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Constitution Law
Handcuffing of Arrested Persons in India: A Critical Constitutional and Human Rights Analysis
Vaidehi Sharma
·8 mins min read
Abstract
The handcuffing is stuck between the bridge of self-dignity and judicial oversight. But the question is, where and how do we draw the line between the two? Handcuffing primarily is a mechanism done to prevent undertrial or arrested individuals from escaping from the hold of police; however, this simple mechanism can be a source of self-humiliation and disrespect in society in general for those who get acquitted at later stages or who are of a non-violent nature and wrongly accused. This article aims to critically analyse existing judicial frameworks and recent changes brought by BNSS (Bhartiya Nagarik Suraksha Sanhita, 2023) in the context of handcuffing as well as the overlap of Articles like 14, 19, and 21 with judicial oversight caused by handcuffing laws. The article concludes by advocating for a harmonised interpretation of statutory powers along with constitutional safeguards.
Introduction
It is well known that handcuffing is essential to avoid any type of violence or escape by the accused or under-trials. However, handcuffing, even being a minor procedural act, often leaves deep, profound psychological and societal marks. Our criminal law follows “innocent until proven guilty," while this minor procedural act clashes with the social respect, dignity, and social or community integration of the individual.
The Indian Constitution prohibits punishment before conviction of the accused or any kind of humiliation by calling it a procedure. Despite this settled position, handcuffing remains a common practice, often employed routinely rather than exceptionally. The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023, which expressly authorises handcuffing in certain cases, has reignited concerns regarding the dilution of constitutional safeguards.
This article critically examines whether the statutory endorsement of handcuffing aligns with constitutional principles and judicial precedents, or whether it represents a regression in the protection of human dignity.
History and Pre-Judicial Era of Handcuffing
Handcuffing has been a colonial tool used for control and humiliation. Handcuffing and bar fetters were used to detain the accused both physically and mentally, overlooking human dignity and principles of humanity. Over the years, there has been no concrete law to regulate handcuffing. The Criminal Procedure Code, 1973, also has no existence of explicit provisions for overseeing and authorising the use of handcuffs
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Psychological and social impact of handcuffing
Indian society considers societal respect and dignity assets of an individual. While handcuffing, deeply strike that dignity. India is a democracy; relatives make it difficult for the person to get back to his normal life even after the acquittal or when allegations are termed false by the court of law. Making him directly liable for societal shame and disrespect. Handcuffing may be a small procedural act, but this act affects an individual's psyche, the procedural act of handcuffing.
Development of Reformative Guidelines on handcuffing
In Citizens for Democracy vs State of Assam And Ors1, the Supreme Court stated that handcuffing should not be used in daily routine. Before using handcuffs, the police must make a reasonable decision of the accused's past history of risk, escape probability, and behaviour. The supreme court mandated judicial oversight and reasonable belief by a magistrate before permitting restraints. The guidelines aimed to remove arbitrariness and promote human dignity and humane treatment of the accused and undertrials.
India’s judiciary’s approach to the procedural act of handcuffing has been deeply influenced by human rights advocates and humane practices swith the accused or undertrials. In Sunil Batra v. Delhi Administration2, the Honorable Supreme Court clearly held that bar fetters and handcuffs are inhuman and should be stopped. Handcuffing and bar fetters can only be justified by compelling reasons.
Jurisprudence reached a normative peak in Prem Shankar Shukla v. Delhi Administration, where Justice V.R. Krishna Iyer stated that “better class under-trials be not handcuffed without recording the reasons in the daily diary for considering the necessity of the use of handcuffs on such a prisoner while escorting to and from court”.
Handcuffing and constitutional evolution
Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law
The broad interpretation of Art 21 has included the right to live with dignity, privacy, and bodily integrity, along right to live. Handcuffing surrenders a human directly to humiliation and physical discomfort by restricting their bodily autonomy.
According to the Honourable Supreme Court, the procedure established by law must be fair, just and reasonable. However, the procedure of routine handcuffing aggressively fails this test. The accused of the gravest offence also has the right to dignity until proven.
