The Supreme Court's Panel Structure

One of the defining features of the Indian Supreme Court is its panel structure.  At present it has 27 judges that on a typical day may sit in benches of two or three judges in one of over a dozen active courtrooms.  In this sense, it's not a single court, but many courts.  In this article that is to be published later this year in the American Journal of Comparative Law I look at how the Court's structure was promoted to further certain values or understandings of what a supreme court should be.  I argue that the desire for access to the Indian Supreme Court has come at the cost of some of the cohesiveness of the Court's doctrine.  But it has also had less intuitive consequences as well.  It has encouraged judicial entrepreneurs who can use smaller benches to push precedent farther or more creatively than they might be able to if they sat on a larger bench.  It has empowered a Chief Justice dominant Court, where the Chief Justice's power to set benches and move cases has made him the clear focal point and leader of an otherwise relatively fragmented institution.  And it has arguably helped reduce perceptions of politicization of the institution by the public because it is so difficult for outsiders (or insiders) to see the creation of clearly defined coalitions of judges as happens on unified benches like the US Supreme Court where conservative and liberal wings of the court are well documented and debated.

Several other effects of the paneled court structure of India are detailed in the article, along with a comparison to the US Supreme Court's unified bench structure.  The article does not argue that either a paneled or unified bench structure is superior.  And that is largely the point.  Each structure arises out of different values and needs and responds to different contexts.  I actually think one could not come up with a definitive ideal structure for a supreme court that should be adopted by countries around the world. Different structured courts would have different impacts in different countries at different times.

That said, I believe in a country like India the purpose of the Supreme Court's structure is not articulated and reflected upon seriously enough (this is definitely not a problem isolated to India).  Instead, institutional momentum, and drift, largely account for keeping the Court in its current form.  If the current trajectory prevails more appeals will come to the Indian Supreme Court in the future, requiring more judges and more panels, leading to even greater stresses on the institution.  This will result in more calls for changing the structure of the court and we should be prepared to have the tools to understand what the costs and benefits of these changes might be.

More Rumblings about Justice Bhandari's "Election" to the ICJ

Justice Dalveer Bhandari's election as Judge of the International Court of Justice has thrown up problematic questions of propriety and legality. Raag Yadava's earlier post highlighted the plausible deficiencies of the process of selection; in the op-ed page in yesterday's Hindu, Arghya Sengupta looks at judicial independence concerns regarding Justice Bhandari's nomination and subsequent election to the ICJ and how they demonstrate or perhaps reflect the falling standards of propriety in public life in India. 

Parliament and Shankar's Ambedkar - Nehru Cartoon: The Familiar Lack of Context and History

'A Brahmin Prime Minister whipping a Dalit leader and blaming him for the delay in creating the Constitution' -- that spin on Shankar's cartoon is too dangerous for any government to ignore. However, the government could have chosen to do the brave thing and defend the use of the cartoon by resorting to the legacy of Shankar's cartoons and the context within which the cartoon appeared, both historically and within the NCERT textbook.

Shankar and the Congress

As MPs contemplate removing more cartoons, the Congress-led Government might do well to remember Nehru's attitude towards political satire. Shankar paid a lot of critical attention to Nehru by making him a subject on over 90 cartoons never once did Nehru react adversely. He wholeheartedly endorsed and enjoyed

Shankar's work even when it was intensely critical of him. Be it the cartoon where one Nehru is seen holding another Nehru back -- which was sketched to reflect on Nehru's contradictory stance on China's "liberation" of Tibet, where he repeteadly asserted that McMahon Line was the border and yet did very little when China marched into Tibet -- or, the cartoon of a weary Nehru, carrying a torch, way ahead of the pack in a race comprising Lal Bahadur Shastri, Gulzari Lal Nanda, Indira Gandhi, Krishna Menon and Morarji Desai, published 10 days before Nehru's death in the context of the most debated question then -- 'After Nehru Who?' (to borrow the title of 

Welles Hangen's 1963 book). Despite being subject to such intense political satire by one individual, Nehru always reflected on Shankar's work. Shankar in return thought of Nehru as the political giant of his time because of his ability to accept criticism and not be blinded by his own importance.

Emergency and Shankar's Weekly

It must have been a rude shock for Shankar (but given how politically astute he was, it perhaps wasn't such a surprise ) when the daughter of the man who enjoyed his work so much sought to go after the cartoonists of his publication, Shankar's Weekly. In order to protect his cartoonists during the lawless days of the Emergency, Shankar told Indira Gandhi that he would shut down Shankar's Weekly if she spared his cartoonists and published one last edition on 31st August 1975 with the caption 'Parting - Not Without Sorrow'. 

The beleaguered Congress-led UPA Government can choose which legacy it wants to inherit in this regard and it might do well to use this opportunity to reclaim some moral high ground that it so desperately needs.

 Ambedkar on the Pace of Making the Constitution

In controversies like the current one, history is often the first casualty. Speaking in the Constituent Assembly on 25th November 1949 (Shankar's cartoon appeared in Shankar's Weekly on 28th August 1949), Ambedkar was clearly aware of the criticism leveled against the Constituent Assembly for taking far too long and wasting public money. Responding to the public perception that it was a case of "Nero fiddling while Rome was burning" (Constituent Assembly Debates, Vol.XI, 25th November 1949), Ambedkar provided a detailed response based on the comparative experiences of the United States, Canada, Australia and South Africa and drew attention to the fact that India had adopted her Constitution in lesser time than some of those countries. The critical point Ambedkar highlighted in his speech was that the procedure adopted by the Constituent Assembly in India allowed amendments to resolutions moved in the Constituent Assembly and thereby placed India in a different position from the other countries mentioned where resolutions were adopted as moved.

What is evident from Ambedkar's speech in the Constituent Assembly is that he understood the criticism of delay being levelled against the Constituent Assembly as a whole and not just the Drafting Committee, of which he was the Chairperson. And that is the only possible and reasonable inference of the public criticism because the Constituent Assembly comprised at least 19 other Committees and Sub-Committees that contributed to the making of the Constitution. The Constituent Assembly first met on 9th December 1946 and the Drafting Committee was formed by the Constituent Assembly on 29th August 1947. The Draft Constitution was submitted to Dr. Rajendra Prasad, the President of the Constituent Assembly, on 21st February 1948 after which there was widespread consultations and meetings all over the country to discuss the draft, particularly in the Provincial Assemblies. The Constituent Assembly reconvened only in November 1948 to discuss threadbare the provisions of the Draft Constitution. 

