KATHMANDU: The Supreme Court on Monday issued an interim order directing police not to handcuff arrested persons without reason or arbitrarily.
A joint bench of Justices Dr Nahakul Subedi and Shanti Singh Thapa issued the order against the government, Police Headquarters and other concerned agencies.
The order was issued while hearing a writ petition filed by Bibek Chaudhary, Roshan Aauji and Bikash Yadav against the Office of the Prime Minister and Council of Ministers, Ministry of Home Affairs, Police Headquarters and Press Council Nepal, among others.
The Supreme Court said clear legal standards are needed to determine when an arrested person may be handcuffed. Although the Police Act and the Criminal Procedure Code allow the use of necessary force against arrested persons or those attempting to flee, the court noted that there is no clear legal standard specifying when handcuffs should or should not be used.
The court said automatically handcuffing every person merely because they have been arrested or charged would not be consistent with the spirit of the Constitution and law. It also noted that arrested persons retain their constitutional rights to live with dignity and to personal liberty.
The Supreme Court directed police to assess whether handcuffing is necessary on a case-by-case basis. The assessment should objectively consider the possibility of the person fleeing or escaping, whether the person is behaving violently, and the risk of the person causing harm to themselves or others.
The court said handcuffs may be used only when there is an unavoidable and compelling circumstance in which police cannot perform their duties without using them. In such cases, the reason for using handcuffs must also be recorded in writing.
Until the final verdict in the case or until new laws and standards are introduced, the Supreme Court has ordered Police Headquarters not to arbitrarily or routinely handcuff arrested persons, and not to allow such practices.
Students of Nepal Law Campus, Roshan Aauji, Bikash Yadav and Bibek Chaudhary, had filed the public interest litigation challenging the practice of handcuffing people merely because they had been arrested or charged.
The petitioners argued that handcuffs should be used only when necessary and based on an assessment of actual risk. They sought provisions requiring an objective assessment of the genuine risk of escape, violent activity or self-harm before handcuffs are used, and only for the minimum necessary period.
They also sought restrictions on the unnecessary publication and broadcast of photographs and videos showing people who have not been convicted in handcuffs, arguing that such material could portray them socially as criminals.
The petitioners further called for stricter restrictions on the use of handcuffs for women, children, senior citizens, persons with disabilities and seriously ill people. They argued that alternative measures, such as secure transportation and additional security personnel, should be used for high-risk suspects.
The petitioners claimed that the practice of handcuffing affects the constitutional rights to live with dignity and personal liberty, as well as the principle that a person is presumed innocent until proven guilty.
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