The Future of Bail Surveillance: Understanding the Implications of the Supreme Court's Stance on Google Pin as a Bail Condition

*Mokshith Bhyri

In a profoundly significant yet vaguely detailed verdict in Frank Vitus v. Narcotics Control Bureau, the Supreme Court underscored the importance of privacy as a fundamental right by ruling against using a Google location PIN as a condition for granting bail. A two-judge divisional bench of the Apex Court comprising Justices Abhay S Oka and Ujjal Bhuyan was adjudicating an appeal against certain conditions set by the Delhi High Court in its judgement, which granted interim bail to Frank Vitus, a Nigerian national accused in a drugs case.

As a condition for bail, the High Court in 2022 directed the accused to place a PIN on Google Maps to ensure that his whereabouts were visible to the case's Investigation Officer. The Apex Court held that a bail condition that enables the police to constantly track the movements of the accused and virtually peep into their privacy is impermissible, violating the right to privacy under Article 21 of the Constitution. While the Court holds invalid two conditions- Google PIN and even regarding submitting a No Objection Certificate (NOC) issued by the foreign embassy, the former condition requires specific scrutiny, due to the unsettled position of law on using technology-based surveillance as a condition for granting bail in the Indian criminal law jurisprudence.

Conditions while granting Bail- What does the criminal procedure entail? 

Fortunately or unfortunately, since we are in the era of the new criminal laws and the Bhartiya version of criminal procedure, the Bhartiya Nagarik Suraksha Sanhita (BNSS), it is essential to understand the extent of the power of a court in imposing conditions while granting bail. Section 482(3) read with  Sec 485(1) of the BNSS remains identical by retaining the exact wording of Section 437(3) read with Sec 439(1) of the CrPC. While Section 437 deals with conditions of bail in non-bailable offences, Sec 439 provides for special powers of the High Court or Sessions Court while granting bail. Both of these provisions are broadly worded, by and large vesting the courts with discretionary power to impose any such condition as it considers necessary in the interests of justice. Whether it is the Google location PIN that is challenged in the case at hand or the Global Positioning System (GPS) live location as a bail condition in earlier rulings, the issue mainly emanates from these broadly worded provisions. In this regard, the Apex Court quite pertinently adopts a rights-centric and purposive interpretation of the phrase “any such condition as it considers necessary in the interests of justice” under sections 437 and 439 CrPC. By reducing the rigour of the discretionary power, the court relies on previous rulings in Kunal Kumar Tiwari v. State of Bihar [(2018) 16 SCC 74], and Munish Bhasin v. State (NCT of Delhi) [(2009) 4 SCC 45] to hold that any such condition cannot be read to mean arbitrary, fanciful, irrelevant or freakish conditions. By placing reliance on the affidavit submitted by Google Inc., which clarifies that Google PIN does not provide real-time tracking of the person providing the PIN, it became an easy exercise for the Court to conclude the condition as being redundant, not providing any substantive assistance to the investigative agency (NCB).

The Impact of Bail Conditions on Constitutional Rights: Applying the Principle of Proportionality

Despite providing sound reasoning, the judgement’s latter portion, regarding the extent to which an accused's constitutional rights may be infringed by imposing conditions while granting bail, creates conceptual inconsistencies. Firstly, on a progressive note, the Court puts forth a two-pronged test to scrutinise a bail condition-

“(i) The bail conditions must be consistent with the object of imposing conditions. (ii) While imposing bail conditions, the Constitutional rights of an accused, who is ordered to be released on bail, can be curtailed only to the minimum extent required.” (Para 7).”

Though the court doesn’t explicitly state as such, this test is akin to the Proportionality standard, rendering scrutiny a progressive and pragmatic exercise to this extent. However, the Court doesn’t explain what “minimum extent” means in the facts at hand, i.e., the minimum threshold in which the interplay of tracking an accused by adopting technological means can operate. The Court attempts to settle this lack of clarity in Para 7.1 of the judgement, wherein it directly links the monitoring of real-time movements of the accused to the right to privacy; but fails to justify this stand by testing it with the quintessential proportionality doctrine. The landmark Puttaswamy ruling enunciated four prongs of proportionality- i) legitimate aim; ii) rational nexus between the impugned measures and the aim; iii) the impugned measure is the least restrictive method of achieving the aim (the ‘necessity’ prong); and iv) a balance between the extent to which rights are infringed and the overall public benefit (the ‘strict proportionality’ prong). The court does not clarify how the Google PIN or any other technology-based surveillance, in general, fails to qualify the limbs of proportionality.

