The Intersection of Privacy Rights and Bail: Implications for the Criminal Justice System

Introduction

The question of privacy as a fundamental component of the right to life and personal liberty under Article 21 of the Indian Constitution has long been a matter of legal contention, with various judgments reflecting a spectrum of judicial opinions. This debate reached a watershed moment in 2017 with the landmark Puttaswamy [1] judgment, in which the Supreme Court unequivocally established the right to privacy as a fundamental right, underscoring its vital importance in protecting individual dignity and autonomy. Recently however, the issue has resurfaced as the Supreme Court examined complexities of privacy in the digital era, bringing to light the ongoing challenges and significance of the said right, amid rapid technological developments and increasing state surveillance under criminal jurisprudence.

Background

A Nigerian national faced charges under the Narcotic Drugs and Psychotropic Substances Act, 1985 and was subsequently arrested in the year 2014. However, in the year 2022, the Hon’ble Delhi High Court ordered the accused to be enlarged at bail subject to a few conditions. One such condition was that the accused was to drop a PIN on their google maps to ensure their location was available to the Investigation Officer at all times. A key issue for consideration of the court in this case was whether such a condition for bail was infringing the fundamental rights of the accused.

Analysis

The order from the Supreme Court dated July 8, 2024, in the case of Frank Vitus [2] struck down an ongoing trend among courts in granting bail orders for undertrials. Several High Courts including the Delhi High Court in a multitude of cases had ordered that the live location of the accused must be shared through a Google PIN as a mandatory condition for bail. [3] In the present case, a similar order passed by the Hon’ble Delhi High Court. In an appeal to the Supreme Court, challenging the Delhi High Court order, the Supreme Court considered the validity of such bail conditions. While making its observations, the Apex Court referred to Section 437 of the Code of Criminal Procedure, 1973 (“Conditions for bail in case of non-bailable offence”) and interpreted the scope of conditions to be imposed for bail “in the interest of justice”.

The Hon’ble Supreme Court categorically held that an undertrial is not a convict and still enjoys the right to life as enshrined under Article 21 of the Indian Constitution, which is inclusive of the right to privacy. Therefore, while granting bail, the conditions imposed in such cases cannot be “fanciful, arbitrary or freakish”. The liberty and freedom that are vested on the accused by the Indian Constitution can only be restricted to the extent that is absolutely necessary. It was held that any bail condition that allows constant monitoring of a person’s movements is therefore -in direct violation of the fundamental rights of the accused.

This judgement by the Apex Court has reinstated the observations made in the Puttaswamy judgement within the realm of criminal jurisprudence. However, in affording rights to the undertrials enlarged on bail, the Supreme Court might have inadvertently exacerbated their challenges in securing bail. The reasoning behind such conditions imposed on bail is to ensure the attendance of the accused during trial. The Apex Court, in the present judgement, has failed to appreciate the advancements in technology and its utility in the criminal justice system.

While upholding the rights of undertrials is necessary to prevent basic human rights violations, this must be balanced to ensure the effective disposal of matters by the Indian judiciary that is presently chocking with numerous pending bail petitions and appeals. While the judiciary is attempting to ensure the attendance and to reduce flight risk of the accused, such orders will, no doubt, get rigid, with courts opting for outright rejection of bail instead. This will only increase the ever-mounting pressure on Indian prisons. Rather, the courts should draw inspiration from countries like the United States and United Kingdom and explore the use of technology akin to ‘electronically monitored’ bail. In such cases, the accused on bail is confined to a geographical location, and such confinement can only be breached with the explicit leave of courts. Despite such conditions for bail, while seemingly invasive and restrictive on the accused, is sure to aid in the decongestion of Indian prisons while also
expediting trials for the most part by reducing the burden of bail petitions and subsequent appeals.

The Apex Court in the present judgement has aptly reinstated the importance of right to privacy for undertrials. Nonetheless, going forward, the judiciary may delve into viable alternatives to conditions resembling the aforementioned one, in order to effectively adjudicate and dispose of criminal matters in the nation.

References:

[1] Justice K.S.Puttaswamy (Retd) v. Union Of India, 2019 (1) SCC 1.
[2] Frank Vitus v. Narcotics Control Bureau, 2024 SCC OnLine SC 1657.
[3] Shakil v. State (Govt. Of NCT Of Delhi), Bail Application No. 732 of 2023.