The untold story of handcuffing in India
Understanding encounter killings and how a pair of handcuffs might reduce their number
A quite commonly used phrase made popular via memes in India in 2019–20 was “Aap Chronology Samjhiye” (Please understand the chronology). This article, however, won’t be following a chronological order at all stages so kindly bear with me.
The seeds of this article were sown during the Hyderabad rape case encounter which took place on Dec 6, 2019. I started writing this article in the backdrop of the Jayaraj and Fenix case. As luck would have it, the article shall come out a few days post the Vikas Dubey alleged encounter case. All three incidents are cases of custodial deaths. For those unaware of the law, two types of custody exist in India:
- Police Custody: Police has the physical custody of the accused where the accused is kept in a police lockup at a police station (which is what happened in the Jayaraj and Fenix case). It starts when a person is taken into custody by the police and his rights are read out to him along with the explanation for reasons for custody.
- Judicial Custody: It starts when a judge orders for judicial custody. Under judicial custody, interrogation is not permitted except in exceptional circumstances. The first thing that happens to a suspect on arrest is that he is taken into police custody, following which he is taken before a magistrate and he may either be remanded to judicial custody or be sent back into police custody. He may also gain temporary relief by posting bail.
Explaining the title
Having established this, let us straight away dive into the topic which is mentioned in the title. But first, let us have a look at a picture:
Look closely at this picture. Observe the hands of the police. The police are holding the hands (quite literally) of the accused Vikas Dubey — who is wanted in the killing of eight policemen. If a person were to use common sense, an alleged criminal this dangerous should be handcuffed, but he isn’t. Surely the police, who are already aware of his antics and his past, must have thought about handcuffing him.
Well, it turns out, they can’t.
I mean, they can, but the police would have to seek judicial consent in this regard. The police would have to establish that the accused has a likelihood or has a tendency of escaping from the police or is dangerous for the police. Only if the police proves these points in front of the court can the accused be handcuffed. Long story short, the burden of proof lies upon the police.
The Supreme Court of India has established this in the Citizens for Democracy vs State of Assam (1995) case. This judgement essentially passed a sweeping order stating no prisoners under trial can be handcuffed unless judicial consent has been granted in this regard. The judgement, invoking Article 14, 19 and 21 of the Indian Constitution, declared:
We hereby lay down a rule that handcuffs or other fetters shall not be forced on a prisoner, whether he is in judicial custody or non-judicial (police) custody.
This judgement reiterated an earlier order by Judge Krishna Iyer in Prem Shankar Shukla vs Delhi Administration in 1980. This judgement referred to the same Articles mentioned above as well as the Universal Declaration on Human Rights, which India had ratified.
The Road to Hell is Paved with Good Intentions
Art. 14 of the Indian Constitution states that all citizens are equal in the eyes of the law and that all citizens are guaranteed equal protection of laws within the territory of India.
Art. 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except according to the procedure established by the law. When the two judgements invoked these Articles, they essentially looked at the liberties and protections guaranteed by the Constitution to the prisoner.
However, as the Hyderabad and Vikas Dubey cases show, the police have been using this rule to encounter the accused. If the police feel the need or receive orders from their bosses to encounter an accused, it is extremely likely they will never handcuff the accused. Moreover the police are obeying the orders of the Supreme Court. Once the accused is shot dead, the police can declare that the accused was fleeing or tried to snatch a police weapon and therefore they fired in self-defence.
Only in India, hardened criminals — terrorists, rapists, murderers — are led by hand because of the handcuffs ban on the pretext of upholding their human rights. Unfortunately, it is the same order which can result in their encounter.
Connecting these three cases
Encounters fall under the large bracket of police brutality. Intimidation, interrogation, torture, encounters and any other third-degree means all constitute police brutality. The nation collectively gasped and expressed its horror when the Jayaraj and Fenix story broke out. Eminent personalities from all walks of life condemned the incident.
The lackadaisical attitude of every stakeholder involved in the case — police, judiciary, medical examiner — shows the root cause of the problem. The police felt their authority was challenged by the father and son duo.
This sense of authority stems from such encounters. When the police see the public celebrate “justice” being delivered by extra-judicial means like those in the Hyderabad and Vikas Dubey cases, it gives them a feeling of authority. When this authority is challenged by persons who don’t have any political clout or persons who they deem to be inferior, citizens like Jayaraj and Fenix suffer.
The public in general needs to understand that the crime of the accused cannot justify police brutality. They need to understand that the actions of the police in all three cases were wrong. The power to punish criminals should be vested on the judiciary and not on the police machinery. If any act of police brutality is celebrated, it will always result in the weaker and marginalized sections of society who will suffer.
Final Thoughts
India is a democratic Republic. It was founded on the ideas of the modern state. One of the principles of the modern state was given by Jean Bodin in the 16th century and later elaborated by Max Weber in the 20th century — the State’s monopoly on violence via legitimate means. It essentially means only the State(Govt., Police, Judiciary) and not ordinary citizens can use violence but its use must be legitimate.
Encounter killings and Police Brutality in general, go against this fundamental principle. While handcuffs may not necessarily prevent all encounter killings, they do take away the excuse that the police usually present after an encounter — accused tried to flee or snatch a weapon. It is about time that these judgements are revisited because it is being misused by the authorities severely.
Disclaimer: The opinions expressed in this article are those of the author. They do not necessarily reflect the opinions or views of the National Youth Express or its members.
