October 4, 2022

Bar fetters: The dilemma of fundamental rights and safekeeping of the prisoner

The law is not abracadabra but at once pragmatic and astute and does not surrender its power before scary exaggerations of security by prison bosses. Alternatives to 'solitary' and 'irons' are available to prison technology, give the will, except where indifference, incompetence and unimaginativeness hold prison authorities prisoner.

Iron on wrists, iron on ankles, iron in between, welded strongly that all oppressive weight hampers movement, hinders sleep and hurts all the time so much that life is poor purchase. Ordinarily, the curtain falls, the groan or moan is hardly heard, the world falls to sleep, the Constitution and the Court sublimely uphold human rights but the cells weep for justice unheard.

The provision for bar fetter

S. 56 of the prisoner Act, 1894, provides bar fettering to a prisoner, in case it is required for the safe keeping of the prisoners:

56. Whenever the Superintendent considers it necessary (with reference either to the State of the prison of the character of the prisoners) for the safe custody of any prisoners that they should be confined in irons, he may, subject to such rules and illustrations as may be laid down by the Inspector General with the sanction of the Local Government, so confine them.’

The great problems of law are the grave crises of life and both can be solved not by the literal instruction of printed enactments, but by the interpretative sensitization of the heart to the still, sad music of humanity. The humane thread of jail jurisprudence that runs right through is that no prison authority enjoys amnesty for unconstitutionality, and forced farewell to fundamental rights is an institutional outrage in our system where stone walls and iron bars shall bow before the rule of law Since life and liberty are at stake the gerontocracy of the Jail Manual shall have to come to working terms with the paramountcy of fundamental rights.

The issue of safe security

A synthetic grasp of the claims of custodial security and prison humanity is essential to solve the dilemma. If we are soft on security, escapes will escalate: so be stern, ‘red in tooth and claw’ is the submission. Security first and security last, is an argument with a familiar and fearful ring with Dwyerlist memories and recent happenings. To ‘cry wolf’ as a cover for official violence upon helpless prisoners is a cowardly act. Chaining all prisoners, amputating many, caging some, can all be fobbed off, if every undertrial or convict were painted as a potentially dangerous maniac. Assuming a few are likely to escape, would you shoot a hundred prisoners or whip everyone every day or fetter all suspects to prevent one jumping-jail?

These wild apprehensions have no value in our human order, if Articles 14, 19 and 21 are the prime actors to stampede courts into vesting unlimited power in risky hands with no convincing mechanism for prompt, impartial check. A sober balance, rights that alone will fill the constitutional bill.

The grave danger of over-emphasizing order, discipline and security within the prison, while interpreting S. 56, is that it lands itself unawares to a pre-conceived, one sided meaning.

“The unconscious or half-conscious wresting of fact and word and idea to suit a pre-conceived notion or the doctrine or principle of one’s preference is recognised by Indian logicians as one of the most fruitful sources of fallacy; and it is perhaps the one which it is most difficult for even the most conscientious thinker to avoid. For the human reason is incapable of always playing the detective upon itself in this respect; it is its very nature to seize upon some partial conclusion, idea, principle, become its partisan and make it the key to all truth, and it has an infinite faculty of doubting upon itself so as to avoid detecting in its operations this necessary and cherished weakness.”[1]

The duty of the judges in solving such dilemma

Judges must warn themselves against this possibility because the nation’s confidence in the exercise of discretionary power affecting life and liberty has been rudely shaken especially when the Court trustingly left it to the Executive.

A prison is a sound-proof planet, walled from view and visits regulated, and so, rights of prisoners are hardly visible, checking is more difficult and the official position of the repository of power inspires little credibility where the victims can be political protesters, unpopular figures, minority champions or artless folk who might fail to propitiate arrogant power of minor minions.

The purpose of confinements in irons

Confinement in irons is permitted for the safe custody of prisoners. Therefore, the sine qua non is the presence of safety to the point of necessity compelling fetters. Safe custody is imperilled only where escape probability exists. Such escape becomes a clear and present danger only where the prisoner has by his precedents shown an imminent attempt to escape. Mere violence by a prisoner of bad behaviour or other misconduct which has no reference to safe custody has no relevance to S. 56.

Supposing a prisoner was short-tempered, vulgar or even homosexual, his safe custody within the prison is not in jeopardy. His misbehaviour unrelated to security is the only issue then involved and correctional therapy is the prescription. S. 56 is not attracted so long as the safe custody of that prisoner is not shaky. The focus is on his escape and, maybe, on overt and covert attempts in that behalf. Other disorder or vice may deserve disciplinary attention but S.56 is not a nostrum for all administrative aches within jails.

The character of the prisoner, not generally, but with specific reference to safe custody, must be studied by the Superintendent and if he reaches the conclusion responsibly that there is necessity to confine the man in irons to prevent escape from custody, he may exercise his powers under S. 56.

