If I am to die by the bullet of a mad man, I must do so smiling. There must be no anger within me. God must be in my heart and on my lips. — Mohandas K. Gandhi, 28 January 1948, two days prior to his assassination.
None can deny the public interest in the historic event ending the life of the Father of our nation, Mahatma Gandhi. FIR No 68/48 dated 30.1.1948, and final charge sheet issued by the Delhi Police, copy of order to execute the accused Mr. Nathuram Godse in case of assassination of Mohandas Karamchand Gandhi, all are very important historic documents, which a nation cannot lose. Do we have them? This question cropped up when a couple of RTI requests were not responded. Hemanth Panda claimed that he is a researcher and interested in studying the records pertaining to the assassination of Mahatma Gandhi. The CPIO asked him to come and inspect the files at National Archives of India. He was given copy of the charge sheet and FIR. But he wanted two important documents, final charge sheet issued by the Delhi Police and the order of execution of Nathuram Godse.
The nation does not also know that the three accused were absconding, now too, after charged as killers of Gandhi.
The record shows the three accused– Mr. Gangadhar Dahawate, Mr. Surya Dev Sharma and Mr. Gangadhar Yadav were absconding, but nothing to show whether any efforts were made to apprehend them or whether the criminal case against them was closed, if so why? The citizen wanted to see the record containing the details about efforts of Delhi Police to apprehend these three accused persons and reasons for not arresting them and stated that other two accused Mr. Dattatreya Parchure and Mr. Shankar Kistaiya were acquitted during appeal. The office receive the records as sent for archives and cannot say whether final charge sheet was missing or explain reasons for absconding of accused or acquittals.
As per earlier records the original FIR No. 68/1948 under section 302, IPC on the assassination of Mahatma Gandhi has been deposited in the National Archives of India, who also possessed the original of the charge sheet, whereas Delhi Police informed the Commission earlier that they had only the photocopy of the FIR. The perusal of records and contentions led the Commission to infer that the respondent authority could not say anything about the final charge sheet or other details as sought by the appellant. They should have at least transferred the RTI request to the concerned authorities. The CPIO says that they were under heavy pressure of RTI requests pertaining to files of Mahatma Gandhi, Netaji Subhash Chandra Bose and Vallabh Bhai Patel. CPIO stated that frequent reference under RTI was causing difficulties in protecting the records. However, the records pertaining to accession of 600 princely states to India under leadership of Sardar Vallabh Bhai Patel and the records pertaining to Netaji Subhash Chandra Bose were made available in the digitized form and accessible in the National Virtual Library Institute and National Science Centre. She also said that most of the records available in archives can be accessed through its portal Abhilekh patal. She also informed that Prime Minister Narendra Modi has released several documents of Netaji Subhash Chandra Bose on 24.01.2016.
“The record shows the three accused– Mr. Gangadhar Dahawate, Mr. Surya Dev Sharma and Mr. Gangadhar Yadav were absconding, but nothing to show whether any efforts were made to apprehend them or whether the criminal case against them was closed, if so why?”
Judgement was pronounced on February 10, 1949. Nathuram Godse and Narayan Apte were sentenced to be hanged. Vishnu Karkare, Madanlal Pahwa, Gopal Godse, Shankar Kistaiya and Dr. Parchure were to suffer, inter alia, transportation for life. Vinayak Savarkar was acquitted. Digamber Badge was granted pardon and set free for having deposed against his co-accused.
The accused were put on trial at Peterhoff, Shimla, which housed the Punjab High Court at Simla. Vinayak Savarkar was acquitted and set free due to lack of evidence.