It would be a distortion to think that Ambedkar was ever blamed personally for the delay. The complaint, however unfounded, was always against the Constituent Assembly as a whole and this is reinforced by Shyama Prasad Mookerjee's speech in Parliament during the debate on the 1st Amendment in 1951. Referring to the debate on the Fundamental Rights Chapter in the Constituent Assembly, he argued that the level of detailed discussion that led to many changes in the Draft Constitution was absolutely necessary given circumstances in which the Constitution was being drafted.

 The public consultations all over the country and the detailed debate in the Constituent Assembly was necessary to set off the charge of democratic deficit that plagued the creation of the Constituent Assembly, given the lack of universal suffrage and the dominant position of the Congress Party. That process, undoubtedly, did take time and it is precisely in that context that Shankar's cartoon appeared in Shankar's Weekly and in the NCERT textbook as the cartoon accompanying the text under the headings - 'Composition of the Constituent Assembly'; 'The Principle of Deliberation'; and 'Procedures'. What our parliamentarians have done is to strip the cartoon of the historical context in which it appeared and engage in a meaningless, hollow and undemocratic act of literalism.

A Counter View: http://www.thehindu.com/opinion/op-ed/article3419233.ece
 

Update on the Haj case

This is an update on my earlier post on the Haj order (A Liberal Secularist Agenda for Disengagement with Religion). The interim order in Union of India v Rafique Shaikh Bhikhan by Justice Alam and Desai is available now. The relevant (and fascinating) extract outlining the Court's reasoning is reproduced below:

we appreciate the intent of the Government of India to provide subsidy to cover the additional burden resulting from the stringent regulation imposed by the Saudi Arabian Authorities. We also take note of the fact that the grant of subsidy has been found to be constitutionally valid by this Court.We are also not oblivious of the fact that in many other purely religious events there are direct and indirect deployment of state funds and state resources. Nevertheless, we are of the view that Hajj subsidy is something that is best done away with. 

This Court has no claim to speak on behalf of all the Muslims of the country and it will be presumptuous for us to try to tell the Muslims what is for them a good or bad religious practice. Nevertheless, we have no doubt that a very large majority of Muslims applying to the Haj Committee for going to Hajj would not be aware of the economics of their pilgrimage and if all the facts are made known a good many of the pilgrims would not be very comfortable in the knowledge that their Hajj is funded to a substantial extent by the Government. We remind ourselves that the holy Quran in verse 97 in Surah 3, Al-e-Imran ordains as under:

“ 97. In it are manifest signs (for example), the Maqam (place) of Ibrahim (Abraham); whosoever enters it, he attains security. And Hajj (pilgrimage to Makkah) to the House (Ka’bah) is a duty that mankind owes to Allah, those who can afford the expenses (for one’s conveyance, provision and residence); and whoever disbelieves [i.e. denies Hajj (pilgrimage to Makkah), then he is a disbeliever of Allah], then Allah stands not in need of any of the Alamin (mankind, jinn and all that exists).”

We, therefore, direct the Central Government to progressively reduce the amount of subsidy so as to completely eliminate it within a period of 10 years from today.

[emphasis in the original]

So the reasoning of the Court is not exactly based on liberal disengagement with religion. Quite the opposite, really! The Court is telling you what it is to be a good Muslim, although echoes of Shah Bano are quickly drowned in the modest qualification of the Court's inability to speak for all Muslims. Also, the Court acknowledges that Haj subsidy has been held to be constitutional, but thinks it is bad policy. Can the Court set a policy aside without finding unconstitutionality? I believe this is the right outcome, but based on bad reasons - the policy should have been found to be unconstitutional because it violates Article 15. Admittedly, that would be a radical overhaul of existing jurisprudence, and require a larger bench. Also interesting is the Court's use of a the 10 year window: one can see resonance with Brown v Board of Education, and also the 'progressive realisation' jurisprudence on socio-economic rights in South Africa.

Report on the Q&A Session with a Delegation of Indian MPs at Oxford (16^th April 2012)

(co-authored with Dhvani Mehta)

Apparently when Devi Lal, the ‘tau’ of Indian politics, was asked why he had made his son, Om Prakash Chautala, the Chief Minister of Haryana on becoming the Deputy Prime Minister of India himself in 1989, he crudely responded  –‘aur kya, Bhajan Lal ke chhore ko banauu?’ That level of arrogance may not inform contemporary Indian politics but responses from a delegation of Indian MPs to a question on dynastic politics indicated that the tau’s ghost might linger for a while.

Responses from Supriya Sule (LS, NCP), Piyush Goyal (RS, BJP) and Deepender Hooda(LS, INC), who were part of a panel that also included Chandan Mitra (RS, BJP), Asaduddin Owaisi (LS, All India Majlis-E-Ittehadul Muslimeen), Jayant Chaudhary (LS, RLD) and Rajagopal Lagadapati (LS, INC), made it clear that solving the problem of entry barriers into Indian politics was far from being a priority. Their focus, as has very often been the case on this issue, was on justifying why positions of privilege do not prevent them from being sincere and hardworking MPs. The democratic deficit caused by the entry barriers hardly found any mention in the responses. Supriya Sule’s passionate declaration of the personal sacrifices she was making, Piyush Goyal’s treatment of his political lineage as an advantage and Deepender Hooda’s assertion that election victories (after the first one) were all about individual merit reeked of a power elite determined to hold on to its position of political privilege. Perhaps the question stood no chance given that it was being put to a panel where 6 out of 7 speakers were inheriting the political legacies of their families.

Panellists seemed more willing to introspect when posed a question on the institutional reforms needed to make Parliament functional again. They acknowledged problems with the system, and stated that attempts were being made to forge solutions across party lines. Details however were scant, apart from the mention of a proposal to introduce an annual minimum of parliamentary sittings. Chandan Mitra was of the view that, contrary to public perception, Parliament achieved significant results through consensus in its standing committees.

