ition No 1079 of 1979
Under Article 32 of the Constitution Dr YS Chitale Amicus Curiae and Mukul Mudgal for the petitioner
862 RN Sachthey HS Marwah and MN Shroff for the Respondent
The Judgment of the Court was delivered by KRISHNA IYER J
When they arrested my neighbour I did not protest
When they arrested the men and women in the opposite house I did not protest
And when they finally came for me there was nobody left to protest
 This grim scenario burns into our judicial consciousness the moral emerging from the case being that if to day freedom of one forlorn person falls to the police somewhere tomorrow the freedom of many may fall elsewhere with none to whimper unless the court process in vigilates in time and polices the police before it is too late
This futuristic thought triggered off by a telegram from one Shukla prisoner lodged in the Tihar Jail has prompted the present habeas  proceedings
The brief message he sent runs thus In spite of Court order and directions of your Lordship in Sunil Batra vs Delhi handcuffs are forced on me and others
Admit writ of Habeas Corpus
Those who are injured to handcuffs and bar fetters on others may ignore this grievance but the guarantee of human dignity which forms h part of our constitutional culture and the positive provisions of articles 14 19 and 21 spring into action when we realise that to manacle man is more than to mortify him it is to dehumanize him and therefore to violate his very personhood too often using the mask of dangerousness  and security
This sensitized perspective shared by court and counsel alike has prompted us to examine the issue from a fundamental viewpoint and not to dismiss it as a daily sight to be pitied and buried Indeed we have been informed that the High Court had earlier dismissed this petitioner s demand to be freed from fetters on his person but we are far from satisfied going by what is stated in Annexure A to the counter affidavit of the Asst
Superintendent of Police that the matter has received the constitutional concern it deserves
Annexure A to the counter affidavit is a communication from the Delhi Administration for general guidance and makes disturbing reading as it has the flavour of legal advice and executive directive and makes mention of a petition for like relief in the High Court The petition was listed before Hon ble Mr Justice Yogeshwar Dayal of Delhi High Court
After hearing arguments 863 the Hon ble Court was pleased to dismiss the petition filed by the petitioner Shri PS Shukla asking for directions for not putting the handcuffs when escorted from jail to the court and back to the Jail
In view of the circumstances of the case it was observed that no directions were needed
However it came to my notice that the requirements of Punjab Police Rules contained in Volume III Chapter 25 Rule 26 22 23 and High Court Rules and orders Volume III Chapter 27 Rule 19 are not being complied with
I would also draw the attention of all concerned to the judgment delivered by Mr Justice RN Aggarwal in Vishwa Nath Versus State Crl
Main No 430 of 1978 decided on 6 4 1979 wherein it has been observed that a better class under trial be not handcuffed with out recording the reasons in the daily diary for considering the necessity of the use of such a prisoner is being escorted to and from the court by the police use of handcuffs be not reported to unless there is a reasonable expectation that such prisoner will use violence or that an attempt will be made to rescue him
The practice of use of handcuffs be followed in accordance with the rules mentioned above
In plain language it means that ordinary Indian under trials shall be routinely handcuffed during transit between jail and court and the better class prisoner shall be so confined only if reasonably apprehended to be violent or rescued
The facts are largely beyond dispute and need brief narration so that the law may be discussed and declared
The basic assumption we humanistically make is that even a prisoner is a person not an animal that an under trial prisoner a fortiori so
Our nation s founding document admits of no exception on this subject as Sunil Batra s case has clearly stated
Based on this thesis all measures authorised by the law must be taken by the court to keep the stream of prison Justice unsullied
A condensed statement of the facts may help concritise the legal issue argued before us
A prisoner sent a telegram to a judge of this Court one of us complaining of forced handcuffs on him and other prisoners implicitly protesting against the humiliation and torture of being held in irons in public back and forth when as under trials kept in custody in the Tihar Jail they were being taken to Delhi courts for trial of their cases
The practice persisted bewails the petitioner despite the court s direction not to use irons on him and this led to 864 the telegraphic litany  to the Supreme Court which is the functional sentinel on the qui vive where habeas  justice is in jeopardy
If iron enters the soul of law and of the enforcing agents of law rather if it is credibly alleged so this court must fling aside forms of procedure and defend the complaining individual s personal liberty under articles 14 19 and 21 after due investigation
Access to human justice is the essence of article 32 and sensitized by this dynamic perspective we have examined the facts and the law and the rival versions of the petitioner and the Delhi Administration
The blurred area of detention jurisprudence  where considerations of prevention of escape and personhood of prisoner come into conflict warrants fuller exploration than this isolated case necessitates and counsel on both sides Dr Chitale as amicus curiae aided ably by Shri Mudgal and Shri Sachthey for the State have rendered brief oral assistance and presented written submissions on a wider basis
After all even while discussing the relevant statutory provisions and constitutional requirements court and counsel must never forget the core principle found in article 5 of the Universal Declaration of Human Rights 1948 No one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment And read article 10 of the International Covenant on Civil and Political Rights article 10 All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person
Of course while these larger considerations may colour our mental process our task cannot over flow the actual facts of the case or the norms in Part III and the Provisions in the Prisoners Attendance in Courts Act 1955 for short the Act
All that we mean is that where personal freedom is at stake or torture is in store to read down the law is to write off the law and to rise to the remedial demand of the manacled man is to break human bondage if within the reach of the judicial process
In this jurisdiction the words of Justice Felix Frankfurter are a mariner s compass The history of liberty has largely been the history of observance of procedural safeguards
And in Maneka Gandhi s case it has been stated 865 the ambit of personal liberty protected by article 21 is wide and comprehensive
It embraces both substantive rights to personal liberty and the procedure provided for their deprivation Has the handcuffs device if so how far procedural sanction That is the key question
The prisoner complains that he was also chained but that fact is controverted and may be left out for the while
Within this frame of facts we have to consider whether it was right that Shukla was shackled
The respondent relies upon the provisions of the Act and the rules framed thereunder and under the Police Act as making shackling lawful
This plea of legality has to be scanned for constitutionality in the light of the submissions of Dr Chitale who heavily relies upon article 21 of the Constitution and the collective consciousness relating to human rights burgeoning in our half century
The petitioner is an under trial prisoner whose presence is needed in several cases making periodical trips between jail house and magistrate s courts inevitable
Being in custody he may try to flee and so escort duty to prevent escape is necessary
But escorts while taking responsible care not to allow their charges to escape must respect their personhood
The dilemma of human rights jurisprudence comes here
