Punitive Measures, Permanent, (a) Points of General Application. The measures which we shall submit are of two kinds, viz., Punitive, by which term we mean measures better to secure the conviction and punishment of offenders, and Preventive, i.e., measures to check the spread of conspiracy and the commission of crime.

We may say at once that we do not expect very much from punitive measures.[1] The conviction of offenders will never check such a movement as that which grew up in Bengal unless all the leaders can be convicted at the outset. Further, the real difficulties have been the scarcity of evidence due to various causes and the want of reliance whether justified or not, on such evidence as there has been. The last difficulty is fundamental and cannot be remedied. No law can direct a court to be convinced when it is not.

Punitive Measures (Permanent).

Legislation directed better to secure the punishment of seditious crime may take the shape either—

(a) of changes in the general law of evidence or procedure which if sound would be advisable in regard to all crime, or

(b) changes in the substantive law of sedition or modifications in the rules of evidence and procedure in such cases designed to deal with the special features of that class of offence.

In the first place we think that a permanent enactment on the lines of Rule 25A under the Defence of India Act is required. That rule provides for the punishment of persons having prohibited documents (which may have to be defined anew) in their possession or control with (as we read the effect of the words used) intent to publish or circulate them....

We also recommend that the principle of section 565 of the Code of Criminal Procedure (which provides for an order requiring notification of residence after release in the case of persons convicted a second time for certain offences) should be extended to all persons convicted of offences under Chapter VI of the Penal Code (offences against the State) whether previously convicted or not. Such persons might be ordered to give security for a period not exceeding two years for good behaviour so far as offences under Chapter VI are concerned, and in default be directed to notify their residence to Government, who should have power to restrict their movements for the period of two years after their release and prohibit them from addressing public meetings,—the term “public meetings” including in its scope political subjects as in section 4 of the Prevention of Seditious Meetings Act of 1907.

Lastly, we think that in all cases where there is a question of seditious intent, evidence of previous conviction for seditious crime or association (of an incriminating kind, of course) with persons so convicted should be admissible upon written notice to the accused with such particulars and at such a time before the evidence is given as might be fair. What we have called seditious crime would of course have to be accurately defined.

Emergency Provisions for Trials. Coming now to the measures themselves, we are of opinion that provision should be made for the trial of seditious crime by Benches of three Judges without juries or assessors and without preliminary commitment proceedings or appeal. In short, the procedure we recommend should follow the lines laid down in sections 5-9 inclusive of the Defence of India Act. It should be made clear that section 512 of the Code of Criminal Procedure (relating to the giving in evidence under certain circumstances of depositions taken in the absence of an absconding accused) applies to these trials, it having, we understand, been questioned whether section 7 of the Defence of India Act has that effect.

We think it necessary to exclude juries and assessors mainly because of the terrorism to which they are liable. But terrorism apart, we do not think that they can be relied upon in this class of cases. They are too much inclined to be affected by public discussion.

Emergency Preventive Measures. We have been forced to the conclusion that it is necessary, in order to keep the conspiracies already described under control in the future, to provide for the continuance after the expiry of the Defence of India Act (though in the contingent form explained and under important limitations) of some of the powers which that measure introduced in a temporary form. By those means alone has the conspiracy been paralysed for the present and we are unable to devise any expedient operating according to strict judicial forms which can be relied upon to prevent its reviving to check it if it does revive, or, in the last resort, to suppress it anew. This will involve some infringement of the rules normally safeguarding the liberty of the subject. We have endeavored to make that infringement as small as we think possible consistently with the production of an effective scheme.

Existing Temporary Powers. The powers at present temporarily possessed by the Government are so far as material for the present purpose to be found in rules 3-7 inclusive and 12A under the Defence of India Act, 1915. We do not refer for the present to the Foreigners Ordinance, 1914, or the Ingress into India Ordinance, 1914.... Shortly stated, their effect is to give power to require persons by executive order to remain in any area to be specified or not to enter or remain in any such area, with penalties for breach of such requirements. These orders may be made and served on the person affected, whereupon they become binding upon him, or the person may be arrested without warrant and detained for a period not exceeding in all one month, pending an order of restriction. There is also a power of search under search warrant. It will be observed there is no provision for an examination of the cases of such persons. The decision lies solely with the Local Government. There is also the power of confinement under Regulation III of 1818.

“Two Grades of Powers Desirable.—We now proceed to elaborate ... the scheme we suggest.

“We think, as we have already indicated, that the powers to be acquired should be of two grades capable of being called into operation separately, possibly under different forms of notification.

“The first group of powers should be of the following nature:—

“(i) to demand security with or without sureties;

“(ii) to restrict residence or to require notification of change of residence;

“(iii) to require abstention from certain acts, such as engaging in journalism, distributing leaflets or attending meetings;

“(iv) to require that the person should periodically report to the police.

“The second group of powers should be—

“(i) to arrest;

“(ii) to search under warrant;

“(iii) to confine in non-penal custody.

“In Article 196 they provide “that in respect of acts committed before the Defence of India Act expires (or an earlier date if preferred) and danger apprehended by reason of such acts in the future it should be lawful to proceed against any person under any of the provisions which we have outlined without any notification. In other words, the new law is to be deemed to be operative for that purpose immediately.”