Perhaps the greatest legal argument ever delivered in India was never made before a law court at all but before a Military Tribunal.
The argument was made by Shri Bhulabhai Desai, the legendary lawyer of the Bombay High Court.
The facts were that in 1943 Netaji Subhash Chandra Bose set up the Indian National Army ( I.N.A.) for liberating India from British rule. A large number of Indian army officers and men, and also civilians living in countries of South East Asia, joined the I.N.A. and fought against the British.
When the I.N.A. surrendered in 1945 the British decided to try the I.N.A. officers on the charge of waging war against the government (section 121 I.P.C.) and murder (Section 302). For propaganda purpose the trial was held in the historic Red Fort in Delhi, and was widely publicized. The Military Tribunal hearing the case were all senior British army officers
For the defence were Shri Bhulabhai Desai, assisted by Sir Tej Bahadur Sapru, Pandit Jawaharlal Nehru, and Dr. K.N.Katju.
Shri Desai's argument was probably the first legal argument before any court in the world which sought to establish the legal right of an enslaved nation to wage a war of national liberation against its foreign ruler.
Bhulabhai spoke for 2 days, altogether for over 10 hours, and had almost no notes. Had he been arguing before a superior Court of law such as the Privy Council or a High Court, or an International Tribunal consisting of eminent jurists, he would have been assisted in the development of his arguments by observations made from the bench. But speaking before a court martial consisting of army officers not trained in law he had no such advantage.There were no interruptions from first to last, and the whole argument was a sustained effort to present a case which counsel believed was correct in law.
The substance of Bhulabhai's submission was that under international law an enslaved nation has a right to fight for overthrowing foreign rule.
Shri Desai first placed the facts. After the Japanese occupied South East Asia in 1942, the Indians living there, with Japanese support, set up a Provisional Government of Free India, with Netaji Subhash Chandra Bose as Head of State. This Government set up the I.N.A. and 23,000 volunteers joined it.
The Provisional Government had ministers and departments. It enacted laws. It had its own finances, and later acquired territories (e,g. Andaman Islands). It declared war on Britain, and the army it set up ( the I.N.A.) fought against the British army in Burma and the Arakans.. It had its own organization,emblems and badges. The Provisional Government was recognized by the Axis Governments.
This being the position, Bhulabhai argued, the Provisional Government complied with all the requirements of a sovereign state.
Bhulabhai submitted that at one time the old idea was that only an independent sovereign state could validly declare war. This idea, however, created the vicious circle that a subject race would remain in perpetuity a subject race. Hence modern international law recognizes the right of subject people to get organized and wage a war for freedom.
Shri Desai submitted that if 10 villagers in India had rebelled against British rule, the matter may have been different. But where a stage is reached where the rebels have set up their own political organization and army, it is a war recognized by international law.. For instance, in the American Civil War from 1861 to 1865 both North and South had their own governments and armies. A similar example was that of the Spanish Civil War.
Shri Desai submitted that if insurgents even in independent countries can wage a civil war and acquire the status of belligerents, the greater must be the right conceded under International Law to a subject people who rise in revolt against foreign rule.
Shri Desai quoted extensively from works of eminent jurists specialized in international law, e.g. Oppenheim, Lawrence, etc. He referred to President Wilson's 14 points, the U.N. Charter, etc.he referred also to the American Declaration of Independence, 1776, the Greek War of Independence against Turkish Rule, Bolivar's struggles, etc.
Shri Desai submitted that it was a settled position in International Law that when two governments are at war with each other, the combatants acquire the status of belligerents, and the soldiers cannot be punished for murder, and other offences under the municipal laws. The matter passes from the domain of municipal law to that of international law. Amidst the clash of arms, the ordinary criminal law becomes silent. Consequently, he submitted, the charged I.N.A. officers were entitled to be treated as P.O.W.s
Bhulabhai's brilliance can be realized from the fact that he asserted that the very charge against the accused, of waging war, was his main defence, since it was recognized by international law. He referred to section 79 of the Indian Penal Code which states that " Nothing is an offence which is justified by law ", and submitted that International law was also law.
By his outstanding advocacy of India's right to freedom ( made when he was in failing health), Bhulabhai acquitted himself in the highest colours. In the words of his assistant in the case Dr. Katju " It was a great forensic performance, an argument well delivered in accordance with the highest traditions of the bar, and in furtherance of justice".