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 It remained unpublished until a portion of it, smuggled out of India, recently appeared in America in an obscure volume of scholarly essays entitled Hyderabad: After the Fall.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.

Continuing commentary on the RTE Act and SC judgment

I worried that the round-the-clock coverage of Agni V would detract from the much needed focus on the RTE Act, but today's papers provide some reassurance on this score.  The Hindu features an insightful op-ed by Professor Krishna Kumar, a former Director of the NCERT.  After endorsing the approach of the majority judgment, Kumar focuses on the perspective of teachers:

"For well over a century, India has treated its teachers like messengers who need not know or understand the message themselves. They occupy the lowest rung in the ladder of authority and status in the system of education. The younger the age-group they teach, the lower their own status and salary. That is why the nursery teacher has no status at all, and no university-level training course, which might explain why certain practices are good and others are bad, exists for nursery professionals.

Primary level teaching is similarly regarded as a drill devoid of intellectual effort. Delhi University stood alone when it started offering a four-year course called Bachelor of Elementary Education (B.El.Ed.) in the 1990s. Though this course has produced outstanding teachers, the Delhi government still denies them the status of trained graduate teachers. In its recent verdict, the Supreme Court characterised education “as a process involving many actors,” starting the list with “the one who provides education,” namely, the teacher. The list then goes on to include the owners of institutions, parents, the child, society, and the state. This clarity of analysis runs through the entire verdict which should become a compulsory reading for administrators and teachers alike if RTE is to reach its ambitious goals."

Kumar addresses the concerns raised by owners of unaided educational institutions and concludes as follows: 

"Indeed, this may provide to private schools an opportunity to set their own priorities in order. Over the last few decades, a culture of extravagance has engulfed many of India's elite private schools. Many private schools now uninhibitedly flaunt their five-star luxuries, ranging from expensive furniture and marble floors to air conditioning and CCTVs. When you visit one of these schools, you wonder whether you are in a hotel. Their plea for sympathy over the inadequacy of state subsidy for 25 per cent free seats is a bit cloying.

It will be nice if they shift their anxiety to the challenges that RTE throws at everyone concerned with children's education — teachers, trainers, parents, state and society. For teachers, the critical issue is to absorb the new curricular and pedagogic perspective which focuses on learning in place of marks. RTE asks for continuous and comprehensive evaluation, and a ban on corporal punishment and private tuition. These are tall demands and our systemic preparation to meet them has barely begun. Search for short cuts has ominously surfaced in matters like the selection of distance education for teacher training and dependence on NGOs for monitoring. The state and the university system cannot any more neglect the task of regulating teacher training institutes, most of which are now in the private sector."

The need for concerted action by a host of actors has been emphasised by other commentators.  Writing in the Hindustan Times a few days ago, Vaibhav Purandhare emphasised what parents will have to do on their part: 

"But it is not these questions of logistics that will hold up the Act; answers to them can be found, after consultation with all groups involved (Mumbai, in fact, has an excellent model of egalitarian education in the form of many Jesuit institutions). It is the attitudinal approach that's the key to ensuring integration, and this approach begins, develops and ends at home.

Young parents have been brought up in an environment in which the idea is to compete stiffly, get ahead of others and emphasise the distance travelled from others in terms of social, educational and economic status to the extent possible. Having itself exploited the benefits of free, state-sponsored education, this class abuses Nehruvian socialism which, in the first place, gave their families a toehold in society and helped them create the groundwork for all the success ahead. Will this class, which gives its children iPads and all the new toys to hit the market, also tell them that those who do not have iPads are equals and must be treated as equals? Will parents tell their kids that we ourselves, too, were, not too long ago, in the same situation that the poor are in today? Will Mumbai's even older privileged classes, who are loath to share their elite clubs and gymkhanas with the rest of society, not resist this invasion of their world? And will we, having moved as a society from the deification of poverty to the other extreme of vilification, not commit the crime of patronising the kids who will come to our schools in an attempt to show ourselves as civilised?

Worrying as the prospect is, here is also an opportunity for a genuine social revolution. What we could do not do in the 65 years since Independence, we could do in just a few years if parents approach this revolution in schooling correctly. We could take a leap from feudalism to democracy, from an essentially unequal society to a genuinely transformative one, and we can bridge the gap between Bharat and India Shining. Such an opportunity to wipe out inequality, at least to some extent, does not present itself to all generations."

Further analysis of the RTE judgment

Anup's stimulating post on the RTE judgment sets out some of the salient issues at stake, and has initiated a discussion on what is likely to be regarded as a significant case in Indian constitutional jurisprudence.

