ABSTRACT
In the year 1978, in the seminal judgment of Sunil Batra, the Hon’ble Supreme Court held that handcuffing a citizen is inhuman, and later, in Prem Shankar Shukla, categorically declared unnecessary handcuffing as violative of fundamental rights. However, instances of handcuffing individuals continued, prompting the Supreme Court in 1995 to take cognizance of Kuldeep Nayar’s letter regarding accused persons being chained to hospital beds and laying down guidelines on handcuffing, making it a duty of the court to take active steps to ensure that the persons in custody are not unnecessary put into shackles. Despite multiple judicial precedents outlawing unnecessary handcuffing, violations persist, with courts frequently reminding the police of the need for justification before resorting to such measures. Even as the data of prisoners escaping custody does not show any steep rise in number of cases, the newly promulgated BharatiyaNagrik Suraksha Sanhita, 2023 (BNSS) introduces a statutory provision under Section 43(3), explicitly outlining circumstances under which the police may handcuff an individual in custody. As no provision for handcuffing existed in the Code of Criminal Procedure, 1973, this provision marks a legislative departure from previous jurisprudence and raises critical questions regarding the necessity for giving statutory approval to handcuffing, its alignment with constitutional principles, and its potential conflict with human rights and dignity. This article critically examines the law surrounding handcuffing in India and explores whether the new provision under BNSS aligns with constitutional principles and international human rights standards, or risks legitimizing excessive police actions. Through this analysis, the article aims to contribute to the broader discourse on the contours of the new BNSS, human rights and preventive state action.
Keywords – Handcuff, Human Rights, Procedure, Custody, Criminal Law.
1. THE LAW OF HANDCUFFING
Handcuffing is a widely used mode of restricting a person by using a device on the hands of the person so restrained, making it improbable for him to move his arms freely. It has been defined as “Instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment”[1]. The history of Handcuffs is rather old and goes as far as 4th century Greek soldiers using them to control the prisoners of war[2] and presently is used by law enforcement agencies to prevent a person subject to the process of law from escaping. Though the Code of Criminal Procedure, 1973[3] (Hereinafter CrPC 1973) had no provision for imposition of handcuffing, it has been a part of the Indian legal system for long and is governed by state authorities rules and orders. Once a handcuff has been imposed, it is an offense to remove the same without due authority as per The Prisons Act, 1894[4].
As stated earlier, neither the CrPC 1973, nor 1898 had any provision for handcuffing. The CrPC 1973 granted power to use all means necessary to effect an arrest[5], however, also stated that no unnecessary restraint should be used.[6]The Central legislation The Prisons Act, 1894 provides power to the impose handcuffs and fetters as a preventive or punitive measure[7] however, exempts women and civil prisoners from handcuffing.[8] and leaves it to States to make rules and regulations to provide the scope for handcuffing. The Prisons Act while under Section 56 grants discretion to the Superintendent to impose irons, Section 58 of Prisons Act specifies that no prisoner should be ironed without necessity. A combined reading of both Sections, makes it clear that “Handcuffing would be permissible in rare cases only, where strong grounds exist to entertain a reasonable belief that no alternative measures would suffice. Sections 56 and 58 of the Act also lay down a clear legislative policy that confinement in irons or mechanical restraint is not a rule but an exception and that such confinement is permissible only in certain cases and subject to certain limitations.”[9]
Different Acts and enactments provide for handcuffing in different situations keeping in view the provisions of the Prisons Act. The Ministry of Home Affairs have also released a Model Prison Manual 2016[10] which may be followed by different States for framing their own rules. Under the Model Prison Manual, the undertrials are not to be handcuffed except when they are notorious, violent, flight risk, accused of serious offense[11] and when produced in court, they can be handcuffed only with the permission of court[12]. In State Regulations, most noted, The Punjab Police Manual provides specific directions for the imposing of handcuffs and states that Handcuffs may be applied to prisoners in three ways: (a) on the wrists in front, day or night, for up to 12 hours at a time with at least 12-hour breaks between periods, for no more than 4 consecutive days or nights; (b) on the wrists behind, during the day only, for up to 6 hours per 24-hour day, for no more than 4 consecutive days; or (c) by securing the wrists to a staple in front, during the day, for up to 6 hours daily with a minimum 1-hour break after 3 hours, for no more than 4 consecutive days.[13]Along with the Manual, The Punjab Prisoners (Attendance In Courts) Rules, 1969 permits handcuffing and fettering of both, undertrial and convicted prisoners while travelling.[14]
