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Journalism of Courage
Petty offences home arrest: Supreme Court judge Justice Augustine George Masih recently advocated “home custody” for petty crimes and low-risk offenders by the use of technology to decongest overcrowded jails of India. He also suggested rethink the concept of custody.
Confinement need not always be behind concrete walls and lawful restraint could now be enforced through technology such as GPS-enabled home custody which could serve as a valid form of confinement, he asserted.
The concept entails keeping the accused person within the confines of his/her home under clearly defined guidelines related to his movement and conduct.
In India, the provision of house arrest has been defined as discretionary power of the government under section 5 of the National Security Act, 1980. A “preventive detention” and allows the government to specify where and how they are held, including provisions for transfer between detention centres. However, it does not cover undertrial inmates who are locked in prison.
A 1973 Report by the ‘Expert Committee on Legal Aid’ titled ‘Processual Justice to the People’ recommended various reforms such as implementation of less punitive measures on undertrials including home custody by imposing restrictive conditions. The report advocated this to shield accused undertrials from possible harmful exposure to convicts.
The latest Prison Statistics India 2023 report, released in September by the National Crime Records Bureau (NCRB) revealed the state of overcrowded prisons in India with undertrials constituting 73.5 per cent of all prisoners.
According to the report, India had at least 1,332 prisons housing at least 5.3 lakh inmates as of December 31, 2023 of which 3.84 lakh were undertrials.
According to the report, Delhi’s prisons have an alarming 200 per cent occupancy rate with an overall occupancy rate of 120.8 per cent in 2023.
Total 1,318 women were living with 1,492 children in Indian prisons in 2023 of which 1,049 were undertrial prisoners.
Number of foreign inmates in India’s prisons also rose by 10.7 per cent , from 6,283 in 2022 to 6,956 such prisoners in 2023. Of these, 74.3 per cent were undertrials and 21.5 per cent were convicts.
Around 44 per cent of inmates were from the age group of 18 to30, and 43 per cent from the age group of 30 to 50. A quarter of all prisoners were not educated, and over 40 per cent had not studied beyond Class X.
GPS-based anklets are used by authorities in South Korea to hold low-risk offenders in their homes instead of imprisoning them in jails. This includes imposition of restrictions by the courts to prevent the person from committing any offence again.
In the USA, an undertrial is known as “pre-trial detainee” or a “defendant”. They may be released by the court on adherence to various conditions such as restricted movement, a fixed place of education or employment, if any. US laws do not permit excessive bails which prompts the courts to allow less restrictive measures of incarceration.
Conditional release is known as a ‘doorstep condition’ in the United Kingdom, in which authorities detain the accused in a particular address and the police take a check on the undertrial at regular intervals.
In France, undertrials can be placed under home custody, known as “house arrest with electronic surveillance” (assignation à résidence sous surveillance électronique), as an alternative to pre-trial detention. According to Article 137 of the French Code of Criminal Procedure, a judge can order house arrest with electronic surveillance under specific conditions.
Senior advocate Pramod Dubey called the concept of home custody a reformative step for Indian prisons.
“There is no point keeping low risk offenders in prisons, instead the burden should be eased on Indian jails by the use of technology. We should shelve the colonial rules originating from punitive measures and should focus on reformative steps,” he said.
Dubey pointed out that keeping low risk offenders behind the bars puts the burden on the exchequer also with money being spent on such inmates while they are incarcerated.
Advocate Abhijit Shankar, who has worked as an empanelled lawyer of Tihar Jail, underlined the burden on the prisons and said they were not designed for petty, low‑risk offenders, who gain little from incarceration and often emerge more criminalised than when they entered.
The core proposition, that confinement need not always be behind concrete walls but can be enforced through calibrated, tech‑based restraint offers a practical way to reduce congestion in central prisons like Tihar while preserving public safety and the authority of court orders, he added.
“From inside Tihar, low‑risk and first‑time offenders are routinely seen being exposed to hardened criminals, despite best efforts at classification and segregation, and this environment often accelerates criminalisation rather than rehabilitation. Overcrowding also makes individualised sentence planning, counselling, and skill‑building difficult to operationalise in spirit, even where policies exist on paper,” Shankar said.
The lawyer, however, said any technology tracking of the prisoners must operate under Article 21 and the right to privacy, as underscored by recent Supreme Court decisions disapproving bail conditions that enable intrusive, continuous location surveillance without adequate safeguards.
“From my experience within Tihar Jail, I strongly believe that technology-enabled home custody for low-risk offenders can transform India’s correctional system. It can reduce overcrowding, promote rehabilitation, protect families from disruption, and bring India closer to global best practices in humane and smart corrections,” Shankar added.
He said the success of such a system depends on strong legal safeguards, phased implementation, adequate training, and societal awareness and if these challenges are addressed thoughtfully, India can lead the region in modern, rights-centric correctional reform.
