“The purpose of putting shackles on an offender while he is in prison is to keep him from fleeing, and that purpose defines the scope of the power to detain him in custody. Handcuffing appears to be barbaric and irrational; it is unduly negative and inappropriate. Foisting “irons” in the absence of a fair system and impartial monitoring is equivalent to turning to zoological tactics that are incompatible with human rights.”
-Supreme Court of India.
This Paper focuses on handcuffing laws applied on under-trials and convicts touching the roots of violation of international human rights, the constitutional validity of this notion and its application in the present day society. The scope of the famous Shukla case is also discussed and heavy reliance is sited. Finally, the paper is concluded with the observation and recommendations of the author.
GLOBAL STANDPOINT OF HUMAN RIGHTS PRINCIPLES IN ARREST, DETENTION AND PUNISHMENTS
Human rights are the fundamental rights and liberties that every individual in the world will have from birth to death. They apply to anyone and everyone, regardless of where they come from, what they believe, or how they conduct their lives. They can never be taken away, but they can be limited in some circumstances, like as when someone breaches the law or in the interests of national security. These fundamental human rights are built on common ideals such as dignity, justice, equality, respect, and independence.1 These ideals are legally defined and protected. In the context of handcuffing:
- Vulnerable groups are protected under human rights.
- People can always use their human rights to challenge societal corruption.
- Human rights promote freedom of expression and speech.
People are empowered by the notion of human rights, which teaches them that they are entitled to dignity from society, whether be it the government or their workplace. They have the option to stand if they do not receive it. It protects those who desire to discuss or dispute with particular views presented in their society in both directions. There are many theories concerning the justification of the punishment.2 The rule of handcuffing any convict or under-trial is against these notions of human rights. This violate the basic rule that is without the rule of law, official brutality devolves into crime.
THE GOLDEN TRIANGLE VIOLATION
Our Fundamental Rights are heavily loaded in favour or personal liberty even in prison, and so, the traditional approaches without reverence for the worth of the human person are obsolete, although they die hard. The golden triangle that is right to equality, right to freedoms and right to life and liberty constitute the three pillars of constitution of India.
Article 14 interdicts arbitrary treatment, discriminatory dealings and capricious cruelty. Article 19 prescribes restrictions on free movement unless in the interests of the general public. Article 21 is the sanctuary of human values, prescribes fair procedure and forbids barbarities, punitive or procedural. Handcuffs or other hoops cannot be used to restrict the basic freedom of movement that even a detainee is entitled to under Article 19. It will be irrational to do so unless the State can demonstrate that there are no other realistic means of prohibiting escape, given the prisoner’s danger and desperation, and the hostile environment. Personal liberty restrictions that are severe must be justified as reasonable under the circumstances. To be compatible with Arts. 14,21and 19, handcuffs must be the last resort, not the standard procedure as held by the court in many judgements.3
Constitution of India also provide for prisoners rights (other than the provisions of golden triangle) in article 20 and 22 which states the production of detainee in court within 24 hours, double jeopardy, knowledge of grounds of arrest, provision of legal practitioner and preventive detention respectively. Article 39A, a DPSP4 also talks about the free legal aid provided to a prisoner. These rights contain among them the right against handcuffing.
Standard Minimum Rules for the Treatment of Prisoners Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions5 had laid down the rule for Instruments of restraint for all the countries. Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances:
- As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority;
- On medical grounds by direction of the medical officer;
- By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.
The patterns and manner of use of instruments of restraint shall be decided by the central prison administration. Such instruments must not be applied for any longer time than is strictly necessary.6
The collection of handcuff law, namely, Prisoners (Attendance in Courts) Act, 1955; Punjab Police Rules, 19347, Rules 26: 22(i)8, Standing order 44, Instruction on handcuffs of November, 1977, and orders of April 1979, are made to aid the convicts and under-trial. Yet, they must meet the demands of Articles 14, 19 and 21. Irons forced on under-trials in transit must conform to the benevolent imperatives of the triple Articles.
Section 9(2)(e) of the Prisoners (Attendance in Court) Act, 1955 empowers the State Government to make rules providing for the escort of persons confined in a prison to and from Courts in which their attendance is required and for their custody during the period of such attendance. The Punjab Police Rules, 1934 contain Rule 26.22 which classifies those cases in which hand-cuffs may be applied. The classification has been attempted somewhat broadly. But the classification attempted by some of the clauses of Rule 26.22, particularly (a) to (c) which presume that in every instance covered by any of these clauses the accused will attempt to escape cannot be sustained. Rule 26.22 read with Rule 26.21 A of the Punjab Police Rules 1934 draw a distinction between “better class” under-trial prisoners and “ordinary” under-trial prisoners, as a basis for determining who should be handcuffed and who should not be. The social status of a person, his education and habit of life associated with a superior mode of living is 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, literate and illiterate.
