government, if it so chooses, can starve a prisoner to death and yet there is no right in a citizen to approach the courts for any judicial

review.

It was after this disastrous judgment that we lawyers who were doing our best to fight for political freedom and democracy by finding out some loopholes in Mrs. Gandhi's Draconian laws decided that all legal and constitutional battles back home are at an end and the fight must now take on a new dimension.

In a situation like this, I suppose there are only three choices which are open to those who do not wish to surrender to sullen silence, and are determined to carry on some kind of active struggle for the restoration of Indian democracy.

The three choices are that you should either get arrested and remain indefinitely in jail or go underground and resort to violence and the third choice is to leave the country and work from without. Each individual must necessarily make his own choice according to his own potential and assessment of the circumstances. I may sound a bit of a coward, but I have made the third choice and that is why I am here in this country today testifying and burning my bridges behind.

The first result of my testifying before you is going to be that my passport will be canceled, perhaps tomorrow and I will have no means of getting back home-perhaps if I got back home I will get into jail. That is an available alternative. I have enjoyed this alternative and at the moment I am here as a voluntary political refugee. That is my qualification for testifying before you.

Mr. Chairman, in the letter of invitation which came from your committee, you had asked me an express question. The question was how far is it necessary for an emergency to be proclaimed or any fundamental rights to be curtailed to enable all or any economic policies of the Indian Government to be executed or implemented.

Now, fortunately on this topic, Mr. Chairman, I have written an article which covers this very topic and instead of my repeating what I have said, may I hand this in for the purposes of your record?

This article is my contribution to the Journal of the Bar Council of India which carries a regular feature, the chairman's page.

Mr. FRASER. Without objection, we will incorporate the contents of that in the record.

Mr. JETHMALANI. The theme of this article is that the governments claim that an emergency is essential for executing it's economic policy is a complete and total fraud. The Constitution of India confers adequate legal and constitutional powers on the government to push through all points of the highly publicized 20 point program of which we have heard so much after the emergency.

In fact, the conclusive evidence that no emergency is necessary for any social or economic reform is provided by the prime minister herself. In January of 1975 when we were commemorating the 25th anniversary of our Constitution, she herself went on record in the Central Hall of Parliament and said that the Constitution of India is a charter for a peaceful social revolution. She had nothing to say against the Constitution.

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For all economic reform, the only fundamental right which perhaps requires drastic control is the unqualified right to hold property. By a series of amendments to the Constitution, the fundamental right of property had for all practical purposes been eliminated from the Indian Constitution by the year 1958. It survived only as a husk or as a paper right.

The only protection that the right of property has from the Indian Constitution was that if you have made your money or any material assets by honest labor and after paying your taxes to the state and if it does not exceeed a certain meager limit, then only it can be taken away on payment of just compensation.

No just compensation was payable if property was taken away for many a public purpose; such as a rich man's estate might be taken away for building a hospital. Nothing was payable by way of compensation, except what the state voluntarily chose within the limits of its economic capacity to give the person whose property was expropriated.

Now, therefore you see that the only surviving rights in the Indian Constitution were the rights of personal liberty, expression of thought, the right of assembly, the right of practicing your religion and the right of equality. To my mind it is absurd for anyone to suggest that these require curtailment in the interest of any social, political, or economic reform.

If these rights have to be curtailed, they have to be curtailed because you want to destroy democratic dissent, because you want to put yourself above all criticism, and because you do not wish to hear things which are unfavorable. I just said, Mr. Chairman, that as far back as January 1975 she had praised the Indian Constitution. Even on the day on which she proclaimed the emergency, that is the 25th of June last year, she did not say that she was proclaiming the emergency because it was necessary for any economic policies to be executed. What she said was that she was bringing in the emergency to deal with the political opposition which had become vocal and an opposition which was an incitement to mutiny.

Now, this is unfortunately something to which many people have succumbed, this kind of propaganda line and I find to my regret that the very distinguished witness whose testimony has been recorded yesterday, Reverend Mathews-I had the opportunity of going through the transcript of his testimony in the few minutes that I had before I came in here-has fallen a victim to this propaganda line. I hope I shall be able to contradict some of the assertions in the testimony of Reverend Mathews which are manifestly untenable.

