HISTORICAL CONTEXT OF THE TRIAL

Although the British colonial government came to regret its decision to prosecute the leading officers of the INA at the time—P. K. Sehgal, Shah Nawaz, and Gurbaksh Singh Dhillon—the court-martial was expected to fulfill several strategic objectives.Footnote ¹² First, since former officers of the British Indian Army were involved, there was the intent to deter similar “acts of treason” by Indian soldiers and officers and to restore discipline within the army. Also, given the intensity of the anticolonial agitation and mass civil disobedience in India over the preceding five years, the trial represented an opportunity for the colonial government to reaffirm legal sovereignty over India. Moreover, the success of Gandhi’s non-violent movement may have led the colonial government to believe that the INA’s effort to use force to achieve the same end lacked popular support in India and would be condemned by the Indian National Congress and public opinion.

The trial was held at the Red Fort in Delhi, which served as the military headquarters of the British Indian Army, with Major General Alan Bruce Blaxland presiding.Footnote ¹³ Blaxland was assisted by a seven-member board of officers in a manner akin to a jury in a civilian court. Judge-Advocate F. C. A. Kerin was responsible for summing up the case for the board and for providing rulings on matters of law, practice, and procedure. The board of officers was charged with reaching a verdict of either guilt or innocence. Apart from the Judge-Advocate, none of the military officers had any legal training or experience.

As alluded to earlier, the INA was founded on September 1, 1942, in Singapore under the command of Captain Mohan Singh. Its core force consisted of 55,000 Indian soldiers of the British Indian Army who had been taken as prisoners of war after the British Indian forces surrendered to the Japanese on February 15, 1942 at Singapore and set free two days later (L. Green Reference Green1948, 47). Under the leadership of Subhas Bose, the INA became a capable fighting force, being reinforced by Indian plantation workers, both men and women, from Singapore, British Malaya, and other parts of Southeast Asia (Ayer Reference Ayer1951). When he took over leadership of the INA, Bose simultaneously formed the Provisional Government of Free India and declared war on Britain and its allies. Germany, Italy, Burma, Thailand, Croatia, Manchukuo (Imperial Japan’s puppet state in China and Mongolia), the Philippines, and “free” China immediately recognized the new Indian state-in-exile, which was also congratulated by Irish Republicans.

The INA’s declaration of war on Britain was made in March 1944. Aided by the Japanese and Burmese armies, the INA crossed into British India and advanced as far as Imphal but was forced to retreat by the British Indian Army. It was in the immediate aftermath of this retreat, which concluded in July 1944, that the decision was made to try the three captured INA officers.

In August 1945, when the British administration declared its intention to try them, Indian newspapers such as the Amrita Bazar Patrika and the Hindustan Times at once began publishing editorials and reports declaring the accused national heroes and condemning the trial as an affront to the nation (Alpes Reference Alpes2007, 142). With the lifting of wartime censorship the following month and as reports of the INA’s battles spread, support for the three officers grew substantially.

So manifest was the national outrage at the British decision to try these officers that the Indian National Congress, which had opposed Bose all along and had refused to support or even recognize the Provisional Government of Free India in October 1943, decided to ride the tide of public opinion by assuming responsibility for defending the accused (Kuracina Reference Kuracina2010, 817–56; Alpes Reference Alpes2007). Thus, the Congress established an INA Defense Committee that included its best legal minds, including the aforementioned Bhulabhai Desai, Tej Bahadur Sapru, Asaf Ali, K. J. Katju, and future Prime Minister Jawaharlal Nehru (Mansergh and Moon Reference Mansergh and Moon1970–1983, 339–41).