Given the history of the Third Front in Indian politics, it was surprising to see the degree of optimism amongst non-Congress/BJP panellists about the possibility of such a government in 2014. Perhaps the most enduring account of the problems surrounding the formation of a Third Front government is Devi Lal’s insistence on taking the oath as Deputy Prime Ministerin 1989 despite President Venkataraman’s strong suggestion during the ceremony that the Constitution permitted him to take oath only as a Minister (And well, it took a decision of the Supreme Court to finally resolve the issue). Supriya Sule’s answer, if implemented, might well be a way to counter such deep levels of suspicion and discord - she emphasised the necessity of presenting a pre-poll Common Minimum Programme to the electorate, rather than cobbling together a post-poll alliance. If voted to power, Asaduddin Owaisi was of the view that the economic and foreign policies of a Third Front government would be substantially different from the largely indistinguishable policies of the two national parties. However, Piyush Goyal believed that a government dominated by regional parties might be ill-suited to address national issues. In a polity that is increasingly dominated by regional parties, Deepender Hooda acknowledged the need to address regional aspirations and strengthen leadership in the States. 

The responses to a question on whether identity politics impeded or enabled democracy were predictable. Chandan Mitra promptly held up the examples of Nitish Kumar and Narendra Modi and their brand of politics as moving away from the fixation with identity. Rebutting the mainstream discourse about Nitish Kumar’s development agenda, Asaduddin Owaisi claimed that the Bihar Chief Minister had merely got his religion and caste permutations right by carving out Maha-Dalits and Most Backward Classes from the Scheduled Castes and OBC categories respectively. While the jury might still be out on the political feasibility of Nitish Kumar’s strategy in other parts of the country, it certainly represents the next level of legal challenges for reservation policies. While courts have been willing to uphold the sub-classification of OBCs along economic lines, the constitutional fate of Nitish Kumar’s reservation policies for Scheduled Castes remains uncertain, especially in light of the Supreme Court’s decision in EV Chinnaiah v State of AP & Ors. 

Being rather dismissive of Narendra Modi’s model of development, Asaduddin Owaisi asserted that it was too high a price to pay. He delivered an impassioned justification for identity politics, especially in the context of safeguarding minority rights. The reactions from Mr. Owaisi and other Muslim MPs to the Supreme Court’s observations on the Haj subsidy have been interesting. Neatly capturing the benefits of identity politics, he concluded his remarks with a poetical flourish- ‘phool nahin toh phool ki patti hi sahi’ [if we can’t have the flower, then we may as well have the petals]. 

If one were to attempt to roughly label the responses, arrogance, predictability, lack of nuance and evasiveness would be good candidates, typical of so much of Indian political discourse. While some of the responses to questions on climate change, reservations based on economic criteria, and the Gujarat riots betrayed the latter two characteristics, other answers on the same issues were certainly more measured and reasoned. When asked whether India could afford not to transition immediately to a low-carbon economy, Piyush Goyal attempted to portray India as the victim in global negotiations and seemed to suggest that development and environmental protection were antithetical. In contrast, Mr Chaudhary remarked that this distinction was counter-productive, and that moves to adopt low-carbon measures ought not to be viewed as a conspiracy of the developed world. Instead, it was in India’s self-interest to move towards sustainable growth particularly in the light of our vulnerability to the effects of climate change.

Supriya Sule also displayed a lack of nuance when she cited the Right to Education Act as an example of affirmative action based on economic criteria without any reference whatsoever to the manner in which various State governments had, under their respective rules, divided up the 25% quota. 

This lack of nuance is particularly ironic given that politicians are quick to accuse civil society of failing to appreciate the complexity of political challenges, the India Against Corruption movement being a case in point (Chandan Mitra couldn’t resist a self-congratulatory pat on the back as he reminded the audience of the high quality of parliamentary debate on the Lokpal bill).  

The BJP’s defensiveness over Narendra Modi is evident in its reaction to the report submitted by the Supreme Court appointed amicus, Raju Ramachandran, on the Zakia Jafri case. It was also evident when, on being asked whether there would be adverse political consequences if Narendra Modi apologised for his moral culpability (rather than legal) for the Gujarat riots, Chandan Mitra’s initial reaction was a refusal to answer the question. It took him very little provocation to respond when Asaduddin Owaisi responded to a question on whether such an apology would suffice for the Muslim community. He said that Narendra Modi would never apologise because an apology for such an act required a ‘human heart.’ He asserted that all legal proceedings would have to continue, and indicated that a Truth and Reconciliation Commission based on the South African model might be acceptable. This response was sufficient for Chandan Mitra to spout the BJP line on Narendra Modi that there was no question of an apology, since no legal culpability had been established. 

The session was a unique opportunity to interact with parliamentarians from across the political spectrum and although several trite responses were duly parroted, there were some well-articulated positions along with encouraging passion for convictions. It gave us a taste of what makes Indian politics exciting and frustrating at the same time.

Haj subsidy struck down: A Liberal Secularist Agenda for Disengagement from Religion

I am still to see the full judgment, but media reports suggest that a bench of Justices Alam and Desai have struck down the provision for Haj subsidy as unconstitutional. If this move signals a shift from secularism as equal engagement with/respect for all religions to secularism as disengagement from religious belief and doctrine, I think it is a very welcome move indeed (and one which should be welcomed not just by secularists but also by religious non-secularists - the disengagement view of secularism  provides greater autonomy to religions so long as they do not harm others, so religious groups are likely to be better off under a hands-off state rather than a hands-on state).

The secular disengagement agenda also includes personal law reform (with a secular Uniform Civil Code as the ultimate goal); abolition of religion-based tax benefits to Hindus (through the institution of Hindu Undivided Family); robust antidiscrimination provisions to prevent housing, education and employment discrimination on the grounds of religion; end to the state's meddlesome role in temple trusts; end to symbolic religious practices by state institutions (eg bhumi-poojan); repeal of anti-conversion legislation; repeal of cow-slaughter bans; express enumeration of atheists and agnostics in the national census; effective measures to combat religious violence; robust protection for anti-religious speech etc. Acceptable exceptions will include cases where religious doctrine causes harm, e.g. open access to temples for dalits.

The agenda will require nuanced discursive responses to allegations of decontextualised naïvety and claims of Indian-exceptionalism (although the one thing we will perhaps not be guilty of is partisanship). Are liberals up for the fight?

Naz SC hearing transcript and Vth NLSIR symposium

1.  A transcript of the hearings in the Naz Foundation case before the Supreme Court is available here.  The 125 page document - which has clearly been put together after considerable effort and coordination - makes for interesting and, at times, depressing reading, given the variable quality and content of the arguments raised. Kafila has an interesting set of blogposts on the case (available here, here and here).  With the decision of the Supreme Court expected sometime this year, one can anticipate a lot of discussion on the issues that arose for consideration in the case.  Since the SC hearings reference the US Supreme Court's decision in the Lawrence v. Texas case, this piece by Dalia Lithwick in the New Yorker reviewing a fascinating recent book on the story behind the case is relevant.    

