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Association of Retired Senior IPS Officers (ARSIPSO)

This is with reference to my letter No. ARSIPSO/GS-BSD-4/2023 dated. 10/08/2023 on the 4th B.S. Das Memorial Lecture, which had to be rescheduled for unavoidable reasons.

The 4th B.S.Das Memorial Lecture to be delivered by Shri Anil Kumar Sinha, IAS (Retd.), on the subject Disaster Management: Creating Safer Communities, has now been rescheduled for October 14, 2023 as per the following:

Conference Room No. 2, India International Centre, Max Mueller Marg, New Delhi, October 14, 2023 (Saturday)



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A Tribune Special To handcuff or not Parliament should enact a law to prevent the misuse of handcuffs

 
 


Arbitrary arrests and misuse of handcuffs are common complaints of abuse of authority against the police. There are a number of judicial pronouncements condemning the police practice of handcuffing the prisoners and criminals and parading them in the streets.

The Supreme Court's ruling in the case of Prem Shankar Shukla vs Delhi Administration (1980) and Citizens of Democracy vs State of Assam (1995) viewed the existing practice of handcuffing as extremely objectionable. It laid down restrictions on the police discretion to handcuff the prisoners..

Prem Shankar Shukla, an undertrial in Tihar Jail, was required to be taken from the jailhouse to the Magistrate's court and back periodically in connection with certain cases. The escorts handcuffed him during the journey from jails to courts and back. The apex court admitted his telegram as a Habeas Corpus petition.

Justice V.R. Krishna Iyer held that to be consistent with Article 14 and 19 of the Constitution, "no prisoner shall be fettered routinely or for the convenience of the custodian or escort". He held that merely because a person is charged with grave or serious offences, inference of escape does not follow and on that premise alone he cannot be handcuffed. Even in extreme circumstances where handcuffs had to be put on the prisoner the escorting authority must record"contemporaneously the reasons for doing so".

The court held that the classification of prisoners for the purpose of handcuffs into "better class" and"ordinarily class" as prescribed in the Punjab Police Manual was arbitrary and hostile to the constitutional ethos. In the case of "Citizens for Democracy," the Supreme Court reiterated its earlier ruling on handcuffing and made its adherence mandatory. It stated that violation and circumvention of the law as laid down by the Supreme Court shall attract the provisions of the Contempt of Court Act, apart from other penal consequences under the law.

The Supreme Court further laid down that in cases where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump bail or break out of custody then the said prisoner should be produced before the magistrate and a prayer for permission to handcuff the prisoner should be made before the magistrate.

Though the Supreme Court's ruling in Prem Shankar Shukla's case was given in 1980, the Government of India issued guidelines regarding handcuffing only in 1988 which prohibited routine handcuffing for the convenience of the custodian or escort. It added that handcuffing can be avoided by increasing the strength of armed escorts or by taking prisoners in a well-protected van.

The Police Manuals of different states have also framed rules incorporating the rulings of the apex court and the Centre's directions. The Andhra Pradesh Police Manual Order no 461 lays down that accused persons and prisoners shall not be handcuffed or chained without specific permission by the court and the permission granted by the magistrate should be maintained in a book to be kept by the guard officer.

Unfortunately, all these court rulings and government orders fail to take note of the number of practical difficulties confronted by the police. A large number of escapes of prisoners from police custody do take place and some of these, according to a study of Bureau of Police Research and Development, shows that a number of escapes precisely took place as the handcuffs were not used.

A large number of policemen have to face criminal or departmental action for the escape of prisoners from the custody. An escape from custody can result in prosecution of policemen under Section 221 to 225(A) IPC, which makes both intentional and negligent conduct on the part of the policemen a cognisable offence. Moreover, police regulations of all states make escape from the custody of the police a serious omission. In such cases, policemen are invariably suspended and disciplinary action initiated against them.

Though the Supreme Court says that the use of handcuffs can be minimised by increasing the number of escorts, in practice it becomes very difficult to augment the strength of the escort party because of manpower shortage. The available strength at each police station is limited and there has been an exponential increase in the
commitments of the police.

Again, non-handcuffing of the prisoner does pose threats to the police officers' security. These days not only the terrorists but ordinary criminals carry firearms and do not hesitate to open fire on the law enforcement officials. Undertrials are also not docile and submissive creatures. Most of them at slightest provocation indulge in violent and mischievous activities. The infrastructural facilities are also inadequate.

Because of inadequacy of jail vans, prisoners are brought to courts in less secure vehicles, requiring deployment of more policemen in the escort party. Policemen are thus exposed to serious security hazards and personal risks if the prisoners are not allowed to be
handcuffed.

In countries like the UK and the US, handcuffing is viewed as an accepted practice of the police while effecting arrests and escorting prisoners. In the UK, there are case laws on the use of handcuffs. Handcuffing is justified (Reed vs Wastie, (1972) Crim. L.R. 221) when found reasonably necessary to prevent an escape. American courts have also justified the policy requiring officers to handcuff an arrested person when taking him to the jail so that the suspect may not grab a weapon and fight with the officers.

In Australia, the Police Service Handbook of the State of New South Wales provides that the officer is justified in handcuffing prisoners if they have tried to escape or to prevent escape or injury to themselves and others.

The European Court of Human Rights, in interpreting Article 3 of the Human Rights Convention, which gives freedom from degrading treatment has laid down that handcuffing is to restrain a person to effect a lawful arrest or prevent the escape of person lawfully detained. In another case, it decided that it was not degrading to keep a person handcuffed in a situation where the use of restraint is necessary.

In the present scenario in the country with escalating crime and increasing violence, there is an urgent need to review existing law on handcuffing the criminals. The Supreme Court's direction has the force of law and it is obligatory for a police officer to make a diary entry at the police station regarding the antecedents of the accused and the reasons why it was necessary to handcuff the accused and produce a copy of the entry before the court. Indeed, it is very difficult for the police to comply with these conditions and the Supreme Court's fiat is honoured more in breach than in practice.

A research study by a senior police officer in Chaapra, Siwan and Gopalgunj districts of Bihar during 1990-2000 reveals that the use of handcuffs continues in different places, notwithstanding the apex court's direction. Undertrials are routinely taken to court premises while being handcuffed. Official records show that not a single request has been filed in any of the district courts by the police for handcuffing the undertrials during the said period.

Some senior police officers and eminent lawyers are of the view that the Supreme Court's directions are somewhat impracticable, based on unrealistic expectations and stem from the distrust of the police. This distrust is not only hampering police work and operations but also weakening the foundations of the criminal justice system.

It is necessary for Parliament to pass a comprehensive law on the subject replacing the Prisoners (Attendance in court) Act and clear up all ambiguities. The law should take into account the operational problems of the police and contain provisions to prevent misuse of handcuffs by the police.

Significantly, Justice R.S. Pathak, while giving concurring judgment in the case of Prem Shankar Shukla, observed that whether handcuffs or other restraints should be imposed on the prisoners is primarily a matter for the decision of the authority responsible for his custody.

This supervisory jurisdiction should be left with the senior police officers. If the enactment of the new law takes a long time, a larger bench of the Supreme Court may be moved to review its decision and observations in the light of the ground realities and practical difficulties faced by the police in implementing the court directions.

The writer, a former Director-General of the National Human Rights Commission, is currently Senior Fellow, Institute of Social Sciences, New Delhi


The views and facts stated above are entirely the responsibility of the author and do not reflect the views of this Association in any manner.

 
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