Therefore, with all due respect to the progressive, rights-centric stance the court took, it is submitted that it lacks a principled basis and is merely based on the factual assumption that the investigative agency cannot be permitted to peep into the private life of the accused, which would subject the accused to virtual confinement. It is argued that the threshold on which the rights of the accused can be curtailed should not be that of any ordinary individual but that of an “accused” based on the prima facie facts and circumstances of the case. Despite the privacy jurisprudence being alleviated to global standards through a catena of judgments starting from the landmark Puttaswamy ruling, it is important to introspect and distinguish these principles from the conditions imposed during bail, as the very concept of bail is aimed at ensuring an accused is not confined behind bars, but to exercise, inter alia, their fundamental right to movement, within the confines imposed in the bail conditions. It is widely accepted that bail conditions can restrict movement to certain locations or geographical boundaries. The rationale of bail is to allow the accused to avoid the hardships of incarceration while not granting unrestricted licences to move freely. Is it conceptually valid to ask whether an accused person's right to privacy is infringed while in jail, simply because they are under constant surveillance by jail authorities or law enforcement agencies? If that is acceptable, how can a condition to electronically monitor the movements of the accused, which effectively releases them from the confines of jail, be challenged as an infringement of privacy when enlarged on bail? This electronic monitoring condition serves as an alternative to incarceration, ensuring both the accused's freedom and the needs of the justice system.

Possibility of Electronic monitoring as a Bail condition

While the above argument may seem to contradict the privacy jurisprudence developed by the Honourable Supreme Court, the critical standpoint pertains to electronic surveillance as a larger bail condition. However, staying with the facts at hand, i.e., on the validity of Google PIN as a bail condition, the Apex court validly dismissed such a condition as “redundant” because it failed to provide real-time location tracking of the accused. However, the crucial aspect of the judgement remains in Para 10.2, where the court uses a broader phrase “any” to hold that-

“imposing any bail condition that enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21.” [Emphasis Supplied]

While the Court initially asserts that the Google PIN is redundant and therefore of no practical use, it later observes that "any" condition tracking real-time movements should be disallowed. This inconsistency results in a contradictory analysis of the Court's observations.

While Google PIN may be redundant, serving no practicable assistance to the investigation, similarly placed technological means exist, such as sharing Global Positioning System (GPS) Live location as a bail condition, which definitely tracks the sharer's real-time movements. In fact, only a couple of months earlier, in April 2024, another two-judge divisional bench of the Supreme Court comprising of Justice(s) Aniruddha Bose and Augustine George Masih in Shoma Kanti Sen v. State of Maharashtra, while granting bail to former Nagpur University professor Shoma Sen, booked under the UAPA for alleged Maoist links in connection with the Bhima Koregaon case, directed her to keep the location and GPS of her mobile phone active throughout and to keep it paired with the device of the investigating officer so that her location is known at all times. In the normal course of things, a judgment of a divisional bench is binding on all coordinate benches. Consequently, if a two-judge bench disagrees with another two-judge bench, judicial propriety requires a coordinate bench to refer the matter to a larger bench to settle the authoritative position of law.

Not just this one ruling by the Supreme Court, but in its previous orders, numerous High Courts also followed the same path. Punjab and Haryana High Court in Hussain Abbas alias Tippu v. State of Haryana imposed several conditions on an accused in relation to offences under the Arms Act- to procure a smartphone, always keep the GPS turned on, and not to format the mobile or delete its WhatsApp chats or call logs. The J&K High Court in Puranmal Jat v. State of Rajasthan directed law enforcement to install a GPS tracker anklet on the accused's foot by highlighting the importance of close monitoring of the terror accused booked under the provisions of the UAPA. Such a condition is akin to Electronic Monitoring as a bail condition, followed in New Zealand, where imposition is statutorily authorised and stipulated under Section 30 of the Bail Act, 2000. Interestingly, the Supreme Court has neither explicitly overturned these previous High Court orders nor did it refer the matter to a larger bench. In Para 10.2, the court merely notes that "In some cases, this Court may have imposed a similar condition. But in those cases, this Court was not called upon to decide the issue of the effect and legality of such a condition.” This observation leaves it open for the Indian bail reforms regime to inculcate other forms of technological modes of tracking an accused in the future. If at all such reform qualifies the proportionality test, or whether it infringes the right to privacy, is for a larger bench to decide. Therefore, reading the judgment purposively, the court’s invalidation of Google PIN as a condition must be read to extend only to that specific Google PIN, but not any other electronic monitoring condition. The key takeaway is that these previous rulings have only been distinguished and not overruled to any extent, thereby carefully carving out the possibility of electronic monitoring conditions in the future. Referring the broader issue to a larger bench would have added much-needed clarity. 