The appellant and other sources stated that two accused namely Dattatraya Parchure, and Shankar Kistaiya were acquitted. As per the records available, Shankar Kistaiya and Dattatraya Parchure were sentenced to transportation for life. However, Bombay High Court in Gopal Vinayak Godse vs The Union of India and Ors, decided on 6 August, 1969, AIR 1971 Bom 56, (1970) mentioned that: “In appeal, the Punjab High Court acquitted two more — Dr. Parchure and Shankar Kistayya. The conviction and sentence of the five others was confirmed. Nathuram had appealed against his conviction on the charge of conspiracy only. He neither challenged his conviction for murder nor the sentence of death passed on him. The statement made by him in Trial Court under Section 342 of the Code of Criminal Procedure was proscribed by the Government of India… Nathuram and Apte were executed in the Ambala Jail on the 15th November, 1949. Gopal Godse and another accused called Karkare were transferred from the Ambala Jail to Nasik Road Central Prison in Maharashtra on the 19th May, 1950. Gopal Godse was thereafter transferred to the Aurangabad Central Prison. Gopal Godse filed several petitions in the Supreme Court praying that he be directed to be released. He was sentenced by the Trial Court on 10- 2-1949 and his contention was that taking into consideration the remissions earned by him he was entitled to be released. He was eventually released from jail on 13th October, 1964, during the pendency of one of such petitions, in which he was directed to be produced before the Supreme Court on the 19th October, 1964. He was arrested again on the 25th November, 1964 under the Defence of India Act. He was released from detention on the 30th November, 1965”.
The records pertaining to charge-sheet show that three accused were absconding as pointed out. But the NAI cannot give any opinion or information about why they were not arrested etc. Appellant sought copy of ‘final chargesheet’. The records did not show any thing like primary or final, but there is one chargesheet and documents containing framing of charges by the Court, which are inspected by the appellant. NAI did not possess any of the Jail records hence they could not provide a copy of order of execution of Nathuram Godse and another accused.
The Commission directed NAI to transfer the RTI to following public authorities:
The CPIO of Ministry of Home Affairs, more particularly the Delhi Police, or Tughlak Road Police Station is directed to provide original records of investigation of Mahatma Gandhi Murder Trial such as investigation reports, case diaries or any other communication or correspondence they have, final charge sheet, if any, or any record showing efforts to arrest the accused Mr. Gangadhar Dahawate, Mr. Surya Dev Sharma and Mr. Gangadhar Yadav to the NAI for preservation under Archives, inspection of which the NAI may offer to the appellant.
“The CPIO of Ministry of Home Affairs, more particularly the Delhi Police, or Tughlak Road Police Station is directed to provide original records of investigation of Mahatma Gandhi Murder Trial such as investigation reports, case diaries or any other communication or correspondence they have.”
“A G Noorani, wrote that the Kapur Commission was provided with evidence not produced in the court; especially the testimony of two of Savarkar’s close aides – Appa Ramachandra Kasar, his bodyguard, and Gajanan Vishnu Damle, his secretary. The court had earlier exonerated Savarkar for want of corroborative evidence in support of the approver’s confession.”
RTI requests regarding information about prosecution and punishment of accused in assassination of Gandhi has raised various issues. There is no comprehensive record of Gandhi files compiled at one place on assassination of Gandhi. The National Archives of India is not having all files on Gandhi Assassination with them, and they cannot say anything about it as they are merely recipients of records given by others. As the records are old enough, difficult to be handled, the NAI has rightly digitized it and made accessible in CD form. The assassination related issues were discussed in Constituent Assembly and also Parliament, a decade after assassination. From the Constituent Assembly of India, following statements were quoted:
“Is it true that on the day of the bomb blast during the search of the room at Marina Hotel clothes were found bearing the initials N.V.G. – Nathuram Vinayak Godse -? On the basis of which the police went to Bombay and requested the Bombay police to look for this person, the Bombay police assured the Delhi police to do the needful and asked them to return, but did nothing. Is it true that the Bombay Police failed in tracing Nathuram Vinayak Godse? — Balkrishna Sharma, during the debate on murder of Mahatma Gandhi in the Constituent Assembly of India.
