(This is a guest post by Sarthak Gupta and Tarun Agarwal)
On July 8th, 2024, the Supreme Court delivered its decision in Frank Vitus v. Narcotics Control Bureau, (2024). It held that the bail condition directing the accused to drop a PIN on ‘Google Maps’ to ensure that their location is available to the investigating officer is unconstitutional as it violates the right to privacy under Article 21 of the Constitution. The decision implicitly endorses the proportionality standard for bail conditions and critiques the court’s past rulings that imposed similar onerous conditions, marking a significant step in protecting individual freedoms. At the same time, the Court’s reasoning falls somewhat short of delivering a transformative interpretation of the law. As I argue here, it could have adopted a different line of reasoning to reach its conclusion, potentially leading to a binding precedent and more robust development of privacy jurisprudence.
Courtroom Kaleidoscope, Bail Bedrock
The trend of imposing electronic monitoring and GPS tracking as bail conditions is evident across various courts in India, demonstrating a consistent yet potentially arbitrary approach to bail jurisprudence. The SC in Vernon v. Union of India, while granting bail to Vernon Gonsalves and Arun Ferreira in the Bhima Koregaon case, mandated 24-hour GPS monitoring and phone pairing with the investigating officer. A similar condition was imposed on another Bhima Koregaon accused, Shoma Sen. The SC has followed such arbitrary conditions in a bail order in the case of State of Uttar Pradesh v. Maulana Kaleem Siddiqui, allowing the accused to use only one mobile phone with location setup open so that his location could be traced at any point in time by the investigating agency.
This pattern extends to HCs. The Delhi HC in Neha v. State (NCT of Delhi) imposed a condition that the Applicant was to ‘drop a pin’ on Google Maps so that the SHO/IO can verify the presence and location. In State of NCT of Delhi v. Sanjeev Kumar Chawla it issued similar conditions noting that ‘[d]igital and electronic equipment, as presently used in America, ought to be introduced in India, so that a tracking system similar to the GPS Tracking System, can be used to monitor the movement of the accused released on bail, allowing the authorities to gather information all the time while permitting the accused to undertake the usual and ordinary activities of normal life.’ From what I could gather, the Delhi HC has regularly imposed such a condition in 2024: more than 60 cases came up during my research.
The use of such conditions by pointing to foreign jurisdictions fails to consider that in other jurisdictions, there are specific statutes that allow such conditions to be imposed. For instance, in the UK, electronic monitoring is permitted under the Terrorism Prevention and Investigation Measures Act, 2011. In the USA, electronic monitoring is permitted under the Adam Walsh Child Protection and Safety Act, 2006, which allows for electronic monitoring as a condition of supervised release or probation for certain sex offenders. In Malaysia, legal frameworks on electronic monitoring have been developed by amending existing legislation and enacting new laws, such as the Prevention of Crime Act of 1959, the Security Offences Act, 2012, the Dangerous Drugs (Special Prevention Measures) Act,1985, and the Criminal Procedure Code. In Canada, the Criminal Code of Canada allows for the use of electronic monitoring as a condition of parole, conditional release, or probation for certain offenders. In Australia, the Crimes Act 1914 and various state-level laws permit the use of electronic monitoring for certain offenders. In India, there is no similar provision anywhere, and nor do the new criminal laws provide for it.
The Punjab and Haryana HC has also been particularly stringent, as seen in cases like Samar Gakhar v. State of Punjab, and Hussain Abbas alias Tippu v. State of Haryana wherein it not only mandated GPS tracking but detailed smartphone usage rules, including restrictions on clearing history and formatting devices. Similar conditions were imposed in many other bail matters including Gursharanjit Singh @ Sunny v. State of Punjab and Umed Singh v. State of Haryana (all by the same bench). The arbitrary nature of these impositions was escalated by the HC of Jammu and Kashmir when in a UAPA case it became the first to mandate the wearing of a GPS-enabled tracking device as a bail condition.
This diverse yet consistent application of technologically invasive bail conditions across different courts and jurisdictions underscores a growing trend in Indian Tech-Enabled Bail Jurisprudence. While the conditions aim to ensure compliance with bail terms, their widespread and often indiscriminate application raises significant concerns about the balance between judicial discretion and fundamental rights, particularly in the context of privacy and the presumption of innocence.
