Prinshul Agarwal & Anubhav Singh
Introduction
Imagine being granted bail but then asked to surrender your privacy rights by sharing your real-time location with law enforcement. This was the situation faced by Frank Vitus, a foreign national, in the landmark case Frank Vitus v. NCB. The Supreme Court delivered a pivotal ruling, declaring that such conditions violates the accused’s fundamental right to privacy. This piece explores the court’s reasoning, tries to shed light on the broader implications and discusses the concept of Electronically Monitored (EM) bail, a practice similar to the condition imposed on Vitus.
The Judgement
Facts Leading to the Dispute
The accused- Frank Vitus, a foreign national, was arrested on May 21, 2014, under various sections of the Narcotic Drugs and Psychotropic Substances Act of 1985. On May 31, 2022, the Delhi High Court granted him bail but imposed several conditions, including a controversial one: Vitus had to share his location via Google Maps with the investigating officer. Arguing that this condition was invasive and arbitrary, Vitus challenged it in the Supreme Court.
Court’s Reasoning
The Supreme Court began its examination by looking into the scope of conditions permissible under Section 437(3)(c) of the Criminal Procedure Code (CrPC), which allows for additional conditions to be set “in the interest of justice.” The court emphasized that this phrase should not be interpreted broadly, referencing the Kunal Kumar Tiwari v. State of Bihar case, where it has clarified that “interest of justice” means “good administration of justice” or “advancing the trial process.” The court cautioned against extending this meaning beyond its intended purpose, advocating for a purposive interpretation. Furthermore, in Munish Bhasin v. State (NCT of Delhi), the court stressed that “bail conditions cannot be fanciful, arbitrary, or freakish.”
The court then turned to the constitutional rights of the accused, emphasizing that these rights should only be curtailed to the minimum extent necessary when imposing bail conditions. Drawing from State of A.P. v. Challa Ramkrishna Reddy, where the court reaffirmed that “A prisoner, be he a convict or undertrial or a detenu… continues to enjoy all his fundamental rights, including the right to life guaranteed to him under the Constitution.”
Lastly, the court examined the validity of condition imposing to share location. The court scrutinized the technical aspects of “dropping a PIN on Google Map” and sought information from Google LLC for the same. After examining the technical aspect, the court observed that “Imposing any bail condition which 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”.
The court, while balancing the rights of the accused and the power of the court to impose bail conditions, remarks that constant vigil cannot be kept on every movement of the accused released on bail by the use of technology or otherwise, as it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy. The court reasoned that such constant vigil on the accused by imposing drastic bail conditions will amount to keeping the accused in some confinement even after he is released on bail and held that such a condition cannot be a valid bail condition.
Analysis
In an era where digital privacy is increasingly a central concern in both legal and public discourse, the Supreme Court’s judgment underscores the judiciary’s crucial role in shielding individuals from invasive practices. This ruling illuminates the dangers of imposing arbitrary bail conditions that, if too onerous, can effectively make the grant of bail illusory.
It is interesting to note that the requirement for sharing one’s location was first used by the Delhi High Court in 2020 at the onset of the COVID-19 pandemic. While the Supreme Court has consistently emphasized that bail conditions must facilitate the administration of justice, ensure the presence of the accused, and prevent the misuse of liberty without compromising the accused’s rights. But the use of such condition was prevalent in various cases, raising significant concerns about the curtailment of an individual’s right to privacy and liberty under Article 21. The court’s decision comes as a much needed relief, which intricately balances the interests of the state in securing criminal justice with the protection of individual constitutional rights, aligning with its established stance on such issues.
The ruling further reinforces the importance of privacy rights under Article 21. By rejecting the condition of sharing Google PIN locations, the Court has set a precedent that technological surveillance if be imposed as a bail condition, must be in conformity with accused’s rights, thereby protecting the privacy of individuals on bail. It places importance on for a nuanced understanding of how new technologies should be integrated into legal practices, ensuring that they do not erode fundamental freedoms.
Electronically Monitored Bail (‘EM Bail’): A Global Perspective
The concept of monitoring an accused’s location through technology is not new and has been adopted in various forms globally, particularly through Electronically Monitored Bail. It is a form of digital surveillance that tracks people’s physical location, movement, or other markers of behaviour, such as blood alcohol levels. The use of electronic monitoring can be traced as far back as the 1980s in the United States and Europe. The genesis and rationale of electronic monitoring have largely been defined by its potential as a non-custodial alternative to incarceration. Its use might differ from country to country, but it is generally used by courts as a form of pre-trial release or as a bail condition. An individual is monitored electronically, typically through an ankle bracelet or other tracking device.
