Chaining Freedom: The Conflict Between Use Of Handcuffs Under BNSS And Right To Life And Personal Liberty

BNSS which replaces CrPC has been enforced with the objective of improving the efficiency and transparency of law enforcement and ensure faster delivery of justice to the citizens. BNSS further aims to eliminate procedural delays, reduce bureaucratic hurdles, and introduce more effective and digitized methods for crime investigation and prosecution. For this, certain provisions from the CrPC have been deleted, new provisions have been added and maximum provisions from the CrPC have been retained with some modifications in BNSS.

However, the additions made in the existing provisions of CrPC and certain provisions which have been added in the BNSS have raised legitimate concerns not only by the legal fraternity but also by the academicians, civil societies, politicians, activists etc. for being in teeth of the law laid down by the Hon'ble Supreme Court and Hon'ble High Court of States for giving unfettered powers to police and investigation agencies curtailing the civil liberties and democratic freedom of the citizens.

Police Officer's power to use handcuff under BNSS

Chapter V of both CrPC and BNSS contains provision related to arrest of persons. The chapter contains provisions which provides the procedure for arrest, rights of arrested persons, procedure for search of arrested persons, seizure of weapons, discharge of persons etc. While almost every provision under chapter V of CrPC have been retained in Chapter V of the BNSS, however in some provision, sub-sections have been added in the existing provisions contained in the CrPC and have been added in BNSS.

The procedure to make an arrest of an accused person by the police officer is provided under section 43 of BNSS. Under section 43, the police officer or person, while making an arrest shall touch or confine the body of person to be arrested. If the person to be arrested resists the act of arrest or attempts to evade arrest, the police officers are empowered to use all means necessary to effectuate arrest, but cannot cause the death of such person except if of such person who is accused of offence punishable with death or with imprisonment for life. A female police officer can only arrest a woman and only in exceptional circumstances, a woman can be arrested after sunset and before sunrise by a police officer by making a written report and obtaining prior permission of jurisdictional Magistrate.

Section 43 of the BNSS corresponds to section 46 of CrPC, except one sub-section which have been added in section 43 of BNSS. The newly inserted sub-section (3) in section 43 of BNSS provides power to police officers to use handcuffs. The sub-section gives unfettered and unriddled power to police officers to use handcuffs to arrest a person or while producing such person before the Court who is a habitual or repeat offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, or offence against the State.

The CrPC neither contained any provision regarding handcuffing of person to be arrested or while producing such person before the Court, nor provided any power to police officers to use handcuffs to perform the aforementioned acts. The Prisons Act and the Jail Manuals of some states gave the police officers the power to handcuff persons in jail as a mode of punishment if that person commits an offence under the prison.

Now, with the enforcement of BNSS, section 43 gives statutory power to the police officers to handcuff accused persons in effectuating arrest or while producing such person before the Court, which was earlier not given under the CrPC. No cogent reasoning or explanation has been provided by the framers of the BNSS as to why under the categories of crimes mentioned in sub-section (3), power is given to police officers to use handcuffs in effecting arrest of an accused person or his/her production before the court. Such unfettered statutory power of handcuffing of accused person, which should be used as a last resort for ensuring security and restraint will now be used as a rule and not as an exception by the police officers in arresting the individuals, without recording any concrete reasons for the same to the jurisdictional Magistrate.

Use of handcuffs in violative of fundamental rights provided under article 14, 19 and 21 of the Constitution

Handcuffing of a person is humiliating and degrading experience for the handcuffed person, especially when paraded in public. Such an act tarnishes the image, dignity and reputation of that person not only in the eyes of the world, but also in his own eyes, which is against the fundamental right to equality which is cherished under article 14 of the Constitution. Human dignity is part and parcel of right to life and personal liberty given under article 21 of the Constitution to all the persons, regardless of their antecedents. This right includes the right to freedom of movement and protection from arbitrary detention.

The Hon'ble Supreme Court in its catena of judgments have held that use of handcuffs is inhumane, unreasonable, arbitrary, and repugnant to fundamental right to life and personal liberty cherished under article 21 of the Constitution. The Courts have further held that handcuffs restrict the right to movement and locomotion, which thereby violates the freedom of movement protected under article 19(d) of the Constitution. In cases of illegal handcuffing by the police officers, the Courts have awarded compensation to such person for violation of their fundamental right to equality, freedom of movement and right to life and personal liberty.