To comment on matters under investigation is both difficult and unwarranted. I can only say that after the arrest and interrogation of the bomber, an officer of Delhi police went to Bombay and briefed the C.I.D. in Bombay. After the briefing, it was decided that some people should be arrested but to arrest them immediately would lead to the other conspirators going underground. So the Delhi police and Bombay C.I.D. decided to defer the arrests for some time to enable them to uncover the conspiracy and all who were involved in it. It is true that the police were on a look out for them but all of them were not in Bombay, — Sardar Patel, during the debate on murder of Mahatma Gandhi in the Constituent Assembly of India.
Parliament was agitated about this incident and the then Home Minister Guljari Lal Nanda has responded to the feelings of the members of Rajya Sabha. This discussion has led to appoint Justice Jivanlal Kapur Commission of Inquiry into conspiracy to Murder Mahatma Gandhi. Author Jagdishchandra Jain, in his book ‘Gandhi the forgotten Mahatma’ summarized the work of JL Kapur as follows:
“Justice Jivanlal Kapur was appointed as a one-man Commission to conduct inquiry into the conspiracy to murder Gandhi on November 21, 1966 and was completed on September 30, 1969. It examined 101 witnesses, 407 documents were produced, by witnesses, and the governments of India and Maharashtra. It had 162 sittings and traveled to Mumbai, Delhi, Nagpur, Dharwad, Pune, Baroda and Chandigarh. Counsels for Governments of Maharashtra and India were R. S. Kotwal and B. B. Lal respectively, they argued their cases for 37 and 13 days respectively. G. V. Ketkar was the first witness to be examined. J. D. Nagarwala and Morarji Desai were the key witnesses who were examined for 15 and 7 days respectively. J. D. Nagarwala was the Deputy Commissioner of Police who was appointed as investigating officer on the murder case and Morarji Desai the Chief Minister of the then Bombay State. (Jain, Jagdishchandra (1987). Gandhi the forgotten Mahatma. New Delhi: Mittal Publications. ISBN 81-7099-037-8).
Historian Mr. A G Noorani, wrote that the Kapur Commission was provided with evidence not produced in the court; especially the testimony of two of Savarkar’s close aides – Appa Ramachandra Kasar, his bodyguard, and Gajanan Vishnu Damle, his secretary. The court had earlier exonerated Savarkar for want of corroborative evidence in support of the approver’s confession. However, Justice Kapur’s findings are all too clear. He concluded: “All these facts taken together were destructive of any theory other than the conspiracy to murder by Savarkar and his group” (Noorani, A. G. (March 15–28, 2003). “Savarkar and Gandhi”. The Hindu).
Quoting Noorani, A G (15–28 March 2003). “HYPERLINK “http://hinduonnet.com/ fline/ fl2006/stories/20030328003603400.htm” Savarkar HYPERLINK “http://hinduonnet. com/fline/fl2006/stories/200303280036034 00.htm” and Gandhi”. FrontLine. (The Hindu) and Rajesh Ramchandran The HYPERLINK “http://www.outlookindia .com/article.aspx?225000″ Mastermind?
Outlook Magazine 6 September 2004, it was explained:
“Kapur commission also examined Savarkar’s role in the assassination. Godse had claimed full responsibility for planning and carrying out the attack, in absence of an independent corroboration of the prosecution witness Digambar Badge’s evidence implicating Savarkar directly, the court exonerated him citing insufficient evidence. According to Badge, on 17 January 1948, Nathuram Godse went to have a last darshan of Savarkar in Bombay before the assassination. While Badge and Shankar waited outside, Nathuram and Apte went in. On coming out Apte told Badge that Savarkar blessed them “Yashasvi houn ya” (“;’kLoh gksÅu ;k” return victorious). Apte also said that Savarkar predicted that Gandhiji’s 100 years were over and there was no doubt that the task would be successfully finished. However Badge’s testimony was not accepted as it lacked independent corroboration. This was later corroborated by the testimony of two of Savarkar’s close aides – Appa Ramachandra Kasar, his bodyguard, and Gajanan Vishnu Damle, his secretary, who had not testified in the original trial but later testified before the Justice Kapur commission set up in 1965. Kasar told the Kapur Commission that they visited him on or about 23 or 24 January, which was when they returned from Delhi after the bomb incident. Damle deposed that Godse and Apte saw Savarkar in the middle of January and sat with him (Savarkar) in his garden. Justice Kapur concluded: “All these facts taken together were destructive of any theory other than the conspiracy to murder by Savarkar and his group.”
