Explained: SC Judgement Against 24/7 Surveillance as Bail Condition

Recently, a Supreme Court division Bench comprising Justices Abhay S. Oka and Ujjal Bhuyan held that imposing bail conditions which enable the police or any other investigation agency to track every movement of the accused enlarged on bail by using any technology or otherwise is a violation of the right to privacy.

It held: “If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy.”

Brief facts

Frank Vitus, a Nigerian national, is being prosecuted for offences punishable under Sections 8, 22, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). He was arrested on May 21, 2014.

On May 31, 2022, he was granted bail by the Delhi High Court. The court incorporated certain bail conditions based on the directions passed by the Supreme Court in the Supreme Court Legal Aid Committee Representing Undertrial Prisoners versus Union of India & Ors (1994).

One of the bail conditions was that the accused must furnish a certificate of assurance from the High Commission of Nigeria so that he does not leave India. 

In the Legal Aid Committee judgment, the Supreme Court had stated: “(iv) In the case of undertrial accused who are foreigners, the special judge shall, besides impounding their passports, insist on a certificate of assurance from the embassy or high commission of the country to which the foreigner-accused belongs, that the said accused shall not leave the country and shall appear before the special court as and when required.”

In the Legal Aid Committee, a petition was initially filed under Article 32 of the Indian Constitution to seek directions for the speedy disposal of cases under the NDPS involving foreigners.

However, the prayers were later changed to seek directions for all undertrial prisoners who have spent a period exceeding two years languishing to be released on bail. In this case, the court had directed that an accused, if he has spent half of his maximum sentence, be released on bail with surety.

Another bail condition was that the accused must drop a PIN on Google Maps to ensure that his location is available to the investigation officer(s) at all times.

Both these bail conditions were challenged before the Supreme Court Bench comprising Justices Oka and Bhuyan.

The court passed an interim Order on July 21, observing: “Prima facie, we are of the view that none of the embassies or high commissions may be able to give assurance as mentioned in Clause (iv). The question is whether we need to refer this case to a larger Bench for reconsideration of Clause (iv).”

Concerning dropping PIN on Google Maps, the court formulated the issue as follows: “Whether this condition will offend the rights of the accused under Article 21 of the Constitution of India.”

The Supreme Court reserved the judgment for determining the constitutionality of the two bail conditions on April 29, 2024.

During the hearings, the court directed the Union government to submit its views on whether a certificate of assurance as a bail condition needs to be incorporated by courts.

It also issued notices to Google India and then to Google LLC to explain the working of Google PIN.

Google LLC is the one that has manufactured the Google Maps product. In its affidavit, Google LLC stated that dropping a PIN allows the user to mark or identify a location on the map without necessarily requiring access to the user’s location data.

In the affidavit filed by Google LLC, the court had orally remarked that the bail condition for dropping Google PIN is hit by Article 21.

What did the Supreme Court say?

The judgment authored by Justice Oka directs that both bail conditions must be deleted from the bail Order.

The court first clarified the framework for seeking bail under the NDPS. It referred to Section 37 (offences to be cognisable and non-bailable) of the NDPS, which lays down twin bail conditions under clauses 1(b)(i) & (ii).

These conditions are, first, the prosecution must be allowed to oppose the bail application. Second, where the public prosecutor has opposed the bail application, the court must be satisfied that there are “reasonable grounds” for believing that the accused is not guilty of such offence. He is not likely to commit any offence while on bail.

The court pointed out that once a case under Section 37 of the NDPS is made out, the court has to turn to the Code of Criminal Procedure, 1973 (CrPC) for imposing bail conditions.

This is because the NDPS only modifies the CrPC to the extent of granting bail.

Section 437(3) (when bail may be taken in case of non-bailable offence) of the CrPC imposes certain bail conditions such as requiring the accused to not commit any offence while out on bail and also requiring them to not interfere with the procedures of the trial.

Additionally, Section 437(3)(c) says that the courts may impose any other bail condition as it deems fit in the “interest of justice”.

In Kunal Kumar Tiwari versus State of Bihar (2018), the Supreme Court interpreted clause (c) of Section 437(3) CrPC and held: “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.”