When the trials commenced, on November 5, 1945, they resulted in the disclosure of detailed information about the INA and its struggle against British rule. The evidence adduced by both the prosecution and the defense, the testimony of Indian and Japanese eyewitnesses, and, ultimately, Desai’s speech for the defense, galvanized the Indian people and sparked spontaneous rioting and mass agitation across the country. Thus Calcutta, Bombay, Patna, Karachi, Rawalpindi, Banaras, Allahabad, and many other cities and towns witnessed violent protests in which British personnel came under attack and Indian protestors were killed. The trial also precipitated a moral crisis among the soldiers of the British Indian army, who learned in the course of it that their compatriots had been fighting a patriotic war of national independence, while they had been defending an empire that had colonized their country and continued to oppress its people. The fact that the three officers proudly proclaimed their roles in the war and refused to plead guilty even at the risk of hanging for treason only deepened the dismay of the soldiery. Thus, in the aftermath of the trial, the very idea of a British Indian Army—an imperial army—became untenable: the identity of the armed forces had now come to be grounded in that of the nation to such an extent that there could only be either a British Army or an Indian Army. For millions of Indian soldiers in the British Indian Army, the only way to catch up with a history that seemed to have passed them by and to resolve their moral crisis was to rise in mutiny against the British (Sarkar Reference Sarkar and Sarkar2009, 1–90; Brailsford Reference Brailsford1946, 57–58; Moon Reference Moon1973).

THE PROSECUTION: ANTICOLONIAL WAR AS CRIME AGAINST THE IMPERIAL MONARCH

The prosecution, led by the Advocate General of British India, Sir Noshirwan P. Engineer, put forward two major claims regarding the nature of British imperial sovereignty and colonial subjectivity (Ram Reference Ram1946, 5–20, 219–65).Footnote ¹⁴ He first asserted that the British King-Emperor’s right of sovereignty over the allegiance of all of his Indian subjects was unconditional. According to this reasoning, since all Indians were necessarily subjects of the empire and had no legal status without it, the Indian National Army, which claimed to be the military arm of the free state of India outside the British Empire, was illegal by its very nature. Thus the prosecution asserted:

The second charge was that, in actively recruiting Indian prisoners of war, the accused had participated in human rights abuses against those soldiers who refused to fight for the INA. The prosecution asserted that, even when the accused were aware that “atrocities were being committed openly and notoriously” against Indian troops in order to force them to join the INA, they made no effort to intervene. In the final days of the war, it was alleged, the accused had gone so far as to murder or abet the murder of INA soldiers seeking to cross over to the Allied side (Ram Reference Ram1946, 2–3, 17–20).

The prosecution further argued that the case must be tried within the framework of the Indian Army Act and the Indian Penal Code, which was the “municipal law” of India because British Indian courts were not empowered to decide matters of international law. The officers were to be tried as individuals who had engaged in criminal activity, not as soldiers of a warring state. Thus, the Advocate General argued:

Later in the trial, the Judge-Advocate F. C. A. Kerin agreed with the prosecutor’s argument on this point when he told the board of officers that they were expected to try the case, not by international law, but by the “laws in force in British India” (Ram Reference Ram1946, 275).

Under this system of laws, which was grounded in the subordination of the colonized, any form of violent resistance to empire was considered illegitimate. The monopolization of all “legitimate” violence by the British imperial state in India, and its corollary, the criminalization of all acts of anti-colonial resistance against it, had occurred in earnest in the aftermath of the Revolt of 1857, the last major violent uprising to threaten the colonial state. Soon after the suppression of that revolt, the East India Company ceased to govern India, responsibility for which was assumed by the British Crown in 1858. But the Revolt brought home to the British government in India both the fragility of the colonial state and the need to forestall any collective violent resistance in the future.Footnote ¹⁵ Thus the Arms Act in 1878 criminalized the possession and distribution of all firearms in India (Simla 1892; Cunningham Reference Cunningham1891). Though this Act did not eliminate violent resistance, it gave the colonial state unprecedented power to disarm the Indian population. Henceforth, all collective attempts to resist the colonial state through violence were dependent on smuggled arms and were labeled “criminal plots” punishable under the Indian Penal Code. In sum, all acts of resistance to empire were individualized, criminalized, and silenced as they were absorbed into the framework of law-and-order discourse.