Sections 46 and 49 of the Code of Criminal Procedure outline the boundaries of the arrest authority authorized by the Code. And section 46, in particular, foreshadows the essential element governing the right to limit a prisoner’s person while in continuing custody. Restraint may be applied if it is fairly anticipated that the prisoner will seek to escape, but it should be limited to what is required to keep him from fleeing.
The exercise of that power maliciously would result in the application of Indian Penal Code section 220. It is all too easy to forget that if a police officer has the right to restrain a person by handcuffing or other means, he or she is also bound by the law in how that authority is applied. The decision of whether or not to physically restrict a person, and if so, to what extent, has an impact on the person in jail during his captivity. Restraint can be employed in accordance with such a person’s fundamental rights, but only to the extent necessary to keep him from escaping.
LANDMARK LEGAL PRECEDENTS
The Supreme Court of India has frequently criticised the use of handcuffs by police as a breach of Article 21 of the Indian Constitution, which guarantees the right to personal liberty. Prem Shankar Shukla v. Delhi Administration is a major Supreme Court case regarding handcuffing9.
In the case, the petitioner was a Tihar Prison inmate awaiting trial. In connection with some matters ongoing against him, he was compelled to be brought from jail to magistrate court and returned on a regular basis. The trial court had instructed the responsible officer that handcuffing should not be used when escorting him to court and back unless it is truly unavoidable. The escorts, however, compelled him to wear cuffs. As a result, he sent a telegraph to one of the Supreme Court judges, on the basis of which the court accepted the subsequent habeas corpus petition. The Supreme Court overruled guidelines that required anybody charged with a non-bailable criminal punishable by more than three years in jail, or accused of a cognizable violation, to be shackled on a regular basis. The Court stated that handcuffing should be utilized not just when the accused is in a “clear and present danger of escaping,” but even when the accused is not in imminent danger of escaping the police’s grasp. The accusation’s nature is not the criteria. The obvious and present risk of eluding police control is the determining factor.
Supreme Court Directives in Prem Shankar Case
- 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 handcuffing 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.
Matters of execution of warrants:
- 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, 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.
The apex court further warned that any violation of these directives by any police or prison official would be punishable under the Contempt of Court Act 1971 or other penal consequences under the law.
In another case, Sunil Batra v. Delhi Administration and ors10. It was held that a person in detention is not completely devoid of his basic rights, the limits arising from that principle take on a new meaning. The ability to restrict, as well as the degree of constraint to be used, are not to be used arbitrarily. The individual in custody’s fundamental rights are infringed when such power is used arbitrarily.
In Sunil Gupta v. State of M.P, the SC held that the escorting authority shall record contemporaneously the grounds for handcuffing an under trial prisoner even in severe instances and inform the court, so that the court may assess the facts and provide relevant orders to the escort party.
Recent cases: Vikas Dubey encounter12 and The Umar Khalid Case13
After the encounter of the dreaded criminal Vikas Dubey in the alleged encounter, the debate about whether to handcuff or not to put the criminals once again got spotlight. On the one hand, there is a question as to why the police had not handcuffed a crook like Dubey, parallel to the guidelines of the Supreme Court, in which they are “inhumane, unnecessary and harsh” to impose handcuffs. An arbitrary method was agreed upon. Police has been supportive of handcuffing in many judicial forums, saying that it helps to ensure that the dreaded accused or convict does not escape from the arrest.
The next instance in which the detainees were detained are linked to violence that erupted in North East Delhi in February of 2020 between supporters and opponents of the Citizenship Amendment Act. At least 53 people died as a result of the violence, with hundred more injured. The Delhi Police filed 755 FIRs in connection with the disturbances. They detained over 1,800 people, including lawyers and activists like Khalid and Saifi, and asked the court in the capital for permission to handcuff former Jawaharlal Nehru University student leader Umar Khalid and activist Khalid Saifi at their hearings in the 2020 Delhi riots cases, in which they are both accused.
