1975, and all civil liberties were suspended, many Margis were placed in preventive detention and Ananda Marga was among the twenty-six Indian organizations banned. All Ananda Marga activities were prohibited and all funds and property of the movement confiscated. No accurate estimate exists of the number of Margis arrested or still detained.

At the present time, Ananda Marga is still forbidden in India. It is ironic that the only country where it is prohibited is that where the movement was created.

III. HISTORY OF THE SARKAR PROSECUTION AND TRIAL

(a) Arrest and committal hearings

Mr. Sarkar's arrest on charges relating to the murder of defecting avadhutas took place in Patna on December 29th, 1971. Specifically, he was accused of conspiracy and abetment to the murder in 1970 of six former members of Ananda Marga.

Four other persons were arrested simultaneously: Sarveshvarananda, an avadhuta, Sarkar's general secretary; Satyananda, another avadhuta; and two Ananda Marga workers: Barun Kumar Mukherjee and Pavitra Kumar Roy. Sarveshvarananda and Satyananda face the same charges as Mr. Sarkar while the remaining two are accused of the actual murders. Two other Margis allegedly involved absconded and have not been found.

It took almost five months after their arrests-until May 5th, 1972-for formal charges to be laid against the five accused.

The pre-trial or preliminary hearings lasted from June 26 to November 22, 1972. Madhavananda gave evidence for seven days on behalf of the prosecution and was subjected to nine days of cross-examination. All accused, including Mr. Sarkar, testified and denied the charges. The presiding magistrate, even though noting that there were "several probabilities in this case including the proba bility of the correctness of the defence version" and despite the "inconsistencies, probabilities, contradictions, omissions, interestedness, etc." of the prosecution, stated that the law did not require at this stage the prosecution to prove its case beyond shadow of doubt. He ruled that a sufficient prima facie case had been made out to justify committal to trial.

The defence attacked this committal order. Nine months later, on August 22, 1973, it was quashed by the Patna High Court because Madhavananda's pardonas we have seen, the legal prerequisite to the validity of the testimony of an accomplice-was improperly granted. However, the accused were kept in jail and this technical defect was cured by the granting of a new and valid pardon in February 1974. New committal hearings began in June 1975 and continued until December of that year. The accused were then committed to trial once more.

(b) The trial itself

As I said, the trial is still in progress and has been going on in somewhat desultory fashion for almost ten months. It began on December 22nd, 1975, before Patna District Court Judge Radha Ballbh Singh. In India there are no juries in criminal cases.

The presentation of evidence is terminated, argument has been started and should conclude by November of this year. Judgment should then follow within a few months.

It should also be noted that the accused stand trial only in relation to six murders.

Charges in relation to the other alleged killings are either pending or have not yet been laid, confronting the accused with the inevitable but ominous prospect of facing a further series of trials whether or not they are acquitted in this case.

The prosecution began its evidence with its star witness, Madhavananda, who repeated his story, and again claimed to have acted under the orders of Mr. Sarkar. He again admitted participating in eighteen actual murders between July 1970 and March 1971 and added that he had intended, or planned, to commit another fifty.

In cross-examination, Madhavananda acknowledged that he had been pardoned only for the six murders mentioned in the current prosecution and that he was awaiting trial on the others. He admitted knowing that he might be hanged for these other murders and said: "I am prepared to be hanged if the law desires." Despite a very lengthy cross-examination, he steadfastly denied concocting his testimony or tendering fabricated proof.

After several delays and postponements, the trial resumed on March 24th, 1976 and on the 31st another key prosecution witness, Sarkar's private secretary, Vishokananda, was quoted as testifying that Mr. Sarkar had expressed the desire to establish "through militant revolution and violent methods" a moral state ruled by moralists.

Vishokananda added that to Prabhat Rainjan Sarkar moralists meant "those who blindly followed his principles and were ready for sacrifice". He also stated as some other witnesses had said, that Mr. Sarkar claimed to be a divine incarnation of Lord Shiva and of Lord Buddha. He asserted that one Sambodhananda had told him in August 1970 that the killings had taken place under Mr. Sarkar's orders. This piece of hearsay evidence is characteristic of much of the prosecution's evidence.

On April 20th, the case was adjourned to May 3rd due to the illness of Judge Singh. On May 19th, another avadhuta, Tadgatananda, was reported as testifying for the prosecution that Mr. Sarkar had aimed at capturing political power through armed revolution to be achieved through the V.S.S. whose sole function, according to him, was collecting arms and ammunition and protecting Ananda Marga activities. He further accused the V.S.S. of operating para-military training camps.