Importantly, it held: “There is no dispute that clause (c) of Section 437(3) allows courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision.”

The court in this case reiterates the reasoning of Kunal Kumar judgment. It stated that the bail conditions imposed under Section 437(3) could not be “fanciful, arbitrary or freakish”.

The court adds: “The object of imposing conditions of bail is to ensure that the accused does not interfere or obstruct the investigation in any manner, remains available for the investigation, does not tamper with or destroy evidence, does not commit any offence, regularly remains present before the trial court, and does not create obstacles in the expeditious conclusion of the trial.”

It laid down three essential requirements for imposing bail conditions in the “interest of justice” under Section 437(3). First, the bail conditions incorporated in the bail Order must be within the four corners of Section 437(3). Second, they must be consistent with the object of imposing conditions.

Third, while imposing bail conditions, the courts must ensure that the constitutional rights of the accused can be curtailed only to the minimum extent required.

With respect to the third condition, the court explained that for those accused convicted and undergoing sentence, the Constitution does not deprive them of their right to life.

It referred to State of A.P versus Challa Ramkrishna Reddy (2000) in which the court had said: “The right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being.”

The court further added: “Even when lodged in jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of the crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.”

In this regard, this court reasoned that the present case deals with an accused who is yet to be convicted. It held that for those who are undertrial prisoners, the presumption of innocence is applicable. Therefore, no bail condition so onerous that it frustrates the bail Order itself could be imposed.

Bail condition restricting the movement of the accused

On this issue, the court held that no bail condition which keeps the police constantly informed about the movement of the accused can be imposed.

The court stated that conditions such as periodically reporting to the police station, restriction on travelling abroad without prior permission, and where circumstances required restraining an accused from entering a particular area to protect the witness or the victim are well within the four corners of Section 437(3).

It stated: “The object of the bail condition cannot be to keep a constant vigil on the movements of the accused enlarged on bail. The investigating agency cannot be permitted to continuously peep into the private life of the accused enlarged on bail, by imposing arbitrary conditions since that will violate the right of privacy of the accused, as guaranteed by Article 21.”

The court stated that keeping a constant vigil on the accused by imposing drastic bail conditions such as dropping PIN on Google Maps amounts to keeping the accused in some kind of confinement even after he is released on bail.

On the first condition, the court concluded: “The condition imposed on the appellant of dropping a PIN on Google Maps gives an impression that the condition will enable the first respondent, Narcotics Control Bureau, to monitor the movements of the accused on a real-time basis, which will be violative of the right to privacy guaranteed under Article 21 of the Constitution of India.”

In the affidavit, Google LLC stated that the user has full control over sharing PINs with other users, and it does not enable “real-time” tracking. However, the court held that any bail condition that “enables” the police to track every movement would be hit by Article 21.

On assurance certificate from the embassy

On the condition of furnishing a certificate from the embassy, the court pointed out that the directions given in the Legal Aid Committee judgment were to operate as one-time directions applicable only to pending cases.

It clarified that if the grievance is made to the special court on the inordinate delay in the disposal of pending cases, the court may impose general conditions such as that the accused must deposit a passport and routinely report to the police station.

The court held: “Therefore, it is not necessary that in every case where bail is granted to an accused in an NDPS case who is a foreign national on the ground of long incarceration of more than 50 percent of the minimum sentence, the condition of obtaining a ‘certificate of assurance’ from the embassy or high commission should be incorporated. It will depend on the facts of each case.”

It also added that the grant of a certificate of assurance is beyond the control of the accused, therefore, even in cases where the embassy does not grant him the certificate, he cannot be denied bail if he is entitled to it.

Will the fetters go?

It remains to be seen whether this judgment of the Supreme Court will provide relief to the Bhima Koregaon-Elgar Parishad accused Shoma Sen, Vernon Gonsalves and Arun Ferreira, upon whom the judiciary has imposed similar bail conditions or whether this will be another case of a progressive Order in one case which is not followed by a similar Order in another case.

Courtesy: The Leaflet