2.  The NLSIR is hosting its Vth symposium on "Corporate Mergers and Acquisitions: Recent Regulatory Changes" over the coming weekend at the campus of the National Law School, Bangalore. Further details about the event, including the full programme, are available here. 

Welcoming Anup Surendranath & On the State of National Law Schools

We are very happy to announce that Anup Surendranath has agreed to join the blog team at LAOT. Readers who have been reading his guest posts should already be familiar with him somewhat and can look forward to regular posts by him. 

Anup is currently reading for the D.Phil in Law at Balliol College, Oxford and looks at the sub-classification of Scheduled Castes, OBCs and women in the context of reservations. Anup graduated from NALSAR University of Law, Hyderabad in 2006 and completed the BCL and M.Phil in Law at Oxford between 2007-10. His areas of interest include comparative rights adjudication, socio-economic rights, Indian constitutional law and contemporary Indian politics. He will be taking up a teaching position at NLU Delhi from September 2012. Anup, welcome to the team.

I should also use this opportunity to highlight an important newspaper column that Anup has recently written (along with Chinmayi Arun) on the crisis in the National Law Schools. A lengthy excerpt follows:

the main parameters of assessment must revolve around the quality of legal education being provided at these universities, the quality of research output and the ability of these institutions to contribute meaningfully to policymaking and public debate in India.

If the quality of education being provided at the NLUs is to become a high priority, it would require a close consideration of the faculty composition, the contributions to curriculum and the governance structures of these institutions.

Within the student community, there exists a strong perception that the reputation enjoyed by some of NLUs is not matched by the quality of faculty. Very early on into their law degrees, students decide that time spent in the classroom is a waste, and self-learning through internships, moot court competitions and other extra-curricular activities make for a better education. This lowering of expectations is caused largely due to sub-standard classroom teaching, albeit with some very notable exceptions, across these universities. This failure of classroom education is often laid at the doors of the teachers. However, it may more accurately be attributed to institutional structures relating to faculty hiring, retention and incentives. At NLUs, faculty members find themselves in a system that hardly rewards research output, innovative courses/teaching methods or quality publications and are instead left to negotiate a system that mainly rewards the number of years clocked in the job with no appropriate mechanism for faculty evaluation. Little attempt is made at training new faculty or discussing teaching techniques, let alone acknowledging the importance of course development and structure.

The curriculum keeps both teachers and students in the classroom for too many hours a day for students to focus on. In most NLUs, the academic year is peppered with multiple rounds of tests and numerous research paper submissions. This weighing of the curriculum with excessive classroom time and many rounds of ineffective assessment leaves teachers with very little time to grow as scholars, to engage in their own research and to evolve as teachers. NLUs tend to prioritize the number of hours spent in the classroom over the quality of teaching; the timelines of evaluation over the quality of evaluation; and the number of courses taught per year over development of good courses. The processes adopted discourage teachers from putting sufficient thought into their teaching and assessment, and as a result the level of rigour informing teaching and assessment is far from satisfactory.

When trying to decide whether to teach at one of NLUs, a good scholar (inevitably a person with other job options) would be confronted with the fact that she will not be allowed enough time to prepare adequately for class and will probably end up teaching subjects in which she has no interest. She will be offered little, if any, time and resources that would help her engage with the larger universe of academics and researchers in her field, and which would allow her to do what any academically inclined person worth her salt wants and needs to do—read, think and write. It is not money that tempts lawyers to give up a lucrative career and enter universities. It is the freedom to read widely, think deeply, write independently and keep learning—the opportunity to live in the world of ideas. Any university that does not offer its faculty this freedom and opportunity will fail to attract promising teachers and researchers.

Since good education is impossible without good scholars, and since NLUs do very little to attract, retain and mentor good scholars, it is imperative that these institutions consider a major systemic reform. This reform will be meaningless without taking on board the experience and concerns of major stakeholders—the administrators, teachers and students of these universities. Research needs to become a higher priority, with incentives and time set aside for it. Attention needs to be paid to the quality of teaching and assessment, with a focus on course development, teaching techniques and useful feedback, none of which can be achieved without a comfortable faculty-student ratio.

Guest Post from Anup Surendranath: The Right to Education Case: Was Another Constitutional Amendment Required?

When narratives on the Supreme Court’s enforcement of socio-economic rights are written, the judgment of the Court upholding the constitutionality of the Right to Education Act, 2009 will probably enjoy pride of place. In this post I explore the construction and role of legislative intent behind the 86^th Constitutional Amendment and also, whether a further constitutional amendment was necessary to impose the 25% quota obligation on unaided non-minority schools as discussed in Justice Radhakrishnan’s dissent in Society for Un-Aided Private Schools of Rajasthan v. Union of India.

Balancing Rights

To be clear, it is my argument that unaided schools can be legitimately required to bear the 25% quota obligation but the method adopted in the current instance leaves it open to constitutional challenges. The 86^th Constitutional Amendment that inserted Article 21-A into the Constitution declares that ‘the State shall provide free and compulsory education …….in such a manner as the State may, by law, determine’. Reading Article 21-A on its own would suggest that there is nothing that stops the State from adopting the model envisaged in The Right of Children to Free and Compulsory Education Act, 2009. However, the question is whether precedents of the Supreme Court clarifying the scope of Article 19(1)(g) in light of Article 21-A’s drafting history meant that a further constitutional amendment was required to impose the 25% quota obligation on unaided non-minority schools.

Drafting History of Article 21-A

About a month before Parliament passed the 86^th Constitutional Amendment on 12^th December 2002, the Supreme Court delivered its judgment in the TMA Pai case. Coupled with the drafting history of Article 21-A and the decision in TMA Pai, Justice Radhakrishnan has appropriately highlighted that the strategy to impose an obligation on unaided schools through an ordinary legislation is not on firm ground. In the TMA Pai case, an 11-judge bench of the Supreme Court held that the State could not require unaided private colleges to implement the State’s reservation policies or provide free education. As a matter of constitutional interpretation, Justice Radhakrishnan is right in arguing that Parliament must be deemed to have been aware of the decision in TMA Pai before it passed the 86^th Constitutional Amendment and it is in this context that the lack of a specific provision in Article 21-A giving a specific power to the State to impose obligations on private parties becomes problematic.

