A case for house arrest in India

The COVID-19 pandemic has forced courts to revisit the problem of overcrowding in prisons. The Supreme Court, in its order dated May 7, 2021, was the first to emphasise the need to decongest prisons.

Following suit, the Delhi High Court in Deepak Joon vs. State, while granting anticipatory bail, imposed a condition requiring the petitioner to specify his location through Google Maps. Courts exercising powers under the Code of Criminal Procedure (CrPC) have started applying such innovative conditions to the phrase ‘judicial custody’ to extend this to house arrest. With 69% of the inmates in our prisons being undertrials, it is time that courts seriously consider the option of house arrest.

House arrest has been used as a means of preventive detention under Section 5 of the National Security Act, 1980. Any person who is subject to detention under the Act can be detained in such place as the appropriate government deems fit. The rules regarding such detention as laid down by the Supreme Court in AK Roy & Ors v. UOI & Ors is that the detention should be carried out at the ordinary place of residence of the detenu.

However, house arrest as a detention measure has not been used for undertrial inmates nor as a penal sentence. The need to implement such less punitive methods for undertrial inmates was emphasized in the 1973 Report by the Expert Committee on Legal Aid titled Processual Justice to the People. This report considered entrusting the accused with his relatives or release under supervision as forms of conditional release in order to ensure distancing of the accused undertrial from possible exposure to convicts.

Section 167 of the CrPC empowers the Magistrate to authorise detention of an accused who is arrested and brought before him by the police. The Madras High Court in Re: MR Venkataraman and Ors had elucidated that the Magistrate, in the exercise of Section 167 CrPC, has complete freedom to remand an accused person to whatsoever custody he thinks fit, without expressly limiting it to just police or judicial custody.

More recently, in Gautam Navlakha v. National Investigation Agency, the issue before the Supreme Court was whether the period of house arrest as ordered by the Delhi High Court would be included in the computation of 90 days of remand to avail default bail. The Court considered the scope of power of the Magistrate to authorise detention under Section 167 wherein it was held, inter alia, that the terms "such custody as it thinks fit", as found in the Section, grants power to the Magistrate to order house arrest of the accused after considering factors such as his age, health condition, antecedents, nature of offence and the feasibility of carrying out such detention. As such, the power to detain an accused person under house arrest was read into the purview of Section 167 CrPC.

In the USA, a person awaiting trial may be released on conditions such as restricted place of abode, maintaining employment or commencing an education program and following specified curfews vide 18 US Code § 3142. Similarly, conditional release is also available in the UK, known as a 'doorstep condition’, wherein authorities detain the accused in a particular address with periodic checking by the police. The doorstep condition was upheld by the High Court of Justice, Queen’s Bench in the case of Crown Prosecution Service v. Chorley Justices and declared to be intra vires the European Convention on Human Rights. Additionally, an accused may also be released with electronic tagging with GPS location monitoring under Section 3-AB of the UK Bail Act, 1976.

As culled out in the case of United States of America v. Maureen Murphy, house detention in lieu of arrest is cost-effective for the State and also serves as a means for the breadwinner of a family to continue employment. This ensures that the accused or their family do not fall under poverty, thereby preserving the respect the accused has within their family. It helps such person to re-integrate into society as well.

The decision of the Supreme Court in the Gautam Navlakha case is a welcome step, but there is more to be done. The Union government, taking into consideration the prevailing pandemic as well as the overcrowding of prisons and international best practices, should codify comprehensive guidelines to give effect to alternatives to jail time. Modern means of detention such as electronic tagging, as recommended by the Law Commission in its Report No.268, can easily be incorporated to ensure compliance with bail conditions. Taking this into account, the Central government should seriously consider enacting statutory guidelines to enable magistrates to award house arrest in cases of first-time offenders and persons at risk, including elderly and those with co-morbidities, to ensure a more humane form of custody.

Manuraj Shunmugasundaram and Thiyagarajan B are lawyers at Ganesan and Manuraj Legal LLP.