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to criticize the Indian authorities only because the accused have not had bail, although it is deplorable that anybody should be in jail for years and years while presumed to be innocent and not have a chance to be free. It is irreparable damage if they are acquitted.

But factually they can be acquitted five times in a row, they will still be in jail because they are keeping so many charges pending on the heads of the accused.

Mr. FRASER. I want to express my appreciation to you, not only for your report today but for your service in undertaking the mission to India. I see by your background that your interest in the subject has been very deep indeed. We very much appreciate your willingness to come and share your observations with us.

If you should come across additional information as the trial comes to conclusion that you can share with us, we would appreciate it very much.

Mr. SHEPPARD. I follow it as regularly as I can through various


Mr. FRASER. With that, we will adjourn this hearing. Thank you very much.

Whereupon, at 4:08 p.m. the hearing was adjourned, subject to call of the Chair.]



The Erosion of Fundamental Rights in India Today
(By Dr. Homer A. Jack)

1. THE YEARS 1975 AND 1976

"June 26, 1975, would join three other dates as landmarks in the nation's search for the good life for all her people."

So stated a large brochure published late in 1975 by the Embassy of India in Washington presumably for the American people. (1)1 The first date, however, of the history of independent India was August 15, 1947 when India took her freedom after a long struggle from the British. Mohandas Gandhi, the "father" of India, was stunned to witness the subcontinent partitioned and engaged in huge communal or religious massacres. He urged the Indian National Congress, founded in 1885 and the principal institutional architect of independence, not to assume political power. However, by then decisions in India were largely in other hands, chiefly those of Jawaharlal Nehru who became the first Prime Minister. At independence, Gandhi continued to attempt to lessen communal violence and himself was assassinated on January 30, 1948. For more than 15 years Nehru presided over India, which adopted its Constitution on November 26, 1949. Upon Nehru's death in 1964, Lal Bahadur Shastri became Prime Minister, but his tenure was cut short by his unexpected death in 1966. Then Mrs. Indira Gandhi, Nehru's daughter, became Prime Minister. Her Congress Party won a national election in 1967 and soon she presided over the split of the Congress into Congress (R)-for the ruling partyand Congress (0) -for "organization." The latter contained many of the defeated ex-leaders. The Congress (R) swept the "mid-term" polls in 1971 yet Mrs. Gandhi almost immediately faced a difficult period in the history of the subcontinent, with massacres in East Pakistan, a wave of a million refugees coming to India, and then the Indo-Pakistan War resulting in the creation of Bangladesh.

While the year 1972 found India depleted by the war, optimism ran high and Mrs. Gandhi had an enviable opportunity to pilot India to new heights of economic and social progress. Instead, stagnation and corruption set in on almost every level. The year 1975 was a crucial one for India and Mrs. Gandhi. A few key events were as follows:

January 3-Railway Minister L. N. Mishra died after a bomb explosion. March 2-Minister of State for Housing Mohan Dharia dropped from cabinet, partly for urging dialogue with J. P. (Narayan).

March 6-J. P. led a march of 400,000 persons to Parliament in New Delhi demanding the eradication of corruption.

June 12-The High Court of Allahabad set aside the 1971 election of Mrs. Gandhi on a petition filed by her opponent, Raj Narain.

June 26-A state of Emergency proclaimed by President Fakhruddin Ali Ahmad (on recommendation of Mrs. Gandhi), with the immediate arrest of many opposition leaders and press censorship imposed.

July 1-Mrs. Gandhi announced a 20-Point Economic Program.

July 4-The Government banned 26 extremist groups.

July 23-The Lok Sabha (lower house of Parliament) approved the proclamation of the Emergency.

November 7-The Supreme Court unanimously upheld Mrs. Gandhi's election to the Lok Sabha.

1 See appendix B for notes.


November 12-J. P. released from detention-on parole initially-after evidence became available that he was on the verge of death.

December 28-Seventy-fifth plenary of Indian National Congress adopted a resolution urging that the national elections (due no later than March 1976) for the Lok Sabha be postponed one year.

The year of 1976 thus began with strong pressures within the Government to continue the Emergency and postpone the national elections. Some of the key events early in 1976 were as follows:

January 31-Presidential Rule proclaimed in Tamil Nadu (Madras State), dismissing the legally-constituted state government, which had opposed Mrs. Gandhi.

February 4-The Lok Sabha voted to postpone for one year the national elections scheduled for March.

March 12-Presidential Rule proclaimed in Gujarat, after the state government fell on a confidence vote, the last State in effect opposed to Mrs. Gandhi. April 26-The right of habeas corpus during the Emergency denied by the Supreme Court.

June 16-MISA amended so that prisoners may be held for an additional year without being informed of charges against them.