Can the custodian fetter the person of the prisoner while in transit with irons maybe handcuffs or chains or bar fetters When does such traumatic treatment break into the inviolable zone of guaranteed rights When does disciplinary measure end and draconic torture begin  What are the constitutional parameters viable guidelines and practical strategies which will permit the peaceful co existence of custodial conditions and basic dignity The decisional focus turns on this know how and it affects tens of thousands of persons languishing for long years in prisons with pending trials Many
Shukla s in shackles are invisible parties before us that makes the issue a matter of moment
We appreciate the services of Dr Chitale and his junior Shri Mudgal who have appeared as amicus curiae and belighted the blurred area of law and recognise the help rendered by Shri Sachthey who has appeared for the State and given the full facts
The petitioner claims that he is a better class  prisoner a fact which is admitted although one fails to understand how there can be a quasi caste system among prisoners in the egalitarian context of article 14
It is a sour fact of lire that discriminatory treatment based upon wealth and circumstances dies hard under the Indian Sun
We hope the Ministry of Home Affairs and the Prison Administration will take due note of the survival after legal death of this invidious distinction and put all 866 prisoners on the same footing unless there is a rational classification based upon health age academic or occupational needs or like legitimate ground and not irrelevant factors like wealth political importance social status and other criteria which are a hang over of the hierarchical social structure hostile to the constitutional ethos
Be that as it may under the existing rules the petitioner is a better class prisoner and claims certain advantage for that reason in the matter of freedom from handcuffs
It is alleged by the State that there are several cases where the petitioner is needed in the courts of Delhi
The respondents would have it that he is an inter State cheat and a very clever trickster and tries to brow beat and misbehave with the object to escape from custody
 of course the petitioner contends that his social status family background and academic qualifications warrant his being treated as a better class prisoner and adds that the court had directed that for that reason he be not handcuffed
He also states that under the relevant rules better class prisoners are exempt from handcuffs and cites in support the view of the High Court of Delhi that a better class under trial should not be handcuffed without recording of reasons in the daily diary for considering the necessity for the use of handcuffs
The High Court appears to have observed Annexure A to the counter affidavit on behalf of the State that unless there be reasonable expectation of violence or attempt to be rescued the prisoner should not be handcuffed
The fact nevertheless remains that even apart from the High Court s order the trial judge Shri A K Garg had directed the officers concerned that while escorting the accused from jail to court and back handcuffing should not be done unless it was so warranted 
I direct that the officers concerned while escorting the accused from jail to court and back shall resort to handcuffing only if warranted by rule applicable to better class prisoners and if so warranted by the exigency of the situation on obtaining the requisite permission as required under the relevant rules
 Heedless of judicial command the man was fettered during transit under superior police orders and so this habeas corpus petition and this Court appointed Dr Y section Chitale as amicus curiae gave suitable directions to the prison officials to make the work of counsel fruitful and issued notice to the State before further action To wipe every tear from every eye has judicial dimension
Here is a prisoner who bitterly complains that he has been publicly handcuffed while being escorted to court and invokes the court s power to protect the integrity of his person and the dignity of his humanhood against custodial cruelty contrary to constitutional prescriptions
867 The Superintendent of the Jail pleaded he had nothing to do with the transport to and from court and Shri Sachthey counsel for the Delhi Administration explained that escorting prisoners between custodial campus and court was the responsibility of a special wing of the police
He urged that when a prisoner was a security risk irons were not allergic to the law and the rules permitted their use
The petitioner was a clever crook and by enticements would escape from gullible constables
Since iron was too stern to be fooled his hands were clad with handcuffs
The safety of the prisoner being the onus of the escort police the order of the trial court was not blindly binding
The Rules state so and this explanation must absolve the police
Many more details have been mentioned in the return of the police officer concerned and will be referred to where necessary but the basic defence put in blunt terms is that all soft talk of human dignity is banished when security claims come into stern play
Surely no cut and dried reply to a composite security versus humanity question can be given
We have been persuaded by counsel to consider this grim issue because it occurs frequently and the law must be clarified for the benefit of the escort officials and their human charges
Dr Chitale s contention comes to this Human rights are not constitutional clap trap in silent meditation but part of the nation s founding charter in sensitized animation
No prisoner is beneath the law and while the Act does provide for rules regarding journey in custody when the court demands his presence they must be read in the light of the larger back drop of human rights
Here is a prisoner the petitioner who protests against his being handcuffed routinely publicly vulgarly and unjustifiably in the trips to and fro between the prison house and the court house in callous contumely and invokes the writ jurisdiction of this Court under article 32 to protect within the limited circumstances of his lawful custody
We must investigate the deeper issues of detainee s rights against custodial cruelty and infliction of indignity
within the human rights parameters of Part III of the Constitution informed by the compassionate international charters and covenants
The raw history of human bondage and the roots of the habeas corpus writ enlighten the wise exercise of constitutional power in enlarging the person of men in unlawful detention
No longer is this liberating writ tramelled by the traditional limits of English vintage for our founding fathers exceeded the inspiration of the prerogative writs by phrasing the power in larger diction
That is why in India as in the similar jurisdiction in America the broader horizons of Habeas corpus spread out beyond the orbit of release from illegal custody into every trauma and torture on persons in legal custody if the cruelty is contrary to law degrades 868 human dignity or defiles his personhood to a degree that violates articles 21 14 and l 9 enlivened by the Preamble
The legality of the petitioner s custody is not directly in issue but though circumscribed by the constraints of lawful detention the indwelling essence and inalienable attributes of man qua man are entitled to the great rights guranteed by the Constitution
In Sunil Batra s case supra it has been laid down by a Constitution Bench of this Court that imprisonment does not ipso facto Mean that fundamental rights desert the detainee There is no dispute that the petitioner was as a fact handcuffed on several occasions
It is admitted again that the petitioner was so handcuffed on 6 10 1979 under orders of the Inspector of Police whose reasons set out in Annexure E to say the least are vague and unverifiable even vagarious Counsel for the respondent in his written submissions states that the petitioner is involved in over a score of cases
But that by itself is no ground for handcuffing the prisoner
He further contends that the police authorities are in charge of escorting prisoners and have the discretion to handcuff them a claim which must be substantiated not merely with reference to the Act and the Rules but also the Articles of the Constitution
We may first state the law and then test that law on the touch stone of constitutionality
Section 92e of the Act empowers the State Government to make Rules regarding the escort of persons confined in a prison to and from courts in which their attendance is required and for their custody during the period of such attendance
The Punjab Police Rules 1934 Vol
III contain some relevant provisions although the statutory source is not cited
