House arrest: A legal remedy ?
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In Indian law, House arrest is a legal remedy to bind a man to his residence. An individual is restricted to their house by the authorities instead of being detained in a prison or jail. It is also known as house detention or house confinement. According to the Merriam-Webster Dictionary, ‘House Arrest’ is “Confinement often under guard to one’s house or quarters instead of in prison.” It can be said that it is an alternative to imprisonment where an individual is only permitted to move about their own home or within a predetermined area. House arrest is a practice that is mainly used when an offender is awaiting trial. It can be used as a form of pretrial confinement for defendants with a motive to reserve jail space for untrustworthy defendants, to ensure public safety, to reduce jail overcrowding, to reduce criminogenic effects of incarceration, to guarantee that the offender shows up at trial, and to help the defendant in rehabilitation.
Depending on the severity of the requirements of the court order, house arrest can be classified into several forms such as curfew and home incarceration. Curfew means to restrict the offender to his house for a specified time (usually evening hours) with certain exceptions such as for religious services, work, school, food shopping, or medical treatment. On the other hand, home incarceration, the most severe form of house arrest, restricts the defendant to his home at all times with the exception that is medical treatment. House arrest is mainly enforced with the help of electronic surveillance to monitor the defendant’s presence or absence from his/her residence. Through this, ‘what is house arrest’ is clear but now, the question arises whether house arrest is legal in India or not. Let us understand certain provisions under Indian Law related to house arrest.
Is House Arrest Legal in India?
The concept of House arrest in India is recognized and authorized under Indian law. The decision to do so is at the discretion of the court based on certain factors such as the criminal history of an individual, potential threat to society in case the person is released, the nature of the offence, and the likelihood of the individual tampering with evidence or fleeing. Now, let us discuss certain legal provisions of House arrest in India.
Legal Provisions of House Arrest in India
Code of Criminal Procedure, 1973
In India, the provisions for house arrest are primarily governed by the Code of Criminal Procedure, 1973 (CrPC, 1973). Section 167 of the CrPC allows a Magistrate to grant custody to an accused as well as it deals with the process of detention and provides certain conditions according to which an offender can be detained during the investigation. As per Section 167(2) of the CrPC, “The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction…” In short, a magistrate has the authority to grant custody or house arrest to the defendant/accused.
Bail Provisions
The court can impose house arrest as a condition for bail or as a specific punishment after conviction or during the pendency of a trial. Under Indian law, bail is governed by the CrPC (Section 437, and Section 439) and can impose house arrest to ensure that the accused does not escape from trial.
National Security Act, 1980
Under Section 5 of the National Security Act, 1980, the state has the power to regulate the place and conditions of detention. It states that “Every person in respect of whom a detention order has been made shall be liable: (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify; and (b) to be removed from one place of detention to another place of detention, whether within the same State or in another State, by order of the appropriate Government: Provided that no order shall be made by a State Government under clause (b) for the removal of a person from one State to another State except with the consent of the Government of that other State.”
Restrictions during House Arrest
The restriction during house arrest may vary depending on the circumstances of the case and the order directed by the court. On the basis of the circumstances of the case, it can be determined whether house arrest is permitted or not. One of the most common restrictions on detained persons during house arrest is a restriction on traveling and meeting new people. Along with this, wearable tracking devices are also used to track every move of the detainee to ensure that they do not commit any other offence. The detainee may be “removed from one place of detention to another place of detention, whether within the same State or in another State, by order of the appropriate government.” Overall, it can be said that the court has the authority to impose restrictions as deemed necessary in a particular case.
Related Case Laws
- A.K. Roy vs. Union of India (December 28, 1981)
- Gautam Navlakha vs. National Investigation Agency (May 12, 2021)
- Romila Thapar vs. Union of India (September 28, 2018)
Conclusion
The concept of house arrest broadens the understanding of custody in Indian law as it acts as a substitute for police detention and gives a chance to the detainee to rehabilitate. It is a kind of preventive detention that prevents the detainee from performing any kind of offence. Conditions of house arrest may be unique in every case based on how sensitive the situation is and how much they can worsen by ordering the arrest of a person. Although, house arrest is a safer, and cost-effective solution to prison detention but it also leaves the question of personal liberty, unattended and unanswered.
