Thirteen Lawyers Defended Three Indian National Army Officers in a Red Fort Barrack Room in 1945, and the Sentence of Transportation for Life Was Remitted on 3 January 1946

The first Indian National Army trial opened at 10.15 am on Monday 5 November 1945 in a barrack room inside the Red Fort in Delhi. Captain Shah Nawaz Khan, Captain Prem Kumar Sahgal and Lieutenant Gurbaksh Singh Dhillon stood in the dock, charged with waging war against the King. The court sat for the last time on 31 December, and on Thursday 3 January 1946 the Commander-in-Chief in India, General Claude Auchinleck, remitted the sentence of transportation for life (banishment to a penal colony), the lightest the law allowed after a finding of waging war.

The Indian National Army (INA) was the force that Subhas Chandra Bose led from Southeast Asia. Its story is told in a separate piece and in The Army That Lost Every Battle, so this one stays in the courtroom. It follows the Indian Annual Register’s day-by-day report of the proceedings (which spells Sahgal as Sehgal), the British government’s published papers, two answers in the House of Commons and the historians who have read all of it.

A room sixty feet long

Carpenters cleared a third-floor room in a barrack block, Peter Fay writes in The Forgotten Army. It measured about sixty feet by twenty-five, with a low platform for the court and perhaps 150 seats for families, press and other pass holders.

An hour before the opening a crowd gathered across the road with placards reading “Save I.N.A. Patriots” and “Patriots not Traitors,” and cried “Jai Hind” at passing official cars. Inside, Major-General A. B. Blaxland presided, with Colonel Kerin as Judge-Advocate, the officer who advises a court martial on the law. The accused wore uniform with no badges of rank, and when told to sit they first turned and saluted Nehru.

All three faced a charge of waging war against the King under Section 121 of the Indian Penal Code. Dhillon was also charged with murder, over the shooting of four men near Popa Hill in Burma on or about 6 March 1945. Sahgal was charged with abetting those killings, and Shah Nawaz with abetting the shooting of a gunner, Mohammed Hussain. All three pleaded not guilty.

Thirteen lawyers, and a judge in the visitors’ seats

On 22 September 1945 the Congress Working Committee had named a Defence Committee, and the British government’s papers print its members: Tej Bahadur Sapru, Jawaharlal Nehru, Bhulabhai Desai, K. N. Katju, Raghunandan Saran, Badri Das and Asaf Ali, who was its convener. On the first morning the Register saw Nehru at the defence table in a barrister’s robes, wearing them for the first time in 22 years. Sarkar puts the gap at 25 years.

Fay counts thirteen counsel in the photograph taken as the trial opened. He credits Sahgal’s father, Achhru Ram, a sitting judge of the Lahore High Court, with holding the defence together. Shah Nawaz’s nearest relative was a retired subedar-major and Dhillon’s father was a farmer, so Achhru Ram insisted that the three be defended in common. A serving judge could not sit with the lawyers, and on the first day he sat with the visitors. Next morning a letter from the president of the court let him join the defence.

Desai, 68 and in poor health, took charge of the courtroom. On the opening day he asked for three weeks’ adjournment, because more than 80 of his 112 listed witnesses had not been interviewed. Advocate-General Sir Naushirwan Engineer, who led the prosecution, did not object but wanted to open his case first. After his opening and one witness, the court adjourned until 21 November.

Witnesses, and three statements on 7 December

Engineer told the court that the motive for waging war did not matter, whether patriotic or mercenary, and that an officer’s allegiance to the Crown held wherever he was, prisoners of war included. His first witness, Lieutenant D. C. Nag, was a former civil magistrate who had drafted the INA’s own Act on the model of the Indian Army Act. Nag identified some seventy captured papers, among them orders, diaries and situation reports. Fay says the papers, printed in the daily press, opened a window on what the INA had actually done.

Witnesses then described the treatment of prisoners of war who refused to join the INA. Fay reports that none of this touched the three accused, and that Colonel Kerin told the court that no one had ever suggested they had personally ill-treated prisoners.