The Limits of Judicial Review and Unaddressed Legal Questions
The judgment in Frank Vitus noted that a GPS tracking condition had been imposed by the Supreme Court in bail orders earlier, but refrained from commenting further, noting that it was ‘not called upon to decide the issue of the effect and legality of such a condition’. This rather cautious approach introduces a problematic ambiguity into the jurisprudence on such bail conditions. By acknowledging that similar conditions may have been imposed in other cases without going further, the Court implicitly admits to a pattern of potentially unconstitutional practices that have gone unchallenged. This underscores a systemic issue where rights-infringing conditions may be, and arguably are, routinely imposed without proper legal examination, allowing unconstitutional practices to persist.
Perhaps most problematically, Frank Vitus does not definitively settle the issue either even after raising it and specifically dealing with GPS tracking conditions. By focusing on the technical ineffectiveness of the bail condition in this particular case and the potential impossibility of obtaining an embassy certificate, rather than providing a comprehensive constitutional analysis, the Supreme Court leaves the door open for similar conditions to be imposed in future cases under different circumstances. The Court's failure to establish clear, binding principles regarding the use of surveillance technology in bail conditions is a missed opportunity. Instead of setting a precedent that the rest of the judicial pyramid can follow, the judgment effectively delegates decision-making to a case-by-case basis. This approach will only perpetuate the currently arbitrary use of such conditions (and arguably other conditions as well). Further, by not definitively ruling on constitutionality of such surveillance-based bail conditions in general, the Court has potentially prolonged legal uncertainty. This ambiguity may encourage law enforcement and prosecutors to continue pushing for such conditions, leading to further litigation and potential rights violations before the issue is conclusively settled.
Road Not Taken
Building on the limitations of the Court's approach, a more decisive and comprehensive ruling on the legality of surveillance-based bail conditions would have strengthened the judgment's impact and provided clearer guidance for future cases. The Court could have established clear principles by explicitly addressing the constitutional dimensions of such conditions to allow for more consistent assessment rather than courts merely invoking privacy and then being left to do as they please. For example, a detailed proportionality analysis, combined with an assessment of the 'tripod test' of risks, would be necessary. This integrated framework, drawing on established principles, offers a systematic method for determining whether an infringement on fundamental rights can be justified within the context of bail conditions.
Proportionality analysis involves a four-pronged test: Firstly, the condition must pursue a legitimate aim. While ensuring the accused's appearance in court and preventing flight risk are undoubtedly legitimate objectives of bail conditions, the question to be answered (and left unanswered in Frank Vitus) is how continuous GPS tracking specifically advances these aims beyond traditional methods. Secondly, the suitability prong requires that this tool be rationally connected to the objective. Chandrachud J. (then) in Mohd. Zubair v. State of NCT of Delhi while referring to Parvez Noordin Lokhandwalla v. State of Maharashtra noted that the bail conditions must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them, ensuring a balance between the liberty of the accused and necessity of a fair trial. Here, the technical limitations of the "drop a PIN" feature, as elucidated by Google's affidavit, cast doubt on whether the condition could effectively achieve its purported aim.
The third prong of necessity demands that the measure must be the least restrictive means available to achieve the objective, which Frank Vitus could have more thoroughly explored alternative, less intrusive measures such as periodic check-ins or travel restrictions, which might adequately serve the same purpose without the pervasive privacy implications of constant location tracking. Finally, the last prong of balancing requires a careful weighing of the degree of rights infringement against importance of the objective. Continuous GPS surveillance represents a significant intrusion into the accused's privacy, liberty, and freedom of movement—rights retained by those on bail. The Court's cursory treatment of this balancing leaves much to be desired, particularly given the presumption of innocence that should inform pre-trial measures.
