House Arrest, Not Jail as Custody, Says SC: A Good Idea, But...

While the SC has allowed house arrests as a new form of custody, would it lead to decongestion of prisons? Image used for representational purposes

Photo - Shruti Mathur/ The Quint

House arrests have been a controversial feature of India’s criminal justice system for a long time. Time and again, political leaders have been subjected to house arrest. The most recent being Mehbooba Mufti (14 months), Omar Abdullah (7 months), and others, in Kashmir, shortly after the abrogation of Article 370 in August 2019.

PDP Chief Mehbooba Mufti (L) and JKNC Leader Omar Abdullah.(Photo: Altered by The Quint)

However, house arrest has been accepted as a legitimate form of custody only under India's preventive detention laws. For instance, the Kashmiri politicians mentioned above were detained under the Public Safety Act – one of the highly politicised and exploited tools used to impose preventive detention in Jammu and Kashmir.

It was only when Gautam Navlakha, an activist and journalist currently facing charges under the Unlawful Activities Prevention Act (UAPA) in the Bhima Koregaon case, moved the Supreme Court in March 2020 seeking default bail, that the issue of house arrest as custody under the Criminal Procedure Code received judicial scrutiny. Navlakha argued that the 34 days of his house arrest should be counted in the 90 days upper limit for custody under Section 167 of the Criminal Procedure Code.

Gautam Navlakha(Photo: The Quint)

On 12 May, the Supreme Court finally legitimised house arrest as a form of custody not just for preventive detention laws but for any criminal case. The court held that a Judicial Magistrate can remand the accused to house arrest under Section 167 of the CrPC. Interestingly, the court did not extend the benefit of this interpretation to Navlakha.

The court was of the opinion that remanding persons to house arrest would, to some extent, resolve the issue of overcrowding in prisons.

The Supreme Court's Idea of House Arrest

Under Section 167 of CrPC, a Magistrate can remand a person produced before him into custody for further investigation. So far, the word “custody” under Section 167 was understood as either “police custody” or “judicial custody”, with the latter being interpreted as jail custody. Even the Supreme Court noted that the concept of house arrest under Section 167 “has not engaged the courts, including the apex court”.

“When the issue of house arrest has come into focus, and noticing its ingredients, we have formed the view that it involves custody which falls under Section 167 of the Criminal Procedure Code. We observe that under Section 167, in appropriate cases, it will be open to courts to order house arrest.”

Supreme Court

The Supreme Court did not provide details as to what this “house arrest” would look like, or what conditions would qualify a person in custody for house arrest. However, the court has laid the criteria that the Judicial Magistrate would have to consider while remanding a person to house arrest. The criteria though, are “not exhaustive”.

“As to the employment of house arrest, without being exhaustive, we may indicate criteria like age, health, nature of the crime, and the ability to enforce the terms of the house arrest.”

Supreme Court

The driving force behind the court’s decision to allow house arrest as a form of custody is the decongestion of prisons.

The court is of the opinion that house arrest would directly address the two serious problems plaguing the penal system: overcrowding in jails, and the high costs of running and maintaining prisons.

The Potential Challenges

The judgment in the Gautam Navlakha case has led to a creation of a new form of custody, but setting out ambiguous criteria on its use might pose challenges in practice.

Abhinav Sekhri, a lawyer practising in Delhi, believes that the Supreme Court recognising a new form of judicial custody through a judgment is a curious step. He told The Quint that it is impossible to predict how the order will translate into practice as each situation will pose unique challenges.

“The onus will be on trial court lawyers and judges to innovate, hopefully aided by practice directions issued by respective high courts on the matter.”

Abhinav Sekhri

On the other hand, Nikita Sonavane, a lawyer practising in Madhya Pradesh, believes that it is important for both the courts and the legislature to imagine the beneficiaries of the provision of house arrest while reading it within the scope of Section 167.

Sonavane argues that in the case of marginalised communities, that form a bulk of India’s prison population, house arrest has the potential to act as a tool of perpetuating the surveillance and criminalisation of communities whose bastis and neighbourhoods are historically routinely subjected to police surveillance.

Additionally, the criteria set out by the Supreme Court for house arrest might also come in the way of its most desired goals: decongestion of prisons and reducing costs of incarceration. While claiming that such criteria might only benefit a minuscule section of prison population, Sonavane told The Quint:

“The mechanism of house arrest may benefit only a minuscule fraction of the prison population, who happen to reside in permanent housing (apartments or independent houses) where it is possible for house arrest to be carried out without impacting the life of their communities at large.”

Nikita Sonavane 

More Questions Than the Answers

When activist Sudha Bharadwaj was put under house arrest, the concept of “demarcation of space”, and of what constitutes a “custodial house”, included Ms Bharadwaj and her family. It included the natural inhabitants of the house.

While the inhabitants were allowed to go in and out of the house, they were still subjected to police surveillance. For certain communities, as Sonavane argued, the concept of “custodial house” might just subject an entire locality to penal police surveillance.

The decision of the Supreme Court is a minuscule move towards the principle of “de-carceration” – to question the very need for incarceration in the first place. However, in doing so, it imagines the house as a “carceral space”, by allowing it as a site for deprivation of liberty.

Therefore, the real move towards decarceration or decongestion of prisons has to address the very need of making arrests in the first place. The rate and reality of arrests in India has not shown strict compliance with the directions of the Supreme Court in Arnesh Kumar v. State of Bihar, where, among other things, the police was directed to make arrests only when it is “absolutely necessary” to do so. For instance, in cases that are punishable with imprisonment of seven years or less, the police should arrest the person only when there is a threat of escape or tampering with evidence.

The Supreme Court’s goal of decongesting prisons by legitimising house arrests can’t be realised without the proactive and efficient functioning of the lower judiciary.

The lower courts must not remand people to custody mechanically. They should properly consider the evidence and the nature of the case and give adequate reasons for remanding a person to custody.