Where Privacy Takes A Detour: Navigating The Controversy Of Live Location Sharing

This is not unprecedented as in 2020, Delhi High Court also passed such an order. The Court ruled in favour of employing GPS and similar tracking tools to supervise undertrials granted bail. This decision aims to thwart attempts by undertrials to flee the country, ensuring their attendance at court hearings. However, this judgement has raised concerns as it may contravene constitutional and human rights principles, specifically infringing on liberty, privacy, and the right to a dignified life of the individuals protected by the Constitution of India. Concomitantly, the Apex Court was also faced with the similar issue and granted bail^[2] to the accused upon the condition that they share the live location with the Investigating Officer (“IO”) throughout. However, it is pertinent to note that a coordinate bench of the Apex Court is seized with another matter^[3] wherein it is examining the validity of imposing such conditions which have a possibility of violating the fundamental rights of the accused. The said matter has been listed in December for further consideration.

Historical Context

Though India has always tried to expand its surveillance regime, to which MP Sharma, Kharak Singh and Govind cases are witnesses, the Puttaswamy judgement recognised the violation of aspects of the inner domain of consciousness, decisional autonomy by these surveillance regimes. MP Sharma^[4] marked an early Supreme Court judgment in India concerning privacy rights. While assessing the constitutionality of search and seizure provisions in the Code of CriminalProcedure, 1898, the Court briefly addressed privacy rights and their interaction with Article 20(3). It concluded that document seizure doesn't violate Article 20(3) and asserted that the right to privacy, akin to the Fourth Amendment in the US Constitution, wasn't explicitly protected in the Indian Constitution, affirming the government's authority in search and seizure powers.

In the Kharak Singh case^[5] acknowledging the right to privacy in India, a 6-judge bench of the Supreme Court struck down Regulation 236(b) of the U.P. Police Regulations, deeming nightly domiciliary visits to habitual criminals unconstitutional. The majority held that these regulations, being executive in nature, couldn't curtail fundamental rights. While the majority only recognized limited privacy rights, the minority judgement took a broader stance, affirming the right to privacy as integral to personal liberty under Article 21. It argued against constant surveillance, deeming the entire Regulation unconstitutional due to its psychological impact on the surveilled individual.

In Govind^[6], the Court, extensively dealing with the minority opinion of K.S. Rao J. in Kharak Singh, emphasised that privacy claims can only be denied if an 'important countervailing interest' surpasses them, subject to the compelling state interest test. The right to privacy, even if arising from Articles 19 and 21, isn't absolute and can be restricted based on compelling public interest, akin to Article 19(5). The Court cited Article 8 of theEuropean Convention on Human Rights as an example, acknowledging the right to privacy but permitting reasonable restrictions. The ruling underscored that interference with the right to privacy must serve a compelling and permissible State interest, justifying any infringement. The Court narrowly interpreted the contested regulation, limiting its effect to a specific class of citizens with criminal tendencies, excluding those pursuing an honest livelihood despite a criminal history. Domiciliary visits were restricted to cases jeopardizing community security. The Court warned the state to revise the Regulations due to their potential unconstitutionality and inconsistency with personal freedoms.

In the K.S. Puttaswamy case^[7], a unanimous nine-Judge Bench affirmed privacy as a fundamental right under the Constitution. Overruling prior judgments, it deemed privacy intrinsic to dignity, autonomy, and liberty across fundamental rights. The landmark case not only solidified the status of privacy but also called for a new data privacy law, broadened privacy in personal spaces, and emphasised privacy as an intrinsic value.

Aim Of The Move: Liberation Or Surveillance?

The classic argument given by the State, while defending such a move, is that in the past, individuals granted bail had to report to the IO weekly or on a regular basis. The current technology simply streamlines this process. And yet another prong of this argument is that crime prevention is the valid reason to bring legitimate state interest and violate the right to privacy of an individual. Thereby, establishing the rational nexus between the objects and means adopted to achieve them. Another argument given in favour of such a move is that given the composition of inmates in Indian prisons, this can help decongest them as undertrials comprise the majority of inmates in Indian prisons thereby causing overcrowding and burden upon the existing infrastructure.

In K.S. Puttaswamy, the Court established a test for State intrusion into individual privacy, requiring legality, a legitimate state aim for need, and proportionality ensuring a rational nexus between objectives and means. The judgment addressed both negative and positive aspects of privacy, emphasizing that the State must not only refrain from violating this right but also actively protect it. It acknowledged informational privacy but highlighted the absence of a specific law for its regulation.