It was within the context of this legal framework that the prosecution charged the accused, who, as commissioned officers of the British Indian army, were subject to the Indian Army Act. Treason, as a civil offense under Section 121 of the Indian Penal Code, was punishable by death or transportation for life. The motives behind the war were therefore irrelevant to the prosecution’s case. By waging war against the King, the accused had violated the “duty of allegiance” that was “owed to the Crown at all times and in all circumstances (Ram Reference Ram1946, 6).”Footnote ¹⁶

THE DEFENSE—A PEOPLE’S RIGHT TO WAGE A WAR OF LIBERATION

Faced with the law of imperial sovereignty that made allegiance to the monarch mandatory and criminalized acts of anticolonial rebellion, Desai had three options in crafting his defense arguments (Desai Reference Desai1954; subsequent references to Desai’s defense strategy are taken from this text). He could, on the one hand, present evidence proving that the defendants had not committed the acts of murder and treason of which they were accused. On the other hand, he could argue that the colonial administration had, through its own actions, lost the legal right to claim allegiance from the defendants and go on to appeal to the imperial justice of the crown against the colonial administration in India on the grounds that they had remained loyal to the imperial monarch even as they were fighting the colonial administration in India (Mukherjee Reference Mukherjee2010, 105–49). As a third alternative, he could challenge the legal basis of the trial itself.

Desai in his defense drew on the first two arguments to some extent, presenting circumstantial evidence both that the accusations against his clients were baseless and that Britain had lost the right to claim their allegiance when they had been taken prisoners of war by the Japanese. However, since the case was being tried as a court-martial and the charges were framed by the Indian Army Act and Indian Penal Code, it was the defense’s burden to resolve a number of jurisprudential difficulties. First, it was unclear how subjects of the British Empire (which is what the accused were) could claim the right to fight against their own government. Second, there was a question regarding the legal justification for the defendants’ actions as soldiers of the Indian National Army. Finally, it was necessary to contest the absolute right of imperial sovereignty while still framing the actions of the defendants in the context of some form of law.

Desai overcame these difficulties by challenging the very legal framework within which the case was being judged, rejecting what the prosecutor termed “municipal law” in favor of “international law.” What was really at issue in this trial, he argued, were not individual acts of treason but rather the larger question of whether, under international law, a colonized people had the right to wage a legitimate war. This argument contained two distinct but overlapping components, first that a war of liberation fought by a subject people against a European empire should be considered moral and just, and second that soldiers of a state formed to fight an empire should be treated as belligerents rather than criminals subject to municipal law (Desai Reference Desai1954).

In making this argument, Desai engaged the question at the heart of contemporary debates regarding warfare and European international law, namely which parties had the rights of belligerents under international law (Graber Reference Graber1949; Nabulsi Reference Nabulsi1999; Best Reference Best1983). For the dominant tradition of international law founded on the writings of Grotius and Hobbes, the sovereign state was the subject of law; the international order was the object of the law of nations and was based on agreements among powerful states. From this perspective, law was a tool for maintaining civil order that belonged to the most powerful states, so that any form of rebellion or resistance to this order was by its very nature illegal. The key issue within this tradition was not the morality of the causes of a war but rather the regulation of conflicts through “laws of war.” Thus “just wars” could only be fought by sovereign states, and the right of belligerency was limited to the professional forces of an existing state. Populations fighting foreign occupiers and invaders, by contrast, had no rights of belligerency within this dominant tradition of international law, so that all civilians who participated in hostilities or rebelled against the civil order that existed under a state were labeled insurgents and outlaws (Tuck Reference Tuck1983; Yasuaki Reference Yasuaki1993).