We may extract them here 26221 Every male person falling within the following category who has to be escorted in police custody and whether under police arrest remand Conditions in which or trial shall provided that he handcuffs are to be appears to be in health and not used
incapable of offering effective resistance by reason of age be carefully handcuffed on arrest and before removal from any building from which he may he taken after arrest a persons accused of a non bailable offence punishable with any sentence exceeding in severity a term of three years  imprisonment
869 b Persons accused of an offence punishable under section 148 or 226 Indian Penal Code
c Persons accused of and previously convicted of such an offence as to bring the case under section 75 Indian Penal Code
d Desperate characters
e Persons who are violent disorderly or obstructive or acting in a manner calculated to provoke popular demonstration
f Persons who are likely to attempt to escape or to commit suicide or to be the object of an attempt at rescue
This rule shall apply whether the prisoners are escorted by road or in a vehicle
2 Better class under trial prisoners must only be hand cuffed when this is regarded as necessary for safe custody When a better class prisoner is handcuffed for reasons other than those contained in a b and c of sub rule 1 the officer responsible shall enter in the Station Diary or other appropriate record his reasons for considering the use of hand cuffs necessary
This paragraph sanctions handcuffing as a routine exercise on arrest if any of the conditions a to f is satisfied Better Class  under trial prisoners receive more respectable treatment in the sense that they shall not be handcuffed unless it is necessary for safe custody Moreover when handcuffing better class under trials the officer concerned shall record the reasons for considering the use of handcuffs necessary
Better class prisoners are defined in rule 2621 A which also may be set out here 2621 A Under trial prisoners are divided into two classes based on previous standard of living
The classifying authority is the trying court subject to the approval of the District Magistrate but during the period before a Classification of under prisoner is brought before a trial prisoners
competent court discretion shall be exercised by the officer in charge of the Police Station concerned to classify him as either better class  or ordinary 
Only those prisoners should be classified provisionally as better class  who by social status education or habit of life have been accustomed 870 to a superior mode of living
The fact that the prisoner is to be tried for the commission of any particular class of offence is not to be considered
The possession of a certain degree of literacy is in itself not sufficient for better class  classification and no under trial prisoner shall be so classified whose mode of living does not appear to the Police officer concerned to have definitely superior to that of the ordinary run of the population whether urban or rural
Under trial prisoners classified as better class  shall be given the diet on the same scale as prescribed for A and B class convict prisoners in Rule 26271
The dichotomy between ordinary and better class prisoners has relevance to the facilities they enjoy and also bear upon the manacles that may be clamped on their person
Social status education
mode of living superior to that of the ordinary run of the population are the demarcating tests
Paragraph 2712 directs that prisoners brought into court in handcuffs shall continue in handcuffs unless removal thereof is specially ordered by the Presiding officer that is to say handcuffs even within the court is the rule and removal an exception
We may advert to revised police instructions and standing orders bearing on handcuffs on prisoners since the escort officials treat these as of scriptural authority
Standing order 44 reads 1 The rules relating to handcuffing of political prisoners and others are laid down in Police Rules 1830 1835 2622 2623 and 2624
A careful Perusal of these provisions shows that handcuffs are to be used if a person is involved in serious non bailable offences is a previous convict a desperate character violent disorderly or obstructive or a person who is likely to commit suicide or who may attempt to escape
2 In accordance with the instructions issued by the Government of India Ministry of Home Affairs New Delhi vide their letters No 21557 P IV dated 26 7 57 and No 87074 GPA I dated 5 11 74 copies of which were sent to all concerned vide this Hdqrs
endst
No 19143 293CT dated 3 9 76 handcuffs are normally to be used by the Police only where the accusedprisoner is violent disorderly obstructive or is likely to attempt to escape or commit suicide or is charged with certain serious non bailable  offences
3 x x x x x x 871 4 It has been observed that in actual practice prisonerspersons arrested by the police are handcuffed as a matter of routine
This is to be strictly stopped forthwith
5 Handcuffs should not be used in routine
They are to be used only where the person is desperate rowdy or is involved in non bailable offence
There should ordinarily be no occasion to handcuff Persons occupying a good social position in public life or professionals like jurists advocates doctors writers educationists and well known journalists
This is at best an illustrative list obviously it cannot be exhaustive
It is the spirit behind these instructions that should be understood
It shall be the duty of supervisory officers at various levels the SHO primarily to see that these instructions are strictly complied with
In case of non observance of these instructions severe action should be taken against the defaulter
There is a procedural safeguard in sub clause 6 6 The duty officers of the police station must also ensure that an accused when brought at the police station or despatched
the facts where he was handcuffed or otherwise should be clearly mentioned along with the reasons for handcuffing in the relevant daily diary report
The SHO of the police station and ACP of the Sub Division will occasionally check up the relevant daily diary to see that these instructions are being complied with by the police station staff Political prisoners if handcuffed should not be walked through the streets sub para 7 and so by implication others can be
These orders are of April 1979 and cancel those of 1972
The instructions on handcuffs of November 1977 may be reproduced in fairness In practice it has been observed that handcuffs are being used for under trials who are charged with the offences punishable with imprisonment of less than 3 years which is contrary to the instructions of PPR unless and until the officer handcuffing the under trial has reasons to believe that the handcuff was used because the under trial was violent disorderly or obstructive or acting in the manner calculated to provoke popular demonstrations or he has apprehensions that the person so handcuffed was likely to attempt to escape or to commit suicide or any other reason of that type for which he should record a report in DD before use of hand
cuff when and wherever available
872 The above instructions should be complied with meticulously and all formalities for use of handcuff should be done before the use of handcuffs
This collection of handcuff law must meet the demands of articles 14 19 and 21
In the Sobraj case the imposition of bar fetters on B a prisoner was subjected to constitutional scrutiny by this Court
Likewise irons forced on under trials in transit must conform to the humane imperatives of the triple articles
Official cruelty sans constitutionality degenerates into criminality
Rules Standing orders Instructions and Circulars must bow before Part III of the Constitution
So the first task is to assess the limits set by these I articles
The Preamble sets the humane tone and temper of the Founding Document and highlights Justice Equality and the dignity of the individual
article 14 interdicts arbitrary treatment discriminatory dealings and capricious cruelty
article 19 prescribes restrictions on free movement unless in the interests of the general public
Art 21 after the landmark case in Maneka Gandhi followed by Sunil Batra supra is the sanctuary of human values prescribes fair procedure and forbids barbarities punitive or processual
Such is the apercu if we may generalise
Handcuffing is prima facie inhuman and therefore unreasonable is over harsh and at the first flush arbitrary