Also, the underlying principle for introduction of Bail in criminal jurisprudence was to enable the accused to enjoy his liberty even during the pendency of trial, drawing water from the common law principle of 'innocent until proven guilty'. Resultantly, Indian criminal law jurisprudence follows the dictum of bail is the rule, jail is the exception^[8]. But this dictum tends to lose its essence, when such measures are taken by the Investigative agencies and permitted by courts, as it can turn the whole world into an open-air prison. This move has a tendency to qualify as pre-trial conviction for the accused. Putting an undertrial under the constant surveillance of the State like this would defeat the purpose of Bail as outlined by K.S. Rao J. in Kharak Singh. Also, the core principle established in the Puttaswamy judgement, advocating for proportionate measures in intruding into an individual's privacy, is breached as the GPS tracking system is deemed disproportionate for monitoring a person released on bail. The accused will always fantasise his liberty while on bail but in reality, he has lost all of it. Furthermore, one should also note that the element of autonomy forms the bedrock of privacy alongside anonymity in both public and private spheres. Frequently, the bail procedure in India is oppressive, as a result of the judges' reluctance. Bail hearings often turn into protracted trials where the accused is deprived of relief, and the routine granting of bail transforms into a rarity due to delays. Bail is granted after evaluating factors like the likelihood of the accused fleeing or tampering with evidence, medical requirements, the nature of the offence, criminal history, evidentiary support for the prosecution, the age of the arrested person at the time of arrest, and the potential severity of punishment, such as life imprisonment or the death penalty. And grounds for bail cancellation include non-appearance at the specified court date, misuse of granted bail by violating its terms, interference with court proceedings, tampering with evidence or threatening witnesses, attempting to leave the jurisdiction, and engaging in activities that may compromise a fair trial or involve additional offences.

The Rights At Stake: Privacy V. Public Safety

The concept of 'E-jail' involves a complex set of intrusive regulations and surveillance technologies, including ankle monitors equipped with GPS, enabling law enforcement to label, monitor, and analyse the exact locations of individuals who have yet to be convicted of any crime.

Surprisingly, the supporters of such a move argue that due to the existence of such measures the accused could secure bail easily even in cases of UAPA, NDPS, etc. as GPS monitoring inspires confidence in the mind of the State as it helps in continuous and constant surveillance of the accused alongside addressing the problem of overcrowding in prisons. The State cites numerous international examples across jurisdictions which permit such measures and practices. But however, we must be mindful of the fact that for example in the UK, electronic monitoring may be under the Terrorism Preventionand Investigation Measures Act, 2011. In Malaysia, the legal frameworks on electronic monitoring have been developed by amending existing legislation and enacting new laws such as Prevention of CrimeAct, 1959, Security Offences Act,2012, Dangerous Drugs(Special Prevention Measures) Act, 1985 and the Criminal ProcedureCode.

The State's action potentially breaches the accused's rights under Article 21, which encompasses the right to life and privacy. The absence of a framework with established standards, protocols, and ethics renders the move deficient in due process and legal procedure. The use of GPS technology, owned by a foreign government, without evaluating potential errors raises significant concerns. Monitoring undertrials not only infringes upon their right to a fair trial but also violates human rights. The State's argument for crime prevention lacks proportionality and a rational nexus. The move fails the fourth prong (per S.K. Kaul J.) of procedural guarantees against abuse, as outlined in K.S. Puttaswamy. Additionally, there is no compelling state interest that justifies the adoption of such draconian measures, which do not pass the litmus test of being just, reasonable, and fair, thus raising significant constitutional and ethical issues.

Furthermore, the implementation of such technology introduces technological challenges, as these devices are reliant on batteries that may malfunction or discharge without any fault on the part of the accused. Optimal functionality also demands unobstructed sky conditions and a strong cellular network, presenting difficulties in geographically challenging areas like the Himalayan terrain and remote parts of India. Urban areas encounter signal issues due to various factors such as weather, buildings, water exposure, and vegetation. The potential for false alarms is heightened, and the lack of training for law enforcement adds to the complexities of implementation. The case of Kevin Jones in the US, where he was arrested for a dead battery on his court-mandated monitoring device, spotlights systemic flaws and raises troubling concerns about racial bias. Such practices, prevalent in the US, disproportionately affect individuals from lower socio-economic backgrounds, constituting the majority of Indian undertrials. This impact extends to livelihoods, shelter, and places additional burdens on vulnerable groups due to the stigmatisation.^[9] The critical issue of cost responsibility arises, potentially leading to socio-economic nightmares for undertrial prisoners. This could dissuade bail applications, compelling individuals to turn to criminal activities for financial support in the absence of proper livelihood opportunities.

In unravelling the complexities of live location tracking using GPS, allowing state intervention in such matters may not promote good governance. Instead, it could lead to a surge in litigation due to fundamental rights violations. The the proposed measures might inadvertently favour affluent criminals, becoming a double-edged sword easing their bail processes. Additionally, the challenges of cost, time, and technological gaps in the criminal justice system pose serious constitutional concerns. In a welfare state like India, the State, as the guardian of the Constitution, should not violate citizens' rights without due trial, adhering to the principles of criminal jurisprudence. Moreover, in the case of Neelabati Bahera v.State of Orissa, the Supreme Court emphasised that the police and prison authorities bear a significant responsibility to guarantee that an individual in their custody is not denied the right to life. The inherent nature of confinement already restricts the person's liberty, making their interest in the remaining limited freedom particularly valuable.

As our nation undergoes criminal law reforms, the Judiciary's suggestion for a comprehensive bail legislation, akin to the UK's Bail Act, 1976, merits serious consideration. Concurrently, the parliamentary review panel's (Report No. 247) endorsement of surveillance measures for undertrials, post-consent, should be contemplated. Recommendations for clear guidelines and SOPs for such measures could enhance their effectiveness. Drawing and learning from the US experience, the need to guard against violating undertrials' rights and advocates incorporating measures, such as plea-bargaining and early remission for cooperative accused (both investigation and trial stages), into our criminal justice system, excluding serious offenses.

The author is an Advocate at Punjab and Haryana High Court. Views are personal.