This post on the PRS blog provides some more basic information about the judgments delivered in the case. Today's Indian Express features a column by Pratap Bhanu Mehta which analyses the judgments in part. However, I think it fair to say that Mehta's analysis focuses less on the reasoning of the judgments, and more on the practical issues and the political economy that underlie a discussion of the legal issues at stake. Indeed, Mehta's claim is that the judgment is poorer for not focusing on the "real issues" at stake in the debate. Rajeev Dhavan's analysis on the judgment is available here on the India Today website. His reasoning seems cryptic at times, but fits with Mehta's analysis with a focus on the practical impact of contemporary policies of education.

Guest Post from Anup Surendranath: Evaluating The Right to Education Judgment

In the Society for Un-Aided Private Schools of Rajasthan v. Union of India, the Supreme Court has by a majority of 2-1 upheld the constitutionality of The Right of Children to Free and Compulsory Education Act, 2009. Chief Justice Kapadia Justice Swatantra Kumar formed the majority and Justice Radhakrishnan dissented. The central issue before the Court was whether the State, under s.12(1)(c) of the Act, could require unaided schools (minority and non-minority) to set aside 25% of their seats for children between 6-14 years from disadvantaged sections. All 3 judges agreed that such a requirement on unaided minority schools violated the protection granted to religious and linguistic minorities in Article 30(1). On the question of whether it would be constitutional to impose such a requirement on unaided non-minority schools, the majority found it to be permissible whereas Justice Radhakrishnan declared that a such requirement violated Article 19(1)(g) of the Constitution.

The manner in which the two opinions reach their respective conclusions on unaided non-minority schools is fascinating and I hope to briefly discuss some of those themes in this post.

1. Could the State have imposed this requirement on unaided non-minority schools through an ordinary law?

It is on this point that the disagreement between the majority and minority opinion is at its sharpest. Justice Radhakrishnan is of the view that since the scope of the protection enjoyed by unaided institutions under Article 19(1)(g) was clarified by a 11-judge bench in T.M.A Pai before the 86^th Constitutional Amendment was passed by Parliament, the absence of a specific provision in Article 21-A giving the State such a power would preclude the imposition of the 25% requirement through an ordinary law.

The response of the majority, speaking through Chief Justice Kapadia, is that the judgment in TMA Paicannot be used for such a reading because it was a decision that defined the scope of Article 19(1)(g) in the context of reservations in private higher education institutions under Article 15. The relationship between a law enacted under Article 21-A and Article 19(1)(g) according to the majority cannot be controlled by the interpretation given in TMA Pai.

The legislative history of Article 21-A finds prominence in Justice Radhakrishnan’s dissent. Indira Jaisingh argued that the removal of the specific provision [draft Article 21A-3] that prohibited the State from imposing any obligation on unaided schools was indicative of Parliament’s intention. Justice Radhakrishnan’s argument is that Parliament’s decision not to include a specific provision giving the State the power to regulate unaided non-minority schools in such a manner in light of the decision in TMA Pai leads to the opposite conclusion.

2) 25% of seats as a condition for recognition of schools.

For the majority, it is a reasonable restriction in the interest of the general public for the State under Article 19(6) to require schools to set aside 25% of their seats for children from disadvantaged section as a condition for granting recognition. However, for Justice Radhakrishnan it is impermissible to attach such conditions for granting recognition. Though the decisions in TMA Pai and Inamdar certainly permit the State to regulate certain matters in unaided non-minority institutions through the process of granting recognition, the requirement in the Right to Education Act, 2009 certainly falls outside the scope of such permissible regulation.

3) Nature of Balancing

The nature of balancing in the majority’s opinion between the mandate of the State to enforce the right to education under Article 21-A and the rights of the schools before the Court under Article 19(1)(g) leaves much to be desired. The majority opinion states that requirement to admit 25% of Class I students from disadvantaged sections cannot be seen as a constitutional transgression because the aim is to remove barriers for children who cannot access schools and not to restrict the freedom guaranteed under Article 19(1)(g). It does not tease out the implications for balancing the rights in question when stating that the Court is taking a child-centric approach in this case while it was an institution-centric approach in TMA Pai and Inamdar. It certainly does not explain why the State has greater lee-way in restricting the freedom under Article 19(1)(g) while providing for special measures in the context of primary education (to a wide range of beneficiaries) than when trying to provide reservations for OBCs and SC/STs in unaided higher educational institutions in the pre-Article 15(5) days. Undoubtedly a constitutional response can be constructed but unfortunately the majority opinion does not offer it.

