# • .f PREM SHANK.AR SHUKLA v. DELHI ADMINISTRATION

- **Citation:** [1980] 3 S.C.R. 855
- **Court:** Supreme Court of India
- **Decided:** 1980-04-29
- **Case number:** Writ Petition No. 1079 of 1979
- **Bench:** V. R. Krishna Iyer, R. S. Pathak, o. CHJNNAPPA REDDY
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-prem-shank-ar-shukla-v-delhi-administration-8218
- **Pages:** 29

## Headnote

855
Hu111an
justice
vis-a-vis Detention
Jurisprudence-Manacling
a
man
accused at an ofiencc, constitutional validity of-Constitution of India Articles 14, 19 and 21--ls.suance of a Writ of Habeas Corpus for human
1
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
B
D
a fortiori so.
Our nations founding document admits
of
no
exception.
E
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
F
"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
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
G
B
A
856
SUPREME COURT REPORTS
[1980] 3 s.c.R.
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.
Vishwanath v. State, Crl. Misc. Main No. 430
of
1978
decid¢
on
6-4-79 (Delhi High Court); overruled_
B
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
C
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
D
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.

## Text

_Characters 0–39,538 of 79,789. This is a partial read: ask again with offset=39538 for what follows._

•
.f
PREM SHANK.AR SHUKLA
v.
DELHI ADMINISTRATION
April 29, 1980
[V. R. KRISHNA IYER, R. S. PATHAK AND
o. CHJNNAPPA REDDY, JJ.]
855
Hu111an
justice
vis-a-vis Detention
Jurisprudence-Manacling
a
man
accused at an ofiencc, constitutional validity of-Constitution of India Articles 14, 19 and 21--ls.suance of a Writ of Habeas Corpus for human
1
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
B
D
a fortiori so.
Our nations founding document admits
of
no
exception.
E
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
F
"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
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
G
B
A
856
SUPREME COURT REPORTS
[1980] 3 s.c.R.
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.
Vishwanath v. State, Crl. Misc. Main No. 430
of
1978
decid¢
on
6-4-79 (Delhi High Court); overruled_
B
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
C
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
D
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]
E
F
G
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<icie inhuman and, therefore, unreasonable,
is
over harsh nnd at the first blush, arbitro.ry.
Absent
fair
procedure
and
objective monitoring to inflict "irons" is to resort to zoological strategies
repugnant ro Artic1e 21. Surely, the competing claims of securing the
prisoner from fleeing and protecting his personality from barbarity have to be
harmonized.
To prevent the escape of an undertrial is in public interest,
reasonable, just and cannot, by itself be castigated. But to bind a man hand
and foot, fetter his limbs V.'ith hoops of steel, shuffle him along in the streets
r nd stand him for hours in the courts is to torture him, defile his. dignity,
vulgarise society and foul the soul of our Constitutional culture. [872 F-0]
8. Insurance against escape does not compulsorily required
handcuffing.
There are other measures \Vhereby an escort can keep safe custody of a
detenu without the indignity and cruelty implicit in handcuffs or other iron
contraptions. Indeed, binding together either the hands
or
feet
Or bo'h
has not merely a preventive impact but also a punitive hurtfulness.
Manacles
are mayhem on the human person and inflict humiliarion
on the
be;rer.
1_
,-
.·~
'
..
r
..
•
P. S. SHUKLA v. DELHI ADMN.
857
'Ille thtee con1poncnts of "irons" forced on the human person are : to bandA
cuff i.e., to hoop harshly io punish humiliatingly and to vulgarise the viewers
also·. Iron straps are insult and pain
writ large,
animalising
victim
and
keepers.
Si~ce there are other ways of ensuring safety as a rule handcuffs
or other fetters shall not be forced on the person of an undertrial prisoner
ordinarily.
As necessarily implicit in Ai;iicles 14 and 19, when there is no
compulsive 11Ced to fel1er a person's limbs it is sadistic, capricious,
despotic
an<l demoralizing to humble a man by manacling him.
Such arbitrary conB
duct surely slaps Article 14 on the face. The animal freedom of movement,
which even a detainee is entitled to under Article 19, 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
of forbidding escape is available, the prisoner being so dangerous and
desperate and the circumstances s'o hostile to safe keeping. [872 G-H, 873 A-E]
9. Once the Supreme Court make it a constitutional mandare and
law
that no i:risoner shall be handcuffed or fettered routinely or merely for the
convenience of the custodian or escort, the distinction between classes of
prisoners become constitutionally obsolete.
Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for
purposes of handcuffs or otherwise, a rich criminal or undertrial
is
in no
c
way different from a poor or pariah convict or under trial in the
matter
D
of .security risk.
An affluent in custody may be as dangerous or desperate
as an indigent, if not more. He may be more prone to be rescued than an
ordinary person.
Therefore, 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 differential
as
the
law lreats 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 comE
fortable to fetlel1 their charges and be at ease, but that is not
a
relevant
consideration. [873 'E-H]
10. The only circumstance which validates incapacitation by
irons-an
extreme measurer-is that otherwise there is no other reasonable
way
of
preventing his escape, in the given
circumstances.
Securing
the
prisoner
being a necessity of judicial trial, the. State must take steps in this
behalf.
But even here, the policeman's easy assumption or scary
apprehension
or
subje.ctive 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
affliction, implicit in chains and shackles are permissible, as not unreasonable,
only if every other less c1uel means is fraught with risks or beyond availability.
So it is that to be consistent with Arts. 14 and 19 handcuffs must be
the last refuge, not the routine· regimen. If a few more guards will suffice,
then no handcuffs. If a close watch by armed policemen will do, then no
handcuffs. If alternative measures may be provided, then no iron bondage.
Tllis is the legal norm. [874 A·CJ
Fnctional compulsions of security must reach that dismal degree that
no alternative will work except manacles.
Our
Funda1nental
Rights
are
heavily Joa<led in favour of personal liberty even in prison, and so, the traditional approaches without reverence for the worth of the human rr~rson are
obs0Jete 1 although they die hard.
Discipline can be exaggerated by prison
16-463 SCJ/80
F
G
H
A
c
858
SUPREME COURT REPORTS
[1980] 3 s.c.R.
keepers; dangerouslless can be physically worked up by escorts and sadistic
disposition, \Vhere higher awareness of constitutional rights is
absent,
IDaf'
overpower the finer values of dignity and humanity. [874 D·BJ
Therefore,. there must first be well-grounded basis for drawing a strong
inference that the prisoner is likely to jump jail or break out of custody
or play the vanishing trick.
The belief in this behalf must be
based
on
antecedents which must be recorded and proneness to violence must be
auth~ntic.
Vague surmises or general averments that the under-trial is a
crook or desperado, rowdy or maniac, cannot suffice. In short, save in rare
cases of -concrete proof readily available of the dangerousness of the prisoner
in transit-the onus of proof of which is on him who puts the person under
irons-the police escort will be committing personal assault or mayhem if
he handcuffs or fetters his charge. It is disgusting to see the mechanical
way jn which callous policemen, cavalier fashion, handcuff prison.- in their
charge, indifferently keeping them company assured by the thought that the
detainee is under 'iron' restraint. [874 F-H]
11, Even orders of superiors are no valid justification as con.sti.tvtional
rights cannot be kept in suspense by superior orders, unless there is material,
sufficiently stringent, to satisfy a reasonable mind that dangerous and desD
perate is the prisoner who is being transported and further that by adding
to the escort party or other strategy he cannot be kept under conlrol.
It
iS hard to imagine such situations. It is unconscionable, indeed outrilgeous,
to make the strange classification between better class prisoners and ordinary
prisoners in the matter of handcuffing.
Thi~ elitist concept has
no
basic
except that on the assumption the ordinary Indian is a sub-citizen an4 free.
doms under Part Ill of the Constitution are the privilege of the upper sector
E
of society. [875 A-CJ
F
Merely because a person is charged with a &rave offence he can.not be
handcuffed. He may be very quiet, well-behaved, docile
or
even
timid.
Merely because the offence is serious, the inference of escape-proneneas or
desperate character does not follow.
Many other conditions mentioned in
the Police Manual are totally incongruous and must fall as unlawful. Taagi·
ble testimony, documentary or other, or desperate
behaviour,
geared
to
making good his escape, along will be a valid ground for handcuffing and
fettering, and even this may be avoided by increasing the strength of
the
escorts or taking the prisoners in well~protected vans. And increase in the
number of escorts, arming them if necessary special
training
for
escorts
police, transport of prisoners in protected vehicles, are easily available alter~
natives. [875 C·El
G
- 12. Even in cases where, in extreme circumstances handcuffs have to be
put on the prisoner, the escorting authority must record contemporaneously
the reasons for doing so.
