Despite all attempts nothing positive came out about disappearance of Subhas Ch Bose.

Direction issued :

(1) Respondents shall launch a vigorous enquiry in accordance with law by appointing, if necessary, a Commission of Enquiry as a special case for the purpose of giving an end to the controversy

(a) whether Netaji Subhas Chandra Bose is dead or alive;

(b) if he is dead whether he died in the plane crash, as alleged;

(c) whether the ashes in the Japanese temple are ashes of Netaji;

(d) whether he has died in any other manner at any other place and, if so, when and how;

(e) If he is alive, in respect of his whereabouts.

(2) The respondents shall follow for the said purpose the directions of this Court given in W.P. No. 1805 of 1997 namely, to take the people of India in confidence;

(3) Respondents shall at appropriate level examine/scrutinise all publications pertaining to the matter as above and proscribe, if necessary, all such publications which appear to touch the question of death or otherwise of Netaji if the same has the effect of disturbing the public order and causing incitement of violence;

(4) Respondents, if so advised, shall inform all Publication Houses to take its prior permission before any publication or the subject above is made and before granting such permission scrutinise in the manner as indicated above.

CALCUTTA HIGH COURT

DIVISION BENCH

( Before : Prabha Shanker Mishra, C.J; B. Bhattacharya, J )

RUDRA JYOTI BHATTACHARJEE AND ANOTHER — Appellant

Vs.

UNION OF INDIA (UOI) AND OTHERS — Respondent

Writ Petition No. 281 of 1998

Decided on : 30-04-1998

Constitution of India, 1950 – Article 19(1), Article 19(2), Article 226
Cases Referred

Union of India Vs. Bijan Ghose and others, AIR 1997 SC 3019 : (1997) 7 JT 198 : (1997) 5 SCALE 329 : (1997) 6 SCC 535 : (1997) 3 SCR 227 Supp : (1997) 2 UJ 409 : (1997) AIRSCW 3052 : (1997) 7 Supreme 10
Counsel for Appearing Parties

Rudra Jyoti Bhattacharjee, for the Appellant;M.B. Sarkar, for the Respondent

JUDGMENT

Prabha Shanker Mishra, C.J.—It is difficult for us to pick up the threads to have any well-knit statement of fact from the contents of the instant petition yet, after our several attempts and after hearing the petitioner in person and the learned Advocate representing the respondents Nos. 1 to 4, we have been able to gather some bits from here and some bits from there to have some comprehension of the narration in the petition.

2. The Asiatic Society, Calcutta is impleaded as one of the respondents. We do not, however, find any reason why any prerogative order and/or direction be issued or made against the Society. Since, in our view, the Society is not a necessary party, we are not persuaded to issue any notice to it, name of the 5th respondent is accordingly deleted and expunged.

3. Alleged mysterious disapparance of Netaji Subhas Chandra Bose, according to the petitioner requires direction inter alia, to the respondents herein (1) to classify and disclose all documents relating to Netaji Subhas Chandra Bose including the Indian National Army; (2) to make a categorical statement whether name of Netaji was and still is in the list of war criminals drawn up after the Second World War and issue a press communique to the said effect; (3) not to allow any agency or publisher or any person to publish the story of the death of Netaji Subhas Chandra Bose in the alleged plane crash on 18-8-1945; (4) to disclose the stand of the Government of India regarding Netaji Subhas Chandra Bose if he is found on Indian soil — “whether Government of India will welcome him or hand over him to the allied forces for trial as war criminal and make a press communique to that effect” and (5) to produce and or transmit all the records, files and documents as mentioned in Annexure ‘F’ to the petition about disappearance of Netaji Subhas Chandra Bose since August 18, 1945 and subsequent thereto.

4. Petitioner has stated and in doing so he has only echoed and joined a multitude of Indians that for his gallant deeds for independence of India, Netaji is recognised as one of the greatest national leaders of international importance that his mysterious disappearance on and from August 1945 is still wreaking and agitating the minds of the citizens of India and that the story which was once floated that he died in the alleged plane crash on 18th August, 1945 at Tai Hoku in Japan is not accepted by the Indians.

