ON HANDCUFFING -

ON HAND-CUFFING

"When they arrested my neighbour I did not protest. When they arrested the men and women in the opposite house I did not protest. And when they finally came for me, there was nobody left to protest."

In Prem Shankar Shuklas’ case[1] Justice V.R. Krishna Iyer  held that  “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons' is to resort to zoological strategies repugnant to Art. 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity has to be harmonized. 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, vulgarize society and foul the soul of our constitutional culture. Where then do we draw the humane line and how far do the rules err in print and praxis? Insurance against escape does not compulsorily require hand cuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopedia Britannica, Vol. II (1973 Edn.) at p. 53 states

"handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment."

The three components of 'irons' forced on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish humiliatingly and to vulgarize the viewers also. Iron straps are insult and pain writ large , animalizing victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under-trial prisoner ordinarily. The latest police instructions produced before us hearteningly reflect this view. We lay down as necessarily implicit in Arts. 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Art. 14 on the face. The criminal freedom of movement which even a detainee is entitled to under Art. 19 cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstance so hostile to safe-keeping. Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort-and we declare that to be the law-the distinction between classes of prisoners becomes constitutionally obsolete. Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or under- trial is any different from a poor or pariah convict or under-trial in the matter of security risk ? An affluent in custody may be as dangerous or desperate as an indigent, if not more. He may be more prone to be rescued than an ordinary person. We hold that it is arbitrary and irrational to classify, prisoners for purposes of handcuffs, into 'B' class and ordinary class. No one shall be fettered in any form based on superior class differentia, as the law treats them equally. It is brutalizing to handcuff a person in public and so is unreasonable to do so. Of course, the police escort will find it comfortable to fetter their charges and be at ease but that is not a relevant consideration.”

This grim scenario burns into our judicial consciousness the moral emerging from the case being that if to-day freedom of one forlorn person falls to the police somewhere, tomorrow the freedom of many may fall elsewhere with none to whimper unless the court process invigilates in time and polices the police before it is too late. This futuristic thought, triggered off by a telegram from one Shukla, prisoner lodged in the Tihar Jail has prompted the present 'habeas' proceedings. The brief message he sent runs thus:

Hand-cuffing has been one of the prime field where the Supreme Court has ventured to issue guidelines to check police humiliation. Issue thereof was considered  in Prem Shankar Shuklas’ case[2]. To hand-cuff is to hoop harshly and to punish humiliatingly. The minimal freedom of movement, which even a detainee is entitled  to under  Article 19,  cannot be  cut  down by application of handcuffs,,  held the  Supreme Court.  As there are other ways  for ensuring security, handcuffs  must be the last refuge,  No prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort. Functional compulsions of security must reach that dismal degree whereon alternative will work except manacles. There must be material sufficiently stringent, to satisfy a reasonable mind that there is clear and present danger of escape of the prisoner who is being transported by breaking out of the police control and further that by adding  to the escort party or other strategy, he cannot be  kept under control. The onus of proof in this regard is on him who puts the person under irons. The belief that the prisoner is likely to break  out of custody  or play the vanishing trick must be based on antecedents  which must be recorded and proneness to violence must be authentic. Vague surmises or general averments that the under trial is a crook or desperado, rowdy or maniac cannot suffice. Even orders of superiors  are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material in that regard. Even  where in extreme circumstances, handcuff have to be put on the prisoner, the escorting  authority must record contemporaneously the reasons for doing so. Not only that,  as that can be a mechanical process mindlessly made, the escorting officer, whenever he handcuffs a prisoner produced in Court,  must show the reasons  so recorded to the Presiding Judge  and get his approval. The judicial officer before whom  the prisoner is produced has to be interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other ‘irons’  treatment  and, if he has been, the official concerned shall be asked to explain  the action forthwith. Otherwise, there is no control over possible arbitrariness in applying handcuffs and fetters. And once the Court directs that handcuffs shall be off, no escorting authority can overrule judicial direction.

The Supreme Court further laid down that, merely because a person is charged with grave or serious offences the inference of escape proneness or desperate character does not follow and therefore, on that premise alone he cannot be handcuffed.  Another aspect of the matter is that all prisoners should not be placed on the same footing unless there is a rational classification  based upon health, age, academic or occupational needs or like legitimate ground and not irrelevant factors like wealth, political importance, social status and other criteria which are a hang over of the hierarchical social structure hostile to the constitutional ethos. It is arbitrary and irrational to classify prisoners, for the purpose of handcuffs, into ‘better’ class and ‘ordinary’ class. No one shall be fettered in any form based on superior class differential, as the law treats them equally.

If a police officer is vested with the power to restrain by person by handcuffing him or otherwise there is a simultaneous restraint by law on the Police officer as to the exercise of that power, an arbitrary exercise of that power infringes the fundamental rights of the person in custody and a malicious use of that power can bring Section 220 of the Indian Penal Code[3] into play. Sections 46 and 49 of the Code of Criminal Procedure[4] defines the parameters of the power envisaged by the Code in the matter of arrest and Section 49 of the Code, in particular, foreshadows the central principle controlling the power to impose restraint on the person of prisoner while in continued custody. Consistent with the fundamental rights of such person the restraint can be imposed, if at all, to a degree no greater than is necessary for preventing his escape.  To prevent his escape is the object of imposing the restraint, and that object defines at once the bounds of that power. In short, the authority responsible for the prisoners’ custody, should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances, general conduct, behaviour and character will attempt to escape or disturb the peace by becoming violent. That is the basic criterion, and all the provisions relating to the imposition of restraint must be guided by it. In the ultimate analysis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree.

The social status of a person, his education and habit of life associated  with a superior mode of living seem to be intended to protect his dignity of person. But that dignity is a dignity which belongs to all, rich and poor, of high social status and low, and  illiterate. 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. Whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the decision  of the authority responsible for his custody and not of any other.  It is a judgment to be exercised with reference to each individual case. The matter is one whether  the circumstances may change from one mement  to another, and inevitably in some cases it may fall to the decision of the escorting authority midway  to decide on imposing a restraint on the prisoner. Any prior decision of external authority cannot be reasonably imposed on the exercise of the power. However, one sector of supervisory jurisdiction  could appropriately lie with the Court trying the accused, and it would be desirable for the custodial  authority to inform that Court of the circumstances in which, and  the justification for imposing a restraint  on the body of the accused. It should be for the Court concerned to work out the modalities  of the procedure requisite for the purpose of enforcing such control.

These are the guidelines issued by the Supreme Court in its judgment in Prem Shankar Shukla V.Delhi Administration. The Supreme Court had earlier considered this question in Sunil Batras’ case as well [5]. Again the Supreme Court has in Aeltemsh Rein’s Case[6] directed the Central Government to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment  of the  Court in Prem Shankar Shukla’s case  and to circulate them amongst all the State Governments of the Union Territories.

Has this direction of the court implemented or guidelines followed?

Has it resolved the problem?

A big No!

Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights)