Supreme Court of India
PETITIONER: PREM SHANKAR SHUKLA
Vs.
RESPONDENT: DELHI ADMINISTRATION
DATE OF JUDGMENT29/04/1980
BENCH: KRISHNAIYER, V.R.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 1535
1980 SCR (3) 855
1980 SCC (3) 526
CITATOR INFO :
F
1988 SC1768
(2)
A
1991 SC2176
(41)
ACT: Human justice vis-a-vis
Detention Jurisprudence- Manacling a man accused at
an offence, constitutional validity of-Constitution of India Articles 14, 19 and 21- Issuance of Writ of Habeas Corpus for human Justice under Article 32 of the Constitution-Universal Declaration of Human Rights, 1948 Articles 5 and 10 read with norms in part III and
the provisions
in the Prisoners (Attendance in Courts) Act, 1955-Punjab Police Rules, 1934, Vol. III Chap. 25. Rule 26: 22, 23.
HEADNOTE:
Allowing the petition the Court
HELD: Per
Iyer J. (on behalf of Chinnappa Reddy J. and himself).
1. The guarantee of human dignity forms part of an Constitutional
culture
and the positive provisions of Articles 14, 19 and 21 spring into action to disshackle any man since to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his
very personhood, too
often using the mask of 'dangerousness' and security. Even
a prisoner is a person not an animal, and an under-trial prisoner is a fortiori so. Our nations founding document admits
of no
exception. Therefore, all measures authorised by the law must be taken by the Court to keep the stream of prison justice unsullied. [862 D-F, 863 E-F] Sunil Batra v. Delhi Administration and ors. [1978] 4 S.C.C. 494; followed .
2. The Supreme Court is the functional sentinel on the qui vive where "habeas" justice is in jeopardy. If
iron enters the soul of law and of the enforcing agents of law- rather, if it is credibly alleged so-the Supreme Court must fling aside forms of procedure and defend the complaining individual's personal liberty under Articles 14 19 and 21 after due investigation. Access to human justice is
the essence of Article 32. [864 A-B]
3. Where personal freedom is at stake or torture is in store to read down the law is to write off the law and to rise to
the remedial demand of the manacled man is to break human bondage. if within the reach of judicial process. [864 F-G]
4. There cannot be a quasi-caste system among prisoners in the egalitarian context of Article 14. In plain language, to say
that the "better class under-trial be not handcuffed without
recording the
reasons in the daily diary
for considering the
necessity of the use
on such
a prisoner while escort to and from court" means that ordinary Indian under-trials shall be rentively handcuffed during transit between jail and court auld the better class prisoner shall be so confined only if
reasonably apprehended to be violent or rescued and is against the express provisions of Article 21. Maneka Gandhi v. Union of India [1978] 2 SCR 621 @ 647; applied. Vishwanath v. State Crl.
Misc. Main No. 430 of 1978 decided on 6-4-79 (Delhi High Court), overruled.
5. Though
circumscribed by the constraints of lawful detention, the indwelling essence and inalienable attributes of man
qua man
are entitled to the great rights guaranteed by the Constitution. That is why in India, as in the similar jurisdiction in America, the broader horizons of
habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades human dignity or defiles his personhood to a degree that violates Articles 21, 14 and 19 enlivened by the Preamble.
6. The collection of handcuff law, namely, Prisoners (Attendance in Courts) Act, 1955; Punjab Police Rules, 1934, (Vol. III) Rules 26: 22(i) (a) to (f); 26.21A, 27.12, Standing order
44, Instruction
on handcuffs of November, 1977, and orders of April 1979, must meet the demands of Articles 14, 19 and 21. Irons
forced on under-trials in transit must conform to the humane imperatives of the triple Articles. Official
cruelty, sans
constitutionality degenerates into criminality. Rules, standing orders, Instructions and Circulars must bow before Part III of the Constitution.
The Preamble sets the human tone and temper of the Founding Document and highlights justice, Equality and the dignity of the individual. 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. such is the apercu. Maneka Gandhi v. Union of India,
[1978] 2 SCR 621 @ 647; Sunil Batra v. Delhi Administration, [1978] 4 S.C.C. 494 @ 545; reiterated.
7. Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh And at the first blush, arbitrary. Absent fair procedure and objective monitoring to inflict
"irons" is to resort to zoological strategies repugnant to Article 21. Surely, the
competing claims of securing the prisoner
from fleeing
and protecting
his personality from barbarity have 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, vulgarise society and foul the soul of our Constitutional culture.
8. Insurance against escape does not
compulsorily required handcuffing. 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 In contraptions. Indeed, binding together
either the hands or 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 three components of "irons" forced on the human person are: to handcuff i.e., to
hoop harshly
to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising
victim
and keepers. Since
there are other ways of ensuring safety as a rule handcuffs
or other fetters shall not be forced on the person of an under-trial prisoner ordinarily. As necessarily implicit in Articles 14 and 19, 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 Article 14 on the face. The animal freedom of
movement, which
even a
detained is entitled to under Article 19, cannot be cut down cruelly by application of
handcuffs or
other
hoops.
lt 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 circumstances so hostile to safe keeping.
9. Once the Supreme Court make it a constitutional mandate and law that no prisoner shall be handcuffed or fettered routinely or merely for the
convenience of
the custodian or escort, the distinction
between
classes of prisoners become constitutionally obsolete. Apart from the fact that economic an
i social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, a rich criminal or under-trial is
in no
way 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. Therefore, 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 differential as the law
heats
them equally. It is brutalising 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.
10. The
only
circumstance
which
validates incapacitation by irons-an extreme measure-is that otherwise there is no other reasonable way of preventing his escape, in the
given circumstances. Securing the prisoner being a necessity of judicial trial, the State must take steps in this behalf. But even here, the policeman's easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are
not fitted on the prisoner is
not enough. The heavy deprivation
of personal liberty must be justifiable as
reasonable restriction in the circumstances. Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means
is fraught with risks or beyond availability. So it is
that to be consistent with Arts. 14 an(l 19
handcuffs must
be the last refuge, not the routine regimen. If a
few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm.