Absent fair procedure and objective monitoring to inflict irons  is to resort to zoological strategies repugnant to article 21
Thus we must critically examine the justification offered by the State for this mode of restraint
Surely the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised
To prevent the escape of an under trial is in public interest reasonable just and cannot by itself be castigated But to bind a man hand and foot fetter his limbs with hoops of steel shuffle him along in the streets and stand him for hours in the courts is to torture him defile his dignity vulgarise society and foul the soul of our constitutional culture
Where then do we draw the humane line and how far do the rules err in print and praxis  Insurance against escape does not compulsorily require hand cuffing
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
Indeed binding together either the 873 hands or the feet or both has not merely a preventive impact but also a punitive hurtfulness
Manacles are mayhem on the human person and inflict humiliation on the bearer
The Encyclopaedia Britannica Vol
II 1973 Edn at p 53 states handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest or as a means of punishment
 The three components of irons  forced on the human person must be distinctly understood
Firstly to handcuff is to hoop harshly
Further to handcuff is to punish humiliatingly and to vulgarise the viewers also
Iron straps are insult and pain writ large animalising victim and keeper
Since there are other ways of ensuring security it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under trial prisoner ordinarily
The latest police instructions produced before us hearteningly reflect this view
We lay down as necessarily implicit in articles 14 and 19 that when there is no compulsive need to fetter a person s limbs it is sadistic capricious despotic and demoralizing to humble a man by manacling him
Such arbitrary conduct surely slaps article 14 on the face
The criminal freedom of movement which even a detainee is entitled to under article 19 see Sunil Batra supra cannot be cut down cruelly by application of handcuffs or other hoops
It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available the prisoner being so dangerous and desperate and the circumstance so hostile to safe keeping
Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort and we declare that to be the law the distinction between classes of prisoners becomes constitutionally obsolete
Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise how can we assume that a rich criminal or under trial is any different from a poor or pariah convict or under trial in the matter of security risk  An affluent in custody may be as dangerous or desperate as an indigent if not more
He may be more prone to be rescued than an ordinary person
We hold that it is arbitrary and irrational to classify prisoners for purposes of handcuffs into B  class and ordinary class
No one shall be fettered in any form based on superior class differentia as the law treats them equally
It is brutalising to handcuff a person in public and so is unreasonable to do so
Of course the police escort will find it comfortable to fetter their charges and be at ease but that is not a relevant consideration
874 The only circumstance which validates incapacitation by irons an extreme measure is that otherwise there is no other reasonable way of preventing his escape in the given circumstances
Securing the prisoner being a necessity of judicial trial the State must take steps in this behalf
But even here the policeman s easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough
The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances
Ignominy inhumanity and affliction implicit in chains and shackles are permissible as not unreasonable only if every other less cruel means is fraught with risks or beyond availability
So it is that to be consistent with articles 14 and 19 handcuffs must be the last refuge not the routine regimen
If a few more guards will suffice then no handcuffs
If a close watch by armed policemen will do then no handcuffs
If alternative measures may be provided then no iron bondage
This is the legal norm
Functional compulsions of security must reach that dismal degree that no alternative will work except manacles
We must realise that our Fundamental Rights are heavily loaded in favour of personal liberty even in prison and so the traditional approaches without reverence for the worth of the human person are obsolete although they die hard
Discipline can be exaggerated by prison keepers dangerousness can be physically worked up by escorts and sadistic disposition where higher awareness of constitutional rights is absent may overpower the values of dignity and humanity
We regret to observe that cruel and unusual treatment has an unhappy appeal to jail keepers and escorting officers which must be countered by strict directions to keep to the parameters of the constitution
The conclusion flowing from these considerations is that there must first be well grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick
The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic
Vague surmises or general averments that the under trial is a crook or desperado rowdy or maniac cannot suffice
In short save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit the onus of proof of which is on him who puts the person under irons the police escort will be committing personal assault or mayhem if he handcuffs or fetters his charge
It is disgusting to see the mechanical way in which callous policemen cavalier fashion handcuff prisoner in their charge indifferently keeping them company assured by the thought that the detainee is under iron  restraint
875 Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders unless there is material sufficiently stringent to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control
It is hard to imagine such situations
We must repeat that it is unconscionable indeed outrageous to make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing
This elitist concept has no basis except that on the assumption the ordinary Indian is a sub citizen and freedoms under Part III of the constitution are the privilege of the upper sector of society
We must clarify a few other facets in the light of Police Standing orders
Merely because a person is charged with a grave offence he cannot be handcuffed He may be very quiet well behaved docile or even timid
Merely because the offence is serious the inference of escape proneness or desperate character does not follow
Many other conditions mentioned in the Police Manual are totally incongruous with what we have stated above and must fall as unlawful
Tangible testimony documentary or other or desperate behaviour geared to making good his escaped alone will be a valid ground for handcuffing and fettering and even this may be avoided by increasing the strength of the escorts or taking the prisoners in well protected vans
It is heartening to note that in some States in this country no handcuffing is done at all save in rare cases when taking under trials to courts and the scary impression that unless the person is confined in irons he will run away is a convenient myth
Some increase in the number of escorts arming them if necessary special training for escort police transport of prisoners in protected vehicles are easily available alternatives and in fact are adopted in some States in the country where handcuffing is virtually abolished eg Tamil Nadu
Even in cases where in extreme circumstances handcuffs have to be put on the prisoner the escorting authority must record contemporaneously the reasons for doing so
Otherwise under article 21 the procedure will be unfair and bad in law
Nor will mere recording the reasons do as that can be a mechanical process mindlessly made
The escorting officer whenever he handcuffs a prisoner produced in court must show the reasons so recorded to the Presiding Judge and get his approval
Otherwise there is no control over 876 possible arbitrariness in applying handcuffs and fetters
The minions of the police establishment must make good their security recipes by getting judicial approval
And once the court directs that handcuffs shall be off no escorting authority can overrule judicial direction
This is implicit in article 21 which insists upon fairness reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty
The ratio in Maneka Gandhi s case and Sunil Batra s ease supra read in its proper light leads us to this conclusion
