A prisoners’ life is always portrayed as a low-life and deprived of human rights. The condition of prisons just shows the reality of our collapsing criminal justice system. All the issues of the prisons are out in the open to see - overcrowded jails, poor sanitation system, broken monitoring system to manage the state of affairs within the prisons. To tackle this ever-persistent issue, the Supreme Court in the case of Gautam Navlakha v. National Investigation Agency held that the judicial magistrate under section 167 of the Criminal Procedure Code may remand the accused to house arrest, in appropriate cases, instead of police custody or judicial remand. As per the usual procedure laid down in the Code of Criminal Procedure, once a person is arrested in a cognisable offence without a warrant by a police officer, under section 41 of the Code of Criminal Procedure, he is to be produced before a magistrate within 24 hours of such arrest. The Magistrate thereafter may demand the accused to be held either in police custody or judicial custody under section 167 of CrPC. The accused may be remanded in police custody only for 15 days from the day of the arrest, after which the court can remand the accused to judicial custody. For cases where the punishment is death, life imprisonment or imprisonment for not less than 10 years, judicial custody is for a period of 60 days. Once the required period of days has expired and a charge sheet is not still not submitted the accused is liable to be granted a release on default bail.
Although, the Supreme Court did reject the plea of the petitioner to include the period of detention of house arrest in calculation for the purpose of default bail without the remand being made under section 167 of CrPC and observed that - “since prisons in India are extremely overcrowded, most of which is occupied by under trial prisoners, it would be better in state of things to remand an accused under house arrest in appropriate cases such as the gravity of the crime, age etc to reduce the horrendous overcrowding”.
In simple words, the Supreme court, while adopting the western alternative of pre-trial detention - house arrest, even though driven by the overcrowding of prisons, had opened up a new scope to explore. In addition, the Supreme Court legitimised house arrest as a form of custody and gave criteria, not being exhaustive, like age, health, nature and gravity of the crime, and the ability to enforce house arrest.
History of House Arrest
House colour is a type of criminal sentence as an alternative to confinement in jail or prison. House arrest is usually given in cases of first-time offenders, non-violent offences or juveniles. The arrestee is surveillant or monitored 24/7 hours by officers-in-charge or, as we’re more familiar with western culture, by electric monitors which use GPS to track the movement and location of the arrestee and inform the concerned authorities in case the arrestee tries to escape the confined premises. House arrest’s history can be traced back to St. Paul the Apostle, who is said to have been confined within his premises in Rome at the age of 60 years. In the USA, the practice of house arrest became widely popular only after the advancement in technology while being allowed to electronically monitor the detainees with electronic monitor bracelets, and later even detect possession or consumption of alcohol and/or drugs.
House arrest in India is rooted in Preventive detention laws; Section 5 of the National Security Act, 1980 empowers the government to regulate the place of detention of the detainee which includes inter alia house arrest. House arrest in India is not mandated by any ordinary law nor are there any comprehensive guidelines laid down for the authorities to adhere to in case of an order of house arrest.
Assessing the possibility of House arrest in India
So far India has only encountered house arrest as a form of preventive measure and to subdue any political tension by confining and restricting movements of political persons and ensuring surveillance. Only recently, like in the Navlakha case, has the courts used house arrest as a form of remand to the accused in the pre-trial detention period. Even then, the main driving force behind such an order being the astounding overcrowding of prisons in India.
