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Introduction
On 1st July 2024, new criminal laws have come into effect. The old Code of Criminal Procedure of 1973 has been replaced by the new Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), the old Indian Penal Code of 1860 has been replaced by new Bharatiya Nyaya Sanhita, 2023 (BNS), and the old Indian Evidence Act of 1872 has been replaced by new Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Though there is a lot to discuss and understand about these laws, yet there is one particular provision that recently caught my eye, Section 43 (3) of the BNSS. The said provision is reproduced hereunder: -
“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 perusal of the said provision entails that a discretion has been vested with the concerned police officer to use handcuffs while making an arrest of habitual offenders, repeat offenders and some other categories of offenders. It seems that Section 43 (3) is trying to create a distinction between prisoners who are accused/convicted of different offences. Such an approach is definitely not unbeknownst to law. Often, prisoners accused or convicted of grave and serious offences are given harsher prison conditions.
Even handcuffing is not something that was completely absent earlier. Yet, as far as I remember, the concept of handcuffing was never explicitly codified in the old Code of Criminal Procedure of 1973. There were prison manuals, jail manuals, police manuals etc. where the mode and manner of handcuffing was discussed.
Judicial View
However, as stated, it is a historic event that the concept of handcuffing in independent India has been codified in its Criminal Procedure Code. S. 43 (3) reminds me of the celebrated judgment pronounced in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494, wherein the Hon’ble Court had dealt with the concept of handcuffing in following terms: -
“(3) Fetters, especially bar fetters, shall be shunned as violative of human dignity, within and without prisons. 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 dealt with next below. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture.
(4) Where an undertrial has a credible tendency for violence and escape a humanely graduated degree of “iron” restraint is permissible if — only if — other disciplinary alternatives are unworkable. The burden of proof of the ground is on the custodian. And if he fails, he will be liable in law.”
Thus, the Hon’ble Supreme Court has shunned in unequivocal terms the arbitrary usage of handcuffs. In a similar matter of Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526, the Hon’ble Supreme Court again discussed the imposition of handcuffs in following terms: -
“43. Now whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the decision of the authority responsible for his custody. It is a judgment to be exercised with reference to each individual case. It is for that authority to exercise its discretion, and I am not willing to accept that the primary decision should be that of any other. The matter is one where the circumstances may change from one moment to another, and inevitably in some cases it may fall to the decision of the escorting authority midway to decide on imposing a restraint on the prisoner. I do not think that any prior decision of an external authority can be reasonably imposed on the exercise of that power. But I do agree that there is room for imposing a supervisory regime over the exercise of that power. One sector of supervisory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for the custodial authority to inform that court of the circumstances in which, and the justification for imposing a restraint on the body of the accused. It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control.”
In this matter, the Hon’ble Supreme Court observed that it would be desirable for the custodial authority to inform the court of the circumstances in which the handcuffs have been imposed on an accused or a convict. Apart from it, there are many other cases, where the Hon’ble Courts have made similar observations regarding usage of handcuffs. The bottom line with regard to handcuffs seems to be that there should be just and cogent reasons while imposing the same and handcuffs ought not to be imposed as a routine measure.
Some Pertinent Questions
Now, the question that arises with Section 43 (2) is that whether it is promoting a regime where handcuffs would be applied routinely on certain categories of offenders or is it promoting a rule-based regime where handcuffing would be resorted to only when there is a dire need for the same?
For me, the answer lies in the wording of the S. 43 (3). It starts with “the police officer may, keeping in view the nature and gravity of the offence, use handcuff……” There is a conscious usage of the word ‘may’ by the legislature and an additional condition of looking into nature and gravity of the offence has also been imposed while deciding the usage of handcuffs. Therefore, as stated, a discretion is vested with the concerned police officer to decide on usage of handcuffs.
Is such a discretion unfettered, absolutely not. Only for certain categories of offenders, usage of handcuffs has been provided for.
Does this mean that for other categories of offenders, handcuffing can never be permitted since the same is absent from the statute book? I think by consciously excluding certain categories of offenders from usage of handcuffs, the answer is self-evident that no handcuffing can now be permitted for offenders who do not fall within the categories espoused in Section 43 (3).
Another pertinent question that arises here is whether Section 43 (3) is in consonance with the mandate provided for by the Hon’ble Supreme Court in its catena of judgments? To answer the same, the observations made in Sunil Batra Case (supra) may be seen where it was observed that “reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture.”
Time and again, the Courts have clarified that whether it is handcuffing or imposition of other forms of ‘iron’ on the offender, such questions ought to be decided in a reasonable and pragmatic manner. The police authorities cannot use handcuffing to shame the prisoner. It ought to be resorted to only when the circumstances so desire. Hence, a semblance of rationality must exist while arriving at such a decision.
Own View
Without meaning any disrespect to the observations made by the Hon’ble Courts or the new provisions enacted by the legislature, my own view is that the practice of handcuffing or putting the offender in ‘iron’ is an archaic one. It should have no place in the 21st century which is also called as an age of surveillance. In this global era of GPS, internet, optical fibers, high fidelity cameras and bandwidth, it is virtually impossible for any offender to escape from court premises or from any other place, unless there is negligence or connivance of custodial authorities. There are so many other ways of tracking an offender and instead of handcuffing, a GPS watch or tag may be affixed (just a suggestion). I think it would serve the same purpose.
Handcuffing is especially problematic for accused persons; people who have not yet been convicted. Suppose they are acquitted later on (it happens quite often), then what about the loss of dignity, reputation, status and character that would have transpired on account of handcuffing?
Law must not simply be sensible but should also be sensitive to the needs of all strata of society. As a society, we must not allow handcuffing to become a routine practice. It is not only cumbersome on the body but also on mind.
Concluding Remarks
The role of criminal justice system needs to be understood in proper perspective. In this regard, the Hon’ble Supreme Court in the case of Mohammad Giasuddin v. State of A.P., (1977) 3 SCC 287, discussed the therapeutic goal of imprisonment in following terms: -
“Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals — mental and moral — is the key to the pathology of delinquency and the therapeutic role of ‘punishment’. The whole man is a healthy man and every man is born good. Criminality is a curable deviance.... Our prisons should be correctional houses, not cruel iron aching the soul.... This nation cannot — and, if it remembers its incarcerated leaders and freedom fighters — will not but revolutionize the conditions inside that grim little world. We make these persistent observations only to drive home the imperative of Freedom — that its deprivation, by the State, is validated only by a plan to make the sentences more worthy of that birthright. There is a spiritual dimension to the first page of our Constitution which projects into penology.”
There are many other judgments of the Hon’ble Supreme Court that have discussed the role of imprisonment and punishment in similar terms. The need of the hour is to make sure that the law enforcing authorities function within the established limits, and simply to bulldoze a particular narrative, reckless actions are not resorted to.
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