Chapter 131: Preparing the Counter

The Supreme Court of India, Delhi

17 April 1950

The Supreme Court had been sitting in the old Chamber of Princes since January, pending the construction of a proper courthouse. It was not a satisfactory arrangement. The chamber’s acoustics were poor, the benches had been designed for ruling Maharajas, and the portraits of three viceroys still looked down from the walls.

Chief Justice Harilal Kania, a small, precise, white-haired man of sixty-three, sat at the centre of the bench with Justices Fazl Ali, Patanjali Sastri, Mahajan, Mukherjea, and Das on either side. He had heard the Hirakud appeal for two days: the thin, faintly eloquent argument of Ghosh and the cautious reply of the Attorney-General, M.C. Setalvad, whom Ram himself had appointed and who made it a point of honour never to flatter a judge.

At the end of the second day, the Chief Justice raised a hand.

"Mr. Attorney. Before the Court adjourns, I wish to put a question that has troubled me since the first day. The Government has informed this Court that the work at Hirakud proceeds under the protection of the Army. The Court has also been informed, through the newspapers and other channels, that on the twenty-sixth of March a police action in the district resulted in the death of an elderly citizen and the injury of some eighty others."

"That is correct, My Lord."

"Is it the Government’s position that the Court has no concern in that matter?"

"My Lord, the matter is before the District Magistrate, and a criminal inquiry has been ordered. The Government has paid compensation to the family. It is the Government’s position that those are matters for the criminal courts, not for this Bench in the present appeal."

"I see." The Chief Justice made a small mark on his pad. "The Court notes the Government’s position. The Court also notes that Article 32 of the Constitution confers upon it a duty to protect fundamental rights, and that this duty is not dependent upon the filing of any particular petition. The Court has, in the past, taken notice of such matters of its own motion."

The gallery stirred. Setalvad did not move.

"My Lord, the Court is not seized of any petition regarding the events of the twenty-sixth of March."

"It is not," Kania said mildly. "Nor does it propose, at this stage, to be. The Court merely observes that it holds itself at liberty to do so. In the meantime, the Court will reserve judgment in the appeal and will hear further argument on the sixth of June."

"The sixth of June, My Lord?"

"The Court’s calendar is very full, Mr. Attorney."

In the gallery, the Law Secretary, Mr. Bannerjee, shut his notebook with a small, tight movement. Ram sat without expression through the rest of the proceedings and walked out into the bright afternoon without a word.

"Seven weeks," Nehru said, joining him on the steps. "He has delayed us seven weeks."

"Nine, with the vacation."

"They have not granted a stay."

"They have not needed to." Ram went down the steps slowly. "The contractors cannot pour concrete on land that the highest court in the country has declared sub judice. The foreign engineers will not sign a delivery contract for a site under litigation. The Export-Import Bank will not release funds until the appeal is settled. The Chief Justice has not forbidden anything. He has merely put a heavy hand on the lever."

"You think it is deliberate?"

"I think Mr. Justice Kania is a conscientious man who believes he is doing his duty. And I think he has been reading a good deal of mail from London."

South Block

19 April 1950

The summons for the Law Ministry data went out that afternoon. Ram gave no reason. He asked, through Shaktidas, for a complete table of cases filed, disposed of, and pending in every court in the Republic since the fifteenth of August 1947.

The records arrived two days later in three large tin trunks. Shaktidas read them in the evenings for forty-eight hours and brought the summary to the study at ten on the night of the twenty-first.

"The numbers are hard to believe, Ram." He pushed his spectacles up his nose with a finger that was not entirely steady. "Pending in the High Courts as of the first of April: four lakh and twelve thousand civil cases. Ninety-one thousand criminal appeals. In the district courts, the figure is not recorded centrally. The Law Secretary estimates between thirteen and fourteen lakhs."

"Fourteen lakhs."

"A conservative guess. The oldest case in the Allahabad High Court dates from 1931, a property dispute between two brothers, both now dead. Their sons are litigating. It has been adjourned two hundred and eleven times." He turned a page. "The average time to final disposal of a civil suit that goes through every stage of appeal is, in the United Provinces, eleven years and four months. In Madras, nine. In Bombay, seven and a half."

"The Supreme Court?"