As per the law, once an individual is arrested for non-bailable offences, he is remanded to either police or judicial custody even for petty crimes, and India being notorious for delayed legal proceedings and justice means that these individuals might have to stay in police or judicial custody for a very long time until they can seek the relief of default bail. However, the reality says otherwise when to comes to undertrial prisoners; according to the report published by National Crime Record Bureau in 2019 titled ‘Prison Statistics India 2019’, there were 3,30,487 under trial prisoners in the country, awaiting their trial, constituting more than 69.9 per cent of the total prisoners lodged in prisons and contributing to the issue of overcrowding prisons. These statistics only show the tip of the iceberg to a hidden horrid problem. These under-trial prisoners don’t only account for non-bailable offences but also include the people who are alleged for bailable offences but aren’t able to procure a surety. Thus, they receive no justice or are released until their trial. Delay in trial and investigation also only act as a catalyst for the existing problem. Criminal justice personnel's frantic search for relief can be evident in the decisions of releasing 7,000 prisoners on bail or parole to decongest prisons and, to ensure hygiene and maintenance in the prisons during the pandemic.
The Navlakha case has highlighted another issue that is to consider for effective implementation of the concept of house arrest: plea of default bail. While in normal circumstances once the period enumerated in the laws of the Code of Criminal Procedure for filing of charge sheet or for the further investigation as directed by the court is over, the accused is released on default bail. However, in this particular case, the Supreme Court did not include the house arrest under the term of custody citing the reason of no custodial interrogation taking place. This highlights that without proper structure to the alternative pre-trial detention, house arrest, the detainees could be stripped off of their firm legal rights and might not even receive just relief from the courts.
The Appeal of Home Confinement
House arrest as a form of detention is shown to be very appealing as studies show that confinement is a more preferred cost-effective substitute to imprisonment for punishment and deterrence. In the USA, it has been observed that house arrest, without electronic monitoring, saves about $10,000 to $15000 (equivalent to 8 to 11 lakhs) per year. In addition to reducing the pressure on the administration to build new prisons and bearing the cost of $50,000 (equivalent to 37 lakhs) per bed.
Further, if the level of house confinement is to the extent of letting the detainee leave home for work, education, medical treatment and other specific circumstances. Then it showcases offenders as productive, tax-paying members of society and can even earn brownie points for their good behaviour in the eyes of law. This also supports the inclusion of rehabilitation and positive reinforcement in the punishment model of sentencing and helps in decreasing the stigmatization of offenders in society. Studies of prisons worldwide indicate that often the closed environment of prisons becomes a breeding ground for running extortion rackets, hatching conspiracies and centres of radicalisation. This throws lights on the requirement of appropriate prison facilities and professional personnel to reduce recidivism and to establish a proper response of the prison administration.
House confinement is very appealing especially to those who have a responsibility towards their family and children. Even pregnant women can be provided with relief through this intermediate alternative sentencing. The present prison situation is extremely worse for women with children who suffer unspeakable miseries due to the inadequacy of jail space. There are only 31 women jails out of 36 States and Union Territories. Furthermore, in marginalised communities, the people which contribute the most to the prison population, house arrest acts as a tool of ensuring a strong surveillance system and monitoring of potential criminal activities through regular patrol in the neighbourhood and community area.
A Reality Check of House Arrest
Even though there are well established numerous social welfare benefits of remanding an accused in house arrest, India still has a long road ahead. Any punishment model of sentencing aims to punish the offender in proportion to the crime committed. However, there have been cases, in countries where house arrest is often sought, that the judges might use house arrest programmes as an ‘add on’ to an offender's already imposed sentence. Hence, increasing the total time an offender serves under criminal sanction.
One of the biggest reasons why house arrest has become successful so far in western countries is due to the adoption of electronic tracking devices or as commonly known as anklet bracelets. These anklet bracelets Send a transmitter to the officer in charge should an alarm from the system begin to sound. However, realistically speaking for India incorporating an electronic monitoring system in house arrest as alternate pre-trial detention is not as easy as it sounds. The USA usually charges the offenders for the cost of electronic monitoring devices but in India asking petty offenders who are majorly from marginalised communities is not feasible; they would not be able to bear the cost of the electronic monitoring devices. Some judicial systems bear the cost of an anklet bracelet for the detainees but if such an approach were to be adopted in India then the notion of house arrest being cost-effective would be counterproductive. Even if house arrest programs were adopted without electronic monitoring and instead guards from the police force were placed outside the house, as it was in the case of the Navlakha case and previous other instances - even then the issue of the police force being understaffed is ever-present. The courts will not be able to order house arrest frequently for the pure reason of there being no guards to monitor the detainee.