5. One British Intelligence Officer allegedly informed one Amrik Singh Gill, who was awaiting execution of death sentence, on 19th August. 1945 that Netaji died in an aircrash on 18th August, 1945. Gill published the said information in a magazine of Netaji Centre Publication at Kualalampur. The same was reprinted in Jayshree, a Bengali magazine, in its Azad Hind Golden Jubilee number in October, 1993. Delhi Radioon 21st August, 1945 made the announcement that Netaji died in an aircrash on 18th August, 1945 (Ref. “A Springing Tiger” by Hue Toy, a Military Intelligence Officer of British Army). Quite a few publications and information to the above effect followed and when the controversy thickened and mystery deepened, the Government of India constituted Netaji Enquiry Committee in the year 1956 with Sri Shahnwaz Khan as the President and Sri Suresh Chandra Bose and Sri S.N. Moitra as Members. This was followed by appointment of of a Commission of Enquiry in the year 1970. Netaji Enquiry Committee as well as the Commission of Enquiry submitted their reports. On 28th August, 1978, however, the then Prime Minister of India made a statement at the floor of the Lok Sabha that, “Shah Nawaz Committee and Khosla Commission hold the report of Netaji Subhas Chandra Bose’s death following a plane crash as true. Since then reasonable doubts have been cast on the correctness of the two reports and various important contradictions in the testimony of the witnesses have been noticed. Some further contemporary official records have also become available. In the light of those doubts and contradictions and those records, Government find it difficult to accept that the earlier conclusions are decisive”. According to the petitioner, the above statement of the then Prime Minister of India was a virtual and simultaneous burial of the Netaji Enquiry Committee and Enquiry Commission reports. However, on 11th April, 1979 the then Minister of State for Home Affairs made a statement on the Lok Sabha, in reply to a question that was raised on the request by General Fujiwara of Japan for bringing the alleged ashes of Netaji from Renkoji Temple, to India, “In the light of reasonable doubts cast on the correctness of the conclusions reached in two enquiry reports on the death of Netaji Subhas Chandra Bose, the Government finds it difficult to accept that the earlier conclusions are decisive. It will, therefore, not be possible to take any action at the present on the suggestion of Gen. Fujiwara to bring the ashes”. According to the petitioner waxing and waning attitude and behaviour of the Government of India and other responsible persons have almost betrayed the design of precipitating and perpetuating the myth of the death of Netaji Subhas Ghandra Bose in the alleged plane crash as reality without there being any serious effort to establish by hard and genuine evidence.

6. The petition with the facts as above, however, is littered with the statement that the then Government of India (British) after the Second World War declared Netaji a war criminal and following the independence and almost simultaneously to India’s taking a seat/place in the United Nations Organisation ratified and agreed that war criminals of friendly countries would be delivered by the country holding them; thus agreeing that India would deliver all war criminals of the Second World War to the Government of Great Britain, and since Subhas Chandra Bose was declared a war criminal by the Great Britain and India ratified and agreed to do so, it still holds Subhas Ghandra Bose as War Criminal. The petitioner, in short, in this behalf has been agitating and asking– Does Government of India still hold Subhas Chandra Bose as a War Criminal and thus does it behove the Government to treat Subhas shabbily as above, who while alive as well as in death is the embodiment of the ideals and images of a true Indian for all fellow Indians.

7. We have sumarised above the material facts upon which the petitioner has sought for the reliefs as indicated above and omitted to mention particulars of information in any detail with respect to either statements or works about the death of Netaji as alleged and the mysterious disappearance, or on the Government of India even unwittingly as alleged, still holding that Netaji is a war criminal. Narration of the facts, however, shall remain inconclusive if we do not refer to a recent case (W.P. No. 1805 of 1997) which has been disposed of by a Bench of this Court on 7th April, 1998. The said petition was filed as vox populi when newspapers like the Bartaman in its publication of 23rd August, 1997 and the Anandabazar in its publication of 27th August, 1997 published/reported that the then Defence Minister had stated that he would bring the ashes of Sri Subhas Chandra Bose from Renkoji Temple of Japan. After referring to the judgment of the Supreme Court in Union of India Vs. Bijan Ghose and others, and the publications aforementioned, this Court in its judgment in the said case has staled as follows (at Page 3021 of AIR) :–

