By Prof. Bharat H. Desai
The core question before the Arbitration Tribunal was: Should Vinayak Damodar Savarkar, in conformity with the rules of international law, be restored or not be restored by His Britannic Majesty’s Government to the Government of the French Republic?
On 28 May 2022, the Indian Prime Minister Narendra Modi paid generous tributes on the 139th birth anniversary of the feisty Vinayak Damodar Savarkar (VDS). It gave an impetus to write this piece on the little-known facet about VDS who became a subject of an unprecedented international arbitration in 1910 between two global powers of the day – France and Great Britain.
As a long-standing teacher of International Law, this author has taught for years the case concerning Arrest and Return of Savarkar (France v. Great Britain) as cause célèbre in the International Law on extradition (earlier known as restitution). Hence, this write-up is strictly based on the international arbitration triggered by the great escape of VDS as it comes within the author’s primary remit of International Law.
In the world history, rarely a person – such as VDS – who joined the ranks of London-based group of Indian nationalists with fervor for the liberation of the native land has become the cause of an arbitration between two countries other than the country of nationality (though India was part of the British Empire). Recently, there has been a maelstrom arising from the books published on the persona of VDS. Yet, in the public domain there is rare mention, if any, about VDS’s daredevil slip from the British custody through the porthole of a ship anchored at the French port en route to its India voyage.
The Great Escape
On 25 October 1910, France and Great Britain reached a compromis signed as the London Agreement for an arbitration, facilitated by Permanent Court of Arbitration (The Hague). This special legal instrument provided the basis to adjudge facts and law arising from 8 July 1910 escape of VDS from the British merchant steamship S.S.Morea, his arrest from Marseilles shore and restoration by the French Police to the British Police.
If we look back after more than eleven decades of the original event, it unfolds the saga of tenacity of 27 years old VDS – nothing short of a Hollywood thriller. Exactly 116 years ago, at the age of 23 years, VDS left for England on 26 May 1906 after securing a fellowship. The name of VDS had been recommended by Lokmanya Bal Gangadhar Tilak to Shyamji Krishna Varma, the London based doyen of the Indian freedom fighters. VDS had gone for the study of Bar-at-Law but soon joined the India House based group of nationalists. He was arrested in 1910.
The British Police had suspicion about VDS support for his brother Ganesh Savarkar in organizing an armed revolt against the 1909 Morley-Minto reforms. The Indian Imperial Police implicated VDS in the investigation for allegedly plotting the crime. The resultant escape in question took place from the mail steamer Morea while VDS was being transported from England to India to face trial on the charge of abetment to murder. France demanded the ‘restitution’ of the fugitive on the ground that his delivery to the British officers was contrary to the rules of International Law. Since Great Britain refused to comply, the matter was referred to the five-member arbitration panel (M. Beernaert; L. Renault; Earl of Desart; G. Gram; A. F. de Savornin Lohman). The arbitration was facilitated by the Permanent Court of Arbitration (The Hague).
While planning to transport VDS, the British Police had duly alerted the French Police by a letter of 29 June 1910. It did indicate possibility of risk of the prisoner’s escape. The French Ministry of the Interior informed the Prefect of the Bouches-du-Rhône by telegram on 4 July 1910 that some "révolutionnaires hindous" might take advantage of the steamer Morea anchoring at Marseilles to engineer “the escape of this foreigner”. In fact, the Prefect was requested to guard against any such attempt. When Morea reached Marseilles on 7 July 1910, the next day between 6 and 7 am, VDS managed in effecting his audacious escape from the ship’s porthole, swam ashore and began to run when his expected pick-up by the local supporters did not materialize. He was arrested “almost naked” by a brigadier of the French maritime gendarmerie and taken back to the vessel. Three persons, who had come ashore from the vessel, assisted the brigadier in taking the fugitive back. Finally, the Morea left Marseilles on 9 July 1910 – with VDS on board.
The Arbitral Award
After the informal handing over of VDS to the British Police, the French side realized the serious lapse and tried to reclaim the custody of VDS. However, by that time the Morea was out of the French waters onto her voyage to India. Still, the French swung into the legal action after persuasion by the feisty Parsi philanthropist, Madam Bhikaiji Cama, who was then resident of Paris.
The core question before the Arbitration Tribunal was: Should Vinayak Damodar Savarkar, in conformity with the rules of international law, be restored or not be restored by His Britannic Majesty’s Government to the Government of the French Republic? The sessions of the Arbitral Tribunal took place during 14 to 17 February 1911, and the Award was swiftly pronounced on 24 February 1911.
The Tribunal took on record the account of the French brigadier whose handover of VDS was swift, voluntary and without any kind of brawl. The Award of the Tribunal noted that “The brigadier had seized SAVARKAR by one arm for the purpose of taking him back to the ship, and the prisoner went peaceably with him”. The Tribunal deduced the fact that "Commissaire" of the French Police came on board Morea shortly after her arrival at Marseilles port, and, in accordance with the orders of the Prefect, placed himself at the disposal of the Commander in respect of the watch to be kept. Thus, it became clear from the sequence of events and conduct of the respective agents on the British and the French sides that the incident did not entail any kind of “recourse to fraud or force in order to obtain possession of a person who had taken refuge in foreign territory”. Moreover, it emerged from the testimonies that before the Morea left Marseilles (9 July 1910) “there was not, in the circumstances of the arrest and delivery of Savarkar to the British Authorities and of his removal to India, anything in the nature of a violation of the sovereignty of France, and that all those who took part in the matter certainly acted in good faith”.
In view of the above, the Tribunal finally concluded that “an irregularity was committed by the arrest of SAVARKAR, and by his being handed over to the British Police, there is no rule of International Law imposing, in circumstances such as those which have been set out above, 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 up to that Power”. In view of this the Tribunal ruled that: “The Arbitral Tribunal decides that the Government of His Britannic Majesty is not required to restore the said VINAYAK DAMODAR SAVARKAR to the Government of the French Republic”.
Ironically, this Arbitral Award has remained understated. It has been often neglected among all the extradition cases studied and taught in the field of International Law.
Time as the Final Arbiter
The Indian freedom struggle comprised many figures, some known, little known and many unknown. These figures were only humans and hence, not infallible. They also had ‘shades of grey’ as seen among the principal players in the great epic Mahabharata.
All civilized peoples in the mature democracies need to take a dispassionate view of roles of different personalities irrespective of their subsequent trajectory, beliefs and conduct. In the case of VDS, his arrest on the British soil, the great escape from the steamer Morea in the French waters, being the subject of an international arbitration and surviving the decade long sentence of transportation for life in the dreaded Cellular Jail of the Andaman Islands itself should have been enough to earn him a rightful place in the pantheon of the Indian freedom struggle.
The Savarkar case teaches us vital lessons to keep all kinds of ‘gate-keepers’ at bay and give timely credit to whomsoever it is due. We need to strive for wider horizons, magnanimity of heart and humility-in-action – as Time is the final arbiter for all beings.
Prof. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies of SIS, JNU. He coordinated the initiatives on Making SIS Visible during 2008-2013 (Making SIS Visible | Welcome to Jawaharlal Nehru University (jnu.ac.in) as well as Inter-University Consortium (Partner Universities: JNU, Jammu, Kashmir and Sikkim) during 2012-2020 (www.iucccc.in/Contact us.htm).