To consider a step as necessary the authority must exercise intelligent care, bestow serious consideration and conclude that the action is not only desirable or advisable but necessary and unavoidable.

When a prison may be iron confined?

A lesser standard shows scant regard for the statutory imperative. S.56 empowers the Deputy Superintendent to put a prisoner in irons only in situations of urgent necessity followed by an immediate report to the Superintendent. The point that emerges is that only a finding of absolute necessity can justify the exercise of the ‘iron’ power by the Deputy Superintendent and the Superintendent must respect the spirit of S. 58 when he uses the power. This must be an objective finding, and must, therefore, be based on tangible matters which will be sufficient to satisfy a man acting with a sense of humane justice, properly instructed in the law and assessing the prognosis carefully.

Random decisions, freak impressions, mounting suspicions, subjective satisfaction and well-grounded allergy to a particular prisoner may be insufficient.

Every provision must be valid according to fundamental rights

We must remember that even though s. 56 is a pre-Constitution measure its application must be governed by the imperative of Articles 14, 19 and 21. Life and liberty age precious values. Arbitrary action which tortuously tears into the flesh of a living man is too serious to be reconciled with Articles 14 or 19 or even by way of abundant caution.

Whatever is arbitrary in executive action is pregnant with discrimination and violates Art. 14. Likewise, whatever decision is the product of insufficient reflection or inadequate material or unable to lead to the inherence of a clear and present danger, is unreasonable under Art. 19, especially when human freedom of helpless inmates behind prison walls is the crucial issue.

Article 21 must obey the prescriptions of natural justice (see Maneka Gandhi) as to, the quantum and quality of natural justice even in an emergency.

Reasonableness in this area also involves some review of the action of an executive officer so that the prisoner who suffers may be satisfied that a higher official has with detachment, satisfied himself about the necessity to better him. Such administrative fairness is far more productive of order in prison than the counterproductive alternative of requiring every security suspect to wear iron. Prison disorder is the dividend from such reckless ‘discipline’ and violent administrative culture, which myopic superintendents miss.

This constitutional perspective receives ideological reinforcement from the observations of Mr. Justice Douglas in Morrissey v. Brewer[2]:

“The rule of law is important in the stability of society. Arbitrary actions in the revocation of paroles can only impede and impair the rehabilitative aspects of modern penology. “Notice and opportunity for hearing appropriate to the nature of the case”, are the rudiments of due process which restore faith that our society is run for the many, not the few, and that fair dealing rather than caprice will govern the affairs of men.”

Even prisoners who are ‘lifers’ shall not be retained in iron for more than three months except with the special sanction of the Inspector General (See S. 57). The rules also take a horrifying view of the trauma of fetters. The power to confine in iron can be constitutionalised only if it is hemmed in with severe restrictions. Woven around the discretionary power there must be protective web that balances security of the prison and the integrity of the person.

The duty of superintendent

It is true that a discretion has been vested by S. 56 in the Superintendent to require a prisoner to wear fetters. It is a narrow power in a situation of necessity. It has no be exercised with extreme restraint. The discretion has to be based on an objective assessment of facts and the facts themselves must have close relevance to safe custody. It is good to highlight the total assault on the human flesh, free movement and sense of dignity this, ‘iron’ command involves.

Such a power, except in cases of extreme urgency difficult to imagine in a grim prison setting where armed guards are obviously available at instant notice and watch towers vigilantly observe (save in case of sudden riot or mutiny extraordinarily), can be exercised only after giving notice and hearing and in an unbiased manner.

Reasons must be assigned for such harsh action as is contemplated and such reasons must be recorded in the history ticket of the prisoner as well as in the journal. Since the reasons are intended to enable the Petitioner to challenge, if aggrieved, the record must be in the language of the petitioner or of the region, and not in English as is being done now. There must be special reasons of an extraordinary or urgent character when fetters are fastened on an unconvicted prisoner. Those substantial reasons must be recorded and its copy furnished to the prisoner.

The constitutional survival of S. 56 depends on the formula of reasonableness. We cannot be swept off our constitutional feet by scary arguments of deadly prisoners and rioting gangs, especially when we find States in India which have abandoned the disciplinary barbarity of bar fetters (Tamil Nadu, Kerala et. al).

The fact that, even as a punishment, irons must be restricted in its use (see S. 46(7)) argues for prophylactic irons being for the shortest spell. At night, when the prisoner is in a cell there is no particular reason to apprehend or possibility of escape. So nocturnal hand-cuffs and chains are obnoxious and vindictive and anathema.

The infraction of the prisoner’s freedom by bar fetters is too serious to be viewed lightly and the basic features of ‘reasonableness’ must be built into the administrative process for constitutional survival. Objectivity is essential when the shackling is prima facie shocking. Therefore, an outside agency, in the sense of an officer higher than the Superintendent or external to the prison department, must be given the power to review the order for ‘irons’.