Seriousness of an Offense: The Legitimacy of Electronic Monitoring as a Bail Condition

It is undoubtedly true that the continuous monitoring of an individual, by technological means, is a serious invasion of privacy rights. In fact, the very essence of data protection and informational privacy are premised on this logic. However, adding to the initial argument, as pointed out in the earlier part of this article pertaining to the differential and contextual application of the right to privacy of an accused vis a vis an ordinary individual, the degree of seriousness of an offence should be the guiding principle for setting a differential threshold of privacy, and the balancing of rights. In stringent statutes such as the UAPA, NDPS or PMLA, the legislative intent is to design such statutes based on the crime control model, i.e., the burden is on the accused to prove, prima facie, that no offence has been committed. Granting bail is an exception to the general “bail is the rule” principle. Therefore, an electronic monitoring condition ensures that bail doesn’t become an impossibility or a luxury. Moreover, a further balancing exercise can be performed by employing additional criteria such as looking at past criminal records, specificities of the facts and circumstances, the extent of involvement of the accused, and the period of prior detention.

This is precisely what the Supreme Court has done; The involvement of Frank Vitus, the accused, is minimal, i.e., based merely upon statements recorded u/s 67 of the NDPS Act. Such confinement is inadmissible, as clearly stipulated in Tofan Singh v. State of Tamil Nadu ((2021) 4 SCC 1). Even in the previous decision Shoma Sen, prolonged incarceration, ill health, and advanced age were an illustrative list of factors taken into account. Cases from the Punjab & Haryana and J&K High Court(s) involved stringent legislation like the UAPA or the Arms Act, and the courts therein looked at the actual involvement of the accused as a criterion for setting bail conditions. Furthermore, in its recent report on Prison-Conditions, Infrastructure and Reforms, the Rajya Sabha Parliamentary Standing Committee on Home Affairs has recommended ankle trackers or bracelets for prison inmates to reduce prison overcrowding, taking into inspiration a similar model adopted by the Odisha government. To avoid any kind of human rights violation, this scheme or method was suggested to be used on a voluntary basis after procuring the consent of inmates. Thus, in cases involving more serious offences or greater involvement of the accused, this judgment cannot be accepted at face value.

Conclusion

In conclusion, while the Supreme Court’s progressive and rights-centric stance on privacy is commendable, it must be balanced with the practicalities of ensuring justice and public safety. Taking into account the overcrowding of prisons due to under-trial prisoners, coupled with poor prison infrastructure, there is a need to ensure that the right balance is struck between the interests of justice and the human rights concerns of the inmates. The right to privacy, as articulated in the landmark rulings, should be critically examined in the context of bail conditions. Electronic monitoring, as a less intrusive alternative to incarceration, aligns with the fundamental purpose of bail- to avoid confinement, while imposing necessary restrictions. It will be interesting for a larger constitutional bench to adjudicate on the intersection of electronic monitoring, as such conditions seem to be similar to the right against self-incrimination. The arguments advanced in Selvi v. State of Karnataka on the niche areas of volition, and the substantive choice of an accused to deny such a condition that would otherwise put him in custody are also worth exploring. While the revamped CrPC in the form of BNSS doesn’t have any such explicit provision, the possibility of inculcating the same cannot be ruled out. Therefore, a nuanced approach that respects both the individual rights and the specific status of the accused within the judicial process is essential for a fair, and effective legal system.

*Mokshith Bhyri is a fourth-year student at NALSAR University of Law, Hyderabad.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.