Functional compulsions of
security must
reach
that dismal degree that no alternative will work except manacles. 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. Discipline can be exaggerated by prison keepers; dangerousness
can be physically worked up by escorts and sadistic disposition, where higher awareness of constitutional rights is absent, may overpower the finer values of dignity and humanity.
Therefore, there must first be well-grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or
play the vanishing trick. The belief in this behalf 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.
In short, save in rare cases
of concrete proof readily available of the dangerousness of the prisoner in transit-the onus of proof of which is on him who puts the person under irons-the police
escort will be committing personal assault or mayhem if he handcuffs or fetters his charge. It is disgusting to see the mechanical way in which callous policemen, cavalier fashion, handcuff prisoner in their charge, indifferently keeping them company assured by the thought that the detainee is under 'iron' restraint.
11. Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there
is material,
sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who
is being transported and
further that by adding to the escort party or other strategy he cannot be kept under control. It is hard to imagine such situations. It is unconscionable, indeed outrageous, to make the strange classification between better class prisoners and ordinary prisoners in the matter
of handcuffing. This elitist concept
has no
basic except that on the assumption the ordinary Indian is a sub-citizen and freedoms under Part III of
the Constitution are the privilege of the upper sector of society.
Merely because a person is charged with a grave offence he cannot be handcuffed. He may be very quiet, well-behaved, docile or even timid. Merely because the offence is serious, the inference of escape-proneness or
desperate character does not follow. Many
other conditions mentioned Police Manual are totally incongruous
and must fall as unlawful. Tangible testimony,
documentary or other, or desperate behaviour, geared to making good his escape, along will be
a valid ground for handcuffing and fettering, and even this may be avoided by increasing the strength of the escorts or taking the prisoners in well-protested vans. And increase in the number of escorts, arming them if necessary special training for escorts police, transport of prisoners in protected vehicles, are easily available alternatives.
12. Even in cases where, in extreme circumstances handcuffs have
to be put on the prisoner, the escorting authority must record contemporaneously the
reasons
for doing so. otherwise under Art. 21 the procedure will be unfair and bad in law. Nor will mere recording of
the reasons do, 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. Otherwise, there is no
control over possible arbitrariness in applying handcuffs and fetters. The minions of the police establishment must make good
their security
recipes by getting judicial approval. And, once the court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This
is implicit in Art. 21 which insists upon fairness, reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty.
Maneka Gandhi v. Union of India [1978] 2 SCR 621, & Sunil Batra v Delhi Administration
[1978]
4 SCC
494; applied.
13. Punjab
Police Manual,
in so
far as
it puts
the ordinary Indian
beneath the better class breed (paragraphs 26.21A and 26.22 of Chapter XXVI) is untenable and arbitrary and Indian humans shall not be dischotomised and the common run discriminated against regarding handcuffs.
The provisions in para 26.22 that every under trial who is accused of a non-bailable offence punishable with more than 3 years prison term
shall be routinely handcuffed is violative of Arts. 14, 19 and 21. So also para 26.22 (b) and (c). The nature of the accusation is not the criterion. The clear and present danger of escape breaking
out of
the police control
is the determinant. And for this there must be clear material not qlib assumption record of reasons and judicial oversight and summary hearing and direction by the Court where the victim
is produced. Para 26, 22(1)(d), (e) and (f) also
hover perilously near
unconstitutionality unless read down Handcuffs are not
summary punishment vicariously imposed at police
level, at once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under-trial and
extra guards can make up exceptional needs. In very
special situations,
the application of
irons cannot be ruled
out. The prisoner cannot
be tortured because others will demonstrate or attempt his rescue. The plain law of under trial custody is thus contrary to unedifying escort practice.
14. The impossibility of
easy recapture
supplied the temptation to jump custody, not the nature of the offence or sentence. Likewise, the habitual or violent 'escape propensities' proved by past conduct or present attempts are a surer
guide to the prospects of ruling away on the sly or by use of force than the offence with which the person is charged or the sentence. Many a murderer, assuming him to be one, is
otherwise a normal, well behaved, even docile, person and it rarely registers in his mind to run away or force his escape. It is an indifferent escort or incompetent guard, not the Section
with which the accused is charged, that must give the clue to the few escapes that occur. To abscond is a difficult adventure. "Human rights" seriousness loses it valence where dministrator's convenience prevails over cultural values. There is no genetic criminal tribe as such among humans. A disarmed arrestee has no hope of escape from the law if recapture is a certainty. He heaves a sigh
of relief if taken into custody as against the desperate evasions of the chasing and the haunting fear that he may be caught
any time It
is superstitious to practise
the barbarous bigotry of handcuffs as a
routine regimen-an imperial heritage well preserved. The problem is to get rid of mind-cuffs which make us callous to hand-cuffing prisoner who may be a patient even in the hospital bed and tie him up with ropes to the legs of the cot.
15. The rule regarding a prisoner in transit between prison house and court
house is freedom from handcuffs and the exception, under conditions of judicial supervision will be restraints with irons to be justified before or after. The judicial officers, before whom the prisoner is Produced shall 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 he asked to explain the action forthwith. [879 G-H, 880 A-B] Per Pathak J. (Concurring)
1. It is an axiom of criminal law that a person alleged to have
committed an offence is liable to arrest. Sections 46 and
49 of the Code
of Criminal Procedure
define
the parameters of the power envisaged in the Code in the matter of arrest. And s. 46, in particular foreshadows the central principle controlling the power to impose restraint on the person of a prisoner while in continued custody. Restraint may be
imposed where it is reasonably apprehended that the prisoner will attempt to escape, and it should not be more than is
necessary to prevent him from escaping. Viewed in the light of the law laid down by this Court in Sunil Batra v. Delhi Administration and ors., [1978] 4 SCC 494; that a person in custody is not wholly denuded of his fundamental rights, the limitations flowing from that principle acquire a profound significance.
The power to restrain, and the degree of restraint to be employed, are not for arbitrary exercise. An arbitrary exercise of that power
infringes the fundamental rights of the person in custody. And a malicious use of that power can bring s. 220 of the Indian Penal Code into play. Too often is it forgotten that if a police officer is vested with the power to restrain a person by handcuffing hum or otherwise there is a simultaneous restraint by the law on the police officer as to the exercise of that power.
