REINTRODUCTION OF HANDCUFFING IN INDIAN CRIMINAL JUSTICE SYSTEM

I. Introduction

Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture. – Justice Krishna Iyer in Sunil Batra v. Delhi Administration, 1979

The history of handcuffs goes back to 400 BC when these were primarily used for controlling and enslaving prisoners of war. Modern handcuffs found its origin from 1912 when it was mainly used to transport prisoners from police stations to jails and courts and back again. During British era, the colonial government used to handcuff and leg-shackles the revolutionaries preventing them from any type of escape or attack on the officers during custody.

But, even during the British era, the then government started restricting the use of handcuffing. Section 12 of the Police Act, 1861 gave power to the Inspector-general of Police to frame such rules as he shall deem expedient relative to the organization, classification and distribution of the police force. The then British Government brought the “Police Regulations Bengal, 1943” and under which within the ambit of section 12 of the 1861 Act, it was added that handcuff should not be used in ordinary cases. It is an unnecessary indignity. Therefore, it should be used only in exceptional cases and no women shall be handcuffed in any case.

In modern society, human dignity is an intrinsic part of human life. All humans have the right to live and enjoy their lives with dignity. During the last time of colonial rule, the then government prohibited the use of handcuffing. However, after Independence, Police forces started the use of handcuffs to show authority over the arrested person. Later, the Supreme Court through its various judgements prohibited the use of handcuffing in ordinary cases as it was inhuman and cruel which also violates the basic human right as well. However, Parliament through the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) reintroduces the use of handcuffs in the criminal justice system.

II. Handcuffing and International Laws

Handcuffing is not just humiliating but inhuman as well. Universal Declaration of Human Rights 1948 recognize the inherent dignity of every human being irrespective of their religion, race, caste culture or sex. It talks about general freedom, equality and liberty of human beings. UDHR draws attention to some principles of human rights which clearly indicate how the practice of handcuffing is encompassing these rights by doing such an inhuman act. These principles say all human beings are born free and equal in dignity and no person should be treated inhumanly. It also prohibits torture or cruel, inhuman or degrading treatment or punishment.

These principles protect the human rights of an individual and disallow such an inhuman act which possesses a threat to human dignity. Handcuffing is one of them. This act is dehumanizing. In Regina vs. Alan William Horden , Lord Justice Hughes of England and Wales Court of Appeal (Criminal Division) held that there might be some risk of escape but that does not mean it justify the handcuffing in the court. In this case, the accused was arrested for possession of heroin with intent to supply it. He was presented in the witness box with his handcuffed. The court also held that if a handcuffs application is made before a jury, there must be proper information providing a basis for it.

III. Landmark Judgments on Right Against Handcuffing (India):

“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.” – Justice V.R. Krishna Iyer quoted the couplets of famous poetry of German theologian Pastor Martin Niemöller in Prem Shankar Shukla v. Delhi Administration where petitioner was an under-trial prisoner. Police used to handcuff him while escorting him to and from the court. Trial court warned him against this exercise, but Police kept repeating the same exercise of handcuffing the accuse. At the end, petitioner sent a telegram to the judge of the Supreme Court complaining of forced handcuffs. Supreme Court converted the telegram as a writ petition. Supreme Court in this case held that handcuffing is a cruel and inhuman act which also violates Fundamental Right provided under Article 14, 19 and 21.

Handcuffing may be permitted in exceptional cases, but onus is on the authority to justify the action. Whenever the officer thinks there is a need to handcuff the accused, first he must show the reason and get the approval of the presiding judge. If the court refused to grant permission to handcuff the accused, then handcuffing will be illegal. Justice Krishna Iyer in this case said even the orders of superiors are no valid justification to handcuff an accused as constitutional rights cannot be kept in suspense by superior orders. Just because a person is charged with a grave offence, he cannot be handcuffed.

In Sunil Batra v. Delhi Administration, Supreme Court talked about the basic human rights of prisoners and held prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed by the procedures that satisfy all the requirements of due process. It also held that handcuffing the accused person when taken to and from court is illegal and shall be stopped forthwith. Reckless handcuffing and chaining in public degrades and is a slur on our culture. The use of bar fetters, i.e. iron rings locked and welded around the ankles of prisoners and vertical bar which is hooked to the waist-belt along with handcuffs on prisoners curtails the locomotion. It only reduces the prisoners from a human being to an animal, but it is also an anathema to the spirit of the constitution. It is also violative of Article 14 of the Constitution of India.