Moreover, the proportionality test could have been applied in conjunction with the 'triple test' of risks traditionally considered in bail i.e. i) Risk of reoffending; ii) Flight risk, and iii) Risk of tampering with evidence and influencing witnesses. The Supreme Court could have thus established a comprehensive framework for evaluating surveillance-based bail conditions requiring courts to:
1. Identify the specific risk(s) the condition aims to address (from the triple test).
2. Assess whether the surveillance measure is legally sanctioned and pursues a legitimate aim.
3. Evaluate if the measure is suitable for addressing the identified risk(s).
4. Determine if less intrusive alternatives could effectively mitigate the risk(s).
5. Balance the degree of intrusion on the accused's rights against the importance of addressing the identified risk(s).
This integrated framework would provide a more nuanced and rights-respecting approach for imposing bail conditions. It would ensure that surveillance measures are employed when strictly necessary and proportionate to the risks, thereby safeguarding the accused's fundamental rights while addressing legitimate concerns of the criminal justice system. Such a framework could have offered lower courts with a clear, constitutionally grounded approach, to evaluate proposed surveillance-based bail conditions, promoting more consistent and rights-respecting decision-making across the judicial system.
A forward-looking judgment could have addressed not just the specific GPS condition at issue, but also set guidelines for the use of other current and potential future surveillance technologies in bail contexts. Finally, the Court could have emphasized the exceptional nature of surveillance-based conditions, explicitly stating that they should be considered as a last resort when less intrusive measures are demonstrably insufficient. This would have reinforced the presumption of innocence and the principle that bail conditions should be least restrictive, necessary to ensure the accused's appearance and the integrity of the judicial process.
Notes from foreign fields:
Use of electronic monitoring as a pretrial condition has become increasingly prevalent in various jurisdictions, particularly the United States. Courts have imposed electronic monitoring as an alternative to detention, with the number of individuals subject to such monitoring growing significantly over the past decade. For instance, in 2021 alone, 254,700 individuals were subjected to electronic monitoring, including 150,700 under the criminal legal system and 103,900 by U.S. Immigration and Customs Enforcement. Cities like Indianapolis and San Francisco have seen their rates of pretrial electronic monitoring double or triple in recent years.
American Courts have generally relied on two primary rationales for imposing electronic monitoring: ensuring public safety and preventing flight. However, the effectiveness of electronic monitoring in achieving these goals has been questioned. Studies have shown mixed results, with some early research indicating worse pretrial outcomes for those on electronic monitoring. More recent studies, such as those conducted in the Federal District of New Jersey and California's Santa Clara County, have shown limited positive results, but neither demonstrated overall success in keeping individuals out of detention during the pretrial period.
Several courts have critically examined the appropriateness of electronic monitoring. In Commonwealth v. Norman (2020), the Massachusetts Supreme Judicial Court found that the causal link between GPS monitoring and ensuring court appearances was too attenuated and speculative to justify its use. Similarly, in State v. Grady (2019), the North Carolina SC ruled that a lifetime electronic monitoring condition was unreasonable under the Fourth Amendment due to a lack of evidence of its efficacy. These decisions highlight a growing recognition that electronic monitoring may not be proportional to the risks it aims to address and that less restrictive alternatives should be considered. The European Court of Human Rights has also weighed in, stating that while GPS surveillance may interfere less with privacy than methods like telephone tapping, it still constitutes a significant intrusion that must be justified and proportionate to the alleged offence and assessed risk.
Conclusion
While the Supreme Court's decision in Frank Vitus represents a step forward in protecting privacy rights within bail conditions, it falls short of establishing a comprehensive framework for evaluating surveillance-based measures. The Court correctly deemed GPS tracking conditions unconstitutional, but its narrow focus on technical ineffectiveness meant it missed an opportunity to provide broader guidance to courts. A more robust approach, incorporating the Puttaswamy proportionality test and the traditional 'triple test' of bail risks, could have offered clearer direction for lower courts and addressed the wider implications of surveillance technology in criminal justice.
Furthermore, this case highlights the urgent need for legislative reform. The Court cannot continue to rely solely on purposive interpretation in the absence of specific laws, especially as other jurisdictions have already enacted such legislation. Parliament should consider introducing similar enactments to provide a clearer legal framework for use of surveillance technologies. As these technologies become increasingly prevalent globally, this case underscores the ongoing challenge of balancing public safety with fundamental rights in the digital age.
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