Handcuffing: Necessity Or Violation Of Rights?
Arushi Bajpai & Shaurya Mahajan
15 Jan 2025 12:30 PM
“Handcuffing is prima facie inhuman and, therefore, unreasonable; it should be the last resort, not the first reflex." - Justice Krishna IyerAny popular media representation of arrest is perhaps incomplete without a scene where the police is handcuffing the arrested person. This scene has left such an indelible mark on our consciousness that we equate arrest with handcuffing, that...
“Handcuffing is prima facie inhuman and, therefore, unreasonable; it should be the last resort, not the first reflex." - Justice Krishna Iyer
Any popular media representation of arrest is perhaps incomplete without a scene where the police is handcuffing the arrested person. This scene has left such an indelible mark on our consciousness that we equate arrest with handcuffing, that handcuffing is at the essence of an arrest and that an arrest begins with handcuffing. This surface level and common sensical exists in stark contrast with the reality of law that views handcuffing as inhumane and degrading.
As this paper shows, the issue of handcuffing was put to rest by the Supreme Court through a catena of judgements, but recently it has woken from its long slumber. The recently enforced BNSS (Bhartiya Nagrik Suraksha Sanhita) acts as the catalyst for this. Section 43(3) of BNSS grants the police authority to use handcuffs in a wide range of cases.
It is also important to note that there was no provision for handcuffing under the Criminal Procedure Code.[3] The Supreme Court in the landmark ruling of DK Basu v West Bengal[4] has held - “The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law repeatedly explained and mandated in judgement of the Supreme Court in Prem Shanker Shukla v. Delhi Adminstration [(1980) 3 SCC 526] and Citizen for Democracy v. State of Assam [(1995) 3 SCC 743].”[5]
The new provision reads:
“The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of 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.”
A bare reading of the text of the provision provides that the police now have legal sanction for using handcuffs in cases of “repeat offenders”, for certain specific offences (including offences against state) and keep in mind the “nature and gravity of the offence”. The addition of this provision under BNSS allows the police a free rein to use handcuffs, a practice that had been all but struck down by the Supreme Court. Additionally, the provision lacks clarity with regards to the term “repeat offenders”, whether it includes repeat offenders of serious offences only or extends to petty offences as well. There is a lack of substantiation with regards to this, opening the door to its potential misuse.
In order to understand the shift in the position of law it is crucial for us to look at the law as it stood before the enactment of BNSS and the various judicial pronouncements that cement it. Only then can we answer the critical question behind the addition of this provision – is it an unintentional case of bad drafting or is it an intentional case of expanding the powers of the police.
Section 46 CrPC outlined the procedure for arrest. A bare reading of the entirety of the provision makes clear that there is no express mention of handcuffing. The CrPC does not include any provisions concerning the handcuffing of a person during arrest or while being presented before the court, nor does it grant police officers the authority to use handcuffs for these purposes.[6] The next section provides a detailed discussion on the legal position in Delhi with reference to the Delhi Police Manual.
