Prem Shankar Shukla v Delhi Administration (1980)

The handcuffing case. It is the shortest route to two propositions that are asked about constantly: that Article 21 protects a person in custody against humiliation as well as against violence, and that the Court will treat a telegram from a prisoner as a petition.

It is also the case in which the Court set out, side by side, the two international provisions that govern the treatment of persons deprived of liberty - Article 5 of the Declaration and Article 10 of the Covenant. Learn them as a pair; they say different things and both are needed.

The Court took cognizance of the matter upon a telegram from a prisoner, complaining that he and other prisoners were being forcibly handcuffed and protesting at the humiliation and torture of being held in irons in public. They were undertrials in Tihar Jail, taken to the Delhi courts for trial.

Note what the prisoner was and was not complaining about. He was not complaining of a beating. He was complaining of being paraded in irons - that is, of humiliation. The Court's willingness to treat that as a violation of a fundamental right is the point of the case.

In what circumstances, if any, may a person remanded to judicial custody be handcuffed while being escorted to and from court?

Handcuffing without adequate reasons recorded in writing violates Article 21. The Court issued guidelines governing the handcuffing of persons remanded to judicial custody.

The reasoning is captured in two sentences worth reproducing.

"Handcuffing of undertrials without adequate reasons in writing has also been found again Article 21 of Constitution of India." (The word again stands for against in the reproduction.)

"Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary, Absent fair procedure and objective monitoring, to inflict" irons "is to resort to zoological strategies repugnant to Article 21 of Constitution of India."

The Court held that in interpreting the constitutional and statutory provisions it must not forget the core principle in Article 5 of the Universal Declaration - no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment - and Article 10 of the Covenant - all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

The two provisions do different jobs and an answer should say so:

• Article 5 of the Declaration is a prohibition. It tells the State what it may not do to anybody.
• Article 10 of the Covenant is a positive standard for a defined class. It applies specifically to persons deprived of their liberty, and it requires not merely the absence of ill-treatment but affirmative treatment with humanity and with respect for inherent dignity.

That is why the Court cited both. Handcuffing an undertrial in public may not reach the threshold of cruel or inhuman treatment under Article 5 in every case; it plainly falls short of the positive standard in Article 10 unless it is justified.

The argument is one of presumption and burden. Handcuffs are prima facie inhuman. That does not mean they can never be used; it means the burden is on the escorting authority, not the prisoner. The authority must have reasons - a genuine and material apprehension of escape or violence, judged on the individual before it - and it must record them in writing, so that the decision can be tested afterwards.

The two safeguards the Court insisted on are worth naming in an answer because they are the operative part of the ruling: fair procedure and objective monitoring. Routine handcuffing fails both. It is not a decision at all, so there is no procedure; and because no reasons are recorded, there is nothing for a court to monitor.

The underlying constitutional idea is the one from Francis Coralie Mullin: custody takes what it must take and no more. It takes freedom of movement. It does not take the person's standing as a human being in public, and irons take exactly that.