The Hon'ble Supreme Court in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494, while hearing the petition of a death row convict challenging his solitary confinement by the respondent for being violative of his fundamental right provided under article 14, 19 and 21 of the Constitution, held that use of handcuffs and bar fetters shall be shunned as violative of human dignity, within and without prisons. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is slur on Indian culture. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates is illegal.

In Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526, the Hon'ble Supreme Court while dealing with the writ petition of the petitioner against his handcuffing routinely, publicly, vulgarly and unjustifiably in his trips to and fro between the prison house and court house in callous manner, held that handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absence of fair procedure and objective monitoring, to inflict 'irons' is to resort to zoological strategies repugnant to article 21 of the Constitution. 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. Even in extreme cases, where handcuffing of a prisoner is necessary, the escorting authority must record contemporaneous reasons for doing it. The escorting officer, whenever he handcuffs a person must show the reasons so recorded to the Presiding Judge and get his approval.

In Aeltemesh Rein v. Union of India, (1988) 4 SCC 54, the Hon'ble Supreme Court directed the Union of India to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment in Prem Shankar Shukla (Supra) and to circulate them amongst all the State Governments and the Governments of Union Territories within three months.

In Citizens for Democracy v. State of Assam, (1995) 3 SCC 743, the Hon'ble Supreme Court relied on its decisions in Sunil Batra and Prem Shankar Shukla cases (Supra), laid down guidelines for use of handcuff and directed all ranks of police and prison authorities to meticulously obey the guidelines. The Hon'ble Supreme Court held that handcuffs or other fetters shall not be forced on a prisoner, convicted or undertrial while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back. The police and the jail authorities, on their own, have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back. Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody, then the said prisoner be first produced before the Magistrate concerned and then a prayer for permission to handcuff the prisoner be made before the said Magistrate. Unless special orders are obtained from the Magistrate, the person shall not be handcuffed by the police.

The Karnataka High Court in Suprit Ishwar Divate v. State of Karnataka, 2022 SCC OnLine Kar 1133 held the handcuffing of the petitioner by the respondent contrary to the law laid down by the Hon'ble Supreme Court and awarded Rs. 2,00,000/- compensation to the petitioner which was payable by the respondent. Similarly, the Gauhati High Court in Sabah Al Zarid v. State of Assam, 2023 SCC OnLine Gau 4244 awarded Rs. 5,00,000/- compensation to the petitioner which was payable by the respondent and held the handcuffing of the petitioner by the respondent contrary to the law laid down by the Hon'ble Supreme Court.

Justice V.R. Krishne Iyer, speaking for himself and Justice Chinnappa Reddy in his judgment in Prem Shankar Shukla case (Supra) has held that it is superstitious to practice 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 handcuffing a prisoner who may be a patient even in the hospital bed and tie him up with ropes to the legs of the cot. Zoological culture cannot be compatible with reverence for life, even of a terrible criminal.

The use of handcuffs as a means of restraint violates the fundamental right to life and personal liberty protected under article 21 of the Constitution. The arbitrary and unreasonable application of handcuffs by police officers and judicial systems constitutes a blatant disregard for human rights and dignity. The practice of causing physical injury to the prisoners in the name of maintaining discipline is violative of article 21 of the Constitution. It is implied in articles 14 and 19 that manacling a person when there is no compulsive need to bind his limbs violates his right to equality and freedom of movement. The limited freedom of movement guaranteed to all persons under article 19(1)(d) cannot be curtailed by the use of handcuffs.

It is also well settled that merely because the offence is serious, the inference of escape proneness does not follow. There has to be some tangible evidence, documentary or otherwise or desperate behaviour directed to make good his escape, which alone would constitute a valid ground for handcuffing and fettering and as far as possible even this is required to be avoided by increasing the strength of escorts or taking the prisoner in a well-protected van. Thus, the unjustifiable use of handcuffs is a violation of fundamental human rights since it is viewed as a cruel, arbitrary, and authoritarian practice that humiliates the accused or convicted in the eyes of others. It is imperative that we recognize the inherent worth and dignity of all individuals and strive to create a justice system that prioritizes human rights, dignity, and the principles of liberty and freedom.

The authors are Advocates and views are personal.