12, Jun 2021 | Sanchita Kadam
For a lay person the visual of a person getting arrested or being escorted to court, includes him being restrained by handcuffs. That is how arrests were and are portrayed in movies and pop culture for decades. However, the use of handcuffs, while once a common practice, has now been restricted by directives of the Indian Supreme Court.
The Supreme Court in the late 70s and 80s developed a strong definitive jurisprudence around the restricted use of handcuffs which culminated into directives that require agencies of law enforcement to ask the court’s permission before handcuffing a person.
Recently, the Delhi High Court rejected an application filed by Delhi Police seeking the court’s permission to retrain by handcuff two accused in Delhi violence conspiracy case: activist and former JNU student Dr. Umar Khalid, and human rights activist and founder member of a platform, United Against Hate, Khalid Saifi. The court observed that they are not gangsters and questioned the rationale behind making such a request while concluding that the request was devoid of merits before dismissing the application.
This takes us back to the many judgements of the Supreme Court that form the backbone of the jurisprudence which now limits the automatic use of hand cuffing as a practice. This jurisprudence was slow to evolve. The issue of handcuffing became a centrally debated issue in courts, viewed as it were as both an unnecessarily restrictive and a humiliating practice where an accused or an under trial is bound to hand cuffs and is restrained, is deprived of his dignity, despite the possibility of him being deemed innocent by the court after trial. The motive of using hand cuffs in the first place is to restrict movement of someone who is a flight risk. It’s not necessary that every under trial or accused would try to flee and thus the humiliation of being bound in hand cuffs is an unreasonable practice, which the courts agreed should be done away with unless in extreme circumstances, as a last resort.
In Sunil Batra v. Delhi Administration -AIR 1978 SC 1675, the Supreme Court held that Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law and curtailment of personal; liberty to such an extent as to be a negation of it would constitute deprivation. The court held that the minimum freedom of movement which even an under trial prisoner is entitled to under Article 19 of the Constitution, cannot be cut down cruelly by application of handcuffs or other hoops.
“The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture.”
In Prem Shankar Shukla v. Delhi Administration -AIR 1980 SC 1535, the court examined the rationale behind fetters and held that prima facie handcuffing is inhuman and hence unreasonable as well as arbitrary in absence of fair procedure and objective monitoring.
“To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself be castigated. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our Constitutional culture”
The court observed that when there is no compulsive need to fetter a person’s limbs it is sadistic, capricious, despotic and demoralising to humble a man by manacling him. Thus, the court concluded that handcuffs must be the last refuge and not a routine regimen. The court also decried the practice of making classifications in hand cuffing prisoners i.e. higher class prisoners not to be fettered but an ordinary citizen would, is an arbitrary classification. The Punjab Police Manual in paragraphs 26.21A and 26.22 of Chapter XXVI was deemed to be arbitrary as it stated that every undertrial who is accused of a non-bailable offence punishable with more than 3 years prison term shall be routinely handcuffed.
“It is abhorrent to envisage a prisoner being handcuffed merely because it is assumed that he does not belong to “a better class”, that he does not possess the basic dignity pertaining to every individual.”
The court held that the escorting officer must show reasons to the presiding judge on why the accused has been hand cuffed and get the judge’s approval. The court thus left the discretion on whether a prisoner should be hand cuffed or not upon the trial court in adherence to the observations made by the court in this judgement.
The only circumstance which validates incapacitation by irons an extreme measure is that otherwise there is no other reasonable way of preventing the escape in the given circumstances.
The directions in both of these judgements were reiterated in Citizens For Democracy vs State Of Assam And Ors 1995 (3) SCR 943 by a bench of Justice Kuldip Singh and Justice N Venkatachaliah and stricter directions were issued making the court’s stand on fetters extremely clear and absolutely binding.
In 1995, the Supreme Court considered a letter written by journalist Kuldip Nayar recounting the ordeal of detainees under the Terrorist and Disruptive Activities (Prevention) Act (TADA) in Guwahati at a hospital where they were handcuffed to their bed despite the room being barred and several policemen guarding the room. The government had given a justification that the detainees were hardcore activists of a banned organization and were accused of terrorist and disruptive activities, murder, extortion, and so on.