“When the Government of India intended to honour him by conferring the Bharat Ratna Award and used in Press communique the expression ‘posthumously’, a petition under Article 226 of the Constitution of India was moved and against an interlocutory order therein a SLP was preferred before the Supreme Court ………..’ We have no manner of doubt that a responsible Government of the people of India will do nothing which would undermine the stature and image of Netaji Subhas Chandra Bose. Except in such proceedings in which any legal presumption is available, for purposes as the acceptance of ashes as that of Netaji Subhas Chandra Bose, it is not possible to accept that he died on 18-8-1945 or at any time thereafter unless there is conclusive evidence. Any ashes of a dead person in the absence of such evidence cannot be accepted as that of Netaji by the people of India. It would be difficult to accept that the Defence Minister of the country has made a statement of such consequences without verification of the facts, yet responsible newspapers like Bartaman, Ananda Bazar have so reported and the petitioner has moved this Court as he is. as stated, alarmed that the Government of India has intended to accept the factum of the death of Subhas Chandra Bose in the shape of ashes which are allegedly stacked and kept at Renkoji Temple, Japan. Before closing the proceedings, However, in view of the assurance that nothing of the sort is likely to be done by the Government of India, we are inclined to order that before accepting the ashes which are allegedly kept at the Renkoji Temple, Japan as that of Netajj Subhas Chandra Bose, the Government of India shall obtain full particulars and evidence and satisfy itself about the genuineness of the claim that the ashes kept at the Renkoji Temple of Japan are that of Netaji Subhas Chandra Bose and take the people of India in confidence.”

8. Thus, on the questions of death of Netaji, that he died in the plane crash, that his ashes are kept at Renkoji Temple of Japan, that Government of India is almost accepting that Netaji has died and that his ashes are being brought to India, in our view, are fully answered by the judgment in W.P. No. 1805 of 1997 dated 7th April, 1998. What needs, however, to be clarified for all concerned to bear in mind that Government of India did realise that full facts and evidence were required to be gathered from every person and place and it appointed first the Enquiry Committee and next Enquiry Commission. After the reports of the Committee and the Commission were submitted, the then Prime Minister made categorical statement in the Lok Sabha that since the reports, reasonable doubts have been cast on their correctness, various important contradictions are noticed in the testimony of the witnesses and further contemporary official documentary reports have become available, “in the light of those doubts and contradictions and those records, Government find it difficult to accept that the earlier conclusions are decisive

9. Official stand of the Government as expressed in the Lok Sabha on 28-8-1978 is reiterated on 11-4-1979 by the then Minister for State of Home Affairs. Two deviations/aberrations, however, occurred first when Government of India intended to honour Sri Subhas Chandra Bose by conferring ‘Bharat Ratna’ Award and used in the Press Communique the expression posthumously and secondly recount by Defence, Minister of the country made a statement that Government of India intended to accept the factum of death of Subhas Chandra Bose and bringing the ashes which are stacked and kept at Renkoji Temple in Japan.

10. British quit India and the country got its indepence but with Dominion Status in the British Empire on 15th August, 1947. The people of India, however, resolved to constitute it into a Republic and their Constituent Assembly on 26th day of November, 1949 adopted, enacted and gave to the People the Constitution of India, to be effective on and from 26th of January, 1950. On 15th of August, 1947, India, indeed, achieved Independence and inherited the British sovereignty as well as British legacy. When the people, however, adopted the Constitution and established the Republic, India unshackled itself from the yoke of past to start afresh with the goal of justice. Social, Economic and Political. Liberty of thought, expression belief, faith and worship. Equality of status and of opportunity and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation and guaranteed Equality of law and equality before law to all persons and freedoms of speech and expression, assembly peaceably and without arms, of association of Union and of movement freely throughout the territory of India and to reside and settle at any part of the territory of India. Article 13 of the Constitution declared laws inconsistent with or interrogation of the Fundamental Rights in Part III of the Constitution void and inhibited the State from making any law which took away or abridged the rights conferred by Part III.

