Saturday, May 18, 2024

An Inhuman Practice

The Karnataka High Court has said that body cameras with microphones be used by police officers entitled to arrest a person. It is a settled position now that the use of fetters should be resorted to as a last refuge

With the recent Karnataka High Court ruling directing the state police to make available body cameras to all police personnel entitled to arrest a person, the issue of handcuffing an accused without necessary permission from courts has again taken centre-stage.

The court of Justice Suraj Govindaraj was dealing with a plea moved by a law student seeking compensation for loss of reputation when the police allegedly paraded him with handcuffs on a public bus. This was after he was arrested in connection with a case of dishonouring cheques.

Justice Govindaraj noted that a person who is arrested can “normally not be handcuffed” unless there are extreme circumstances necessitating it, including the possibility of the person escaping custody or causing harm to himself or others.

The Court observed: “Whether the under-trial prisoners or an accused being arrested, handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others.”

Holding that there was a violation by the arresting officer in putting handcuffs on the petitioner, the Court directed the State to pay a compensation of Rs 2 lakh to the petitioner. Furthermore, Justice Govindaraj issued a slew of guidelines:

1. No person whether he be an accused, undertrial prisoner or convict shall be handcuffed unless the reason for the same is recorded.

2. If any accused is produced before a Court after arrest, it shall be the duty of the Court to, among other things, enquire as to whether the said person had been handcuffed or not. If the person were to respond in the affirmative, the Court would have to ascertain the reasons for such handcuffing and the validity or otherwise of such handcuffing.

3. The trial court shall endeavour as far as possible to avoid physical appearance of the undertrial and permit video conferencing. Only if the Court is of the opinion that the physical presence of the accused is required, then it can direct for it by a reasoned order.

4. As far as possible, permission to handcuff an undertrial prisoner would have to be taken prior to his production of before the Court and obtain an order for handcuffing from the said Court. If no such permission is applied for and the prisoner were to be handcuffed, the concerned police officer would be ta­king a risk of such handcuffing being declared illegal and action could be taken.

5. It is for the State to equip all police stations with adequate and necessary police personnel for the discharge of the duties and obligations of the State. Vacancies should be filled up by the State at the earliest.

6. The Director General of Police (DGP) shall endeavour to make available body cameras to all police officers entitled to arrest a person so that the manner of arrest is recorded. The camera shall also be equipped with a microphone to record the conversations that take place at that particular time. The video recording, as also audio recording, shall be retained at least for a year from the date of recording. A Standard Operating Procedure shall be prepared by the DGP and suitable training provided to such officers.

Earlier this year, former JNU student and activist Umar Khalid was produced before the Karkardooma Court in Delhi in handcuffs despite there being no order from the court in this regard. The Court of Additional Sessions Judge Amitabh Rawat took note of such illegal and arbitrary production of Khalid in handcuffs and said: “It needs no reiteration that an under-trial remains in the custody of the court throughout the proceedings and any step of fetters/handcuff, which are extreme steps, can only be taken after a Court allows the same on a request or an application contai­ning reasons.”

The Constitution by virtue of Articles 14, 19 and 21 guarantees to every individual the right to human dignity, which cannot be cut down cruelly by application of fetters or handcuffs. The Supreme Court has time and again issued directives restricting the use of handcuffs.

In Sunil Batra vs Delhi Administration (1978), the apex court held that deprivation of personal liberty under Article 21 is formidable except in accordance with the procedure established by law and thereby, handcuffing of a person without an order of a magistrate is unconstitutional. “The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture,” the Court held.

Subsequently, in Prem Shankar Shukla vs Delhi Administration (1980), it was noted that handcuffing is prima facie inhuman, unreasonable and arbitrary in the absence of a fair procedure and objective monitoring. “Absence of fair procedure and objective monitoring to inflict ‘irons’ is to resort to zoological strategies repugnant to Article 21,” said the top court.

It is a settled position now that the use of fetters should be resorted to as a last refuge and prior permission of the magistrate is required for handcuffing offenders while producing them before courts, intimating the reasons for the imposition of fetters. The Supreme Court, in its 1995 judgment in Citizens for Democracy vs State of Assam and Ors., passed a slew of directions on handcuffing of prisoners, making its stand on fetters clear and binding.

It said:

  • 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 jail authorities, on their own, shall 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 prisoner shall be produced before the magistrate concerned and a prayer for permission to handcuff him can be made.
  • Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the magistrate may grant permission to handcuff the prisoner.
  • In all the cases where a person arrested by the police is produced before the magistrate and remand—judicial or non-judicial—is given by him, the person shall not be handcuffed unless special orders are obtained from the magistrate at the time of the grant of the remand.
  • Where a person is arrested by the police without warrant, the police officer concerned may, if he is satisfied, on the basis of the guidelines given above, handcuff him till the time he is taken to the police station and there­after his production before the magistrate.

In 2012, the apex court in Hardeep Singh vs State of Madhya Pradesh, awarded compensation to the tune of Rs 2 lakh to a person whose handcuffing was found without jurisdiction and led to the tragic death of his sister after she saw his photographs in handcuffs in a newspaper.

In the same year, the Madras High Court directed two police constables to pay compensation to a detainee who was handcuffed without the magistrate’s permission.

The United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the Nelson Mandela Rules, which were adopted by the United Nations General Assembly in 2015, sets out standards for what is generally accepted as good practices in the treatment of prisoners. Rule 47 states that the use of chains, irons or other instruments of restraint which are inherently degrading or painful shall be prohibited. It further states that other instruments of restraint shall only be used when authorised by law as a precaution against escape during a transfer or in order to prevent a prisoner from injuring himself or herself or others or from damaging property.

The use of handcuffs and fetters to secure the arrest of offenders is thus despotic and humiliating and against human dignity. Law enforcement agencies need to be sensitised to strike a balance between personal liberty and societal interest while upholding human rights.

—By Banshika Garg and India Legal Bureau

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