2. Whether
a person should be physically restrained and, if
so, what should be the degree of restraint, is a matter which affects the person in custody so long as he remains in 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 at once defines that power.
3. Section
9(2)(e) of the Prisoners (Attendance in Court) Act, 1955 empowers the State overnment 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.
The rule should be that the authority responsible for the prisoners custody should consider
cases 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 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.
4. 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. It is the basic assumption that all individuals are entitled to enjoy that dignity that determines the rule that ordinarily no restraint should be imposed except in those cases where there is a reasonable
fear of the prisoner attempting to escape or attempting violence. 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.
Then there is need to guard against a misuse of the power from other motives. It
is grossly objectionable that
the power given by the law to impose a restraint, either by applying handcuffs or
otherwise, should be
seen as an opportunity for
exposing the accused to public ridicule and humiliation. Nor is
the power intended
to be
used vindictively or by way of punishment. Even Standing order 44 and the
instructions on handcuffs of November 1977 operate some what in excess of the object to
be observed by the imposition of
handcuffs, having regard to
the central principle that
only he
should be handcuffed
who can be reasonably apprehended
to attempt from escape or become violent.
5. 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. It is a judgment to be exercised with reference to each individual case. It is for that authority to exercise its discretion. The primary decision should not be that of any other The matter is one where the circumstances may change from one moment 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. The prior decision of an external authority can not be reasonably imposed on the exercise of that power. But there is room for imposing a supervisory regime over the exercise of that
power.
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
6. In the
present case,
the question
whether
the petitioner should be handcuffed should be left to be dealt with by
the Magistrate
concerned before whom he is brought for trial in the cases instituted against him.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 1079 of 1979. (Under Article 32 of the Constitution.) Dr. Y.S. Chitale, (Amicus Curiae) and Mukul Mudgal, for the petitioner.
R.N. Sachthey, H.S. Marwah and M.N. Shroff for
the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER J.-"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." 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 in vigilates
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:
In spite of Court order and
directions of
your Lordship in Sunil Batra v. Delhi handcuffs are forced on me and others. Admit writ of Habeas Corpus.
Those who
are injured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human dignity, which
forms h
part of our constitutional culture, and the
positive provisions of Arts.
14, 19 and 21 spring into action when we realise that to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very personhood, too often using the mask of 'dangerousness' and security. This sensitized perspective, shared by court and counsel alike, has prompted us to examine the issue from
a fundamental
viewpoint and not to dismiss it as a daily sight to be pitied and buried Indeed, we have
been informed
that the High Court
had earlier dismissed this
petitioner's demand to be freed from fetters on his person but we are far from satisfied going by what is stated in Annexure A to the counter-affidavit of the Asst. Superintendent of Police, that
the matter has received the constitutional
concern
it deserves. Annexure A to
the counter-affidavit is
a communication from
the Delhi Administration for general guidance and makes disturbing reading as it has the flavour of legal advice and executive directive and makes mention of a petition for like relief in the High Court:
The petition was listed before Hon'ble Mr. Justice Yogeshwar Dayal of Delhi
High Court. After hearing arguments, the Hon'ble Court was pleased to dismiss the petition filed by the petitioner Shri P.S. Shukla asking
for directions for not putting the handcuffs when escorted from jail to the court and back to the Jail. In view of the circumstances
of the case, it was observed that no directions were needed. However,
it came to my notice that the requirements of Punjab Police Rules contained in Volume III Chapter 25 Rule 26, 22, 23 and High Court Rules and
orders Volume III Chapter 27 Rule 19 are not being complied with. I would also draw the attention of all concerned to the judgment delivered by Mr. Justice R.N. Aggarwal in Vishwa Nath Versus State, Crl. Misc. Main No. 430 of 1978 decided on 6-4-1979 wherein it has been observed that a better class under-trial be not handcuffed with out recording the reasons in the daily diary for
considering the necessity of the use of such a prisoner
is being escorted to and from the court by the police, use of handcuffs be not reported to unless there is a reasonable expectation that such prisoner will use violence or that an attempt will be made to rescue him. The
practice of use of handcuffs be followed in accordance with the rules mentioned above.
In plain language, it
means that ordinary Indian under- trials shall be routinely handcuffed during transit between jail and court and the better
class prisoner
shall be so confined only if reasonably apprehended to be violent or rescued.
The facts
are largely beyond dispute and need brief narration so that the law may be discussed and declared. The basic assumption we humanistically make is that even a prisoner is a person, not an animal, that an under-trial prisoner a fortiori so. Our
nation's founding document admits of no exception on this subject as Sunil Batra's case has clearly stated. Based on
this thesis, all measures authorised by the law must be taken by the court to keep the stream of prison Justice unsullied.
A condensed statement of the facts may help concritise the legal issue argued before us. A prisoner sent a telegram to a judge of
this Court (one of us) complaining of forced handcuffs on him and other prisoners, implicitly protesting against the humiliation and torture of being held in irons in public, back and forth, when, as under-trials kept in custody in the Tihar Jail, they were being taken to Delhi courts for trial of their cases. The practice persisted, bewails the petitioner, despite the court's direction not to use irons on him and this led to the telegraphic
'litany' to the Supreme Court which is the functional sentinel on the qui-vive where 'habeas' justice is in jeopardy. If iron enters the soul of law and of the enforcing agents of law-rather, if it
is credibly alleged so-this court must fling aside forms of procedure and defend the complaining
individual's personal
liberty under Arts. 14, 19
and 21
after due investigation. Access to human justice is the essence
of Art. 32, and sensitized by this dynamic perspective we have examined the facts and the law and the
rival versions
of the
petitioner and the Delhi Administration.