11. The status Netaji Subhas enjoys in the Indian Republic is that of a person who is a Bharat Ratna. He enjoys a greater status in the hearts and minds of the people of India than a mere title which the Government bound by the rules of procedure intended to confer upon him. The expression ‘posthumously’ in the Comunique of the Government of India when Bharat Ratna, was to be conferred indeed was a sad and irresponsible act at some executive level of the Government which caused wide-spread resentment and as noticed by the Supreme Court in Union of India Vs. Bijan Ghose and others, , “in deference to the feelings so eloquently expressed in this proceedings and which have no doubt conveyed to the Union of India, the award was in fact not conferred and the proposal was dropped”. Another aberrative act caused the filing of W.P. No. 1805 of 1997 and this” Court has ordered, “before closing the proceedings, however, in view of the assurance that nothing of the sort is likely to be done by the Government of India we are inclined to order that before accepting the ashes which are allegedly kept at the Renkoji Temple at Japan as that of Netaji Subhas Chandra Bose, the Government of India shall obtain full particulars and evidence and satisfy itself about the genuineness of the claim that the ashes kept at Renkoji Temple of Japan are that of Netaji Subhas Chandra Bose and take the people of India in confidence:”

12. The two aberrations are outside the Lok Sabha, true, one which carried the expression ‘posthumously’ was a Communique of the Government of India which is deference to the popular feeling was withdrawn but the other, that is to say the statement of the Defence Minister in respect of the ashes of Netaji was neither a statement in any of the Houses of Parliament nor in any Communique of the Government of India. That was out and out a statement most unwittingly made by the Defence Minister of the contry. The Official stand of the Government of India, thus, is that notwithstanding the reports of the Enquiry Committee and the Commission of Enquiry aforementioned, there are doubts as to the death of Netaji in the manner as reports indicated and that there was/is a need to have further probe and enquiry to conclusively establish that Netaji has died, that he died in the plane crash, as alleged, and that his ashes are lying in some temple in Japan. With such specific stand when the Government has informed the Parliament more than once as above and no further enquiry’ or probe has yet been held, it is beyond imagination that Government of India without further or fresh enquiry and/or probe would accept the factum of death of Netaji Subhas and/or of the alleged air-crash death and/or the ashes being kept at a temple in Japan.

13. Learned Counsel for the respondents has categorically assured the Court that Government of India has maintained and is maintaining even now that a further/fresh enquiry/probe is required and the information that Netaji died in the plane-crash on August 18, 1945 is full of loopholes, contradictions and therefore in conslusive.

14. It is difficult to perceive why the, petitioner has been harping on Netaji being a wan criminal for the Indian Republic and its people as declared by the British Government in year 1945 or in year 1946. True people of India fought along with the British against Japan, German and Italy but they continued their war of Independence against them until they quit India on I5th of August 1947. For British, one who stood against their oppresive acts was a criminal. For Indians, he was a freedom fighter. For British, who supported their war efforts friends and allies. For India all who stood against aggression and subjugation were friends.

15. Netaji Subhas Chandra Bose had launched his own war for Independence of India, formed Indian National Army (I.N.A.) marched ahead to free the people of India from subjugation and reached Indian territory of the Andamans and Kohima, Manipur. His was an army of Indians, for the Indians and for the Independence of India. Such a hero however when India achieved its independence was mysteriously missing. It (India) has been waiting to welcome its Hero. He has, however, not been found yet.

16. People in India are not going, it is clear from the aforementioned events, to accept that their hero who led the first national Army is dead unless they are convinced after seeing conclusive evidence in this regard. Who then will call Netaji a war criminal? Any Indian public except a traitor, a person who does not have the deference and love for the country and its heroes alone can do so. We do not have any hesitation in concluding that the statements in documents which are lying archieves which are to the effect that Netaji is a war criminal and all persons who have been saying such a thing are relics of the British Raj, The petitioner shall be well advised to disabuse himself of even remotest/faintest idea that the people of India, and the Government of India since it is the Government of the People of India, can ever in dreams would think of Netaji as a war criminal or a traitor. As we understand sane and understanding people in Great Britain too take him as one of the ablest sons of India and one of the most loved by the People of India. We see thus no reason why any Rule be issued to declassify and disclose all documents relating to Netaji Subhas Chandra Bose including Indian National Army until such inquiry as is derived is held. Declassification and disclosure of the contents of sensitive documents cannot be insisted upon unless one is satisfied that such disclosure would not be against the interest of the sovereignty and integrity of India, the Security of the States, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court or defamation or would not cause incitement to an offence (see Article 19 of the Constitution) and if made would not harm the public interest. In the instant case we have reasons to believe, any such disclosure Would not help the cause of the public at all.

