The remedy of bail : From securing liberty to ‘digital jail’

In the pursuit of justice, the delicate balance between individual rights and societal interests often comes under scrutiny. In the case of Vernon Gonsalves and Arun Ferreira, their bail conditions, including the demanding round-the-clock location monitoring, have ignited a crucial debate that such stringent surveillance not only infringes upon their fundamental rights to life, liberty and dignity, but also undermines the essence of bail itself— to restore freedom.

ON July 28, the Supreme Court granted bail to activists Vernon Gonsalves and Arun Ferreira, who had been behind bars without a trial for more than five years.

A division Bench comprising Justices Aniruddha Bose and Sudhanshu Dhulia passed the judgment releasing the duo incarcerated in the infamous Bhima Koregaon case.

After a thorough analysis of the prima facie case against the duo and considering the constraints of Section 43D of the Unlawful Activities (Prevention) Act, 1967 (UAPA), the judgment notes that accusations against them were unfounded and that neither of them had committed any overt or covert acts that could be used to implicate them for even supporting a terrorist organisation, let alone committing or conspiring to commit a terrorist act.

The fact that Arun Ferreira and Vernon Gonsalves could finally breathe fresh air with their families was rightfully celebrated by many, and the smiling faces of the two upon their release reminded one of a couplet by Faiz Ahmad Faiz (written while he was imprisoned): “Lambi hai gham ki shaam magar shaam hi toh hai (Long the night of sorrow may be, yet it is a mere night).

The dawn of this happiness, however, is shab-gazeeda (injured by the night), because the liberty is not fully granted; rather, one of the conditions imposed in the July 28 Order nullifies the purpose of bail as a remedy for liberating an accused and will likely require further consideration by the court in the near future.

The object of bail is just to ensure the presence of the person accused, without having to detain him or restrain his liberty. 

This condition has to do with the requirement that during the period which both Ferreira and Gonsalves remain on bail, they shall have to not only keep their location status (or GPS monitoring) active but their phones would have to be paired with that of the investigating officer of the NIA to enable him, at any given time, to identify the appellants’ exact location.”

Notably, this is not the first time that such a condition has been imposed while granting bail. The same Bench had earlier imposed similar conditions requiring live-location sharing in at least two other cases relating to the alleged conversion cases registered by the Uttar Pradesh police.

Bail as remedy to secure liberty

In a legal system that closely guards human dignity and right to personal liberty, the foundational principle of justice is that a person accused of committing an offence or against whom an allegation has been made must be presumed innocent until proven guilty.

In the case of Arnab Manoranjan Goswami versus State of Maharashtra, explaining the purpose of bail as a means to secure liberty of an accused, Justice D.Y. Chandrachud had noted a reminder for the judges, observing that “it is through the instrumentality of bail that the criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.”

While terming the remedy of bail as the “solemn expression of the humaneness of the justice system”, the court further observed that “[t]asked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form.

The object of bail, therefore, is to ensure the presence of the person accused, without having to detain him and thereby restrain his liberty.

Justice S.R. Bhatt, speaking for a five-judge Bench, has succinctly summarised the governing principle behind bail in Sushila Aggarwal versus State (NCT Of Delhi), stating that the concept is “now widely recognised as a norm which includes the governing principles enabling the setting of accused person on liberty subject to safeguards, required to make sure that he is present whenever needed.”

Further, “[t]he justification for bail is that it preserves a person who is under cloud of having transgressed law but not convicted for it, from the rigours of a detention.

Section 437(3) allows imposition of bail conditions in the interest of justice however, such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. 

Even prior to the judgment in Sushila, it has been the consistent view of the Supreme Court as laid down in Sanjay Chandra versus CBI that “[t]he object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.”

In addition to this, while considering the permissibility of imposing onerous conditions while granting bail, having regard to Section 437(3) of the Criminal Procedure Code, the Supreme Court has also been of the view that while clause (c) of Section 437(3) allows imposition of conditions in the interest of justice, such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. 

The phrase ‘interest of justice’ as used under the clause (c) of Section 437(3) means ‘good administration of justice’ or ‘advancing the trial process’ and inclusion of broader meaning should be shunned because of purposive interpretation.

The logical conclusion that flows from the above discussion is that bail is not a reprieve from punishment or reduction of sentence but is rather a remedy which secures the liberty of the accused, all the while balancing the rights of the victim and the interests of investigation.

In the most fundamental understanding, individuals accused of a crime, when seeking bail, are not seeking a pardon but a restatement of their liberty, upon the promise that they shall present themselves during the trial and would not evade the processes of law.

Any condition, therefore, which is beyond the practical purpose of ensuring attendance of an accused, is usually onerous to the accused and restricts their freedom.

The condition of live-location sharing, as imposed on Ferreira and Gonsalves, also seeks more than mere cooperation from the accused, and crosses over the permissible domain by seeking to establish a 24-hour surveillance system through mobile phones and live locations despite releasing the accused persons on bail and setting them at liberty.

Given the other stringent conditions imposed, it can be safely argued that this additional condition is neither necessary nor relevant for either proper investigation or for securing the attendance of the two at the trial.