The court heavily quoted from both Sunil Batra and Prem Shukla judgements as both had elaborately dealt with the extreme situation when the police and jail authorities can resort to handcuffing of the prisoners inside and outside the jail. Yet, the court was compelled to issue more directions while observing, “The directions given by this Court are not being followed and are being treated as a pious declaration. We take judicial notice of the fact that the police and the jail authorities are even now using handcuffs and other fetters indiscriminately and without any justification. It has, therefore, become necessary to give binding directions and enforce the same meticulously.”
Thus, in the strongest words, the court declared thus,
- We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner – convicted or under-trial-while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back.
- The police and the jail authorities, on their own, shall have no authority to direct the hand- cuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back.
- Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate.
- Save in rare cases of concrete proof regarding proneness of the prisoner to violence, ‘his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.
- In all the cases where a person arrested by police, is produced before the Magistrate and remand – judicial or non-judicial – is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand.
- When the police arrests a person in execution of a warrant of arrest obtained form a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested.
- Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guide-lines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate.
Thus, the stand of the highest court in the country is clear on the use of fetters for restraining prisoners. It considers it to be a humiliating practice that is to be the last resort and only with the permission of the Magistrate and is not left up to the discretion of the police.
In March 2012, the Madurai bench of Madras High Court penalised two police constables to pay Rs. 5,000 for handcuffing a detainee without getting the Magistrate’s approval. The court instructed Magistrates to be vigilant and ensure that the directives of the Supreme Court are meticulously followed.
Aside from what the Supreme Court has directed, prisons are also guided by the Prisons Act, 1894. Under the Act, which has been amended from time to time, the use of fetters is permitted if the Rules made by the respective State government allow it. The Act allows imposition of fetters under section 46(7) as a punishment to offences committed in prison mentioned under section 45. These include, inter alia, assault, disorderly behaviour, wilful damage to property, feigning illness and so on. Confining in fetters is one of the punishments prescribed, the others include cellular confinement, whipping, hard labour and so on. An exception to the punishment of confining in fetters is for female prisoners or civil prisoners, who cannot be imposed with fetters.
Under section 56, the Jail Superintendent may confine a prisoner in irons for the safe custody of prisoners, subject to Rules of the state government. Section 57 provides for confinement under sentence of transportation which has now become obsolete as it was a penalty of colonial times when convicts were sentenced to be transported to a faraway place, away from society, mostly to the colonies of imperial powers. Such punishments are no longer meted out by courts in India.
Under section 58, prisoners are protected from the whims of the jail authorities to be put in fetters. It states, “No prisoner shall be put in irons or under mechanical restraint by the Jailer of his own authority, except in case of urgent necessity, in which case notice thereof shall be forthwith given to the Superintendent”.
The United Nations Standard Minimum Rules for the Treatment of Prisoners also known as the Nelson Mandela Rules were adopted by the United Nations General Assembly unanimously in 2015. Under Rule 47 (1), it states that the use of chains, irons or other instruments of restraint which are inherently degrading or painful shall be prohibited. Sub rule 2 states that other instruments of restrain can be used if authorized by law as a precaution during transfer and by prison authorities if other methods of preventing the prisoner from injuring other prisoners or damaging property, fail.
Violation of fundamental rights
A person in custody, whether an under trial, a detainee and even a prisoner being a convict is already deprived of his liberty in accordance with existing laws. Such deprivation of liberty, and such deprivation only is permitted under Article 21 of the Constitution which states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
As explored herein above, neither the directives of the Supreme Court, nor the law permits the use of iron fetters or hand cuffs at the whims of the escorting officer or jail authorities and the permission of the court or intimation to the court with reasons recorded in writing is mandated. Any act of binding a person in police or judicial custody in contravention to these directives and laws amount to violation of right to life of the individual.
It further would amount to violation of right to equality under Article 14 as being hand cuffed or restrained in irons by not following legal provisions, would mean that the person is being treated differently from other prisoners or detainees thus violating his fundamental right of being treated at the same footing. Further, if the prisoner is handcuffed or fettered owing to his religion, race, caste, sex or place of birth, the same would violate his fundamental right against discrimination under Article 15 of the Constitution.
Unwarranted use of fetters or hand cuffs is thus, a violation of basic human rights as it is seen as a sadistic, capricious, despotic measure while humiliating the accused or convict in the eyes of others. It is a deprecatory practice that finds no space in a 21st century society where we aim to uphold human rights for all irrespective of their deeds, character and social standing.