17. We see absolutely no reason, for any statement from the respondents, whether Netaji Subhas Chandra Bose is still in the list of war criminals drawn after the Second World War. As we have indicated above, no one much less people of India, would allow any person to treat Netaji as a war criminal. For, Indians Netaji is one of the great patriots.

18. It is difficult similarly to imagine how any Indian would think that Netaji would not be welcome on the Indian soil when Indians hold him amongst the best a few sons of India. The petitioner, as we have observed earlier, has been ill-advised to seek any disclosure from the Government of India or such information whether government of India would welcome him or hand him over to the Allied Forces for trial as war criminal. Such misconceived ideas, instead of helping the cause, as we have observed above, would cause dissensions and resentments and unnecessary bickerings. We are inclined however to take notice of one aspect of the matter : There has been no positive attempt it seems after the statement by the Prime Minister in the year 1978 and by the Minister of State for Home Affairs in 1979 that the findings in the reports of Netaji Enquiry Committee and Commission of Enquiry were not conclusive and decisive for any further or fresh enquiry and no serious effort in this behalf has been made. It seems lapses have occurred from time to and public at large is dissatisfied. It is, therefore, necessary that respondents are told that their silence may not be appreciated in the matter and they for obvious reasons, as indicated above, should proceed in some effective manner to enquire into the circumstances of the death, whether Netaji has, died and if he is alive where is he, with due despatch. Various publications some saying Netaji has died, some saying — No, he has not, some accepting the plane crash story, some not accepting it, some suggesting that the ashes in the temple in Japan are that of Netaji and others not accepting, some believing, and seriously, that Netaji is still alive and is available in some part of the world cause confusion and sometimes irritation and anger in public. No publication which would affect the friendly relations with foreign States, public order, the sovereignty and integrity of India, cause defamation or incitement to an offence should be permitted. We have reasons to think that such irresponsible publications do sometimes affect public order and cause incitement to violence.

19. Some publications in respect of which mention is made by the petitioners which are per se defamatory to the National Hero Subhas Chandra Bose. One of the most cherished rights of the Indians is the freedom of speech and expression, yet it is important that this right is not exercised to disturb public order or cause incitement to offence or defamation. We have not, however seen such publications as a whole except such excerpts which are quoted by the petitioner for forming any conclusive opinion that books already published need to be prescribed. Yet we are satisfied that there is a need to give a fresh look to such publications and proscribe such books or such portion of the books which spent one way or the other on the subject of the death of Netaji Subhas Candra Bose’s pre-independent activities in respect of which the Government of India is yet to complete enquiry. All fresh or new publications, in our view, shall also need a similar scrutiny and all such scrutiny shall be made keeping in view Article 19(1)(a) read with Article 19(2) of the Constitution of India and the observations made above.

20. For the reasons aforementioned, we are inclined to direct as follows :-

(1) Respondents shall launch a vigorous enquiry in accordance with law by appointing, if necessary, a Commission of Enquiry as a special case for the purpose of giving an end to the controversy

(a) whether Netaji Subhas Chandra Bose is dead or alive;

(b) if he is dead whether he died in the plane crash, as alleged;

(c) whether the ashes in the Japanese temple are ashes of Netaji;

(d) whether he has died in any other manner at any other place and, if so, when and how;

(e) If he is alive, in respect of his whereabouts.

(2) The respondents shall follow for the said purpose the directions of this Court given in W.P. No. 1805 of 1997 namely, to take the people of India in confidence;

(3) Respondents shall at appropriate level examine/scrutinise all publications pertaining to the matter as above and proscribe, if necessary, all such publications which appear to touch the question of death or otherwise of Netaji if the same has the effect of disturbing the public order and causing incitement of violence;

(4) Respondents, if so advised, shall inform all Publication Houses to take its prior permission before any publication or the subject above is made and before granting such permission scrutinise in the manner as indicated above.

21. This disposes of the writ application.

B. Bhattacharya, J.

22. I agree.

_______________

(1999) AIR(Calcutta) 9