"Eight hundred and sixty cases pending, with eight judges. It has admitted four hundred appeals in three months and decided forty. It is the final appellate court from every High Court in the country, on every point of law and fact, in civil, criminal, and revenue matters. It hears special leave petitions, constitutional petitions, and election disputes. It hears everything." Shaktidas paused. "A man who loses in the District Court may appeal to the High Court. If he loses there, he may appeal to the Supreme Court, and then petition for review. The only limit is his stamina or his purse."

Ram read the figures for a long time. His face did not change.

"This is not a backlog," he said.

"No?"

"A backlog is a temporary condition. A queue at a ticket window. You hire two more clerks, and it clears. This is a mechanism that produces delay as a product. It does not fail to clear the queue. It manufactures the queue." He tapped the page. "Every litigant has an incentive to appeal, because appeal costs the loser nothing but money, and money is cheap beside admitting defeat. Every lawyer has an incentive to advise it, because he is paid by the adjournment. Every judge is overworked, so he adjourns, which feeds the queue. It is a perfectly self-sustaining engine."

"A paradise for lawyers," Shaktidas said softly.

"I said that in the Assembly as a rebuke. I did not know how literally true it was." Ram sat back. "And it is no accident that when the Government tries to build a dam, the whole apparatus turns toward it like a flower to the sun. A farmer in Sambalpur who wishes to stop a dam does not need to win. He needs only to file."

"What will you do?"

"Write it out. Then ask Jawaharlal and Vallabhbhai to destroy it. If it survives them, it will survive anything."

Cuttack

24 April 1950

Kao arrived in Cuttack on the twenty-fourth, having flown from Gangtok to Calcutta and taken the train south. He came with two men, not from the Bureau, and did not go to the police headquarters. He rented a room above a tea shop in the bazaar and sent for the Superintendent, Mohanty, who came in plain clothes after dark.

Mohanty was not alone. Behind him, ten minutes later, a heavyset man in a grey suit climbed the stairs and stood in the doorway with his hat in his hand. He was the Bureau’s Cuttack station chief, a Bengali named Sengupta, and his face was the colour of old brick.

"Mr. Kao," he said. "I was not told you would be in my district."

"I was not told to tell you, Mr. Sengupta."

"The Director said you were coming. He did not say you would be interviewing my witnesses."

"They are the Superintendent’s witnesses."

"They are Intelligence Bureau business. A domestic disturbance, domestic prisoners, domestic law." Sengupta’s voice was careful. "Your wing, as I understand it, has a charter to operate abroad."

"My wing has a charter to follow a thread wherever it goes." Kao did not raise his voice. "At present, I believe the thread leaves India. I do not wish to quarrel with you, Mr. Sengupta. I should be glad of your help. I should be less glad of your obstruction."

"The Director will hear of this."

"I should hope so. I will tell him myself."

Sengupta stood a moment longer, and then stepped aside. "The prisoners are at the police station. You will want a Bureau officer present."

"By all means."

The two men were brought from the cell at midnight, shackled, to a bare room at the back of the station. One was thin and sullen, with a scar on his chin. The other, very young, perhaps nineteen, looked about with the wide, frightened eyes of a boy who had been told he would be treated as a hero and found it was not so. Kao sat in front of him. Sengupta stood by the door, arms folded.

"What is your name?"

The boy said nothing.

"I am not a policeman," Kao said, in Bengali. "I do not care about the rods. I care who gave them to you."

The boy’s eyes flickered. After a long moment, he said in a whisper, "They told us there would be no killing."

"Who told you?"

"A man in Calcutta. I do not know his name. He gave me eighty rupees and said it was for the cause. He said the police would be afraid." His voice cracked. "I did not know the old man would die."

"Where were you recruited?"

"A tea shop on College Street. A man I knew from the university said there was work. He took me to a house in Ballygunge. There was a European there, very polite. He did not speak to us. A Bengali spoke for him."

"A European."

"English, I thought. Or American. I do not know. He had a pipe."

Sengupta shifted by the door and said nothing.

"Where did you get the rods?"

"They were in the lorry. A man from the party drove it."

"Which party?"

The boy looked at him with a blank, tired face. "I do not know, sir. They said it was the party. I do not think it was."

When the boy had been taken away, Kao sat in the bare room. Sengupta crossed to the table and said, stiffly, "I will include this in my report."

"Please do."

"The Bureau will pursue it."

