The history of house arrest in India has its root in preventive detention laws. Section 5 of National Security Act, 1980 (also known as “rasuka”) empowers the government to regulate the place of detention of the detenu which includes inter alia house arrest. Many prominent Kashmiri leaders were kept in house arrest under Public Safety Act, 1978 after the revocation of Article 370 of the Constitution of India. House Arrest was not mandated by any ordinary law in India. House arrest, heretofore the Supreme Court judgment in Navlakha case, was permitted only under the Preventive Detention Acts enacted by the Parliament and State Legislatures.
Exploring the Intermediate Routes
In Navlakha case, the S.C has explored the option of remanding the accused to house arrest in pre-trial detention in view of the tremendous pressure on the Indian prison system, which is overcrowded to a great extent. When an accused is arrested in a non-bailable offence, he is remanded to judicial custody in a cosmetic manner by magistrates even in cases where charges are trivial in nature. The under trial accused languishes in prison for years, awaiting his trial, which is often delayed, violating his inviolable right to “speedy justice”. A positive contribution came through the Supreme Court’s judgment in Bhim Singh v. Union of India in which it passed strictures against the government to become a “nodal agency” to facilitate the release of under trial prisoners from jails who had served half of their probable maximum prison term. In spite of the Supreme Court’s directives that bail, not jail should be the norm, this is rarely the case and resultantly the overcrowding in prisons has continued to worsen. According to a report published by National Crime Record Bureau in 2019, there were a whopping 3,30,487 under trial prisoners in the country, constituting more than 69.9 per cent of the total individuals lodged in prisons. It is fairly alarming that a prison which has space for 100 prisoners is accommodating 174 prisoners. Under trials are mostly lodged for offences against the human body. Nevertheless, a major chunk of under trial prisoners are languishing for trivial offences. For instance, out of 3,30,487 under trial prisoners, 39,304 are currently lodged in prisons in relation with offences against property, such as cheating, theft and criminal breach of trust. Per contra, there are 41,511 under trial prisoners who have spent years in prisons, ranging from 2-10 years in toto, without any trial in sight.
Possible Avenues to House Arrest
Steven D. Levitt, in his popular book Freakonomics, has hypothesized that the judgment of United States Supreme Court in Roe v. Wade ,where the Court legalized abortion, has reduced juvenile crimes in a few states. Therefore, it is worthwhile to seek out unconventional solutions to the issues plaguing our criminal justice system. There are numerous ‘social-welfare’ benefits of remanding an accused in house arrest. First, house arrest is cost effective. House arrest (particularly without electronic device) is extremely cost effective. In a research undertaken by United States Justice Department, house arrest saved $10,000 to $15,000 per year, and also reduces the demand of additional prison houses. Second, house arrest is thought to reduce recidivism. While prisons are not established to scar the inmates, the psychological impact it has, particularly on young, inexperienced, and first time offenders, is immense. Studies of prisons world-wide indicate that often the closed environment of prisons becomes a breeding ground for extortion rackets, conspiracies, and radicalization. Third, house arrest may also have potential application for persons with special needs – such as a terminally ill patients or pregnant women. The situation is exponentially worse for women with children, who suffer from unspeakable miseries due to inadequacy of jail space. There are only 31 women jails in all 36 States and UTs. Lastly, house arrest could also prevent a breakdown in familial relationships, the psychological effect on the spouse (for married detainees), guardians of the accused, etc. The accused under house arrest could also continue his/her employment and/or education. According to the NCRB report, 69.4 percent prisoners were either illiterate or class X & above, but below graduation.
The author submits that a civil police officer (“Community Control Officer”) can be appointed, whose primary duty would be to ensure that the accused is adhering to the court’s orders. While there may be cries of an “Orwellian Nightmare”, that we may be headed towards a totalitarian society where citizens’ movements are under omnipresent government surveillance sans merit, these assertions are largely exaggerated. House arrest is an alternative to a prison cell, which is surely more intrusive as compared to any house arrest program. The Supreme Court, while reading house arrest into Section 167 of the Cr.P.C., also left it open to the Legislature to amend relevant laws so as to incorporate house arrest in cases of prisoners who have been convicted and are undergoing their sentences in prisons.
The author is a practicing advocate at the Lucknow High Court.
Categories: Legislation and Government Policy