Edited and Published by Jeet Sinha

Abstract

This particular research paper Deals with the topic of the Aspects of House Arrest in lieu of Fundamental Rights. The topic it dwells upon is the fact that House Arrest is a provision that violates the aspects of the Indian Constitution and is violative of the Fundamental Rights of the People arrested. The aspects are violated because the arrested persons are kept in such a situation where they do not have the right to speak with any person and restrictions are placed on their movements with continuous surveillance.

The topic was selected by the author because it can be observed that House Arrest is a common method of detaining a person around the world and in India it has been used various times. The author after searching about the aspects of house arrest observed that when people are kept under house arrest, various types of constitutional provisions are being violated so there was a need to see the aspects where house arrest is coming in the way of a fair trial.

The research method used is doctrinal research. This involved analyzing the cases of House Arrest and The Indian constitution and existing case laws and news items and making an analogy of the same.

The researcher has found the questions intriguing enough while researching the topic:

• Whether house arrest is a violation of the fundamental rights of an accused and creates hindrances in a fair trial and whether the aspects of fundamental rights being violated have been recognized by the Courts in India.

Keywords- Arrest, accused, fair trial, House Arrest, Fundamental Rights, Privacy, Freedom.

Introduction

In a recent case of Farooqe Shaikh v. The Deputy Director & Anr.,[1] A bench of Justice AS Gadkari and Justice Shyam C Chandak observed that the duration of house arrest should be considered when determining the overall period of an accused person’s custody. This marks an important observation in the cases where a person is kept under house arrest as it is a kind of bail with conditions given by a condition and it has some implications as observed in the case.

House Arrest has not been defined in the Code of Criminal Procedure,1973 or any other law per se but it finds its position in Section 5 of the National Security Act,1980, and other types of preventive detention laws. Section 5 of the act allows the government to detain persons in any premises which may include their homes as well with conditions as to maintenance, discipline, and punishment for breaches of discipline as the government may specify.

Judicial Custody under Section 167 of the Code of Criminal Procedure, 1973 includes house arrest provisions as well as held in the case of Gautam Navlakha vs National Investigation Agency.,[2]. House arrest provisions are used as a condition for bail as per Section437(3) if Crpc, 1973, or specific punishment after conviction or during the pendency of a trial.

Background

House arrest has been used as a method to detain persons to prevent crimes and detaining persons who might be considered as a threat to society as a measure to ensure national security. Recently, on the occasion of Juma’t-ul-Vida, the last Friday of Ramadan, Jamia Masjid chief cleric Mirwaiz Umar Farooq was put under house arrest by the authorities and wasn’t allowed to attend the prayer at Srinagar’s Grand Mosque, about a statement said by him during one of his speeches.[3]

It has also been used as a method by the governments to silence political dissents as we might see in the cases of Burmese Activist Aung San Suu Kyi in Myanmar being placed under house arrest[4], activist Hu Jia was Barred From Leaving Home in China[5], etc. and many other examples where it can be observed.

The basic purposes of house arrest are to administer a reasonable punishment, protect public safety, save jail space for more serious offenders, and also help in the rehabilitation of victims in various cases.[6]

House Arrest is generally given in India as a condition for bail as per Section 167 of the Code of Criminal Procedure, 1973, and used in cases where there is a need for preventive detention as defined under Section 5 of the National Security Act, 1980 when the person is seen as a threat to India. The government has the power to decide the conditions and the place where the person might be kept. The guidelines for detaining a person at his ordinary place of residence were observed in the case of AK Roy vs UOI.[7]  

However, we observe in various instances that House Arrest curbs the fundamental rights of individuals and is often violative of Article 21 of the Indian Constitution.

Analysis of Aspects of House Arrest in India

Bail is not particularly defined under the Code of Criminal Procedure, 1973 but provisions related to bail are given under Sections 436-439 of the Act and the courts giving bail take the provisions mentioned under this section. The basic object of bail is to work on the principle that an accused is innocent until proven guilty and the object is to ensure the return of the accused to the trial and that the liberty of an individual is not curtailed.[8]

Also, it has been held in the case of State Of Rajasthan, Jaipur vs Balchand @ Baliay[9] that Bail is a rule and jail is an exception while adhering to the principles of fair trial and natural justice as enshrined in Article 21 of the Indian Constitution. Only in the situations mentioned under Section 41(1)(b)(ii) of Crpc is where the person might be kept in jail.

House Arrest may be used as a method to ensure that the accused might not escape the trial and that he may be present during the trial. Section 439 of the Crpc provides the power to the High Court and Sessions Court to direct the release of a person on bail on certain conditions. According to Section 437(3) of the Crpc, the court has the power to attach conditions while granting bail to a person which are:

• The person shall attend to the conditions of the bond executed
• The person shall not commit the same offense for which he is accused of or suspected.
• The person shall not make any inducement directly or indirectly to any person acquainted with the facts of the case and dissuade him from disclosing such facts.

