Rights of handcuffed persons in India.

A project submitted to

ARMY INSTITUTE OF LAW, MOHALI

By

JOWIN T.V. (1934)

Under the guidance of Ms. Vibhuti Jaswal

In partial fulfilment of the requirement for the award of degree of

BA.LLB

PUNJABI UNIVERSITY, PATIALA

(August – December 2023)

 DECLARATION

It is certified that the project work presented in this report entitled

“Rights of handcuffed persons in India” embodies the results of
original research work carried out by me. All the ideas and references
have been duly acknowledged.

DATE: 09-10-2023 NAME: JOWIN T.V.

PLACE: AIL MOHALI ROLL NO: 1934

 ACKNOWLEDGEMENTS
This project consumed huge amount of work, research and dedication. I would like to express
my deepest appreciation to all those who provided me the possibility to complete this project
work.

A sincere gratitude to our professor Ms. Vibhuti Jaswal whose superior knowledge and
contribution in stimulating suggestions helped me to coordinate my full effort in achieving
the project.

Furthermore, I would also like to acknowledge with much appreciation the crucial role of
management of Army Institute of Law, who gave the permission to use all required
equipment and necessary material to complete this task of research.

JOWIN T V

ROLL NO: 1934

Introduction
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.

What are the Rights against being handcuffed in India?

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.

Jurisprudence
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.

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.

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.

Legal provisions
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”.

International Standards
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.

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 21 st century society where
we aim to uphold human rights for all irrespective of their deeds, character and social
standing.

Conclusion
The maintenance of justice which is important for every society in a democracy is possible
due to the presence of the Constitution. The principles of democracy have been preserved by
the provisions of review.

 The provisions have been used by the appellate courts while delivering verdicts. The
main principle behind review is to protect the sanctity of complete justice and protect
the rights of the individual through the legal process that is dominion over the