How does pairing mobile phones and using GPS trackers on persons on bail sit with settled jurisprudence and what do experts have to say on the issue?
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LAST month, the Supreme Court granted the former head of the department of English at Nagpur University, Professor Shoma Sen, bail in the Bhima Koregaon case under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
Sen, a Dalit and women’s rights activist, was arrested along with five other accused persons on June 6, 2018 for allegedly spreading controversial pamphlets and delivering hate speeches which instigated Bhima Koregaon-Elgar Parishad violence.
Ever since her arrest, she has been lodged in Byculla women’s prison in Mumbai as an undertrail.
On April 7, while granting her bail, a Bench comprising Justices Aniruddha Bose and Augustine George Masih held that there were no reasonable grounds for believing that the allegations against Sen under the UAPA were prima facie true.
The bail Order requires the National Investigation Agency’s (NIA) special court to impose certain bail conditions, including pairing her mobile phone with devices of designated NIA officials.
The Order states: “The appellant shall use only one mobile number during the time she remains on bail, and shall inform her mobile number to the investigating officer of the NIA.”
It adds: “The appellant shall also ensure that her mobile phone remains active and charged round the clock so that she remains constantly accessible throughout the period she remains enlarged on bail.”
Shoma Sen’s bail Order reads: “The appellant shall also ensure that her mobile phone remains active and charged round the clock so that she remains constantly accessible throughout the period she remains enlarged on bail.”
It further states: “During this period, that is, the period during which she remains on bail, the appellant shall keep the location status (GPS) of her mobile phone active, twenty-four hours a day, and her phone shall be paired with that of the investigating officer of the NIA to enable him, at any given time, to identify the appellants’ exact location.”
Recent Orders imposing similar conditions
Interestingly, some of the recent bail Orders requiring the pairing of digital devices, particularly mobile phones, have been issued by Justice Bose.
Last year, in a case concerning two other co-accused in Bhima Koregaon, Vernon Gonsalves and Arun Ferreira, similar conditions were imposed by the court while granting bail to them.
Gonsalves is a trade unionist, activist and academic, and Ferreira is an activist and lawyer. Both were arrested on August 28, 2018 for allegedly being affiliated with banned Maoist organisations and provoking violence at Koregaon Bhima village in Maharashtra on January 1, 2018.
The bail Order states: “Both the appellants shall use only one mobile phone each, during the time they remain on bail and shall inform the investigating officer of the NIA, their respective mobile numbers.”
It adds: “Both the appellants shall also ensure that their mobile phones remain active and charged round the clock so that they remain constantly accessible throughout the period they remain on bail.”
Also read: Explained: The Shoma Sen bail judgment
The Order further states: “During this period, that is the period during which they remain on bail, both the appellants shall keep the location status of their mobile phones active, 24 hours a day and their phones shall be paired with that of the investigating officers of the NIA to enable him, at any given time, to identify the appellants’ exact location.”
Last year, while granting bail to an accused in a UAPA case, a special court in Jammu and Kashmir imposed a condition that he must wear a GPS (global positioning system)-enabled tracking device.
This is one of the first cases where such unprecedented bail conditions were imposed.
While there is no set of guidelines based on which bail conditions are set, paring of devices and location sharing are certainly some of the recent developments that have taken place due to technological advancement.
Reportedly, one of the first bail Orders requiring location sharing and paring of devices as bail conditions was issued during the Covid pandemic.
In a case concerning two other co-accused in Bhima Koregaon, Vernon Gonsalves and Arun Ferreira, similar conditions were imposed by the court while granting bail to them.
On April 20, 2020, Justice Anup Jairam Bhambhani of the Delhi High Court, while granting bail to three individuals in separate cases, stated that they must share their location with the local police by “dropping a PIN” on Google Maps.
In another case in 2023, Justice Jasmeet Singh of the Delhi High Court imposed similar bail conditions while granting bail to an auditor in an alleged money laundering case.
Last July, a Supreme Court Bench of Justices Abhay S. Oka and Sanjay Karol was hearing a challenge to the bail granted by Justice Singh.
During the hearing, the Bench remarked that imposing the conditions requiring the accused to share his location amounted to surveillance and violated Article 21 (protection of life and personal liberty) of the Indian Constitution.
Eventually, the matter went to a Bench of Justices Oka and Pankaj Mithal in October. They agreed to hear a challenge whether the bail condition violated the fundamental right to privacy.
The Bench said: “You must explain to us the practical effect of such a condition. Once a person is set at liberty, certain conditions are imposed. But here you are tracking the movement after grant of bail, is not this violative of the right to privacy?”
In 2017, the Supreme Court Bench of nine judges in Justice K.S. Puttaswamy (Retd) & Anr versus Union of India held that privacy is an intrinsic part of Article 21. They unanimously declared that there is a fundamental right to privacy.
This judgment holds importance in light of Kharak Singh versus State of Uttar Pradesh & Ors, wherein the Supreme Court had upheld Regulation 236 of the Uttar Pradesh Police Regulations because the Indian Constitution did not recognise the right to privacy.
Regulation 236 allows the police to conduct surveillance on history sheets including nightly domiciliary visits and tracking of movements.
Kharak Singh was eventually overruled in Puttaswamy.
What does the law say?
Under the Code of Criminal Procedure (CrPC), Chapter XXXIII contains provisions on bail. Section 437 (when bail may be taken in case of non-bailable offence) imposes general bail conditions requiring a person to furnish a bail bond.