The basic aspect of House Arrest during bail is to provide for a less severe form of imprisonment to the accused and ensure the principle of fair trial where a person is presumed innocent unless declared otherwise. The problem of overcrowding, as observed by the Hon’ble Supreme Court in a writ petition[10] can be solved through House Arrest. One of the Examples can be seen from the case of United States v. Murphy.,[11] where house detention was found to be cost-effective and a good way of ensuring the fact that family of the breadwinner doesn’t suffer and also the aspect where the person could be re-instigated into society.

But certain known conditions might be involved in a house arrest which might be involved in a house arrest that might lead to various restrictions on an individual, some of them being restrictions on movement, continuous surveillance, and visits by officers at home. This is among those aspects that destroy the basic aspects of bail, which provides for the restoration of liberty without hampering the due process of law.

But house arrest violates the Rights of an Individual by having tracing devices and surveillance on a person and arbitrary visits by officers destroy the Fundamental Right of comfort and privacy enshrined under Article 21 of the Indian Constitution and might be used by the government to silence disassenting opinions against their policies violating Article 19 of Indian Constitution. Also, the Judges have the discretionary powers to decide the conditions of bail as per Sections 167, 437, and 439 of Crpc which makes it a form of punishment that is arbitrary in Nature.

Deepak Joon vs. State.,[12]

In this case, the High Court of Delhi while giving anticipatory bail to a person, condition that the person had to give his location through Google Maps to make sure that the authorities could keep track of him. This case acts as a landmark where the courts got a precedent to give out conditions like having electronic surveillance over persons going through House Arrest.

Re: M.R. Venkataraman And Ors. vs Unknown.,[13]

This landmark case gave the power to magistrate to have complete freedom to decide the conditions which would set by him and the power to put the accused in any custody whatever he feels suitable and it is not limited to police or judicial custody. This increases the arbitrariness of law due to the fact that the Magistrate might set some arbitrary conditions that might violate the fundamental rights of the accused given under Article 21 of the Indian Constitution.

Gautam Navlakha v. National Investigation Agency.,[14]

The recent case of Gaurav Navlakha led to an enlargement of the word ‘custody’ and Supreme Court of India while interpreting the provisions of Section 167 of the CRPC held that house arrest can be considered as custody.

The legal reasoning given by the court was that the house arrest is leading to the restriction of accused person’s freedom of movement and the fact that it is a deprivation of liberty and a violation of the Fundamental Right of the accused to get a default bail after a person has spent a prescribed right of 60 or 90 days, which is a provision to ensure personal liberty under Article 21 of the Indian Constitution and is not merely a fundamental right and its importance was realized in order to preserve the personal liberty of the accused.[15]

In this case, by observing that the fact during a person’s house arrest, his rights under Article 21 are restricted, it must be counted as custody, the Hon’ble Supreme Court has given a new precedent ensuring Human Rights for the accused. This was observed in the Narda scam Judgement.,[16] where the importance of medical facilities for the accused. This judgment was also important in the aspect that it followed the Judgement of Gautam Navlakha where Section 167 of Crpc included house arrest as its part.

Farooqe Shaikh v. The Deputy Director & Anr.,

The case decided by the Bombay High Court hasobserved that the duration of House Arrest will be considered for calculating the overall period in which the person is in custody and also observed that House arrest is a form of arrest that essentially curbs the liberty of an individual which is a violation of an individual’s liberty as per Article 21 of the Indian Constitution, as ruled in the case of UOI v. KA Najeeb.,[17] where the right of a person being kept in custody without trial was being violated. This case ensured that the Fundamental Rights of the accused were not being violated when the person was being kept under custody without trial.

Analysis of cases in the light of Fundamental Rights

We get to observe that House Arrest is a method being used to detain persons and is used as a condition of bail in various cases. But if we observe the precedents set by the courts in India, we see that the courts in India got the powers to set up the conditions under Section 167 of the Code which is a condition where the courts might set up Arbitrary conditions during the custody.

We observe that prior to the case of Gautam Navlakha, the period of house arrest was not included in the custody, which denied the accused the right of default bail under Article 21 of the Indian Constitution because the courts never thought of House arrest as a form of custody which is a restriction of fundamental rights per se.

One of the conditions of House arrest includes continuous surveillance by the police which is a violation of the personal space of the accused as the person is being subjected to continuous surveillance is not getting his personal space, which was observed in the case of Kharak Singh vs State of UP.,[18] where the policemen visited at odd hours and the dissenting judges were of the thought that the surveillance was unconstitutional.

This was further observed in the cases until the Right to Privacy was held as a fundamental right in the case of K.S. Puttaswamy v. Union of India.,[19] and was held that the cases of MP Sharma and Kharak Singh must be read literally and interpreted as the law of the country.

The provision of electronic surveillance over the person detained under house arrest is a violation of the right to privacy and personal space and is a violation of principles given in the KS Puttaswamy Judgment[20] which are the right to have a personal space and the right to live with human dignity as held in the case of Francis Mullin v. UT of Delhi[21].