We therefore hold that the petition must be allowed and handcuffs on the prisoner dropped
We declare that the Punjab Police Manual in so far as it puts the ordinary Indian beneath the better class breed paragraphs 2621A and 26 22 of Chapter XXVI is untenable and arbitrary and direct that Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs
The provisions in para 2622 that every under trial who is accused of a non bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of articles 14 19 and 21
So also para 2622 b and c
The nature of the accusation is not the criterion
The clear and present danger of escape breaking out of the police control is the determinant
And for this there must be clear material not glib assumption record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced
We go further to hold that para 2622 1 b e and f also hover perilously near unconstitutionality unless read down as we herein direct Desperate character  is who  Handcuffs are not summary punishment vicariously imposed at police level at once obnoxious and irreversible
Armed escorts worth the salt can overpower any unarmed under trial and extraguards can make up exceptional needs
In very special situations we do not rule out the application of irons The same reasoning appears to e and f
Why torture the prisoner because others will demonstrate or attempt his rescue  The plain law of under trial custody is thus contrary to the unedifying escort practice
We remove the handcuffs from the law and humanize the police praxis to harmonise with the satvic values of Part III
The law must be firm not foul stern not sadistic strong not callous
Traditionally it used to be thought that the seriousness of the possible sentence is the decisive factor for refusal of bail
The assumption was that this gave a temptation for the prisoner to escape
This is held by modern penologists to be a psychic fallacy and the bail jurisprudence evolved in the English and American Jurisdictions and 877 in India now takes a liberal view
The impossibility of easy recapture supplied the temptation to jump custody not the nature of the offence or sentence
Likewise the habitual or violent escape propensities  proved by past conduct or present attempts are a surer guide to the prospects of running away on the sly or by use of force than the offence with which the person is charged or the sentence
Many a murderer assuming him to be one is otherwise a normal well behaved even docile person and it rarely registers in his mind to run away or force his escape
It is all indifferent escort or incompetent guard not the Section with which the accused is charged that must give the clue to the few escapes that occur
To abscond is a difficult adventure
No study of escapes and their reasons has been made by criminologists and the facile resort to animal keeping methods as an easy substitute appeals to Authority in such circumstances Human rights  seriousness loses its valence where administrator s convenience prevails over cultural values
The fact remains for its empirical worth that in some States eg Tamil Nadu and Kerala handcuffing is rarely done even in serious cases save in those cases where evidence of dangerousness underground operations to escape and the like is available
It is interesting that a streak of humanism had found its place in the law of handcuffing even in the old Bombay Criminal Manual which now prevails in the Gujarat State and perhaps in the Maharashtra State
But in the light 878 of the constitutional imperatives we have discussed we enlarge the law of personal liberty further to be in consonance with fundamental rights of persons in custody
There is no genetic criminal tribe as such among humans
A disarmed arrestee has no hope of escape from the law if recapture is a certainty
He heaves a sigh of relief if taken into custody as against the desperate evasions of the chasing and the haunting fear that he may be caught anytime
It is superstitious to practise 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 hand cuffing 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
We have discussed at length what may be dismissed as of little concern
The reason is simple
Any man may by a freak of fate become an under trial and every man barring those who through wealth and political clout are regarded as VIPs are ordinary classes and under the existing Police Manual may be man handled by handcuffs
The peril to human dignity and fair procedure is therefore widespread and we must speak up
Of course the 1977 and 1979 instructions  we have referred to earlier show a change of heart
This Court must declare the law so that abuse by escort constables may be Repelled
We repeat with respect the observations in Wiliam King Jackson vs DE Bishop
1 We are not convinced that any rule or regulation as to the use of the strap however seriously or sincerely conceived and drawn will successfully prevent abuse
The present record discloses misinterpretation even of the newly adopted 2 Rules in this area are seen often to go unobserved
3 Regulations are easily circumvented 4 Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous
5 Where power to punish is granted to persons in lower levels of administrative authority there is an inherent and natural difficulty in enforcing the limitations of that power
879 Labels like desperate  and dangerous  are treacherous
Kent section Miller writing on dangerousness  says Considerable attention has been given to the role of psychological tests in predicting dangerous behaviour and there is a wide range of opinion as to their value
Thus far no structured or projective test scale has been derived which when used alone will predict violence in the individual case in a satisfactory manner
Indeed none has been developed which will adequately postdict let alone predict violent behaviour 
But we are on dangerous ground when deprivation of liberty occurs under such conditions
The practice has been to markedly overpredict
In addition the courts and mental health professionals involved have systematically ignored statutory requirements relating to dangerousness and mental illness 
In balancing the interests of the state against the loss of liberty and rights of the individual a prediction of dangerous behaviour must have a high level of probability a condition which currently does not exist and the harm to be prevented should be considerable
A law which handcuffs almost every undertrial who presumably is innocent is itself dangerous
Before we conclude we must confess that we have been influenced by the thought that some in authority are sometimes moved by the punitive passion for retribution through the process of parading under trial prisoners cruelly clad in hateful irons
We must also frankly state that our culture constitutional and other revolts against such an attitude because truth to tell each tear that flows when it could have been spared is an accusation and he commits a crime who with brutal inadvertancy crushes a poor earthworm  We clearly declare and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and the jailwarder that the rule regarding a prisoner in transit between prison house and court house is freedom from hand cuffs and the exception under conditions of judicial supervision we 880 have indicated earlier will be restraints with irons to be justified before or after
We mandate the judicial officer before when the prisoner is produced to interrogate the prisoner as a rule whether he has been subjected to handcuffs or other irons treatment and if he has been the official concerned shall be asked to explain the action forthwith in the light of this Judgment
PATHAK J I have read the judgment of my learned brother Krishna Iyer with considerable interest but I should like to set forth my own views shortly
It is an axiom of the criminal law that a person alleged to have committed an offence is liable to arrest
In making an arrest declares section 46 of the Code of Criminal Procedure the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action
 If there is forcible resistance to the endeavour to arrest or an attempt to evade the arrest the law allows the police officer or other person to use all means necessary to effect the arrest
Simultaneously section 49 provides that the person arrested must not be subjected to more restraint than is necessary to prevent his escape
 The two sections define the parameters of the power envisaged by the Code in the matter of arrest
And section 46 in particular foreshadows the central principle controlling the power to impose restraint on the person of a prisoner while in continued custody