JUDICIAL INTERVENTION:
The judicial stance on handcuffing and the use of bar fetters is a significant aspect of human rights protection. In the case of Prem Shankar v. Delhi Administration,[7] the court held that handcuffing is prima facie inhuman and unreasonable. As a result, the general practice of handcuffing every under-trial accused of a non-bailable offence punishable by more than three years' imprisonment during transport to trial was quashed. The use of handcuffs was restricted to extreme circumstances, essentially rarest of the rare cases and reasons for such actions must be recorded and approved by the presiding judge.[8] Justice Krishna Iyer, while acknowledging that preventing the escape of prisoners is reasonable and in the public interest, emphasized that "insurance against escape does not compulsorily require handcuffing."[9]
In Sunil Batra v. Delhi Administration,[10] the Court ruled that bar fetters excessively infringe on the remaining personal liberty of prisoners. Their use is permissible only for ensuring the safe custody of a prisoner, considering the individual's character, antecedents, and tendencies. Such decisions must be made on a case-by-case basis, considering the specific traits of each prisoner. Therefore, handcuffing and the use of bar fetters solely for the convenience of the police is not justified.[11]
In Altamesh Rein v. Union of India,[12] the Supreme Court of India issued guidelines regarding the use of handcuffs. The Court declared that: Handcuffs should not be used as a routine measure. And Handcuffs may only be employed when the person is:
1. Desperate,
2. Rowdy, violent, disorderly, obstructive, or likely to attempt escape or suicide.[13]
The Supreme Court further emphasized that individuals holding a respectable social position, such as professionals like jurists, doctors, advocates, educationists, writers, journalists, and political prisoners, should generally not be handcuffed. Moreover, if handcuffed, they should not be paraded through the streets.[14]
In Citizens for Democracy v. State of Assam (1995),[15] the Supreme Court reinforced its stance on handcuffing, relying heavily on its previous decisions in Sunil Batra and Prem Shankar Shukla. The Court laid down strict guidelines to regulate the use of handcuffs and directed police and prison authorities across India to adhere to these instructions meticulously. The Supreme Court ruled that handcuffs or other fetters shall not be imposed on prisoners—whether convicted or undertrial—during their stay in jail, while being transported between jails, or during transit to and from court. The authorities have no independent power to handcuff any inmate under such circumstances. If police or jail authorities have a well-founded reason to believe that a prisoner might escape or cause trouble, they must first present the prisoner before the concerned Magistrate and seek permission for handcuffing. Without the Magistrate's explicit permission, handcuffing is prohibited.
The court declared the following guidelines:
- In all the cases where a person arrested by police, is produced before the magistrate and remand – judicial or non-judicial – is given by the magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the magistrate at the time of the grant of the remand.
- When the police arrests a person in execution of a warrant of arrest obtained from a magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the magistrate for the handcuffing of the person to be so arrested.
- Where a person is arrested by the police without a warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the magistrate.
It is important to note that the newly enacted Section 43(3) BNSS does NOT include any of the guidelines issued by the Supreme Court in various case laws and therefore opens the door to rampant misuse by the police.
In Siddharam Satlingappa Mhetre v. State of Maharashtra,[16] the Supreme Court declared that mandating handcuffing for individuals accused of a non-bailable offense punishable by more than three years in prison constitutes a violation of Articles 14, 19, and 21 of the Indian Constitution. The court clarified that the determination for handcuffing should not be based solely on the nature of the accusations but rather on the clear and present danger of the accused eluding police control. This ruling emphasizes that handcuffs and fetters serve not just as tools for securing the apprehension of offenders but also as instruments that can degrade human dignity. The use of such restraints, especially in non-violent cases, is viewed as a dehumanizing practice that undermines the fundamental rights guaranteed to individuals.[17]
In Sheela Barse v. State of Maharashtra (1983),[18] the Supreme Court of India addressed the issue of handcuffing and its implications on individual rights. The Court held that the indiscriminate use of handcuffs constitutes a violation of an individual's fundamental rights under the Constitution. It emphasized that handcuffs should not be routinely applied, particularly in cases involving non-violent offenses, as well as for women and juveniles. This ruling reinforced the notion that the dignity and rights of individuals, regardless of their legal status, must be respected, thereby establishing a precedent for the humane treatment of all accused persons. The Court's stance reflects a broader commitment to safeguarding human rights within the justice system.
Therefore, in the context of arrest legislation, it is imperative for police personnel and investigating officials to be sensitized to the importance of personal liberty, balancing it against societal interests. Law enforcement must learn to navigate the delicate interplay between ensuring public safety and respecting the individual rights of those in their custody, promoting a more humane approach to policing and detention practices.
The Karnataka High Court upheld this principle in Suprit Ishwar Divate v. State of Karnataka (2022),[19] where the petitioner was wrongfully handcuffed, contrary to the Supreme Court's guidelines in Prem Shanker Shukla v. Delhi Adminstration and Citizen for Democracy v. State of Assam . The court awarded the petitioner Rs. 2,00,000/- in compensation, payable by the respondent.[20] Similarly, in Sabah Al Zarid v. State of Assam (2023),[21] the Gauhati High Court ruled that the handcuffing of the petitioner violated Supreme Court directives and awarded Rs. 5,00,000/- in compensation. These rulings emphasize the judiciary's commitment to upholding personal dignity and human rights, ensuring that authorities follow legal guidelines strictly when dealing with prisoners.
