House Arrest In India

KEYTAKEAWAYS:

• A number of laws, including the Criminal Procedure Code (CrPC) and special laws for particular situations (e.g., National Security Act), permit the ordering of house arrest.
• Instead of judicial custody or imprisonment, courts have the power to impose house arrest, particularly in cases involving non-violent offenses, age, or health concerns.
• A person's freedom of movement may be restricted while under house arrest in situations involving the public interest or national security.
• If the conditions of house arrest are not followed, the order may be revoked and additional legal repercussions, such as jail, may follow.

INTRODUCTION

• House arrest, also known as home confinement, home detention, or, more recently, electronic monitoring, is a legal measure used to bind a man to his residence. The only people who can be sentenced to house arrest are those who own a house. In general, travel is restricted whenever it is possible. An alternative to incarceration pending trial or sentencing is house arrest.

• It frequently involves multiple requirements and is used by criminal justice frameworks worldwide. There are various kinds of house arrest, depending on how important the requirements and court orders are.
• While house arrest may be used in criminal cases when jail time does not seem to be the appropriate course of action, the term is more commonly associated with the use of house confinement by authoritarian governments as a tool of repression against political dissenters. All things considered, a person under house arrest typically lacks authorization to use any kind of communication device. Any electronic communication that is allowed will be examined. Certain electronic monitoring systems allow detainees' conversations to be verified directly through the device.
• There is no mention of house arrest in the Code of Criminal Procedure.
• A person may be detained by the state "in such place and under such conditions...as the appropriate Government may, by general or special order, specify," according to Section 5 of the National Security Act of 1980.
• By order of the appropriate Government, the person in custody may be "removed from one place of detention to another place of detention, whether within the same State or in another State."
• As per the Code of Criminal Procedure, Section 167, a court can assign an accused person to "such custody as such Magistrate thinks fit" while the investigation is ongoing. This is frequently utilized for either police or court custody. After the investigation is finished, the accused is usually detained in judicial custody.
• As stated by The Scroll, the court declared in 2021 that it is "free to employ it (house arrests) in deserving and suitable cases." It outlined a number of factors that must be taken into account, including the accused's age, health, the circumstances of the case, the need for alternative forms of custody, etc.

HOW DO YOU GET HOISE ARREST?

There are stringent guidelines when requesting house arrest. These may consist of:

• Giving the probation officer permission to contact your house whenever they want to make sure you are available,
• Allowing the probation officer to search your house to make sure there are no drugs or alcohol on hand,
• Observing a rigorous time restriction,
• Submitting to a drug and alcohol examination,
• Participating in counseling, community service, or other forms of rehabilitation.

When a judge can impose house arrest is restricted.

A house arrest can only be imposed by a judge in the following situations:

• The prison term is less than two years;
• The criminal has not been charged with a crime for which a minimum sentence of incarceration is required;
• The offender is not currently serving a sentence for a crime involving severe bodily harm, terrorism, or criminal association that is being prosecuted through indictment and carries a maximum sentence of ten years or more in prison;
• The judge is satisfied that the criminal's sentence of community service is in accordance with the Criminal Code's tenets.

Although the conditions of house arrest can vary, most programs allow employed offenders to continue working and confine them to their homes only during non-working hours. For specific reasons, such as visits to the police station or probation office, religious sites, educational institutions, legal consultations, court appearances, and doctor appointments, offenders are typically allowed to leave their home. Numerous programs also allow the incarcerated person to leave their home at regular, prearranged times to conduct routine household tasks like food and grocery shopping and clothing purchases. It might be necessary for convicted individuals to speak with higher authorities to confirm that they are at home when needed. Often, special cases are created so that visitors can see the wrongdoer.

The requirements of the court order indicate the severity of the various types of house arrest. A deadline could keep an offending party inside their home during certain times, usually during extended periods of darkness. With the exception of the aforementioned exceptional circumstances, "home confinement" or detainment necessitates that the guilty party remain at home full-time. "Home incarceration" is the most severe kind of house arrest, where an offender is confined to their home twenty-four hours a day, seven days a week, and is only permitted to attend court dates, therapy sessions, and doctor's appointments with approval from the court.

An individual may be placed under house arrest in certain extraordinary circumstances, with restrictions on their associations and without a trial or legal representation. This kind of pretrial detention has come under scrutiny in a few countries for allegedly violating the wrongdoer's human right to a fair trial. Such actions are sometimes taken by the legislature to quell dissent in countries with authoritarian political systems.