While dominant, the Grotian conception of war, it is important to note, was not the only one in modern Europe, having been contested in the late eighteenth and into the nineteenth century by what Karma Nabulsi (Reference Nabulsi1999) has called a “republican tradition of war,” one articulated most powerfully by Rousseau (Reference Rousseau2012). Influenced by their experiences with wars of conquest, foreign rule, and military occupation, these republican writers in Europe argued that, while wars of conquest waged by states were unjust, wars of self-defense fought by citizens of a republic who came to its defense in times of crisis were just. Placing the values of liberty, civic love, and patriotism above the state’s need for order, Rousseau and his followers saw military occupation as an affront to collective and individual freedom that had to be resisted by civilians at all costs. Thus every civilian fighting on behalf of his country was a lawful combatant in this tradition, and the right of belligerency belonged more to the citizen defending his republic than to the professional soldier fighting on behalf of conquering states. The republican tradition thus blended notions of “just war” and “justice in war” and insisted that both the origins and conduct of war had to be subject to considerations of morality. Republican ideas found a wide audience, playing important roles in, for example, the American War of Independence, the French Revolution, and the Corsican Rebellion (Howard Reference Howard1978; Best Reference Best1982).

Desai began his speech for the defense by proclaiming the “right to wage war with immunity on the part of a subject race for their liberation” (Ram Reference Ram1946). He thereby rooted his argumentation genealogically within two discursive traditions of legitimate popular warfare against occupation, one that had developed in India over the past century to justify violent resistance to colonial occupation and the other being the republican tradition of war developed in Enlightenment Europe.

In India, even as Gandhi’s nonviolent resistance had become the dominant discourse of anti-colonialism in the Indian National Congress, a parallel discourse of violent popular resistance to colonial occupation was also being voiced by such leaders as Bal Gangadhar Tilak, Bhagat Singh, and, most importantly, Subhas Bose. This tradition traced its genealogy to the Revolt of 1857, in which, as already mentioned, large portions of the military and civilian population of India rebelled against the British East India Company’s government. Also referred to as India’s First War of Independence, the Revolt of 1857 was the largest and most determined anti-colonial conflict that any European power had faced up to that point.

While for tactical reasons Desai did not refer directly to the 1857 uprising during his defense arguments, its influence on his thinking is revealed in his private conversations with friends outside the courtroom during the trial. Speaking with an Indian military officer ten days into it, an excited Desai noted the angry and turbulent mood of the country and observed approvingly that “as things were going now, it may lead to armed revolution” (Connell Reference Connell1959, 802–03). His radical tactic, then, of anchoring his defense in the subject’s unconditional right to anticolonial war, was inspired by, and a response to, the all-consuming patriotic fervor among the people of India, for whom Subhas Bose and the officers of the INA had emerged as national heroes and martyrs. In the theater of a public trial at the Red Fort, on which all eyes were focused, Desai was simultaneously constructing a legal defense for the war fought by the INA, manifesting the defiant patriotism of the Indian people, and legitimizing an anticipated armed revolution.Footnote ¹⁷ What was important for him, as he told one of the accused, was that he was pleading the case, not before the British court, but before the bar of public opinion and the world (Dhillon Reference Dhillon1998, 503).

In the trial itself, Desai justified the subjects’ right to rebellion with reference to the republican discourse of war described above. That right, he asserted, was recognized by British national law and enshrined in British history, as was evident in the Magna Carta, and in the twentieth century had come to form an important part of international law as well. He pointed out that the British government had recently recognized émigré governments during the Second World War formed by the Dutch, the Poles, and the French seeking to liberate their nations, that men fighting in armies of liberation had been given the status of belligerents under international law and thus protected from prosecution for engaging in war. Desai cited such British statesmen as Winston Churchill and Anthony Eden who in Parliament had affirmed “if liberty and democracy are to have any meaning all over the world, and not merely just for a part of it… any war made for the purpose of liberating oneself from foreign yoke is completely justified by modern international law” (Desai Reference Desai1954, 27).

