HANDCUFFING OF UNDER TRIAL

PRISONER A. LakshminarayananAdvocate

SYNOPSIS

Prison Prisoner Acts and Rules Constitutional Provision Rights Landmark Judgments Conclusion

Prison "Prison" means any jail or place used permanently or

temporarily under the general or special orders of a State Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include – Any place for the confinement of prisoners who are

exclusively in the custody of the police; Any place specially appointed by the State

Government under section 541 of the Code of Criminal Procedure, 1882; or Any place, which has been declared by the State

Government, by general or special order, to be a subsidiary jail;

Prisoner "Criminal prisoner" means any prisoner duly

committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of a Court-martial;

"Convicted criminal prisoner" means any criminal prisoner under sentence of a Court or Courtmartial, and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882, or under the Prisoners Act, 1871;

"Civil prisoner" means any prisoner who is not a criminal prisoner;

ACTS & RULES CONSTITUTION OF INDIA PRISONS ACT, 1894 PRISONERS ACT, 1900 THE IDENTIFICATION OF PRISONERS ACT, 1920 TRANSFER OF PRISONERS ACT, 1950 PRISONERS (ATTENDANCE IN COURTS) ACT, 1955 PROBATION OF OFFENDERS ACT, 1958 MENTAL HEALTH ACT, 1987 PROTECTION OF HUMAN RIGHT ACT, 1993 JUVENILE JUSTICE (CARE & PROTECTION OF

CHILDREN) ACT, 2000 MODEL PRISON MANUAL FOR SUPERINTENDENCE

AND MANAGEMENT OF PRISONS IN INDIA, 2003 REPATRIATION OF PRISONERS ACT 2003

CONSTITUTIONAL PROVISION

Constitutional Provision Article 19(1) (a) provides for freedom of speech and

expressions. Article 20 (1) Protects the person from ex-post facto

laws. Person shall be convicted of any offence only in violation of a law in force at the time of the commission of the act charged as an offence.

Article 20(2) Embodies the principal of ‘double jeopardy’, that is, no person shall be prosecuted and punished for the same offence more than once.

Article 20(3) Provide for important safeguards to the under trials that the jail authorities or police authorities cannot compel the prisoners to give testimony which is likely to expose them for criminal consequences.

Constitutional Provision Article 21 provides no person shall be deprived of his life or

personal liberty except according to procedure established by law.

Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatments to any person whether he is a national or foreigner. It is available even to convicts in jails.

Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression life or personal liberty has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.

Right to speed trial, right against handcuffing, right against inhuman treatment are some of the rights which come under the purview of the Article 21.

Article 22 provides for protection against arrest and detention in certain cases.

Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice.

Constitutional Provision

Article 25(1) provides for freedom of conscience and free profession, practice and propagation of religion. This right to religion can be equally enjoyed by the prisoner also.

Article 39A is a Directive Principle of State Policy and grants equal justice and free legal aid. It deals with providing free legal aid to disabled categories and women are among them.

Constitutional Provision

RIGHTS

Right to Legal Aid Right to Speedy Trial Right to Speedy Trial Right against Solitary Confinement Right against Handcuffing Communication with family, friends & lawyers Right to expression Production of the Accused Production of the

Accused Classification of Prisoners in Jails Prison Facilities

LANDMARK JUDGEMENTS

Prem Shanker Shukla v. Delhi Administration

the petitioner was an under-trial prisoner in Tihar jail. He was required to be taken from jail to magistrate court and back periodically in connection with certain cases pending against him. The trial court has directed the concerned officer that while escorting him to the court and back handcuffing should not be done unless it was so warranted. But handcuffing was forced on him by the escorts. He therefore sent a telegram to one of the judges of Supreme Court on the basis of which the present habeas corpus petition has been admitted by the court.To handcuff is to hoop harshly and to punish humiliatingly. The minimum freedom of movement, under which a detainee is entitled to under Art.19, cannot be cut down by the application of handcuffs. Handcuffs must be the last refuge as there are other ways for ensuring security.

Supreme Court Directives The minimum freedom of movement, under which a

detainee is entitled to under Art.19, cannot be cut down by the application of handcuffs.

Handcuffs must be the last refuge as there are other ways for ensuring security.

There must be material and sufficiently stringent grounds to satisfy a reasonable mind that there is clear and present danger of escape of the prisoner who is being transported by breaking out of police control.

Even when in extreme circumstances handcuffs have been put on the prisoner, the escorting authority must record the reasons for doing so in the Daily Diary Report. They must also be shown to the court.

Sunil Batra v. Delhi Administration

In the case the petitioner, a convict under a death sentence, challenged his punishment of solitary confinement as provided under Section 30(2) of the Prisons Act 1894. The petitioner contended that Section 56 of the Prisons Act, which confers arbitrary powers on the Superintendent to confine a prisoner in irons, violates Articles 14 and 21 of the Constitution.

Conclusion U.S. Supreme Court in Manna v. People of Illinois once

said that life is not merely animal existence. The souls behind the bars cannot be denied the same. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that Right. A prisoner, be he a convict or under-trial or a detenu, does not cease to be a human being. They also have all the rights which a free man has but under some restrictions. Just being in prison doesn’t deprive them from their fundamental rights. Even when lodged in the jail, he continues to enjoy all his Fundamental Rights. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.