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House Arrest: A Reaction to the Pandemic


By: Teesha Seth & Mansi Mishra* |




The Honorable Supreme Court of India, as of March 2020, recognized the urgent need to take preventive measures to halt the spread of coronavirus, given that Indian prisons were overcrowded to the extent of 117.6%, with the states of Uttar Pradesh and Sikkim accounting for 176.5 percent and 157.3 percent, respectively. There are around 70% under trials, and owing to a lack of adequate sanitation and healthcare facilities, prisoners have died in detention as a result of ailments such as heart disease, HIV, TB, cancer, and other diseases. Given this, the ongoing epidemic merely exacerbates the already deplorable circumstances in Indian prisons, giving the country a perfect breeding ground for the virus.


Faced with the challenge of social distancing in overcrowded prisons, the prison authority took steps such as isolating wards, quarantining new prisoners, staff, and service providers, regular screening of prisoners, supply of masks and sanitizers, limiting or prohibiting visits by lawyers and NGOs, and suspension of cultural and group activities. While prison officials asserted that they were implementing required preventative measures within current constraints, the inadequacy of these efforts, as well as the circumstances within jails, has been criticized. Things have been on the downhill slide since the outbreak of the second wave of Coronavirus, with 2802 inmates testing positive and 9 inmates and one staff member succumbing to the virus. In May 2021, the Supreme Court of India issued an order to decongest the jails and ordered the release of those convicts who were granted bail or parole the previous year for a term of 90 days, citing the overcrowding of the jails with prisoners over its optimal capacity.


Prison inmates are the most vulnerable people, depending on the prison authorities for their well-being. As a result, the state bears a higher duty for safeguarding their right to life and health. It is believed that jails are a mirror of democracy, and in that regard, our government needs significant improvement. The prison authorities' actions are more akin to a "make do '' attitude within restricted resources than a planned reaction to a pandemic crisis. Taking cognizance from the ongoing corona surge, the honorable Supreme Court of India, on 7th May ordered the state authorities to decongest the prisons and limit the arrests. However, in March 2020, when the SC ordered temporary measures to prevent the outbreak in prisons, the pandemic resulted in as many as 18,157 positive COVID-19 cases and 17 deaths in prisons last year.


This demonstrates that even though the jail officials claim to have taken all precautions such interim measures are insufficient. When it comes to the decongestion of jails, for example, the increased use of criminal justice machinery during the lockdown resulted in a large number of arrests, thereby canceling out the effect of the action.


According to a study by the Criminal Justice and Police Accountability Project, while the state government released 6,500 to 7,000 inmates to decongest prisons in Madhya Pradesh, just as many new under trial inmates (6,497 inmates) were added to the prison population in the months following the announcement of the lockdown. Furthermore, rather than being based on the vulnerability of the prisoners to the virus, the authorities' criteria for the release of prisoners on parole for decongestion purposes were solely based on how easily the risk of an outbreak inside prisons could be managed without disrupting the narrative of those who deserved to be imprisoned.


While isolation centers for quarantining incoming prisoners were built to control ingress into prisons and prevent virus transmission from outside to within the jails, such centers lacked basic cleanliness and medical treatment, rendering their entire purpose null and void. Activist Gautam Navlakha, an accused in the Elgar Parishad case, has highlighted the poor conditions of a school turned into a quarantine facility in Maharashtra. Wherein, 350 inmates were quarantined in 6 classrooms in a building, Navlakha having to share a room with 35 others. Moreover, the conditions of the toilets were also equally bad with only 3 of them and 7 urinals. To add to the existing woes is the lack of a defined schedule for immunizing jail prisoners with vaccinations, resulting in the impending threat of vaccine shortages.


HOUSE ARREST: AN ALTERNATIVE


On May 12, 2021, the Honorable Supreme Court in the case of Gautam Navlakha V. National Investigation Agency, while rejecting a default bail plea filed by the Bhima Koregaon case accused Gautam Navlakha, observed the merits of house arrest as an alternative form of detention during the pandemic.


The Court considered whether an order for custody, other than judicial or police custody, could be issued under Section 167 of the CrPC while dismissing Navlakha's application. The procedure under Section 167 of the CrPC applies when an investigation cannot be completed within 24 hours after an individual's arrest.


Under Section 167(2) of the CrPC, an accused is entitled to default bail, if the investigation has not been completed within the specified time period, depending upon the nature of the offenses.


The Court observed that, “Custody under Section 167 has been understood hitherto as police custody and judicial 204 custody, with judicial custody being conflated to jail custody ordinarily” it further noted that, “The concept of house arrest as part of custody under Section 167 has not engaged the courts including this court...We have formed the view that it [house arrest] involves custody which falls under Section 167”


While analyzing the issues at hand, the bench of Justices UU Lalit and KM Joseph went into great detail on the laws of home arrest in both the Indian and foreign contexts. The bench took the time to go over the pros and cons of home arrest, which are as follows:


History of House Arrest


House arrest has a long history, extending back to St. Paul the Apostle, who was said to have been kept under house arrest in Rome for two years. During that time, he was able to escape becoming a ward of the church or the state by paying his rent and working as a tentmaker. After a second condemnation trial in Rome in 1633, even Galileo Galilei, the great astronomer, was placed under house arrest. More recently, Czar Nicholas II of Russia and his family were placed under house arrest in 1917 and remained there until they died in 1918.


