APPENDIX 2

LETTER TO PRIME MINISTER GANDHI FROM HANS EHRENSTRALE, DEPUTY SECRETARY GENERAL OF AMNESTY INTERNATIONAL (LONDON)

AMNESTY INTERNATIONAL, London, England, April 30, 1976.

Her Excellency Mrs. INDIRA GANDHI,

The Prime Minister of India,

Office of the Prime Minister,

New Delhi, India

YOUR EXCELLENCY: On June 26, 1976 it will be one year since the President of India declared a national emergency. Amnesty International understands that in June 1975 the Government of India believed it was facing an exceptional situation which threatened the life of the nation, and that the emergency measures it subsequently took, though they severely curtailed civil liberties, were seen by the authorities as allowable under the constitution. However, while the economic reforms contained in the "20 point program" announced by the Indian government immediately after the emergency declaration have been widely approved, amendments to the constitution and legal enactments have been introduced which limit civil rights to a degree far greater than that regarded as in accordance with international legal norms.

Amnesty International recalls with respect that Indian representatives at the United Nations General Assembly in 1948 were strong advocates of the then draft Universal Declaration of Human Rights. More recently, in 1975, a representative of India was Acting Chairman of the Fifth United Nations Congress for the Prevention of Crime and the Treatment of Offenders, when the Congress adopted the draft declaration on the protection of all persons from torture or other cruel, inhuman or degrading treatment or punishment. In view of the prominent role which India has played in the field of human rights promotion and protection, we feel encouraged to present to you some questions which arise from those measures now in force to restrict human rights in terms of the June 1975 emergency, and which, as you know, reflect deep concern internationally. In raising these questions, Amnesty International is motivated only by its statutes, which direct the organization to work for the observance of the provisions of the Universal Declaration of Human Rights.

The strict censorship which has been in force since June 1975 has limited the free flow of information about events in India. We are therefore writing to you to clarify whether the human rights position, as it has been reported to us and set out below, is correct. Amnesty International would welcome the opportunity to discuss these points with government officials. As long ago as July 16, 1975, we wrote to the Minister of Foreign Affairs proposing that an Amnesty International delegation should visit India in order to obtain accurate and first hand information from government officials about the context, scope and duration of the measures taken to curtail individual freedom since June 1975.

1. SUSPENSION OF SPECIFIC CONSTITUTIONAL RIGHTS

Amnesty International seeks the Government's views regarding its program to re-instate constitutional safeguards for civil rights.

In the days following the emergency declaration, the President suspended the right of citizens to apply to the courts for the enforcement of those fundamental rights preserved by the constitution, which guarantee equality before the law (article 14), protect the life and property of citizens (article 21), protect citizens against arrest and detention without being informed of the ground for arrest (article 22) and require arresting authorities to produce persons before a magistrate within 24 hours of arrest (article 22). In January 1976, the President suspended further the rights of freedom of speech and expression, and the (214)

right of peaceful assembly and association, laid down in article 19 of the constitution. Censorship of the press was introduced at the time of the emergency.. If this is an accurate assessment, the suspension of fundamental rights. guaranteed under the Indian constitution appears to contravene those international legal norms which are contained in the Universal Declaration of Human Rights. To take one example, article 9 of the Declaration provides that no person should be subjected to arbitrary arrest and detention.

2. NUMBER OF DETAINED PERSONS

Amnesty International would appreciate receiving statistics describing the total of prisoners detained without trial in the various states, as well as statistics of the government's release program. We would welcome any information as to whether the nature of the reports cited above is correct.

While we understand that very large numbers of prisoners have been arrested under the Maintenance of Internal Security Act and the Defence of India Rules since the emergency declaration, Amnesty International welcomes public assurances by government officials that many have been released; as an example, on August 23, 1975 the Information Minister stated that a number of prisoners had been arrested on purely political grounds, that the total number of these arrests did not exceed 10,000, and that one third had been released. In another instance, in the state of Maharashtra, the Chief Minister stated on November 17, 1975 that of the original 13,500 arrested, 3,000 persons remained in detention under MISA and article 151 of the Criminal Procedural Code.

However, reports of large scale arrest continue to reach Amnesty International. According to recent information, some thousands were arrested and detained (often for a relatively short period) for taking part in a satyagraha program at the end of 1975. 16,000 persons were reportedly arrested early in January for participating in strikes against the recently introduced Bonus Act. The fall of the Tamil Nadu government in January was followed by reports that thousands were arrested in the state after imposition of presidential rule. To our knowledge, no comprehensive figures for the total number of political arrests have been officially issued since the emergency declaration, nor has it been possible to obtain these from other reliable sources because of censorship restrictions.

Although some reports have put the number of arrests as high as 200,000, from figures published in the various states, it seems realistic to accept, minimally, that at least 40,000 persons are now detained without trial in connection with the emergency. Amnesty International is particularly concerned about the high proportion who have now been held without trial since June and July 1975. We are told that they include 59 members of the Lok Sabha, the Rajya Sabha and the state legislatures of opposition parties and the Congress Party, as well as some of India's most prominent politicians who took a leading part in the independence movement. Amnesty International was particularly concerned by reports that some of these, including former Deputy Prime Minister Morarji Desai, are kept in isolation from other prisoners. If these reports are correct, we believe that their continued detention without trial is incompatible with the terms of article 9 of the Universal Declaration of Human Rights.

3. LEGAL RIGHTS OF DETAINEES

If our understanding of the present situation is correct, we believe that the constitution and the laws have been amended to allow indefinite untried detention and to deny the fundamental right of habeas corpus. We would welcome precise information about the government's plans to charge and bring to court all those presently held in preventive detention.