Some prosecution witnesses helped the defence. On 7 December a Gurkha battalion commander flown in from Java, Colonel Kitson, described Sahgal’s surrender on the Irrawaddy on 28 April 1945. Sahgal told him, Kitson said, that he disliked the system of British imperialism and, now that he had lost, “was prepared to take the consequences.” Desai called only eleven defence witnesses in all, because he felt the 28 prosecution witnesses had served his purpose.

Each accused read a written statement that day. Shah Nawaz said he had fought as a member of the forces of the Provisional Government of Azad Hind. He told the court that in 1944 he had faced his own cousin across the Chin Hills for two months, that his father had served the Indian Army for 39 years, and that about 80 members of his family were serving as officers in it. Dhillon recalled the motto carved in Chetwode Hall at the Indian Military Academy, Dehra Dun, which begins: “The honour, welfare and safety of your country comes first, always and every time.” The Hindu printed the statements at length, Fay notes.

Desai’s two days, 17 and 18 December

Speaking without notes, Desai began by arguing that the charge itself recognised the other side. If the court accepted that a war had been waged, he said, it had accepted a government that waged it, and that meant belligerent rights, the immunities of soldiers in a lawful war, for the INA. “Legal allegiance cannot be a matter of perpetuity,” he told the court, and in his view a subject race that could never throw it off would never be free.

Desai then listed what that government had held. Japan had ceded the Andaman and Nicobar Islands, which the INA renamed Shahid and Swaraj, and the INA had administered about 1,500 square miles of Manipur and Vishnupur for four to six months. Next came a BBC broadcast of 15 July 1944, which he read out, reporting General Eisenhower’s announcement that the French Forces of the Interior were a combatant force, and Berlin Radio’s reply that the partisans were rebels. The Indian Penal Code, he added, contains no offence called treason.

On the murder charges he argued from the evidence. None of the witnesses had identified the four men by name, and Dhillon said he was in bed and unable to move on the day of the alleged order. On procedure, Desai said a court martial could not try the offence without a complaint from a provincial government. He closed by calling the trial wholly illegal.

Engineer replied on 22 December. A patriotic motive was no defence, he said, though it could be weighed when sentence was fixed. The court refused Desai a second address. Saturday 29 December brought the Judge-Advocate’s summing-up, which put the burden of proving each part of each charge on the prosecution. On Monday 31 December the court sat for 20 minutes and closed.

Three findings and one remission

Findings came on 3 January 1946. All three were guilty of waging war. Shah Nawaz was also guilty of abetment of murder. Dhillon was acquitted of murder and Sahgal of abetment, a result Fay traces to Achhru Ram’s reading of the evidence: the shooting was said to have taken place in a narrow ditch, and what the witnesses could have seen from where they stood was in doubt. That argument could not help Shah Nawaz, because the shooting of Mohammed Hussain happened in different circumstances.

Having found the three guilty of waging war, the official communique says, the court was bound to pass death or transportation for life, and it passed the latter, with cashiering (dismissal in disgrace) and forfeiture of arrears of pay. Auchinleck confirmed the findings but, the communique says, remitted the transportation for all three. Policy was to try only men accused of gross brutality besides waging war, and Dhillon and Sahgal had been acquitted of such charges. Harsh as the acts proved against Shah Nawaz were, the communique adds, the prevailing circumstances had been taken into account. The cashiering stood.

A precedent lay in the same fort. Fay notes that Bahadur Shah II, the last Mughal emperor, was tried there in 1858 and sentenced to transportation for life. An officer told the three on the Thursday afternoon that they could go.

A hundred thousand in Delhi, a night train to Lahore

A rally at the Gandhi Grounds in Delhi on Friday 4 January 1946, with Asaf Ali presiding, drew more than 100,000 people by Fay’s account, and the three left that night on the Frontier Mail for Lahore. Crowds at every station held the train until they had seen them. At Lahore on Saturday 5 January the city’s Senior Superintendent of Police, John Percival Morton, recalled in a typed memoir that he withdrew his police rather than try to enforce the ban on large gatherings. A young woman marked the three men’s foreheads with tilak made from her own blood.