This is where the drafting history of Article 21-A complicates matters. The first draft of Article 21-A that was presented before the Chairperson on the Rajya Sabha in July 1997 contained a provision [draft Article 21-A(3)] stating that the State could not make a law requiring unaided institutions to provide free education. However, taking into account the discussions that were held by a Committee of the Rajya Sabha and a report from the Law Commission of India, this provision was dropped in due deference to the Supreme Court’s decision in Unnikrishnan which permitted the State to require unaided institutions to set aside up to 50% of their seats for free education. Additional Solicitor General Indira Jaisingh argued that this drafting history must be interpreted as Parliament’s intention to permit the State to impose obligations on unaided schools to provide free and compulsory education.  However, TMA Pai over-ruled Unnikrishnan on this point before Lok Sabha passed the 86^th Constitution Amendment Act. Therefore, the law on Article 19(1)(g) as declared by the Supreme Court before the 86^th Constitutional Amendment Act was that maximum autonomy must be given to unaided institutions in their admission procedures. By not inserting a specific provision permitting the State to impose obligations on unaided institutions, the argument is that it must be deemed that Parliament was accepting the constitutional scope of Article 19(1)(g) as it existed on that date.

Legitimate Aims, Unconstitutional Methods?

The question comes down to whether it is constitutionally permissible for Parliament to over-ride the existing protection of a constitutional provision [Article 19(1)(g)] through an ordinary legislation. However, Chief Justice Kapadia’s response to the above argument is that the judgment in TMA Pai did not explore the connection between Articles 21-A and 19(1)(g) and therefore, cannot limit the operation of the Right to Education Act. TMA Pai, the Chief Justice argues, defined the scope of Article 19(1)(g) in the context of reservations in unaided higher educational institutions under Article 15. The Chief Justice’s argument is not entirely convincing because it does not explain why the scope and content of the right in question, i.e Article 19(1)(g), can be different for the same kind of institutions for similar kind of State action. The answer might well be that the objective of the State in the two cases are different. However, the majority judgment does not provide an explanation as to why the difference between pursuing inclusivity in higher education and implementing the right to primary education should make such a qualitative difference to the content of the right protected under Article 19(1)(g).

However, this issue raises a fascinating question about the role of legislative intent in constitutional adjudication. While Justice Radhakrishnan might well be correct in the construction of the legislative intent behind the 86^th Constitutional Amendment, he does not answer the question why the Supreme Court must consider such intent. While the court is yet to develop a coherent approach to the role of legislative debates and legislative intent in adjudication, a possible response to Justice Radhakrishnan could be that the Supreme Court need not refer to or be bound by the legislative intent behind the 86^th Constitutional Amendment and that it would be perfectly legitimate for the court to engage only with the text of Article 21-A in the context of contemporary circumstances. 

ICJ Nomination of Justice Dalveer Bhandari: Whither Indian Decision Making

Every few years, a political circus convenes at the United Nations to elect judges of the International Court of Justice. The process is politicized, and a failure to admit this would be naïve. At the same time, a running feature – common to all judges of the exalted ‘world court’ – has been a background, in the worst, and excellence, in the routine, in the field of international law, the substrate of the Court’s deliberations. Take the most recent addition to the Court’s celebrated list of members, Mr. Giorgio Gaja of Italy – previously an ad-hoc judge of the Court, member of the International Law Commission for two terms, Professor of International Law at the University of Florence and currently, Special Rapporteur for the second generation of the ILC’s work on responsibility.

I could reiterate the background of each judge presently at the Court to demonstrate a general standard of excellence in international law matters, but suffice it to say that the Statute of the Court itself labels them as the ‘highly qualified publicists’ (Article 38(1)(d)), accordingly rendering precedential value to their dissents.  

India has had its fair share of representatives at the ICJ; being one of twelve states with three of more judges at the Peace Palace. We were given the chance to build upon this impressive record a few months back, as political turmoil in Jordan led to the recall of Judge Al-Khwasaneh. This empty slot was filled by the General Assembly and Security Council in accordance with Article 4 of the ICJ Statute.

India, having offered its support to Jordan in the previous elections, was very well-placed to nominate a candidate to the ICJ, and so it did: Hon’ble Mr. Justice Dalveer Bhandari of the Supreme Court. Before I attempt to demonstrate the absolute absurdity attached to this choice, a little context would be helpful.

Candidates for the vacant post were invited by Security Council Resolution 2034 (2012), allowing recommendations to be made by National Groups in the Permanent Court of Arbitration. The Indian delegation at the PCA currently comprises retired Judges Kania and YK Sabharwal, along with senior advocate B. Sen (who themselves are required to have displayed a ‘known competency in matter of international law’). The final decision is left to this delegation, although Item 38 of the Third Schedule (under Rule 8) of the Government of India (Transaction of Business) Rules allows the Prime Minister’s Office to submit names for consideration. In this case, the PMO suggested Mr. P. S. Rao – former ad-hoc judge at the ICJ in the Malaysia-Singapore territorial dispute, member and Chairman of the International Law Commission, ex-chief of the Law and Treaties Division in the Ministry of External Affairs (as also principal legal advisor to that Ministry), member of the Insitut de Droit Internationale, Special Rapporteur for the ILC’s work on liability for a period of 9 years, agent for India at the ICJ in 2000, consultant for the WTO and so on.

Much to my shock, the Indian delegation at the PCA chose HMJ Bhandari for the post, overlooking Mr. PS Rao. At first instance, I told a friend, hoping to share my dismay. I was startled (at the time, though naively-so in retrospect) with his reply: “This is India– what did you think”. In my optimistic insistence that this was not (and could not) be the case, I began to rationalize this decision. Here’s what I found:

1.    Mr. B. Sen’s justification was this: “Looking at various criteria such as experience; a person who will be easy to get on international circle; good health and hard-working, we found Justice Bhandari the most suitable candidate among those who were interested”. He went on, maintaining the standard of coherence displayed in the earlier remark, “I have known him for many years, I knew he was a capable man”.

2.   In response to an RTI, the MEA had this to say: India’s “lobbying efforts and electoral strategy is essential a confidential process”, and thus, the question of why HMJ Bhandari was chosen lies outside the scope of the Act (CBSE v. Bandopadhyay, 2011, SC).

3.   Justice Bhandari’s background in international law and I quote from his profile on the Supreme Court website, which, due to the MEA’s reluctance remains our only source of information. (NOTE: appending the world ‘international’ to a domestic law project does not transform it into international law):

a.    Graduating in Humanities and Law on an international scholarship.

b.    Worked on an International Project “Delay in the Administration of Criminal Justice in India” sponsored by the United Nations.

c.    Executive Member of the International Law Association, India Chapter since 1994. Chairperson of the Delhi Centre of the International Law Association for several years.

d.    President, India International Law Foundation.

e.    A few references to Lectures delivered on Intellectual Property law, in “international fora”.

