A recent Supreme Court report on ‘Prisons in India: Mapping Prison Manuals and Measures for Reformation and Congestion’ launched by President Draupadi Murmu last month recommended the use of electronic tracking devices for people on bail or jail leave. Courts rarely require sharing a location PIN with investigating officers as a condition of bail. Last year, a special NIA court in Jammu and Kashmir required an accused to wear an ankle monitor before being released on bail. Such conditions are a significant departure from normal bail conditions, such as travel restrictions or the requirement to appear for court hearings.
These electronic tracking devices can be placed on the bodies of people raised on bail, and through real-time monitoring to ensure that they do not abscond, leave the jurisdiction and appear when necessary for their trial. Turning off these devices or moving a device out of a certain jurisdiction or geographic area can alert authorities monitoring the device. Thus, apparently the purpose of these instruments is to encourage bail and allow prisons to be overcrowded, by assuring the system of a lower rate of absconding.
The limitations of this location-based technology, however, are not unknown to anyone who uses Google Maps. Environmental factors, buildings and structures, and the quality of cellular networks not only affect accuracy but also whether such devices work. Additionally, these devices need to be charged. As such, the reliability of these devices is questionable, not only in rural or remote areas but also in urban settings. Moreover, the employment of these devices in other jurisdictions reveals a troubling rate of false alarms, which can lead to unnecessary harassment or punitive consequences in which individuals wearing these devices are re-arrested, ultimately defeating the purpose of bail. It is difficult to ignore the consequences of these tools being used only in the prosecution of crimes, not the guilty.
Interestingly, the report presents electronic monitoring as a cost-effective solution to prison overcrowding, but the use of such devices entails substantial financial and administrative burdens. Purchasing, maintaining and operating the devices, coupled with the need for constant monitoring, will strain an already resource-constrained criminal justice system.
Apart from administrative and practical concerns, the constitutionality of such mechanisms is also questionable. Although hailed as pro-independence mechanisms, these instruments are restrictive and in reality aggressive. Acknowledging this, the Supreme Court in July 2024 in Frank Vitus v Narcotics Control Bureau held that the requirement to share one’s Google location with the police violated the right to privacy under Article 21. Electronic tracking devices are even more invasive than logic. Location sharing mandate. However, the Supreme Court’s own report has called for the use of such devices as an alternative to imprisonment.
Addressing the issue of the growing undertrial population in prisons, the Supreme Court has repeatedly acknowledged that there is a high disproportionate population of people with poor socio-economic indicators in prisons. Under the “tripod test” for bail, ownership of property is considered a key factor in determining the “risk of flight” for an accused. Such an understanding has a different impact on marginalized populations who are denied bail or granted bail under onerous conditions to prevent absconding. Despite Supreme Court guidelines that have consistently given effect to the requirement that undertrials be released on personal bond, this practice is not followed by trial courts. A possible explanation for this is the popular belief that the threat of financial loss, through forfeiture of bail, is the only means of ensuring attendance at trial. Although not empirically established, such presumptions are weighted heavily against individuals without property ownership or local property connections.
Since the primary purpose of an electronic tracking mechanism is to “track” released individuals, it will primarily target this demographic that has a high risk of profiling and a low ability to negotiate with the system. It is well documented through interventions that poor undertrials unable to meet bail conditions routinely plead guilty to crimes as a desperate measure to secure their freedom. Such agreements, which compromise rights to secure early release, are often made without understanding the implications of the resulting convictions and risks of re-arrest. As a result, even if safeguards such as prior consent to use electronic tracking post-release are introduced, such consent cannot be construed as “free.”
In the context of undertrials on charges of minor offences, routine arrest is a documented norm for persons with a history of previous imprisonment under anonymous FIRs. The introduction of tracking mechanisms will perpetuate this cycle of arrests and releases by facilitating arrests by providing police with easy access to information on the whereabouts of persons “supposed” to be involved in crime and by providing data on the personal movements of such persons. Create remote possibilities to justify such arrests. The possibilities of misuse of such data are further enhanced in the context of the sweeping powers of arrest and preventive detention enacted under the Indian Civil Security Code (BNSS).
Another aspect to consider is the effect of the visual presence of a tracking device on a person, whose guilt has not been established. The report acknowledges the potential for social stigma and suggests the use of separate tools. It fails to reflect the perception of criminality associated with electronic tracking and its impact on individuals’ employment.
Advocating an electronic tracking mechanism as one with “minimum intrusion” into the lives of accused persons, the report is myopic and completely ignores the potential dynamics of electronic tracking and its impact on the lives and liberties of individuals that extend beyond the more obvious rights of individuals. Privacy. It is a move to maintain a regime of indiscriminate arrest, subjecting the possibility of release to constant police surveillance under the dubious pretext of introducing systemic efficiency. The introduction of such measures disrupts the judicial dialogue developed in India on the use of “personal bond” in bail jurisprudence and the use of oversight mechanisms such as the Undertrial Review Committee as prescribed by the Supreme Court from time to time. In effect, electronic tracking would act as a constant “panopticon” outside of prison, continuing the revolving door of crime for accused persons while burdening the state’s infrastructure.
The authors are with Project 39A, National Law University, Delhi. Opinions expressed are personal