HOUSE ARREST IN INDIA

• A section of the Code of Criminal Procedure deals with arrests. None of the codes include a clause about house arrest.
• Because house arrest is only used in extreme circumstances, it is not a common practice.
• Any person may be placed under house arrest by a court using its inherent authority; this is not a statutory right. This type of arrest differs from statutory arrests in that it does not impose restrictions on freedom subject to orders from the court. For example, the Court may prohibit using a phone, computer, or the internet, or limit meetings with journalists. At the court's request, the arrested person may host friends or family.
• One benefit of house arrest is having access to medical care. The cost of the arrest may have to be borne by the arrested person, just as it would have been if they hadn't been arrested. It's possible the state can't handle the cost. The condition that the court might enforce also applies to the cost of the detention.
• Five human rights activists were recently placed under house arrest in India on suspicion of having ties to Maoist agitators. This has led to accusations that the Narendra Modi administration is trying to intimidate critics ahead of the 2019 national elections.
• As part of an investigation into a December march by Dalit groups that was attacked by right-wing Hindu activists and escalated into full-blown riots that shut down parts of Mumbai, the five were taken into custody in simultaneous raids across India.
• Prominent academics and activists denounced the arrests, which sparked protests in Delhi and Mumbai.
• The Supreme Court ordered the group to be placed under house arrest and released from police custody until the police could present evidence.
• The order to place them under house arrest, according to Vrinda Grover, the attorney for the group of human rights activists in the Supreme Court, showed that the court recognized "the larger issue at risk here, which is the threat to fundamental freedoms."
• The court declared during its August 29 hearing that "dissent is the safety valve of democracy."
• These are honorable individuals living contented lives. They don't have any criminal histories. They are taken into custody at their home.
• Dissent will be more severely cooled by this. Their precious rights to life, liberty, and the freedom of speech and expression are all at risk, and everyone's fundamental rights are in jeopardy. Since the freedoms of the people are the foundation of democracy, the Court must protect fundamental rights.

LEGAL PROVISIONS DEALING WITH HOUSE ARREST

• CODE OF CRIMINAL PROCEDURE:
• The CrPC's Section 167 outlines the detention procedure and the circumstances in which someone may be held while an investigation is underway. It gives a magistrate the authority to grant custody or house arrest to an accused individual.
• BAIL PROVISIONS:
• Bail may be subject to house arrest as a condition. Sections 437 and 439 of the CrPC regulate bail, and in order to prevent the accused from escaping during the trial, courts may also impose house arrest.
• NATIONAL SECURITY ACT,1980:
• A person may be detained by the state "in such place and under such conditions as the appropriate government may, by general or special order, specify," according to Section 5 of the Act.

HOW THE SUPREME COURT READ IN HOUSE ARREST:

• Only preventive detention laws, like Section 5 of the National Security Act, 1980, which permits the government to detain people in any location, including their home, have allowed for the use of house arrest in India. One instance of this kind of use of house arrest is the current detention of several political leaders in J&K. But neither the CRPC nor any other law mentions house arrest, nor does preventive detention fall under the purview of "custody."
• Section 167 of the CRPC gives a magistrate the authority to "authorize the detention of the accused in such custody as such Magistrate thinks fit" following an arrest. The Supreme Court stated earlier this year in Gautam Navlakha v. NIA (para. 94) that s.167 does not limit the type of custody a magistrate can order, with the exception of forbidding police custody after the first 15 days. It's just that custody has typically been associated with being under police custody or in a jail. The situation of many prisoners awaiting trial and the overcrowding in Indian prisons were taken into consideration by the court when debating this matter. It made the case that, considering the circumstances, it might be best to reserve jail time for the most dangerous offenders. Consequently, it held that courts could, under certain circumstances, remand accused persons under section 167 to house arrest rather than to jail or police custody.
• Regarding the computation of house arrest for the purpose of granting default bail, the SC emphasized that, as it is intrinsically connected to the right to liberty, the right to default bail is a fundamental right under Article 21. It clarified that "actual detention suffered," not the nature of the detention, is what matters under s. 167. The Court determined that, contrary to the government's argument, house arrest constituted detention because it restricted the accused person's freedoms and did not protect their right to liberty. It varies from police or jail custody only in a minor way. Consequently, it decided that if a court orders house arrest under Section 167, that constitutes judicial custody and will be taken into account when determining the amount of default bail.
• It is important to remember that the house arrest must be "intended to be ordered u/s. 167 CRPC" in this case. Consequently, custody granted by a court under any other unique provision would not be taken into account. Applying this principle to the facts at hand, the Supreme Court held in Gautam Navlakha that Navlakha's time under house arrest would be excluded because the investigating agency was unable to contact him during that time, and the HC had not intended for it to be counted toward bail under section 167 at the time of Navlakha's house arrest. 

