A century before Kulbhushan Jadhav, the debate at The Hague was over VD Savarkar

The case of Kulbhushan Jadhav – a former Indian Navy officer now on death row in Pakistan on espionage charges – in the International Court of Justice has pitted India against Pakistan, but more than a century ago it was another Maharashtrian who caused two colonial powers, Britain and France, to approach the Permanent Court of Arbitration, which shares space with the International Court of Justice in the landmark Peace Palace at The Hague.

Vinayak Damodar Savarkar’s daring escape from a ship in Marseilles on July 8, 1910, while being taken to Bombay from England to stand trial for sedition and abetment of murder, raised the delicate question of whether Savarkar, a political prisoner, by being captured on French soil and handed over to the British police, was denied the chance to claim asylum, which also undermined the sovereignty of France.

The Permanent Court of Arbitration was established in 1899 in the wake of The Hague peace conference as the “first global mechanism for the settlement of disputes between states”. Savarkar’s case generated unprecedented attention in international media and legal circles, involving as it did an Indian revolutionary and two powerful nations agreeing to go for arbitration. However, unlike Jadhav’s case, which is entangled into the dynamics of India-Pakistan relations, in the heady days of anti-colonialism, Savarkar’s case gained traction because of pressure from French socialists and British liberals.

Escape and capture

Savarkar was arrested by Scotland Yard on March 13, 1910 from London’s Victoria Station and sent to Brixton jail. He was charged with sedition and with supplying the Brownings pistols that were used to assassinate Nashik collector AT Jackson. Savarkar wanted to be tried in England instead of being taken to India, but after failing in his attempts (the case went up to the highest court), he was set to be taken to India under the Fugitive Offenders Act.

On July 1, 1910, Savarkar – accompanied by Inspector John Parker of Scotland Yard, Charles Power, deputy superintendent of the Poona Criminal Investigation Department, and two constables, Amarsingh Sakharamsingh of the Nashik Police and Mohammad Sadik of the Bombay Police – set sail from Britain on board the Morea. On the morning of July 8, while the ship was docked at Marseilles, Savarkar sought permission to be taken to the bathroom. While a guard stood outside, a half-naked Savarkar crawled through a porthole and swam ashore.

However, he was soon caught by a French gendarme, Pesquie, who was stationed nearby and was joined moments later by the two constables. According to the statement of Amarsingh Sakharamsingh (recorded before a magistrate in Bombay), Savarkar pleaded with the gendarme to be taken to a local magistrate before he was handed over to Power on the ship. The episode lasted between 10 minutes to 15 minutes.

On July 9, the Morea left Marseilles, reaching Aden on July 17. The party disembarked from the Morea, which was en route to Australia, and boarded the Salsette, which took them to Bombay on July 22.

Savarkar’s case at The Hague

The French socialist press protested that the individual rights of Savarkar had been trampled upon and his arrest on French soil had violated the country’s sovereignty. Thus, even before Savarkar set foot in Bombay, Paul Cambon, the French ambassador in London, wrote to the British government that the handing over of Savarkar to Britain, after he had escaped on French soil, was not lawful. Prominent Leftist politicians and newspapers in Europe and America condemned Britain for disregarding international law and demanded that Savarkar be handed over to France.

The British government was flummoxed by the Savarkar affair. Senior officials of the foreign office, home office and India office seemed divided on what course Britain should adopt. Winston Churchill, the home secretary, noted: “Nothing is of greater consequence in this case than that Great Britain should maintain an attitude of dignity and of dispassionate submission to the law of nations. The petty annoyance of a criminal escaping may have to be borne.” The British foreign secretary, Sir Edward Grey, said he would like “to be able to do what the French government asked”. The India office, of course, wanted Savarkar’s trial to go ahead and maintained that as the case was before the court, the executive could not interfere with the proceedings.

The matter escalated and despite attempts by France and Britain, there was no settlement in sight. Meanwhile, pressure from the Left and liberal press continued, forcing both countries in October 1910 to take their case to the Permanent Court of Arbitration in The Hague. The question to be settled was: should Savarkar, in conformity with the rules of international law, be restored by His Britannic Majesty’s Government to the Government of the French Republic, or should he not?

Individual rights and authority of nation-state

The liberals in Britain, including retired officers such as Sir Henry Cotton, and Communists such as Guy Aldred, hoped that Savarkar would be handed over to France by the Hague Tribunal, which would vindicate the right of international asylum.

Meanwhile, in the Bombay high court, Savarkar, who was represented by Joseph Baptista, made an application that as his re-arrest in Marseilles was illegal, the trial could not proceed against him. The Bombay High Court found Savarkar guilty on the two charges of abetment of waging war against the king and abetment of murder. He was handed a sentence of 50 years but was freed much earlier after his mercy petitions. The execution of the sentence was held in abeyance until The Hague court of arbitration had ruled on the dispute between France and Britain.

Through Baptista, Madam Cama – a revolutionary Parsi woman from Bombay who was one of the founders of the Paris Indian Society – managed to get power of attorney, facilitating the engagement of Jean Longuet as Savarkar’s representative in The Hague. Longuet, a Paris-based barrister, was the grandson of Karl Marx. However, as the arbitration was between France and Britain, the tribunal did not accept Longuet’s memorandum on behalf of Savarkar, considering it out of the terms of reference. However, Longuet persisted and personally handed over the copies of the memorandum to the members of the court.

The agents for France and Britain were given an hour to put their arguments on two separate days after which the court ruled in Britain’s favour on February 24, 1911. The tribunal noted that an “irregularity was committed by the arrest of Savarkar” but that “there is no rule of International Law imposing… any obligation on the Power which has in its custody a prisoner, to restore him because of a mistake committed by the foreign agent who delivered him to that Power”. The National Council of French Socialists passed a resolution condemning the decision of the Hague Tribunal. Sections of the press in Ireland and Germany described the ruling as unfair.

It is ironic that Savarkar, now considered the father of Hindutva, had allies in socialists and liberals who clamoured for his release, and played a significant part in pushing two colonising nations to approach an international forum to protect his individual liberty. A small group of Indian students in England and Europe were very active in the struggle against British imperialism, but it was undoubtedly the close relations forged with Left-wing groups in Europe, especially France, that brought the case into the limelight.

On the 134th birth anniversary of Savarkar on Sunday (May 28), the Marseilles escape should serve as a reminder of a complex and rich episode when international groups employing the question of the civil rights of a colonised individual challenged the authority of a nation-state.