Meanings of Treason in a Colonial Context: Indian Challenges to the Charges of 'Waging War against the King' and 'Crimes against Peace'

Abstract

In 1945-46, the British colonial authorities convened a series of trials of members of the Indian National Army, a force allied with Japan. At the first, three officers were charged with ‘waging war against the King’ – or treason, set out in Section 121 of the Indian Penal Code.

If it appeared to be a straightforward treason case, the chief defence counsel, Bhulabhai Desai, soon turned it on its head, by questioning the very premise of the ‘waging war’ charge. The essence of his argument was that during a war of liberation, the justice of the challenger eclipsed the security of the challenged. He called on international law, stating that the court had no jurisdiction over belligerent states, and that the accused had no case to answer. And he used Hobbesian arguments to explain how the allegiance so peremptorily commanded by the Raj, and summarily so punished if abandoned, could be — and was — legitimately renounced.

Desai’s speech had a profound impact, and one jurist, Radhabinod Pal, would soon take his arguments to the International Military Tribunal for the Far East, established to deal with ‘crimes against peace’ — treason against the society of states. Pal, like Desai, took colonialism as his starting point. He thought the Allies’ motive for creating the ‘crimes against peace’ charge was highly suspect, because it potentially criminalised the anti-colonial struggle. Colonies, he wrote, should not be compelled to submit to eternal domination ‘only in the name of peace’. This, of course, was precisely Desai’s point.

Keywords: International criminal law, national security law, colonialism, treason, crimes against peace, Red Fort Trials, Tokyo Tribunal, International Military Tribunal for the Far East

JEL Classification: K33, K41