4) Horizontal Application of Rights and the Use of Comparative Materials

One of the central concerns in the case was whether the State could not transfer its obligation to provide free and compulsory education to private parties. Justice Radhakrishnan refers to the arguments raised on the horizontal application of rights in the Indian Constitution and the State having the power to place such a requirement on private parties through a combined reading of Articles 21-A and 15(3). Justice Radhakrishnan is of the view that there can be no positive duties imposed on private parties in the realisation of socio-economic rights and the role of private parties is limited to negative duties to not infringe or take away the guaranteed rights. In support of his argument that the positive obligation to implement socio-economic rights is solely on the State, Justice Radhakrishnan draws upon the Supreme Court’s jurisprudence on the right to food, health, shelter etc. in addition to foreign cases like Soobramoney, Grootboom and TAC from the South African Constitutional Court and the decision of the Tribunal Supremo de Venezuela in Cruz del Valle Bermudez.

The majority, however, is of the view that since the text of Article 21-A contemplates the enforcement of the right to primary education through a law, the State has the power and the discretion to determine the contents of the law, subject to satisfying the test of reasonableness. For the majority, the Act clearly satisfies the test of reasonableness under Articles 19(1)(g) and 14, and therefore there is no obstacle in placing a positive obligation on a private party while realising the right to education.

I do hope that we will have the opportunity to discuss these and other aspects of the case in far greater detail in the coming days.

Houses for Brahmins, Marrying Specially and Apolitical Politics

Three issues we like to track on this blog:

1. Housing discrimination: This advert has sparked some debate on the internet. It has an image of a billboard advertising flats 'only for Brahmins'. Regular readers will know that our country still shamefully permits housing discrimination on the grounds of religion. However, section 4(viii) of the Protection of Civil Rights Act 1955 prohibits the enforcement against any person of any disability with regard to 'the construction, acquisition, or occupation of any residential premises in any locality, whatsoever' on the grounds of untouchability. The problem is that while a housing society only for Brahmins may be inspired by untouchability, because it exlcudes not just dalits but also other 'touchable' castes, it may not be caught by this provision. From a plain reading of the statutory provision, our law seems to prohibit discrimination on the grounds of untouchability, but not caste or religion per se. Do readers know of any judgment which has expanded the scope of this provision?

2. Special Marriage Act: Arun had done a fantastic post on the problems with the Special Marriage Act, and how interfaith and irreligious couples find it difficult to navigate its bureaucratese. It seems the government may finally be moving to fix the problem and simplify the process. Let us keep our fingers crossed.


3. Apolotical Politics of Team Anna-Kejriwal: I have expressed sceptical views about the movement against corruption earlier on this blog. In this well-written piece, Mathew Idiculla explores the politics of being anti-political and the dangers it poses to democracy.

Indian Litigation Rates as a Measure of Well Being

I co-authored this paper with Ted Eisenberg and Sital Kalantry (both Cornell Professors) entitled "Litigation as a Measure of Well Being: The Threat of India's case backlog" that is just up on SSRN. It was profiled in today's Mint and the Wall Street Journal Blog. Building off the work of Menaka Guruswamy and Aditya Singh, and Kannan Kasturi, we show that counter to the common idea that more litigation is a bad thing that at least in India it is actually a sign of development. We demonstrate that Indian states with higher civil litigation rates also generally have higher GDP per capita. In fact, a state's Human Development Index score correlates even better with higher litigation rates. In other words, high litigation rates in India are a sign of prosperity and overall well being, not a sign of societal decay.

However, we also demonstrate that the growth of litigation in India is potentially being threatened by backlogged courts. Courts with higher backlog have had proportionately less growth in litigation rates, and overall litigation rates do not seem to be rising as one would expect with the country's growth. If further economic growth requires efficient courts, India may be in trouble.

Shedding Light on India's Rulemaking

In today’s Business Standard, I have this piece which argues the current system for creating rules and regulations in India is dysfunctional – leading to inefficiency and corruption, as well as potentially undermining civil liberties. To help remedy this problem it proposes making the rulemaking process more transparent, encouraging public participation, and creating an independent auditing body to run cost-benefit analysis on proposed rules.

Rulemaking affects almost every facet of Indian public policy, and yet receives relatively little sustained attention from the press or the Indian academy. India does seem to be undergoing an administrative law revolution (from the right to information act to the lok pal bill), systematically reconfiguring the relationship between citizens and the state. Rulemaking should not be overlooked.