Otherwise, uD.der Art. 21 the procedure will be
unfair and bad in. law. Nor will mere recording of the reasons do, as that
can be a mechanical process mindlessly made. The escorting officer, whenever he handcuffs a prisoner produced in court, must show the reasoos so
recorded to the Presiding Judge and get his approval. Otherwise, there is
H no control over possible arbitrariness in applying handcuffs and fetters.
The
minions of the police establishment must make
good their
security recipes
by getting judicial approval.
And, once the court directs that handcuffs •hall
"
P. S. SHUKLA V. DELHI ADMN.
859
.be off, no escorting authority can overrule judicial direction. This is implicj!.
A
in Art. 21 which insists upon fairness, reasonableness and justice in the very
procedure \vllich authorises stringent deprivation of life and liberty.
[875 G-l{, 876 A]
Ma11eka Gandhi v. Union of India, [1978] 2 SCR 621, and Sunil Batra v.
Delhi Administration, [1978] 4 SCC 494; applied.
13. Punjab Police 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 Indian humans shall not be dischotomised and tlte
common run discriminated against regarding handcuffs. The p.rovisions in par.i
26.22 that every under trial who is accused of a non-bailable offence punishable
with more than 3 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 determinant. And for this there 1 must be clear
mat~rial, not qlib assumption, record of reasons and judicial oversight and sllmmary hearing and' direction by the Court where the victim is produced. Para 2,,
22(1)(d), (e) and (f) also hover perilously near unconstitutionality unless read
down. Handcuffs are not summary punishment vicariously imposed at police
level, at once obnoxious 'and irreversible.
Armed escorts, worth the salt, can
overpower any wiarmed undertrial and extraguards can make up exceptional
needs.
Jn very special situations, the application of irons cannot be
ruled
out. The prisone11 Cannot be tortured because others will demonstrate or
attempt his rescue. The plain law of under trial custody is thus contrary to
unedifying escort practice. [87 6 C-G]
14. The impossibility of easy recapture supplied the temptation to
jump
custody, not the nature of the offence or sentence.
Likewise, the
habitual
<>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
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
B
c
D
E
p
G
15. The rule regarding a prisoner in transit between prison
house and
court house is freedom from handcuffs and the exception, under conditions
H
of judicial supervision will be restraints with irons to be justified before or
after. The judicial officers, before whom the prisoner is
produced
shall
860
SUPREME COURT REPORTS
[1980] 3 S.C.R.
A
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
,.:...
J)
E
F
G
H
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. 1 Viewed 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
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
a 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
A
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
B
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
C
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
D
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 circumsE
tances 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
G
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.)
Dr. Y. S. Chitale, (Amicus Curiae) and Mukul Mudgal, for the
Petitioner.
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[1980] 3 S.C.R.
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
A 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:
H
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 of the 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<d in acccrdance with
the rules mentioned above.
In plain language, it means that ordinary Indian undertria/s shall be
routinely handcuff<d during transit between jail and court and the
better class prisoner shall be so confined only if reasonably apprehended to be violent or rescued.
The facts are largely beyond dispute and need brief narration so
that the law may be discussed and decland. The basic assurr.ption we
humanistically make is that even a prisoner is a person, not an animal,
that an under-trial prirnner a fortiori so. Our nation's founding document admits of no exception on this subject as Suni/ Batra' s case( I)
has clearly stated. Based on· this thesis, all measures authorised
by the faw must be takrn by the court to kc<p the stm m of prison
Justice unsullied .
A condensed statemrnt of the facts may help ccr.cretise the l<gal
issue argued before us. A prisoner sent a tel< grim to a ji:cge of this
court (one of us) complaining of forced handcuffs on him ar.d other
prisoners, implicitly protesting against the humiliation ar.d torture of
being held in irons in public, back and forth, when, as under-trials
kGpt in custody in the Tihar Jail, they were being taken to Delhi courts
for trial of their cases. The practice persisted, bewails the petitioner,
despite the court's direction not to use irons on him and this Jed to
(1) [1978] 4 s.c.c. 494.
