Sunday, June 26, 2022

The Fetter Farce

The Supreme Court has developed a strong definitive jurisprudence over time, limiting the use of handcuffing as a practice. The latest incident related to former JNU student Umar Khalid reveals how it is being ignored by police forces.

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The sight of former JNU student and activist Umar Khalid being brought before a trial court in the national capital in handcuffs triggered severe criticism from the judiciary. Additional Sessions Judge Amitabh Rawat, while taking note of the illegal and arbitrary production of Khalid in handcuffs or fetters on February 17, despite there being no orders from the Court in that respect, sought a response from the Director General (Prisons) to apprise the Court on whether prison authorities had passed any such orders from their end. “It needs no reiteration that an under-trial remains in the custody of the Court throughout the proceedings and any step of fetters/handcuffs, which are extreme steps, can only be taken after a Court allows the same on a request or an application containing reasons,” observed the Court.

Considering the seriousness of the issue, he deemed it fit to bring the lapses, if any, to the notice of the Delhi Police Commissioner and directed for filing of a report, after an inquiry through any responsible senior officer, on whether Khalid was brought in handcuffs and, if so, on what grounds or orders. Khalid is an accused in a case registered under the Unlawful Activities (Prevention) Act filed in connection with the 2020 North-East Delhi riots.

On the day of the hearing, Khalid was produced in handcuffs by the Delhi police in Delhi’s Karkardooma Court. An application was moved on behalf of Khalid seeking a departmental enquiry into the alleged incident. Senior Advocate Trideep Pais, representing Khalid, informed the Court that there were no orders from the Court for his production in handcuffs. He drew the attention of the Court to an order passed in May last year, wherein the application for producing him in handcuffs was dismissed.

Justice YV Chandrachud, former chief justice of India, while upholding the rights of individuals as cornerstone of any civilization, had once said:

“If civilization is not to perish in this country as it has perished in some others, it’s necessary to educate ourselves into accepting that, respect for rights of individuals is the true bastion of democracy.”

The guarantee of human dignity springs into action from our Constitution by virtue of Articles 14, 19 and 21, which cannot be violated by application of fetters or handcuffs. In fact, the very idea of a man being in handcuffs or fetters is an anathema to human existence. Calling it “inhuman”, “unreasonable”, “over-harsh” and “arbitrary”, the Supreme Court has developed a strong definitive jurisprudence over time, limiting the use of handcuffing as a practice, which was once quite common.

In the case of Sunil Batra vs Delhi Administration (1675), the apex court observed that deprivation of personal liberty under Article 21 is formidable except in accordance with procedures established by law, and thereby handcuffing of a person without the 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.

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In Prem Shankar Shukla vs Delhi Administration (1980, the Supreme Court noted that handcuffing is prima facie inhuman, unreasonable and arbitrary in the absence of 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 use of fetters has to be the last resort and the police has to take prior permission of the magistrate for resorting to hand­cuffing of offenders while producing them before courts intimating reasons for 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 the Court’s stand on fetters extremely clear and absolutely binding. The directions are:

  • 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, 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 jail authorities have a well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody, the prisoner shall be produced before the magistrate concerned and a prayer for permission to handcuff the prisoner be made before the magistrate.
  • 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 a 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 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.
  • 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, 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.

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In the 2012 case of Hardeep Singh vs State of Madhya Pradesh, the Supreme Court awarded compensation to the tune of Rs two lakh to a person whose handcuffing was found without jurisdiction and led to the death of his sister who was shocked to see the photographs of her brother in handcuffs in a newspaper.

In addition to the Supreme Court decisions over the use of handcuffing, prisons are also guided by the Prisons Act, 1894, where it is provided that the use of fetters can be resorted to if the rules made by the state government permit it. Confining in fetters is mentioned as one of the punishments to be imposed in connection with offences committed in prison.

Even the said legislation does not out­rightly cease the rights of the prisoners and protects them from the whims of the jail authorities to be put in fetters. Section 58 of the Act states that,

“no prisoner shall be put in irons or under mechanical restraint by the Jailer of his own authority, except in case of urgent necessity, in which case notice thereof shall be forthwith given to the Superintendent”.

—By Banshika Garg and India Legal Bureau

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