The Supreme Court in its recent decision in Frank Vitus v. Narcotics Control Bureau held that a court could not impose bail conditions which violated the right of privacy of an accused. This ratio has come on the back of certain courts directing the accused, as a condition for grant of bail, to share through Google Maps their co-ordinates with the police or investigating agency.
The Court in Frank Vitus ruled that while bail conditions can restrict an accused from specific areas to protect witnesses or victims, they cannot require the accused to constantly report their movements to the police. Such surveillance, whether through technology or otherwise, infringes upon the accused's right to privacy under Article 21 of the Indian Constitution. The Court emphasised that imposing such conditions would unlawfully encroach upon the accused's privacy, akin to confinement even after bail is granted.
The Court also held that a broader meaning could not be assigned to the words ‘interest of justice’ under Section 437(3) of CrPC, which governs the conditions that can be set for grant of bail by a Court. In doing so, the Supreme Court has diminished the power of trial courts to grant a restrictive form of bail when the alternative was the denial of such bail.
Right to Privacy v. Right to Liberty
This judgment is undoubtedly a landmark one that is intended to protect against the abuses and intrusions of the State into the private life of an accused who is yet to be adjudged guilty of any crime. However, in the opinion of the author, this judgment, by narrowing the already limited range of tools available at a courts’ disposal, may in fact lead to counter-intuitive results.
With courts running out of means to engineer relief for accused in difficult cases, they may now resort to more austere measures, such as complete denial of bail in situations where their ability to secure the attendance of the accused is in question.
In imposing a complete embargo on the ability of the court to provide for real-time tracking as a condition for grant of bail, the judgment fails to adequately balance the compelling State interest that may exist in certain cases with fundamental rights of the accused that may be put to jeopardy in the event of denial of bail. In doing so, the Court has inadvertently thrown the baby out with the bath water.
Criminal justice system under duress
As per the last NCRB report, there are over 4,34,302 undertrial prisoners across jails in India, comprising 76% of the total jail population. Over 1,34,799 of these undertrial prisoners have been incarcerated for a period of over one year. At the same time, the conviction rate in India stands at an abysmal 57%. Effectively, 43% of the prison population in India is that of people who are not yet guilty of the crime they have been accused of; about 2 lakh people are innocent and yet undergoing imprisonment. Something is clearly going wrong with the Indian criminal justice system.
The entire judicial machinery has become clogged with bail petitions and appeals that are repeatedly filed by accused in order to secure their liberty. The Supreme Court has time and again expressed its displeasure over the mounting number of bail cases that it is called upon to hear. Equally, the Court has criticised subordinate courts for their reluctance in granting bail to accused persons or the non-grant of bail being used as a tool to punish accused persons even prior to their guilt having been established. Mounting bail applications and appeals take away valuable judicial time from deciding the cases on merits, thereby leading to an overall systemic delay. In spending its limited resources on the upkeep of undertrials, the State fails in its responsibility to prioritise resources towards reforming convicts and investigating and preventing crimes.
Empowering courts to engineer relief
In light of such distress in the system, the courts must ensure not only that liberty is secured for the greatest number of people, but also in such a manner that the accused cannot misuse bail.
It is thus submitted that for existing cases, Section 437(3) of the CrPC, which empowers a court to impose bail conditions in the interest of justice, must be read as broadly as possible, especially when it inures to the benefit of the accused and when liberty hangs in the balance.
The tools in the bags of judges must not be limited by strict construction. Appellate courts can always interfere when judges impose excessively harsh terms or restrictive conditions and lay down principles to guide subordinate courts in their exercise of discretion.
While the Supreme Court held that constant surveillance through use of technology could not be permitted, it failed to consider the benefits of the use of technologies and practices such as electronic tagging and house arrest as an alternative to the existing bail practices.
Electronic monitoring, house arrest and bail
Electronically Monitored bail (EM bail) has been incorporated into the laws of a number of countries, including New Zealand (NZ), which incorporated the same in its Bail Act 2000 through an amendment in 2013. EM Bail is a restrictive form of bail where a person must remain at a specified residence at all times unless special permission to leave is granted for an approved purpose (such as work). Compliance is monitored via an electronically monitored anklet that must be worn 24 hours a day. The NZ Bail Act specifically provides under Section 30 C that EM bail would not be imposed when less restrictive measures suffice in securing the attendance of the accused, thereby balancing the right to privacy and liberty.
Even the Law Commission’s 268th Report (2017) acknowledged the benefit of using electronic tagging to reduce the fugitive rates and government expenditures (by reducing the number of defendants detained at State expense). This sentiment was echoed by the Supreme Court in Gautam Navlakha v. National Investigation Agency, where the Court observed that overcrowding in jails and large budget of prisons were relevant aspects in context of the possibilities that house arrest had to offer.
While practices such as EM Bail and house arrest would undoubtedly infringe upon the freedoms of the accused as highlighted by the Supreme Court in Frank Vitus, they offer a viable alternative in cases where other traditional conditions do not suffice.
Ultimately, liberal bail provisions, even if at times restrictive on the accused, will help decongesting prisons and ensure that undertrials are not put out of the economy, often for good. it will also ensure that resources of the State can be spent on funding the police as also reforming convicts. The dockets of judges can be cleared up to expedite trials and the police can spend more time and effort investigating cases instead of opposing bails and tracing accused who jumped bail.
Conclusion
The Supreme Court's decision in Frank Vitus v. Narcotics Control Bureau marks a significant step in protecting the right to privacy of accused by ruling against invasive bail conditions that mandate constant surveillance. While this judgment upholds the fundamental rights enshrined in Article 21 of the Indian Constitution, it also poses challenges to the justice system's ability to balance individual liberty, public safety and the efficient administration of justice with an individual’s right to privacy. The pressing issue of overcrowded prisons, the high percentage of undertrial prisoners, and the systemic delays in the judicial process underscore the need for innovative bail conditions that can alleviate these problems. Electronic monitoring and house arrest, as practiced in other jurisdictions, offer potential solutions that maintain a balance between respecting privacy and ensuring that justice is served. These measures could reduce the burden on prisons, allow undertrials to contribute economically,and free up judicial and police resources for more critical tasks. Therefore, while the Supreme Court's decision rightly prioritises the right to privacy, it is crucial for the judiciary to explore and adopt less restrictive yet effective alternatives to conventional bail conditions. This approach will not only protect the rights of the accused but also enhance the overall efficiency and fairness of the criminal justice system.
Ramchandra Madan is an Advocate-on-Record at the Supreme Court of India.