I will discard points (a), (b) and (e) summarily. Points (c) and (d) do seem to provide some justification for his nomination, but a closer look is more revealing: In this capacity as chairman and member of the ILA (a renowned institution engaging in the development of international law), HMJ Bhandari has neither researched upon, or written any substantive topic, discussion or paper on questions of international law through his tenure; although his count of Opening Speeches and Chief Guest mentions does merit a mention.

In fact, post-election, the Press Release by the ICJ (available here) itself, fails to list any reference to work done in the field of international law in a strong 9 page curriculum vitae. Instead, it includes references to Justice Bhandari’s judgment in Taj, several PIL matters dealt by him, an exhaustive list of lectures, and so on.  

With everything before us, the PCA delegation’s decision shocks me. We can always entertain a rationalizing exercise, to attempt to find a reason to defend HMJ Bhandari’s choice. But with an alternative in the frame of Mr. PS Rao, the futility of that exercise is evident. (this is capped by the MEA’s indefensible remark that a judge at the ICJ is to “above-all, protect national interests” (MEA, No. UI/551/06/2012)).

It pains to second-guess the choice of eminent jurists such as those currently occupying positions in the Indian PCA delegation, but the facts before us leave me no choice. For how else could one explain this absurdity? Perhaps, and I have encountered two particular replies frequently, this was a strategic decision and the final choice was based on considerations of ‘national interest’; or alternatively, the ‘Justice Bhandari is a really smart judge. He is very capable’ line of argument. I will explain why neither of these views is tenable: First, I do not deny the importance of political considerations, or larger questions of national interest. This, however, simply does not apply to this case because one, the decision here is made by the PCA Delegation (themselves in the dark about such national secrets as may influence these decisions), and not by the Government; two, the PMO itself recommended Mr. PS Rao; and finally, a Judge at the ICJ is not a national representative, but rather an independent legal functionary (a sequitur the MEA has sadly lost sight of).

Second, I do not doubt Justice Bhandari’s legal acumen. He is indeed a brilliant judge, a Judge of the Supreme Court of India no less. Neither am I in a position to comment on a Judge’s standing. Nomination to the ICJ, however, requires a smart and distinguished lawyer, a lawyer such as Justice Bhandari, who is ‘eminently qualified’ in questions of international law. While his standing in domestic law is undeniable, Government decision must be informed by reason and demonstrable rationale. The fact that Mr. Bhandari is in good health, or is hard-working, or that Mr. Sen has known him for several years as a capable man, quite simply does not meet the standard.

The law is a precise endeavour they say, and the same applies here – a judge may be well-versed with domestic legal traditions, but one assumes that a Judge at the International Court of Justice, the principal judicial organ of the United Nations, responsible for adjudicating on questions of international law (Article 38), would possess knowledge of international law! My tone, here, is not sarcastic, but one of exasperation, one that is repulsed by the closed-mindedness of the decision making process.  

But all set and done, I was asked a few days back: ‘Why do you care! As long as India has someone there …’ The question, here, is not just consequential – but rather, a thought that applies equally to all sectors of bureaucratic decision making in India; of focussing on the man, rather than his actions; his name, rather than his credentials; the form, rather than the substance. What strikes me is that such considerations are so overtly evident in the upper echelons of power, in decisions that expose India to the world.

India’s nomination was not uncounted though, with the Philippines nominating its Judge Feliciano – an international law jurist (to no one’s surprise, but perhaps the Indian PCA delegation) having chaired the WTO Appellate Body, and participated in several awards at the ICSID, ad-hoc investment arbitral tribunals amongst similar achievements. Oddly, I was glad that the Philippines had nominated an expert. In fact, a part of me hoped (against hope) that the Indian nominee is not elected, in the hope that this would reform, to whatever extent, the flawed fundamentals of decision making.

As I said, the process is political, and the General Assembly and Security Council were voting for the Indian candidate, rather than the particular individual. Indeed, given India’s recent resurgence in the international political sphere, the Indian candidate was extremely well-placed, and the record voting margin (122 in the GA, 13 in the SC) stands testament to this fact. In that sense, my post here serves no consequentialist purpose – but rather, is a thought of what could have been. 

I wish Justice Bhandari the best (as would all Indians), and look forward to reading his Separate or Dissenting Opinions. At the same time, his future actions as an ICJ judge should not exonerate the PCA delegation for its choice, and neither should his election.

In fact, in all probability, what compelled the delegation to disregard Mr. PS Rao’s nomination will remain a mystery. The only hope remains that this acts a wake-up call for the government, to introduce some coherence in its functioning; to infuse some logic into this madness.

(Guest Post by Raag Yadava, who is a student at the National Law School of India University, Bengaluru.)

Rahul Srivastava v. Union of India

Supreme Court yesterday dismissed the PIL filed by Rahul Srivastava, a student, questioning the continuance in office of  Justice Dalveer Bhandari, who has been nominated for the post of a Judge of the International Court of Justice. The hearing of the case has been covered in some newspapers today. (Another report is here.) The following is one more version of the proceedings, which is slightly different from what has been reported in the papers today. It may be read in addition to the newspaper reports. 


When Justice Kabir asked what was the public interest in the case, Prashant Bhushan, counsel for the petitioner explained that independence of the judiciary, according to the Advocates-on-Record judgment, required that there should be no interference from the executive in the matter of appointment of Judges. If that is so, how could a sitting Judge accept the help of the Government in actively canvassing support in the international fora for his judgeship in the ICJ was the question posed by Bhushan.  


When Justice Kabir did not agree with this argument, Prashant Bhushan said he realised that it was too late in the day to challenge Justice Bhandari's nomination, as the ICJ election was scheduled to take place the next day.  Therefore, he said he was keen on the second prayer of the petition, which wanted the court to lay down the norms for the future.  When Justice Kabir suggested  that he should then move a proper petition for the same, Bhushan insisted it was indeed a proper petition for that purpose.  If he moved a proper petition later, then the Court might say it was just an academic question; therefore, it was the right moment to examine this issue. Bhushan further suggested that the Court could adjourn the matter, rather than dismiss it.  At this point, it appeared as if Justice Kabir was favourably inclined to consider it. 