Electronic surveillance also acts as a violation of the Fundamental Right against self-incrimination provided by Article 20(3) of the Indian Constitution as the statement by the person under surveillance may be used against him in the court as evidence. Continuous surveillance is a de facto violation of privacy as it must be observed that Article 21 is one of the facets of Crpc which must be considered to ensure a fair trial and justice.

Also in the Gautam Navlakha case.,[22] we observe that the person was an activist who was put into house arrest. House Arrest of an activist can be used by the state to shut down disassenting opinions. The state has the power to put people into detention under the statute of the National Security Act, 1980 when the state feels that a person might be a threat to the country, but this power can be used by the state to put a break on the opposition or other political leaders of the country on the pretext that the person giving the statements is a threat to the country.

This act of the state violates Article 19 of the Indian Constitution as the dissenting voices might be detained by the method of house arrest to deter the people from speaking their opinions against the government which is a violation of the right of their freedom to speak and express themselves.  

The process of house arrest also violates the rights of the accused which also involves the right to a speedy trial which involves ensuring a fair and speedy trial for the accused to avoid unreasonable delays. The process of house arrest may lead to unforeseen delays and we can observe that in various cases the period of house arrest was not even considered as a period of custody, leading to unreasonable delays in trial.

The statute still has given powers to the magistrate to have complete freedom to decide the conditions of the custody and power to put the accused in any custody whatever he deems to be fit. This hampers the right to a speedy trial as held by the Hon’ble  Supreme Court as an important part of a person’s fundamental right.[23]

The aspect of giving House Arrest as a way of a bail condition is technically a defeat of the provision of bail which is given as a fundamental right and there must be scrutiny done in the provisions of house arrest to ensure fairness in the justice system and have a fair trial for the accused.

Conclusion

Through this paper, the author has tried to show the aspects of house arrest and the various aspects of house arrest and the provisions of house arrest where the fundamental rights of an accused are being violated due to the arbitrariness of various provisions in the Sections of the statutes and the powers of Government and the fact that if house arrest is given as a condition for bail, it is defeating the basic provisions of bail as a fundamental right given to a person.

It was also observed that in various cases, the courts have given conditions like tracking to the persons released on bail and unlimited discretionary powers to the magistrates to decide the conditions of detention of the accused, but we observe that those cases did not consider the aspects of fundamental rights given under Article 21 being violated and also the fact that the provisions might be a violation of fundamental rights causing hindrance in the fair trial of the accused.

Recently, a few cases observed that house arrest violates the fundamental rights of bail of a person and the recognition of the fact that House arrest is a form of arrest. It can be said that there is still a requirement to make observations in the light of fundamental rights to check the aspects of Fundamental Rights in the Indian Constitution being violated and the requirement to make note as to the accused losing the Right to privacy under Article 21 of the Indian Constitution. T

he fact that the statements of the accused under surveillance being used as statements against him thereby violating the Fundamental Right against self-incrimination. There is a need to check on the new observations in the provision of house arrest so that the rights of the accused are not violated and the fair trial of the accused is ensured and fairness in the justice system can be ensured.

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[1] Criminal Writ Petition No. 1153 of 2023

[2] Gautam Navlakha v. NIA, (2022) 13 SCC 542

[3] Correspondent (2024) Jamia Masjid closed, Mirwaiz Umar Farooq put under ‘house arrest’, Tribuneindia News Service. Available at: https://www.tribuneindia.com/news/j-k/jamia-masjid-closed-mirwaiz-put-under-house-arrest-607827 (Accessed: 16 April 2024).

[4] AFP (2021) Myanmar’s aung san suu kyi marks third month under house arrest – times of India, The Times of India. Available at: https://timesofindia.indiatimes.com/world/rest-of-world/myanmars-aung-san-suu-kyi-marks-third-month-under-house-arrest/articleshow/82337893.cms (Accessed: 17 April 2024).

[5] China: End unlawful practice of house arrest (2020) Human Rights Watch. Available at: https://www.hrw.org/news/2012/10/24/china-end-unlawful-practice-house-arrest (Accessed: 17 April 2024).

[6] Gainey, R. R.. “house arrest.” Encyclopedia Britannica, March 21, 2024. https://www.britannica.com/topic/house-arrest.

[7] AIR 1982 SC 710

[8]  Moti Ram case

[9] State of Rajasthan v. Balchand, (1977) 4 SCC 308

[10] In Re : Contagion Of Covid 19 Virus In … vs Unknown

[11] 108 F.R.D. 437 (1985)

[12] BAIL APPLN. 3684/2021

[13] (1947) 2 MLJ 202

[14] Ibid 22

[15] Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616

[16] CBI v. Firhad Hakim, 2021 SCC OnLine Cal 1642….

[17] UOI v. KA Najeeb (2021) 3 SCC 713

[18] Kharak Singh v. State of U.P., 1964 SCR 332.

[19] K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735…

[20] ibid 619

[21] Francis Mullin v. UT of Delhi 1981 AIR 746

[22] Ibid 22

[23]  Sheela Barse vs UOI AIR 1986 SC 1773