You will recall that only 13 days before the declaration of emergency, that is, on June 12 in one of our states, Mrs. Gandhi's party suffered an electoral defeat. Mrs. Gandhi was compelled to order an election in Gujarat. She would not hold those elections and was quite content to rule the state by presidential decree, which means her own decree.

But the opposition gathered a lot of momentum. Mr. Moraji Desai, a very revered politician and an 80-year-old man in the west of India and in the east Jayaprakash Narayan who all his life preached equality of wealth were the focal points of this opposition. These

two forced her hands and compelled her to hold elections. She pumped millions of rupees into the campaign and on June 12, the combined opposition won and an opposition government had to be installed in that state.

Incidentally, throughout the country that was the one state where democracy prevailed and where democrats from throughout the rest of India could congregate and speak in public meetings; that state government refused to arrest people merely because they criticized the central government. The Allahabad High Court in her home state delivered a judgment disqualifying her from public office and unseating her from Parliament; which means that she had to give up her Prime Ministership. This disaster also befell her that very momentous day, June 12.

It is after 13 days from then that she clamped down this emergency upon the country. To a lawyer as to a layman this evidence is conclusive that the emergency was proclaimed merely to get around the effect of these two disastrous events in her life, rather than to execute any ameliorative policies. I have in great detail analyzed the provisions of the Indian Constitution and showed that there is nothing in the Indian Constitution which poses an obstacle to any of the items in her 20-point program.

Then, Mr. Chairman, there is something which I am ashamed to say, but I must say and say with the utmost frankness; her actions after the emergency are further corroborative evidence of her true designs. We have the 41st amendment to the Indian Constitution which has just passed the upper house of our Parliament. That constitutional amendment confers immunity on the Prime Minister, whoever the Prime Minister is, from a criminal prosecution for the whole of the Prime Minister's life in respect to all offenses committed by a Prime Minister, either before he became a Prime Minister or during his tenure of office.

This is a very bizarre way of removing poverty.

Now, Mr. Chairman, if you do me the honor of turning to the sixth page of my statement, I would like you to take note of three important transactions in which the Prime Minister is manifestly involved.

One Nagarwalla, imitating Mrs. Gandhi's voice, telephoned to the cashier of the State Bank in Delhi and obtained from the cashier, one Malhotra, a sum of about $80,000 and walked away with the cash. The implications of this incident are obvious. The implication was that the Prime Minister has access to bank money, which did not find any reflection in the regular accounts of the bank; that this money was withdrawable by the Prime Minister by telephonic instructions. Someone imitated the voice of the Prime Minister-a man at thatand the huge cash was handed over to him by bank officials. Nagarwalla was arrested with the cash, but the nature of the investigation was hushed up. He was brought to court by the police one day, pleaded guilty, and in a trial lasting a few minutes received sentence and was marched back to jail. Soon he was found dead in prison. The governmental explanation was heart failure. An inquest was held into his death, which is compulsory under our statutes. A police officer, one Kashyap, who was in the know of the findings, leaked out to the

press that the inquest was leading to interesting results. Kashyap was also found dead. The cause of death assigned was heart failure. At his funeral one of his subordinates broke down and said that though his boss was dead he was alive, and he knew the truth. The next day he was run over by a car. Malhotra became a respectable member of Mrs. Gandhi's Congress Party. Despite opposition attempts to know the truth, the truth has never been told.

This evidence is very important. The object of the very unusual constitutional conferring of immunity on the Prime Minister for past offenses speaks volumes and adds to the already damaging nature of the evidence against her personally.

