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TMI Blog1980 (4) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... e who are injured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human dignity, which forms part of our constitutional culture, and the positive provisions of Articles 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Articles 14, 19 and 21 after due investigation. Access to human justice is the essence of Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-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 Shuklas 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 belig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and this Court appointed Dr. Y.S. Chitale as amicus curiae. 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, 10. The Superintendent of the Jail pleaded he had nothing to do with the transport to and from cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting writ trammeled 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 Articles 21, 14 and 19 enlivened by the Preamble. 12. 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 guaranteed by the Constitution. 13. In Sunil Butra'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. 14. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 : officer in charge of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st; 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. 19. Political prisoners, if handcuffed, should not be walked through the streets (sub-para 7) and so, by implication others can be. 20. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ? 25. Insurance against escape does not compulsorily require 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 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a relevant consideration. 27. 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 Articles 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. 28. Functional compulsions of security must reach that dismal degree tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itizen and freedoms under Part III of the Constitution are the privilege of the upper sector of society. 30. 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 desparate behavior, geared to making good his escape, 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. 31. Some increase in the number of escorts, arming them if necessary, special training f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 undertrial custody is thus contrary to the unedifying escort practice. We remove the handcuffs from the law and humanize the police praxis to harmonize with the satvic values of. Part III. The law must be firm, not foul, stern, not sadistic, strong, not callous. 34. 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 bait jurisprudence evolved in the English and American Jurisdictions and in India now takes a liberal view. The impossibility of easy recapture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 William King Jackson v. D.E. Bishop Federal Reports, 2nd series, Vol. 404, p. 571. (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 gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before or after. We mandate the judicial officer before whom 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. R.S. Pathak, J. 42. 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. 43. 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 Section 46 of the CrPC, 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, Section 49 provides that the person arrested must not be subjected to more restraint than is necessary to prevent his escape. The two sections defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers are treated. Section 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, behavior 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 ultimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 47. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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