The curious case of Gautam Navlakha’s house arrest

Taking a closer look at the legal and practical aspects of house arrest, the author makes a case for pivotal reforms that the Supreme Court must make to strengthen criminal justice.

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IN recent times, considerable attention has been directed towards pivotal constitutional cases, notably those concerning issues such as marriage equality and electoral bonds.

While these cases are acknowledged as incremental steps toward the broader pursuit of civil and political rights, there exists a perceptible inclination within society to prioritise and emphasise their significance.

Regrettably, the broader discourse tends to overshadow cases that pertain to the interpretation of criminal law jurisprudence by the Supreme Court of India. Such cases wield substantial influence over subjects within the criminal justice system and individuals subjected to State actions.

A notable illustration of this pertains to the legal proceedings involving Gautam Navlakha, wherein the Supreme Court has crafted jurisprudential constructs surrounding house arrest within the ambit of custodial arrangements.

Background

Upon the occurrence of the Bhima Koregaon incident in Pune, the police initiated arrests of individuals implicated in the clash. Gautam Navlakha, a resident of Delhi, became one of the arrested parties.

Pune police, extending their reach to Delhi, sought to apprehend Navlakha and transport him to Pune for investigative purposes.

In response, Navlakha sought recourse with the Delhi High Court, seeking to impede the remand Order given by a magisterial court in Delhi to transfer him to Pune. The high court subsequently stayed the remand Order, and ordered that Navlakha Navlakha be subjected to 'house arrest'.

Also read: Supreme Court adjourns hearing on the dispute over Navlakha Navlakha's place of house arrest by eight weeks

Subsequent legal proceedings saw the Delhi High Court rescinding the remand Order and declaring the termination of the house arrest period, which endured for 34 days.

Following this development, Navlakha pursued the quashing of charges against him before the Bombay High Court, which was rejected.

Consequently, Navlakha had to submit himself to the National Investigation Agency (NIA), where he underwent 11 days in police custody in Delhi, followed by an additional 48 days in judicial custody in Pune.

Following this period, he filed a default bail application under Section 167 of the Code of Criminal Procedure (CrPC).

Coming to the law

Upon an individual's arrest, they can be detained either in police or judicial custody for a maximum period of 60 or 90 days, depending on the severity of the crime and potential punishment.

Since Navlakha was arrested under charges of Unlawful Activities Prevention Act, 1967, he could be detained for a maximum period of 90 days.

Section 167 of the CrPC has been incorporated considering the principles of personal liberty, stipulating that if the police fail to file a chargesheet within the specified time frame, the accused is entitled to default bail as an inherent right.

When the investigating agency failed to file the chargesheet within the statutory limit (in this case it was 90 days), Navlakha and his lawyer submitted an application for default bail in the court.

An issue arose regarding the number of days calculated while filing this application. The application correctly calculated this period, considering 11 days of police custody and 48 days of judicial custody. However, they also included 34 days of house arrest in Delhi as was earlier directed by Delhi High Court, totalling (48 + 11 + 34) = 93 days.

The Supreme Court was tasked with addressing the crucial question of whether house arrest could be deemed custody under criminal jurisprudence.

The judgment and its reasoning

A comprehensive examination of the judgment leads to the conclusion that the court made the following determinations:

1. The judgment acknowledged that house arrest can be considered a valid form of custody if authorised by a magistrate under Section 167 of the CrPC. However, Navlakha was not granted relief citing procedural lapse as the house arrest Order was given by Delhi High Court and not by a magistrate as mandated by the CrPC.
2. The classification of house arrest under police or judicial custody will depend on the circumstances of each case. Primarily, the court introduced a new dimension to the concept of custody, taking into account overcrowding and expenses in prisons. It cited the National Crime Records Bureau's (NCRB), 2019 data on prison statistics to support this perspective.

Where are the guidelines of house arrest?

The Supreme Court refrained from delineating specific guidelines pertaining to the conditions imposed during the house arrest.

In this case, the conditions of house arrest for Navlakha included restrictions such as his prohibition from leaving his residence and interacting with anyone apart from his lawyers and the regular occupants of his residence.

Also read: SC explains Law relating to Default Bail, House Arrest

On the other hand, the Narada scam judgment mentions that an accused should have access to medical facilities. This is just one such instance where the lack of guidelines can create inconsistency in the implementation of 'house arrest'.

The court underscored the versatility of house arrest, asserting that various factors can be considered by the court. The court elucidated that the criteria for considering house arrest can encompass elements such as the age and health of the accused, the individual's antecedents, the nature of the alleged crime, the necessity for alternative forms of custody and the feasibility of enforcing the terms of house arrest.

More importantly, the court emphasised that the criteria is not exhaustive, thereby granting trial judges significant discretion in formulating and imposing conditions during house arrest.

Too much discretion can lead to inconsistencies in the application of house arrest conditions. Different judges may interpret and apply the criteria in varying ways, resulting in unequal treatment for individuals facing similar circumstances.

The lack of uniformity in treatment undermines the principle of equal justice under the law. Excessive discretion increases the risk of abuse, as judges may impose conditions that are overly restrictive or punitive, infringing on the rights and freedoms of the accused.

Without clear guidelines, there is a possibility that judges might act on personal biases or preferences, compromising the objectivity of the legal process. When judges have broad discretion without clear parameters, there is a potential lack of accountability.

If conditions imposed during house arrest are perceived as arbitrary or unfair, it becomes challenging for individuals subject to those conditions to seek redress or challenge the decisions effectively.

To strike a balance, it is essential to establish clear guidelines that provide judges with enough latitude to consider individual circumstances while ensuring a level of consistency and fairness for house arrest conditions. This approach safeguards both the rights of the accused and the integrity of the judicial process.