Supreme Court Advocate Mr. Anil Nauriya wrote in his article in the Hindu, on September 18, 2004:
“The Trial Court Record and the Kapur Commission of the Sixties indicate also that the Government had additional material. Morarji Desai, then Bombay’s Home Minister, was asked in the trial by Savarkar’s lawyer about his reasons for directing “a close watch on Savarkar’s house and his movements” after the bomb incident 10 days before the murder. Desai countered: “Shall I give my reasons? It is for Savarkar to decide whether I should answer. I am prepared to give my reasons.” Upon this, Savarkar’s lawyer said: “I withdraw my question”. [See J.C. Jain, The Murder of Mahatma Gandhi: Prelude and Aftermath, Chetana Ltd, Bombay, 1961, p. 104]. Savarkar personally gave an assurance to the Police Commissioner of Bombay on February 22, 1948 of nonparticipation in politics if “released on that condition.” [For text see K.L. Gauba, Assassination of Mahatma Gandhi, Jaico, Bombay, 1969, pp 208-9] http://www.thehindu.com/ 2004/09/18/ stories/2004091803791000.htm
Union Government has a duty under S 4 of RTI Act to explain these questions about conspiracy angle in Gandhi’s murder conspiracy before it, earlier attempts on his life, absconding accused, acquittal of some accused, lapses in security, lack of further investigation etc. The people have right to know this. Like Netaji files, the Gandhi files also need to be disclosed. Unfortunately, there is no official compilation record at one place about his death. If the Ministry of Home Affairs could trace the entire record of JL Kapur Commission’s hearings and depositions, documents, and file notings on the same, it will enrich collection.
All this information should be placed in public domain to facilitate research or answer curiosity of the generations to come. The people of present and future ages should have liberty of thought based on entire factual information/documents on this national tragedy of assassination of Mahatma Gandhi, and enough freedom to formulate their own opinion on his life and achievement. (Based on decision dated 16.2.2017 in CIC/SH/A/2016/001055 Hemanta Panda v. PIO, M/o Culture)
“The statement of Nathuram Godse is already in public domain, in the form of books in many languages, also in digital media. Regarding who are the persons or organization involved in murder, the 11000+ page record on Mahatma Gandhi Murder Trial could be accessed either under RTI Act or under general rules of access to the National Archives of India, if the appellant desires.”
A Bansal sought to know from Addl DCP, New Delhi details of persons and organization responsible for assassination of Gandhi along with copy of statement of accused Nathuram Godse in court during trial, etc. He was asked to come to National Archives of India for inspection ensuring him facilities as per Public Records Act, 1993.
The statement of Nathuram Godse is already in public domain, in the form of books in many languages, also in digital media. Regarding who are the persons or organization involved in murder, the 11000+ page record on Mahatma Gandhi Murder Trial could be accessed either under RTI Act or under general rules of access to the National Archives of India, if the appellant desires. For more details the appellant can also access the comprehensive report of Jivanlal Kapur Commission of Inquiry into conspiracy to murder Mahatma Gandhi, which is available in library of Indian Law Institute and also on its website.
Whether the detailed statement of Nathuram Godse, adversely criticising Gandhi could be disclosed to the appellant? Or his RTI be denied because the statement of Nathuram Godse could cause Hindu-Muslim enmity?