Following the Punjab rules The Standing Order of Delhi Government permits handcuffing when “a. prisoner is a desperate character, is rowdy or dangerous and the police officer arresting such a person feels that in that particular case, hand-cuffing would be essential,.”[15]But also states that handcuffing should not be done in a routine manner. If an accused is presented in the court, The public prosecutor will present the daily diary to the court, seeking approval from the presiding officer for continued handcuffing of the accused in future court appearances.[16] The Circular however, makes a rule that “jurists, advocates, doctors, writers, educationists and well-known journalists” and other similar individuals who occupy good positions in society, should not be handcuffed ordinarily[17] but in cases of a reasonable apprehension of escape, rescue, or violence a prisoner may be handcuffed during escort. In such cases, a detailed report must be recorded and shall be submitted to the court upon the prisoner’s production.[18] The power to handcuff desperate or dangerous criminals with a history of escape was reiterated in another circular in 2011.[19] However, in 2012, it was noted by the Office of Commissioner of Police that despite having the power to handcuff in exceptional cases, the police refuse to handcuff criminals who had in the past tried to escape or are violent, probably fearing contempt action, and while reiterating the guidelines in Citizens of Democracy case, had to remind yet again that the police can note the antecedents of escape or violence against police in Daily Diary, and handcuff the person so apprehended if necessary.[20]
Very similar to Punjab Police Manual, the West Bengal Jail Code provides handcuffing in front as a minor punishment[21] and behind the back as a major punishment[22]. Handcuffs may be imposed with specific time restrictions: on the wrists in front for up to 12 hours at a time, with at least 12-hour intervals, for a maximum of four consecutive days; or on the wrists behind, only during the day, for up to six hours in any 24-hour period, also for a maximum of four consecutive days. No additional restraints beyond standard handcuffing is permitted. These two forms of punishment cannot be alternated, and prisoners under such restraint must be fully sheltered from the sun[23] However, Females, minors, and civil prisoners cannot be handcuffed.[24] Again, the handcuffing is permitted only when the prisoner is deemed a threat due to history of violence to others or to himself.[25]
The Karnataka Police Manual has been noted to be more lenient than Punjab Rules and more intune with the Supreme Court’s Guidelines, however, it has no force of law[26]. The manual makes it clear that “The use of handcuffs not only causes humiliation to the prisoner but also destroys his self-respect and is contrary to the modern notions in the treatment of offenders.”[27]The manual further states that Prisoners should not be handcuffed unless they are violent, disorderly, or there is a risk of escape[28]andany instance of handcuffing must be recorded.[29]
There are other state rules and regulations, but most reiterate the same principles as given above and draw their power to handcuff from the Prisons Act, 1894. Overall, The statutory intent and principles underlying the imposition of handcuffs is as below-
- Handcuffing can be punitive as well as preventive
- As a preventive measure it is to be only used under exceptional circumstances
- The imposition of handcuff is an executive decision
- Judicial Supervision is an essential safeguard
It is rare that a law that grants coercive power is used without excesses. The issue of excessive use of handcuffs has always been noted in India. The Report of the Committee on Prison-Discipline to the Governor General of India[30] had also highlighted that the regulations in India grant Thannadars discretion in handcuffing prisoners who were sent to the Magistrate, based on security concerns but also observed that prisoners are generally very docile and means like and including handcuffing and irons are not necessary in most cases. The Committee suggested establishing clearer rules by specifying offenses that warrant handcuffing while allowing discretion in other cases. The policy of Government of India as per a circular[31] has always been to handcuff only the violent, flightrisk or non-bailable offense accused persons. However, the same circular notes that It is, however, observed that in practice, police often handcuff prisoners routinely causing them humiliation and harming their self-respect.
The misuse of handcuffing has been brought to the notice of the Supreme Court through three letters. These letters, highlighting the inhumane and degrading treatment of prisoners, served as a catalyst for judicial intervention and the subsequent evolution of jurisprudence on the point of handcuffing in India.
Sunil Batra, a prisoner in Tihar, wrote a letter to the Supreme Court complaining about torture in prison. Reiterating the opinion of Justice Chandrachud that merely because someone is convicted, they are not stripped of all the fundamental rights, the Supreme Court took cognizance of the letter, and Justice Krishna Iyer in the case of Sunil Batra v. Delhi Administration[32] held that “The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases….”[33]and even if imposed for the reason of security, it shall be under judicial scrutiny. The Court did not hold Section 56 of the Prisons Act, 1894 as unconstitutional but held that it must be trimmed according to rule of law.