"I should be very glad if you did, Mr. Sengupta." Kao rose. "And I should be glad if you would tell me what you have in Calcutta on a man named Whitcomb."

Sengupta’s jaw tightened. It was a question that, for a week, his own office had been asking, and nobody had been told to answer it.

"I will have to ask the Director."

"Of course."

When Sengupta had gone, Mohanty, who had stood silent at the wall, said carefully, "He does not like you."

"No. I do not think he is meant to." Kao picked up his case. "He will like it less when we find that his Calcutta office has known about Whitcomb for a month and has not acted."

South Block

26 April 1950

Mullick came to the study in person, which he regularly did. He did not take a chair.

"Prime Minister. Mr. Kao has been working in Orissa and Calcutta without notifying the Bureau. He interviewed prisoners without my station chief present until the middle of the interview. He has sent two of his officers into Calcutta to follow a United States consular officer, an act that, if discovered, would be a diplomatic incident. He has opened a correspondence with a bank in Zurich through channels the Bureau does not control. He has done all this, I believe, with the authority you gave him in the matter of the Hirakud inquiry. I wish to understand how far that authority extends."

"As far as the thread."

"That is not a boundary, Prime Minister. It is an excuse."

Patel, who had come in behind Mullick and settled into the armchair by the window, spoke without lifting his head from the file in his lap. "He has a point, Ram."

"I did not say he did not."

"The Bureau is the Home Ministry’s instrument. I am responsible for it. I do not mind a second service. I have said so. I mind it operating inside my own jurisdiction without so much as a note." Patel looked up. His eyes were sharp and clear, and he sat easily, with the air of a man who had slept well. "If two services are to hunt on the same ground, they must be told which of them has the gun."

"Mullick, sit down."

Mullick sat, very straight.

"The Intelligence Bureau is the finest domestic service in Asia," Ram said. "You built it from a tangle of provincial Special Branches in three years. I have never said otherwise. But Mr. Kao’s service was designed, at Patel’s suggestion and mine, to do what the Bureau cannot: to work abroad, under cover, in places where a Bureau officer would be arrested. This case lies across the line. A riot in Orissa is yours. A bank in Zurich is his. A consular officer in Calcutta is, God, help us, both."

"Then there should be a protocol."

"There should, and there will be. A joint cell, with a single file. The Bureau leads on anything inside India. Kao leads on anything that touches a foreign hand. Neither moves without telling the other. If there is a dispute, it comes to me, in writing, within twenty-four hours." Ram looked at Mullick. "Does that satisfy you?"

"It satisfies the letter, Prime Minister."

"And the spirit?"

Mullick was silent for a moment. "I am forty-six years old," he said. "I have spent twenty years building a service that knows every telegraph office in the country. I do not wish to see it become an annexe to a department of eleven men who have not yet got a budget."

"You will not."

"The first time it is said that the Bureau knew of a foreign network in Calcutta for a month and did not act-"

"It will be said that Mr. Kao found it. And it will be true, and it will be to the Bureau’s credit that it had the sense to let him." Ram’s voice stayed calm. "Bhola Nath, I need both of you. If I did not, I would have chosen one."

Mullick bowed his head. It was not agreement, but it was acceptance, and Ram, who knew the difference, let it stand.

When he had gone, Patel said, "He will sulk for a fortnight."

"He will do his job for a fortnight, and sulk in the evenings."

"That is the same thing." Patel closed the file. "Ram, what do you think this is?"

"I do not yet know." Ram rose and went to the window. "I know that the protest was real. The farmers of Sarapali are not paid. I know that a riot was started by men who were. I know that the Bureau’s own people had Whitcomb in a file before Kao arrived, and that nobody connected it to the rods. I know that the Chief Justice has been reading letters from London. I know that the Soviet Embassy has a new commercial attaché who has been watching the whole thing with great interest and, so far as Kao can tell, with no hands in it whatever."

"The Russians?"

"The Russians are curious. They are not conspiring. That is the strangest thing. I would almost prefer it if they were." Ram turned. "Stalin is watching to see what I do when I am struck. That is a very different thing from striking."

"And the others?"

"The British are old friends of the judges. The Americans are new friends of everyone. They are not working together, but they are pulling in the same direction, and the direction is toward a government that finds itself on the back foot in a courtroom." Ram’s mouth moved. "I should like to know who is pulling hardest."

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