However, Justice Kabir made up his mind to dismiss it, when the Attorney-General Vahanvati reminded the Bench what signals it (the admission of the matter even for the future) would send to our efforts to elect Justice Bhandari the next day.  Bhushan then offered to withdraw the petition, because its dismissal would close the option of its being heard again later.   

An Era of Firsts

The website of the Supreme Court of India indicates that Justice Ranjan Gogoi was appointed to the Supreme Court on Monday, April 23, 2012. In my count, he is precisely the 200^th judge to be appointed to the Supreme Court of India – and in 2018, if everything else stays the same, and if the seniority norm remains sacrosanct, he will become the first judge from the Gauhati High Court, representing the North-Eastern states, to become Chief Justice of India [his profile has not been uploaded to the court's website yet, but media reports (see here, here, here, and here), and his profile on the website of the government of Assam, suggest that he was born in 1954, and was first appointed to the Gauhati High Court].

For the court, this seems to be an era of firsts, especially in terms of its inclusiveness – a high priority item for judicial appointments to the Supreme Court. It’s the first time two women (G.S. Misra, R.P. Desai) are serving on the court simultaneously. In 2009, Justice K.G. Balakrishnan became the first "backward" caste CJI, also the first CJI from the state of Kerala. It can be conjectured - although there are no publicly available data that support this claim - that three Muslim judges are serving on the Supreme Court of India simultaneously at present, a rare occurrence - perhaps the first of its kind. Only three other states, whose High Court judges have been appointed to the Supreme Court, have not yet had a Chief Justice of India to their credit: Andhra Pradesh, Rajasthan, and Himachal Pradesh. However, other things remaining the same, in 2014 Justice R.M. Lodha will become the first Chief Justice of India from the state of Rajasthan. So far, no judge has been appointed to the Supreme Court of India from the states of Sikkim, Chhattisgarh, Uttarakhand, or Jharkhand, so naturally, none of these states have had Chief Justices of India to their credit yet. The highest number of Chief Justices of India (together, nearly half of all the CJIs so far) have come from the states of Maharashtra, West Bengal, and Uttar Pradesh. The discerning reader will hopefully observe that I make no normative claims about the inclusiveness of the court, and leave that debate for another day. 

Incidentally, the Supreme Court’s present Chief Justice, S.H. Kapadia, is the first CJI to have been born in independent India, and his term perhaps signals the start of a new generation of Chief Justices. 

Some Reflections on Clerkships in the Indian Supreme Court

In recent years, the Supreme Court of India has gradually scaled up the practice of recruiting recent law graduates to serve as research assistants under the sitting Justices. The notification inviting applications for these ‘Law Clerk-cum-Research Assistant’ positions is usually sent to law colleges in December each year and students in their final year of legal studies (both LL.B. and LL.M. programmes) are eligible to apply for the same. As per the present practice, the Registry of the Supreme Court invites the short-listed applicants for an interaction with a committee consisting of two sitting Justices (usually in April or May) and the chosen applicants are then assigned to work under a sitting Justice. While law clerks usually serve for nearly a year (the cycle running from July to May) there have been instances where some have worked for longer or shorter periods with the consent of their supervising Justice. To take my own example, I served as a law clerk under the then CJI K.G. Balakrishnan for nearly two years, i.e. between July 2008 and May 2010. In this note, I would like to offer a few reflections on my clerkship experience with the hope that they might be of some use to those considering this as a transitory option before making definitive career choices.

From the perspective of law students, one of the tangible incentives for applying for clerkships is to boost their chances of pursuing higher studies at prestigious foreign universities. Some others apply with the hope that the clerkship experience will enable them to gain a better understanding of the judicial process before making a foray into litigation. While it is an oversimplification to view this option in purely instrumental terms, the above-stated motivations cannot be dismissed since pursuing a clerkship entails some opportunity costs especially when compared to other lucrative options in the legal services market. Needless to say it is up to the individuals involved to extract the most value from their short period of service. It is undoubtedly a great opportunity to observe the nuances of appellate litigation, decision-making and the institutional structure of our apex court.

Those who are familiar with the scheduling of cases in the Supreme Court are well aware of the fact that most of the Justices’ workload is attributable to the preparation required for initial hearings in cases (‘miscellaneous matters’) that are usually listed for Mondays and Fridays every week. On average, each bench has to process nearly 40-50 freshly instituted matters every week. It goes without saying that this is a laborious task that requires immense concentration and attention to detail. A large portion of the miscellaneous matters filed in the Supreme Court are dismissed at this preliminary stage, either without assignment of reasons or by way of short orders. It is only a relatively small portion of these miscellaneous matters which are admitted for a subsequent hearing on merits (‘regular hearing matters’). Even though the decision-making at this stage is made after hearing brief submissions by the lawyers appearing in Court, the Justices usually make up their minds about the merits of the case during the preparation time itself. It is in this context that the law clerks can be relied upon to prepare summaries of the materials on record and short memoranda on the contentious issues. Furthermore, the written submissions made by the parties at this initial stage are usually not very well fleshed out and hence the Justices can profit from able research assistance, especially to verify and search for applicable principles and precedents. While most Special Leave Petitions (filed under Article 136 of the Constitution) are easily dismissed for raising frivolous questions, occasionally the Justices encounter cases that frame important legal questions. It is mostly the cases of the latter variety that are admitted for hearings on merits.       

Apart from freshly instituted matters, there is also scope for reliance on law clerks when it comes to the regular hearing matters that are usually listed on Tuesdays, Wednesdays and Thursdays. At this stage, the lawyers appearing on behalf of the interested parties are involved in extensive oral arguments before the respective benches and the same are further supported through written submissions. While this is not the proper forum to comment on the inefficiencies of the current institutional practices pertaining to regular hearing matters, it will suffice to say that Justices usually gather enough material from the submissions made by the parties. In the process of writing substantive judgments, most of our Justices are also conscious about confining the basis of their decisions to the materials submitted during the hearings. Unlike Constitutional Courts in some foreign countries, most judges in our appellate courts are less likely to pursue their own research and rely on materials other than those cited by the lawyers who have argued before them. However, some Justices have been known to ask their assistants to prepare first drafts or notes on contentious questions. The involvement of law clerks in the preparation of substantive judgments can prove to be a game changer since they are more likely to consult academic writings as well as precedents from other jurisdictions that might have escaped the attention of those who have argued the case. In this sense, the generational difference between the Justices and their law clerks also corresponds to increasing familiarity with a wider array of resources for legal research. Law clerks are far more likely to be adept at using electronic databases for locating commentaries and precedents. At the same time, the expansion of inputs into judgment-writing can also attract the skepticism of practicing lawyers who might feel shortchanged if judgments travel beyond the submissions and cite materials that the latter are not familiar with. Regardless of such apprehensions, it must be reiterated that while the substantive decision-making is necessarily informed by the accumulated experience of the judges in each bench, the involvement of much younger research assistants in screening documents and submissions has created considerable efficiency-gains vis-à-vis preparation time as well as disposal rates. It would indeed be futile and counterproductive to point to the involvement of law clerks as a cause for concern about the quality and integrity of decision-making by our apex court.   