In the United Kingdom (‘UK’), Electronic Monitoring (‘EM’) plays a crucial role in its criminal justice system. It is a valuable tool used by courts of the UK to monitor compliance with bail conditions and as an alternative to remand in custody. It aligns with the statutory presumption of bail set out in the Bail Act 1976, which states that all eligible persons should be granted bail unless specific exceptions apply. The typical rationale for using EM in the UK is as an alternative to prison and/or to reduce recidivism. It is interesting to note that the court can only impose bail with electronic monitoring requirements (for persons over 18) where it is satisfied that, but for the availability and suitability of electronic monitoring, the person would not be granted bail. For children and young persons, tests set out in section 3AA and 3AAA of Bail Act 1976 must be fulfilled.
In the USA, it is commonly used within the criminal legal system as a condition of pretrial release or post-conviction supervision. It helps manage the risk of flight and ensures compliance with bail conditions. The Bail Reform Act of 1984 is the federal law that regulates bail in the United States. It requires courts to consider the least restrictive conditions to ensure a defendant appears in court and that others are safe. EM as a condition of bail is governed by several legal frameworks, including the Bail Reform Act of 1984 and state-specific laws. The imposition of such conditions was first started to emphasize the severity of an offence and to avoid incarcerating non-violent offenders. The use of such conditions by courts in the US has increased (an increase of over 140 per cent from 2005 to 2015) over the course of time.
In New Zealand (‘NZ’), Electronic Monitoring on Bail has been incorporated under Bail Act 2000 through an amendment in 2013. It is available for suitable defendants and young people (12- 17 years of age) who would otherwise continue to be held in custody, in prison, or in the instance of a young person in a youth residence, while they wait for a court hearing. The purpose of EM Bail is to restrict and monitor a defendant’s movements to ensure that the defendant appears in court, does not interfere with evidence and witnesses and does not commit crime while on bail. For an EM bail application to be granted, judges must be satisfied that the public, witnesses, victims, and the people who will share the address are safe from the defendant or young person. The NZ Bail Act specifically provides under Section 30C that EM bail would not be imposed when less restrictive measures suffice in securing the attendance of the accused, thereby balancing the right to privacy and liberty.
EM Bail in India: An Analysis
The condition imposed by the Indian Courts, requiring the accused to share their location, parallels the concept of Electronically Monitored (EM) bail used in other jurisdictions. The idea of EM bail in India is not new, as it has already been suggested by the Law Commission in its 268th Report (2017). The State of Odisha has also proposed to implement the use of GPS-enabled tracking devices for undertrial prisoners. Its use has also been suggested by the Centre to the States on prison inmates when they are released on parole. In 2020, the High Court of Delhi also highlighted the need for inducting the system of electronic monitoring of accused into the Indian criminal justice system.
The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. The presumption of innocence being the hallmark of the Indian Criminal Justice System, it can be stated that the right to life and liberty of an accused (whose guilt has not been proven) is entitled to protection as much as that of any other individual. Despite this, India’s Criminal Justice System faces significant inefficiencies.
Despite the Supreme Court’s consistent emphasis that “bail is the rule, jail is the exception,” there is a reluctance among subordinate courts to grant bail even in cases where bail should ordinarily be granted. As Criminal courts, in general, with the trial court in particular, are the guardian angels of liberty, such reluctance constitutes an affront to liberty.
According to the National Crime Records Bureau (‘NCRB’), in 2022, India had over 4,34,302 undertrial prisoners, making up 76% of the total jail population of 5,73,220. Alarmingly, over 1,34,799 of these undertrials had been incarcerated for more than a year. With a conviction rate of only 57%, nearly 43% of prisoners are yet to be proven guilty. Consequently, about 2 lakh individuals presumed innocent remain incarcerated. Additionally, the bail system is imbalanced against the poor since they are not be able to furnish bail on account of their indigence. This discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a majority of those who are brought before the Courts in criminal cases are so poor that they find it difficult to furnish bail even in a small amount.