Next, In Prem Shankar Shukla v. Delhi Administration[34] The Supreme Court took cognizance of a telegram written from jail by prisoner Prem Shankar Shukla who complained that he and other prisoners were being forced to wear handcuffs, and protested against the humiliation and suffering of being shackled in public while being taken from Tihar Jail to court for their trials. Justice Krishna Iyer speaking for himself and Justice Reddy opined that handcuffs dehumanize the prisoners under the guise of security and safety and not only is arbitrary handcuffing unconstitutional, it could be punishable under Section 220 of the Indian Penal Code[35] if done maliciously. Further, The Rule 26.22, along with Rule 26.21A of the Punjab Police Rules, 1934, which created two categories of undertrial prisoners, “Better Class” and “Ordinary” on the basis of social status, education, and lifestyle etc, were held unconstitutional. The ordinary undertrials were subject to regular handcuffing while Better Class undertrials were not, noting that the right to dignity is a right that belongs to everyone whether of a higher social status or lower, the court held that the distinction between better class and ordinary undertrials was arbitrary. The Court also declared the Punjab Police Manual Chapter XXVI, para 26.22, which states that all undertrial prisoners accused of non-bailable offences punishable with more than three years of imprisonment should be handcuffed as a routine practice, violative of fundamental rights.
In Prem Shankar Shukla, The court directed that the judicial officer, before whom a prisoner is produced, must inquire whether the prisoner has been subjected to handcuffs or iron treatment. If the prisoner reveals that he was handcuffed, the concerned officer must immediately provide an explanation.
Despite the watershed judgement in Prem Shankar Shukla, the Court came face to face with a horrid reality again when noted Journalist Kuldeep Nayar wrote a letter to the Supreme Court, revealing that 7 TADA Accused persons were tied to a rope and handcuffed to the bed while being treated in a hospital in Guwahati, Assam. In Citizens for Democracy v. State of Assam[36]The Supreme Court, again laid down several guidelines, making it mandatory to obtain order from a magistrate to handcuff a person while producing for remand, or executing an arrest warrant. If the police arrest a person without a warrant, they may handcuff in light of necessity only till the time the person is taken to the police station. Once, the person so arrested reaches the police station, any further handcuffing would require a magistrate’s order. Any violation of these guidelines would be punishable under the Contempt of Courts Act.
Three letters, thus, shaped the jurisprudence of handcuffs and fetters in India, leading to the development of a more human rights based approach. The law as laid down in the three judgements, were not mere guidelines, rather the fact that their violation would amount to contempt of court of the orders of the Supreme Court, gave them a punitive force. As held in R.P. Vaghela[37] by a 5-judge bench of Gujarat High Court, not only Supreme Court itself, but the High Courts are also empowered to take cognizance of violation of Supreme Court’s directions for handcuffing. The Himachal Pradesh High Court[38] and Calcutta High Court[39] have also laid down their guidelines for handcuffing, which is in tune with the guidelines of the Supreme Court.
On many occasions the Courts have sprung into action against police officials for violation of the law of handcuffing as declared by the Court. In Sunil Gupta v. State of MP[40], the Court had directed enquiry against erring officials for handcuffing protestors and parading them in public while taking them from court to jail. The Court held that even though the petitioners had shouted slogans outside court, no necessity arose for them to handcuff them. Further, not only the police officials, but erring judges also have faced consequences for violating the guidelines and duties as given in Prem Shankar Shukla and Citizens for DemocracyInRe: M.P. Dwivedi[41]the Supreme Court initiated Suo Motu contempt proceedings against seven officials, including a Judicial Magistrate, for not taking any action against the handcuffing of undertrials despite being reminded of the Supreme Court’s decisions. The Supreme Court viewed this as a grave lapse on the part of the Magistrate, who was responsible for safeguarding the fundamental rights of citizens. However, taking into account the Magistrate’s young age, the Court adopted a lenient approach and did not impose any punishment.
Along with contempt of court, Several cases have seen courts ordering costs and compensation for handcuffing arrested persons without any reason. Costs serve functions similar to contempt of court, as they are not only done to compensate the persons so handcuffed illegally, they also act as a deterrent. Even though the Supreme Court in Ravikant S. Patil[42] had held that police personnel cannot be personally held liable to pay compensation to the arrestee, the high courts have found that imposition of costs and compensations acts as a deterrent. The Guwahati High Court in Sabah Al Zarid[43] had held that compensation for unreasonable handcuffing is based on strict liability and “The imposition of compensation should also be such that the concerned police officer should follow the applicable law in both letter and spirit and are put on notice that non following of applicable law could result in they being liable to make payment of monetary compensation to the arrestee.”[44]Similarly, Karnataka High Court in Suprit Ishwar Divate[45]while ordering compensation of Rs. 2,00,000/- for unreasoned handcuffing,had held that while imposing compensation, along with the loss and damage of reputation, the Court must also consider imposing compensation as a deterrent for Police Officers who fail to discharge their duties. In Suresh Kumar Satija v. Balwinder Singh Touri[46] The Punjab and Haryana High Court ordered the respondent to pay a cost of Rs. 1,00,000/-, for illegal handcuffing, to be deposited in the Punjab and Haryana High Court Employee’s Welfare Association.