BHARATIYA NAGRIK SURAKSHA SANHITA, 2023 (BNSS):
Section 43 of the BNSS corresponds to Section 46 of the CrPC, with an important distinction. The new sub-section (3) introduced in Section 43 of BNSS grants police officers the statutory power to use handcuffs on certain categories of accused persons. This provision allows handcuffing at the time of arrest or while producing the accused before the court in cases where the person is a habitual or repeat offender, has escaped from custody, or has committed serious offenses such as organized crime, terrorism, drug-related crimes, illegal possession of arms, murder, rape, acid attacks, counterfeiting, human trafficking, sexual offenses against children, or offenses against the State.
This change significantly departs from the earlier CrPC, where no such explicit statutory power was granted to police officers for handcuffing. Previously, under judicial pronouncements like Prem Shankar Shukla and Sunil Batra, handcuffing could only be applied in exceptional cases, with prior approval from a Magistrate. The BNSS now shifts this discretion directly to the police, without any requirement for immediate judicial oversight or recorded reasons, thereby altering the protective framework developed by the judiciary to uphold human dignity during arrests.
The absence of detailed reasoning or justification from the framers of BNSS on why these specific categories of crimes warrant handcuffing power raises concerns. The broad and unfettered discretion granted to police could lead to the routine use of handcuffs rather than treating it as an exception. This statutory empowerment under BNSS contradicts earlier judicial guidelines, which emphasized that handcuffing should be used only in extreme circumstances and as a last resort, not as a routine measure. As a result, there is a fear that this new provision may undermine the dignity and human rights of accused persons by normalizing the use of handcuffs without necessary checks and balances.
The Supreme Court of India has consistently held that handcuffing is prima facie inhuman, unreasonable, arbitrary, and violative of Article 21 of the Constitution, which guarantees the right to life and personal liberty. In its rulings, the Court emphasized that handcuffing should only be resorted to in extreme circumstances, and even then, the escorting authority must record the reasons for doing so. Furthermore, the police must obtain special orders from a magistrate before handcuffing an accused.
However, the newly introduced provision under Section 43(3) of BNSS does not incorporate these critical safeguards. It grants police officers wide discretion to handcuff accused persons in cases of serious offenses such as organized crime, terrorism, drug-related offenses, and other grave crimes without the need for immediate judicial oversight or specific reasoning to the magistrate. This unfettered statutory power under the BNSS deviates from the Supreme Court's clear guidelines, potentially leading to routine use of handcuffs without adhering to the principle that such measures should only be used as a last resort, thereby raising concerns about the protection of human dignity and individual rights during arrests.[22]DELHI POLICE MANUAL
The Delhi Police Manual, specifically Standing Order No. 44,[23] outlines strict guidelines on the use of handcuffs to ensure their application is controlled and appropriate. The order mandates that handcuffs should only be used under specific circumstances, such as when dealing with individuals involved in serious, non-bailable offenses, those with a history of violent behaviour or escape attempts, or individuals assessed to pose a risk of self-harm. The Standing Order also details the procedural requirements as follows:
- Conditions for Handcuffing
- High-Risk Offenders: Those who are considered dangerous or have previously shown a propensity for violence may be handcuffed to ensure security.
- Escape Prevention: Handcuffing is allowed if the detainee has a history or significant risk of escape, particularly in cases involving organized crime or national security concerns.
- Judicial Oversight: Standing Order No. 44 emphasizes that, whenever possible, judicial permission should be obtained prior to handcuffing detainees. In cases of immediate risk where prior permission is not feasible, police must report the restraint to the court at the earliest opportunity, justifying the decision based on security concerns.
