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We are convinced that the actions of the Indian Government are incompatible with Article 30 of the Universal Declaration of Human Rights which prohibits the use of any of its provisions, including that which allows the limitation of rights and freedoms under certain circumstances, to "engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein." We believe that the governmental policies and actions described in this communication have this aim and certainly this effect.
The Indian Government's policies and actions are inconsistent with international standards of human rights as enunciated in numerous expressions of international consensus, including the Declaration on the Protection of All Persons from Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Standard Minimum Rules for the Treatment of Prisoners, the Commission en Human Rights' Draft Principles on Arbitrary Arrest and Detention, and the International Convenant on Civil and Political Rights, which was unanimously adopted by the General Assembly in 1966 and is now in force having received the required number of ratifications from states in every region of the world.
This fundamental human rights instrument prohibits in Article 4 derogation from obligations except in case of public emergency "which threatens the life of the nation"-and even in such case, only "to the extent strictly required by the exigencies of the situation." Moreover, the measures taken must "not [be] inconsistent with their other obligations under international law . . .,” and in particular, must not derogate from the Covenant's prohibitions against torture or cruel, inhuman or degrading treatment or punishment (Art. 7), punishment under retroactive criminal laws (Art. 15), and the right to freedom of thought and conscience (Art. 18).
We submit that the Government of India, in proclaiming a national emergency and justifying on that basis the suspension of fundamental freedoms guaranteed in the Convenant, has violated the letter and spirit of Article 4. We cannot accept, on the basis of the information available, that the alleged public emergency, on the basis of which it has imposed measures suspending the freedoms of its people, "threatens the life of the nation." The measures they have taken far exceed in our view, "the extent strictly required by the exigencies of the situation." Nor, according to available information, has the Government of India refrained from violating the Covenant's prohibitions against torture or cruel, inhuman or degrading treatment or punishment, punishing persons under retroactive criminal laws, and respecting the right to freedom of thought and conscience.
In this communication, we shall set forth principles of the Universal Declaration of Human Rights and describe the last year's legislative and executive action of the Government of India which violates these principles. Exhibits are appended consisting of first hand and secondary documentation of the consistent pattern of gross violations which necessitate this communication.
I. ABROGATION OF THE RIGHT TO LIFE, LIBERTY, SECURITY OF PERSON AND DUE
Universal Declaration of Human Rights
Article 3. Everyone has the right to life, liberty and security of person. Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him,
Since the Emergency Proclamation of June 26, 1975, the regime, under the Government of India Act, and under the Maintenance of Internal Security Act, adopted in 1971 and thereafter strengthened by several amendments ("MISA"). the Government has essentially arrested anyone it has wanted to arrest and has held such persons for as long as it has wished without charges and without the benefit of the ancient writ of habeas corpus which it summarily suspended for all MISA detainees.
The Government's intention to remove judicial obstacles to the course of action indicated by the Emergency Proclamation was revealed by sweeping arrests of political opponents beginning with the Proclamation and continuing to date. It was also revealed by the Presidential order of June 27, 1975, which suspended the rights to petition the courts to enforce fundamental rights under Indian
Constitution Articles 14 (equality before the law), 21 (protection against arrest without being informed of the grounds therefor) and 22 (duty to produce arrestee before a magistrate within 24 hours). Two days later, on June 29, 1975, the Government adopted its First Amendment to MISA. That Amendment, made retroactive to June 26th, deprived persons arrested under MISA of the right to be told the grounds for their detention. On July 15, 1975, the Government adopted a Second Amendment to MISA which provided that no MISA detainee had any right to personal liberty by virtue of natural law or common law.
Threatened with the possibility of judicial action to challenge the need for such draconian measures, the Government on August 1, 1975, caused Parliament to approve of an Amendment-the 38th-to the Constitution of India. The Amendment deprived the courts of jurisdiction to review any claim that the emergency powers had been misused.