The
blurred area of 'detention jurisprudence' where considerations of prevention of escape and personhood
of prisoner come into
conflict, warrants fuller exploration than this isolated case necessitates and counsel on both sides
(Dr. Chitale as amicus curiae, aided ably by
Shri Mudgal, and Shri Sachthey for the State) have rendered brief
oral
assistance and presented written submissions on
a wider basis. After all,
even while discussing the relevant statutory provisions
and constitutional requirements, court and
counsel must never forget the core principle found in Art. 5 of the Universal Declaration of Human Rights, 1948:
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." And read Art. 10 of the International Covenant on Civil and Political Rights:
Art. 10: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Of course, while these larger considerations may colour our mental process,
our task cannot over flow the actual facts of the
case or
the norms in Part III and the Provisions in the Prisoners (Attendance in Courts) Act, 1955 (for short, the Act). All that we mean is that where personal freedom is at stake or torture is in store to read down the law is to write off the law and to rise to the remedial demand of the manacled man is to break human bondage, if within the reach of the judicial process. In this jurisdiction, the words of Justice Felix Frankfurter are a mariner's compass:
"The history of liberty has largely been the history of observance of procedural safeguards.
And, in Maneka Gandhi's case it has been stated:
'the ambit of personal liberty protected by Art. 21
is wide and
comprehensive. It embraces
both substantive rights to personal
liberty and
the procedure provided for their deprivation." Has the handcuffs device-if so, how far-procedural sanction? That is the key question.
The prisoner complains that he was also chained
but that fact is controverted and may be left out for while. Within this frame of facts we
have to consider whether it was right that Shukla
was shackled. The respondent relies upon the provisions of Act and the rules framed there under and under the Police Act as making shackling lawful.
This plea of
legality has
to be
scanned for constitutionality in light of submissions of
Dr. Chitale who heavily relies upon Art. 21 of Constitution and the collective consciousness relating to human rights burgeoning in our half-century.
The petitioner is an
under-trial prisoner whose presence is needed in several cases, making periodical trips between jail house and magistrate's courts inevitable. Being in custody he may try to flee and so escort duty to prevent escape is necessary. But escorts, while taking responsible care not to allow their charges to escape, must respect their personhood. The dilemma of human rights jurisprudence comes here. Can the custodian fetter
the person of
the prisoner, while
in transit, with irons, maybe handcuffs or chains or bar fetters?
When does such traumatic treatment break into the inviolable zone of guaranteed rights? When does disciplinary measure end
and draconic torture begin ? What are the constitutional parameters, viable guidelines and practical strategies which will permit the peaceful co- existence of custodial conditions and basic dignity?
The decisional focus turns on this know-how and it affects tens of thousands of persons languishing
for long years in prisons with pending trials Many. Shukla's in shackles are invisible parties before us that makes the issue a matter of moment. We appreciate the services of
Dr. Chitale and his junior Shri Mudgal who
have appeared
as amicus curiae and belighted the blurred area of law and recognise the help rendered by Shri Sachthey who has appeared for the State and given the full facts.
The petitioner claims that he is a 'better class' prisoner, a fact which
is admitted, although one fails to understand how
there can be a quasi-caste system among prisoners in the egalitarian context of Art. 14. It is a sour fact of lire that discriminatory treatment based upon wealth and circumstances dies hard under the Indian Sun. We hope the Ministry of Home
Affairs and
the Prison Administration will take due note of
the survival after legal death of this invidious distinction and put all prisoners 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. Be that as it may, under the existing rules,
the petitioner is a better
class prisoner
and claims certain advantage for that reason in the matter of freedom
from handcuffs. It is alleged by the State that there are several cases where the petitioner is needed in the courts of Delhi. The respondents
would have it that he is "an inter-State cheat and a very clever trickster and tries to brow-beat and misbehave with
the object to
escape
from custody." of course, the petitioner contends that
his social status, family background and academic
qualifications warrant
his being treated as a better class prisoner and adds that the court had directed that for that
reason
he be
not handcuffed. He
also states that under
the relevant rules better class prisoners are exempt from handcuffs and cites in support the view of the High Court of Delhi that a better class under-trial should not be handcuffed without recording of reasons in the daily diary for considering the necessity for the
use of
handcuffs. The High Court appears to have observed (Annexure A to the counter-affidavit on behalf of the State) that unless
there be reasonable expectation of violence or attempt to be rescued the prisoner should not be handcuffed.
The fact,
nevertheless, remains that even apart from the High Court's order the trial judge (Shri A. K. Garg) had directed the officers concerned that while escorting
the accused from jail to court and back handcuffing should not be done unless it was so warranted.
"....I direct
that the officers concerned while escorting the accused from jail to court and back, shall resort to handcuffing only if warranted by rule applicable
to better class prisoners
and if so warranted by the exigency of the situation on obtaining the requisite permission as required under the relevant rules."
Heedless of judicial command the man
was fettered during transit, under
superior police
orders, and so this
habeas corpus petition
& this Court appointed Dr. Y. S. Chitale as
amicus uriae, gave suitable directions to the prison officials to make the
work of
counsel fruitful and issued notice to the State before further action. "To wipe every tear from every eye" has judicial dimension. Here is a prisoner who bitterly complains that he has been publicly handcuffed while being escorted to court and invokes
the court's power to protect the integrity of his person and the dignity of his humanhood against custodial cruelty contrary to constitutional prescriptions.
The Superintendent
of the Jail pleaded he had nothing to do with the transport to and from court and Shri Sachthey, counsel for the Delhi Administration, explained that escorting prisoners between custodial campus and court was the
responsibility of a special wing of the police. He urged that when a prisoner was a security-risk, irons were not allergic to the law and the rules permitted their use. The petitioner
was a clever crook and by enticements would escape from gullible constables. Since iron was too stern to be fooled, his hands were clad with handcuffs. The safety of the prisoner being the
onus of the escort police the order of the
trial court was not blindly binding. The Rules state so and
this explanation must absolve the police. Many more details have been mentioned in the return of
the police officer concerned and will be referred to where necessary but the
basic defence, put in blunt terms, is that all soft talk of
human dignity is banished when security claims come into stern play. Surely, no
cut-and-dried
reply to a composite security-versus-humanity question can be given. We have been persuaded by
counsel to consider this grim issue because it occurs frequently and the law must be clarified for the benefit of the escort officials and
their human charges. Dr. Chitale's
contention comes to this: Human rights are not constitutional clap trap in silent meditation but part of the nation's founding charter in sensitized animation. No prisoner is beneath the law and while the Act does provide for rules regarding journey in custody when the court demands his presence, they must be read in the light of the larger back drop of human rights.