This historical practice of house confinement was mainly used to quiet society's political dissenters, similar to how India has done so in recent years for its political dissenters. Political Leaders like Mehbooba Mufti and Omar Abdullah were put under House Arrest, in the year 2019, during the abrogation of Articles 35A and 370 of the Indian Constitution. More recently, along with Gautam Navlakha, other Human Rights Activists such as Sudha Bhardwaj, Arun Ferreira, Vernon Gonsalves, and P Varavara Rao were also kept under House arrest in connection with the Bhima Koregaon-Case.

On the other hand, on a fairer and simple note, France created the notion of pre-trial imprisonment, which included the option of home confinement as an option for common criminals. Other European nations have also tried some form of home detention as a way of dealing with a range of criminals.


Basics of House arrest


House arrest entails a high level of law enforcement monitoring in which the criminal is confined to his or her house with only limited permission to leave for pre-approved reasons. In most situations, it is imposed as a deterrent to avoid incarceration and is imposed as a term of probation by the sentencing court.


Certainly, plausible speculations about house arrest include the possibility that some groups believe it is lenient in nature, while another fair point is that it is excessively humiliating, particularly for respectable members of society. However, a key benefit would be the avoidance of prison overpopulation as well as cost savings, both of which are urgently needed.


Another major source of worry has been the challenges that result from the absence of effective supervision of criminals on home arrest. The problem was overcome by the creation of electronic monitoring, which was inspired by a comic strip in which "Spiderman" was being tracked by a transmitter attached to his wrist. The judge consulted an engineer, who devised a bracelet that could be fastened to the criminal's ankle, which is now known as an electronic monitor, which warns authorities the moment the prisoner attempts to flee his home confinement.


House Arrest in India


In India, the concept of house arrest finds its roots in laws that provide for preventive detention, such as in Section 5 of the National Security Act, 1980, which provides for preventive detention. In the case of A.K. Roy v. Union of India, the Supreme Court observed “Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenu should have to suffer detention in such a place as the Government may specify.”


The essential principle of preventative detention is that the detainee should be held in a location that is close to his or her usual place of residence. Even if a detainee is needed to be held at or transported to a location other than his regular domicile, he should not be transported to a remote location that is likely to deprive him of the services to which he is entitled simply because of its distance. As observed by the honorable Supreme Court “Thus house arrests have been resorted to in India, in the context of law relating to preventive detention. What is however relevant is that preventive detention is also a form of forced detention. House arrest is also custody and forced detention.”


PAVING THE WAY FOR DECONGESTION


COVID-19 poses a higher risk to the people who reside in overcrowded places, more specifically, the Indian Prisons. It directly affects older people and individuals with underlying illnesses such as cardiovascular disease, diabetes, chronic respiratory disease, and hypertension. Considering the bad shape in which our prisons are, it is only reasonable to opt for House arrest for under trial prisoners, taking into consideration their 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.


With the initial spread of coronavirus cases last year, Colombia was one of the first countries to place around 4,000 prisoners under house arrest to lower the number of cases in prisons, prioritizing pregnant, disabled, or over 60-year-old inmates, women prisoners with children under the age of three, and those with cancer, diabetes, or cardiac problems - conditions that frequently lead to bad consequences when contracted with the virus. Those convicted of child sexual abuse, war crimes, crimes against humanity, drug trafficking, money laundering, and corruption, on the other hand, were not eligible. Neither were they detainees facing extradition demands from other countries.


Similarly, during the coronavirus outbreak in Italy in March 2020, inmates from over 40 jails protested for worries of transmission in overcrowded institutions, as well as limits on family visits and supervised release. As a result, the authorities set up email and Skype accounts for most inmates, as well as a plan to place those with less than 10 months left on their sentences under house arrest.


Similarly, the US Department of Justice has authorized the Bureau of Prisons to expand a program aimed at relocating inmates from federal prisons to their homes. This decision was made because, although the inmates had been vaccinated, the crowded conditions in the jails continued to aid the spread of the debilitating disease. Since the outbreak of the epidemic, the Bureau has placed 23,000 inmates under home arrest. The Bureau's home confinement authority was expanded by the passage of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which allowed the Bureau to place inmates in home confinement who had served less than 90 percent of their sentence or who had more than six months left to serve. The ‘totality of the circumstances” for each individual determines whether or not a prisoner is eligible for house arrest. Individuals' vulnerability to COVID-19, underlying health concerns, and whether they would have greater access to medical treatment in jail than at home are all criteria examined before granting house arrest. Personal risk considerations, such as an individual's crime of conviction and the feasibility of that person's re-entry strategy, can also be considered by the Bureau.


A democratic society such as India is very dynamic in nature and demands constant evolution as a fuel for its development. Such evolution is not restricted to a single sector of society, but rather impacts every one of its members in some way. In the present situation, there is a natural demand to introduce a change that works in favor of both the state’s duty to protect the civilians from the risk of prisoners and to give due consideration to the prisoners as well. Therefore, if the concept of house arrests is positively adapted and is ordered in appropriate cases, it will undoubtedly help to decongest jails, which is an urgent need at this time.


***


* The authors are students at Damodaram Sanjivayya National Law University, Visakhapatnam.



Image Source: https://www.thequint.com/news/law/sc-allows-house-arrests-as-custody-but-how-will-it-work-out