Restraint may be imposed where it is reasonably apprehended that the prisoner will attempt to escape and it should not be more than is necessary to prevent him from escaping
Viewed in the light of the law laid down by this Court in Sunil Batra vs Delhi Administration and others that a person in custody is not wholly denuded of his fundamental rights the limitations following from that principle acquire a profound significance
The power to restrain and the degree of restraint to be employed are not for arbitrary exercise
An arbitrary exercise of that power infringes the fundamental rights of the person in custody
And a malicious use of that power can bring section 220 of the Indian Penal Code into play
Too often is it forgotten that if a police officer is vested with the power to restrain a person by hand cuffing him or otherwise there is a simultaneous restraint by the law on the police officer as to the exercise of that power
Whether a person should be physically restrained and if so what should be the degree of restraint is a matter which affects the person in custody so long as he remains in custody
Consistent with 881 the fundamental rights of such person the restraint can be imposed if at all to a degree no greater than is necessary for preventing his escape
To prevent his escape is the object of imposing the restraint and that object defines at once the bounds of that power
The principle is of significant relevance in the present case
The petitioner complaints that he is unnecessarily handcuffed when escorted from the jail house to the court building where he is being tried for criminal offences and back from the court building to the jail house
He contends that there is no reason why he should be handcuffed
On behalf of the respondent it is pointed out by the Superintendent Central Jail Tihar where the petitioner is detained that the police authorities take charge of prisoners from the main gate of the jail for the purpose of escorting them to the court building and back and that the jail authorities have no control during such custody over the manner in which the prisoners are treated
S92 e of the Prisoners Attendance in Courts Act 1955 empowers the State Government to make rules providing for the escort of persons confined in a prison to and from courts in which their attendance is required and for their custody during the period of such attendance
The Punjab Police Rules 1934 contain Rule 2622 which classifies those cases in which handcuffs may be applied
The classification has been attempted some what broadly but it seems to me that some of the clauses of Rule 2622 particularly clauses a to c appear to presume that in every instance covered by any of those clauses the accused will attempt to escape
It is difficult to sustain the classification attempted by those clauses
The rule I think should be that the authority responsible for the prisoners custody should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances general conduct behaviour and character will attempt to escape or disturb the peace by becoming violent
That is the basic criterion and all provisions relating to the imposition of restraint must be guided by it
In the ultimate analysis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree
Rule 2622 read with rule 2621 A of the Punjab Police Rules 1934 draw a distinction between better class undertrial prisoners and ordinary undertrial prisoner 35 a basis for determining who should be handcuffed and who should not be
As I have observed the appropriate principle for a classification should be defined by the need to prevent the prisoner escaping from custody or becoming violent
The social status of a person his education and habit of life associated with superior mode of living seem to me to be intended to protect his 882 dignity of person
But that dignity is a dignity which belongs to all rich and poor of high social status and low literate and illiterate
It is the basic assumption that all individuals are entitled to enjoy that dignity that determines the rule that ordinarily no restraint should be imposed except in those cases where there is a reasonable fear of the prisoner attempting to escape or attempting violence
It is abhorrent to envisage a prisoner being handcuffed merely because it is assumed that he does not belong to a better class that he does not possess the basic dignity pertaining to every individual
Then there is need to guard against a misuse of the power from other motives
It is grossly objectionable that the power given by the law to impose a restraint either by applying handcuffs or otherwise should be seen as an opportunity for exposing the accused to public ridicule and humiliation
Nor is the power intended to be used vindictively or by way of punishment
Standing order 44 and the Instructions on Handcuffs of November 1977 reproduced by my learned brother evidence the growing concern at a higher level of the administration over the indiscriminate manner in which handcuffs are being used
To my mind even those provisions operate somewhat in excess of the object to be subserved by the imposition of handcuffs having regard to the central principle that only he should be handcuffed who can be reasonably apprehended to attempt an escape or become violent
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 the present case it seems sufficient in my judgment that the question whether the petitioner should be handcuffed should be left 883 to be dealt with in the light of the observations made herein by the Magistrate concerned before whom the petitioner is brought for trial in the cases instituted against him
The petition is disposed of accordingly
section R Petition allowed


Summary:
Allowing the petition the Court  HELD Per Iyer J on behalf of Chinnappa Reddy J and himself
The guarantee of human dignity forms part of an Constitutional culture and the positive provisions of Articles 14 19 and 21 spring into action to disshackle any man since to manacle man is more than to mortify him it is to dehumanize him and therefore to violate his very personhood too often using the mask of dangerousness  and security
Even a prisoner is a person not an animal and an under trial prisoner is a fortiori so
Our nations founding document admits of no exception
Therefore all measures authorised by the law must be taken by the Court to keep the stream of prison justice unsullied
862 D F 863 E F Sunil Batra vs Delhi Administration and ors
  followed 
The Supreme Court is the functional sentinel on the qui vive where habeas justice is in jeopardy
If iron enters the soul of law and of the enforcing agents of law rather if it is credibly alleged so the Supreme Court must fling aside forms of procedure and defend the complaining individual s personal liberty under Articles 14 19 and 21 after due investigation
Access to human justice is the essence of Article 32
864 A B 3
Where personal freedom is at stake or torture is in store to read down the law is to write off the law and to rise to the remedial demand of the manacled man is to break human bondage
if within the reach of judicial process
864 F G 4
There cannot be a quasi caste system among prisoners in the egalitarian context of Article 14
In plain language to say that the better class under trial be not handcuffed without recording the reasons in the daily diary for considering the necessity of the use on such a prisoner while escort to and from court means that ordinary Indian under trials shall be rentively handcuffed during transit between jail and court auld the better class prisoner 856 shall be so confined only if reasonably apprehended to be violent or rescued and is against the express provisions of Article 21
863 D E 865 G H Maneka Gandhi vs Union of India 1978 2 SCR 621  647 applied
Vishwanath vs State Crl
Main No 430 of 1978 decided on 6 4 79 Delhi High Court overruled
Though circumscribed by the constraints of lawful detention the indwelling essence and inalienable attributes of man qua man are entitled to the great rights guaranteed by the Constitution
That is why in India as in the similar jurisdiction in America the broader horizons of habeas corpus spread out beyond the orbit of release from illegal custody into every trauma and torture on persons in legal custody if the cruelty is contrary to law degrades human dignity or defiles his personhood to a degree that violates Articles 21 14 and 19 enlivened by the Preamble
868 A B 867 G H 6