However, Desai made the American War of Independence his primary point of comparison as a national war of liberation (Endy Reference Endy1985). Thus, he cited the claim in the American Declaration of Independence that, if a government fails to protect the “inalienable rights” of its people, “it is the right of the people to alter or to abolish it, and to institute new government” (Desai Reference Desai1954, 78–79). Rejecting the prosecution’s assertion that the “duty of allegiance” was “owed to the crown at all times and in all circumstances,” Desai went on to assert that, in a war for national freedom in which loyalty to king and country were in conflict, it was not simply the right but indeed the duty of a subject people to wage war against the latter. Just as “men of honor in America chose allegiance to their own country to the imposed allegiance to a foreign King” when a conflict arose between the two, so “the Indians in East Asia, the proud citizens of the Provisional Government of Azad Hind,” had chosen allegiance to their country over that to an alien king (Desai Reference Desai1954, 81–82). In keeping with republican theory, Desai was asserting, then, that the war of liberation fought by the Indian people against the British Empire was moral in its origins and therefore just.

The assertion of parallels between the INA’s war and the American War of Independence was a strategic legal move intended to highlight the international wrongs committed by the British Empire and to drive a wedge between it and the United States as those powers sought to establish a new world order in the interwar period in Asia and elsewhere (Green Reference Green2017). Desai was well aware that the center of gravity for international law had after the First World War increasingly shifted from Europe to the United States (Allen Reference Coates2016). As a consequence, Indian anticolonial leaders including Bal Gangadhar Tilak, Lala Lajpat Rai, and Mahatma Gandhi himself had since worked tirelessly to internationalize the struggle against the British Empire through propaganda efforts in the United States. As Erez Manela (Reference Manela2007) has argued, Woodrow Wilson’s description of self-determination as a key principle in international relations at the end of the First World War became a rallying call for anticolonial movements worldwide. Thus, Tilak traveled to Europe during the Peace Conference in Paris to bring the case for Indian self-determination to the attention of world leaders and wrote to Wilson to urge that the Peace Conference apply the principle of self-determination to India (161–66). Even after this attempt failed, Lal Lajpat Rai, another prominent Indian anticolonial leader, emphasized the importance of “extensive propaganda” in America in the 1920s (175). As for Gandhi, once he took the reins of the Indian anticolonial movement, he wrote frequent letters to American newspapers and organizations.Footnote ¹⁸ Thus in a 1932 missive, Gandhi spoke of the parallel between America’s War of Independence against British rule and India’s anticolonial struggle, being careful, however, to emphasize the particular path taken by the latter: “Even as America won its independence through suffering, valor, and sacrifice, so shall India in God’s good time achieve her freedom by suffering, sacrifice, and nonviolence” (Reference Gandhi1972, 1).

Significantly, by 1941, President Franklin Roosevelt had become quite sympathetic to the cause of Indian independence and even raised the issue in his conversations with Churchill in Washington in December (Dallek Reference Dallek1995, 319; Dulles and Ridinger Reference Dulles and Ridinger1955; Weigold Reference Weigold2008; Green Reference Green2017). In March of the following year, Roosevelt in a letter to Churchill again raised the possibility of India’s receiving autonomy on terms similar to the original US Articles of Confederation (Churchill Reference Churchill1950, 213–19, cited in Dulles and Ridinger Reference Dulles and Ridinger1955, 7). He warned that, if Britain did not grant India autonomy and “India should subsequently be successfully invaded by Japan with attendant serious military or naval defeats for our side, the prejudicial reaction on American public opinion could hardly be over-estimated” (Kimball Reference Kimball1994, 446). In a show of sympathy for the cause of Indian independence, Roosevelt also sent diplomat William Phillips to meet with Gandhi in 1943; and when British officials in India refused to allow the meeting, Phillips declared that the time had come for Britain to release its hold on the country (Clymer Reference Clymer1955, 128–66). From the perspective of this discourse, Desai’s speeches can be seen to have been addressed as much to the American government as to the British court and the Indian public.

