Chapter 133: The Extent of the Web

The Supreme Court Library

8 May 1950

By the eighth, the substance of the proposal was known to every senior advocate in Delhi. In the Supreme Court Library, a small knot of lawyers gathered at a long table in the corner. Sir Alladi was there, white-haired and stately, with his stick across his knees. So was Sudhir Ghosh, down from Calcutta, and two or three younger leftist advocates, and an elderly Parsi named Nariman who had been practising since 1912 and had a reputation for dry wit.

"They propose to abolish the Supreme Court’s appellate jurisdiction," Ghosh said. His voice shook a little. "All of it, except constitutional questions and what the Court itself may certify. Every ordinary citizen who has lost in the High Court will be told: that is the end."

"They propose Regional Courts of Appeal," Nariman said mildly.

"Staffed by nominees of the executive."

"By High Court judges, I understand."

"The same thing." Ghosh brushed it aside. "And administrative tribunals, which are courts in which the Government is plaintiff, defendant, and judge. A man dismissed from the railway, or taxed unjustly, or deprived of his land, must go before a tribunal appointed by the Ministry that wronged him."

"Not quite," Sir Alladi said, in his old, careful voice. "The proposal, as I have heard it, provides for judicial members with security of tenure."

"Sir Alladi, with the greatest respect, you do not believe that."

"I believe that I have not seen the text. But I have seen the man who wrote it, and I know what he thinks of lawyers. You will recall what he said in the Assembly. A paradise for barristers and a purgatory for administrators."

"He said it in public, and he will say it again," a young advocate muttered.

"He will, and he will not be wholly wrong." Sir Alladi shifted his stick. "I did not like it when he said it. But I have been at the Bar for forty years, and I cannot say he was wrong."

"Sir Alladi!"

"Gentlemen, let us be honest. I have seen cases in the High Court that have run for twenty years. I have been paid for them. I did not enjoy it. A system in which a man may litigate a field for a lifetime is not a system of justice. It is a system of income."

An uncomfortable silence followed.

"That is all very well," Ghosh said at last. "But it is not what he proposes. He does not propose to make the courts efficient. He proposes to make them irrelevant. Look at Hirakud. A hundred thousand people are to be moved, and the Court has been told in advance that it may not stay the move. When the Court, in the exercise of its duty, takes notice of a death, the Government replies that the matter is not before it. The Constitution has been written to make the Court a spectator."

"I cannot say you are wrong," Sir Alladi said, "about Hirakud."

"Then what are we to do?"

"We are to do what lawyers do," said Nariman. "We are to write a memorandum."

"A memorandum!"

"A very long one. With citations."

A few of them laughed, and the tension eased. But Ghosh sat with his hands tight on the table, and when the meeting ended, he walked alone into the corridor, where a pleasant young man in a linen suit was waiting with a pamphlet.

It was well written, clear, and forceful, and said very much what Ghosh would have said himself. It spoke of the Rowlatt Acts. It spoke of Gandhi. In the margin of the typed foolscap, very faintly, was a watermark: a small crown within a circle. Ghosh had seen it before, he thought, but could not remember where.

"It is very good," he said.

"We thought you would find it so."

"Who wrote it?"

"A friend. A man of liberal views, with some experience of the law." Laidlaw smiled. "He prefers to remain anonymous."

The Chief Justice’s Chamber

10 May 1950

The Chief Justice received Ram in his private room at the court on the tenth, a small panelled space with a bookshelf, a desk, and two leather chairs. Kania offered tea and did not ask whether it was wanted.

"Prime Minister. I confess I did not expect you to call."

"I thought it better to hear your view before putting anything in writing, Chief Justice."

"That is very courteous." Kania took a chair with the unhurried care of a man whose joints had begun to resent him. "I have, of course, been shown the memorandum. It was shown to me by a member of the Bar who was concerned. I do not say the Government is to blame. Such things travel."

Ram sat. He did not take his tea. "May I be direct?"

"I rather hoped you would be."

"The Court has reserved judgment in the Hirakud appeal for two months on the grounds that its calendar is full. It has also indicated that it holds itself at liberty to take cognisance of the events of the twenty-sixth of March, though no petition has been filed. I do not question the Court’s authority to do either. I ask whether it is wise."

"Wise?"

