Handcuffing, a judicial tap, and the long arm of the law

Source: The post is based on an article “Handcuffing, a judicial tap, and the long arm of the law” published in the “The Hindu” on 6^th July 2022.

Syllabus: GS 2 Important Provisions of the Constitution of India

Relevance: Fundamental Rights; Handcuffing

News: Recently, the Karnataka High Court, in Suprit Ishwar Divate vs The State of Karnataka, passed a verdict in which Rs. 2 lakh compensation was awarded to an accused, for handcuffing.

He was handcuffed without recording the reasons in the police case diary.

What are the principles of handcuffing?

There can be three different occasions when a person can be legally handcuffed,

(1) An accused on his arrest and before he is produced before the magistrate;

(2) An under-trial prisoner during transit from jail to the court and back; and

(3) A convict being transported from jail to the court and back.

If a person is under the judicial custody of the court, the court’s permission is required for handcuffing except under emergent circumstances.

Circumstances

An accused need not be handcuffed on arrest, in normal circumstances. Further, the officers are allowed to resort to handcuffing only under exceptional circumstances.

In Prem Shankar Shukla vs Delhi Administration (1980), the SC held that the norm should be that the security of an arrestee or a convict be increased to prevent him/her from escaping. However, the handcuffing can be allowed only when the escape of the arrestee or a convict cannot be prevented without the use of handcuffs.

In case of handcuffing, the arresting officer must record the reasons in the police diary.

Further, the court must inquire with the person arrested as to whether he had been handcuffed or not. It will be the duty of the court to do judicial/court scrutiny of the recorded reasons and then approve or reject the reason.

On compensation

There is a strict liability for violating the guaranteed basic and indefeasible rights of the citizens.

If there is an ‘established infringement” of the fundamental right (FR) guaranteed under Article 21 of the Constitution.

The constitutional courts are empowered to grant such relief ‘against the state or its servants in the purported exercise of their powers’.

Who should pay such compensation?

In the Supreme Court has ruled that in case of violation of the FR, the state (and not the concerned officer) has to pay the compensation.

This was on the ground that the police officers are not personally liable for such acts. They act in their official capacity.

Argument in favor of handcuffing

It has been found there is a lack of manpower, in police stations or a reserve police line to provide sufficient escort to jail authorities while transporting the under-trial prisoners to court.

In addition, it is difficult at times to predict the conduct of an arrestee on the spot. For example, as per the NCRB publication on ‘Crime in India- 2020’, there were around 810 cases of prisoner escape from police custody in 2020. Most of them were not due to negligent police officers.

Therefore, handcuffs are generally done to prevent escape and not to dehumanise criminals.

What are the possible solutions?

In case if malice is found behind the use of handcuffs, the department should initiate disciplinary action against the errant officer under service conduct rules, rather than to order the payment of compensation.

The Karnataka HC Judgment

The blame of non-compliance cannot be shifted only to the police officer because there is an absence of the required infrastructure. It is the state’s responsibility to equip all police stations with adequate and necessary police personnel to discharge their obligations.

The State governments should review the mobility of the police. It should review the requirement of additional manpower and technical gadgets, such as body cameras.

The enforcement agencies and lower courts are duty bound to implement, in letter and spirit, the Supreme Court’s directives on handcuffing.