Author: Vidhyanand Roy
Student at: Sri Krishna Jubilee Law College, Muzaffarpur, Bihar
INTRODUCTION
On 1st July, 2024, the new felonious laws- videlicet, the Bharatiya Nyaya Sanhita, 2023(BNS), Bharatiya Nagarik Suraksha Sanhita, 2023(BNSS), and Bharatiya Sakshya Adhiniyam,2023 (BSA), came into effect, replacing the Indian Penal Code,1860, the Code of Criminal Procedure, 1973(Cr.PC), and the substantiation Act, 1872, independently. These new laws were introduced with the end to replace outdated colonizer period legislation, reform, con-temporize and streamline the felonious justice system, making it more indigenous.
Still indeed before these Acts were executed their indigenous validity was challenged before the Hon’ble Supreme Court and colourful High Courts. The challenges contended that certain virtues of these Acts violate the abeceedarian rights of citizens and are inconsistent with established legal principles in the country, rendering them unconstitutional.
BNSS, replacing the CrPC, has been enforced with the thing of enhancing the effectiveness and translucency of law enforcement and expediting justice delivery to the public interest. It seeks to address procedural detainment’s, minimize regulatory obstacles and introduce enhanced digital styles for probing and executing crimes. In achieving these objects, BNSS has neglected certain virtues from the CrPC, introduced new bones and retained numerous being vittles from the CrPC with variations.
Nonetheless, the emendations to being vittles in the CrPC and certain new vittles introduced in BNSS have sparked valid enterprises. These enterprises have been raised not only by legal professionals but also by academics, civil society associations, political, activists and others. They argue that these emendations potentially grant inordinate powers to law enforcement and investigative agencies which could infringe upon the civil liberties and popular freedoms of citizens, contrary to established legal precedents set by the Hon’ble Supreme Court and colourful High Courts.
POLICE AUTHORITY TO USE HANDCUFFS UNDER BNSS
Chapter V of both the BNSS and CrPC addresses vittles related to the arrest of individuals. This chapter outlines procedures for arrests the rights of arrested persons, seizure of munitions, discharge procedures and more. While Chapter V of BNSS largely retains the vittles set up in Chapter V of CrPC, certain sections have been supplemented with fresh subsections in both the being CrPC vittles and in BNSS.
The procedure for arresting an indicated person by a police officer or authorized person must physically touch or confine the body of the person to be arrested. However. The police are authorized to use necessary means to prompt the arrest, except in cases where the indicted is charged with a capital offence or life imprisonment, if the individual resists arrest or attempts to shirk it. A womanish police officer may only arrest another woman, and under exceptional circumstances, a woman may be arrested between evening and daylight after carrying written authorization from the jurisdictional Magistrate.
Section 43 of BNSS corresponds to Section 46 of the CrPC, with the addition of one subsection in BNSS. This recently added subsection(3) empowers police officers to use bind. It grants officers unrestricted authority to use bind when arresting or presenting individualities to court who are habitual malefactors, escapees, or involved in systematized crime, terrorism, medicine crimes, illegal possession of munitions, murder, rape, and attacks counterfeiting mortal trafficking sexual offence against children or offence against the state.
Unlike the CrPC which lacks vittles for handcuffing individualities during arrest or court appearances some state incarcerations Acts and Jail primers entitlement police officers the authority to handcuff convicts as a corrective measure for violating captivity rules.
With the perpetration of BNSS, section 43 now fairly empowers police officers to handcuff indicted individualities during arrest or court appearances, a provision absent in the CrPC. The framers of BNSS have not handed compelling reasons for granting police officers the authority to use bind in arresting indicted persons or presenting them to court under the specified orders of crimes outlined in subsection(3). This statutory power to handcuff individualities, traditionally employed as a last resort for security and restraint may now come standard practice rather than an exception among police officers making apprehensions, without the demand to justify their conduct to the jurisdictional Magistrate.