The effect of the Presidential order of June 27, 1975, and of the 38th Amendment is to deprive citizens of recourse to the courts as to MISA matters. Not only is the writ of habeas corpus unavailable, but as a result of the Fourth MISA amendment, adopted on October 17, 1975, the judiciary is not entitled to disclosure of the grounds of detention and therefore cannot review whether MISA has been properly invoked.
To close the circle and immunize the executive lawlessness from judicial scrutiny, the Government, by Constitutional Amendments 39 and 40 sought to deprive the courts of the power to rule upon disputed elections of persons holding high office and extended to the Prime Minister absolute immunity from criminal or civil process for acts or omissions occurring prior to and during tenure of office.1
The targets of these repressive acts have been principally opponents of the Government, ranging in political persuasion from the left to the right. It is reliably reported that among those arrested and detained have been at least three former cabinet ministers, 11 members of the upper house of Parliament, about 20 members of the lower house, the most prominent leaders of almost every opposition party and some dissenters within Mrs. Gandhi's own Congress Party. Reliable estimates of the number of political prisoners now in jail in India range between 30,000 and 75,000.
Through the guise of enacting emergency laws authorizing arbitrary action against and treatment of any person, the Government of India has in one short year created the following conditions in India.
Persons arrested need not be advised of the reasons for their arrest. Persons detained are not brought before a magistrate promptly, the requirement of arraignment within 24 hours having been repealed.
Detainees are not brought to trial within a reasonable time. Under MISA they can be held for up to one year without bail, without notification of charges, without arraignment or trial.
Since January, 1976, persons released can be re-arrested and detained under the same circumstances.
Many prisoners are deprived of visitors and some are held in solitary confinement and not permitted counsel.
The right of Habeas Corpus has been suspended.
The pervasive policy of arresting those who speak or act against the Government continues to dominate the political situation in India. Earlier this year, hundreds of supporters of the state governments of Tamil Nadu and Gujurat were arrested when the Administrations of those states were terminated by Presidential decree.
These facts recited in this portion of our communication are documented in the annexed exhibits. Annexed hereto as Exhibit A is a report by Dr. Homer A. Jack carefully prepared for the World Conference on Religion and Peace after an investigation in India. Annexed hereto as Exhibit B is Amnesty International's list of 78 persons who were arrested and are being detained because of their political views.
II. TORTURE AND MISTREATMENT OF PRISONERS
Universal Declaration of Human Rights
Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
1 The courts in November, 1975, held Amendment 40 void.
There are many reliable reports that the Government of India has resorted to torture, brutality, starvation, and other mistreatment of prisoners arrested during the last year. Not only is this a clear violation of Article 5 of the Declaration of Human Rights but it is also a human rights violation which is so egregious that the International Covenant on Civil and Political Rights prohibit any infringement of the right even in a time of public emergency.
A case of India's mistreating prisoners was recently reliably reported by Anthony Lukas in the New York Times Magazine of April 4, 1976.
"One area scheduled for demolition [by the Government] last fall was a warren of tiny stalls near the Jama Masjid, Delhi's biggest Mosque.
A social worker who had long labored in the district got wind of the demolition plan and protested to Sanjay about the Government's lack of concern for relocating merchants. Two nights later, there was a knock on the social worker's door at midnight. Eight policemen burst in, arrested and carted him off to jail, where he spent nine days. He was later released-but only after he had been paraded through the Jama Masjid area in chains, with the police revealing him. So far as I could determine, his only crime had been to dare to differ with the Prime Minister's son."
There is strong evidence that the Government of India has in the last year adopted as official policy more extreme forms of mistreatment and torture as well. In a recent argument before the Bombay High Court, a Government attorney is reported to have contended that the Government could starve prisoners or even shoot them without legal challenge.
