Indian Penal Code and Criminal Procedure Code are the legislations where substantive and procedural criminal law of India is mentioned. From theft to dacoity, stalking to gang rape, mischief to misappropriation everything about them is mentioned in these two main legislations. But the term HOUSE ARREST is not founded in them. A punishment for which no law is made or mentioned is being used at large. How?

The court uses ARTICLE 142 to provide complete justice when necessary in cases which are pending in court for a long time and this house arrest is a product of this article.

The question that arises here is that what exactly is House Arrest and how is it implemented?

When someone commits a less grave crime and the court interprets that he can be kept under surveillance at the comfort of his home or any other chosen place by the court he is said to be under house arrest. How is it implemented?

• He is confined to that place
• Restricted to have guests
• Permission is required to even contact electronically
• Can go to court proceedings, consult medicinal help
• In some cases, the offender is asked to wear an ankle bracelet so that his every movement can be monitored by officers
• Detection can be done that whether the offender has lawfully tried to escape the property or attempted to take the device out itself.

Can Anyone Apply for House Arrest?

If the convict has done a crime with less graveness and fits in the following criterion he is granted house arrest punishment by the court:

• If the offender doesn’t have a piled-up history of offenses.
• If this crime is his first
• If he is not a violent offender and if his crime doesn’t imply cause imminent harm to others
• Is a juvenile offender and is under parent’s supervision
• Have a good steady
• History of employment.

Earlier house arrest was used for those who were powerful and influencing people and their conviction might spur a revolt by their followers, so they were confined to their home so that their actions can be controlled while they can live comfortably at home.

Cases of House Arrest

It is used since time immemorial as an alternative to criminal imprisonment. 

• Aung San Suu Kyi, a Nobel peace prize awardee who lived 15 years in house arrest up till her release in 2010, and now again she is in house arrest for 3 months due to military rule in Myanmar. Now, here we can see that Aung San Suu Kyi is a very influential person in her country who was kept in house arrest to keep an emerging revolt away as much as possible.
• STATE OF RAJASTHAN AND ANOTHER V/S SHAMSHER SINGH, 1985: the respondent was detained under section 3 (2) of the National Security Act,1980 . after the respondent challenged his detention in Rajasthan high court, the court decided to keep him under house arrest with his family. Detenu was asked to take all the charges of house arrest on himself if the arrest was in his own house rather than in the dak bungalow or circuit house.
• At times even family keeps their members under house arrest like in the case of SUKHBIR SINGH V. STATE OF PUNJAB,2016. But the court dismissed this writ petition as it was not a confinement of an individual but she was under her parent’s custody simply.
• The most recent case related to house arrest took place against five activists namely
• Varavara Rao
• Sudha Bhardwaj
• Vernon Gonsalves
• Arun Ferreira
• Gautam Navlakha

This incident is known as the BHIMA KOREGAON CASE, where police alleged these people made inflammatory speeches and funded the Elgar Parishad meeting which infused violence. Now recently, when Navlakha pleaded for bail in 2021 supreme court rejected the plea saying that days in house arrest will not be considered under 90 day period under section 167.

one highlighted observation in all the above cases is that people who were detained in these cases were influential and to keep the law and order maintained court adopted this concept. One more example of it is of Mehbooba Mufti and Omar Abdullah of Kashmir who were kept in house arrest too when section 144 of CRPC was imposed.

House Arrest Used as an Alternate in Times of Covid

Now after covid started in 2019, cases of crime increased too. This led to overcrowding in jails which increased the state’s expenses in maintaining the prisons. So, the apex court suggested that in such times house arrest can be adopted for cases where crime is not severe. This was for those convicts who had punishment under 2 years and whose crime is not heinous. 

When you are living life at comfort,

Are you really punished?

Have you really learned lessons for your wrongs?

Aren’t thse questions we need to contemplate on?

Conclusion

People under house arrest,

live under their own nest.

For Fraud, theft, or embezzlement,

in jail or lockup, they are not sent.

Are kept in their house and

asked  to own up all their  expense.

Though the court is using HOUSE ARREST to punish convicts from a long time but many lawyers and others who are concerned about laws in India condemn this law and have challenged it. Neither they get properly punished and nor they are considered under punishment. The rights of prisoners are exploited through this. But the ideology behind this court is to maintain peace in society. This is considered as a dangerous precedent but on contrary to the above statement it also has its pros. Thus, the law on house arrest in India is controversial.

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Author: Kusum Kapuria from Delhi University.

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