HANDCUFFING:
Handcuffing is restraint device designed to secure an individual’s wrists in proximity to each other. Frequently used by law enforcement agencies worldwide to prevent suspected criminals from escaping from police custody.
Handcuffing could be done during transportation:
- of prisoners from the jail to court,
- of accused from the site of the alleged crime to the police station or to the court, and
- of prisoners and accused from jail or police station to the hospital.
During all such above movements, the use of handcuffs is supposed to be the exception, not the rule. However, in a large majority of cases, escorting admit that judicial permission is not received and the reasons for using restraints are not documented in the police station diary.
WHY DOES HANDCUFFING PREVAILS ? :
- Restrains are sometimes necessary for legitimate security reasons.
- Police work can be dangerous, and a small minority of arrestees and detainees are desperate and violent.
- Political considerations also play a vital role in some case.
- They are used many a times by the police personnel, both publicly and privately, to humiliate and intimidate arrestees and detainees.
- Power and corruption also lead to cases of human rights violations regarding handcuffing.
RIGHTS AGAINST HANDCUFFING:
Compulsory to comply some articles of the Indian Constitution while undertaking handcuffing-
ARTICLE 14: Equality before law, equal protection of law
It states,” The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
ARTICLE 19: Protection of certain rights regarding freedom of speech, etc:
- freedom to speech,
- assemble peaceably and without arms,
- to form associations or unions,
- to move freely throughout the territory of India,
- to reside and settle in any part of the territory of India, and
- – (omitted)
- To practice any occupation, trade or business.
SECTION 21: Right to Life and Personal Liberty
“No person shall be deprived of his life or personal liberty except according to a procedure established by law”
Else, malicious use of handcuffing, bring following section in play:
SECTION 220: Commitment for trial or confinement by person having authority who knows that he is acting contrary to law:
- Whoever, in any office which gives him legal authority-
- To commit persons for trial or confinement or
- To keep persons in confinement.
- If above mentioned person knowingly exercises his authority-
- Corruptly or
- Maliciously.
- He shall be punishable-
- With imprisonment of either description for a term which may extend to 7 years or
- Fine or
- Both.
SUPREME COURT DIRECTIONS ON HANDCUFFING AND FETTERS:
- Handcuffs are to be used only if a person is-
- Involved in serious non- bailable offences, has been previously convicted of a crime, and /or
- Is of desperate character- violent, disorderly or obstructive, and/or
- Is likely to commit suicide, and/or
- Is likely to attempt escape.
- The reasons why handcuffs have been used must be clearly mentioned in the Daily Dairy Report. They must also be shown to the court.
- Once an arrested person is produced before the court, the escorting officer must take the courts permission before handcuffing her or him to and fro from the court to the place of custody.
- The magistrate before whom an arrested person is produced must inquire whether handcuffs or fetters have been used. If the answer is yes, the officer concerned must give an explanation.
- It is necessary to take the magistrates permission before handcuffing a person who has been remanded to judicial or police custody.
- A person arrested in the execution of an arrest warrant [issued by a magistrate] must not be handcuffed unless prior permission has been taken from the magistrate.
- In an arrest without warrant, the police is only allowed to handcuff on the basis of concrete proof that the person is prone to violence, has a tendency to escape, or is so dangerous and desperate that there is no other practice way to restrain her or his movement. Even then the officer may use handcuffs only till the time the person is taken to the police station and thereafter to the police station and thereafter to the magistrate’s court.
- Violation of the courts directives by a police officer of whatever rank or any member of the jail establishment is punishable summarily under Contempt of Court Act, 1971 in addition to other provisions of the law.
LEADING RELEVANT CASE LAWS, HIGHLIGHTING THE SUPPLEMENTARY PROVISIONS REGARDING HANDCUFFING:
In India, use of handcuffs by police and jail staff is prohibited except when authorized by a court. This is as per the directions of the Supreme Court.
Case 1: Sunil Batra V Delhi Administration (1978)
Supreme Court held that-
- Fetters (chain or manacle, used to restrain prisoner, typically around ankles), especially the bar fetters, should be shunned, as per them being violation of human dignity, with or without prisons.
- Following acts should be stopped forthwith (immediately) and should be kept aside (saved) to be applied in only some mall category of cases-
- Indiscriminate resort to handcuffs, when accused persons are taken to and from court and
- Expedient resort of forcing iron on prison inmates.
- So, such reckless acts are shame to our society-
- Handcuffing and
- Chaining.