Here is a prisoner-the petitioner-who protests against his being handcuffed
routinely, publicly, vulgarly
and unjustifiably in the trips to and fro between the prison house and the court house in callous contumely and invokes the writ jurisdiction
of this Court
under
Art. 32 to protect, within the limited circumstances of
his lawful custody. We must investigate the deeper issues of detainee's rights
against
custodial cruelty and infliction
of indignity. within the human rights parameters of Part III of the Constitution, informed
by
the compassionate international charters and covenants.
The raw
history of human bondage and the
roots of the
habeas
corpus
writ enlighten the wise exercise of constitutional power in enlarging the person of men in unlawful detention. No longer is this
liberating writ tramelled by the traditional limits of English vintage; for, our founding fathers exceeded the inspiration of
the prerogative
writs by phrasing the power in larger diction. That is why, in India, as in the similar jurisdiction in
America, the broader horizons of Habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades human dignity or defiles his personhood to a
degree that violates Arts. 21, 14 and l 9 enlivened by the Preamble.
The legality of
the petitioner's custody is
not directly in issue but, though circumscribed by
the constraints of
lawful detention, the indwelling essence and inalienable attributes
of man
qua man are entitled to the great rights guranteed by the Constitution.
In Sunil Batra's case (supra) it has been laid down by a Constitution
Bench of this Court that imprisonment does not, ipso facto Mean that fundamental
rights
desert
the detainee There is no dispute that the petitioner was, as a fact handcuffed on several occasions. It is admitted, again, that the petitioner
was so
handcuffed on 6-10-1979 under orders of the Inspector of Police whose reasons set out in Annexure E, to say the
least,
are vague and
unverifiable,
even vagarious Counsel for the respondent in his written submissions states that the petitioner is involved in over a score of cases. But that, by itself, is no ground for handcuffing the prisoner. He further contends that the police authorities are in charge of escorting prisoners and have the discretion to handcuff them, a claim which must be substantiated not merely with reference to the Act and the Rules but also the Articles of the Constitution. We may first state the law and then test that law on the touch-stone of constitutionality.
Section 9(2)(e) of the Act empowers the State Government to make Rules regarding 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 (Vol. III), contain some relevant provisions
although the statutory source is not cited. We may extract them here:
26.22(1) Every male
person
falling
within
the following category, who has to be escorted in police custody, and whether under police arrest, remand Conditions in which or trial, shall, provided that he handcuffs are to be appears to be in health and not used.
incapable of offering effective resistance by reason of age, be carefully handcuffed on arrest and before removal from any building
from which he may he taken after arrest:-
(a) persons accused of
a non bailable offence punishable with any sentence exceeding in severity a term of three years' imprisonment.
(b) Persons accused of an offence punishable under section 148 or 226, Indian Penal Code.
(c) Persons accused of, and previously convicted of, such an offence as to bring the case under section 75, Indian Penal Code.
(d) Desperate characters.
(e) Persons who are violent, disorderly or obstructive or acting in a manner calculated to provoke popular demonstration.
(f) Persons who are likely to attempt to escape or to commit suicide or to
be the object of an attempt at rescue. This rule shall
apply
whether
the prisoners are escorted by road or in a vehicle. (2) Better class under-trial
prisoners must only be hand cuffed when this is regarded as necessary for safe custody, When a
better
class
prisoner is handcuffed for reasons other than those contained in (a), (b)
and (c) of
sub-rule (1)
the officer responsible shall
enter in the Station Diary or other appropriate record
his reasons for considering the use of hand-cuffs necessary.
This paragraph
sanctions handcuffing as a routine exercise on arrest, if any of the conditions (a) to (f) is satisfied. 'Better
Class' under-trial
prisoners receive
more respectable treatment in the sense that they shall not be handcuffed unless it is necessary for safe custody Moreover, when handcuffing better class under-trials
the officer concerned shall
record the reasons for considering the use of handcuffs necessary.
Better class prisoners are defined in rule 26.21-A which also may be set out here:
26.21-A. Under-trial
prisoners are divided
into two classes based on previous standard of living. The classifying authority is the trying court subject to the approval of the District Magistrate, but during the period before a Classification of
under- prisoner
is brought before a trial prisoners.
competent court, discretion shall be exercised by
the officer in
charge of Police Station concerned to classify him as either 'better class' or 'ordinary'. Only those prisoners should be classified provisionally as 'better
class' who by social
status, education or habit of life have been accustomed to a superior mode of living. The fact, that
the prisoner is to be
tried for the commission of
any particular class of offence is not to be considered. The possession of a certain degree of literacy is in itself not sufficient for 'better class' classification and no under-trial prisoner shall be so classified whose mode
of living does not appear to
the Police officer concerned
to have definitely superior to that of the ordinary run of the population, whether urban or rural. Under-trial prisoners classified
as 'better class' shall be given the diet on the same scale as prescribed for A and B class convict prisoners in Rule 26.27(1).
The dichotomy between ordinary
and better class prisoners has relevance to the facilities they enjoy and also bear upon the manacles that
may be
clamped on their person. Social status, education. mode of living superior to that of the ordinary run of the population are the demarcating tests.
Paragraph 27.12 directs that prisoners brought
into court in handcuffs shall continue in handcuffs unless removal thereof
is "specially
ordered by the Presiding officer", that is to say, handcuffs even within the court is the rule and removal an exception.
We
may advert to revised police instructions
and standing orders
bearing on handcuffs on prisoners since the escort officials treat these as of scriptural authority. Standing order 44 reads:
(1) The rules relating to handcuffing of political prisoners and others are laid down in Police Rules 18.30, 18.35, 26.22, 26.23 and 26.24. A careful Perusal of these provisions shows that handcuffs are to be used if a person is involved in serious non-bailable offences, is a previous convict, a desperate character, violent, disorderly or obstructive or
a person who is likely to commit suicide or who may attempt to escape.
(2) In accordance with the instructions issued by the Government of India, Ministry
of Home- Affairs, New Delhi vide their letters No.