Also read: Bhima Koregaon: Who’s who of those arrested
Section 438 (direction for grant of bail to person apprehending arrest) of the CrPC deals with anticipatory bail and it provides certain statutory conditions that may be imposed on an accused person.
Last year, while granting bail to an accused in a UAPA case, a special court in Jammu and Kashmir imposed a condition that he must wear a GPS (global positioning system)-enabled tracking device.
These include that the person shall make himself available for interrogation by a police officer, he must not threaten or persuade any person acquainted with the facts, and he must not leave the country without prior permission of the court.
Section 439 (special power of the high court or court of sessions regarding bail) gives discretionary powers to high courts and sessions courts to impose any bail conditions.
What do digital experts have to say about it?
As per Shruti Shreya, imposing such bail conditions is per se not illegal.
Shreya is a senior programme manager for the platform regulation and gender and technological verticals at The Dialogue, a policy think-tank.
She told The Leaflet that the law in general requires that no bail condition can be arbitrarily imposed. Along with this, the bail conditions imposed through digital technological advancements required to meet the threshold of necessity, proportionality and reasonableness as laid down by the Supreme Court in Puttaswamy.
Shreya reasoned that the conditions of pairing or GPS-enabled trackers were not applied as bail conditions where such technology was not available. But just because the technology is available now, it does not per se mean that the conditions are illegal.
She further added that the courts must not impose such blanket bail conditions. It should only impose such bail conditions considering the facts of each case, the gravity of the offence committed and the peculiar circumstances.
Shreya states that the power for the court to impose such bail conditions comes from the CrPC itself and not from the IT Act. That is why, she points out that the IT Act requires no such amendment to accommodate these bail conditions. As for the data is concerned, it has to be collected, stored and proceeded as per the IT Act.
However, a set of guidelines by the Supreme Court would be necessary to ensure that it is not misused or that the misuse could be curtailed.
This would ensure a balance between the bail conditions and the fundamental rights of the accused.
What is the larger issue of bail jurisprudence raised in this case?
Radhika Chitkara, assistant professor of law at National Law University Bengaluru, speaking to The Leaflet on this issue, suggested that one needs to look at a larger issue of bail jurisprudence in the CrPC.
She said that under the CrPC, the courts have consistently upheld that bail is the rule and jail is the exception. This is based on one of the fundamental rules of criminal jurisprudence which is a presumption of innocence.
Also read: Bhima Koregaon: Supreme Court grants bail to Vernon Gonsalves and Arun Ferreira, with tethers
Presumption of innocence is a part of the fundamental right to fair trial under Article 21.
Chitkara added that under the UAPA, this rule is reversed, that is, under the UAPA, jail is the rule and bail is the exception. However, even when the rule is reversed, it is subject to certain conditions that the allegation against a person must be prima facie true for the denial of bail under Section 43D(5).
One of the first bail Orders requiring location sharing and paring of devices as bail conditions was issued during the Covid pandemic.
She states that when we are concerned about persons who have been granted bail under the UAPA, we are talking about people against whom even prima facie allegations have not been established.
She said: “There are no prima facie allegations against you even to deprive or hold you in custody. Therefore, you must be released on bail.”
Chitkara asks: “Then what is the rationale basis for imposing any kind of conditions on liberty when somebody has been released on bail?”
She stated that the issue of bail conditions must be looked at from the lens of presumption of innocence, there must be a rational basis for the deprivation of liberty at the pre-trial stage of the criminal case.
The rationale basis can only come from the needs of investigation and trial.
Referring to Mohammed Zubair’s bail Order, she pointed out that the bail conditions as held by the Supreme Court cannot be arbitrary and of such a nature that it defeats the purpose of bail.
In Mohammed Zubair versus State of NCT of Delhi & Ors, while granting bail to the fact-checker, the court held: “The bail conditions imposed by the court 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.
“The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed”.
Further, Chitkara stated that to satisfy that the bail conditions are not arbitrary there must be reasonable justifications attached to it. For instance, there must be individualised factors to establish that a certain person out on bail proves against the needs of the investigation and trial, that is, he may tamper with evidence, influence the witness, or is at flight risk, etc.
She added: “Bail conditions cannot be imposed on the suspicion of guilt, that is because you suspect me to be a dangerous criminal or terrorist that is sufficient ground to conscribed my liberty. That goes against the principle of presumption of innocence.”
Chitkara asks: “Then what is the rationale basis for imposing any kind of conditions on liberty when somebody has been released on bail?”
Chitkara concludes that such bail conditions are nothing but an extension of State-monitored surveillance powers for individuals who happen to be embroiled in the web of criminal activities under the UAPA without any satisfaction of their guilt.
She suggests that bail conditions must be looked at from the perspective of presumption of innocence.
Lastly, Chitkara added that even under the UAPA, the restriction on bail conditions based on due process and fair trial conditions apply because the power to impose bail conditions comes from the CrPC.
Conclusion
On April 29, a Supreme Court Bench of Justices Oka and Ujjal Bhuyan reserved a judgment on the issue of whether bail dropping Google PIN as a bail condition is violative of a person’s right to privacy.
On April 29, a Supreme Court Bench of Justices Oka and Ujjal Bhuyan reserved a judgment on the issue of whether bail dropping Google PIN as a bail condition is violative of a person’s right to privacy.
The court orally remarked that such a bail condition is hit by Article 21.
The current framework may not hold that there is a violation of the accused person when he is in surveillance 24×7. However, the humanity aspect of the law requires a strict level of scrutiny because the imposition of digital technology has made it widely possible for a person to not enjoy liberty after being out on bail. What it allows is for a person to enjoy the abstract idea of liberty.
