[This Article has been authored by Sandhyashree Karanth, a Third Year B.A.LL.B (Hons.) Student at RV University.]

Introduction

The Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter “BNSS”), which replaced the Code of Criminal Procedure (hereinafter “CrPC”), aims to bring India’s criminal process up to date. However, certain provisions embedded within it compromise constitutional values. One such provision is Section 43(3), which authorizes the use of handcuffs by police officers at the time of arrest, based on the nature of the offence and the profile of the accused.

Before Section 43(3) of the BNSS came into effect there was no statutory provision in the CrPC expressly permitting handcuffing; instead, it’s use was governed entirely by judicial guidelines.  The BNSS makes handcuffing a rule instead of an exception. By strengthening police powers, the BNSS potentially weakens protections for the accused, creating tension with established rights under Article 21 and judicial precedents.

Section 43(3) BNSS introduces discretionary powers for the police to use handcuffs during arrest and production before the Magistrate upon arrest, keeping in mind the ‘nature and gravity of the offence’ if the following conditions are met:

a. where the offender is a habitual, repeat offender or;

b. the person has escaped from custody or has committed offences including organized crime, terrorist acts, drug related crime, sexual offences, murder, acid attack, human trafficking, offences against the State, illegal possession of arms and ammunition amongst others. The BNSS awards statutory power to handcuffing. But Section 43(3) of the BNSS falls short of established constitutional standards safeguarding a person’s right to dignity under Article 21 and equality under Article 14. The Indian Supreme Court has always been applauded for its efforts at expressing international human rights norms with constitutional provisions through expansive interpretation and invocation of existing fundamental rights in this context. It should be noted that the CrPC had been amended following the Supreme Court’s ruling in D.K. Basu v. State of West Bengal to further empower protections of persons under arrest. On the other hand, the BNSS reverses the progress by authorizing restrictive practices such as handcuffing under the statute, deviating from the progressive jurisprudence evolved during the passage of time.

Handcuffs and other metal fetters employed to restrain arrestees as well as prisoners have been held prima facie unconstitutional based on their arbitrariness and demeaning effect on human dignity. Being aware of such implications, the Supreme Court, in Sunil Batra v. Delhi Administration and Prem Shankar Shukla v. Delhi Administration, established an exceedingly high standard for the exercise of handcuffing powers, including at the time of arrest. Employment of such measures is required to satisfy the following requisites:

a. the prisoner should show a genuine propensity for violence;

b. handcuffs should be used only for a temporary period of time;

c. the reasons for handcuffing must be noted in a diary and conveyed both to the victim and the arrestee; and

d. the use of handcuffs should be subject to quasi-judicial control, with any prolonged usage requiring the endorsement of a judge.

Significantly, the Court in both cases went on to declare that risk of flight in itself is not a basis for handcuffing. Instead, the State and the police must attempt to use less restrictive alternatives initially to avoid flight  and resorting to handcuffs when all else fails.

Anchored on this principle, the Court in Citizens for Democracy v. State of Assam imposed the responsibility on police and prison authorities to make an individualized test as a requirement for handcuffing. Nevertheless, Section 43(3) of the BNSS allows the police to utilize handcuffs for a broad spectrum of offences without the inclusion of the constitutional mandate of proving a credible propensity for violence on escape.

Section 43(3) BNSS: Expanding Police Power Through Handcuffing

Section 43(3) does not leave any conditions for ensuring handcuffing passes the level of a genuine tendency towards violence as the constitution dictates. The sole limitation on such power is found in Section 46 of the BNSS, which, by paraphrasing Section 49 of the CrPC, states that an individual in custody shall not be subjected to restraint more than needed. Nevertheless, this discretionary power has serious constitutional and human rights implications. Indian jurisprudence, more specifically by way of Supreme Court judgments in Prem Shankar Shukla v. Delhi Administration and Sunil Batra v. Delhi Administration, has consistently held the view that handcuffing an accused individual is a serious intrusion of personal dignity and freedom. Handcuffing should not be a routine or automatic practice; it should be for reasons of specific necessity, and should be subject to prior sanction of the judiciary or judicial scrutiny at the earliest. The provision, as it stands, grants broad and general discretion to the police, posing a high potential for abuse, arbitrary use, and humiliation of those enjoying the presumption of innocence under the law. Handcuffing, particularly in public, is often humiliating and may affect one’s dignity and self-respect.