The order has brought the legislation around handcuffing and restricting detainees in the sake of preserving their safety back into focus. Not only has the Supreme Court criticized this police practice, but it has also stated in previous decisions that prisoners cannot be habitually shackled because it violates their dignity, which is a vital aspect of their right to life under Article 21 of the Constitution. Activists also pointed out, that despite such declarations, police officers regularly disregard the norms and violate them. Furthermore, the police employ handcuffing as a method to persuade the public that the accused is dangerous, even when this is not the case.
The Global Pandemic
The novel corona virus has also played its part in contributing to the sphere of handcuffing the under-trials. The Delhi Police have petitioned the Supreme Court to allow police officers to handcuff detained individuals and under-trials in order to reduce exposure to Covid-19 due to hand gripping. The application14 stated that, “Hon’ble Court may consider equilibrating the right to dignity of an inmate, and life and safety, of prisoner/accused and of police personnel who accompany them in the transition between prison and police station to court, by noting that several personnel from Delhi Police had lost their lives as a result of a coronavirus. This also threatens their families. Simultaneously the High Court noted that if there were any unusual grounds, like the fact that those who were accused or subjugated were “high-risk detainees,” the police or jail officials might seek authorization to do so.
CONCLUDING OBSERVATIONS AND SUGGESTIONS
- Handcuffing: Obligatory Rule
There is no prescribed law or code which prescribes this form of production or punishment for convicts and under-trials. In the absence of compelling reasons, an arrested individual or a prisoner awaiting trial should not be handcuffed. There is no reason to handcuff the accused when transporting them from jail to court if they are educated, selflessly giving their devotion to a public cause, do not have a tendency to flee, and have been tried and convicted for a bailable offense.
Insurance against escape does not compulsorily require handcuffing. There are various ways for an escort to keep a detainee secure without the indignity and brutality of handcuffs or other forms of iron. In designs. Indeed, restricting the hands or feet, or both, has a punitive as well as a preventative effect. Manacles cause havoc on human beings and humiliate those who wear them. Handcuffing, i.e., hooping severely, punishing humiliatingly, and vulgarizing the spectators are the three components of “irons” imposed on the human being. Handcuffs or other fetters should not be put on the body of an under-trial prisoner since there are alternative measures to ensure their protection.
- Indifferent classification of inmates.
Apart from the fact that economic and social importance cannot be used to categorise inmates for the purposes of handcuffing or otherwise, a wealthy criminal or under-trial is no different in terms of security danger from a poor or outcast offender or under trial. A rich detainee may be just as violent or desperate as a destitute. He could be more likely to be saved than the average individual. As a result, classifying convicts into ‘B’ and ‘ordinary’ classes for the purpose of handcuffs is arbitrary and unreasonable. No one shall be enslaved in any way because of a superior class disparity, for the law governs everyone equally.
- Handcuffs should only be used as a last resort, not as part of a regular practice.
Handcuffing and fettering will be justified if there is tangible witness, documented or otherwise or frantic behaviour aimed at achieving his escape; even this can be avoided by strengthening the escorts or transporting the detainees in well-protested trucks. Increasing the number of escorts, arming them if required, providing specific training for escort’s police, and transporting inmates in secured cars are all options that are readily accessible. Even in severe scenarios when handcuffs must be applied to the prisoner, the escorting authority must document the grounds for doing so immediately.
- Due regard to dynamic society to be given.
Like every coin, this notion also has two sides. With the vigorously changing society, The Supreme Court failed to address the actual difficulties that police and jail workers experience while transporting non-shackled inmates. In 2019, 468 inmates fled, with 13915 escaping from police custody and 329 escaping from court custody16. Officers engaged in such instances are placed on administrative leave and disciplinary or criminal action is taken against them. The norm should be that the authorities in charge of a prisoner’s custody should examine each case individually to determine if the prisoner is a person who, given his circumstances, general conduct, behaviour, and character, will seek to flee or disrupt the peace by turning violent. That is the fundamental criteria, and it must govern all regulations pertaining to the imposition of restrictions.
- Group of people from human science fields to study the body language, conduct, character and tendency to flee of every under-trial or convict.
A special cell or committee can be constituted in every district or high court to analyse the mind set of every inmate and under-trial. This cell can have members from different arenas of human sciences like some may have psychology specialisation, Body language analysers, NLSA17 trained counsellors to scrutinise the behaviour and advising the same to judges for a better functioning of justice delivery. In the end, it is that guiding principle that must determine if and to what extent a constraint should be applied in each specific situation.
Author: Prerna Tyagi from Trinity Institute of Professional Studies.