By Sruthisagar Yamunan
In April, the Delhi Police asked a court in the capital for permission to produce former Jawaharlal Nehru University student leader Umar Khalid and activist Khalid Saifi in handcuffs at their hearings in the cases related to the 2020 Delhi riots cases in which they are both accused. The police claimed that the men are high-risk prisoners.
The cases in which they have been arrested are connected to clashes that broke out in North East Delhi in February last year between people supporting of the Citizenship Amendment Act and those opposing it. The violence left at least 53 people dead and hundreds injured. The Delhi Police filed as many as 755 FIRs related to the riots. They arrested more than 1,800 people, including lawyers and activists such as Khalid and Saifi.
The Delhi Police plea was very specific about how Khalid and Saifi should be handcuffed. Not only did the police want the two in fetters, the plea asked permission to use “handcuff in both hands from backside”.
When the court on April 22 took up the plea, it expressed its dissatisfaction with the police reqiest, stating that it seemed to be without any merit. Nevertheless, the court asked f the police delineating the reasons for such a request.
On June 6, the court threw the applications out. In a brief order, Vinod Yadav, the additional sessions judge, reiterated his observation from April that the plea was devoid of merits. The order pointed out that the two had previous convictions nor were they gangsters. “The applications appear to have been filed in a mechanical manner, without application of mind by the high echelon of Delhi Police and prison authority,” the judge said.
It also pointed out that following fresh Covid-19 protocols issued in April, prisoners were not being produced physically and therefore there was no need for such applications.
In its report to the court following the April order, the Delhi Police bizarrely claimed that their plea was due to the fact that a gang had attempted to free a gangster from a hospital recently and so it was decided to seek permission to handcuff high risk, “sensitive undertrial prisoners” to ensure that they ddid not escape.
The order has brought back to focus the law around handcuffing and restraining prisoners in the guise of ensuring their security. Not only has the Supreme Court criticised this habit of the police, it has in numerous orders in the past said that prisoners cannot routinely be handcuffed because the practice strikes at the very heart of their dignity, an important element of right to life under Article 21 of the Constitution.
However, activists point out that despite such pronouncements, the police tend to take the guidelines lightly and often violate them. In addition, the police also use handcuffing as a strategy to influence public perception that the accused is dangerous, even when this is not true.
Handcuffing and Supreme Court
One of the earliest judgements that exhaustively dealt with the practice of routine handcuffing was delivered by the Supreme Court in 1980, when a prisoner moved against provisions in the prison manuals that made it compulsory to handcuff undertrials accused of non-bailable offences with a prison term of three years and more. The petition argued that the provision was unconstitutional, given its impact in human rights and dignity.
In a scathing judgement, Justice V Krishna Iyer, in “Prem Kumar Shukla vs Delhi administration”, said that such “heavy deprivation of personal liberty” must be justifiable as a reasonable restriction in the circumstances and that handcuffs could only be a last refuge when every other measure fails.
Even in extreme circumstances where handcuffs are necessary, the court said they could only be used after the reasons for deploying them are recorded. In addition, the permission of the presiding judge has to be obtained.
The court added:
“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.”
However, despite such remarks, handcuffing of accused people continued unabated, forcing the court in 1995 to issue a series of guidelines to protect the prisoner’s dignity.
The Assam case
In 1994, journalist and human rights activist Kuldip Nayar wrote to the Supreme Court about the dismal condition of undertrials being being treated in a hospital in Assam. The police had handcuffed and chained them in the hospital, claiming that they were members of a terrorist organisation.
When the matter was taken up by the Supreme Court the next year, the Union government and the Assam government justified the cruel measures by listing terrorists who had escaped from hospitals in the state.
Not convinced by this reply, the court categorically ruled that no prisoner, whether convicted or undertrial, should be handcuffed by the police except after receiving permission from a magistrate.
The court also made it clear the magistrate could not issue such permission in a mechanical manner: there must be overwhelming evidence that there was no other way to keep the accused from escaping.
The court said:
“Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.”
Guidelines violated
Lawyers and human rights activists say that despite such rulings, handcuffs continued to be abused by police forces across the country. In fact, courts have even fined police officers for violating the guidelines issued by the Supreme Court.
V Suresh, lawyer and national general secretary of the People’s Union of Civil Liberties, who has argued several cases in which police had handcuffed prisoners illegally, said in the Delhi riots case, the idea seems to be to overcome the weakness of the case itself by playing with optics.
“The attempt was clearly to project Umar Khalid and Khalid Saifi as dangerous criminals even as the Delhi police is struggling to prosecute the case,” he said.
Suresh pointed out that a common person does not understand the nuances of evidence. But when an accused is handcuffed and paraded before cameras, an opinion is entrenched that they must be dangerous criminals.
The other reason for handcuffing prisoners is to pressurise the court itself. “Judges are not totally immune to this game of perception,” Suresh noted. “Sometimes, the police seek handcuffing just to indicate to the court that it is dealing with really dangerous criminals.”
This story was first appeared on scroll.in