In this context, the adoption of EM bail in India offers a promising alternative. It provides a viable alternative in cases where other traditional conditions do not suffice or as an alternative to other traditional practices. It could be a game-changer for India’s criminal justice system. Its benefits are numerous: it can help alleviate overcrowded prisons and reduce government expenditures by lowering the number of defendants held at state expense. It is also seen as an alternative to money bail, as individuals are often unable to comply with court directives, where the judges require the individuals to post some form of collateral, which leads to their continued incarceration. The adoption of EM bail could significantly reduce the jail population by offering a non-custodial alternative for those awaiting trial. The SC has also advocated for the introduction of a comprehensive bail law in India to deal with the rising pendency of bail applications.
As reformation being the ultimate goal of the Indian Criminal Justice System, the concept of EM Bail aligns with this goal by allowing accused persons or convicts to contribute to their family and society while maintaining their rights outside prison walls. For instance, Section 62(5) of The Representation of the People Act says no person can vote in any election if confined in prison whether as a convict or undertrial, but those on bail retain their right to vote. EM bail will ensure that accused persons are not unnecessarily deprived of this or other civil liberties.
However, much deliberation is required upon its implementation, as well as an equal consideration of the societal interest in the safety and security of all. The Supreme Court’s stance suggests that India’s judiciary may require more stringent standards for the adoption of such technologies compared to other jurisdictions. The Law Commission also cautioned against its grave impact on constitutional rights and was of the opinion that such a system, if used, must be implemented with the highest degree of caution.
Even while EM and similar technologies can help reduce the need for pretrial detention and continued incarceration, their implementation must include safeguards to protect the accused’s rights, particularly the right to privacy. The concept of EM bail must be carefully tailored to fit India’s unique legal and cultural landscape. For instance, in the United States, courts may impose EM requirements during pre-trials or post-conviction supervision, sometimes even when the accused has a clear entitlement to bail. This approach can infringe on privacy rights, as constant surveillance may feel akin to confinement, even when the individual is technically free on bail.
In contrast, the United Kingdom adopts a more measured approach. Courts can impose EM requirements (for persons over 18) only when it is clear that, without such monitoring, bail would not be granted. Similarly, in New Zealand, EM bail would not be imposed when less restrictive measures suffice to secure the attendance of the accused, thereby balancing privacy and liberty. These approaches ensure that EM is applied sparingly and judiciously, respecting the rights of the accused while still serving the interests of justice. The Law Commission also supports a cautious approach, recommending the use of EM monitoring only in cases involving grave and heinous crimes, especially when the accused has prior convictions for similar offences. This selective application respects the accused’s rights and ensures that the system isn’t used excessively or punitively. The electronic monitoring condition imposed on bail must reflect the primary goals of the bail system: balancing the accused’s dignity and liberty with the community’s interest in ensuring that the accused appears for trial, does not interfere with evidence, and does not commit further crimes. Courts must consider the nature of the offence, the strength of the evidence, the accused’s background, and the likelihood of absconding or re-offending. Additional factors, such as the need for electronic monitoring and its proportionality, must also be assessed. As EM bail is a restrictive form of bail, a holistic judicial analysis of all relevant factors is essential in determining the suitability of electronic monitoring as a bail condition.
Conclusion
The judgment in Frank Vitus v. NCB marks a significant affirmation of India’s constitutional right to privacy, setting a precedent for how courts should approach bail conditions in the context of evolving technologies. This decision is particularly relevant in contemporary times, where digital surveillance capabilities have expanded rapidly, posing new challenges to civil liberties. While EM Bail offers a transformative solution for India’s criminal justice system, its implementation must be carefully tailored to protect individual rights while ensuring public safety.
The approach adopted in the UK and NZ serves as a valuable model to the Indian context, and it aligns well with the court’s ratio in Frank Vitus v. NCB. As courts will only impose EM requirements when no case is made up for bail or less restrictive measures suffice, it will not infringe on an accused’s rights, such as the right to privacy, as the accused would still have been incarcerated in prison otherwise. By limiting EM requirements to cases where bail would otherwise be denied, we can respect the privacy of the accused and reduce the burden on our prison system, all while ensuring that justice is served.
The authors are second year law students at Dr. Ram Manohar Lohiya National Law University, Lucknow.
NUALS Law Journal 