The collection of handcuff law namely Prisoners Attendance in Courts Act 1955 Punjab Police Rules 1934 Vol
III Rules 26 22i a to f 2621A 2712 Standing order 44 Instruction on handcuffs of November 1977 and orders of April 1979 must meet the demands of Articles 14 19 and 21
Irons forced on under trials in transit must conform to the humane imperatives of the triple Articles
Official cruelty sans constitutionality degenerates into criminality
Rules standing orders Instructions and Circulars must bow before Part III of the Constitution
872 B D The Preamble sets the human tone and temper of the Founding Document and highlights justice Equality and the dignity of the individual
Article 14 interdicts arbitrary treatment discriminatory dealings and capricious cruelty
Article 19 prescribes restrictions on free movement unless in the interests of the general public
Article 21 is the sanctuary of human values prescribes fair procedure and forbids barbarities punitive or procedural
such is the apercu
872 C E Maneka Gandhi vs Union of India 1978 2 SCR 621  647 Sunil Batra vs Delhi Administration 1978 4 SCC 494  545 reiterated
Handcuffing is prima facie inhuman and therefore unreasonable is over harsh And at the first blush arbitrary
Absent fair procedure and objective monitoring to inflict irons is to resort to zoological strategies repugnant to Article 21
Surely the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonized
To prevent the escape of an under trial is in public interest reasonable just and cannot by itself be castigated
But to bind a man hand and foot fetter his limbs with hoops of steel shuffle him along in the streets and stand him for hours in the courts is to torture him defile his dignity vulgarise society and foul the soul of our Constitutional culture
872 F G 8
Insurance against escape does not compulsorily required 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 In contraptions
Indeed binding together either the hands or feet or both has not merely a preventive impact but also a punitive hurtfulness
Manacles are mayhem on the human person and inflict humiliation on the bearer
857 The three components of irons forced on the human person are to handcuff ie to hoop harshly to punish humiliatingly and to vulgarise the viewers also
Iron straps are insult and pain writ large animalising victim and keepers
Since there are other ways of ensuring safety as a rule handcuffs or other fetters shall not be forced on the person of an under trial prisoner ordinarily
As necessarily implicit in Articles 14 and 19 when there is no compulsive need to fetter a person s limbs it is sadistic capricious despotic and demoralizing to humble a man by manacling him
Such arbitrary conduct surely slaps Article 14 on the face
The animal freedom of movement which even a detained is entitled to under Article 19 cannot be cut down cruelly by application of handcuffs or other hoops
lt will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available the prisoner being so dangerous and desperate and the circumstances so hostile to safe keeping
872 G H 873 A E 9
Once the Supreme Court make it a constitutional mandate and law that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort the distinction between classes of prisoners become constitutionally obsolete
Apart from the fact that economic an i social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise a rich criminal or under trial is in no way different from a poor or pariah convict or under trial in the matter of security risk
An affluent in custody may be as dangerous or desperate as an indigent if not more
He may be more prone to be rescued than an ordinary person
Therefore it is arbitrary and irrational to classify prisoners for purposes of handcuffs into B  class and ordinary class
No one shall be fettered in any form based on superior class differential as the law heats them equally
It is brutalising to handcuff a person in public and so is unreasonable to do so
Of course the police escort will find it comfortable to fetter their charges and be at ease but that is not a relevant consideration
873 E H 10
The only circumstance which validates incapacitation by irons an extreme measure is that otherwise there is no other reasonable way of preventing his escape in the given circumstances
Securing the prisoner being a necessity of judicial trial the State must take steps in this behalf
But even here the policeman s easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough
The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances
Ignominy inhumanity and affliction implicit in chains and shackles are permissible as not unreasonable only if every other less cruel means is fraught with risks or beyond availability
So it is that to be consistent with articles 14 anl 19 handcuffs must be the last refuge not the routine regimen
If a few more guards will suffice then no handcuffs
If a close watch by armed policemen will do then no handcuffs
If alternative measures may be provided then no iron bondage
This is the legal norm
874 A C Functional compulsions of security must reach that dismal degree that no alternative will work except manacles
Our Fundamental Rights are heavily loaded in favour or personal liberty even in prison and so the traditional approaches without reverence for the worth of the human person are obsolete although they die hard
Discipline can be exaggerated by prison 858 keepers dangerousness can be physically worked up by escorts and sadistic disposition where higher awareness of constitutional rights is absent may overpower the finer values of dignity and humanity
874 D E Therefore there must first be well grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick
The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic Vague surmises or general averments that the under trial is a crook or desperado rowdy or maniac cannot suffice
In short save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit the onus of proof of which is on him who puts the person under irons the police escort will be committing personal assault or mayhem if he handcuffs or fetters his charge
It is disgusting to see the mechanical way in which callous policemen cavalier fashion handcuff prisoner in their charge indifferently keeping them company assured by the thought that the detainee is under iron  restraint
874 F H 11
Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders unless there is material sufficiently stringent to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control
It is hard to imagine such situations
It is unconscionable indeed outrageous to make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing
This elitist concept has no basic except that on the assumption the ordinary Indian is a sub citizen and freedoms under Part III of the Constitution are the privilege of the upper sector of society
875 A C Merely because a person is charged with a grave offence he cannot be handcuffed
He may be very quiet well behaved docile or even timid
Merely because the offence is serious the inference of escape proneness or desperate character does not follow
Many other conditions mentioned in the Police Manual are totally incongruous and must fall as unlawful
Tangible testimony documentary or other or desperate behaviour geared to making good his escape along will be a valid ground for handcuffing and fettering and even this may be avoided by increasing the strength of the escorts or taking the prisoners in well protested vans
And increase in the number of escorts arming them if necessary special training for escorts police transport of prisoners in protected vehicles are easily available alternatives
875 C E 12
Even in cases where in extreme circumstances handcuffs have to be put on the prisoner the escorting authority must record contemporaneously the reasons for doing so
otherwise under article 21 the procedure will be unfair and bad in law
Nor will mere recording of the reasons do as that can be a mechanical process mindlessly made
The escorting officer whenever he handcuffs a prisoner produced in court must show the reasons so recorded to the Presiding Judge and get his approval
Otherwise there is no control over possible arbitrariness in applying handcuffs and fetters
The minions of the police establishment must make good their security recipes by getting judicial approval
And once the court directs that handcuffs shall 859 be off no escorting authority can overrule judicial direction
This is implicit in article 21 which insists upon fairness reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty
875 G H 876 A Maneka Gandhi vs Union of India 1978 2 SCR 621 and Sunil Batra vs Delhi Administration   applied 13
Punjab Police Manual in so far as it puts the ordinary Indian beneath the better class breed paragraphs 2621A and 2622 of Chapter XXVI is untenable and arbitrary and Indian humans shall not be dischotomised and the common run discriminated against regarding handcuffs
The provisions in para 2622 that every under trial who is accused of a non bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of articles 14 19 and 21
So also para 2622 b and c
The nature of the accusation is not the criterion
The clear and present danger of escape breaking out of the police control is the determinant
And for this there must be clear material not qlib assumption record of reasons and judicial oversight and summary hearing and direction by the Court where the victim is produced
Para 26 221d e and f also hover perilously near unconstitutionality unless read down Handcuffs are not summary punishment vicariously imposed at police level at once obnoxious and irreversible
Armed escorts worth the salt can overpower any unarmed under trial and extraguards can make up exceptional needs
In very special situations the application of irons cannot be ruled out
The prisoner cannot be tortured because others will demonstrate or attempt his rescue
The plain law of under trial custody is thus contrary to unedifying escort practice
876 C G 14
The impossibility of easy recapture supplied the temptation to jump custody not the nature of the offence or sentence
Likewise the habitual or violent escape propensities  proved by past conduct or present attempts are a surer guide to the prospects of ruling away on the sly or by use of force than the offence with which the person is charged or the sentence
Many a murderer assuming him to be one is otherwise a normal well behaved even docile person and it rarely registers in his mind to run away or force his escape
It is an indifferent escort or incompetent guard not the Section with which the accused is charged that must give the clue to the few escapes that occur
To abscond is a difficult adventure
Human rights seriousness loses it valence where administrator s convenience prevails over cultural values
There is no genetic criminal tribe as such among humans
A disarmed arrestee has no hope of escape from the law if recapture is a certainty
He heaves a sigh of relief if taken into custody as against the desperate evasions of the chasing and the haunting fear that he may be caught any time It is superstitious to practise 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 hand cuffing prisoner who may be a patient even in the hospital bed and tie him up with ropes to the legs of the cot
877 A D 878 A C 15
The rule regarding a prisoner in transit between prison house and court house is freedom from handcuffs and the exception under conditions of judicial supervision will be restraints with irons to be justified before or after
The judicial officers before whom the prisoner is Produced shall 860 interrogate the prisoner as a rule whether he has been subjected to handcuffs or other irons  treatment and if he has been the official concerned shall he asked to explain the action forthwith
879 G H 880 A B Per Pathak J Concurring 1
It is an axiom of criminal law that a person alleged to have committed an offence is liable to arrest
Sections 46 and 49 of the Code of Criminal Procedure define the parameters of the power envisaged in the Code in the matter of arrest
And section 46 in particular foreshadows the central principle controlling the power to impose restraint on the person of a prisoner while in continued custody
Restraint may be imposed where it is reasonably apprehended that the prisoner will attempt to escape and it should not be more than is necessary to prevent him from escaping
Viewed in the light of the law laid down by this Court in Sunil Batra vs Delhi Administration and ors
   that a person in custody is not wholly denuded of his fundamental rights the limitations flowing from that principle acquire a profound significance
880 C F The power to restrain and the degree of restraint to be employed are not for arbitrary exercise
An arbitrary exercise of that power infringes the fundamental rights of the person in custody
And a malicious use of that power can bring section 220 of the Indian Penal Code into play
Too often is it forgotten that if a police officer is vested with the power to restrain a person by handcuffing hum or otherwise there is a simultaneous restraint by the law on the police officer as to the exercise of that power
880 F G 2
Whether a person should be physically restrained and if so what should be the degree of restraint is a matter which affects the person in custody so long as he remains in custody
Consistent with the fundamental rights of such person the restraint can be imposed if at all to a degree no greater than is necessary for preventing his escape
To prevent his escape is the object of imposing the restraint and that object at once defines that power
880 H 881 A 3
Section 92e of the Prisoners Attendance in Court Act 1955 empowers the State Government to make rules providing for the escort of persons confined in a prison to and from Courts in which their attendance is required and for their custody during the period of such attendance
The Punjab Police Rules 1934 contain Rule 2622 which classifies those cases in which hand cuffs may be applied
The classification has been attempted somewhat broadly
But the classification attempted by some of the clauses of Rule 2622 particularly a to c which presume that in every instance covered by any of these clauses the accused will attempt to escape cannot be sustained
881 C E The rule should be that the authority responsible for the prisoners custody should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances general conduct behaviour and character will attempt to escape or disturb the peace by becoming violent
That is the basic criterion and all provisions relating to the imposition of restraint must be guided by it
In the ultimate analysis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree
881 E G 861 4
Rule 2622 read with Rule 2621 A of the Punjab Police Rules 1934 draw a distinction between better class under trial prisoners and ordinary under trial prisoners as a basis for determining who should be handcuffed and who should not be
The social status of a person his education and habit of life associated with a superior mode of living is intended to protect his dignity of person
But that dignity is a dignity which belongs to all rich and poor of high social status and low literate and illiterate
It is the basic assumption that all individuals are entitled to enjoy that dignity that determines the rule that ordinarily no restraint should be imposed except in those cases where there is a reasonable fear of the prisoner attempting to escape or attempting violence
It is abhorrent to envisage a prisoner being handcuffed merely because it is assumed that he does not belong to a better class that he does not possess the basic dignity pertaining to every individual
Then there is need to guard against a misuse of the power from other motives
It is grossly objectionable that the power given by the law to impose a restraint either by applying handcuffs or otherwise should be seen as an opportunity for exposing the accused to public ridicule and humiliation
Nor is the power intended to be used vindictively or by way of punishment
Even Standing order 44 and the instructions on handcuffs of November 1977 operate some what in excess of the object to be observed by the imposition of handcuffs having regard to the central principle that only he should be handcuffed who can be reasonably apprehended to attempt from escape or become violent
881 G H 882 A D 5
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
The primary decision should not 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
The prior decision of an external authority can not be reasonably imposed on the exercise of that power
But there is room for imposing a supervisory regime over the exercise of that power
One sector of superviory 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 882 E G 6
In the present case the question whether the petitioner should be handcuffed should be left to be dealt with by the Magistrate concerned before whom he is brought for trial in the cases instituted against him
882 H 883 A