Alas, One of the most murky part of our criminal justice system is that many human rights violations continue till they aren’t discovered by a Court. Despitethe rigour of Contempt action, departmental inquiry and costs, meritless handcuffings continue and in 2024, the Supreme Court in Vihaan Kumar[47]found that the story of Citizens for Democracy has been repeated and it was found that police had handcuffed the accused to the hospital bed during treatment. The court held that such an act amounted to violation of Article 21 and directed the state government to issue necessary directions to ensure that such incidents never happen again.
The summary of this entire discussion till this point makes it clear that the handcuffing is not something that either legislature, or judiciary took in a light manner. Handcuffs without reason come in direct conflict with Article 14, 19 and 21 of the Indian Constitution and thus, any power to impose handcuffs has to be applied in a very judicious and calculated manner. There are precedents in which handcuffing has been approved on the basis of necessity.[48] The approach of both the organs of the government till now has been ‘Necessity Based Approach’ where handcuffs have been approved only when exceptional necessity arises, and it must be under judicial scrutiny, backed by records and reasons.
[1]Philip John vs State Of Himachal Pradesh [1984] SCC OnLine HP 54.
[2] BLUELINE, “A History of Handcuffs”,<https://www.blueline.ca/a_history_of_handcuffs-2396/> assessed 22 March 2025.
[3] Code of Criminal Procedure, 1973.
[4] The Prisons Act, 1894, s. 45.
[5]Code of Criminal Procedure, 1973,s. 46 (2).
[6]ibid s. 49.
[7]ibid s. 46.
[8]ibid s. 46 Proviso.
[9]Philip John (n 1), para 7.
[10] Model Prison Manual for the Superintendence and Management of Prisons in India, 2016.
[11]ibid para 24.28.
[12]ibid para 24.29.
[13] Punjab Jail Manual, 1996,s. 550.
[14]Punjab Prisoners (Attendance in Courts) Rules, 1969, r. 10.
[15] Delhi Police Standing Order No. 44 [1976],Para II(b).
[16]ibid para II(c).
[17]ibid para IV.
[18]ibid para V.
[19] Office of the Commissioner of Police, Delhi [2011] Circular No. 33/2011.
[20] Office of the Commissioner of Police, Delhi [2012] Circular No. 78/2012.
[21] West Bengal Jail Code, 1967,s. 703(A)(6).
[22]ibid s. 703 (B) (6).
[23]ibid s. 717.
[24]ibid s. 730.
[25]ibid s. 981.
[26]Jaswinder Singh And Ors. vs State OfKarnataka,[2002] SCC OnLine Kar 193.
[27] Karnataka Police Manual, 1965, s. 831.
[28]ibid s. 831 (1).
[29]Iibid s. 83.
[30] India Commission on Prison-Discipline, Report of the Committee on Prison-Discipline to the Governor General of India in Council (8 January 1838).
[31] Ministry of Home Affairs(Government of India), Circular Letter No. F. 2/13/57 P. IV (26 July 1957).
[32]Sunil Batra v. Delhi Administration[1978] 4 SCC 494.
[33]ibid Para 197-B.
[34]Prem Shankar Shukla v. Delhi Administration [1980] 3 SCC 526.
[35] Indian Penal Code, 1860.
[36]Citizens for Democracy v. State of Assam [1995] 3 SCC 743.
[37]R.P. Vaghela v. State of Gujarat[2002] SCC OnLine Guj 34.
[38]Philip John (n 1).
[39]Soumen Biswas v. State of West Bengal, [2013] SCC OnLine Cal 13711.
[40]Sunil Gupta v. State of MP [1990]3 SCC 119.
[41]Citizens for Democracy In Re: M.P. Dwivedi & Ors., [1996] 4 SCC 152.
[42]State Of Maharashtra v. Ravikant S. Patil,[1991] 2 SCC 373.
[43]Sabah Al Zarid v. The State of Assam[2023] SCC OnLine Gau 4244.
[44]ibid para 28.
[45]Suprit Ishwar Divate v. State of Karnataka [2022] SCC OnLine Kar 1133.
[46]Suresh Kumar Satija v. Balwinder Singh Touri[2024] 2024 :PHHC : 001961-DB.
[47]Vihaan Kumar v. State of Haryana [2025] SCC OnLine SC 269.
[48]Court On Its Own Motion v. Milkhi Ram[1992] CRILJ 2130; See Also, Jaswinder Singh And Ors. vs State Of Karnataka[2002] CRILJ2154.