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the telegraphic 'litany' to the Supreme Court which is the functional
sentinel on the qui-vive where 'habeas' justice is in jeopardy. If iron
enters the soul of law and of the enforcing agents oflaw-rather, ifit is
credibly alleged so-this court must fling aside forms of procedure and
defend the complaining individual's personal liberty under Arts.
14, 19 and 21 after due iuvestigatiou. Access to human justice is the
essence of Art. 32, and sensitized by this dynamic perspective
we have examined the facts and the law and the rival versions of the petitioner and the Delhi Administration. The blurred
area of 'detention jurisprudence' where considerations of prevention
of escape and personhood of prisoner
come
into concftict,
warrants fuller exploration than this isolated case necessitates and counsel on both sides (Dr. Chitale as amicus curiae, aided ably by Shri
.Mndgal, and Shri Sachthey for the State) have rendered brief oral
assistance and presented written submissions on a wider basis. After
all, even while discussing the relevent statutory provisions and constitutional requirements, court and counsel must never forget the core
principle found in Art. 5 of the Universal Declaration of Human
Rights, 1948:
"No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment."
And read Art. 10 of the International Covenant on Civil and Political Rights:
Art. I 0: All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human
person.
Of course, while these larger considerations may colour our mental process, our task cannot over flow the actual facts of the case or the norms
in Part III and the Provisions in the Prisoners (Attendance in Courts)
Act, 1955 (for short, the Act). All that we mean is that 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 manacled
man is to break human bondage, if within the reach of the judicial
process. In this jurisdiction, the words of Justice Felix Frankfurter
are a 1nariner's compass:
"The history of liberty has largely been the history of obser·
vance of procedural safeguards.
And, in Maneka Gandhi's case (1) it has been stated:
(!) Maneka Gandhi v. Union of India, [1978) 2 S.C.R. 621 at 647.
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P. s. SHUKLA v. DELHI ADMN. (Krishna Iyer, J.)
865
'the ambit of personal liberty protected by Art. 21 is wide and
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comprehensive. It embraces both substantive rights to personal
liberty and the procedure provided for their deprivation."
Has the handcuffs device-if so, how far-procedural sanction? That
is the key question.
The prisoner complains that he was also chained but that fact is
controverted and may be left out for the while. Within this frame of
facts we have to consider whether it was right that Shukla was shackled.
The respondent relies upon the provisions of the Act and the rules
framed thereunder and under the Police Act as making shackling
lawful. This plea of legality has to be scanned for constitutionality
in the light of the submissions of Dr. Chi tale who heavily relies upon
Art. 21 of the Constitution and the collective consciousness relating
to human rights burgeoning in our half-century.
,
The petitioner is an under-trial prisoner whose presence is needed
in several cases, making periodical trips between jail house and magistrate's courts inevitable. Being in custody he may try to flee and so
escort duty to prevent escape is necessary. But escorts, while taking
responsible care not to allow their charges to escape, must respect
their personhood. The dilemma of human rights jurisprudence
comes here. Can the custodian fetter the person of the prisoner, while
in transit, with irons, maybe handcuffs or chains or bar fetters?
When does such traumatic treatment break into the inviolable zone of
guaranteed rights? When does disciplinary measure end and draconic
torture begin? What are the constitutional parameters, viable guidelines
and practical strategies which will permit the peaceful co-existence of
custodial conditions and basic dignity? The decisional focus turns on
this know-how and it affects tens of thousands of persons languishing
for long years in prisons with pending trials. Many Shuk!as in shackles
are invisible parties before us that makes the issue a matter of moment.
We appreciate the services of Dr. Chitale and his junior Shri Mudgal'
who have appeared as amicus curiae and belighted the blurred area
-of law and recognise the help rendered by Shri Sachthey who has
.appeared for the State and given the full facts.
The petitioner claims that he is a 'better class' prisoner, a
fact which is admitted, although one fails to understand how
there can be a quasi-caste system among prisoners in the egalitarian
-context of
Art.
14.
It is a sour fact of life that discrimi·
natory treatment based upon wealth and circumstances dies
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hard under the Indian Sun. We hope the Ministry of Home .
