the creation of an independent Censor Board, separate from the government. He was also part of the Commonwealth Commission of Enquiry to enquire into the affairs of British Guiana. He was also a writer and broadcaster, and among the many books he wrote, one was The Murder of the Mahatma.

There was only one avenue of appeal left. A petition for special leave to appeal to the privy council was lodged by all the five who stood convicted and sentenced by the high court – Nathuram Godse, Apte, Karkare, Pahwa and Gopal Godse. They were represented by John McGaw, Barrister. The Crown was represented by the well-known Labour politician and King's Counsel D.N. Pritt, who later appeared in the Supreme Court on behalf of Telangana Communists who were sentenced to death, ̐and also before the Bombay high court and other high courts in India. Significantly, he had also appeared for Bhagat Singh, Sukhdev and Rajguru before the privy council in 1930. He was assisted by two Indian barristers, R.K. Handoo and P.V. Subba Row. The judicial committee of the privy council had as its members Lord Greene, Lord Simonds, Lord Radcliffe, Sir John Beaumont and Sir Lionel Leach. Lord Radcliffe was the same person who, in five weeks, had drawn the border between India and Pakistan. Sir John Beaumont had been chief justice of the Bombay high court and Sir Lionel Leach had been chief justice of the Madras high court. After hearing McGaw's arguments, the privy council without feeling the need for the Crown to reply, declined special leave to appeal. The governor general in council rejected the mercy petitions of Nathuram Godse (which was filed by his parents because he was not aggrieved by his own conviction and sentence), and Apte. Godse and Apte were hanged in Ambala jail on November 15, 1949. Pahwa, Karkare and Gopal Godse were released from jail in October 1964. After their release, they were felicitated at a function in Pune when Dr G.V. Ketkar, grandson of Balgangadhar Tilak, who presided over the function, revealed that Nathuram Godse had disclosed to him his idea to kill Gandhiji but was opposed by him and that he had had the information conveyed to the then chief minister of the Bombay State, Kher. A furore followed and the Government of India appointed a Commission of Enquiry initially headed by Gopal Swarup Pathak, MP and senior advocate, to enquire into the conspiracy to murder Gandhiji. But soon Pathak was appointed Union minister and the Commission was reconstituted under Justice Jivan Lal Kapur, a retired judge of the Supreme Court. The Commission in its report of 1969, like the special judge, faulted the Delhi Police for not acting between January 20, 1948 and January 30, 1948. He also found that important information had not been disclosed to Nagarvala. He observed:

“AlI these facts taken together were destructive of any theory other than the conspiracy to murder by Savarkar and his group and, in the opinion of the Commission. Mr. Nagarvala tripped because perhaps he was badly served by informants and contacts on whom he had every right to rely or there was some erroneous conclusion. Of course, he does say that this was merely an information which had yet to be verified: but did it deserve to be so seriously considered under the circumstances?”

A good 47 years later, one Pankaj Kumudchandra Phadnis, an 'activist', in a petition of the year 2016, filed a public interest litigation asking for a fresh enquiry into the murder, contending that there were four bullets and not three which were shot and that there may have been a second assassin. He argued that the reason why the privy council did not admit the appeals of the convicts was that the appeals could not have been decided before India became a republic with its own Supreme Court (contemporary newspaper accounts of the proceedings before the privy council do not indicate that this was the reason why the privy council declined leave to appeal). The Supreme Court appointed late senior advocate Amarendra Sharan as amicus curiae. He did painstaking research by examining the entire record of the case and exhibits at the National Museum. By a judgment dated March 28, 2018, the Supreme Court (Justices S.A. Bobde and L. Nageswara Rao) dismissed the petition, holding that there were only three bullet wounds in Gandhi's body. The court said that reopening the case would be an “exercise in futility and would none the less fan new fires of controversy.”