Mandatory Handcuffing:  Illegal and Inhumane

At present, India has one of the most progressive and humane handcuffing regimes in the world. According to the Supreme Court, the use of restraints must be strictly limited, procedurally safeguarded and closely supervised by the judiciary. The use of handcuffs is the exception, not the rule. Unfortunately, there has recently been tremendous pressure by the police to make mandatory handcuffing the law. On 10 July 2002, the Bureau of Police Research and Development (BPR&D), in collaboration with the Institute of Social Sciences, organised a seminar titled “Use of Handcuffing: A Rational Approach.” The seminar, attended mostly by police representatives from across India, provided an opportunity for the participants to discuss the guidelines for handcuffing. An overwhelming majority of them advocated legal reform to make handcuffing mandatory.    

It is not disputed that, as the police argue, restraints are sometimes necessary for legitimate security reasons. Police work can be dangerous, and a small minority of arrestees and detainees are desperate and violent. Restraints, however, can also be dangerous. In India, they are frequently used, both publicly and privately, to humiliate, debase and intimidate arrestees and detainees. 

In a recent incident in Punjab, Justice A.S. Bains, a former Haryana High Court judge, was arrested by the police and repeatedly placed in restraints even though there was no danger that he would attempt escape. Justice Bains brought a court case and was awarded Rs. 50,000 as compensation. The High Court held that his handcuffing and illegal detention was “definitely a violation of fundamental rights.”

The Supreme Court of India has repeatedly condemned the unnecessary use of handcuffs by the police as a violation of the right to personal liberty guaranteed by Article 21 of the Constitution of India. The landmark Supreme Court case on handcuffing is Prem Shankar Shukla v. Delhi Administration (1980). In this case, the validity of certain clauses of the Punjab Police Rules, which made handcuffing mandatory during arrest, was challenged. In his opinion, Justice Krishna Iyer eloquently stated:  “The guaranty of human dignity which forms a part of our constitutional culture . . . spring[s] into action when we realize that to manacle man is more than to mortify him, it is to dehumanise him and, therefore, to violate his very personhood too often using the mask of dangerousness and security.” 

In Prem Shankar Shukla and other leading cases, the Supreme Court has laid down strict procedural guidelines specifying both when and how the use of handcuffs is appropriate. According to the Court, handcuffing is legal only if the arrestee is (a) involved in serious non-bailable offences; and (b) previously convicted of a crime, of desperate character, likely to commit suicide, or likely to attempt to escape. The use of handcuffs and the reasons for their use must be recorded. It is illegal to walk fettered political prisoners through the streets. Furthermore, the police must gain judicial permission before they use restraints during an arrest or on a detainee. The human rights-conscious court summed up its opinion of handcuffs in Sunil Batra (II) v. Delhi Administration (1980): “To fetter prisoners in irons is an inhumanity unjustified, save where safe custody is otherwise impossible. The routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice.” Despite these clear, specific and unambiguous judgments from the Supreme Court, the abuse of handcuffs continues.  

Unfortunately, the Supreme Court’s directives are rarely being followed. Many police officers and other authorities are not even aware of them. Nirmal Kumar Azad, a Superintendent of Police in Siwan, Bihar, has collected data on the use of restraints through open-ended random interviews with judicial officers, police personnel and members of the bar. His findings show that a large majority of members of the bar (83 percent) and police personnel (77.7 percent) are completely unaware of the Supreme Court’s directives and rely entirely on police manual regulations to guide their use of restraints. Handcuffs are used frequently during transport from the jail to court, from the site of the alleged crime to the police station or to court, and from the jail/police station to the hospital. In a large majority of cases, the escorting authorities admit that judicial permission is not received and the reasons for using restraints are not documented in the police station diary. Mr. Azad also documented an increase in the frequency of escapees in the last decade. He views this increase as the result of negligence, laziness and a lack of alertness on the part of the escorting authorities and, in his expert opinion, these escapes are not at all connected to the use or non-use of restraints.   