The use of bind violates abecedarian rights guaranteed under Articles 14,19 and 21 of the constitution. Pinioning a person is a demeaning experience, particularly when conducted in public. It diminishes the existent image, quality and tone- respect, negative to the right to equivalency defended under Article 14, mortal quality essential in the right to life and particular liberty under Article 21 encompasses the right to freedom of movement and protection of movement and protection against arbitrary detention.
In a serious of judgement, the Hon’ble Supreme Court has denounced pinioning as in human, unreasonable arbitrary and a violation of the abecedarian rights elevated in Article 21 of the Constitution, bind circumscribe movement and violate the freedom of movement guaranteed under Article 19(d) of the Constitution. In cases of unlawful handcuffing by police officers, the courts have awarded compensation for violating the abecedarian rights to equivalency, freedom of movement and life and particular liberty.
CASE LAWS
In the case of Sunil Batra v. Delhi Administration(1978) 4 SCC 494, the Apex court condemned the use of bind and leg irons as demeaning and contrary to mortal quality, both outside and outdoors of incarcerations. Indiscriminate use of bind during the transport of indicted persons to and from court and the practice of applying conditions on captivity is illegal.
In Prem Shukla v. Delhi Administration(1980) 3 SCC 526, the apex court blamed routine, public and unjustified handcuffing of captures as innately inhuman and unreasonable and commanded that handcuffing should only be employed in exceptional circumstances, with simultaneous reasons recorded and presented to the presiding judge for blessing.
In Aeltemesh Rein v. Union of India(1998) 4 SCC 54, the Apex court directed the Union of India to formulate rules and guidelines governing the circumstances under which handcuffing of indicted persons is admissible, in compilance with the judgement in Prem Shankar Shukla
In Citizens for Democracy v. State of Assam(1995) 3 SCC 743, the apex court established guidelines for the use of bind and directed all police and captivity authorities to rigorously cleave to them, bind or conditions are not to be applied to captures, whether condemned or undertrial during their time in captivity or during transport to or from court, unless there’s a well innovated belief that the internee to or from court, unless there’s a well innovated belief that the internee poses a significant flight threat or trouble to public policy safety and previous authotization has been attained from the Justice.
The Karnataka High Court, in Suprit Ishwar Divate v. State of Karnataka, 2022 SCC Online kar 1133, awarded compensation to the supplicant for unlawful handcuffing by the replier, in violation of the supreme court’s directives., also the Gauhati High Court, in Sabah Al Zarid v. State of Assam, 2023 SCC online Gau 4244, awarded compensation to the supplicant for unlawful handcuffing by the replied, negative to apex court rulings.
In in Prem Shankar Shukla’s case (Supra), Justice V.R. Krishna Iyer, speaking for himself and Justice Chinappa Reddy, condemned routine handcuffing as a relic of Homeric oppression that debases mortal quality, indeed extending to cases in sanitarium beds, pinioning should be avoided as much as possible, with indispensable styles for secure guardianship employed rather. Indeed in extreme cases challenging handcuffing, the convoying authority must give simultaneous defense and gain judicial blessing.
The arbitrary use of bind violates the abecedarian rights of individualities and undermines the principles of liberty and freedom. It reflects a callous casualness for mortal quality and the rights guaranteed by the constitution.
CONCLUSION
From the above discussion, it can be said that the new BNSS which provided the authority to the police for handcuffing is a violation of Article 21 which describes right to life and personal liberty handcuffing should be avoided. The use of handcuffs as a means of restraint violates the fundamental right, the arbitrary and unreasonable application of handcuffs by police officers and judicial systems constitutes a blatant disregard for human rights and dignity.
FAQS
Define arrest?
It is an act of taking an individual into custody or control or legal protection because he is suspected of an offence.
Under which chapter of BNSS Arrest has been given?
Chapter V of BNSS deals with Arrest which is same chapter for CrPC
Does handcuffing violates Article 21 of the India Constituion?
Yes it violates Article 21 the use of handcuffs is unreasonable by police officers and judicial systems constitutes a blatant disregard for human rights and dignity.
REFERENCES
https://www.livelaw.in
https://www.scconline.com