"The delay costs the Republic roughly four lakh rupees a day in contractors’ penalties and idle equipment. It also costs lives, in a manner harder to count. Every monsoon the Mahanadi floods the delta. Last year it killed forty-one people. Next year it may kill more."

"I do not doubt it."

"Then the Court understands the stakes."

"The Court understands them perfectly, Prime Minister." Kania folded his hands. "It also understands that a man is dead. Dhruba Behera. I have read the police report and the post-mortem. He was seventy-one years old. He died of a blow to the head, in a field, in the presence of armed police. I find I cannot dismiss that as an incident."

"I have not dismissed it. The District Magistrate has found that the police were attacked with iron rods and hatchets by organised men from outside the district. The blow that killed Behera was struck in a charge being conducted amid a stone-throwing mob. I will not prosecute a constable for doing his duty in the face of that. I have paid the family, and I shall build them a house. I cannot do more without punishing the wrong man."

"You have paid his family five thousand rupees."

Ram said nothing.

"I do not say it unkindly. I say it because that is what the Constitution you have drafted allows. A man may be killed, and the state may pay, and the Court may not interfere with the work that occasioned it, but must wait until the work is done and consider the claim afterwards. It is a very efficient arrangement. It is also one this Court did not design."

"The designers of the Constitution were some of the most illustrious names in the country’s judicial system."

For the first time a faint colour came into the Chief Justice’s thin cheeks. "Reviewed by the Executive. The Court was asked, afterwards, to administer it. I have been a judge for twenty-two years. I served under the Federal Court, where we were permitted to say that an act was illegal and the Government was required to stop. Under this Constitution, we may say an act was illegal, and the Government may continue, and we may order damages. I do not find that a system of law. I find it a system of licence."

"The provisions on which you rely were adopted after a long debate. They were not slipped into the text."

"I am aware of the debate. I am also aware that the Nahan exercise, which occasioned them, was arranged by the Government for the purpose of showing that the existing text was unworkable. It was a very ingenious demonstration. It was also a theatrical one." Kania looked at him levelly. "You said in the Assembly that a constitution cannot be a paradise for barristers. I am not a barrister, Prime Minister. I am a judge. And I should like to know whether a country that has abolished the judge’s power to say no has any use for a judge."

The room was very quiet.

"Chief Justice," Ram said slowly, "I do not wish to abolish your power to say no. I wish to ensure that when you say it, it is said within a reasonable time."

"And the appellate jurisdiction?"

"It is not the Court’s dignity that is the question. It is the citizen’s access."

"You propose to give the citizen access by taking away his right of appeal." Kania shook his head. "Prime Minister, I have the greatest respect for the arithmetic. I have none for the assumption that a new body will do what the old one did not. We have had a backlog since the days of the East India Company. I do not think it will vanish because we have rearranged the furniture. And I will say one thing more. I have received, in the last month, a number of letters from old friends in England. They are distressed. They are men whose judgment I respect."

"I am sure they are."

"I do not suggest they are anything but sincere."

"Nor do I."

"Good." Kania rose. "I shall say what I think when it is formally put to me. I shall say it frankly, and in writing, and it will not be to the Government’s taste. I do not believe you mean the judiciary harm. I believe you are a man of conscience who has persuaded himself that a strong executive and a weak court are what the Republic needs. I believe you are wrong. And I believe that if you are right, it will be because you have been lucky, and the next man who holds your office will not be."

Ram stood too. "I shall bear that in mind."

"Do so," said Kania, with something very close to gentleness. "It is the most useful thing I can say."

South Block

14 May 1950

Kao came to the study on the fourteenth, with Mullick. They did not arrive together. Mullick came first, in his grey suit, and stood by the bookshelf. Kao came ten minutes later, in an old tweed jacket, with a battered leather case on his knee. They did not look at each other.

"Prime Minister," Mullick said, "I will ask Mr. Kao to speak. The cell has done good work. I will say that on the record."

"Please."

Kao did not open the case. He spoke slowly, without ornament.

"I have the testimony of two prisoners arrested at Hirakud on the twenty-sixth of March. They state that they were recruited in Calcutta, paid eighty rupees each, and told that the police would not resist. They were transported by lorry to Sarapali on the twenty-second. They were given iron rods, which they did not make. They say a European was present at the house where they were recruited. They believe he was English or American."