House arrest: An elitist concept?

House arrest, characterised as a judicious blend of punitive measures with the dual aspects of societal stigmatisation and contemporary criminological principles such as deterrence, retribution and proportionality between the offence and penalty, represents a significant paradigm shift.

Mandated confinement within one's residence, as a court-ordered sentence, assumes paramount importance as an alternative to conventional incarceration, especially within various facets of the criminal justice system.

Also read: Newsclick case: Delhi High Court questions remand Order for not mentioning grounds of arrest

The applicability of house arrest under Section 167 of the CrPC is limited to a select group of accused individuals, specifically non-violent, low-risk offenders.

This restriction arises from the inherent consideration that individuals accused of non-heinous crimes may be eligible for house arrest for custodial purposes.

In contrast, those accused of more severe offences, such as murder, are excluded from house arrest due to the perceived constant threat to public safety they may pose.

Due to this, only 'non-violent, low-risk' offenders will be eligible for house arrest. Herein, the financial capacity of an accused becomes a pivotal criterion. Only those with the means to afford the programme are deemed eligible.

For instance, in the case of Navlakha, the court not only imposed specific conditions but also directed him to deposit an initial amount of ₹2.4 lakh. It is noteworthy that the court, upon concluding the house arrest period, acknowledged a total bill of ₹66 lakh, yet directed Navlakha to pay only ₹8 lakh.

This leads to the discernment that house arrest as a form of custody under Section 167 is an elite concept. The eligibility criteria, coupled with financial prerequisites, render this innovative and liberalised cost-saving approach exclusive.

Among the diverse accused individuals appearing before the magistrate, those accused of heinous crimes are inherently excluded from the prospect of house arrest.

Simultaneously, the financial prerequisites place a considerable burden on individuals from economically disadvantaged backgrounds and marginalised communities, perpetuating an inherent inequity in the application of this evolving legal principle.

Is house arrest an alternative to overcrowding in prisons?

The proposition advocating the introduction of house arrest due to prison overcrowding in Indian prisons relies on statistical data, emphasising the need for a reconsideration of police or judicial custody during the investigative phase.

However, it adopts an instrumentalist perspective, potentially overlooking the normative essence embedded within the foundations of custody.

Custody granted to an accused individual during the initial investigative phase, either for 60 or 90 days, does not solely function as a technical or procedural tool for retaining the accused because of allegations against them. It also constitutes a constitutional framework designed to uphold the integrity of the criminal justice system.

Also read: GPS trackers on prisoners will turn the whole world into an open prison

While discussions often centre around issues such as custodial torture and the rights of the accused during confinement— considerations of paramount importance— it is imperative to recognise that the foundation of our deliberation should not undermine the limited statutory and constitutional authority granted to law enforcement.

The law mandates that the police must submit the chargesheet within the stipulated time period of 60 or 90 days, and the judiciary should also take into account the vacancies for the post of police.

The sanctioned strength of the police across states was around 2.8 million in 2017 but only 1.9 million police officers were employed (a 30 percent vacancy rate). This makes it difficult for the police to investigate within the statutory time limit considering the workload and police–public ratio in India.

Suggestions

House arrest can be facilitated by implementing technology which would involve the use of electronic devices to enhance its efficacy.

One prevalent method that is employed in foreign jurisdictions is an electronic sensor, commonly known as an ankle monitor or tether, fastened around the offender's ankle.

The sensor transmits a radio frequency (RF) signal to a base handset, typically linked to a police station or a contracted monitoring service. The base handset acts as a central hub for monitoring the offender's movements.

Should the offender venture beyond the permissible limits defined by the house arrest conditions, the violation is promptly recorded, triggering an immediate notification to law enforcement authorities. Many ankle monitors are designed to detect any attempted removal or tampering, ensuring the integrity of the monitoring process.

This electronic monitoring system not only enhances the efficiency of house arrest but also presents a potential avenue for substantial cost reduction. By leveraging technology, the need for extensive security personnel is mitigated, leading to a more streamlined and cost-effective implementation of house arrest.

It not only addresses economic considerations but also opens avenues for broader inclusivity, making house arrest a more accessible option for a diverse range of individuals within the criminal justice system.

To formulate specific guidelines for house arrest, certain heads can be considered, as the condition of house arrest encompasses a three-tier classification predicated on the underlying purposes for departing from the confines of confinement.

The first head can be denominated as 'essential travel' and encapsulates excursions associated with occupational commitments, religious observances, vocational or educational pursuits, participation in self-enhancement programmes, engagement in public service activities and adherence to pre-arranged appointments with the supervisory officer.

Also read: All that is Wrong with Indian Budgets for Prisons

The second head, 'acceptable travel', encompasses movement originating from the residence directed towards the fulfilment of the basic needs of the community controlee. Illustrative instances of such travel include excursions for shopping, banking transactions, financial matters, medical emergencies and family exigencies.

The third head combines essential and acceptable travel. Notably, all three classifications necessitate antecedent authorisation, although movements classified under the rubric of family emergencies may transpire without pre-authorisation, contingent upon timely reporting, not exceeding the subsequent day.

Conclusion 

House arrest, while considered less stringent compared to imprisonment, constitutes a distinctive and contentious curtailment of freedom. Particularly under Section 167 of the CrPC, the notion of house arrest represents a novel introduction within the legal framework.

The absence of well-defined guidelines established by the Supreme Court can potentially lead to disparities in its interpretation and application among various high courts, which may contribute to confusion and inconsistent implementation of house arrest provisions across different jurisdictions.

Consequently, a clear and comprehensive directive from the Supreme Court is essential to ensure standardised and equitable application of house arrest within the legal system.