Public handcuffing gravely affects social stigma and reputation in the most irreparable way. . Such inhumane treatment leads to punishment without even facing a trial.
Article 14: Equality and Non-Arbitrariness
Article 14 restricts any arbitrary action by the state. Intelligible differentia should be used for all types of classification, permitting handcuffing. In Siddharam Satlingappa Mhetre v. State of Maharashtra4, the Supreme Court apprehended that the seriousness of the offence can not solely justify handcuffing. An approach based on offence overlooks risk, possibility of arbitrariness and substantially leads to deprivation of liberty.
Routine handcuffing of certain categories of accused, without considering personal circumstances, violates the principle of equality before the law.
Article 19: Freedom of Movement
Handcuffing directly restricts the freedom of movement guaranteed under Article 19(1)(d). While reasonable restrictions are permissible in the interests of public order, such restrictions must be proportionate.
The availability of less restrictive alternatives—such as escorting by adequate police personnel—renders routine handcuffing disproportionate and unconstitutional.
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The Bharatiya Nagarik Suraksha Sanhita, 2023: The Legal Evolution
Section 43 (3) of BNSS states that police officers, keeping in view the nature and gravity of offense can use handcuffs while making an arrest of a person who is a habitual or repeat offender, has escaped from custody, has committed organised crime, crimes related terrorism, drugs or illegal possession of arms and ammunition; murder, rape, acid attack, counterfeiting currency, human trafficking, POSCO or an offence against the state.
Section 43 (3) BNSS statutorily recognises handcuffing as a permissible police measure. The BNSS provision also undermines multiple loopholes:
A. No support to Judicial Review
In Prem Shankar Shukla vs Delhi Administration on 29 April the supreme court while emphasising on article 21 directed that the officers concerned while escorting the accused from jail to court and back, shall resort to handcuffing only if warranted by the 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. While this provision seems to hold no place in BNSS.
B. Lack of clarity
Habitual offender and repeat offender " are not defined anywhere in BNSS, which grants both arbitrary power and discretion to the police while dealing with the accused, opening doors for the possibility of inhumane and cruel practices with undertrials, accused and prisoners.
The war of dignity vs security
Handcuffing is not just a restraint but also a reflection of state dominance. Handcuffing equally leads to societal and psychological trauma, prolonged loss of dignity, and presumption of guilt. Handcuffing adversely affects vulnerable and poor groups of the society who are easy targets for inhumane and harsh policy practices.
The government surely aims to ensure public safety and security alongside aiming to prevent escape by accused or offenders. However, there is an urgent need to ensure a fair balance between dignity and security. While the Supreme Court’s guidelines reflect a careful balance, directing that handcuffing is permissible, but only when absolutely mandatory and supported by legitimate reasons and judicial oversight. The BNSS, however, showcases potential risks while disturbing this balance.
Role of BNSS in Harmonising Constitutional Jurisprudence
In order to maintain a balance between security and dignity. Section 43(3) BNSS must be exercised while ensuring mandatory recording of reasons by the authority, allowing scope for judicial review, and applying tests of legitimacy and proportionality tests by authorities before taking any step. Courts must ensure that statutory powers do not override fundamental rights of the citizens.
Conclusion
The constitution of India reflects a deep commitment to dignity, liberty, and non-arbitrary practices for its citizens. The Supreme Court via its guidelines, has repeatedly rejected routine handcuffing, recognising it as an inhumane practice and its non-alignment with fundamental rights.
The BNSS, however, aims to recognize security gaps, but, on the other hand, it has also introduced broad discretionary powers for the police that risk affecting judicially established safeguards for the citizens. Without strict controls or judicial review, handcuffing legitimizes practices long condemned as unconstitutional.
The real test of our criminal justice system is not how it treats the criminal, but how it treats the person who is accused. A fair judicial system must ensure that judicial and procedural measures remain non-arbitrary, justified, fair and humane. Handcuffing directly contradicts the constitutional promise of respect and dignity when done arbitrarily or indiscriminately.
Author(s): Aarushi Gupta, 4th year B.A. LL.B., Maharaja Agrasen University