The June 29 Amendment Ordinance to the Maintenance of Security Act (MISA) removed a detainee's right to be informed of the grounds for his arrest. While detention is initially for 12 months, it may be extended on expiry of that period. Existing safeguards for a periodic review by an independent Advisory Board were replaced by a four-monthly review by a government body. The second amendment to MISA specifies that no appeals against detention can be made in any court of law. Also, the provisions under the Criminal Procedural Code concerning absconders were made applicable to persons wanted for arrest under MISA who failed to surrender themselves. Both ordinances were then replaced by a bill of the same name, and became law on July 29, 1975. Parliament has also passed a bill amending the Defence of India Act, extending its provisions

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for detention without trial to situations of internal disturbances. The third amendment to the MISA made it an offence to disclose the grounds of detention of a person detained under the Act to anyone, including the courts.

4. ALLEGATIONS OF ILL-TREATMENT

Amnesty International would very much welcome your government's assurance that it would allow independent inquiries to be made into any specific incidents of ill-treatment of detainees which are reported to Amnesty International.

Bearing in mind the prominent role the Indian Government played in securing the adoption of the UN Declaration against torture, and recalling the concern proclaimed by the Home Minister for compassionate and humane police behaviour towards suspects, I would like to ask you to inquire into reports which allege ill-treatment of political detainees, particularly those taking part in satyagraha campaigns. These reports mention specific instances in which prisoners were severely beaten after arrest on sensitive parts of the body, where prisoners had been hung upside down or by their hands tied behind their backs. In some cases, it was also reported that prisoners had been burned with candles or cigarettes and that others had been subjected to electric shock.

In a situation where the courts are denied the power to assess the accuracy of such allegations, we would further seek assurance from your government that the provisions of the United Nations declaration on the protection of all persons from torture or other cruel, inhuman or degrading treatment or punishment are fully implemented.

Amnesty International recognizes that governments, in the face of exceptional circumstances, may feel compelled to take short term measures which may not be in accordance with certain aspects of the fundamental rights provisions within their own constitutions. But such restrictions, when they take a more permanent form, would necessarily contravene the generally accepted international standards for the protection of human rights. In the case of India, they would affect the high standards of human rights for which it has been known internationally. Amnesty International is concerned to know whether your government would consider the restoration of constitutional safeguards for civil rights on the occasion of the anniversary of the emergency declaration on June 26. The government would fully implement the provisions in articles 5, 8 and 9 of the Universal Declaration of Human Rights in releasing, by way of a general amnesty, all those prisoners now held in detention without trial, against who no charges have been made.

Yours respectfully and sincerely,

HAN'S EHRENSTRALE, Deputy Secretary General.

APPENDIX 3

MAILGRAM TO PRIME MINISTER GANDHI FROM MANORANJAN DUTTA, PRESIDENT, THE ASSOCIATION OF INDIANS IN AMERICA, INC.

JULY 14, 1975.

The Association of Indians in America is deeply concerned at the recent developments in India which have culminated in the proclamation of a state of emergency involving suspension of certain fundamental rights. India's commitment to democracy is too great to be compromised and the association expresses its profound faith that all individuals and parties involved will rise to defend the Democratic Constitution of India. The responsible opposition must distinguish between its right to oppose and its right to revolt. The government on its part must respect the constitutional opposition. Any facts concerning widespread conspiracy to launch country wide agitation and disturbance of internal peace which would necessitate the proclamation of an emergency should as a matter of course be widely disseminated and sanction for such a proclamation being sought in accordance with the constitution insofar as the case arising from the alleged violation of election laws on the part of Prime Minister Indira Gandhi is concerned the judiciary must play its independent role fully wholly and uninterruptedly with respect to the economic situation. The association strongly supports the Vigorous Enforcement of the Economic and Anticorruption Measures taken by the government on their merit.

We welcome the solemn assurance given by Prime Minister Gandhi that all emergency restrictive measures would be withdrawn as soon as possible and we urge its early implementation.

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MANORANJAN DUTTA, President.

APPENDIX 4

[From the New York Times, Apr. 30, 1976]

FADING HOPE IN INDIA 1

If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H. R. Khanna of the Supreme Court. It was Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court's decision upholding the right of Prime Minister Indira Gandhi's Government to imprison political opponents at will and without court hearings.

Indian democrats are likely to remember only in infamy the four judges who obediently overturned the decisions of a half-dozen lower courts scattered across India, which had ruled in defiance of the Government that the right of habeas corpus could not be suspended, even during the emergency that Mrs. Gandhi declared last June. But they will long cherish the lonely judge who said, in words reminiscent of other enduring declarations for freedom:

"The power of the courts to issue a writ of habeas corpus is regarded as one of the most important characteristics of democratic states under the rule of law. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are precious possessions."

For his colleagues, who held the Government's actions in jailing thousands of its political opponents without trial or even detailed charges to be "legal" under the sweeping emergency powers granted by the Constitution, Mr. Justice Khanna had a tart and haunting reminder: "In a purely formal sense, even the organized mass murders of the Nazi regime qualify as law."

It is a reminder that ought somehow to force its way into the consciousness and thence onto the conscience of the stubborn woman who, for the last ten months, has behaved more in the manner of an Empress or a Vicereine than like the daughter of Jawaharlal Nehru. The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court's decision appears close to utter surrender.

A defeated lawyer was close to the truth when he said, after that decision: "This case was our last hope, and now that hope is gone."

1 1976 by the New York Times Co. Reprinted by permission.

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