Another witness for the prosecution, former avadhuta Prafulla Dev Nath, alias Krishnananda, testified on May 30th that Mr. Sarkar had told him that the killing of the defecting avadhutas was justified as they were police agents, members of the Communist Party-Marxist, working against Ananda Marga and leaking out organizational secrets on the outside.

Further examples of this type of questionable hearsay evidence can be found in the testimony of Mr. Sarkar's wife, Uma, alias Marga Mata, and of the former Ananda Marga worker, Anil Kumar Sarkar, alias Amarendra Kumar. Mrs. Sarkar, who surprisingly was called to testify against her husband, reportedly told the court that she "was convinced" on the strength of what had been told to her by Vishokananda-mere speculation wrapped in double hearsay that her husband had ordered the killing of the defecting avadhutas. However, she admitted that when she asked her husband about the murders, he denied any involvement. As for Amarendra Kumar, he is said to have testified on July 3rd, that he had been told by Tapas Kumar Banerjee, one of the two absconding accused, that Mr. Sarkar had ordered the abduction and the killing of defectors.

One of the more surprising witnesses was a former Margi, unsuccessful politician, and current journalist, called Nawal Kishore Sahay. This witness is the author of several virulent anti-Ananda Marga pamphlets, two of which were published in October and December 1975 by the Ministry of Information and Broadcasting of the Government of India. While denying any special animosity towards Ananda Marga, he described its leader as a "perverted megalomaniac". He stated that Ananda Marga had taken a political turn and had participated in the 1967 general election (in which he himself was a defeated candidate) and in the 1969 mid-term elections. He described the Proutist Bloc of India (P.B.I.), set up in 1969, as the organization created to run the political activities of Ananda Marga. According to the witness, P.B.I. got its money from the Ananda Marga relief funds. It was controlled by Sarkar.

It is this type of evidence, not even remotely relevant to charges of murder and conspiracy to murder, which open the proceedings to the general suspicion of their being used for political purposes and to discredit the movement. The intrinsic spiritual merits, or demerits, or the political virginity of Ananda Marga, have little bearing on whether the accused in fact conspired to commit certain murders or did perpetrate these killings. It is also somewhat difficult to understand the relevance in this type of criminal case of testimony to the effect that a particular religious or spiritual movement had or appeared to have electoral proclivities.

Certainly the legal issue in the case is whether Anandamurti conspired to kill dissenters and not whether he had political ambitions or fancied himself to be a divine reincarnation!

Many more witnesses for the prosecution were called to present various types of proof: technical evidence, scientific evidence, identification of the victims or of the accused, and corroboration of various peripheral points. But it cannot be stressed enough that the only substantial testimony appearing to implicate the accused directly is that of Madhavananda. That evidence was not corroborated.

In the later summer all the accused including Mr. Sarkar, testified and categorically denied every one of the allegations of the prosecution, including any participation in or connection with the murders and any involvement in a plot to overthrow the government. In fact, one of the accused, Sarveshwarananda, testified that he was asked in March 1972 by one of the prosecution witnesses, Vishokananda, to join in a conspiracy with Mahdavananda to falsely implicate Mr. Sarkar, Vishokananda also reported to Sarveshwarananda that he was living with Mr. Sarkar's wife. When Sarveshwarananda refused vehemently, Vishokananda warned him that he would implicate him too. Another accused, Satyananda, claimed to have been approached similarly by Vishokananda to implicate Mr. Sarkar. On his refusal he was threatened with death. It was also alleged that Mrs. Sarkar was plotting to set up a rival organization.

For the reasons which I will explain later on, no other defense witnesses were, or could be, called.

IV. CONCLUSIONS

The questions I have tried to answer are the following:

(a) Were there excessive delays in bringing the accused to trial?

(b) Is the accused's right to instruct freely counsel of his choice restricted by lack of funds, by the risk of arrest for counsel, or by lack of free and confidential communications between lawyer and client?

(c) Is the trial being conducted according to acceptable and reasonable rules of justice?

(d) Is it possible, in the present political context of India, for the accused to have a fair trial?