Moreover, the words of Section 43(3) are couched in broad terms. First, the section mandates police officers to consider the “nature and gravity of the offence”. The phrase is vague as one does not understand if it is used to refer to the type of offence only (for example, to allow handcuffing for murder but not for theft) or whether it necessitates consideration of case-specific factors like manner of commission (for example, brutality). Another significant issue is because of its vagueness regarding the use of the term “habitual, repeat offender”. The law does not clarify whether they are to be used interchangeably or if they are legal terms describing different kinds of offenders. In current law practice, “habitual offender” is a specific category under many state statutes. Conversely, the label “repeat offender” is much less specific and might include any person who has committed more than one offence, irrespective of the type, timing, or legal result. Without definition, this terminology threatens to give police broad power to determine who should be subject to handcuffing under this clause. This can result in excessive surveillance, preventive policing, and profiling on the basis of previous arrest or widespread suspicion rather than established guilt. Allowing handcuffing on the basis of the characterization as “habitual offender” effectively resuscitates and publicly announces a presumption of guilt on the basis of previous behaviour. It marks the accused as guilty or dangerous before they have a chance to produce any evidence, thus trespassing on the presumption of innocence which forms the pillar of criminal jurisprudence.

A Return to Colonial Logic: Why Routine Handcuffing Betrays Transformative Constitutionalism

Michel Foucault, in his work Discipline and Punish, describes a watershed moment in the history of punishment. The former punished the body through publicity and torture, whereas the latter punished by controlling the soul with discipline, surveillance, and mind control instead of overt physical brutality. The historical transformation of punishment from the body to the soul from external bodily suffering to internal reform. Nonetheless, by making handcuffing a procedural standard, the BNSS turns this development around in large measure: it restores control of the body, identifying people physically prior to adjudication. Handcuffing serves as a spectacle of the contemporary era, stigmatizing the accused by way of physical restraint and thereby obliterating the distinction between accusation and guilt. The body once more serves as the first target of punishment, with serious constitutional and psychological implications.

Further, this classification-oriented method of approach creates ambiguity in regards to Article 14. Article 14 allows classification but requires that the distinctions be founded on intelligible differentia that has a rational relation to the legislative object. In the present case, “habitual” and “repeat” offenders are collectively categorized without defined legal thresholds or definitions, thereby allowing differential treatment between accused persons that can be purely arbitrary. The unbridled discretion given to police officers also brings about a significant chance of arbitrary state action, which contravenes Article 14. In a criminal justice system in which already marginalized groups such as Dalits, Adivasis, Muslims, and the urban poor, are subjected to disproportionate policing, authorising the police to handcuff on the basis of previous records extends the scope for profiling, targeting, and exclusion.

In addition, it contravenes the promise of dignity under Article 21, as consistently reiterated by the Supreme Court, which has ruled that handcuffing without explicit, judicial approval is a serious violation of individual liberty. Handcuffing is not a neutral administrative act; it is an act redolent with humiliation, degradation, and assumption of dangerousness. By establishing a blanket presumption permitting handcuffing of “habitual offenders”, BNSS inappropriately displaces the burden on the state to show justification for restraint and thus undermines protection of bodily integrity.

Effectively, the trial commences on the premise of guilt, in gross contravention of constitutional principles. The institutionalization of routine handcuffing under the BNSS is not a mere technical legal retrogression; it is a constitutional betrayal of India’s transformative constitutional experiment. Transformative constitutionalism, as the Supreme Court has conceptualized in judgments such as Navtej Singh Johar v. Union of India, sees the Constitution as a living instrument with the mission of bringing about social transformation, upholding human dignity, addressing historical inequities, and establishing an egalitarian order.

It calls for a transition from a culture of coercion to a culture of rights. The BNSS provision, however, brings back colonial policing where the citizen was controlled by fear, domination, and suspicion. To sum up, the institution of handcuffing as a statutory norm under the BNSS is a deep constitutional flaw. It jeopardizes the accused’s rights, undermines the principle of presumption of innocence, legitimates degrading treatment, and erodes the revolutionary vision of the Indian Constitution.