British officials had spent weeks measuring the feeling. Sir Norman Smith, the Director of the Intelligence Bureau, wrote to the Home Department on 20 November that “There has seldom been a matter which has attracted so much Indian public interest and, it is safe to say, sympathy.” Lahore shut down for a hartal (a stoppage of shops and work) on 5 November. Chandra and his co-authors list the Muslim League, the Communist Party, the Akalis and the Hindu Mahasabha among those who backed the INA’s cause in varying degrees.

There were deaths in the streets. At Calcutta the Register records two dead on 21 November, after police stopped a student procession, and 15 killed by police fire the next day.

Why the sentence was remitted

Commutation was already being weighed in November, the British papers show. A Punjab Government note of 17 November, which Auchinleck enclosed in a letter to the Viceroy, warned that carrying out death sentences would bring “unparalleled agitation” and that “The I.N.A. are popular heroes, and the treason charge will only increase their popularity.”

On 30 November the Government of India telegraphed London that the old policy would have meant 200 to 300 trials and perhaps 40 or 50 death sentences. Its conclusion: “abstract justice must to some extent give way to expediency.” It added that the majority opinion in the Indian armed forces now favoured leniency, and that trials would be cut to 20 to 50, limited to brutality and murder.

In the Commons on 3 December, Under-Secretary of State A. Henderson said about 43,000 people had been enrolled or involved, only 20,000 of them Indian Army men, and that men who joined in the mistaken belief that they were helping to liberate their country would not be prosecuted.

Auchinleck explained himself to his commanders in a secret letter of 12 February 1946, copied to Wavell. Most Indian officers, he wrote, admitted the gravity of the offence, but nearly all were sure that enforcing the sentence would have led to “chaos in the country at large.” He also wrote: “any Indian officer worth his salt is a Nationalist.”

The later trials, and where historians differ

Later courts martial were moved to Delhi Cantonment, out of the public eye, Fay says. Captain Abdul Rashid, convicted on five charges, two of them for beating prisoners, was left with seven years’ rigorous imprisonment after Auchinleck’s decision of 4 February, and Muslim League students led a Calcutta procession against it on 11 February, in the account of Chandra and his co-authors. On 18 February Henderson told the Commons that about 20 more men were to be tried for gross brutality. An official communique in early May 1946 ended the trials, Fay says.

Sahgal married Captain Lakshmi, who had commanded the Rani of Jhansi Regiment, in Lahore in March 1947, and they settled in Kanpur, Fay writes. Shah Nawaz later sat in the Lok Sabha. Fay judges there was no serious prospect of INA officers being taken back into the army of independent India.

Historians weigh the trial’s effect differently. Sarkar calls the choice of the Red Fort and of a Hindu, a Muslim and a Sikh in one dock a compounded folly, and sees a probable link between the INA experience and the disaffection in the forces that culminated in the Bombay naval strike of February 1946, “quite possibly the single most decisive reason behind the British decision to make a quick withdrawal.” Fay says the venue was a practical choice and not a signal, since the three were simply at hand, and that the army and the trials gave Britain’s willingness to leave “a powerful, perhaps decisive, boost.” Chandra and his co-authors say the response of the armed forces was unexpectedly sympathetic, contrary to the official belief that loyal soldiers were hostile to the INA. The naval revolt is told in a separate piece, and the British papers on soldiers’ loyalty are set out in Did non-violence alone end British rule?.

On 23 January 2019 the Prime Minister inaugurated a museum on Netaji Subhas Chandra Bose and the INA in the Red Fort barracks and said, according to the Press Information Bureau, that in “this very building” Sahgal, Dhillon and Shah Nawaz Khan were put on trial. It is one of four museums in the fort’s Kranti Mandir complex.