“WE ARE NO WAY RESPONSIBLE FOR THIS”- The story of Radhabinod Pal, the jurist India disowned

Prasanta Pal was 81.  He did not move around much. However this was a visit he could not avoid.  In fact, he was looking forward to meeting this man and handing him a gift that he was sure the visitor would treasure – a picture of his father with the visitor’s grandfather both  smiling into the camera. Nobusuke Kishi, the grandfather of the visitor, was the Prime Minister of a country whose people loved Prasanta’s father simply because he was the only one who stood up and spoke for them when they were at their worst-defeated and conquered.  

The fact that Kishi’s grandson, Japanese Prime Minister Shinzo Abe, took time out on a packed state visit to travel all the way to Kolkata should give you, in small measure, an idea of the greatness of the man who is the hero of this story-Justice Radha Binod Pal!

Abe told Pal: “Your father is still respected by many in Japan”.  

Later, Pal prophetically said, “After meeting the Prime Minister and the great honour I received, I won’t mind even if I die now.”

Khustia was a hinterland district of Bengal that fell in East Pakistan after partition. Pal was born to a poor family in Salimpur village in 1886. Even today, many there do not know that a person as renowned as him was born there. He lost his father at an early age.  His mother took shelter in the house of a well off family in the nearby village of Chudanga and, to compensate for his boarding and lodging, would do domestic chores.

Pal would take the cows for grazing to the fields.  He would often roam around the primary school and peep in to see boys from well off families studying.  One day, on the Inspector’s visit, when the boys failed to answer the questions, the cowherd from outside the window excitedly answered, “I know all the answers”.   He was called inside and indeed he knew the answers. The dumbstruck Inspector immediately directed this boy to be provided formal education and sanctioned him a scholarship! Thus began the educational  journey of Pal.  

Perhaps it was not so strange after all for Pal would make his place in history by applying the cold logic of mathematics to the law.

It was clear that if Pal was to be properly educated he had to make that shift to Calcutta.  

Calcutta was so coveted by all Bengalees that Mujibur Rehman, the founder of Bangladesh, actually believed that Jinnah in cohorts with Liaqat had purposely given it away in exchange for Lahore. If Calcutta fell to Pakistan, there was no way that the Second City of the Empire would not have been the capital of the Islamic Republic and the balance of power would have shifted to the eastern wing!

Pal secured admission in Calcutta’s best college, the Presidency College and then Law College, University of Calcutta.  Pal opted for the strange combination of Mathematics and Constitutional Law.  Perhaps it was not so strange after all for Pal would make his place in history by applying the cold logic of mathematics to the law.

Pal, like many Bengalee intellectuals of the times, could keep his personal beliefs aside and work well with the British masters. He made his mark in the drafting of the British Indian Income Tax Act of 1922. The British Government appointed him as a legal advisor in 1927.  

Like most jurists of the early years, Pal too had an academic connection. He taught law as a Professor at his own college from 1923 to 1936. He would one day go on to be the Vice Chancellor of the University in 1944. But before that, in 1941, during the height of the Second World War when Subhash Chandra  Bose would escape his confinement, Pal was elevated as a High Court Judge. 

One day he would sit in judgment over the very generals and politicians who backed Subhash. Years later Bose’s nephew Sugata claimed that perhaps Pal was influenced by Netaji’s struggle and his grappling with the complexities of viewing the Japanese,There is some gratitude for the help that the Japanese provided. At the same time, there was also grave suspicion of Japan.”

When on August 6, 1946 the Little Boy was dropped on unsuspecting residents of Hiroshima followed by the dropping of the Fat Man on Nagasaki three days later, the Chrysanthemum Throne capitulated bringing untold shame on its people.  General MacArthur took over the reins of Japan on behalf of the victorious Allies and Emperor Hirohito was permitted to stay on.  

The Tokyo Trials

The Allies felt that a Nuremberg type showcase trial was the need of the hour to punish the war criminals of the Japanese Imperial Army and the politicians who called the shots during the war years, like Prime Minister Tojo.