All that the condition does is restrict their liberty, while subjecting them to a perpetual gaze of the investigating agency, even in situations unrelated to the alleged crime.

The effect of location sharing upon the right to privacy

When Kharak Singh, an alleged dacoit who had been subjected to extensive surveillance, including midnight domiciliary visits, petitioned the Supreme Court at a time when technological advances and the advent of mobile telephony had not yet become realities worldwide, a majority of the five-judge Bench held the surveillance of his movements not to be violative of Articles 19 or 21, the right to privacy not being regarded at the time as a fundamental right.

However, Justice Subba Rao’s lone dissent asserted that both Articles 19 and 21 were violated by both domiciliary visits and movement surveillance. Justice Subba Rao stated with concern that in an advancing civilisation, psychological constraints are more destructive than physical restraints.

He noted that “there could be nothing more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.

Not only did Justice Subba Rao’s visionary dissent place privacy under the protective umbrella of Article 21, but on the touchstone of Article 19 as well. 

He held that mere movement unobstructed by physical restrictions cannot in itself be the object of a person’s exercise of their right to travel freely and a person may indulge in a variety of activities from meeting friends to doing business.

Bail is not a reprieve from punishment but is rather a remedy which secures the liberty of the accused, all the while balancing the rights of the victim and the interests of investigation. 

Terming the entire country as being a jail for a person under the scrutinising gaze of policemen, Justice Rao opined that “[t]he petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do.”

Over half a century later, and owing to subsequent decisions such as Maneka Gandhi and Satwant Sawhney, it was this minority view that found expression in the majority opinion of the nine-judge Bench judgment in K.S. Puttaswamy versus Union of India.

While holding privacy to be a fundamental facet of liberty enshrined in Article 21, the majority view by Justice Chandrachud holds that “[a]n invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”

Therefore, the State is prohibited from violating the fundamental rights and any law which seeks to curtail such rights, regardless of the degree, must satisfy the triad of legality, necessity and proportionality.

For this reason, the conditions for bail as have been put in this case must also be tested on these grounds.

While the court may have the legal authority to impose conditions subject to which bail would be granted, a condition for location monitoring of a person enlarged on bail would fail the tests of necessity and proportionality.

As held in Kunal Tiwari, the need for conditions to be imposed while granting bail are either to secure the attendance of the accused in trial or to ensure that the accused has no occasion to tamper with evidence or to influence witnesses.

However, in the case of Ferreira and Gonsalves, where the same judgment contains categorical findings as to lack of even a prima facie case, coupled with the stringent conditions for bail under the UAPA, there was neither any need for a condition for round-the-clock location monitoring, nor can such a condition satisfy the necessity or the proportionality test, as the purpose of imposing conditions under Sections 437 and 439 CrPC is limited to securing attendance of the accused at trial.

But in America

While the above is the position with regard to liberty and privacy, the question of location monitoring of an accused, more often than not, brings to mind a thought that such systems are frequently used in other jurisdictions such as in the US or the UK.

This argument, however, given often in support of courts imposing such conditions, is at best an oversimplification.

Firstly, for the reason that even in the US, such conditions are rarely imposed in the pre-trial stage and are rather an alternative to incarceration in the post-conviction stage.

All that the location monitoring condition does is restrict accused’s liberty, while subjecting them to a perpetual gaze of the investigating agency, even in situations unrelated to the alleged crime

Even where such conditions are imposed at the pre-trial stage, the same are not only well codified but are resorted to majorly in cases of child abuse and sexual crimes, where there may be a risk of the accused being a threat to the community.

Secondly, given the jurisprudential leaps taken by our courts when it comes to protection of liberty, the purposive interpretation given to the remedy of bail and the expansive interpretation given to fundamental rights, comparison of the Indian legal system with that of any other country in support of restrictive conditions for bail would necessarily have the the consequence of “applying this basic rule in an inverted form”, as warned by Justice Chandrachud in the case of Arnab Goswami


A week before the Order granting bail to Ferreira and Gonsalves was pronounced, another Bench of the Supreme Court, examining a condition imposed by the Delhi High Court asking the accused to drop a pin, indicative of live GPS location, had appropriately questioned if such a condition “will offend rights of the accused under Article 21”.

On the next date, which was the eve of Independence day, the Bench led by Justice Oka directed the Narcotics Control Bureau to file an affidavit stating the consequences of such a condition while also stipulating that “all technical aspects of dropping a pin and consequences thereof shall be elaborated by an expert in the field”.

There could be nothing more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. 

At the same time, in the case of Ferreira and Gonsalves, the NIA itself seems to be in a tricky situation as it seemingly has submitted before the special judge that such a condition of pairing location with the investigating officer would not only be impractical but would also infringe on the ‘privacy of the investigating officer’.

Having taken such a stand, though not raising privacy concerns of the accused, the investigating agency is most likely to approach the Supreme Court for a modification or clarification of the condition imposed.

While such conditions were previously imposed, during pandemic, by at least two other Benches of the Delhi High Court, the above two cases before the Benches led by Justices Oka and Bose respectively, provide the judiciary with an invaluable opportunity to rectify its approach.

This must be done before such conditions become a norm, turning the remedy of bail into a bargain to enter a digital jail instead of securing one’s liberty.