In 1974, in a series of bombings carried out by the IRA in London, four Irish youth among others were arrested and convicted under an act hastily passed by parliament, the Prevention of Terrorism Act. The Act provided for suspension of habeas corpus if a person was suspected of terrorism and conviction based solely on confessions. The judge even regretted his inability to pass the sentence of death on the convicts, who included women. In 1989, in an appeal, the court concluded that the confessions had been fabricated and forensic evidence favourable to the accused had been suppressed. The surviving convicts were acquitted of all charges. England has come a long way since the Guilford killings (Tony Blair publicly apologised for the gross miscarriage of justice in 2005) and, today, aggrieved residents of England can even appeal to the European Court of Human Rights. Unfortunately, in India, quite often, the police and executive authorities are caught in the time warp of imperialism, giving scant respect to orders passed by the Supreme Court and the Constitution.The subject of fundamental rights generated much debate in the Constituent Assembly, coming as it did against the backdrop of tumultuous civilian strife and severe restrictions on civil liberties imposed by the British government. The debate with respect to civil liberties carried forward to the Supreme Court, where the scope of fundamental rights and their interdependence was argued. The Supreme Court in A.K. Gopalan vs State of Madras rejected the argument that Article 19 (civil liberties) and Article 21 (deprivation of life and liberty without the procedure established by law) were inextricably linked, on the ground that the purport of the respective articles and their scope was different. This narrow interpretation was later rejected and the unequivocal position today is that Article 14 (equality clause), Article 19 and Article 21 are linked and are on a different pedestal from other fundamental rights. The position is further fortified from the judgment in I.R. Coelho vs State of Tamil Nadu, where they have been made truly ‘sacrosanct’ and ‘transcendental’. The Supreme Court observed that only these three articles “.stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power”.Further, the Supreme Court also upheld constitutional rights of undertrials and the accused in Hussainara Khatoon vs Home Secretary, Sheela Barse vs Union of India and DK Basu vs State of West Bengal (1997), where directions were also issued to the authorities in respect of undertrials, women and children in prison and arrest and interrogation procedure respectively, keeping in view that even an accused had constitutional rights. In 2002, the Supreme Court again lamented the unconstitutional devices of the police authorities (DK Basu vs State of West Bengal) as there was no perceptible change in the attitude of the police and state. When the court passed these directions they were not oblivious of the impediments, legal and procedural, that the authorities faced. Heinous crimes, corruption and, particularly, terrorism, pose grave threats to society and the court has balanced the rights of society and the rights of accused. These have been admirably brought out in PUCL vs Union of India, where the constitutionality of POTA was upheld. Unfortunately, the authorities have shown that it is much easier to arrest a student who paints than persons who incite mobs and perpetrate heinous crimes. It is easier to shoot at villagers and arrest a lady on an indefinite hunger strike than apprehend and convict persons who commit rape, whether of diplomats or of students. It is easier to harass couples in courtship than persons who disturb peace and vandalise property. Enforcement of law in disturbed areas is undoubtedly fraught with complexities and inherently traumatic for the protector and protected. However, when we chose to give ourselves a Constitution, we adopted it with its rights and obligations — fundamental rights and adherence to law. These rights apply even to the accused and the duty to adhere to the law applies to the state machinery even when in operation against suspected terrorists. And, while state governments resist the implementation of police reforms on the specious ground of federalism, and continue their inconsistent approach, the victims are the citizens of the State, for whom, a judge of the Supreme Court once famously remarked, ‘care and concern bestowed by the State authorities upon the welfare of detenus. is almost maternal’.The writer is an advocate practising in Delhi