"I trust it will be possible to lift the Emergency soon."

Mrs. Gandhi broadcast these words to the Indian people on June 27, 1975. Two days earlier President Ahmed had proclaimed the Emergency as follows: "In exercise of the power conferred by clause (1) of Article 352 of the Constitution, I, Fakhruddin Ali Ahmed, President of India, by this proclamation declare that a grave emergency exists whereby the security of India is threatened by internal -disturbance."

Article 352 of the Indian Constitution provides for an Emergency as follows: "If the President is satisfied that a grave Emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by proclamation, make a declaration to that effect." Such an Emergency would cease to be in operation at the expiration of two months unless approved by both houses of Parliament. An Emergency can be continued for six months at a time, but no more than for a total of three years.

Under the Indian form of government, the action of the President was taken on the recommendation of the Prime Minister. It is said that Mrs. Gandhi did not consult with most members of her Cabinet beforehand about declaring an Emergency, but only summoned them at 6:30 a.m., hours after it had been promulgated. In a broadcast on June 26, Mrs. Gandhi explained the situation: "The President has proclaimed Emergency. This is nothing to panic about. I am sure you are all conscious of the deep and widespread conspiracy which has been brewing ever since I began to introduce certain progressive measures of benefit to the common men and women of India. In the name of democracy it has been sought to negate the very functioning of democracy. Duly elected governments have not been allowed to function and in some cases force has been used to compel members to resign in order to dissolve lawfully elected Assemblies. Agitations have surcharged the atmosphere, leading to violent incidents. The whole country was shocked at the brutal murder of my Cabinet colleague, Shri L. N. Mishra. We also deeply deplore the dastardly attack on the Chief Justice of India."

Concluding the broadcast, Mrs. Gandhi said: "All manner of false allegations have been hurled at us. The Indian people have known me since my childhood. All my life has been in the service of our people. This is not a personal matter. It is not important whether I remain Prime Minister or not. However, the institution of the Prime Minister is important and the deliberate political attempts to denigrate it is not in the interest of democracy or the nation.. I should like to assure you that the new Emergency proclamation will in no way affect the rights of law-abiding citizens . . ."

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Both houses of Parliament met from July 22 to August 7, 1975 to consider and validate the Emergency. (While the Congress (R) party had a healthy majority, an estimated 30 Members of Parliament were in prison and could not attend.)

Speculation soon arose on how long the Emergency would last. In August, Mrs. Gandhi told The Saturday Review that she did not expect "that the present

Emergency situation will be unduly prolonged." She scoffed at those who "are saying that the measures we have been taking will never be revoked and that India can look forward to a totalitarian future." (2) However, at the annual meetings of the Indian National Congress in the closing days of 1975, a resolution was adopted urging that the Government continue the Emergency (and also postpone elections for the Lok Sabha). The excuse given was that the Emergency should be continued until "there is the fullest assurance" that the dangers from the forces of destabilization, which led to its proclamation, "have been effectively contained."

The Lok Sabha on February 4, 1976 after a tumultuous three-hour debate voted. to postpone for one year elections scheduled for no later than 18 March (when its five-year mandate expired). In a sense, this vote made the continuation of the Emergency inevitable, since one reason for not holding the elections was that any campaign would presumably require the release of detained Opposition politicians, including some Members of Parliament.


"Indira is India and India is Indira"

At the 1971 elections for the lower house of Parliament, the Lok Sabba, Mrs. Gandhi was re-elected from the Rai Bareilly constituency in Uttar Pradesh. She beat socialist Raj Narain by 183,309 votes to 71,499. However, Mr. Narain challenged her election in the Allahabad High Court. Several charges of corrupt election practices (under the 1951 Representation of the People Act) were brought against her. There were extensive, prolonged hearings, involving personal testimony by Mrs. Gandhi.

Justice J. L. Sinha ruled on June 12, 1975 that Mrs. Gandhi was guilty, under Section 123 (7), on two charges: 1-she used the services in the election campaign of Yashpal Kapoor, a government civil servant, while he was still in Government service and 2-she obtained the services of officers of the State Government for the construction of the rostrum and loud speakers on several occasions during her election campaign. Justice Sinha further prescribed penalties in the Act and ruled that Mrs. Gandhi should be barred from public office for six years. However, he ordered a stay of 20 days for the implementation of his decision, pending her appeal to the Supreme Court of India. The Justice also observed that she was an unreliable witness, having made contradictory oral statements to the Court.

