The Supreme Court has ordered Nepal Police not to routinely handcuff people arrested for investigation, saying the restraint may be used only when there is an objectively assessed risk of escape, resistance or harm. 

A joint bench of Justices Nahakul Subedi and Shanti Singh Thapa issued the interim order on Monday, directing police to assess the circumstances of each arrest before using handcuffs. 

The court said handcuffs could be used only when they are unavoidable for police to carry out their legal responsibilities effectively, and that the reasons for using them must be recorded.

“Handcuffs may be used only when an unavoidable situation arises in which their use is necessary for police officers to effectively perform their duties, and the reasons must be recorded,” the order said. 

“Except in such circumstances, until the final disposal of the petition or until other legal provisions or standards are introduced, police must not mechanically and mandatorily handcuff every person who is arrested.”

The order came in response to a writ petition filed by Bibek Chaudhary, Roshan Auji and Bikash Yadav, who challenged what they described as the unlawful use of handcuffs on arrested people.

The court has set out three circumstances in which handcuffs may be justified.

The first is a risk that the arrested person may escape. Police will have to assess that risk based on factors including the allegation against the person, the seriousness of the alleged offence and the person’s background.

The second is resistance or violent behaviour. Police may use handcuffs if they assess that the arrested person is likely to resist arrest violently or pose a threat to police officers or other people.

The third is a risk that the person could harm themselves or someone else. In such cases, the court has required police to make an objective assessment before deciding that handcuffs are necessary.

The order effectively shifts the use of handcuffs from a routine practice following arrest to a measure that police must be able to justify on the basis of specific risks.

Failure to comply with the conditions set by the court could amount to contempt of court, while unlawful use of handcuffs could also be challenged as a violation of fundamental rights and human rights, according to the legal implications of the order.

 Mohna Ansari, a former member of the National Human Rights Commission and advocate, said the ruling gives police an opportunity to change how they treat people in custody.

 “At present, people are handcuffed as soon as they are arrested, whether the alleged offence is minor or serious. Their photographs are then made public, effectively subjecting them to public humiliation,” Ansari said.

 “Not everyone who is arrested is a criminal. There is also little consideration that a person may be found innocent after investigation and should be able to return to society. The Supreme Court’s order recognises that sensitivity.”

 The Supreme Court has previously said that people should not be treated as criminals during an investigation unless there is concrete evidence against them. Ansari said that principle has not been adequately followed.

 “Now Nepal Police should accept this order and change its practice,” she said. “They must be able to establish why a person needs to be handcuffed. Otherwise, the person’s fundamental right to live with dignity is violated.”