Why electronic monitoring for those on bail is a false promise

The limitations of this location-based technology, however, are not unknown to anyone who has used Google Maps. Environmental factors, buildings and structures, and the quality of cellular networks impact not just the accuracy but also whether such devices work at all. Additionally, these devices require to be charged. As such, the reliability of these devices is doubtful, not just in rural or remote areas but even in urban settings. Further, the employment of these devices in other jurisdictions reveals a troubling rate of false alarms, which could lead to unnecessary harassment or penal consequences including re-arrest for individuals wearing these devices, ultimately defeating the purpose of bail. Such consequences are hard to ignore with the realisation that these devices are being used on persons merely accused of crimes, not convicts.

Interestingly, the report presents electronic monitoring as a cost-effective solution to prison overcrowding, but using such devices entails substantial financial and administrative burdens. Procuring, maintaining, and operating the devices, coupled with the need for continuous monitoring, will strain an already resource-constrained criminal justice system.

Besides the administrative and practical concerns, the constitutionality of such mechanisms is also questionable at best. Despite being hailed as a pro-liberty mechanism, these devices are restrictive and invasive in reality. Recognising this, the Supreme Court in July 2024 in the case of Frank Vitus v. Narcotics Control Bureau held the condition of sharing one’s Google location with police as violative of the right to privacy under Article 21. Electronic tracking devices are arguably even more invasive than location-sharing mandates. Yet, the Supreme Court’s own report calls for the use of such devices as an alternative to incarceration.

The Supreme Court in addressing issues of burgeoning undertrial population in prisons has repeatedly acknowledged a disproportionately high population of persons with poor socio-economic indicators in prison. Ownership of property has been considered as a key factor in determining “flight risk” for an accused under the “tripod test” for release on bail. Such understanding disparately impacts marginalised populations who are denied bail or given bail on onerous conditions to prevent them from absconding. Despite guidelines of the apex court which have consistently impressed upon the need to release undertrials on a personal bond, this practice is not followed by trial courts. A possible explanation for this is the prevalent assumption that the threat of financial loss, through forfeiture of bail, is the only means of ensuring attendance during trial. Although not empirically established, such presumption has weighed in heavily against persons without ownership of property or local propertied connections.

Since the primary objective of the electronic tracking mechanism would be to “track” released persons, it will primarily target this demographic which also has a high risk of profiling and little capacity to negotiate with the system. It has been well documented through interventions that poor undertrials unable to fulfil bail conditions routinely plead guilty to offences as a desperate measure to secure their liberty. Such bargains, which compromise rights for securing early release, are often made without understanding the implications of convictions and risks of rearrest that arise as a consequence. As a result, even if safeguards such as prior consent for using electronic tracking post-release were introduced, such consent could barely be understood as “free”.

In the context of undertrials charged with petty offences, routine arrests for persons with a history of previous incarceration under unnamed FIRs is a documented norm. Introducing tracking mechanisms will only perpetuate this cycle of release and arrests by facilitating arrests through easy access to information of the whereabouts of any person “deemed” to be involved in a crime by the police and by providing data on personal movement of such individuals which can create remote possibilities for justifying such arrests. The possibilities of misuse of such data further increase in the context of wide powers of arrest and preventive detention introduced under the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Another aspect to consider is the impact of a visible presence of a tracking device on a person, whose guilt has not even been established. The Report acknowledges the possibility of social stigma and suggests use of discrete devices. It fails to reflect on the perception of criminality attached to electronic tracking and its impact on the employability of individuals.

In advocating for electronic tracking mechanisms as one with “minimal intrusion” in the life of accused persons, the Report is myopic and completely disregards possible dynamics of electronic tracking and its impact on the life and liberty of individuals which stretches beyond the more obvious right of privacy. It is a move to sustain a regime of indiscriminate arrests while making the possibility of release subject to constant police surveillance on the questionable pretext of introducing systemic efficiency. The introduction of such measures disrupts the evolving judicial dialogue on bail jurisprudence in India on the use of “personal bonds” and oversight mechanisms like the Undertrial Review Committee to release undertrials as laid down by the Apex Court from time to time. In effect, electronic tracking will serve as a continuous “panopticon” beyond the prison, perpetuating the revolving door of crime for accused persons while continuing to burden the state infrastructure.

The writers are with Project 39A, National Law University, Delhi. Views expressed are personal