The Opposition parties immediately demanded that Mrs. Gandhi resign. Groups outside her residence, on the other hand, chanted, "Indira is India and India is Indira." After several days, Mrs. Gandhi announced that she would remain in office while the conviction was being appealed. (She had earlier advised Party colleagues to quit their positions when similar corrupt practice verdicts were made against them.) On June 24. Justice V. P. Krishna Iyer-"vacation judge" of the Supreme Court-granted her a conditional stay of the order of the Allahabad Court instead of an absolute one, pending a decision of the full Court. In his judgment, Judge Iyer ruled that Mrs. Gandhi could not vote in the Lok Sabha or draw salary as a member.

Given this Court ruling, the Opposition increased its demands that she resign. This was climaxed by a huge rally in Delhi on June 25, led by J.P. Also there were Opposition strategy sessions to plan to bring her government down by a wide range of actions. Then on June 26 the Emergency was declared.

The subsequent Parliamentary and judicial action affecting her case can be summarized as follows:

1. The Parliament amended the Election Laws Act of 1951, to take effect retroactively. This changed the election laws so that Mrs. Gandhi could not be guilty for what she did in 1971. This had the effect of preventing the Supreme Court from confirming the verdict of the Allahabad Court.

2. The Parliament adopted the 39th amendment to the Constitution. This did at least three things: (a) placed disputes over the election of the President, the Vice-President, the Prime Minister, and the Speaker of the Lok Sabha beyond the purview of the courts; (b) rendered invalid all existing laws and court verdicts about the election of the Prime Minister or Speaker of the Lok Sabha, conferred absolute validity on such election, and directed the Supreme Court to dispose of current appeals and cross appeals with regard to such election in the

light of the above; and (c) banned judicial scrutiny of the election laws and the Maintenance of Internal Security Act (MISA).

3. The Parliament adopted the 40th amendment to the Constitution. This gave the President, Prime Minister, and State Governors immunity from criminal proceedings even after they laid down office and from civil proceedings during their term of office, in respect to acts done by them before and during their term of office. (The Supreme Court nullified the amendment in November.)

4. On November 7 the Supreme Court unanimously upheld Mrs. Gandhi's election and set aside the judgment of the Allahabad High Court. This action was ambiguously reported in the press to make it appear that the Court had overturned Mrs. Gandhi's conviction. The Supreme Court was asked to decide three issues: a-the validity of the amendments to the Constitution which sought to exclude the election of the Prime Minister from the jurisdiction of the courts; b-the validity of the amendments to the People's Representation Act, which made all the corrupt practices for which Mrs. Gandhi was accused retroactively innocent and demanding no penalties; and c-the judgment of the Allahabad High Court. By a unanimous judgment, the Supreme Court upheld the first two issues and, under the circumstances, did not go into the merits of the third-the judgment of the Allahabad High Court.

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"We are striving to take a country of 600 million people from one age to another not only to provide better physical and material life for them but also to insure full development of their personalities. This cannot happen without some curbs." -Mrs. Gandhi to Parliament, Jan. 8, 1976. A substantial part of the Emergency, but not technically connected with it, is the 20-Point New Program for Economic Progress. (This was originally a 21Point Program, but "strict economy in Government expenditure" found in early versions was later dropped.) This Program was first enunciated by Mrs. Gandhi in a radio broadcast on July 1, 1975-less than one week after the proclamation of the Emergency.

Following are brief excerpts from this broadcast:

"I am going to speak to you today about some economic programs which the Government proposes to follow. Some of them are new. Others were set forth earlier but require to be pursued with greater vigor and determination. Please do not expect magic remedies and dramatic results. There is only one magic which can remove poverty, and that is hard work sustained by clear vision, iron will, and the strictest discipline...

"The first and foremost challenge is on the price front. In the last five days, the prices of many articles have shown a downward trend. This trend will have to be maintained. To this end, Government will take a series of steps to stimulate production, speed up procurement and streamline the distribution of essential commodities

"Our outlook in regard to Foreign Exchange resources is reasonably satisfactory . . . State Governments have already been asked to advise dealers to display lists of prices and statements of stocks. Hoarders and those who violate the rules will be severely punished.

"This anti-inflation strategy has to be continued... Government departments and public enterprises have new orders to cut out inessential expenditure.

"The vast majority of our people live in the rural areas. We must implement ceiling laws and distribute surplus land among the landless with redoubled zeal

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"The program of providing housing sites in rural areas will be vastly expanded. Laws will be introduced to confer ownership rights on landless laborers who have been in occupation of house sites of their landlords over a certain period. .. "The practice of bonded labor is barbarous and will be abolished . . . "We propose to take action by stages to liquidate rural indebtedness . . "Agricultural labor is among the worst exploited sections of our society. A review of the existing legislation on minimum wages for agricultural labor will be undertaken and action will be initiated for suitable enhancement of minimum wages, wherever necessary.

"We must go all out to increase production. Water and power hold the key to higher agricultural output . . .

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