JUDGMENT

KRISHNA IYER, J. (On behalf of himself and O. Chinnappa Reddy, J.) :— "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 petitioners 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 Honble Mr. Justice Yogeshwar Dayal of the Delhi High Court. After hearing arguments, the Honble 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