Srinagar: The appearance of the Doda legislator and J&K chief of the Aam Aadmi Party (AAP) Mehraj-ud-Din Malik in handcuffs at a hospital last week has prompted accusations of abuse of power against the Jammu and Kashmir administration.

For the first time since his detention under the controversial Public Safety Act (PSA) more than three months ago, Malik, the only AAP contestant who won in the 2024 J&K assembly election, was seen at the hospital in Jammu’s Kathua district on Thursday (December 11).

Wearing his signature black baseball cap and a white T-shirt, Malik could be seen being escorted inside the hospital premises on Thursday afternoon by more than dozen police officials, one of whom grasped a chain connected to a metal handcuff around the AAP MLA’s right wrist.

The video showed a smiling Malik who has challenged his PSA detention in the J&K high court giving the media-persons a thumbs-up with his right hand as police personnel escorted him out of the hospital.

A police van later transported the Doda legislator back to the Kathua jail where he has been detained since September in the aftermath of his allegations of official misconduct and abuse of power against the Doda deputy commissioner Harvinder Singh who has, however, denied the charges.

Condemning the authorities for treating the AAP leader “like a hardcore criminal”, Rajya Sabha member and senior AAP leader Sanjay Singh said that Malik was being “punished” for exposing the “corrupt practices” of the Jammu and Kashmir administration.

The police administration and higher bureaucracy in Jammu and Kashmir comes under the lieutenant governor’s office.

“Booking Mehraj under the PSA was a malicious act of the BJP-led administration,” Singh told The Wire, “Now that he is in jail, they are using various means to silence and harass him. Putting him in handcuffs is an example of that. It has been done illegally and deliberately to send a message that all the critics of the BJP and its administration will meet a similar fate if they don’t stay quiet.”

The AAP parliamentarian alleged that the Jammu and Kashmir administration had violated the law and the Supreme Court guidelines by using handcuffs on an elected lawmaker. “I spent six months in jail myself but I was never handcuffed.”

Singh was arrested in a money laundering case linked to the alleged Delhi excise scam and he was released on bail by the Supreme Court in April last year.
AAP’s J&K spokesperson Aapu Singh Salathia said that Malik was brought to the hospital for a routine medical checkup on Thursday, while terming his handcuffing as a “murder of democracy”.

The AAP leader’s PSA dossier accuses him of being “threat to peace and public order”.

Salathia said that the Supreme Court has laid down clear guidelines for custodial handcuffing and that the AAP leader was being “dealt with tight hands for speaking against the bureaucracy”.

“The administration is conveying a message that the bureaucracy is above the law and no one can speak against the officers. Malik is not a habitual offender or a convicted criminal. This is no way to treat a lawmaker. It is a murder of democracy,” Salathia, who is a member of the AAP leader’s legal team, said.

In the old law, the guidelines for making arrests were laid down in Section 46 of The Code of Criminal Procedure 1973 (CrPC). While the CrPC itself has no provision for handcuffing prisoners, it was replaced by Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS).

Section 43 (3) of the BNSS empowers the police to use handcuffs on repeated offenders and those involved in drug trafficking, terrorism, illegal arms possession and offences “against the State” among other heinous crimes.

The Supreme Court and some legal experts have termed the use of handcuffs as a violation of Articles 14, 19, and 21 of the constitution.

According to LiveLaw, the government hasn’t included the guidelines issued by the apex court in various case laws for handcuffing prisoners in the new law which “opens the door to rampant misuse by the police” that could “undermine the dignity and human rights of accused persons”.

The SOP notes the lack of uniform guidelines and seeks to bring uniformity across the country.

All the states and the Union Territories across the country have their own code or manual for handling the prisoners. The J&K Police manual doesn’t specify the rules for handcuffing prisoners who are held under the Public Safety Act.

Salathia said that the PSA also doesn’t list out any guidelines for handcuffing the detainees held under the controversial legislation under which a person can be held without trial for two years.

Amnesty International has termed the PSA which was enacted by the National Conference-led government in 1978 as a “lawless law”.

Rule no 648 of the police manual calls for using handcuffs on prisoners accused of non-bailable offence publishable with three years imprisonment or more, who are held under section 148 or 226 of Ranbir Penal Code (RPC) or convicted under section 75 of RPC, “desperate characters” and those prisoners who are “violent, disorderly or obstructive or acting in a manner calculated to provoke popular demonstration”.

The manual states that the rule also applied when the prisoners escorted by road or in a vehicle were “likely to attempt to escape or to commit suicide or to be the object of an attempt at rescue”.

Rule 649 rules out the use of handcuffs even for prisoners who are charged with sedition or promoting enmity between different groups “unless he is already undergoing sentence”.

The manual also cites a number of the Supreme Court rulings which discourage the police from using handcuffs on prisoners, terming it as “prima facie inhuman and unreasonable” which “excessively infringe on the remaining personal liberty of prisoners”.

“In all the cases where a person arrested by police, is produced before the magistrate and remand – judicial or non-judicial – is given by the magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the magistrate at the time of the grant of the remand,” the apex court has observed.

Raja Shakeel, a local AAP activist, alleged that the administration had “resorted to vendetta” against Malik while terming the handcuffing as ”an attempt to humiliate him”.

“An inquiry should be ordered into why an elected representative was paraded in handcuffs without lawful grounds. We demand strict legal action against the officials who were involved in this unconstitutional act,” he said.

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