Case 2: Prem Shankar Shukla V Delhi Administration (1980)
Supreme court has declared:
- Handcuffing as-
- To hoop harshly,
- To punish humiliatingly.
- Article 14 and 19, necessarily implied that it is not compulsory to fetter a person’s limbs, as manacling a humble man is-
- Sadistic,
- Capricious,
- Despotic,
- Demoralizing.
- Article 19, provision of minimal freedom of movement, which even a detainee is entitled, cannot be carried out by application of handcuffs.
- To constitute with article 14 and 19, handcuffing must be the last refugee as there are other ways for ensuring security.
- To undertake handcuffing, there must be sufficient stringent material, to satisfy a reasonable mind like-
- There is clear and present danger of escape of prisoner who is being transported by breaking out of the police control and
- By adding escort party or other strategy.
- The onus of proof, in this regard- must be on him, who puts the person under irons.
Case 3: Citizens for Democracy V State of Assam (1995)
Supreme Court issued following directions, declaring to use (or rather non to use handcuffs):
- No handcuffs or other fetters shall be forced on a prisoners (convicted or under trial)-
- While lodged in a jail anywhere in the country or
- While transport or transit from one jail to another or from jail to court and back.
- No police and jail authority, has been authorized in his own to direct handcuffing-
- Of any inmate of a jail in the country or
- During transport from one from jail to another or from jail to court and back.
- Police or jail authority, may produce before magistrate concerned and pray for permission to handcuff the prisoner if, they are having well-grounded basis for drawing strong inference that a particular prisoner is likely to-
- Jump jail or
- Break out the custody.
- Magistrate may grant permission to handcuff the prisoner, if there is concrete proof regarding-
- Proneness of prisoner to violence,
- His tendency to escape,
- He being so dangerous or desperate.
- If person arrested by police, produced before magistrate and magistrate gives him remand (judicial or non-judicial), the concerned person shall not be handcuffed unless special orders are received from magistrate at the time of remand.
- Police cannot handcuff a person who has been arrested in execution of a warrant of arrest obtained from magistrate, unless police receive order from magistrate.
- Police can handcuff a person who has been arrested without warrant, when necessary till the time he is taken to police station and other after his production before the magistrate.
Based upon these guidelines, no police in India can handcuff, and this legal position applies not only to understand persons in custody, but also to convicted prisoners.
RECENT RELEVANT CASE:
Vikas Dubey encounter-
Vikas, has been charged with murder, robbery, kidnapping, illegal land acquisition and criminal intimidation.
The alleged killing of dreaded gangster Vikas Dubey has kicked up dust over his not being apparently handcuffed by police, against the backdrop of the Supreme Court’s disapproving the practice in various orders, calling it “inhuman, unreasonable, over harsh, arbitrary”.
HANDCUFFING THE JUVENILE IN INDIA:
The times of India on 5th March, 2017 brought to light the story of a juvenile who wrote his exams handcuffed. The juvenile, a 17 years old allegedly involved in a molestation case, was reportedly kept in handcuffs by the accompanying police constable throughout the exam. Various media sources reported this to be in contradiction with the Juvenile Justice (care and protection of Children) Act, 2015 (JJA).
In order to address the issue of handcuffing of juveniles, way out is to:
- Juveniles should be escorted by the child welfare officers or special juvenile police unit to JJB office during production and in no manner he should be handcuff or fettered or using ropes for binging him.
- Inform the parents or guardian of the juvenile alleged to be in conflict with law about the apprehension of the juvenile, need to present during production before the Juvenile Justice Board so that he or she would be comfortable and tendency of escape is reduced in parents presence.
- Follow the unambiguous guidelines prescribed by the Apex Court and take suitable action for dealing with unforeseen situations that may arise within the preview of above guidelines and the best interest of children.
CONCLUSION:
The apex court has from time to time issued a slew of directives on the procedure to be followed while handcuffing an under trail, maintaining that the insurance against escape does not compulsorily require handcuffing.
This is one arena, wherein Indian judiciary has gone much ahead of western democracies, since in some western countries use of handcuffs in quite common still.
BIBLIOGRAPHY:
1.Manual on Human Rights for Police Office by Dr. Aparna Srivastava 2.Handcuffing of Juveniles by Nawaz ul Haque 3.https://tilakmarg.com/opinion/why-arrested-persons-are-not-handcuffed-by-police-in-india/ 4.https://www.indiatoday.in/india/story/vikas-dubey-killing-raises-handcuffing-issue-vis-a-vis-sc-guidelines-inhuman-practice-1699153-2020-07-10
Farheen Dhanjal 