Annexed hereto as Exhibit C is a 14 page report supplied by Indians for Democracy, an organization of Indians residing in the U.S.A., who report having received it directly from the Lok Sangharsh Samit 2 (People's Struggle Committee) in India. This document describes instances of brutal torture of prisoners named therein. Exhibit D, an article by an Indian national and law professor Ved P. Nanda based on a recent visit to India also corroborates the Government of India's inhuman treatment of prisoners. Additional reports of torture are set forth in Dr. Homer A. Jack's report (Exhibit A) at pages 17-18:
"Torture has been reported in the Tihar jail in Delhi and also in Bihar, West Bengal, Uttar Pradesh, and Haryana. Dr. Subramanian Swamy, a member of the Rajya Sabha, claimed in January that 8,000 prisoners had been tortured since the state of Emergency was declared. (12)
"Prof. Ved P. Nanda also writes about eye-witness accounts of torture: "The police applied crude means either to extract a confession to a nonexistent plot against Indira Gandhi or to seek information concerning the whereabouts and next moves of the organizers of the underground movement. The devices for torture which are being used in police stations and jails in India are as varied as they are inhumane and revolting. The victims who talked with me related incidents where they or other political prisoners were hung upside down; were stripped naked and severely beaten with shoes, steel rods, and gun butts; had burning candles applied to their bare soles, which were then punctured with nails; had chili powder smeared into their noses and other parts of their bodies; were kept awake while icy water was thrown on them on cold winter nights; were starved and even denied water; had rods tied to their necks, creating an intolerable strain on the spinal cord. The doctor I met was not personally tortured. However, while he was in jail as a political prisoner, illegally detained on trumped-up charges, he had treated more than 20 prisoners who, he said, must have been 'mercilessly beaten . . . A member of the Indian Supreme Court Bar Association showed me a resolution adopted by that organization which condemned police atrocities and harassment of attorneys defending Opposition members.' (13) These and other instances of torture are being investigated by international human rights organizations."
Article 5 of the Universal Declaration of Human Rights is unequivocal. Nothing in the Universal Declaration permits the use of torture under any circumstances. The International Covenant on Civil and Political Rights explicitly so provides. Accordingly, the barbarous practice of torture by the Government of India, by itself, is ample justification for this communication. The Declaration on the Protection of All Persons From Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment confirms the continuing validity of this principle.
2 The Lok Sangharsh Samiti (People's Struggle Committee) is composed of the four principal opposition parties, Jan Sangh, Congress (o), Socialists, Bharatiya Lok Dal.
III. SUPPRESSION OF FREE EXPRESSION, PRESS, ASSEMBLY AND THE RIGHT OF
Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20. (1) Everyone has the right to freedom of peaceful assembly and association.
Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
The exercise of the freedoms of expression, press and assembly have been effectively disallowed by the Government of India. Although Article 19 of the Constitution of India grants the right of freedom of speech and expression (among other rights) they have been suspended. Not only have persons been arrested and detained as described above for voicing opposition to Government programs but strict censorship has been imposed on the Indian press.
In July, 1975, the Government promulgated Censorship Guidelines. These are annexed hereto as Exhibit E. In substance, these Guidelines prohibit the publication, without prior censorship, of opposition speeches in Parliament, reports of details of court matters, names of detainees and their places of detention, demonstrations against the government and matters which may bring the government into hatred or contempt. The Guidelines even are construed as prohibiting quotations from Gandhi, Nehru and Tagore. The censors bar the publication of anything the Government finds objectionable or embarrassing.
In December, 1975, three executive ordinances were promulgated to strengthen the Government's control of expression. The first prohibits publication of matter which would "excite disaffection against the constitutionally established government." The second ordinance repealed the immunity of the press in reporting parliamentary proceedings. The third dissolved the Press Council of India, which had been an independent agency created to preserve journalistic standards and to protect freedom of the press.