The next scandal about which I don't wish to bother you which has appeared in most of the American newspapers concerns her son who has suddenly skyrocketed to the position of a millionaire. Until a couple of years ago all that he was known for was for some of his youthful scrapes involving drinking, stolen cars, and women. Time and again the opposition had raised this matter in Parliament. Her son, Sanjaya, was suddenly heading a huge car manufacturing industrial complex involving an investment of $10 million. Choice farmland of about 300 acres was provided by the Government of the State of Punjab at bargain prices. Fifteen hundred farmers had to be evicted from this land. Major shareholders were rich people, most of them under threats of criminal prosecutions and therefore susceptible to blackmail. A leading Indian journalist, Rajinder Puri, publicly wrote that never before in the history of India has corruption been abetted, approved, and practiced by a Prime Minister so brazenly as in this case. Time and again the opposition raised this matter in Parliament but she managed to scotch debate, aided by a steamroller majority. No satisfactory explanation of Sanjaya's assets is forthcoming. The promised car has not been made and Sanjaya has abandoned the project, to become the next Prime Minister in succession to his mother.

Today the Defense Minister of India carries this young man around; and at every gathering, whether it is of army officers or whether it is a common public gathering, at every public appearance, in fact, he is introduced as the future leader of India. He heads the youth movement of the Congress Party, which is no more than a gang of tough hoodlums on whose instructions anybody can be arrested in any part of India.

The third incident is still more fantastic. Her railway minister, one Misra, who had helped her to suppress a strike of railwaymen, was killed by a bomb explosion. Some arrests were made and in judicially recorded confessions three of the arrested men confessed to the murder. The CBI, the Central Police Force, now under Mrs. Gandhi's personal control, then effected the arrest of some others. The persons arrested earlier were released. The CBI told the court that the earlier confessions had been falsely secured by the local police. The newly arrested persons are alleged to belong to a religiopolitical sect which has been clamouring for the removal of the corrupt men in Mrs. Gandhi's cabinet. The prima facie evidence implicating Mrs. Gandhi is not as strong in this instance and at present the matter is under investigation by a commission.

Now, therefore, it appears to me that the object of this emergency is merely to crush the opposition and the last straw on the camel's back is the statement which she made on the anniversary of the emergency and it has appeared in the Los Angeles Times only the day before. She told the gentlemen of the press that the opposition in "my country" has been subdued but not vanquished and therefore the emergency must continue.

Truth has a very uncanny habit of leaking out and it leaked out even from her. Even on this occasion she made no pretense that the emergency is necessary for the purpose of pushing forward any economic reform.

There is in operation a regime of strict censorship of the press. In the face of a very severe censorship, it is impossible for anyone in the city of Bombay to know what is happening 100 miles away from the city. You might hear a most curious example. I am appearing before the Supreme Court in Delhi. Right across two blocks away a riot was going on in which a few persons including police officers were killed. Nobody knew in the Supreme Court Building that the riots were going on. This is the kind of censorship which prevails.

Another point of interest, Mr. Chairman; as I told you I write the chairman's page for the Bar Council of India. This one is a page which has nothing to do with politics except that it is a dissertation on the duty of people to speak truth under all circumstances. It contains quotations from our great book, the Gita. It contains quotations from Jawaharal Nehru and you can see the work of the Government censor. All these dotted portions which you find throughout on any page are struck out by the censor. Sometime he strikes out even a portion of a line and I had to publish this by printing at the top that the dotted portions have been removed by the censor.

Incidentally, it is an offence under the Defense of India Rules to indicate on any publication that it has been interfered with by the Government censor. I took the risk. I took the chance that any judge would declare it ultra vires.

I would like to present this too, Mr. Chairman.

Mr. FRASER. We will accept that for the record.1

Mr. JETHMALANI. You are aware of the disastrous judgment of the Supreme Court. It has been commented on in this country and there is an editorial comment by the New York Times under the caption of "Fading Hope in India."

It truly reflects my own views. Perhaps I am commiting contempt of court at the moment. All this is unintelligible to any lawyer except perhaps a lawyer, who works for the Government and this is the death knell of all constitutional and legal democracy in the country.

Mr. FRASER. Do you want that submitted for the record as well? Mr. JETHMALANI. Yes, sir.

Mr. FRASER. We will accept that.2

Mr. JETHMALANI. Incidentally at the moment she is institutionalizing the new power which she has taken up. Amendments to the Constitution are in the offing. These amendments were proposed about 2 months ago and were found obnoxious by the bar, particularly the