Rapid technological advancements are taking place the world over, with limited utilisation in the realm of criminal justice so far. One example in India is the integration of the global positioning system (GPS) as a condition for defendants to secure bail.
Last week, the Supreme Court granted bail to activists Vernon Gonsalves and Arun Ferreira in the Bhima Koregaon violence case, under the condition that they share their mobile location with the National Investigation Agency.
With GPS-enabled smartphones now ubiquitous, courts have in recent years made ‘location sharing’ by bail applicants with law enforcement agencies mandatory.
However, the trend has caught the attention of the apex court, which, according to sources, plans to look into the potential infringement of privacy the issue poses for bail seekers.
First use case
On April 20, 2020, during the nationwide COVID-19-induced lockdown, Justice Anup Jairam Bhambhani of the Delhi High Court granted bail to three individuals in separate cases under the condition that they share their location by ‘dropping a pin’ on Google Maps with the local police.
Justice Bhambhani said the decision was motivated by the “unprecedented circumstances of a public health emergency” prevailing at that time, which necessitated measures to decongest prisons for the overall medical safety of all inmates.
‘Unconstitutional’
Tanmay Singh of the NGO Internet Freedom Foundation said, “Such a condition for bail amounts to constant and illegal surveillance by the investigating officer (IO), and is unconstitutional for violating Article 21.”
He added that there are detailed legal procedures under law — for example, Section 69 of the Information Technology Act, which lays out the conditions under which surveillance may legally take place. “The grant of bail to an accused cannot be said to fall under such conditions,” he stressed.
Technology lawyer and online civil rights activist Mishi Choudhary told The Hindu that such location monitoring is akin to detention.
“It is concerning that the Supreme Court is imposing such onerous conditions that amount to denial of bail. The court, in all cases unless otherwise provided by law, must impose the last restrictive kind of degree of control that is necessary to return an accused return to court,” she added.
Explaining the bail procedure, advocate Abhishek Kumar Pathak said an accused is required to file a bail bond and provide a surety, which serves the purpose of ensuring their presence during the trial proceedings. If the accused fails to appear, their surety can be held accountable for securing their presence, he said.
“The Code of Criminal Procedure (CrPC) does not contain any provision and even criminal jurisprudence does not stipulate keeping the accused under surveillance even after their release on bail.
‘Other provisions’
“Additionally, the CrPC provides other provisions that the court can utilise in situations where the surety fails to ensure the presence of the accused. This includes issuing warrants and declaring the accused a proclaimed offender to compel their appearance before the court,” Mr. Pathak noted.
However, he added, “A condition of bail where the accused has to share his Google location to the IO all the time is nothing but putting the accused under permanent surveillance. This constitutes a violation of the right to privacy. This trade-off, wherein the right to privacy is bartered for the grant of liberty, undermines the true essence of liberty itself.”