It is undeniable that the strip of one’s right is glaringly obvious and apparent in a prison. However, the same cannot be said for house arrest or home confinement. Where people’s own homes have become their personalised prisons their basic rights crumble under everyone’s nose. Detainees are subjected to warrantless searches and constant surveillance of letters, phone calls and visits. In addition to the probation officers having unbridled access to their home.
The Supreme Court while reading house arrest under section 167 has opened the interpretation of the word ‘custody’ in a broad sense and has also left it open to the legislature to amend relevant laws to incorporate house arrest, in case of prisoners who have been convicted and undergoing their sentences in prisons. While this has made the need of a proper guideline for implementation of house arrest obvious and, at the same time, it has left gaps to be filled:
What will be the course approach towards entertaining the plea of bail while in house arrest?
what will be the specific conditions or circumstances under which a detainee can be granted to leave their confined promises?
What will be the consequences a detainee will have to face in case they violate the terms of house arrest?
To what extent will the police have the liberty and access to the detainees home?
These recent cases only proved to be the stepping stones of a long journey. Nonetheless, house arrest must be looked at through a positive lens, where on the application of it in appropriate cases it can prove to be the best possible solution in eradicating the present issues: decongest of prisons and maintenance and hygiene of prisons.
National Crime Records Bureau, ‘Prison Statistics India’ (2019) Ministry of Home Affairs <https://ncrb.gov.in/sites/default/files/PSI-2019-27-08-2020.pdf>.
Teesta Setalvad, ‘The pandemic has put the spotlight on inhumane conditions in Indian prisons’ TheIndianExpress (May 26, 2021) <https://indianexpress.com/article/opinion/columns/the-pandemic-has-put-the-spotlight-on-inhumane-conditions-in-indian-prisons-7330342/>.
Karan Tripathi, ‘House Arrest, not jail as custody, says SC: a good idea, but…’ Quint (May 15, 2021) <https://www.thequint.com/news/law/sc-allows-house-arrests-as-custody-but-how-will-it-work-out#read-more>.
Paul J Hofer & others, ‘Home Confinement: An evolving sanction in the federal criminal justice system’ <https://www.ojp.gov/pdffiles1/Digitization/108466NCJRS.pdf>.
Gaurav Thote, ‘ Analysing the concept of ‘house arrest’ in criminal matters’ Bar&Bench <https://www.barandbench.com/columns/analysing-the-concept-of-house-arrest-in-criminal-matters>.
Maya Schenwar, ‘The quiet horrors of house arrest, electronic monitoring, and other alternative forms of incarceration’ Motherjones <https://www.motherjones.com/politics/2015/01/house-arrest-surveillance-state-prisons/>.
Madhurima Dhanku, ‘Undertrial prisoners and the criminal justice system’ <https://www.humanrightsinitiative.org/download/1457162682Undertrial%20Prisoners%20and%20the%20Criminal%20Justice%20System.pdf>.
Jahnavi Sen, ‘Buzz of a Mosquito...But with the sound of grief: The lives of Indian Women Prisoners’ The wire <https://thewire.in/women/india-women-prisoners-rights>.
Sriharsha Devulapalli and Vishnu Padmanabhan, ‘Indian Police force among the world’s weakest’ Livemint
‘Covid19 surge around 7000 prisoners may get bail or parole in Jharkhand to decongest prisons’ Livemint <https://www.livemint.com/news/india/covid19-surge-around-7-000-prisoners-may-get-bail-or-parole-in-jharkhand-to-decongest-prisons-11621760482696.html>.
Dr. Ram Manohar Lohiya National Law University