CHALLENGING THE IMPERIAL ORDER’S MONOPOLIZATION OF THE RIGHT TO WAR

While Desai in his speech for the defense drew on the republican theory of war in insisting on the Indian people’s right to wage war for liberation, he was well aware of the European exceptionalism that anchored the discourse of rebellion and resistance even within the republican tradition. Republican theory assumed that political liberty was the birthright of people of European descent; the colonized and so-called “uncivilized” peoples of Asia and Africa, by contrast, did not enjoy this inherent right but rather had to be tutored in its exercise. Republican writings thus focused on the right of rebellion within the European and the American context and gave short shrift to the right of non-European colonized peoples to oppose European empires.

Desai, however, drew on the republican recognition in asserting that the INA’s war was legitimate under existing international law because it was fought by an established state, in this case represented by the “Provisional Government of Azad Hind.” Because the men on trial were not ordinary insurgents but rather soldiers of a state formed to fight the British Empire, he reasoned, they must be treated as belligerents under international law. This claim in fact represented a challenge to the fundamental premise of existing international law. To understand its radical nature, a somewhat more detailed look at the historical relationship between international law and empire is required.

International law, as it developed in Europe from the sixteenth to the twentieth centuries, was guided by the imperatives of colonial conquest. As Anthony Anghie and other scholars have pointed out, the central question around which international law had evolved in Europe concerned the justice of colonial conquest and how European land-appropriation was to be regulated so as to prevent a perpetual state of war among major European colonial powers (Anghie Reference Anghie1996, Reference Anghie2005; Koskenniemi Reference Koskenniemi2001; Tuck Reference Tuck2001). International law thus developed as the primary tool in the forging of a legal basis for the occupation and annexation of “native” lands and for the subjugation of indigenous peoples in the Americas and later in Asia and Africa. The sovereign territorial state in Europe was the central figure around which the conceptual elaboration of international law took place (Schmitt Reference Schmitt2003; Anghie Reference Anghie1999). This order of states not only created clear territorial jurisdictions but also ended the European civil wars of religion. Thus was created the doctrine that the only “just wars” were those fought by sovereign European states, which recognized each other as equals and played by the same rules. Any other form of war was thus framed as a rebellion, mutiny, breach of the peace, or piracy under European international law.Footnote ¹⁹

Over the previous three centuries, diplomatic conferences among European powers had been the primary vehicle for defining international law. Thus, collective agreements arrived at through such conferences—in 1648, 1814–1815, 1878, and 1885 (the Congo conference)—recognized all territorial changes in the world and the formation of new states (Fabry Reference Fabry2010). Successive conferences at Brussels in 1874, the Hague in 1899 and 1907, Geneva in 1924, and Paris in 1928 discussed the legality of war and the distinction between lawful and unlawful combatants. The only Asian power of note that found a seat among the European powers was Japan following its participation in the punitive expedition of the Great Powers against China in 1900 and its victory in the Russo-Japanese War of 1905 (Anand Reference Anand2004, 59–65; Hershey Reference Hershey1906; Aydin Reference Aydin2007).

In the period following the First World War, international law became a particularly important part of the effort to maintain the status quo agreed to in Versailles (Schmitt Reference Schmitt2003; Nussbaum Reference Nussbaum1954; Gross Reference Gross1969; Fassbender and Peters Reference Fassbender and Peters2012). The European empires that had emerged victorious in the First World War along with their ally the United States were to be the primary players and decisionmakers regarding international law, which would provide the basis for a system known as “collective security.” Over the preceding two centuries, large parts of the population of Asia and Africa had fallen under the control of European empires through large-scale wars, annexation, and the making and breaking of what were often characterized by the colonized as deceitful treaties (e.g., Alexandrowicz Reference Alexandrowicz1955, Reference Alexandrowicz1967; Roling Reference Roling1960; Anand Reference Anand1972; Hershey Reference Hershey1906). Once this world order of empires had been consolidated, the colonized were declared to be part of various “protectorates,” “dependencies,” and “mandates” to be ruled for the near future by the imperial victors in the First World War. Any challenge to this imperial order thus contravened existing international law.