- Documentation Requirements
- For accountability and compliance, the Standing Order mandates that police officers document the reasons for handcuffing each detainee, to be presented to the court or included in case records. This requirement aligns with Supreme Court judgments underscoring the necessity for judicial oversight and detailed records when restraining individuals.
The manual strongly advocates for a judicious and restrained approach to handcuffing, underscoring that it should be used only when absolutely necessary, rather than as a routine practice, to avoid imposing undue hardship on individuals.
ODISHA HANDCUFFING SOP
The Odisha Police Department has recently formulated the “Standard Operating Procedure for Handcuffing” to give effect to the new Section 43(3) BNSS.[24] The SOP notes the lack of an express provision in the erstwhile CrPC, the addition of the provision in BNSS and the view propounded by the Supreme Court through its various judgements.
The SOP tries to balance Section 43(3) BNSS and the law laid down by the Supreme Court in an effort towards harmonious construction. It holds the provision under Section 43(3) to be obligatory and not mandatory. Accordingly, it imposes the guidelines formulated by the Supreme Court as a part of the Standard Operating Procedure required to be followed. The SOP gives special emphasis to the requirements of dignity and bars against the use of handcuffs in a routine manner or as a form of punishment. It also prescribes a guarantee to ensure that the rights of the accused under Article 21 are not violated.
The promulgation of this SOP is a clear attempt towards reaching a balance and is a positive step by the Odisha Police Department. The formulation of this SOP corrects the flaw of missing guidelines in the text of the provision and secures the accused's fundamental rights. The central government may take a cue from the Odisha Police Department and utilise this balancing approach to bring uniformity in the country.
FUNDAMENTAL RIGHTS VIOLATIONS
The act of arresting a person—whether they are an under-trial prisoner, detainee, or convicted prisoner—involves a deprivation of liberty. Article 21 of the Indian Constitution states that no person shall be deprived of their life or personal liberty except according to the procedure established by law.
According to the directives of the Supreme Court and existing laws governing the handcuffing of prisoners in India, binding an individual in judicial or police custody is considered a violation of their right to life.
Moreover, handcuffing can also infringe upon the right to equality under Article 14 of the Constitution, as it creates a disparity in the treatment of prisoners. Additionally, it violates the right against discrimination under Article 15 when an individual is handcuffed based on their religion, race, caste, sex, or place of birth. Such practices highlight the necessity for a balanced approach to law enforcement that respects human rights while maintaining security.
The right to be treated with dignity, even during lawful detention, is a well-recognized principle under Article 21 of the Indian Constitution. It asserts that every individual, regardless of their legal status, is entitled to humane treatment while in police custody. If it is determined that the police have maltreated an individual in custody in a manner that is inconsistent with human dignity, the affected individual is at least entitled to monetary compensation for such torturous acts.[25]
This framework underscores the importance of upholding the right to life and liberty, reinforcing that any violation of these rights, especially through maltreatment or inhumane conditions, must be addressed. Providing compensation not only serves as a remedy for the victim but also acts as a deterrent against future violations by law enforcement, promoting accountability and respect for human rights within the criminal justice system.
CONCLUSION:
In conclusion, the recent amendments under the Bhartiya Nagrik Suraksha Sanhita (BNSS) significantly shift the landscape of handcuffing practices in law enforcement, potentially undermining the hard-won protections for individual rights established through previous judicial rulings. The historical context illustrates that handcuffing has often been regarded as a dehumanizing practice that should be applied sparingly and with judicial oversight. However, the BNSS now empowers police to use handcuffs without necessary checks, essentially reversing the progress made in safeguarding the dignity and rights of individuals during arrest.
This legislative change raises critical questions about the intent behind the new provisions and the potential implications for the treatment of accused persons, particularly in cases where the offences are non-violent. The lack of a robust framework to regulate the use of handcuffs may lead to an erosion of the principles of justice, liberty, and human dignity that underpin the Indian Constitution.