International human rights law is also relevant to the issue of handcuffing. Many international human rights instruments contain provisions detailing two interrelated rights – the right to be free from torture and other cruel, inhuman or degrading treatment and the right to be properly detained. These rights are fundamental and are closely linked to the concept of human dignity, which is one of the central concepts in international human rights law. It is well established that neither arrest nor detention strips an individual of their right to be treated with dignity. Handcuffing for the purpose of humiliating or intimidating individuals violates numerous international conventions, elaborate model standards and resolutions and one of the precepts underlying international human rights law – that the dignity and worth of every individual must be respected.       

The right to be free from torture and cruel, inhuman or degrading treatment is documented in Article 5 of the Universal Declaration of Human Rights (UDHR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and forms the basis for the Convention Against Torture (CAT). The ICCPR also contains the related right of ““[a]ll persons deprived of their liberty [to] be treated with humanity and with respect for the inherent dignity of the human person.” These international instruments are all binding on India: The UDHR is considered part of customary international law and the Indian Government has ratified the ICCPR (on 10 April 1979) and signed the CAT (on 14 October 1997). 

The Human Rights Committee (HRC), in its General Comment on Article 7 of the ICCPR, has explained that “[t]he prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.” Those being arrested or detained by the authorities are often frightened, confused and vulnerable. The use of handcuffs, especially in public, can be humiliating and intimidating and may exacerbate their already fragile mental state. It is likely that this will frequently result in mental suffering, in violation of Article 7 of the ICCPR as defined by the HRC.

The Committee Against Torture, the treaty-body charged with monitoring the CAT, has specifically addressed the use of restraints that cause unnecessary pain and humiliation. In its concluding observations, the Committee expressed “concern about… [t]he use by prison authorities of instruments of physical restraint that may cause unnecessary pain and humiliation… [and] allegations of excessive use of force or degrading treatment by police forces or prison guards.” Although this observation was addressed to Australia, it is equally applicable to India and demonstrates that the way in which handcuffs are used in India often violates the CAT.

In addition, there are two model standards issued by the United Nations that are relevant to the issue of handcuffing. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations in 1955, addresses restraints in Sections 33-34. According to the Rules, instruments of restraints can never be used for punitive purposes, or for longer than is strictly necessary. Although the Rules do allow the use of restraints during transfer to prevent escape, it is clear that the Indian police force’s use of handcuffs to humiliate, intimidate and punish is unacceptable. The Code of Conduct for Law Enforcement Officials, adopted in 1979, states that “no law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment…” The Code states “the term ‘cruel, inhuman or degrading treatment or punishment’ has not been defined… but should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental.” The breadth of the Code’s definition of “cruel, inhuman or degrading treatment” suggests that the abuse of handcuffs by the Indian authorities violates the Code.

Finally, the European Court for Human Rights has addressed the issue of whether handcuffing violates Article 3, which mirrors Article 7 of the ICCPR and Article 5 of the UDHR. In Raninen v. Finland the Court held that although “handcuffing did not normally give rise to an issue under Article 3” if the use of handcuffs was “unjustified… imposed in the context of unlawful arrest… visible to the public… [and] aimed at debasing or humiliating” it may be considered degrading treatment and thus violate Article 3. Therefore, the use of handcuffs by the Indian authority to humiliate arrestees in public clearly constitutes “degrading treatment” as defined by the European Court.  

To summarise, both the Indian Supreme Court and international law have recognised that the abuse of handcuffs is illegal and inhumane. It is not acceptable to use restraints to humiliate, debase, intimidate or punish an arrestee or detainee. In order to prevent these illegal acts, it is absolutely essential that the Government implement the procedural safeguards and limits laid down by the Supreme Court. The police force must be educated to respect human rights and trained in proper arrest and detention procedures. The Indian Government should be proud of the progressive path blazed by the Supreme Court and should make every attempt to implement its directives. 

- Human Rights Features

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