PREM SHANKAR SHUKLA v. DELHI ADMINISTRATION

Citation: [1980] 3 S.C.R. 855

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK, O. CHINNAPPA REDDY

Case summary

Superintendent of Police, that the matter has received the constitutional concern it deserves. deed, 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...

Judgment text

PREM SHANK. AR SHUKLA v. DELHI ADMINISTRATION April 29, 1980 [V. R. KRISHNA IYER, R. S. PATHAK AND o. CHJNNAPPA REDDY, JJ. ] Hu111an justice vis-a-vis Detention Jurisprudence-Manacling a man accused at an ofiencc, constitutional validity of-Constitution of India Arti- • cles 14, 19 and 21--ls. suance of a Writ of Habeas Corpus for human1 Justice under Article 32 of the Constitution-Univer. rol Declaration of Human Rights, 1948 Articles 5 and IO read lvith nonns in Part III and the provisions in the Prisoners (Attendance in Courts) Act, 1955-Punjab Police Rules, 1934, r·o/. ll/ Chop. 25. Rule 26 : 22, 23. Allo,ving the petition, the Court HELD : Per /~er J. (On behalf of Chinnappa Reddy J. and himself). 1.

The guarantee of human dignity forms part of an Constitutional cu17 ture 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 undertrial 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 v. Delhi Administration and Ors. , [1978] 4 S. C. C. 494; fol~ lowed. 2. Th~ Supreme Court is the functional sentinel on the qui vive wherei "habeas" justice is in jeopardy. If iron enters the soul of law and of the enforcing agents of la\v-rather, if it is credibly alleged so-the Supreme .

f Court must fling aside forms of procedure and defend the complaining indivi; dual's personal liberty under Articles 14, 19 and 21 after due investigation.. Access to human justice is the essence of Article 32. [864 A-BJ 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 mariacled man is to break human bondage, if within the reach of judicial process. [864 F-GJ 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 nnder, 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 undertrials shall be rentively 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 and is against the express provisions of Article 21. [863 D-E, 865 G-H] Maneka Gandhi v. Union of India, [1978] 2 SCR 621 @ 647; applied. 1_ Vishwanath v. State, Crl. Misc. Main No. 430 of 1978 decid¢ on ,- 6-4-79 (Delhi High Court); overruled_ S. Though circurn. scribed by the constraints of lawful detention, the indwelling essence and inalienable attributes of man qua n1an are entitled to the great rights guaranteed by the Constitution.

That is why in India, as in the sin1ilar 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 01• defiles his persohhood to a degree that violaJes . ·~ Article' 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; Pun1ab Police Rules, 1934, (VoL Ill) Rules 26 : 22(i) (a) to (f); 26. 21A, 27. 12, 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 undertria1s in transit must conform to the humane imperatives of the triple articles. Official cruelty, sans consti· tutionality degenerates into criminality. Rules, St\1nding orders, Instruct'ions and Circulars must bow before Part III of the Constitution.

[872 B-D] .. The Preamble sets the human tone and temper of the Founding Docu- '1ent 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 2) is the sanctuary of human values, prescribes fair procedure and forbids barbarities, punitive or procedural. such is the apercu. [872 C-E] Maaeka Gandhi v. Union of India, [1978] 2 SCR 621 @ 641; Sunil Batra v. Delhi Administration, [1978] 4 S. C. C. 494 @ 545; reiterated. 7. Handcuffing is prbna f r violent 'escape propensities' proved by past conduct or present att~ are a surer guide to the prospects of running away on the sly or by use of force than the oITence with which the person is charged or the sentence.

~fany a murderer, assilming him to be one, is otherwise a normal, \Vellbehaved, even docile, person and it rarely registers in his mind to run aV\'ay or force his escape. It is an indifferent escort or incompetellt guard, nGt p 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 whi:re administrator's convenience prevails " over cultural values. There is no genetic crimlnol tribe as such among humans. A disarmed arrestee has no hope of escape from the law if reoa. pture 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 a 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-CJ 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 interrogate the prisoner, as a rule, whether he has been subjected to hand~ cuffs or other 'irons' ~re3. tment and, if he has been, the official concerned , shall be asked ·to explain the action forthwith. [879 G-H, 880 A-BJ ,. :... 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 s. 46, in particular foreshadows the central principle controlling the power to impose restraint on the person of a prisone:r 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. 1Viewed in the light of the la\V laid down by this Court in Sunil Batra v. Delhi Administration and Ors. , [1978] 4 SCC 494; 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-FJ 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 J) that powe• can bring s.

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 person by handcuffing him 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 reSltraint and that object at once defines that power. [880 H, 881 Al 3. Section 9(2)(e) of the Prisoners (Attendance in Court) Act, 1955 empo\vers the State Government to make rules providing for the escort of , ""'\... _ persons confined in a prison to and from c·ourts in which their attendance \.

is required and for their cus'! ody during the period of such attendance. The Punjab Police Rules, 1934 contain Rule 26. 22 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 26. 22, 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 \vbether 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 ana~risis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree. [881 E-GJ P. S. SHUKLA V. DELHI ADMN. 861 4. Rule 26. 22 read with Rule 26. 21 A of the Punjab Police Rules 1934 draw a distinction between "better class" undertrial prisoners and "ordinary" undertrial 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 attempt~ ing to escape or attempting violence.

It is abhorrent to envisage a prisoner being handicuffed 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-DJ 5.

Whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the iecision of the authority responsible for his custody. It is a judgment to be exercised with reference to each individual case. It is fof! that authority to exercise its discretion. The primary deci· sion 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 fill. I 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 J!

' 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 i:mrpose of enforcing such control 882 E-GJ • 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 Al ORIGINAL JURISDICTION : Writ Petition No. 1079 of 1979. (Under Article 32 of the Cunstitution. ) II Dr. Y. S. Chitale, (Amicus Curiae) and Mukul Mudgal, for the Petitioner. R. N. Sachthey, H. S. Marwah and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER J. -"When they arrested my neighbour I did not protest. Whe_n they arrested the men and women in the opposite house I did noi protest.

And when they finally came for me, there was nobody left to protest. " (1) This grim scenario burns into our judicial consciousness the moral' emerging from the case being that if to-day freedom of one forlom person falls to the police somewhere, tomorrow the freedom of many may fall elsewhere with none to whimper unless the court process invigilates in time and polices the police before it is too late. Thi£ 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 LBatra V. Delhi handcuffs are forced on me and othen. Admit writ of Habeas Corpus. Those who are injured to handcuffs and bar fetters on others mae ignore this grievance, but the guarantee ofhuman[dignity, which forms part of our constitutional culture, and the positive provisions of Arts.

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 £eCUrity. 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. hi. deed, 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 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 make£ mention ofa 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, (1) Pastor :tviiemoller. P. s. SHUKLA v. DELHI ADMN. (Krishna Iyer,!. ) 86 3 the Hon'ble Court was pleased to dismiss the petitionfikd,bythe petitioner Shri P. S. Shukla asking for directions for r. of 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 R. N. Aggarwal in Vishwa Nath Versus State, Cr!. . Misc. Main No. 430 of 1978 decided on 6-4-1979 wherein it has been observed that a better class undertrial be not handcuffed without recording the reasons in the daily diary for considering the necessity ofthe 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 follow ~b·pira 7) and so, by im21ication others can be. These orders are of April 1979 and cancel those of 1972.

The ,,r-instru~tio11 on h1nicu1f; of NJvem'Jer 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 ofless than 3 years which is contrary to the instructions of P. P. R. unless and until the officer handcuffing the undertrial has reasons to believe that the handcuff was used because the undertrial 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 D. D. before use of hand· . cuff when and wherever available. 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 Arts. 14, 19 and 21.

In the Sobraj case (1) the imposition of bar fetters on prisoner was subjected to constitutional scrutiny by this Court. Likewise, irons forced on undertrials in transit must conform to the humane imperatives of the triple articles. Official crulety, 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 articles. The Preamble sets the humane tone and temper ofthe Founding Doc~ment and highlights Justice, Equality and the dignity of the individual. Art. 14 interdicts arbitrary treatment discriminatory dealings and capricious cruelty. Art. 19 prescribes restrictions on free movement unless in the interests of the general public. Art. 21 after the landmark case in Maneka Gandhi(2) 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 Art. 21. Thus, we must cric tically 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, shuflle 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 handcuffing. There are other measures whereby an escort can keep safe '· custody of a detenu without the indignity and cruelty implicit in hand- ' cuffs or other iron contraptions. Indeed, binding together either the. (I) Suni/ Batra v. Delhi Administration, [1978] 4 S. C. C. 494 at 545. (2) Maneka Gandhi v. Union of India, (1978] 1 S. C. C. 248. hands orthe 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 arll 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 ofensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an undertrial prisoner ordinari! p. The latest police instructions produced before us hearteningly reflect this view. We lay down as necessarily implicit in Arts. 14 and 19 that nhen 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 Art. 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Art. 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 offorbidding 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 r 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 cu;tody may be as dangerous or desperate as an indigent, ifnot 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 considera· tion. 17-463 SCI/80 The only circumstance which validates incapacitation by ironsan extreme measure-is that otherwise there is no other reasonabl• way of preventing his escape, in the given circumstances. Secuting the prisoner being a necessity of judicial trial, the State must tale steps in this behalf. But even here, the policeman's easy assnmption 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 aftli .

Manual, in so far as it puts the ordinary Indian beneath the better class breed (paragraphs 26 ·21A 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 26 ·22 that every under-trial who is accused of a non-bailable offence punishable with more than J years prison term shall be routinely handcuffed is violative of Arts. 14, 19 and 21. So also para 26 ·22 (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 determinent. Anti for this there must be clear material, not glib assumption, recor ise, should be seen as an oppor-tunity 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 t1tegrowing 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 priuciple that only he should be handcuffed who can be reasonablyapprehended to attempt an escape or become violent. Now whether handcuffs or other restraint should be imposed' on a prisoner is primarily a matteifor 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 exerciseits discretion, and I am not willing to accept that the primary decisiono should be that of any other.

The matter is one where the circumstances may change from one moment to another, and inevitably insomecases it may fall to the decision ofthe 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 impose<t 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. 0. 1e· 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 ofthe accused. It shoulti 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 thequestion whether the petitioner should be handcuffed should· be left. P.

S. SHUKLA V. DELHI ADMN. (Pathak, J. ) 883 to be dealt with in the light of the observations made herein by the A Magistrate concerned, before whom the petitioner is brought for ;.. trial in the cases instituted against him. The petition is disposed ofaccordingly. S. R. Petition a/loH-ed. • '