2/15/57-P-IV dated 26-7-57 and No. 8/70/74-GPA-I dated 5-11-74, copies of which
were sent to all concerned vide this Hdqrs. endst. No. 19143-293/C&T dated 3-9-76, handcuffs are normally, to be used by
the Police
only where the accused/prisoner is violent, disorderly, obstructive
or is
likely to attempt 'to escape or commit suicide or is charged with certain serious non- bailable' offences.
(3)
x x
x x
x x
(4) It has been
observed that
in actual practice prisoners/persons arrested by the police are handcuffed as a matter of routine. This is to be strictly stopped forthwith.
(5) Handcuffs should not
be used in routine. They are to be used only where the person is desperate, rowdy or is involved in non-bailable offence. There should ordinarily be no occasion to handcuff Persons occupying a
good social position in public life, or professionals like jurists, advocates doctors, writers, educationists and
well known journalists. This is at best an illustrative list; obviously it cannot be exhaustive. It is the spirit behind these instructions that should be understood. It shall be the duty of supervisory
officers at
various levels, the
SHO primarily, to see that these instructions are strictly complied with.
In case of
non-observance
of these instructions severe action should be
taken
against
the defaulter.
There is a procedural safeguard in sub-clause (6): (6) The duty officers of the police station must also ensure that an accused when brought at the police station or despatched. the
facts where he was handcuffed or otherwise should be clearly mentioned along with the
reasons
for handcuffing in the relevant daily diary report. The SHO of the police station and ACP
of the Sub-Division
will occasionally check up the relevant daily diary to see that these instructions are being complied with by the police station staff Political
prisoners, if
handcuffed, should not be walked
through the streets (sub-para 7)
and so, by implication others can be.
These orders are of April 1979 and cancel those of 1972. The instructions on handcuffs of November 1977 may be reproduced in fairness:
In practice it has been observed
that handcuffs
are being used for under-trials
who are charged with
the offences punishable with imprisonment
of less than 3 years which is contrary to the instructions of P.P.R. unless and until the officer handcuffing the under-trial has reasons to believe that the handcuff was used because the under-trial was violent, disorderly or obstructive or acting in the manner calculated to provoke popular demonstrations or he has apprehensions that the person so handcuffed was likely to attempt to escape or to commit suicide or any other reason of that type for which he should record a report in D.D. before use of hand. cuff when and wherever available.
The above instructions
should
be complied
with meticulously and all formalities for use of handcuff should be done before the use of handcuffs.
This collection of handcuff law must meet the demands of Arts. 14, 19 and 21. In the Sobraj case the imposition of bar fetters on B, a prisoner was subjected to constitutional scrutiny by this Court. Likewise, irons forced on under- trials in transit must conform to the humane imperatives of the triple
articles. Official
cruelty,
sans constitutionality, degenerates
into
criminality. Rules, Standing orders, Instructions and Circulars must bow before Part III of the Constitution. So the first task is to assess the limits set by these I articles.
The Preamble sets the humane tone and temper of the Founding Document and highlights Justice, Equality and the dignity of the individual. Art. 14 interdicts arbitrary treatment discriminatory dealings and
capricious cruelty. Art. 19
prescribes restrictions on free movement unless in the interests of the general
public.
Art 21 after
the landmark case in Maneka Gandhi followed by
Sunil Batra (supra) is the sanctuary of human values prescribes
fair procedure and forbids barbarities, punitive or processual. Such is the apercu, if we may generalise.
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 have to be harmonised. 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. 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 Encyclopaedia 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 vulgarise the viewers also. Iron straps are insult and pain writ large, animalising 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 (see Sunil Batra, supra) 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 brutalising 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.
The only circumstance which validates incapacitation by irons-an extreme measure-is that otherwise there is no other reasonable way
of preventing
his escape, in the given circumstances. Securing
the prisoner being a
necessity of judicial trial,
the State must take steps in this behalf. But even here, the policeman's easy assumption or scary apprehension or
subjective satisfaction of likely escape if fetters are not fitted
on the
prisoner is not enough. The heavy deprivation of personal liberty must be justifiable as reasonable restriction
in the circumstances. Ignominy, inhumanity and
affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means is
fraught with
risks
or beyond availability. So it is
that to be consistent with Arts. 14 and 19
handcuffs must
be the
last refuge, not the routine regimen. If a
few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm.
Functional compulsions of
security must
reach
that dismal degree that no alternative will work except manacles. We must
realise that our Fundamental
Rights
are heavily loaded in favour of- 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. Discipline can be exaggerated
by prison keepers; dangerousness can be physically worked up by escorts
and sadistic disposition, where higher awareness
of constitutional rights is absent, may overpower the values of dignity and humanity. We regret to observe that cruel and unusual treatment has an unhappy appeal to jail keepers and escorting officers, which must be countered by strict directions to keep to
the parameters
of the constitution. The conclusion
flowing from these considerations is
that there must first be well-grounded basis for drawing a strong inference that
the prisoner is likely to jump jail or break out of
custody or play the vanishing trick. The belief in this behalf 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. In short,
save in rare
cases
of concrete proof readily available of the dangerousness
of the prisoner in transit- the onus of proof of which is on him who puts the person under irons-the
police escort
will be
committing personal assault or mayhem if he handcuffs or fetters his charge. It is disgusting to see the mechanical way in which callous policemen, cavalier fashion, handcuff
prisoner in their charge, indifferently keeping them company assured by the thought that the detainee is under 'iron' restraint.
Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported
and further that by adding to the escort party or
other strategy he cannot be kept under control. It
is hard to imagine such situations. We must repeat that
it is unconscionable, indeed, outrageous, to
make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing.
This elitist concept has no basis except that on
the assumption the ordinary Indian is a sub-citizen and freedoms under Part III of the constitution are
the privilege of the upper sector of society.
We must clarify a
few other facets, in
the light of Police Standing
orders. Merely
because a person is charged with a grave offence he cannot be handcuffed, He may be very quiet, well-behaved, docile or
even timid. Merely because the offence is serious, the inference of escape proneness or desperate character does not follow. Many other conditions mentioned in the Police Manual are totally incongruous with what we
have stated above and must
fall as unlawful. Tangible testimony, documentary or other, or desperate behaviour, geared to making good his escaped alone will be a valid ground for handcuffing and fettering, and even this may be
avoided by increasing the strength of the escorts or taking
the prisoners
in well protected vans. It is heartening to note that in some States in this country no handcuffing is
done at all, save in rare cases, when taking under-trials to
courts and the scary impression that unless the person is confined
in irons he will run
away is a convenient myth.