A right of appeal or revision from the action of the Superintendent to the Inspector General of Prisons and quick action by way of review are implicit in the provision. If there is delay, the negation of good faith, in the sense of absence of due care, is inevitable and the validity of the order is in peril. Another remedy also may be visualised as feasible. The visitors of jails include senior executive officers of the Division, Sessions Judges and District Magistrates.

This is ordinarily an All India pattern. The duties of official visitors include satisfying themselves that the provisions of the Prisons Act, rules, regulations, orders and directions are duly observed.

The doctrine of reasonableness

The reasonableness of the restriction being the constitutional badge, the only way we can sustain S. 56 of the Act is to imply in the broad group of provisions external examinership, immediate review and cutting short of the iron regime to the briefest spell.

Although numerically large, these requirements are reasonably practical and reconcile security with humanity. Arguments to the contrary are based on alarmist a priori and may render S. 56 ultra vires. Having regard to the penumbral zone, fraught with potential for tension, tantrums and illicit violence and malpractice, it is healthy to organize a prison ombudsman for each State. Sex is an irrepressible urge which is forced down by long prison terms and homosexuality is of hidden prevalence in these dark campuses. Liberal paroles, open jails, frequency of familial meetings, location of convicts in jails nearest their homes tend to release stress, relieve distress and insure security better than flagellation and fetters.

Active prison justice bids farewell to the bloodshot heritage of fierce torture of flesh and spirit, and liabilitative processes reincarnate as a healing hope for the tense, warped and morbid minds behind bars. This correctional orientation is a constitutional implication of social justice whose index finger points to Art. 14 (anti- arbitrariness), Art. l9 (anti-reasonableness) and Art 21 (sensitized processual humanism).

Prison reform is burgeoning in the administrative thanking and, hopefully one may leave it to legislative and executive effort to concretise, with feeling for ‘insiders’ and concern for societal protection, with accent on perimeter security and correctional strategy, the project of prison reform.

Presumptive innocence blushes when ad libitum discretion is vested in the jailor to put preventive fetters unfettered by the annoying rules of natural justice. The prisons become houses of horror if hundreds of undertrials and even minors have to suffer, on grounds of dangerousness, this disciplinary distress in one jail. That Prison Superintendent surely needs his discretion to be disciplined, being otherwise dangerous. Since constitutionality focusses on rationality and realistic reasonableness these forensic dissections go to the heart of the issue.

Sunil Batra case (I)[3]

The issue of bar fetter came before the court when a prisoner of Tihar jail filed writ petition in supreme court against bar fettering.

In the case, the court held that bar fetters are a barbarity generally and, like whipping must vanish. Civilised consciousness is hostile to torture within the walled campus.

The court further held that solitary confinement, cellular segregation and marginally modified editions of the same process are inhuman and irrational. More dangerous are these expedients when imposed by the untuned and untrained power of a jail superior who has, as part of his professional equipment, no course in human psychology, stressology or physiology, who has to depend on no medical or psychiatric examination, prior to infliction of irons or solitary, who has no obligation to hear the victim before harming him, whose ‘reasons’ are in English on the history- tickets and therefore unknowable and in the Journal to which the prisoner has no access.

Jail visitors have no powers to cancel the superintendent’s orders nor obligation to hold enquiry save to pity and to make remarks. Periodical parades prisoners, when the visitors or dignitaries call for a turn-out, prove a circus in a zoo from a practical standpoint or/and journal entries and history-tickets a voodoo according to rule, the key point to be noted being that after this public exhibition within the prison. the complaining prisoners are marked men at the iron mercy of the hierarchy. there being no active legal aid project busy within the prison. This ferocious rule of law, rule and nude, cannot be sustain red as anything but arbitrary, unreasonable and procedurally heartless.

The peril to its life from the lethal stroke of Articles 14, 19 and 21 read with 13 needs no far-fetched argument. The abstruse search for curative guideline in such words as ‘dangerous’ and ‘necessary` forgetting the totalitarian backdrop of stone walls and iron bars, is bidding farewell to raw reality and embracing verbal marga. The law is not abracadabra but at once pragmatic and astute and does not surrender its power before scary exaggerations of security by prison bosses. Alternatives to ‘solitary’ and ‘irons’ are available to prison technology, give the will, except where indifference, incompetence and unimaginativeness hold prison authorities prisoner. Social justice cannot sleep if the Constitution hangs limp where its consumers most need its humanism.

Reference

Sunil Batra Etc. vs Delhi Administration: 1978 AIR 1675, 1979 SCR (1) 392


[1] Sri Aurobindo-Essays on the Gita, p. 37

[2] 33 I. Ed. 484, 505

[3] Sunil Batra Etc. vs Delhi Administration, 1978 AIR 1675, 1979 SCR (1) 392