"The boy was frightened. I do not rely on him. But I have two other matters. The first is the rods. The Superintendent preserved six. They are cast steel, of a quality that cannot be made in a village forge. They carry a mark so faint I at first thought it a flaw. A small crown within a circle. It is the mark of a firm in Sheffield."

"They are surplus British Army tent-pegs, ground to a point and cut to length. Several thousand were declared surplus in Calcutta in 1946 and sold at auction. The purchaser was a company registered in Hong Kong. It has since dissolved. The Bureau’s Calcutta office, to its credit, found the auction records."

Mullick inclined his head a fraction.

"The second matter is the money. Sudhir Ghosh, the lawyer who filed the petition, has received twenty-three thousand dollars through a Swiss bank. He believes it comes from a New York foundation. I have traced it. The Zurich bank acts for a trust in the Channel Islands, created in 1948 by a London firm of solicitors. That is the British thread."

"And the other?"

"The other is the foundation itself. It is real. It has a board and a letterhead. It also has a single donor, a corporation in Delaware that I believe to be a cut-out. The man who introduced Ghosh to it, Daniel Whitcomb, second secretary at the Calcutta consulate, is not what his card says. The Bureau’s Calcutta file identifies him as a probable officer of the new American Central Intelligence Agency. I believe the file is right."

"Why would the Americans do this?" Ram asked. "Washington is friendly."

"Washington is friendly, Prime Minister. The Agency is not Washington. It is new, and ambitious, and it has just found that three million Pakistani refugees make a very convenient cover for placing officers across Asia. My sources in Karachi report a new American relief mission whose staff are more numerous than its supplies. Whitcomb’s work in Calcutta may be a sideline. It may also be a way of finding out who in India is willing to talk."

"And Moscow?"

"Moscow, I looked at most closely, because it is the obvious suspect." Kao opened the case at last and drew out a thin file. "There is a new Soviet commercial attaché, Kozlov. He has been in the Hirakud district twice, as a tourist. He has met the Indian Communist leadership in Calcutta. I have no evidence of money, orders, or weapons.

The party’s district committee in Sambalpur, Panda’s people, received no instructions from anyone outside Orissa. They were not even aware of the rods. Panda is more frightened of the strangers than anyone. The Russians, I believe, are watching. They are not acting."

"Watching what?"

"You, Prime Minister. I believe Stalin wishes to see how you respond to being pushed."

Ram said nothing for a long moment.

"So, there are three hands," Mullick said quietly.

"At least three. They do not know of each other. The British, through the old judicial and legal channels, are speaking to the Bench. A handful of ageing English gentlemen are writing the same letters to the same colleagues. There is nothing illegal in it, and nothing we can stop. The Americans are a newer and clumsier hand, funding a lawyer and a pamphlet and trying to learn who our enemies are. And the Russians are observing."

"Welcome, gentlemen, to the great powers game," Ram remarked with a sigh.

"The rods are British," Mullick brought the discussion back to the point at hand.

"The rods are British. The violence, I believe, was theirs." Kao closed the file. "They were not meant to kill anyone. They were meant to produce a clash, a photograph, a case. The old man’s death was an accident. It was a very useful accident, and I think the people who arranged the riot are sorry about it, and I think they will use it anyway."

Ram sat very still. "Then it was not organic."

"The protest was organic," Kao said. "The riot was not."

"Mr. Kao," Ram said at last. "I want names, dates, and money. I want to know who in this government has spoken to whom. I do not want anyone arrested. I want the shape of the thing."

"It will take some time."

"I have time." Ram’s voice was very even. "Mullick, you will lead on anything inside India. Mr. Kao will lead on the foreign hands. Your Calcutta office will give him whatever he asks for, and he will tell you before he asks."

Mullick’s jaw moved. "As you wish, Prime Minister."

"One more thing. Say nothing to Jawaharlal. He will be distressed. Vallabhbhai may be told, since the Bureau is under him."

"Sardar-sahib has already seen the file," Mullick said. "He asked for it on the tenth."

Ram almost smiled. "Of course he did."

When they were gone, Ram took from his drawer the blank sheet of paper on which, six weeks before, he had written outsiders. Beneath it, slowly, in his precise hand, he wrote four more words: Sheffield. Zurich. Delhi. Calcutta. He looked at them for a while. Then he added a fifth: The courts.

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