This trial, by the International Military Tribunal for the Far East (IMTFE), would come to be known as the “Tokyo Trial”. It was felt that the bench should be adorned by justices from all the countries that had felt the heat from expansionist Japan – Russia, China, Philippines, Australia, Indonesia, New Zealand and India!  

 

When the British Indian Government nominated Justice Pal to represent British India at the Tokyo Trials, surely the last thing they expected was that it would be his searing words that would blow into smithereens the legitimacy of the entire, well-orchestrated exercise. 

In fact, when Pal was included as a judge, the Tokyo Trials had already started.  

Sandipan Deb feels his inclusion was merely “to beef up the Asian presence on the bench.”  In fact Pal was made to feel second class on the Bench, from the very start, when he was accommodated at a hotel which was inferior to the one in which the others were staying. Recent documents mined by Nariaki Nazakato, Professor at the University of Tokyo’s Institute of Oriental Culture suggest that Pal was incorrectly appointed in spite of objections by the Indian Governor General’s Secretariat.  It seems it was known that Pal had nationalist leanings and links to Subhas Chandra Bose.

Pal however was clear that he would not be a token – a decoration.  

The Tribunal had convened on April 29, 1946 and the final sentencing was completed by December 4-12, 1948. After a 932-day trial, the Australian Judge William Webb on November 12, 1948, read out the verdict to a packed courtroom.  As agreed while he referred to one dissenting opinion, the same was not read out or even made available for public consumption.

Through the pen of dissent, powered by the experience of being born into a conquered race, and having lived under colonial rule, Pal carved for himself a special place in the hearts and minds of an entire people.

That dissenting voice was Radhabinod Pal.  General Douglas MacArthur, the US Commander of occupied Japan banned the publication of Pal’s dissenting opinion in Japan.

His passionate disagreements in judicial conferences during the Trial and his discussions with members on the bench even influenced the French and the Dutch judges to add separate dissenting notes, though they agreed with the majority. 

Pal set a cat amongst the pigeons by going to the extent of even suggesting that it was the United States which had actually provoked Imperial Japan into war.  He wrote “Even contemporary historians could think that as for the present war, the Principality of Monaco, the Grand Duchy of Luxembourg, would have taken up arms against the United States on receipt of such a note as the State Department sent the Japanese Government on the eve of Pearl Harbour.”

Pal was clear that, “Questions of law are not decided in an intellectual quarantine area in which legal doctrine and the local history of the dispute alone are retained and all else is forcibly excluded.  We cannot afford to be ignorant of the world in which disputes arise.”

Pal red flagged the exclusion of jurists from the vanquished states as well as the omission of inquiry into whether Western colonialism and American Nuclear warfare were acts in breach of International law as indicators which established that the Tokyo Trial was “a sham employment of legal process for the satisfaction of a thirst for revenge.” Pal had no doubt that the Tribunal had failed “to provide anything other than the opportunity for the victors to retaliate.

Through the pen of dissent, powered by the experience of being born into a conquered race, and having lived under colonial rule, Pal carved for himself a special place in the hearts and minds of an entire people. Takeshi Nakajima, professor at the Hokkaido University Public Policy School who published a book “Judge Pal” in 2007 states that “All imperialist powers were part of the same gang to him.  His attitude was consistent.”

India Disowned Pal

Independent India’s Prime Minister Nehru promptly distanced himself from Pal saying that he was an appointee of the Colonial government. In a cable sent to Bengal Governor Katju, Panditji said“Have consulted colleagues.  We are unanimously of opinion that you should not send any telegram to General Macarthur.  He is a mere mouthpiece of other governments and has no discretion.  Apart from this any such move on our part would associate us with Justice Pal’s dissenting judgement in Tokyo trials.  In this judgment wild and sweeping statements have been made with many of which we do not agree at all. In view of suspicion that the Government of India had inspired Pal’s judgement, we have had to inform Governments concerned informally that we are in no way responsible for it.”