(a) Delays in bringing the accused to trial

There is no doubt that the protracted proceedings in the present case create a very onerous burden on the accused and on defence counsel. It is also quite probable that in other countries, whether they have the same British-based system of criminal justice or not, the same proceedings could have been concluded more rapidly. But both from an examination of the records and from personal observation, it would be difficult to argue that, given all the circumstances (and in particular the hunger strike of Mr. Sarkar, the slower processes of justice in India, and the very considerable latitude allowed by the trial judge in their examination to both prosecution and defence counsel) the delays were deliberate, or designed to damage the defence, or such as to cause an injustice. Admittedly, the prolonged detention of the accused without bail constitutes a heavy hardship for them but it is not unusual in equivalent or even more progressive systems of justice for criminal trials to take several years and for the accused to remain in custody when capital charges are involved. This is a highly deplorable-and perhaps incurable-state of affairs but that should be no reason to single out the Sarkar trial for particular criticism..

It might also be noted that the lawyer leading for the prosecution, Mr. Prem Shankar Gupta, expressed forcefully to me the view that the trial would have long since been finished had it not been for what he considered to be the dilatory tactics of the defence. While not necessarily agreeing with his description of the defence strategy, there is no evidence of unusual delays (except perhaps during the period between the original arrest in December 1971 and the formal charges in May 1972) which are imputable to the prosecution. If anything, the prosecution seems most anxious to terminate the case. However, with hearings which sometimes last less than one hour a day and with numerous prolonged (and perhaps inevitable) adjournments, it would be rash to expect a speedy conclusion of the case.

(b) Right to instruct counsel freely

One fear which was expressed in the West in connection with the defence was that there was undue interference with the confidential communications between defence counsel and their clients. Both from personal observation and from conversations with the two senior defence attorneys, Nageshwar Prasad and B. K. Banerjee, I have concluded that the accused have reasonably free and confidential access of their lawyers, both in prison and in court. In prison, the lawyers can meet the accused privately although under visual surveillance. This is not unusual. As for the courtroom, the accused are not shackled and seem to be able to roam freely from the box to the defence table to speak to counsel, exchange documents, and discuss the evidence.

The issue of defence funds is more serious however. The accused are apparently destitute and all the funds and assets of Ananda Marga have been confiscated or frozen by the authorities. There are no funds available to pay for the expenses (i.e. indispensable copies of transcripts and documents) and fees of defence counsel. In such prolonged proceedings and of which the end is not even in sight this is particularly grave. As we saw, the trial was interrupted twice to permit the defence to try and raise funds. Formal and informal attempts to persuade the Indian authorities to allow foreign sympathizers of Ananda Marga to contribute funds to the defence have met with complete official inaction.

I have been informed yesterday that the Indian Government has remained adamant in refusing permission for defence funds from abroad to be paid. In fact, Mrs. Ghandi apparently wrote to Sir Harold Wilson, the former British Prime Minister, that if the accused had no money, the Government was ready to appoint and pay lawyers for the defence. It is rather incredible that the very Government which is trying to destroy the accused and the Ananda Marga movement would also want to arrogate to itself the task of defending them and proving their innocence. If there is one case where the total independence of the defence bench is indispensable, this is it.

A copy of my formal report, which I file herewith as an exhibit, was forwarded to the Indian authorities by the International Commission of Jurists with a strong recommendation that the Government authorize remittance from abroad of funds for legal fees. The request is quite recent and I am not aware of any reply, but frankly, I am not overly optimistic.

This situation places an intolerable burden on the defence bench, and particularly on the two very senior counsel representing the accused. The alternativecourt-appointed defence lawyers for obvious reasons is totally inacceptable in this type of case. If the Indian Government wants to avoid the accusation of trying to stifle the defence by starvation, it should either release solely for defence purposes sufficient quantities of the confiscated Ananda Marga assets, or permit under similar control the payment of lawyers from sources abroad. There is really no justification for the present situation which smacks of bad faith.

There is also little doubt that Ananda Marga's defence counsel are watched and followed. Some observers in India say they owe their apparent immunity to the eminence of Messrs. Prasad and Banerjee who are among the country's senior practitioners. But the uncertainty adds to the pressure on the defence. (c) Rules as evidence and conduct of the trial

The trial appears to be conducted generally in accordance with British rules of evidence. Witnesses are called by the prosecution and are then subject to thorough defence cross-examination. Presumably the same principle applies to witnesses called by the defence. Judge Singh seems fairly liberal and objective in his handling of objections. The defence appears to enjoy the fullest latitude in cross-examination of prosecution witnesses. The relationship between prosecution and defence counsel is courteous and in fact they sit together on the same bench facing the judge. If senior defence counsel has to be absent, there is a gentlemen's agreement with the prosecution that no important witnesses 'will be called.