Law clerks are also frequently asked to prepare speeches or notes when Justices are invited to make presentations at academic conferences and public lectures. Most of these extra-judicial statements tend to dwell on themes such as improving access to justice, bench-bar relations, legal aid and the promotion of dispute-resolution methods such as mediation. The channels for learning are of course not confined to the tasks mentioned above. Apart from the broader understanding of judicial process, the clerkship experience also exposes one to institutional processes such as those related to filing of cases, listing of matters, the perceived impact of bench-composition on decision-making and the different methods of case-management adopted by the respective benches. The multi-bench structure of our Supreme Court has led to the creation of institutional dynamics that are quite distinct from apex courts in other countries which either tend to sit en banc (i.e. all judges sitting together to decide a case) or have fewer panels. Furthermore, there are also numerous opportunities to observe the country’s most prominent lawyers as they present arguments.

Unlike their contemporaries who begin as apprentices under established lawyers, law clerks usually do not have to face the unpredictable behaviour of clients and fellow lawyers involved in a case. While handling such uncertainties can be glorified as a rite of passage for a budding litigator, law clerks have to negotiate their way through the labyrinthine bureaucracy of the Court as they interact more closely with the personal staff at the residential offices of the Justices. Once in Court, law clerks often find themselves interacting with the security personnel and the staff at the judges’ library, often with comical consequences. Irrespective of these differences, clerkships offer the opportunity for deep and sustained engagement with cases that are heard on merits. Unlike a legal scholar who usually has to confine his/her analysis to the reading of the eventual judgment, a law clerk gets to see the records from the lower courts, the inputs made by the counsels for the interested parties, the courtroom dynamics and often gets to contribute to the decision-making process. All in all it is an experience that I would highly recommend for those interested in studying our judicial system in the long-run.

Guest Post by Sidharth Chauhan, who is currently a lecturer at the National Law School of India University in Bangalore. A longer version of the piece appeared on the blog, Bar and Bench.

  

Operation Polo: The Forgotten Massacre in Hyderabad?

I came across this disturbing bit of history (hitherto unknown to me) while reading William Dalrymple's The Age of Kali. It relates to the Indian Army's 'Operation Polo' in 1948 to end the resistance in Hyderabad and assimilate the kingdom into the Union of India. Allegedly, the Operation was accompanied by serious atrocities (including murders and rapes) of thousands. This is what Dalrymple has to say (pp 209-210):

I discovered later that it is in fact possible to make an informed estimate of the numbers killed in the aftermath of the 'police action'. For when reports of atrocities began to reach Delhi, Nehru 'in his private capacity', commissioned an unofficial report from a group of veteran Congressmen made up of two Hyderabadi Muslims who had prominently opposed the Nizam's rule and chaired by a Hindu, Pandit Sunderlal. The team made an extensive tour of the State and submitted their report to Nehru and Sardar Patel in January 1949. The report's findings were never made public, however, presumably because of its damning criticism of the conduct of the Indian army. It remained unpublished until a portion of it, smuggled out of India, recently appeared in America in an obscure volume of scholarly essays entitled Hyderabad: After the Fall.

The report, entitled On the Post-Operation Polo Massacres, Rape and Destruction or Seizure of Property in Hyderabad State, makes grim reading. In village after village across the state, it meticulously and unemotionally catalogued incidents of murder and mass rape, sometimes committed by troops, in other cases committed by local Hindu hooligans after the troops had disarmed the Muslim population. A short extract, chosen at random, gives the general flavour:

"Ganjoti Paygah, District Osmanabad:There are 500 homes belonging to Muslims here. Two hundred Muslims were murdered by the goondas. The army had seized weapons from the Muslims. As the Muslims became defenceless, the goondas began the massacre. Muslim women were raped by the troops. Statement of Pasha Bi, resident of Ganjoti: the trouble in Ganjoti began after the army's arrival. All the young Muslim women here were raped. Five daughters of Osman sahib were raped and six daughters of the Qazi were raped. Ismail Sahib Sawdagar's daughter was raped in Saiba Chamar's home for a week. Soldiers from Umarga came every week and after all-night rape, young Muslim women were sent back to their homes in the morning. Mahtab Tamboli's daughters were divided among Hindus, one is in Burga Julaha's home... "

And so on, for page after page. In all, the report estimates that as many as 200,000 Hyderabadi Muslims were slaughtered in the aftermath of the 'Police Action': an astonishing figure which, if true, would turn the 'police action' into a bloodbath comparable to parts of the Punjab during Partition. Even if one regards the figure of 200,000 dead as an impossible exaggeration, it is still clear that the scale of the killing was horrific. Although publicly Nehru played down the disorder in Hyderabad, claiming to the Indian representative at the United Nations that following the Nizam's officials deserting their posts there had been some disorder in which Hindus had retaliated for their sufferings under the [Muslim] Razakars [militia], privately he was much more alarmed. This is indicated by a note Nehru sent to Sardar Patel's Ministry of States on the 26th of November 1948, saying that he had received reports of killings of Muslims so large in number 'as to stagger the imagination' and looting of Muslim property 'on a tremendous scale' - all of which would seem to confirm the general tone of Pandit Sunderlal's report.

I also discovered this blog post discussing the massacres. I wonder whether this episode is already better known than I think, and I have just been too late to find out about. In any case, I could not locate the Sunderlal Report 'On the Post-Operation Polo Massacres, Rape and Destruction or Seizure of Property in Hyderabad State'. If it is not yet public, surely the government is bound to disclose it if an RTI application is filed, even if it was commissioned by Nehru 'in his private capacity'? Is the note he sent to Patel publicly available? Surely we need to know - the large-scale involvement of the state troops actively involved in the killings, if true, would put this case in a very different category from cases where the state 'merely failed' to protect the victims.