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’.

... contd.