Therefore, as we reflect on the implications of handcuffing within the justice system, it becomes imperative to advocate for a balanced approach that upholds the rights of individuals while ensuring public safety. The path forward must involve not only reassessing the legal justifications for handcuffing but also fostering a culture of accountability and respect for human rights within law enforcement practices. Only through this dual commitment can we hope to reconcile the enforcement of law with the fundamental principles of justice and dignity.
Views Are Personal.
Arushi Bajpai is an Assistant Professor, Jindal Global Law School, O.P. Jindal Global University ↑
Shaurya Mahajan is a Student, Jindal Global Law School, O.P. Jindal Global University ↑
Priyanka Agarwal, 'BNSS Introduces Handcuffs and In-Absentia Trials, Widens Preventive Detention and Police Custody – the Leaflet' (theleaflet.in20 August 2023) <https://theleaflet.in/bnss-introduces-handcuffs-and-in-absentia-trials-widens-preventive-detention-and-police-custody/> accessed 26 October 2024. ↑
AIR 1997SC 610 ↑
'SAS Nagar Police Mohali' (Punjabpolice.gov.in2017) <https://sasnagar.punjabpolice.gov.in/dk_basu_guidelines.php> accessed 26 October 2024. ↑
Malak, 'Chaining Freedom: The Conflict between Use of Handcuffs under BNSS and Right to Life and Personal Liberty' (Livelaw.in19 July 2024) <https://www.livelaw.in/articles/chaining-freedom-the-conflict-between-use-of-handcuffs-under-bnss-and-right-to-life-and-personal-liberty-263793#> accessed 13 October 2024. ↑
Prem Shankar v. Delhi Administration, AIR1980 SC 1535. ↑
Paramjit Jaswal and Nishtha Jaswal, 'RIGHT to PERSONAL LIBERTY and HANDCUFFING : SOME OBSERVATIONS on JSTOR' (2024) 33 Journal of Indian Law Institute. ↑
Sandeepa Bhat B., 'Judicial Activism in Regulating Human Rights Violations by Police Authorities in India' (2017) 5 Kathmandu Sch L Rev 104 ↑
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675. ↑
Sandeepa Bhat (n 5). ↑
AIR 1988 SC 1768. ↑
Joshua Aston & V. N. Paranjape, 'Restructuring the Indian Police System: The Need for Accountability and Efficiency' (2012) 1 Nirma U L J [11] ↑
Joshua Aston & V. N. Paranjape, 'Restructuring the Indian Police System: The Need for Accountability and Efficiency' (2012) 1 Nirma U L J [11] ↑
Citizens for Democracy Vs State of Assam and Ors SCR 943 ↑
AIR 2011 SC 312 ↑
Suvansh Majmudar and Abhishek Bhardwaj, 'LAWS REGARDING HANDCUFFING in INDIA' (2021) 2 Burnished Law Journal. ↑
1983 AIR 378
2022 SCC OnLine Kar 1133... ↑
Editor_4, 'Karnataka High Court Grants Compensation to a Law Student Who Was Arrested and Handcuffed | SCC Times' (SCC Times6 July 2022) <https://www.scconline.com/blog/post/2022/07/06/karnataka-high-court-grants-compensation-to-a-law-student-who-was-arrested-and-handcuffed/> accessed 13 October 2024. ↑
2023 SCC OnLine Gau 4244. ↑
Apoorva Mandhani, 'Police, Judicial Custody & Use of Handcuffs — How New Bills May Make Criminal Laws Harsher' (ThePrint21 December 2023) <https://theprint.in/india/police-judicial-custody-use-of-handcuffs-how-new-bills-may-make-criminal-laws-harsher/1894579/> accessed 13 October 2024. ↑
'Standard Operating Procedure for Handcuffing' (Odisha Police 2024) <https://bprd.nic.in/uploads/pdf/CB Circular 02 to 21 of 2024.pdf> accessed 3 January 2025. ↑
Paramjit Jaswal and Nishtha Jaswal, 'RIGHT to PERSONAL LIBERTY and HANDCUFFING : SOME OBSERVATIONS on JSTOR' (2024) 33 Journal of Indian Law Institute. ↑