In January, 1976, Parliament approved a bill known as The Prevention of Publication of Objectionable Matter Ordinance. This bill provides that the new system of strict censorship will survive the end of the Emergency. Objectionable matter is defined as that which is "likely to bring into hatred or contempt or excite disaffection toward the Government, and thereby cause or tend to cause public disorder . . ." Prohibited also is matter "defamatory to the President of India, the Vice President, the Prime Minister, the Speaker of the House or the Governor of a State." Any violation of the censorship laws is a criminal offense. Journalists have been fined for printing prohibited material and the Government has demanded a deposit of 1,000 rupees as security against the publication of proscribed material.
Members of Parliament are reported intimidated by fear of arrest, thus dampening parliamentary debate. Opposition members have often absented themselves during debates, thus facilitating the passage of repressive legislation proposed by the Government.
Fear of arrest has also curtailed both public debate and private political discussion among students, intellectuals and others traditionally interested in political and social matters.
Pursuant to the Emergency Decree and the suspension of Article 19 of the Constitution, freedom of assembly is also severely curtailed. No more than five persons are vermitted to assemble, which means that protest marches, demonstrations and rallies are illegal. This is yet another means of stifling the rights of citizens who differ with the Government. Moreover, whatever illegal demonstrations may occur from time to time cannot be reported in the press under the censorship laws, so that an appeal to conscience in the tradition of Gandhi is rendered impossible.
It is our view, based on careful study of the evidence that a United Nations investigation is warranted. It is evident that the people of India have no recourse but to appeal to the conscience of the world; all domestic remedies have been effectively severed by Parliamentary or court action. We therefore respectfully request. Your Excellency, that the United Nations undertake an investigation or study of the facts in accordance with ECOSOC Resolutions 728F and 1503. We believe that such an investigation or study will be an important step toward assuring observance of the U.N. Charter and the fundamental rights and freedoms of the people of India.
With the assurance of our highest respect.
ROGER N. BALDWIN,
Honorary President. JEROME J. SHESTACK,
Officer and Director.
[From the New York Times, March 5, 1976]
80 Americans Appeal to India to Restore Fundamental Rights1
(By Paul Grimes)
More than 80 Americans, most of them widely known, are issuing a joint appeal today expressing distress at repression in India and calling for the restoration of fundamental human rights there.
The statement is the first formal expression of concern by a substantial number of Americans to restrictions imposed by the Government of Prime Minister Indira Gandhi.
The restrictions were imposed under a state of internal emergency that was proclaimed in India last June 26.
Organizers of the appeal described it as a one-time "ad hoc" statement of the feelings of American individuals, not of an organized group.
SPECTRUM OF OPINION
The signers represent a spectrum of political, academic and other opinion, The names of some appear frequently on petitions; the names of others rarely if ever do.
The appeal was organized primarily by three persons: Dorothy Norman, a biographer of the late Prime Minister Jawaharlal Nehru, Mrs. Gandhi's father; Sidney Hertzberg, a former correspondent of The Hindustan Times of New Delhi, and Ved Mehta, author and staff member of The New Yorker Magazine. Mrs. Norman and Mr. Hertzberg were long active in the now-defunct India League of America, which, while Britain ruled India, helped muster American opinion for independence. Mr. Mehta, who was born in India, recently became a United States citizen.
What motivated the organizers most, Mr. Hertzberg said, was Mrs. Gandhi's decision early this year to postpone for at least a year the general elections that had been scheduled to be held in India this month.
The three-paragraph statement says:
"We are Americans concerned with maintaining and furthering human rights, and our concern extends to all people throughout the world. Consequently, we are distressed by the loss of fundamental human rights in India following the proclamation of a national emergency there on June 26, 1975. Thousands of critics of the Government have been arrested without charge and without even the right of habeas corpus. The press has been put under strict censorship and Government control. Now the emergency has been extended and national elections have been canceled.
"We deplore these events, especially in India, because there democracy was established after a long struggle for freedom led by some of the greatest con
1 1976 by the New York Times Co. Reprinted by permission.