On July 1, 2024, the new criminal laws — namely, the Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Bharatiya Sakshya Adhiniyam, 2023 (BSA) — came into effect, replacing the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 (CrPC), and the Evidence Act, 1872, respectively. These new laws were introduced with the aim to replace outdated colonial-era legislation, reform, modernize, and streamline the criminal justice system, making it more indigenous.

However, even before these Acts were enforced, their constitutional validity was challenged before the Hon’ble Supreme Court and various High Courts. The challenges alleged that certain provisions of these Acts violate the fundamental rights of citizens and are inconsistent with established legal principles in the country, rendering them unconstitutional.

BNSS, replacing the CrPC, has been implemented with the goal of enhancing the effectiveness and transparency of law enforcement and expediting justice delivery to the public. It seeks to address procedural delays, minimize bureaucratic obstacles, and introduce enhanced digital methods for investigating and prosecuting crimes. In achieving these objectives, BNSS has omitted certain provisions from the CrPC, introduced new ones, and retained many existing provisions from the CrPC with modifications.

Nevertheless, the amendments to existing provisions in the CrPC and certain new provisions introduced in BNSS have sparked valid concerns. These concerns have been raised not only by legal professionals but also by academics, civil society organizations, politicians, activists, and others. They argue that these amendments potentially grant excessive powers to law enforcement and investigative agencies, which could infringe upon the civil liberties and democratic freedoms of citizens, contrary to established legal precedents set by the Hon’ble Supreme Court and various High Courts.

Police Authority to Use Handcuffs Under BNSS

Chapter V of both the CrPC and BNSS addresses provisions related to the arrest of individuals. This chapter outlines procedures for arrest, the rights of arrested persons, procedures for searching arrested persons, seizure of weapons, discharge procedures, and more. While Chapter V of BNSS largely retains the provisions found in Chapter V of the CrPC, certain sections have been supplemented with additional subsections in both the existing CrPC provisions and in BNSS.

The procedure for arresting an accused person by a police officer is outlined in Section 43 of BNSS. According to this section, a police officer or authorized person must physically touch or confine the body of the person to be arrested. If the individual resists arrest or attempts to evade it, the police are authorized to use necessary means to effect the arrest, except in cases where the accused is charged with a capital offence or life imprisonment. A female police officer may only arrest another woman, and under exceptional circumstances, a woman may be arrested between sunset and sunrise after obtaining written permission from the jurisdictional Magistrate.

Section 43 of BNSS corresponds to Section 46 of the CrPC, with the addition of one subsection in BNSS. This newly added subsection (3) empowers police officers to use handcuffs. It grants officers unrestricted authority to use handcuffs when arresting or presenting individuals to court who are habitual offenders, escapees, or involved in organized crime, terrorism, drug crimes, illegal possession of weapons, murder, rape, acid attacks, counterfeiting, human trafficking, sexual offences against children, or offences against the State.

Unlike the CrPC, which lacks provisions for handcuffing individuals during arrest or court appearances, some state Prisons Acts and Jail Manuals grant police officers the authority to handcuff inmates as a punitive measure for violating prison rules.

With the implementation of BNSS, Section 43 now legally empowers police officers to handcuff accused individuals during arrest or court appearances, a provision absent in the CrPC. The framers of BNSS have not provided compelling reasons for granting police officers the authority to use handcuffs in arresting accused persons or presenting them to court under the specified categories of crimes outlined in subsection (3). This statutory power to handcuff individuals, traditionally employed as a last resort for security and restraint, may now become standard practice rather than an exception among police officers making arrests, without the requirement to justify their actions to the jurisdictional Magistrate.

The use of handcuffs violates fundamental rights guaranteed under Articles 14, 19, and 21 of the Constitution. Handcuffing a person is a degrading experience, particularly when conducted in public. It diminishes the individual’s image, dignity, and self-respect, contrary to the right to equality protected under Article 14. Human dignity, inherent in the right to life and personal liberty under Article 21, encompasses the right to freedom of movement and protection against arbitrary detention.

In a series of judgments, the Hon’ble Supreme Court has denounced handcuffing as inhumane, unreasonable, arbitrary, and a violation of the fundamental rights enshrined in Article 21 of the Constitution. Handcuffs restrict movement and violate the freedom of movement guaranteed under Article 19(d) of the Constitution. In cases of unlawful handcuffing by police officers, the courts have awarded compensation for violating the fundamental rights to equality, freedom of movement, and life and personal liberty.

In the case of Sunil Batra v. Delhi Administration (1978) 4 SCC 494, the Supreme Court condemned the use of handcuffs and leg irons as degrading and contrary to human dignity, both inside and outside of prisons. Indiscriminate use of handcuffs during the transport of accused persons to and from court and the practice of applying restraints on prison inmates is illegal.

In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526, the Supreme Court criticized routine, public, and unjustified handcuffing of prisoners as inherently inhuman and unreasonable, and mandated that handcuffing should only be employed in exceptional circumstances, with contemporaneous reasons recorded and presented to the presiding judge for approval.

In Aeltemesh Rein v. Union of India (1988) 4 SCC 54, the Supreme Court directed the Union of India to formulate rules and guidelines governing the circumstances under which handcuffing of accused persons is permissible, in compliance with the judgment in Prem Shankar Shukla (Supra).

In Citizens for Democracy v. State of Assam (1995) 3 SCC 743, the Supreme Court established guidelines for the use of handcuffs and directed all police and prison authorities to strictly adhere to them. Handcuffs or restraints are not to be applied to prisoners, whether convicted or undertrial, during their time in prison or during transport to or from court, unless there is a well-founded belief that the prisoner poses a significant flight risk or threat to public safety, and prior permission has been obtained from the magistrate.

The Karnataka High Court, in Suprit Ishwar Divate v. State of Karnataka, 2022 SCC OnLine Kar 1133, awarded compensation to the petitioner for unlawful handcuffing by the respondent, in violation of the Supreme Court’s directives. Similarly, the Gauhati High Court, in Sabah Al Zarid v. State of Assam, 2023 SCC OnLine Gau 4244, awarded compensation to the petitioner for unlawful handcuffing by the respondent, contrary to Supreme Court rulings.

In Prem Shankar Shukla’s case (Supra), Justice V.R. Krishne Iyer, speaking for himself and Justice Chinnappa Reddy, condemned routine handcuffing as a relic of imperial oppression that debases human dignity, even extending to patients in hospital beds. Handcuffing should be avoided as much as possible, with alternative methods for secure custody employed instead. Even in extreme cases necessitating handcuffing, the escorting authority must provide contemporaneous justification and obtain judicial approval.

The arbitrary use of handcuffs violates the fundamental rights of individuals and undermines the principles of liberty and freedom. It reflects a callous disregard for human dignity and the rights guaranteed by the Constitution. It is essential to establish a justice system that upholds human rights, dignity, and the principles of liberty and freedom for all individuals.

Posted and reproduced in Public Interest by

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