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£urvival after legal death of this invidious distinction and put all
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prisoners on the same footing unless there is a rational classification
based upon health, age, academic or occupational needs or like
legitimate ground and not irrelevant factors like wealth, political im·
portance, social status and other criteria which are a hang-over of the
hierarchical social structure hostile to the constitutional ethos. Be
that as it may, under the existing rules, the petitioner is a better class
prisoner and claims certain advantage for that reason in the matte(of
freedom from handcuffs. It is alleged by the State that there are several
cases where the petitioner is needed in the courts of Delhi. The
respondents would have it that he is "an inter-State cheat and a very
clever trickster and tries to brow-beat and misbehave'with the objecfto
escape from custody." Of course, the petitioner ,contends that his
social status, family background and academic qualifications~warrant
his being treated as a better class prisoner and adds that the courtfhad
directed that for that reason he be not handcuffed. He also states that
under the relevant rules better class prisoners are exempt from hand·
·cuffs and cites in support the view of the High Court of Delhi that a
better class under· trial should not be handcuffed without recording of
reasons in the daily diary for considering the necessity for the use of
handcuffs. The High Court appears to have observed (Annexure A to
the counter-affidavit on behalf of the State) that unless there be
reasonable ·expectation of violence or attempt to be rescued the
prisoner should not be handcuffed.
The fact, nevertheless, remains that even apart from the High
Court's order the trial judge (Shri A. K. Garg) had directed the
officers concerned that while escorting the accused from jail to court
and back handcuffing should not be done unless it was so warranted.
" .... I direct that the officers concerned while escorting the
accused from jail to court and back, shall resort to handcuffing
only if warranted by 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."
Heedless of judicial command the man was fettered during transit,
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under superior police orders, and so this habeas corpus petition and
this Court appointed Dr. Y. S. Chitale as amicus curiae, gave suitable
directions to the prison officials to make the work of counsel fruitful
and issued notice to the State before further action. "To wipe every
tear from every eye" has judicial dimension. Here is a prisoner who
bitterly complains that he has been publicly handcuffed while being
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escorted to court and invokes the court's power to protect the integrity
of his person and the dignity of his humanhood against custodial
cruelty contrary to constitutional prescriptions.
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P. s. SHUKLA v. DELHI ADMN. (Krishna Iyer,!.)
867
The Superintendent of the Jail pleaded he had nothing to do with
the transport to and from court and Shri Sachthey, counsel for the
Delhi Administration, explained that escorting prisoners between
custodial campus and court was the responsibility of a special wing of
the police. He urged that when a prisoner was a security-risk, irons
were not allergic to the law and the rules permitted their use. The petitioner was a clever crook and by enticements wo\lld escape from
gullible constables. Since iron was too stern to be fooled, his hands
were clad with handcuffs. The safety of the prisoner being the onus
of the escort police the order of the trial court was not blindly binding.
The Rules state so and this explanation must absolve the police. Many
more details have been mentioned in the return of the police officer
concerned and will be referred to where necessary but the basic
defence, put in blunt terms, is that all soft talk of human dignity is
banished when security claims come into stern play. Sutely, no cutand-dried reply to a composite security-versus-humanity question can
be given. We have been persuaded by counsel to consider this grim issue
because it occurs frequently and the law must be clarified for the
benefit of the escort officials and their human charges. Dr. Chita)e's
contention comes to this : Human rights are not constitutional clap
trap in silent meditation but part of the nation's founding charter
in sensitized animation. No prisoner is beneath the law and while
the Act does provide for rules regarding journey in custody when
the ceurt demands his presence, they must be read in the light of
the larger back drop of human rights.
Here is a prisoner-the petitioner-who protests against his being
handcuffed routinely, publicly, vulgarly and unjmtifiably in the trips
to and fro between the prison house and the court house in callous
contumely and invokes the writ jurisdiction of this Court under Art.
32 to protect, within the limited circumstances of his lawful custody.
We must investigate the deeper issues of detainee's rights against
custodial cruelty ancl infliction of indignity, within the human rights
parameters of Part III of the Constitution, informed by the compassionate international charters and covenants. The raw history of
human bondage and the roots of the habeas corpus writ enlighten the
wise exercise of constitutional power in enlarging the person of men in
unlawful detention. No longer is this liberating writ tramelled by the
traditional limits of English vintage; for, our.founding fathers exceeded
the inspiration of the prerogative writs by phrasing the power in larger
diction.