In the interwar period, the United States and Great Britain, as the two strongest states to emerge from the First World War, increasingly monopolized “legitimate” wars, labeling all others criminal and “aggressive.” This distinction was, again, an essential part of the system of “collective security.” Beginning with the attempt to try Kaiser Wilhelm of Germany in court for having started a criminal war, the notion of “aggressive war” began to take on increasing importance.Footnote ²⁰ The Paris Peace Conference of 1919, the Kellogg-Briand of 1928, and the Stimson Doctrine of 1932 all emphasized the difference between legitimate and aggressive wars, the latter being classified as international crimes (Schmitt Reference Schmitt2003; Carnegie Endowment for International Peace 1919).Footnote ²¹ Indeed, with the Stimson Doctrine, the United States refused “recognition” to territorial changes anywhere in the world that were brought about by “aggressive” or “illegal” wars (Current Reference Current1954; Wright Reference Wright1935). For imperial Britain, this conception of war was part of a larger effort to maintain the status quo in Asia and Africa.

Given that these agreements were in force during the interwar period among the most powerful states, Desai faced a formidable challenge in his claims about the INA. If any attempt at territorial change anywhere in the world could be termed an illegal war, then any anticolonial war initiated against a victorious colonial power was by definition “aggressive.” Since the war started by the INA to end empire in India was clearly aimed at effecting territorial change, Desai could not claim that it was legitimate rather than aggressive under the terms of international law as it had been understood up to that time.

Desai’s task at the trial thus amounted to no less than putting an end to the monopoly that imperial powers had claimed on legitimate war. That is, he had to challenge the conceptual foundations of international law anchored in imperial interests and to prove that the INA’s armed opposition to the British Empire was not an aggressive insurgency but rather a legitimate war through which a new republican Indian state was asserting its freedom. In making this challenge, Desai was affirming India’s entry as a separate and independent state into the community of states under international law by articulating a new conception of international law anchored, not in imperial interests, but in the equality of nations.

A key defense argument was thus that the INA had waged legitimate war because the fundamental rule of dominant international law—that a war prosecuted by a state in self-defense was legitimate—applied not just to imperial states but also to those that had been colonized. Approached this way, the INA’s war had been legitimate because it had represented the state of India in exile, that is, the Indian Provisional Government in Singapore. The accused could not be treated as individual criminals because, again, the INA had waged not an insurgency, but a legitimate war on behalf of a state that was recognized by a significant part of the world community. As officers in the service of a state, then, the accused could not be tried as criminals under municipal law but rather had to be tried under international law and be granted the rights of belligerents (Oppenheim Reference Oppenheim and Roxburgh1920, 134–39; Lauterpacht Reference Lauterpacht1947).

Desai asserted that the Provisional Government of Free India that had been formed in 1943 under the leadership of Subhas Bose was not “a set of rebels, a desultory sort of crowd of no consequence” but rather an organized government to which more than two million people in East Asia owed allegiance (Desai Reference Desai1954, 7). This new state already possessed territory (the islands of Nicobar and the Andamans that had been ceded to it by the Japanese government) and a fully functioning army with its own distinctive badges and emblems, duly appointed officers, and regulations (under the Indian National Army Act).

