Handcuffing and human rights

This newspaper on November 15 reported very poignantly that "inhumane action by police triggered loud criticisms as handcuffing a physically challenged person is a clear violation of his fundamental rights guaranteed by the constitution." Understandably, the issue needs to be understood in proper perspective. 

Before one ventures to find out the legality and appropriateness of handcuffing and roping prisoners, meaning more specifically of its use, abuse and misuse, one needs to acknowledge that our regulatory establishment, for reasons all too known, has not been a faithful respecter of human rights and dignity. Sadly, while the Constitution and the higher judiciary has been admirably lofty and proactive in noticing deprivation of human rights, the same concern has not been reflected in the manuals, rules and regulations related to law enforcement. 

 Old rules and circulars and instructions issued under Prisons Act and Police regulations are read incongruously with the Constitution and the interpretation put upon it by the court. The need, quite clearly, is to convert the rulings of the court bearing on such administrations into rules and instructions forthwith so that violations of the prisoner's freedom can be avoided. After all, human rights are as much cherished by the state as the citizens.

On the issue of freedom belonging to the prisoner, it needs to be remembered that no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of the court. Further, it has to be impressed that afflictions are infractions of a prisoner's liberty.

Pushing the prisoner into a solitary cell, denial of a necessary amenity and sometimes transfer to a distant prison where visits by relations may be snapped are, in fact, punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be legally sustained. There must be a corrective legal procedure, fair and reasonable and effective. It is only fair to remember that infraction as above will be arbitrary if it is irremediable and un-appealable and also unfair for violating natural justice.

One has to bear in mind the aspect of constitutionality of sending under-trials to jails. The under-trials have to face their case in court and are presumably innocent until convicted. Often the intermediate stay in jail pending trial turns out to be a custodial perversity, which violates the test of fairness as constitutionally assured.

The prevalent wisdom would like to place all the blame on the colonial rulers and the so-called archaic rules or regulations while justifying the excesses of irate and irascible regulatory officials that impinge on human dignity. However, a close examination of some of those old regulations will bring home the sensitivity and circumspection of the British Colonial rulers.

Regulation 330 of Police Regulations, Bengal 1943 says ". . . the use of handcuffs or rope is often an unnecessary dignity. In no case shall women be handcuffed, nor shall restraint be used on those who either by age or infirmity are easily and securely kept in custody." This regulation, without doubt, displays admirable caution and is worth emulating. So is the case with Regulation 260 that says: "Investigation officers should carefully abstain from causing unnecessary harassment either to the parties or to the people generally."

Merely because a person is charged with a grave offence cannot automatically lead to his being handcuffed. Tangible testimony, documentary or other disparate behaviour, geared to making good his escape alone 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 vehicles.

For handcuffing, the nature of the accusation is not the criterion. In fact, the clear and present danger of escape or breaking out of police control is the determinant. For determining that there must be clear material record, not glib assumption, of reasons and wherever applicable judicial oversight and summary hearing and direction by the court.

The demeaning discomfiture of the person in custody might appear to be a gleeful spectacle and some may derive vicarious satisfaction in that, but surely the same does not behoove a democratic society. The reasons are obvious - whether inside prison or outside, a person shall not be deprived of his guaranteed freedom. It should be understood that a prisoner wears the armour of basic freedom even behind bars and that, on breach thereof by lawless officials, the law can respond to the distress of the deprived.

The writer is a former IGP, and contributor to The Daily Star.