Some increase in the number of escorts, arming them if necessary, special training for escort police, transport of prisoners in
protected vehicles, are easily available alternatives and, in fact, are adopted in some States in the country where handcuffing is virtually abolished, e.g. Tamil Nadu.
Even in
cases where,
in extreme circumstances, handcuffs have
to be put on the prisoner, the escorting authority must
record
contemporaneously the
reasons
for doing so. Otherwise, under Art. 21 the procedure will be unfair and bad in law. Nor will mere recording the reasons do, 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. Otherwise, there is no control over possible arbitrariness
in applying handcuffs and fetters. The minions of the police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall be off no escorting authority can overrule judicial direction. This is implicit in Art.
21 which insists upon fairness, reasonableness and justice in the very procedure which authorises stringent deprivation of
life and liberty. The ratio in Maneka Gandhi's case and Sunil Batra's ease
(supra), read in its proper light, leads us to this conclusion.
We, therefore, hold that
the petition must be allowed and handcuffs on the prisoner dropped. We declare that the Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (paragraphs 26.21A and 26 .22
of Chapter XXVI) is untenable
and arbitrary
and direct that Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs.
The provisions in para 26.22 that
every
under-trial who is accused of a non-bailable offence punishable with more than 3 years prison term
shall be routinely handcuffed is violative of Arts. 14, 19 and 21. So also para 26.22 (b) and
(c). The nature of the accusation is not the criterion. The clear and present danger of escape breaking
out of
the police control
is the
determinant. And for this there must be clear material, not
glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is
produced. We go further to hold that para 26.22 (1) (b), (e) and (f)
also hover perilously near
unconstitutionality unless read down as we herein direct.
'Desperate character' is who ? Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under-trial and extraguards can make up exceptional needs. In very special situations, we do not rule
out the application
of irons The
same reasoning appears to (e) and (f). Why torture the prisoner because others
will demonstrate or attempt his rescue ? The plain law of under-trial custody is thus contrary to the unedifying escort practice. We remove the handcuffs from the law and
humanize the police praxis to harmonise with the satvic values of Part
III. The law must be firm, not foul, stern, not sadistic, strong, not callous.
Traditionally, it
used
to be
thought that
the seriousness of
the possible sentence is the decisive factor for refusal of bail. The assumption was that
this gave a temptation for
the prisoner to escape. This
is held by modern penologists to be a psychic fallacy and the
bail jurisprudence evolved
in the English and American Jurisdictions and in India now takes a liberal view. The impossibility of easy recapture supplied the temptation to jump custody, not the nature of the offence or sentence. Likewise, the habitual or violent 'escape
propensities' proved by past
conduct or present attempts are a
surer guide to the prospects of running away on the sly or by use of force than the offence with which the person
is charged or the sentence. Many a murderer, assuming him to be one, is otherwise a normal, well-behaved, even docile, person and it rarely registers in his mind to run away
or force his
escape.
It is
all indifferent escort or incompetent guard, not
the Section with which the accused
is charged, that must give the clue to the
few escapes that occur. To abscond is a difficult adventure. No study of
escapes and their reasons has been made by
criminologists and the facile resort to animal keeping methods
as an
easy substitute appeals to Authority in such circumstances. 'Human rights', seriousness loses its valence
where
administrator's
convenience prevails
over cultural values. The fact remains for its empirical worth, that in some States, e.g. Tamil Nadu and Kerala, handcuffing is rarely done even in serious cases, save in those cases where evidence
of dangerousness, underground operations to escape and the like is available. It is interesting that a streak of humanism had
found
its place in the law of handcuffing even in the old Bombay Criminal Manual which now prevails in the Gujarat State and perhaps in the Maharashtra State. But in the light of the
constitutional imperatives we
have discussed, we enlarge the law of personal
liberty
further to be in consonance with fundamental rights of persons in custody.
There is no genetic criminal tribe as
such among humans. A disarmed arrestee has no hope of escape from the law if
recapture is a certainty. He heaves a sigh of relief if taken into custody
as against the desperate evasions of the chasing and the haunting fear that he may be caught anytime. It is
superstitious
to practise the barbarous bigotry
of handcuffs
as a routine
regimen-an imperial heritage, well preserved. The problem is to get rid of mind- cuffs which make us callous to hand-cuffing a prisoner who may be
a patient even in the hospital bed and tie him up with ropes to the legs of cot.
Zoological culture
cannot be compatible with reverence for life, even of a terrible criminal.
We have discussed at length what may be dismissed as of little concern.
The reason is simple.
Any man may, by a freak of fate, become an under-trial and every man, barring those who through wealth and political clout, are regarded as V.I.Ps, are ordinary classes and
under the existing Police Manual may be man-handled by handcuffs. The peril to human dignity and fair
procedure is, therefore, widespread and we
must speak up. Of course,
the 1977 and
1979 'instructions' we have referred to earlier show a change of heart. This Court must
declare the law so that abuse by escort constables may be Repelled. We repeat with respect, the observations in Wiliam King Jackson v. D.E. Bishop. (1) We are
not convinced
that any rule or regulation
as to the use of
the strap, however seriously
or sincerely
conceived and
drawn,
will successfully prevent abuse. The present record discloses misinterpretation even of the newly adopted (2) Rules in this area are seen often to go unobserved.
(3) Regulations are easily circumvented (4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous. (5) Where power to punish is granted to persons in lower levels of administrative authority, there is an inherent and natural difficulty in enforcing the limitations of that power.
Labels like 'desperate' &
'dangerous'
are treacherous. Kent S. Miller,
writing
on 'dangerousness' says:
Considerable attention has been given to the role of
psychological
tests
in predicting dangerous behaviour, and there is a wide range of opinion as to their value.