This has to be examined in terms of Section 8(3) of RTI Act, 2005 which says: (3) Subject to the provisions of clauses (a), (c) and (i) of subsection (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act. The 20 year old information is subject only to exceptions on the ground of sovereignty, security/public order etc, breach of privilege of Parliament, cabinet papers. No other exception is applicable for this information. Except grounds under 8(1)(a) other grounds are irrelevant in this case. The statement of Nathuram Godse is part of court record which is in public domain, the case details were discussed in Parliament; several books were printed based on the 120 page statement of Nathuram Godse. On the 6th December, 1967, the Lt. Governor of Delhi issued a notification under Section 99-A of the Code of Criminal Procedure, prohibiting the book “Gandhi Hatya ani Mee” in Marathi by Gopal Godse alleging that it contains matter which promotes feelings of enmity and hatred between Hindus and Muslims in India and the publication of which is punishable under Section 153-A of the I.P.C. 1860.
Gopal Vinayak Godse vs The Union of India & Ors decided on 6 August, 1969 (AIR 1971 Bom 56) three-Judge Bench consisting of Mody, V Desai, Chandrachud, JJ studied the English version of Marathi book “Murder of Gandhi and I” by Gopal Godse, accused in Gandhi Assassination case, and analysed it in 174 paragraphs. The three judges bench analysed the strong views of Dr Savarkar and Nathuram Godse on the policies and practices of Gandhiji as a particular opinion of historical events of the age, which could be expressed without any restriction. The Bench removed restrictions and set aside the order of forfeiture of the book, upholding the freedom of expression of killer of Gandhi.
The copy of the statement of Nathuram Godse can’t be denied on the ground of section 8(1)(a). He was not asking for the book containing passages supporting or glorifying the killers of Gandhi, which were also held to be part of the ‘freedom of speech and expression’ under Article 19(1)(a) of the Constitution of India. The Right to Information is intrinsic in this fundamental right to freedom of speech and expression as held by Supreme Court in several judgments, and thus the reasonable restrictions under Article 19(2) do apply to the right to information also. The restrictions under Section 8 of RTI Act, are more or less coached in the same theme and language of Article 19(2). Thus the Bombay High Court cleared the disclosure/circulation after considering several grounds of restrictions, which are akin to Section 8(1)(a). Moreover, the appellant is seeking only the statement of Nathuram Godse as given to the trial court in Mahatma Gandhi Assassination case, which cannot be denied. One may disagree with Nathuram Godse and his co-accused, but we cannot refuse disclosure or circulation of his opinion. At the same time, neither Nathuram Godse nor the holder of his theme or opinion can go to the extent of killing a person, whose philosophy he cannot agree with. Three judges have explained this aspect:
257. We must make it plain that we should not be taken as expressing our agreement with the views of the publisher or of the writer. The question before us is not whether the assessment made by the publisher or the writer of the historical situation is strictly correct. One might have an honest difference of opinion in regard to the views expressed by the publisher and the writer that Gandhiji’s policy of appeasing the Muslims led to the partition of the country. In fact, if it were open to us to express our own view of the situation, we should have said that no historian can overlook that Gandhiji saved the lives of hundreds and thousands of Hindus and Muslims. The two countries which at one time were part of one nation might have seen even greater miseries but for the saintly wisdom, courage and sacrifice of Gandhiji. That however is beside the point. The charge is that the book contains matter which promotes feelings of enmity and hatred between Hindus and Muslims in India and we have to examine whether the charge is proved.
French enlightenment writer, philosopher, historian Francois Marie Arouet, popularly known as Voltaire, famous for his wit and his advocacy for freedom of speech, separation of church and state, and freedom of religion, says: “I may disapprove of what you say, but I will defend to the death your right to say it”. Gandhiji’s life, character and image as champion of peace, Indian Independence and Hindu-Muslim unity cannot be tarnished either by his physical elimination or writing hundreds of pages of adverse analysis of his policies. The Commission directed the NAI to provide copy of charge sheet and statement of Nathuram Godse at ` 2 per page.
(based on decision dated 16.2.2017 in CIC/SH/A/2015/900266-SA in Ashutosh Bansal v. PIO, National Archives of India)
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