Handcuffing of Prisoners
By Ashok Priyadarshi
The Supreme court taking judicial notice regarding handcuffing of prisoners and holds in Citizens For Democracy vs. The State of Assam that it is a pity that the authorities have miserable failed to follow the law laid down by it in the matter of handcuffing of prisoners.
The judgment further states that 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 prayer for permission to handcuff the prisoner may be obtained. The magistrate may grant the said permission after ascertaining and coming to the conclusion that the said prisoner cannot be put under control unless handcuffed.
The Supreme Court emphasizes that its order must be obeyed by all ranks of police and the prison authorities meticulously and any violation of the directions shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under the law.
The Juvenile Justice Act is the only law in India which debars juvenile prisoners to be handcuffed at the time of arrest or in transit from the Home, the place of detention to the Court and back.
This verdict of the Supreme Court is not new as in the past also it has passed orders and laid down the rule with regard to putting of handcuffs and fetters on prisoners and the Patna High Court was specific when in Bepin Behari Sinha vs. The State of Bihar with regard to sick prisoners of Sasaram jail tied to the bed in the hospital by way of handcuffs and in Ramdeo Rai, a full bench of the same court went to an extent to order all fetters and handcuffs from the body of sick prisoners in the whole state of Bihar way back in the year 1989 and this writer had the occasion to appear in both the cases. If it is looked in general persons handcuffed in transit are not an uncommon sight. The fettered or handcuffed person may be a under trial, political agitator , anti social element or a convict being transferred from one prison to the other or in hospitals .
In the present days enlightened world hand cuffing or fettering is considered inhuman and protested all around the world, now in the Indian concept if the law is seen specially, only male convicts of division three shall be handcuffed during transit. Division one and two convicts are to be handcuffed only if there are reasons to suspect that they may attempt to escape. Female and juveniles are exempted from the said rule. With regard to arrested prisoners and under trail being taken to a magistrate and shall not be subjected to more restraint than it is necessary to prevent escaping.
Prisoners Act, 1894 in India deals with the confinement in iron. According to section 58 no prisoner shall be shackled by the jailor except in cases of urgent necessity with a notice to the superintendent. But the Supreme Court in Kadar Pehariya Vs. The State of Bihar AIR 1981 SC 939 has specified that an under trial cannot be kept in fetters in a jail and can be used in gravest of situations.
The Encyclopedia Britannica also states that handcuffs and fetters are instruments for securing the hands or feet of the prisoners under arrest or as a means of punishment.
Further the Supreme Court observed that the insurance against escape doesnot compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detainee without the indignity and cruelty implicit in handcuffs or other iron contraptions.
The use of iron is animalizing the person on whom it is used and as since there are other ways of ensuring security it can be laid down as a rule that handcuffs and fetters shall not be forced on the person of an under trail. So it is that to be consistent with Article 14 and 19 of the constitution of India must be as a last refuge and not as a routine.
Similarly in Sunil Batra''s case way back in 1980 and in and Hira Lal Mallah vs. State of Bihar AIR 1977 SC 2236 the Supreme Court had held that the arrest of the person does not take away his fundamental right and only his movement is restricted on being arrested and it had further held that handcuffing of undertrials in transit for non availability of constables is not permissible under the law, as a preventive major by the police authorities and the jail authorities is in violation of Articles 14,19 and 21 of the Indian Constitution.
The Apex court in State Of Maharastra Vs.R.K.S.Patil (1991) 2 SCC 373 directed the State Of Maharastra to pay Rs.10,000 to the undertrail prisoner, who was paraded in the streets hand cuffed. Similarly in Sunil Gupta Vs. State Of M.P.(1990) 3 SCC 119 it directed the state authorities not to put handcuffs or fetters, if the person being arrested accepts the arrest and doesnot resist and if it is still used this will amount to violation of Article 21 of the Constitution of India.