Thus, far no, structured or projective test scale has been derived which, when used alone will predict violence in the individual case
in a
satisfactory manner. Indeed, none has
been developed
which
will adequately
postdict let
alone
predict, violent behaviour......
....
But we are
on dangerous
ground
when deprivation of liberty occurs under such conditions. ....The practice has been to markedly overpredict. In addition, the courts and mental health professionals involved
have
systematically
ignored statutory requirements relating to dangerousness
and mental illness....
.... In balancing the interests of the state against the loss of liberty
and rights of
the individual, a prediction of dangerous behaviour
must have a high level
of probability, (a condition which currently does not exist) and the harm to be prevented should be considerable.
A law which handcuffs almost every undertrial (who, presumably, is innocent) is itself dangerous.
Before we
conclude, we must confess that we have been influenced by
the thought that some in authority
are sometimes moved
by the
punitive passion for
retribution through
the process
of parading under-trial prisoners cruelly clad in hateful irons. We must also frankly state that our culture, constitutional and other, revolts against such an attitude because, truth to tell.
'each tear
that flows, when it could have been spared, is an accusation, and he commits
a crime who
with brutal inadvertancy crushes a poor earthworm.' We clearly
declare-and it
shall be obeyed from
the Inspector General of Police and Inspector General of Prisons to the
escort constable and the jailwarder-that the
rule regarding a prisoner in transit between prison house and court house is freedom
from hand-cuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraints with irons, to be justified before or after. We mandate the judicial officer before when the prisoner is produced
to 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 in the light of this Judgment.
PATHAK, J: I have read the judgment of my learned brother Krishna Iyer with considerable interest but I should like to set forth my own views shortly.
It is an axiom of the criminal
law that a person alleged to have committed an offence is liable to arrest. In making an arrest, declares s. 46 of the Code of Criminal Procedure, "the
police officer
or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word
or action." If there is forcible resistance to the endeavour to arrest or
an attempt to evade the arrest, the law allows the police officer or other person to use all means necessary
to effect the arrest. Simultaneously, s. 49 provides that the person arrested must "not be subjected to more restraint than is necessary to prevent his escape." The two sections define the parameters of the power envisaged by the Code in the matter of arrest. And s. 46, in particular, foreshadows the
central principle controlling the power to impose restraint on the person of a
prisoner while in continued custody. Restraint may be imposed where it is reasonably apprehended
that the prisoner will
attempt to escape, and it should
not be
more than is necessary to prevent him from escaping. Viewed in
the light of the law laid down by
this
Court in Sunil Batra v. Delhi Administration and others that
a person in custody is not wholly denuded
of his
fundamental rights, the limitations following from that
principle acquire
a profound significance. The power to restrain,
and the degree of restraint to be employed, are not for arbitrary exercise. An arbitrary exercise of that power infringes the fundamental rights of the person in custody. And a malicious use of that power can bring s. 220 of the Indian Penal Code into play. Too often is it forgotten that if a police officer is vested with the power to restrain a person by hand-cuffing him or otherwise there
is a simultaneous restraint by the law on the police officer as to the exercise of that power.
Whether a
person should be physically restrained and, if so,
what should be the degree of restraint, is a matter which affects the person in custody so long as he remains in 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. The principle is of significant relevance in the present case. The petitioner complaints that he is unnecessarily handcuffed when escorted from the jail house to the court building, where he is being tried for criminal offences,
and back from the court building to the jail house. He contends that
there is no reason why he
should
be handcuffed.
On behalf of
the respondent it is pointed out by the Superintendent Central Jail, Tihar, where the
petitioner is
detained, that
the police authorities take charge
of prisoners from the main gate of
the jail for the purpose of escorting them to the court building
and back, and that the jail authorities have no control during such custody over the manner in which the prisoners are
treated. S.9(2) (e)
of the Prisoners (Attendance in
Courts) 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 handcuffs may
be applied. The classification has
been attempted some what broadly, but it seems to me that some of the clauses of Rule 26.22, particularly clauses (a) to (c), appear to presume that
in every instance covered by any of those clauses the accused will attempt to escape. It is difficult to sustain the classification attempted by those clauses. The rule, I think, should be that 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 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.
Rule 26.22
read with rule 26.21-A of the Punjab Police Rules,
1934 draw a distinction between "better class" undertrial prisoners and "ordinary" undertrial prisoner 35 a basis for determining who should be
handcuffed and
who should not be. As I have observed, the appropriate principle for a classification should be defined by the need to prevent the prisoner escaping
from custody or becoming violent. The social status of a person, his education and habit of life associated with superior mode of living seem to me 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, literate and illiterate.
It is the basic assumption that all individuals are entitled to enjoy that dignity that determines the
rule that ordinarily no restraint should be imposed except
in those cases where there is a reasonable fear of
the prisoner attempting to escape or attempting violence. 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. Then there is need to
guard against
a misuse of the power
from other motives. It is grossly objectionable that the power given by the law
to impose a restraint, either by applying handcuffs or otherwise, should be seen as an opportunity for exposing the accused to public
ridicule and humiliation. Nor is the power intended
to be
used vindictively or
by way of punishment. Standing order 44 and the Instructions on Handcuffs of November, 1977,
reproduced by
my learned brother, evidence the growing
concern at a higher level of the administration over the indiscriminate manner in which handcuffs are being used. To my mind, even those provisions operate somewhat in excess of the object to be subserved by the imposition
of handcuffs, having regard to the central principle that
only he
should be handcuffed
who can be reasonably apprehended
to attempt an escape or become violent.
Now 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. It is a judgment to be exercised with reference to each individual case. It is for that authority to exercise its discretion, and I am not willing to accept that
the primary decision should be that of any other.
The matter is one where the circumstances may change from
one moment 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. I do not think that any prior decision of an external authority can be
reasonably imposed on
the exercise of that power. But I
do agree that there is room for imposing a supervisory regime over the exercise of that power.
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.
In
the present
case it seems
sufficient, in my judgment, that the question whether the petitioner should be handcuffed should be left to be dealt with in the light of the observations
made herein by the Magistrate concerned, before whom
the petitioner is brought for trial in the cases instituted against him. The petition is disposed of accordingly.
S. R.
Petition allowed.