RECENT INSTANCES OF POSSIBLE INCLUSION OF HOUSE ARREST UNDER JUDICIAL CUSTODY:

SUDHA BHARDWAJ V. NIA, 11 JUNE 2021

On August 28, 2018, Sudha Bharadwaj was taken into custody by the National Investigation Agency (NIA) in connection with the Elgar Parishad case. The accused was given transit remand by the chief judicial magistrate (CJM), Faridabad, in order to transport them to Maharashtra; however, the Punjab & Haryana High Court halted this order in response to a habeas corpus petition filed by Bharadwaj. Bharadwaj was placed under house arrest while the petition was being heard, according to a Punjab and Haryana High Court order. The house arrest was extended by the SC through an order issued on August 28, 2018. On September 28, 2018, the High Court denied Bharadwaj's habeas corpus petition, but it continued the house arrest for an additional four weeks. Ultimately, on October 27, 2018, Bharadwaj turned herself in to the police following a 60-day house arrest following the sessions court's denial of her bail request, which remanded her in police custody. After 90 days under house arrest and 30 days in police custody, Bharadwaj filed an application for default bail under s.167 CRPC on November 26, 2018, since the police had not yet filed a charge sheet against her. She contended that the 90-day default bail period should be calculated taking into account the duration of house arrest.

In an order dated December 1, 2021, the Bombay High Court ruled that the Punjab and Haryana High Court had the authority to order Bharadwaj's house arrest under section 167 of the Criminal Procedure Code, rather than using its statutory authority. As a result, it decided that her house arrest time would not be deducted from her default bail. Bail was nevertheless granted for other reasons, including the fact that the chargesheet was not filed until February 2019, well after the 90-day period had passed since her police custody, even though the period of house arrest was not taken into account. She was nevertheless given default bail as a result.

NARADA CASE:

The Narada case from earlier this year shows how house arrest can be used appropriately. In this instance, the CBI special court granted bail to four Trinamool Congress members following their apprehension. The accused were placed under house arrest after the Calcutta High Court revoked the bail order. The accused was later placed on interim bail under s. 439 CRPC by a larger bench of the Calcutta High Court.

Chargesheets had been filed in this instance, but if they hadn't, interim bail under CRPC 167 would have been granted. Without deeming the house arrest period null and void, the bail was granted in accordance with the formal bail provisions, so it is likely that the period was counted toward default bail under CRPC Section 167.

SOME POTENTIAL IMPLICATIONS OF THE GAUTAM NAVLAKHA V. NIA JUDGEMENT:

• The ruling has far-reaching implications, and there are still a lot of unanswered questions regarding the implementation of house arrest.

• Many have praised the ruling for providing support to politicians, civil society activists, and others facing extended jail sentences who are being persecuted by the government. All other things being equal, such custody would reduce harassment and be more comfortable over extended periods of time. In light of the SC's orders to decongest jails during the pandemic, the method might also be taken into consideration. Instead of increasing their bail, the court could decide to convert some people under jail custody to house arrest as an additional layer of protection. Perhaps this would also allay the government's worries about potential flight hazards or tampering with investigations, leading them to consent to the release of additional individuals in this way.
• The SC did not, however, provide guidelines regarding the appropriate timing of house arrest. In determining its appropriateness, it only briefly discussed non-exhaustive factors "like age, health condition, antecedents of the accused, nature of the crime, the need for other forms of custody and enforceability of house arrest." The Bombay High Court is currently considering the pleas of activist Gautam Navlakha and former police officer Sachin Vaze, who want their detention to be changed to house arrest due to health concerns and the COVID-19 pandemic. The police have opposed this, citing the possibility of flight and the jail's sufficient medical facilities. It would be necessary to work out the precise parameters of when house arrest would be appropriate through subsequent cases.
• Following this decision, some academics worry that judges may become more receptive to custody in all cases. Judges may use house arrest as a reasonable "middle path" when there is no evidence supporting regular custody, especially when the police oppose bail and the charge is relatively serious. This would lead to people being deprived of their freedom when they ought to have been allowed to go free, which would increase harassment.
• However, appropriateness would most likely rely on enforceability. There is currently no law or system in India for electronically tagging or remotely monitoring prisoners, and even if there were, there are still a lot of unanswered questions regarding its appropriateness and privacy implications. If house arrest were to be widely implemented, it would then be necessary to place police officers personally at the residence of each accused person, which would be costly and challenging. The effectiveness of such enforcement is also in doubt; if it doesn't happen, the situation is no different from releasing individuals on standard bail. Concerns regarding the application of this measure have increased in light of the recent escape of two Korean nationals who were placed under house arrest by the SC. A judge would undoubtedly be troubled by all of this, which would make it difficult for them to confidently impose house arrest and possibly discourage them.

CONCLUSION

• It is a historic step that broadens our understanding of custody in Indian law to allow house arrest as a substitute for incarceration or police detention. Still, the concept is overly abstract and raises many unanswered questions regarding the issue's practicalities.
• The propriety of house arrest would obviously depend on the specifics of each case, but the SC's comprehensive guidelines would have been beneficial in permitting such a radical change in the law while also preventing its abuse.
• House arrest runs the risk of becoming a development that is only on paper available to the privileged few rather than a real advancement for criminal law unless some comprehensive guidelines are provided and mechanisms for enforcement, including specific laws, are put in place.