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The State of Assam has filed counter by way of affidavit of Mr. B.V.P. Rao, Home Secretary of the Government of Assam. The relevant part of the affidavit is reproduced hereunder :-

"It is necessary to state and bring to the notice of this Hon'ble Court that during the period 1991-94 there have been as many as fifty one cases of escape and/or rescue of terrorists from Police and Judicial custody including thirteen terrorists who escaped and/or were rescued from different hospitals of the State, of them seven escaped from Guwahati Medical College Hospital where the above seven detenues are presently lodged.... The following three instances are significant to point out to the Hon'ble Court how TADA detenues escaped from the hospitals when not in handcuff... (a) On 1.5.91, at about 10.30 hrs. one Mahidhar Dihingia @Bipul Das, an ULFA activist in custody, escaped from the Hospital of Assam Medical College, Dibrugarh while he was taken to opera-tion theatre. (b) On 11/12/93, an ULFA terrorist awaiting trial for serious offences including murder, named Jatin Bora @Nripen was admitted in the Guwahati Medical College Hospital for treatment as an under trial prisoner. He was kept in the hospital without any handcuff but under police guard. While so lodged, he killed the constable guarding him in the hospital and escaped. (c) On 14.3.94, one Inkong Ao, belonging to the notorious terrorist organisation known as NSCN lodged in Guwahati Medical College Hospital, climbed up a duct approachable from the lavatory and reached the roof of the hospital building to escape... It is stated that in all the above mentioned three instances, these detenues have escaped from the hospital when they were not in handcuff. The seven detenues in question mentioned in Shri Kuldip Nayar's letter were lodged in Guwahati Medical College hospital. As the Guwahati Medical College Hospital is not a part of any jail, a part of the ward of the said hospital was set apart with a collapsible gate for their lodgement in the Hospital under Police guard. When inside the ward they were bound by long ropes tied to one of their hands with a handcuff, which allowed them to move freely within the ward; but prevented their escape, which was a very real apprehension having regard to the number of TADA detenues escaping from Police, Judicial and Hospital custody as mentioned above... As stated above these seven detenues are hardcore activists of ULFA, which is notorious for insurgent and secessionist activities. These seven detenues are all accused of terrorist and disruptive activities, murder, extortion, hoarding and smuggling of arms and ammunition and other allied offences...."

Mr. Harish Sonowal, Secretary, Health, Government of Assam has also filed an affidavit. Paras 3 and 4 of the affidavit are as under :

"That the seven detenus are allowed to go without handcuffs to the lavatories in the hospitals designated for them outside the ward when, they may be kept under police guard and also during the routine check up and treatment. They are also allowed morning and evening walk as per advice of Doctors and the handcuffs are removed during such time.... That while they are lodged within the ward, their escape is prevented by one of their hands being tied with a long rope tied to their respective bed and attached to a handcuff which allows them free movement including movement of hands and at the same time prevent the chance of their escape or of their being rescued."

This Court in Shukla's case speaking through Krishna Iyer, J. laid down the law as under:

"Insurance against escape does not compulsorily require hand-cuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in hand-cuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopedia Britannica, Vol. II (1973 Edn.) at p.53 states "hand-cuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment." The three components of 'irons' forced on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising victim and keepers. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an undertrial prisoner ordinarily.... We lay down as necessarily implicit in Arts. 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Art. 14 on the face.
The minimal freedom of movement which even a detainee is entitled to under Art.19 (see Sunil Batra, supra) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstance so hostile to safe-keeping... But even here, the policeman's easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough. The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances. Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not un-reasonable, only if every other less cruel means is fraught with risks or beyond availability. So it is that to be consistent with Arts. 14 and 19 handcuffs must be the last refuge, not the routine regimen. If a few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm."