This Article is written by Kinkini Chaudhuri (currently a student of Amity University, Kolkata pursuing BBA LLB (H) and working as an Associate Editor at legalonus)
Introduction:
Another word for incarceration is imprisonment. House arrest (also known as home confinement, home detention, or, more recently, electronic monitoring) is a procedure in which a man is confined to his home by the authorities. Only people who own a home are permitted to be sentenced to house arrest. When travel is authorised by any means, it is often restricted. House arrest is an alternative to being incarcerated while awaiting trial or serving a sentence.
It is used by criminal justice systems all around the world, and it typically involves a variety of requirements. There are several sorts of house arrest, depending on the gravity of the situation and the court’s directives.
While home arrest can be used in criminal instances where jail time does not appear to be an appropriate punishment, the word is most commonly associated with authoritarian governments using house arrest as a form of repression against political dissenters. In most cases, the person who is under house arrest does not have permission to utilise any form of communication. Any electronic communication that is permitted will be examined. Some electronic monitoring equipment allows detainees’ talks to be monitored specifically by the unit itself.
How House Arrest Is Done:
The request for house arrest is accompanied by a set of severe rules and limitations. These can include the following:
1. Allowing the probation officer to contact you at any time to ensure that you are available.
2. Allowing the probation officer to search your home to ensure no drugs or alcohol are there.
3. Adherence to a fixed timetable
4. Becoming a drug and alcohol test subject
5. Participating in community service, counselling, or other therapeutic programmes.
When a judge can order a home arrest, there are some restrictions.
A judge can only order a person to be placed under house arrest if the following conditions are met:
1. the sentence of imprisonment is less than two years.
2. the offender has not been indicted for a criminal offence requiring a minimum amount of prison time.
3. the offender has not been sentenced for a heinous personal injury offence, a terrorism offence, or a criminal association offence prosecuted by indictment for which the maximum term of imprisonment is ten years or more.
4. the judge is satisfied that having the wrongdoer serve the sentence in the community is a viable option.
Although the terms of house arrest vary, most programmes allow employed wrongdoers to work and confine them to their homes only during non-working hours. Offenders are typically allowed to leave their house for specific reasons, such as trips to the probation office or police station, religious institutions, education, lawyer visits, court appearances, and doctor appointments. Many programmes also allow the offender to leave the house at pre-determined periods to perform normal household activities such as grocery/food shopping and clothing buying. Convicts may need to speak with higher-ups to ensure that they are at home when they are supposed to be. Guests are frequently allowed to visit the perpetrator in special instances.
The severity of different types of house arrest is determined by the court order’s requirements. A time limit may confine a guilty party to their home on specified occasions, usually during long periods of obscurity. Aside from the aforementioned unusual instances, “home confinement” or “detainment” requires a guilty individual to remain at home on a regular basis. Only court-approved treatment programmes, court appearances, and medical appointments are permitted during the most severe degree of house arrest, “home imprisonment,” in which an offender is restricted to their home 24 hours a day, seven days a week.
In unusual instances, an individual may be placed under house arrest without a trial or legal counsel, with restrictions on their activities. This type of detention without trial has been criticised in a few countries as a violation of the wrongdoer’s human right to a fair trial. The legislature may use such laws to silence dissent in countries with authoritarian political structures.
House Arrest in India:
The Code of Criminal Procedure includes a provision for arrest. House arrest is not mentioned in any of the codes.
House arrest is not something that is commonly used because it is only used in extreme circumstances.
Any individual can be placed under house arrest by a court with inherent powers, even if the provision isn’t spelled out in the law. This type of arrest differs from statutory arrest in that it restricts certain freedoms based on restrictions imposed by the court. For example, the Court may prohibit the use of the internet, computers, or telephones, as well as restrict meetings with journalists. The arrestee may have friends or family visit him or her at the Court’s request.
Advantage of House Arrest:
Access to medical treatment is one of the benefits of house arrest. The arrestee may have to pay the same price for his or her detention as if he or she had not been arrested. It’s possible that the state won’t be able to cover the costs. The cost of detention is also subject to the condition that the Court may impose.
Legal Basis:
The term “house arrest” refers to confining a person’s movements within his or her own home or any other location of their choosing. Aside from being unable to communicate, the individual is also under constant police monitoring. In India, constitutional courts have ordered police to place people under home arrest. Because the arrest was ordered by a constitutional court, this improvised arrangement does not allow the person to seek bail.
The Supreme Court of India once issued an order based on Article 142 of the Indian Constitution, which gives the court the authority to issue any orders necessary to complete justice in any case or matter before it. While the orders must not be in violation of existing laws, nothing stops the court from making decisions on matters for which no laws exist. The Supreme Court, on the other hand, did not provide any justification for its verdict in the Bhima-Koregaon case. In most cases, the court does not give explanations for its interim orders.
Before the Apex Court issued the home arrest order, the Delhi High Court was scheduled to free Navlakha, one of the five jailed campaigners. Navalakha had previously filed a separate high court petition challenging his arrest by the Pune police.
The Delhi High Court sought to free Navalakha, but the Supreme Court’s instructions prevented it. In truth, the HC’s approaches were correct: hear the evidence and make a quick decision. According to a senior counsel unrelated to the Bhima-Koregaon case who spoke on the condition of anonymity, what the top court has done is further violate the person’s liberty.
In India, a home arrest has only been recognised in the context of preventative detention laws till now. Section 5 of the National Security Act (a provision allowing for preventative detention) allows the government to detain a person in whatever location it sees proper.
The idea of home arrest has yet to be identified by the Supreme or High Courts in criminal proceedings, despite the fact that Article 22 of the Constitution (which deals with arrest and remand) does not apply to preventative detention. In criminal law, the purpose of remand is for the magistrate to use his judgement to assess whether a custodial interrogation of the arrestee is essential to uncover the truth in a certain instance. Is it possible that ‘house arrest’ falls under the definition of ‘custody’?
This question was recently answered affirmatively by the Supreme Court.
Conclusion: This ruling broadens the definition of custody, implying that interrogation in custody is now permitted even while under house arrest. In circumstances of remand, courts now have the authority to use a new alternative (which is effectively neither police nor judicial custody).
The Supreme Court may also be required to clarify:
1. The envisioned parameters for granting home arrest under Section 167 of the Cr.P.C. in order for lower courts to become familiar with the notion;
2. Whether the police would have the right to enter such a person’s home at any time for the purpose of conducting a custodial interrogation;
3. Whether the individual would have to be physically presented before the court to have his custody extended; and so on.
The purpose of clarification is to prevent its misuse. House arrests on a regular basis may not assist society to reduce crime. At the same time, the police must not be allowed to use the situation in any way.
Nonetheless, embracing the concept positively could be significant. To alleviate congestion and overcrowding in prisons, the Supreme Court recently approved the release of certain classes of offenders on interim bail, which could help prevent the spread of the coronavirus. If proper house arrests are imposed, it will undoubtedly help to decongest jails, which is a pressing need at this time.