In Citizens for Democracy v. State of Assam, hardcore members of ULFA – a banned organization were lodged in a close ward of hospital as patients with security guards outside the ward. They were handcuffed and tied with rope to stop any type of escape from custody of the ward. However, these detenus were not handcuffed while in jail. The apex court held that they cannot be in a worst condition in hospital than jail. Handcuffing the patient-prisoners is inhuman and in violation of the human rights guaranteed to an individual under international law and the Constitution of India. If the police arrest a person in execution of arrest warrant obtained from a Magistrate, it does not mean Police get the license to handcuff the arrested person. Police need to obtain a separate order for handcuffing the accused.

From the above landmark judgements, it is clear that the use of handcuffs is violative of basic human rights and against the spirit of the constitution. Thus, the Supreme Court prohibited its general use and made it clear that it can be used in rare cases only but with the prior permission of the presiding judge.

IV. Reintroduction of Handcuffing in Bhartiya Nagarik Suraksha Sanhita, 2023

In the new criminal laws, handcuffing has been reintroduced under section 43(3) of the Bhartiya Nagarik Suraksha Sanhita, 2023. It allows the police officer to use handcuffs for arresting a person by keeping in view the nature and gravity of the offense. Section 43 (3) laid down the various circumstances under which the police authority can use handcuffs to the accused persons:

1) A person who is a habitual and a repeated offender.
2) The one who has escaped from custody or tried to do it.
3) A person who has committed an offence of organized crime, terrorist act, drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeit of coin or currency notes, human trafficking, Sexual violence against children and offence against state.

These are the list of offenses under which a police officer can use handcuffs under the provision of this new act. These provisions have been incorporated in this new act even though the Hon’ble Supreme Court has dissenting opinion where it held that handcuffing is prima facie inhuman and unreasonable arbitration and violates the Fundamental Rights of Article 14, 19 and 21 of the Constitution. It can be used only in extreme cases and police officers must specify the reason for handcuffing a person. Police authority also needed special orders from the magistrate for handcuffing. However, no such conditions of the Supreme Court have been laid down in this new act.

It is a matter of great concern that such inhuman practice has again been reintroduced in new criminal laws without considering the ruling of the Supreme Court. This new provision goes against the ruling of the Supreme Court. Such practice infringes the dignity of human life, which is the basic right of a democratic country. Even the laws imposed in our country during the colonial period had not mentioned the use of handcuffs anywhere in laws of that time then how such inhuman laws can be imposed in a modern democratic nation. Jail is already a punishment as it puts the person away from their family and relatives, it also restraints the movement of the person and even after this the use of handcuffs will be unreasonable and inhuman.

The Colonial government through Police Regulations Bengal, 1943 restricted the use of handcuffs in ordinary sense and laws down the situation and condition regarding when to use the handcuffs. Section 330 (a) of the regulations says that prisoners shall not be subjected to more restraint than is necessary to prevent the accused from escaping. It mandates that women shall not be handcuffed in any condition. However, BNSS 2023 does not have any special provision for women like this. Regulations 1943 also protect the witnesses from being handcuffed. Under regulation 1943, bailable case prisoners could be handcuffed only when the prisoner is violent. But now every accused of bailable cases may be handcuffed if he/she is habitual or repeated offender.

V. Road Ahead

The apex Court in Prem Shankar Shukla v. Delhi Admn. ,lays down some condition under which handcuffing can be done. Supreme Court says handcuffing can be done only in extreme situations where crime is very serious. Prior permission from the presiding judge is compulsory and if the court has ordered to free the person from handcuffing, no police officer can go against this.

However, under the new Criminal Procedure Code (BNSS 2023), there is no such condition laid down under which handcuffing can be done. It basically tried to overrule all the above judgements. Even after the judgement of Prem Shankar Shukla, one can easily see the handcuffed prisoners at trial courts. The minimal freedom of movement, which even a detainee is entitled to under Article 19 is being cut down by Section 43 (3) of the BNSS 2023. Apex court has already ruled that handcuffing should be used as last resort if there are no other ways left to ensure the security. It was necessary to satisfy a reasonable mind that there is danger of escape of the prisoner. The burden was on the police to proof that there was proper reason to handcuff the prisoner.

Now, it has been normalized and been made a part of arrest how made. There is a need to rethink this provision as this inhuman act is also violative of Article 10 of the International Covenant on Civil and Political Rights which reads as: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

AUTHORS: Abu Affan,3rd year law student at Jamia Millia Islamia, New Delhi &Md. Afan Abdullah, 5th year law student at Jamia Millia Islamia , New Delhi

Know more about the new criminal laws: https://jpassociates.co.in/bharatiya-nagarik-suraksha-sanhita-2023-bnss/

Link to the new criminal laws: https://www.mha.gov.in/sites/default/files/2024-04/250884_2_english_01042024.pdf