It would also appear that Mr. William T. Wells, Q.C., of the British Bar, has been allowed to assist the defence and will participate in the final argument. Nothing deserving of criticism could thus be observed in the actual conduct of the proceedings by Judge Singh.

(d) Defence difficulties due to the political climate in India

The political connotations of this trial are inescapable. They are apparent in the testimony of some witnesses whose evidence appears to be designed more to discredit Ananda Marga than to implicate the accused in the commission of a criminal offence. They are also evident in the manner in which the Indian authorities make use of the trial to attack at every opportunity the motivations and conduct of Ananda Marga and of P. R. Sarkar.

Reading the Indian press and official comments about Ananda Marga, as well as listening to some of the witnesses called by the prosecution, one cannot avoid the conclusion that a governmental witchhunt has been instituted against anyone associated with Ananda Marga. Nothing favourable to Ananda Marga seems to be permitted to appear in the press.

In this connection, it is highly significant that on January 29th, 1976 the State Censor issued a confidential Order No. BC/2/76-PAT addressed to all accredited correspondents representing Indian news organizations and foreign agencies, newspapers, television and radio, ordering that "all news, comments (including editorial comments), rumour or other reports relating to the Court proceedings against Sri P. R. Sarkar alias Anandmurtiji and all other Anandamargies . . . shall be submitted for scrutiny and shall not be published without permission in writing."

Apparently, however, censorship has been somewhat relaxed recently and I was told by defence counsel that the recent press reports of the defence evidence and defence arguments were presented more or less accurately in the Indian press.

The trial is thus taking place in a judicial vacuum, its fairness threatened by government denunciations of Ananda Marga, by the exercise of untrammelled arbitrary powers under the Emergency Rules, and by the enforced silence of the press and of public opinion.

Although inside the courtroom the somewhat stilted rites of justice continue to be performed in the finest British tradition, on the outside-in Kafkaesque contrast-the police state extends its wide-ranging tentacles. Fear is rampant, and justifiedly so. And it is this fear which presents the single biggest obstacle to a fair trial for Mr. Sarkar and his co-accused.

For in the authoritarian climate of India today it is virtually impossible to find witnesses willing to brave the authorities by testifying on behalf of the accused. Indeed, many Margis are either in detention, or in hiding. Even if they could be found, such witnesses are said to be utterly afraid to come forward. Their testimony would expose them almost certainly to arrest. In other words, the accused not only have arrayed against them the entire power of the Indian police establishment, but even if they had all the funds necessary to prepare an adequate defence, it is highly unlikely that they could find, or if they found them, could produce, witnesses willing to testify on their behalf. Fair trials in a dictatorial framework are difficult to conceive and probably impossible to achieve.

CURRICULUM VITAE

1. Admitted to the Bar of the Province of Quebec in 1959 and still a member thereof. Member of the Bars of Montreal and of St. François. Member of the Canadian Bar Association.

2. One of the senior partners in the lawfirm of Robinson, Cutler, Sheppard, Borenstein, Shapiro, Langlois & Flam, 800 Place Victoria, Suite 612, Montreal, Quebec.

3. Legal counsel to numerous Canadian Royal Commissions of Inquiry, both at the Federal and Provincial levels: Royal Commission on Bilingualism and Biculturalism, Commission of Inquiry on Health and Welfare, legal supervisor of the Commission of Inquiry on the Status of the French Language and on Linguistic Rights in Quebec, etc.; Research Fellow of the Human Rights Division of the United Nations.

4. Author of more than thirty legal essays and books.

5. Former counsel to Canadian House of Commons' Commission of Inquiry. 6. Former President of the Canadian Civil Liberties' Union.

7. Former member of the Federal Advisory Council on the Status of Women. 8. Member of numerous professional, literary and cultural associations.

9. Widespread experience as trial lawyer in criminal, civil rights and constitutional cases at all levels, including the Supreme Court of Canada.

10. Observer at trials for Amnesty International, International Commission of Jurists (Geneva), and International League for Human Rights (New York). 11. Lecturer at various universities in a number of legal areas.

Mr. FRASER. Thank you very much.

Could you give us the date of your visit?

Mr. SHEPPARD. I was there in June of this year. As I state in my report I will never forget my stay in Patna. The Indian police had a great interest in my presence, I must say. I described the gory details in my report to ICJ. I can assure you your CIA is a much more efficient organization than the Indian CBI. Again, it illuminates the situation.