- (1.) "When they arrested my neighbour I did not protest. When they arrested the men and women in the opposite house I did not protest. And when they finally came for me, there was nobody left to protest". (1) 1 . Pastor Niemoller. This grim scenario burns into our judicial consciousness the moral emerging from the case being that if today freedom of one forlorn 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. This 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 Batra v. Delhi Admn. handcuffs are forced on me and others. Admit writ of Habeas Corpus. Those who are injured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human dignity, which forms part of our constitutional culture, and the positive provisions of Articles 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 security. 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. Indeed, 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 makes mention of a petition for like relief in the High Court :- The petition was listed before Hon'ble Mr. Justice Yogeshwar Dayal of the Delhi High Court. After hearing arguments, the Hon'ble Court was pleased to dismiss the petition filed by the petitioner Shri. P. S. Shukla asking for directions for not 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 the directions were needed. However it came to my notice that the requirements of Punjab Police Rules contained in Volume II Chapter 25 Rules 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 v. State, Crl. Miscellaneous Main No. 430 of 1978, decided on 6-4-1979 wherein its has been observed that a better class under-trial 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 resorted 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 followed in accordance with the rules mentioned above. In plain language, it means that ordinary Indian under-trials shall be routinely handcuffed during transit between jail and court and the better class prisoner shall be so confined only if reasonably apprehended to be violent or rescued.
(2.) The facts are largely beyond dispute and need brief narration so that the law may be discussed and declared. The basic assumption we humanistically make is that even a prisoner is a person, not an animal that an under-trial prisoner a fortiori, so. Our nation's founding document admits of no exception on this subject as Sunil Batra's case, (1978) 4 SCC 494 : (AIR 1978 SC 1675) has clearly stated. Based on this thesis all measures authorised by the law must be taken by the court to keep the stream of prison justice unsullied
(3.) A condensed statement of the facts may help concretise the legal issue argued before us. A prisoner sent a telegram to a Judge of this court (one of us) complaining of forced handcuffs on him and other prisoners, implicitly protesting against the humiliation and torture of being held in irons in public, back and forth, when, as under-trials kept 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 led to 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 of law - rather if it is credibly alleged so - this court must fling aside forms of procedure and defend the complaining individuals's personal liberty under Articles 14, 19 and 21 after due investigation. Access to human justice is the essence of Article 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 conflict, warrants fuller exploration than this isolated case necessitates and counsel on both sides (Dr. Chitale as amicus curiae, aided ably by Shri Mudgal, and Shri Satchthey for the State) have rendered brief oral assistance and presented written submissions on a wider basis. After all, even while discussing the relevant statutory provisions and constitutional requirements, court and counsel must never forget the core principle found in Article 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 Article 10 of the International Covenant on Civil and Political Rights : Article 10 : 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 overflow 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 mariner's compass : "The history of liberty has largely been the history of observance of procedural safeguards." And, in Maneka Gandhi's case (1978) 2 SCR 621 at p. 647 : (AIR 1978 SC 597) it has been stated : "the ambit of personal liberty protected by Article 21 is wide and 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.;