On Thursday, the Supreme Court allowed human rights activist Gautam Navlakha, who has been in Taloja jail since April 2020 in the Bhima Koregaon case, to be placed under house arrest for a month. The activist, who is 70 years old, said that he was suffering from various health ailments and had asked to be shifted out of jail.

While ordering house arrests, courts have the power to impose conditions as they deem fit, so that the trial is not hampered. In a 2021 case, the Supreme Court ruled that house arrests can also be used as a form of detention. It made a list of illustrative conditions, such as the age and health of the accused, where courts could sentence a person to house arrest.

Navlakha was arrested in 2018 for alleged conspiring to foment caste riots outside Pune in January that year. Fifteen other activists, academics and lawyers were also arrested in the case. They have also been accused of plotting to kill Prime Minister Narendra Modi and of having links with the banned Communist Party of India (Maoist).

Almost four years later, the trial has not commenced in the case. Forensic experts have claimed that the evidence against these activists might have been planted on their electronic devices using a malware. In August, the Supreme Court directed that the charges in this case be framed within three months.

Conditions in Navlakha’s case

In Navlakha’s case, the court imposed an extensive list conditions that he has to follow. Otherwise, the house arrest could be cancelled, the court said. These conditions are:

  1. Navlakha has to stay in Mumbai.
  2. His house will be put under surveillance, with police personnel stationed outside.
  3. Surveillance cameras will be installed outside rooms and at the entry and exit points of the residence.
  4. Navlakha cannot leave the house, except for walks in the company of police personnel.
  5. He will have no access to the internet or any communication devices.
  6. He can make one phone call per day, extending up to 10 minutes, on a cell phone provided by the police. This phone call will be in front of a police officer.
  7. He cannot use any other phone, including that of his partner’s (with whom he will be staying). Even his companion’s phone cannot have internet and she cannot delete texts or calls made from that phone.
  8. The National Investigation Agency can surveil the calls and messages of Navlakha and his partner.
  9. A maximum of two family members can visit him once a week for three hours. When these visitors come, no electronic gadgets will be permitted.
  10. Navlakha can read a newspaper and access cable television.
  11. He can meet his lawyers according to prison manual rules.
  12. He cannot contact any witnesses in this case.
  13. Navlakha has to submit a surety for Rs 2 lakh.

In addition, Navlakha will have to pay for the cameras installed in his house. If he is acquitted, the amount will be reimbursed to him. The court said that it will later decide whether Navlakha should also pay other expenses, such as the cost of police personnel deployed at his home.

Gautam Navlakha. Tauseef Mustafa/AFP

Powers of house arrest

House arrest is a form of detention where a person is not kept in prison but at their residence. However, they are still not free as a person out on bail.

House arrests are primarily used in preventive detention in India, that is before an accused has allegedly committed an offence. However, in 2021, in a case involving Navlakha, the Supreme Court recognised it as a form of arrest as well.

Under Section 167 of the Code of Criminal Procedure, when an investigation is ongoing, a court has the power to send an accused to “such custody as such Magistrate thinks fit”. This is commonly used as either police custody or judicial custody. Once the investigation is complete, an accused is usually kept under judicial custody.

However, the court, in 2021, noted that courts are “free to employ it [house arrests] in deserving and suitable cases”. It laid down a set of illustrative factors that have to be looked at. These are age, health conditions, nature of the case, the accused’s history, the requirement for other forms of custody and how enforceable the terms of house arrest are.

It also left it to the legislature to deliberate on its use in cases where an accused has been convicted, noting that the prisons in India are overcrowded and involve maintenance.

Relying on this case, the Calcutta High Court in May last year sent four Trinamool Congress legislators, who were accused of corruption, to house arrest. It said that the three legislators had been hospitalised, and considering their age and medical health, they can be sent to house arrest instead of prison. However, in its order, the court said that during the house arrest they shall be entitled to all medical facilities and be bound by all “applicable restrictions”, without elucidating what these restrictions are.

Previously, in 2018 as well, when Navlakha had approached the Delhi High Court challenging his arrest, the court sent him for house arrest, which lasted 34 days. During this time, the court had ordered that two guards be posted outside his house and that Navlakha should not step outside of his house or meet anyone except his lawyers and the ordinary residents of the house.

When another Bhima Koregaon accused, Sudha Bharadwaj, was put under house arrest in 2018, her daughter had written a letter describing how house arrest is only slightly better than jail. Bharadwaj had multiple restrictions on movement and had to share her flat with police officers, her daughter wrote.

Bhima Koregaon accused Vernon Gonsalves, Arun Ferreira, Gautam Navlakha, Sudha Bharadwaj and Varavara Rao.

Court’s power to impose conditions

The purpose for people accused in a case being detained before they are convicted is to ensure that they do not flee or tamper with the evidence, and so hamper the trail.

While allowing house arrests, the courts have the power to impose conditions they deem fit. Even while granting bail, courts have the power to impose conditions on the accused, so that they do not commit any offences and does not hamper the investigation. Further, in the interests of justice, courts can impose any “such other conditions as it considers necessary”.

This provision has been used by courts to impose conditions such as fines or community service which have been termed as harsh by legal experts and often lead to an accused person being punished even before they are convicted. At times, such bail conditions have been set aside by higher courts.

When Varavara Rao, another accused person in the Bhima Koregaon case, was granted medical bail in February 2021, the court ordered him to not leave Mumbai. He complained that he could not afford the rent in Mumbai but could not return to his home in Hyderabad.

In addition, the Bombay High Court prohibited him from having any gathering of visitors except close relatives at his residence and from establishing contact with co-accused or anyone involved in similar activities, directly or indirectly, that he has been accused of committing.