AG Noorani however feels his judgement was dishonest as “he stretched everything in Japan’s favour”, including justifying the attack on Pearl Harbour and Japan’s expansionism.  

In contrast, historian Milinda Banerjee points out: “Pal also made pointed criticisms of the American atomic bombing of Hiroshima and Nagasaki. Pal thereby radically transformed the Tokyo Trial, by bringing to the fore questions of imperialism and colonial violence in which the Allied Powers were also implicated.”

When the occupation of Japan ended in 1952, it also ended the ban on dissemination of the 1,235-page dissent Pal had written. Every page restored the dignity and self respect of a proud race which had been silenced and subjugated by circumstances. When more and more people read Pal’s powerful words, they were convinced that he was truly a great jurist who championed the cause of justice.

When more and more people read Pal’s powerful words, they were convinced that he was truly a great jurist who championed the cause of justice.

After the Trial, Pal was elected to the United Nations’ International Law Commission, where he served from 1958 to 1966.  In 1959, Pal was awarded the Padma Vibhushan.  

In 1966, a year before he died, when Pal went back to Japan, the Emperor conferred upon him the First Class of the Order of the Sacred Treasure in recognition of his brave defense of Japan, even in her defeat.  

When Pal passed away, a memorial was built in his honour in the Yasukuni Shrine, a stone’s throw from the Imperial Palace–a memorial to 2,463,915 souls that Japan lost to the war, including 14 Class A War Criminals.

On December 14, 2006 in his speech to the Japanese Diet, Prime Minister Manmohan Singh recalled Pal’s “principled judgment” in cementing Indo-Japanese friendship.  Prime Minister Abe mirrored this thought when he told India’s Parliament, “Justice Pal is highly respected even today by many Japanese for the noble spirit of courage he exhibited.

We began with Prasanto Pal. He passed away in 2009 at the age of 83, shortly after that meeting with Abe.  He had already gifted his father’s pen, with which he had penned his historic dissent, to his Memorial in Japan. Prasanto’s will bequeathed the Pals’ 16 F Dover Lane residence for a Memorial to his father to house a historical library which would preserve Pal’s copy of his dissenting opinion, related documents, photographs and memories of Radhabinod Pal!

The impact of Subhas Chandra Bose’s Japan – assisted liberation struggle could also have weighed on the jurist’s mind.

Over the years many have speculated as to what could have motivated Pal to ink his bold dissent. Ashis Nandy, in his book, has speculated that it could be the consciousness of a person who had experienced from close quarters, the colonial state in action.  He also suggests that it could also be our Indian tradition, and for this he draws inspiration from the Mahabharata where the dying Duryodhana admonishes Krishna for his unethical conduct in war, lastly helping Bhima to fell him. Nandy believes that India’s culture accepts that everyone has flaws and everyone can be redeemed.

The impact of Subhas Chandra Bose’s Japan – assisted liberation struggle could also have weighed on the jurist’s mind. Anuj Dhar who has been doggedly pursuing the conspiracy theory behind Netaji’s alleged death in a plane crash suggests that during the Tokyo Trial a fellow judge had informed Pal that Bose’s Taipei crash was “possibly a myth”.  Dhar also refers to a 1953 letter from Pal to Japan based Freedom Fighter AM Nair, rooting for a proper inquiry into Bose’s “death”, where he wrote “The whole thing demands a thorough investigation.  Statements by individuals made here and there will not convince me as to the truth of the story given out.  I have reasons to doubt its correctness.”

Ironically, from Pal’s 250,000 word dissent, what is cited in his Memorial were not his own words but a quote from Jefferson Davis, President of the failed Confederate States of America during the civil war. It reads: “When Time shall have softened passion and prejudice, when Reason shall have stripped the mask from misinterpretation, then Justice, holding evenly her scales, will require much of past censure and praise to change places.”

Pal has been derided and praised in equal measure, now it is time to also do justice to him.

 

(The author is an advocate practising in the High Court of Delhi and in the Supreme Court of India. He can be reached at @advsanjoy.)

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