House Arrest: A window of opportunity A factsheet on is history, relevance and use, especially when it comes to political prisoners

14, Jun 2021 | CJP Team

House arrest which is also known as home detention, refers to home confinement or electronic monitoring. It is one of the official methods to restrain the movement of an individual by confining the movement of the person to the residence.


Factsheet on House Arrest

 The imposition of home confinement by the courts can be traced back to the medieval period of history. For example, the infamous second trial of 1633 when Galileo Galilei, was put under the house arrest for the rest of his life. Or that of St Paul, who, at the age of 60 was awarded house arrest for two years where he continued his profession as a tent maker and paid his own rent.  In the modern era also, many countries resort to home confinement rather than sending a person to prison. In more recent times in the West, some societies use it post-trial and conviction as confinement with surveillance. Elsewhere, house arrest has been used to repress political dissent before trial.  In 1983, a Boston court awarded a convict for house arrest with electronic bracelet (to track movements).  Aung San Suu Kyi, a political leader from Myanmar, was placed under house arrest from 1989 to 1995, and again, from 2000 to 2002, by the nation's military junta.
 Recently, the Supreme Court of India suggested (May 12, 2021) that due to Age-related issues of undertrials and prisoners, overcrowding and cost to the state exchequer, house arrest as an option should be considered by the courts.  Revocation, Recidivism, and Supervision- An examination of house arrest revocation and recidivism statistics establishes that home confinement is a viable alternative to incarceration.  Those on house arrest can also continue to maintain relationships with family and friends, seek medical assistance when needed and generally be in a less hostile and confining environment while still under some restriction and surveillance.
 There is a persistent problem of overcrowded prisons and high cost for their maintenance.  The total budget for the financial year 2019-20 for all prisons in the country was Rs.6818.1 Crore.  A total of Rs.2060.96 Crore was spent on inmates during 2019-20 which is almost 34.59% of total annual expenditure of all prisons for that year  The number of under trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05 per cent of the total no. of prisoners.  The prisons had to be de-congested by high powered committees at state level in order to check the spread of Covid-19 pandemic in prisons.  The Supreme Court and even high courts had observed that over-crowded prisons could become breeding grounds for spread of Covid-19 virus among prisoners as well as the staff. There have been reports of under-trials testing positive for Covid-19 while incarcerated. These issues could have been alleviated if practice of “house arrest” was implemented in India for certain category of undertrials.
 According to the data published by the National Crime Records Bureau (NCRB), there were a total number of 1350 prisons as of the year 2019, consisting of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails.  The occupancy rate of these prisons has climbed to 118.5% in 2019 as on December 31, 2019.  The number of under trial prisoners in 2019 was 3, 30,487 which in fact constituted 69.05% of the total no. of prisoners. Delhi had the highest occupancy rate of 174.9% followed by Uttar Pradesh which came second with 167.9%.  In Delhi where the prison meant for 100 persons has been occupied with 174 persons.
 In January, 2020, the Supreme Court has stayed the Bombay High Court's Order putting Rakesh Wadhawan and his son, Sarang Wadhawan under house arrest. They were accused in the Rs. 4,355 Crores in Punjab and Maharashtra Co-operative Bank Scam, and were put under house arrest to facilitate the sale of assets for recovery of dues.  In December 2020, Delhi High Court had permitted Jamia Millia Islamia student Asif Iqbal Tanha, arrested in a connection with northeast Delhi riots earlier this year, to shift to a guest house to enable him to study and appear in examinations.  On May 12, 2021 the Supreme Court, while considering Gautam Navlakha’s bail plea, has observed that in appropriate cases, Courts can order house arrest under Section 167 of Code of Criminal Procedure, 1973. The Court has said that to order house arrest, Courts can consider criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest.  On May 21, 2021 the Calcutta High Court put four TMC leaders under house arrest in the interim that the court decided whether to grant them bail in the Narada sting operation case.  In September 2018, the Supreme Court had extended interim protection of house arrest to Sudha Bharadwaj, Arun Ferreira and Vernon Gonsalves, all accused in the Bhima Koregaon case, in order to allow them to prefer bail before the appropriate court.
 Although there is no explicit mention of “House arrest” under the India law for arrest and detention but the ambiguous wordings of Section 5 of the National Security Act, 1980 which provides for power to regulate place and conditions of detention can be put to use to advocate for house arrest as a mode of preventive detention.  Section 5 of the National Security Act states that a person can be detained in such place and under such conditions as deemed by the government.  The High Court had after quashing the order of detention on certain grounds, directed a different kind of confinement for the detenue. The detenu was to be released from the central jail but thereafter it was directed that the detenu be placed under house arrest or in place like Dak Bungalow or Circuit House with members of his family consisting of his wife and children (State of Rajasthan and Ors. v. Shamsher Singh AIR 1985 SC 1082).  After Article 370 was revoked, Jammu and Kashmir’s prominent political leaders including Mehbooba Mufti and Omar Abdullah were placed under house arrest for 14 months and 7 months, respectively, as a form of preventive detention.  News reports suggest that as many as 16 political leaders in Jammu and Kashmir were put under house arrest after August 5, 2019; some of them were initially detained in prisons and were later shifted to their homes under house arrest  Until Supreme Court’s order in the Gautam Navlakha’s default bail plea (May 2021) the concept of house arrest was only considered in cases of preventive detention. In fact, Navlakha was only kept under house arrest for 34 days before being remanded to judicial custody.  It was in this case that the issue of house arrest as custody under the Criminal Procedure Code received judicial scrutiny as 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.
 The Supreme Court in a majority verdict held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases.  “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,” said the court.  The court laid out factors like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, to be the criteria for house arrest, but these factors were not deemed to be exhaustive  The court was of the opinion that house arrest would directly address issues like overcrowding in jails, and the high costs of running and maintaining prisons.
 A political prisoner is an individual who has criticised the government for their action on policy and or ideology which resulted into imprisonment.  Political prisoners are often faced with either answering to charges that are manufactured to fit the situation or being held without cause, or exaggerated, depending on the socio-legal structure of the government or regime in power.  Political prisoners are regarded as different from common criminals, because the former are involved in some type of group struggle against ruling elites, whereas the latter’s activities typically involve an element of satisfying self-interests.  Potential political prisoners may be considered dissidents, revolutionaries, social reformers, or radical thinkers, depending upon the nature of their activities and how their activities are interpreted.  In India, few governments have evolved any legal understanding around the issue of political prisoners. Only West Bengal engaged with this issue and, in 1992, passed the West Bengal Correctional Services Act that provides not just for residence in correctional homes but, under Section 19(4) special categorisation of a prisoner as a political prisoner. Any offence committed or alleged to have been committed in furtherance of any political or democratic movement is regarded as a political offence. Even in West Bengal, subsequent amendments have curtailed the definition of the term.
 The concept of the political prisoner is generally linked with the autocratic regimes of the early 20th century under the dictatorships of Joseph Stalin, Adolf Hitler, and Benito Mussolini; most states have found it necessary to imprison political opponents whose extremist ideologies or actions were perceived as inherently dangerous.  According to the Cuban Commission for Human Rights and National Reconciliation, as of October, Cuba was holding 109 political prisoners. The government denies independent human rights groups access to its prisons. The groups believe that additional political prisoners, whose cases they have been unable to document, remain locked up.  There is no official segregation of prisoners as political prisoners in India however, many under trials including the accused in Bhima Koregaon case and those accused in the conspiracy case of Delhi violence, 2020 are considered as political prisoners  Considering the prison condition of India, many imminent personalities have requested to release of political prisoner on bail in view of the outbreak of Covid-19.



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