Judgment

KULDIP SINGH, J.

(1) "WE clearly declare - and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and the jailwarder - that the rule, regarding a prisoner in transit between prison house and court house, is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraints with irons, to be justified before or after. We mandate the judicial officer before whom the prisoner is produced to interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other irons treatment and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment." Ordained this court - speaking through V.R. Krishna lyer, J.

(2) IN Sunil Batra v. Delhi Admn. 2 this court pronounced that undertrials shall be deemed to be in custody, but not undergoing punitive imprisonment. Fetters, especially bar fetters, shall be shunned as violative of human dignity, both within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in small category of cases where an undertrial has a credible tendency for violence and escape, a humanely graduated degree of iron restraint is permissible if - other disciplinary alternatives are unworkable. The burden of proof of the ground is on the custodian. And if he fails, he will be liable in law. Reckless handcuffing and chaining in public degrades and puts to shame finer sensibilities and is a slur on our culture.

(3) THE law declared by this court in Shukla case 1 and Batra case 2 is a mandate under Articles 141 and 144 of the Constitution of India and all concerned are bound to obey the same. We are constrained to say that the guidelines laid down by this court and the directions issued repeatedly regarding handcuffing of undertrials and convicts are not being followed by the police, jail authorities and even by the subordinate judiciary. We make it clear that the law laid down by this court in the abovesaid two judgments and the directions issued by us are binding on all concerned and any violation or circumvention shall attract the provisions of the Contempt of courts Act apart from other penal consequences under law.

(4) MR Kuldip Nayar, an eminent journalist - in his capacity as President of "Citizens for Democracy" - wrote a letter dated 22/12/1994 to one of us wherein he stated as under:

"A few days ago when I was in Guwahati I went to see a patient at the government hospital. To my horror, I found 7 TADA detenus put in one room, handcuffed to their bed. This was despite the fact that the room in which they were locked had bars and was locked. Outside a posse of policemen stood with guns on their shoulders. After talking to the detenus I found that they had to pay for the medicine from their own pocket. I fail to understand how the Assam government could do all this in spite of various court orders. I drew the attention of the State Chief Minister through a letter but got no reply. May I approach you to intervene."

(5) THIS court treated the letter as a petition under Article 32 of the Constitution of India and issued notice to the State of Assam, through its Chief secretary, Home secretary and secretary, Health.

(6) THE State of Assam has filed a counter by way of affidavit of Mr B.V.P. Rao, Home secretary of the government of Assam. The relevant part of the affidavit is reproduced hereunder:

"IT is necessary to state and bring to the notice of this Honble court that during the period 1991-94 there have been as many as fifty-one cases of escape and/or rescue of terrorists from police and judicial custody including thirteen terrorists who escaped and/or were rescued from different hospitals of the