The mere existence of the Provisional Government of India was, as Desai knew full well, insufficient to endow it with the status of a state under international law; it was only through recognition by other states—European states—that a new state joined the international community (Oppenheim Reference Oppenheim and Roxburgh1920, 134–39; Lauterpacht Reference Lauterpacht1947). Significantly, as Alexandrowicz (Reference Alexandrowicz1958) argued, nineteenth-century positivists introduced the theory of recognition into international law. Before this development, the law of nations accepted existing states as legal entities in the international arena without reference to specific acts of recognition by the European powers. The shift can thus be seen as part of the effort to legitimize and maintain the territorial order established by European empires.Footnote ²² The idea of “civilization” was the rationale for denying Asian and African nations legal status equal to that claimed by European nations under international law in the nineteenth and twentieth centuries (Said Reference Said1979; Bowden Reference Bowden2005, Reference Bowden2009; Mehta Reference Mehta1999). As Oppenheim asserted in his classic text on international law:

So also for the international legal scholar Lorimer (Reference Lorimer1883), such recognition was the basis of European international law.

To demonstrate the legitimacy of the new state of India under international law, therefore, Desai pointed out that it had been recognized by the European powers Germany, Italy, and Croatia. Significantly, however, he went beyond existing international law by claiming that the legitimacy of the new state rested equally on its recognition by Asian states, including, as mentioned earlier, Burma, Thailand, Manchukuo, the Philippines, and “free” China. To the extent that the act of recognition was a privilege that European empires had arrogated to themselves over centuries and that it had thus determined the international legal order, the claim that recognition by Asian states could confer legitimacy was a radical discursive move that challenged the essential historical relationship between empire and international law. Thus Desai asserted that

The defense’s most critical task was to prove that the war fought by the INA against the British colonial state was defensive rather than aggressive in nature. Traditionally under international law, however, wars fought by European empires in order to establish or maintain colonies had been considered just. The defense therefore had to transcend this vision of international law so as to claim a place for the peoples of Asia who rebelled against empire. The defense in the INA trial thus performed the historic task of according to anticolonial campaigns the status of legitimate defensive wars under international law.

Desai argued that colonial rule was an international wrong while war fought for the freedom of the colonized against imperial states was moral and just:

The British Empire was now trapped by the discourse that it had itself created in the context of the League of Nations in advocating, along with other major European powers, the dismemberment of the empires defeated in the First World War. Thus, the British discourse on international law during the Second World War, which justified rebellion against the Axis Powers, was extended to the British Empire. “Who ventures to say,” asked Desai, “that a member of the Dutch Army or for that matter the Polish or the French or the Yugoslavian Army may not fight to liberate their own country and not have the right to claim, even if they failed, all the rights and immunities… of belligerency?” (Ram Reference Ram1946, 170). Since the legitimacy of law is based on the consistent application of principles, Desai called into question the British Empire’s inherently contradictory application of international law. He accordingly asserted that “international law is not static” and that, in the case of the INA, “this war at all events was completely a justified war” (Reference Desai1954, 170). The accused in the present trial, as soldiers fighting on behalf of the legitimate state of India in exile, he affirmed, possessed the rights of belligerents under international law and therefore could not be tried as criminals under municipal law.

Desai was well aware that, because the League of Nations was dominated by the victors in the First World War, in particular the British Empire, there was no impartial authority willing to declare colonialism an international wrong and to recognize rebels against the Empire as belligerents under international law was lacking. Citing a statement by the renowned international legal scholar Henry Wheaton that “war in the absence of any international authority competent to suppress effectively international wrongs has always been held legal by international law,” Desai contended that, because colonial rule was in fact an international wrong, the defensive war waged by the INA against the British King-Emperor was just and legal (Desai Reference Desai1954, 25; Wheaton Reference Wheaton1878, 98). It was the British Empire, from this perspective, that had fought “aggressive” wars of colonization, while the anticolonial war waged by the Indian state-in-exile was defensive and legitimate. Since no international authority was available that could decide against the British Empire, the subject people had no choice but to fight defensive wars of liberation (Desai Reference Desai1954, 25–26).