Unconstitutional Movement Tracking? Exploring the Tension Between Recent Indian Supreme Court Jurisprudence and Data Protection Legislation – JURIST – Commentary

The Supreme Court’s judgment in K.S. Puttaswamy v. Union of India was a watershed moment in India’s constitutional history. It recognized the right to privacy as an intrinsic part of the fundamental right to life and personal liberty under Article 21 of the Indian Constitution. This was a significant shift, given that on earlier occasions the apex court did not recognize the right to privacy as a part of Article 21. The implications of such recognition are multifarious. However, the most important outcome is the passing of the Digital Personal Data Protection Act (DPDP Act), which in turn incorporates the rights and obligations of data fiduciaries and data principles respectively to protect the right to privacy. Since Article 21 protects all “persons,” everyone irrespective of their past or present is entitled to this right, including persons convicted of offences.

This article is an attempt to draw attention to the conflict arising between the right to privacy and the DPDP Act due to the recent Supreme Court Judgment in Frank Vitus v. Narcotics Control Bureau. The DPDP Act provides for the collection of personal data in the pursuit of the prevention, prosecution and punishment of offences. However, the Supreme Court’s judgment in Frank Vitus held the imposition of a bail condition requiring Google Pin GPS tracking violates Article 21 of the Constitution. This thus brings the ruling and the DPDP Act at loggerheads.

This article shall first trace the criminal procedure that governs the bail conditions and discuss the cases wherein location tracking was put as a bail condition. Second, we shall delve into a discussion on Frank Vitus vis-a-vis the Indian jurisprudence on privacy and the scheme of the DPDP Act. Finally, solutions to this dichotomy will be examined.

Electronic monitoring around the world

At this juncture, it is important to note that surveillance of offenders on parole through ankle bracelets or other technological means is gaining ground in India. This practice is also prevalent in a number of countries.

In Germany, the electronic monitoring system was introduced in 2010. This law was a direct result of the European Court of Human Rights (ECtHR) judgment in M v. Germany, a case in which a repeat offender continued to be kept in custody under preventive detention even after a maximum period of 10 years. The ECtHR held that preventive detention after the maximum violates the rights of those convicted, which in turn led to the introduction of electronic monitoring as a method of surveillance in Germany. Further, in 2020, the German Federal Constitutional Court held that merely knowing the whereabouts of the concerned person through the electronic monitoring system established in 2011 does not violate the right to privacy and the right against self-incrimination and is not objectionable under constitutional law.

In the US criminal justice system, electronic monitoring was introduced in 1983. As of 2010, 33 states passed legislation requiring sex offenders to wear electronic tracking devices. In 2015, the Supreme Court of the United States held that use of GPS tracking constitutes a search and that is up to the courts to decide whether such monitoring is allowed under the Fourth Amendment to the US Constitution, which protects people from unreasonable search and seizure by the state. In 2019, the Supreme Court of the State of Georgia held that wearing GPS tracking devices even after completing one’s full sentence is unreasonable and invalid under the Fourth Amendment.

Thus, the Indian Supreme Court’s decision to not back this system of surveilling offenders in the recent Frank Vitus v. Narcotics Control Bureau is markedly different from the approach of ECtHR and SCOTUS.

Indian criminal procedure and bail conditions

Regardless of the legal developments, there still exist some challenges to the right to privacy, one of which is in the form of location tracking of convicts on bail or parole. “Bail is the rule, jail is the exception” is a long-standing principle established by the Supreme Court of India in its landmark 1978 judgement in State of Rajasthan v. Balchand Alias Baliay. Section 482 of the Bhartiya Nyaya Suraksha Sanhita (BNSS) upholds this principle when bail has to be granted in case of non-bailable offences. The court can impose certain conditions on the person while granting bail under section 482(3) of BNSS including bond execution, providing surety or any other condition that the court may consider necessary in the interest of justice.

In recent years, we have seen a new form of condition imposed by the court which requires the accused to share his location via technological means to the investigating officer.

In 2020, the Delhi High Court ruled in favor of a Global Positioning System (GPS) tracking system for prisoners on bail. The court stated that it would be useful for the authorities to know about the movement of the person on bail without disturbing his everyday lifestyle.

The Supreme Court in Puranmal Jat v. State of Rajasthan, granted bail to a person accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) with the restriction of not going beyond Alwar district in Rajasthan and condition to keep his mobile phone location linked with the investigating officer.

In another case, the accused was charged under the Prevention of Money Laundering Act, 2005 (PMLA) and was released on bail by the Delhi High Court on several conditions, including dropping a Google PIN location through his mobile phone to the investigating officer throughout bail.

In November 2023, a GPS tracking system was used for the first time by the Jammu and Kashmir Police on a person released on bail accused of terrorist financing.

However, in July 2024, the Supreme Court of India, in the case of Frank Vitus, dismissed a condition on the accused on bail, imposed by the Delhi High Court to drop his location through the Google Map PIN function to the investigating officer as it was found to violate the right to privacy under Article 21 of the Constitution.

Implications of location tracking on privacy

First, the infringement of privacy is a major concern. Location tracking systems subject individuals to constant surveillance, which can be seen as a violation of their right to privacy. The imposition of GPS tracking does not stand in consonance with the three-fold requirement led down in Puttaswamy. Such tracking does not meet the legal requirements. As section 482(3) of the BNSS, under which such conditions are imposed, does not expressly state such condition (the provision simply mentions any other condition “in the interests of justice”), the court cannot construe this in an arbitrary and broad manner. If we consider the test of proportionality, such a condition cannot be said proportional as it is in direct contravention of the fundamental rights of individuals which form an intrinsic part of the Constitution. And though the government has a legitimate state aim of preventing offences and by imposing such conditions, it must meet the other two tests laid down in the Puttsawamy judgment.

Even though these individuals are out on bail, the persistent monitoring can feel intrusive and overreaching. And the psychological impact of being under constant surveillance should not be underestimated. Knowing that every movement is being tracked can cause significant stress, anxiety, and a sense of lost personal freedom, which can be detrimental to an individual’s mental health and well-being.

Hence, imposing such a location tracking condition on those released on bail or parole infringes the right to privacy as there is always someone keeping a look at your movements, raising various issues.

Another concern that comes forward because of such tracking devices is the infringement of Article 14 of the Constitution, as there is no reasonable basis or established criteria for determining when convicts on bail are required to adhere to location tracking conditions. There are no guidelines specifying the types of offences for which such conditions may be imposed, leaving ambiguity. Also, such a system cannot be relied upon until robust technology is introduced and accessible to all. Issues such as internet connectivity and device failures can arise, and there is no proof that it will effectively prevent offenders from repeating their crimes.Malfunctions or not having access to internet connection required to share the Google Maps PIN can lead to individuals being falsely flagged for violations they did not commit, resulting in unnecessary arrests and detentions. This is particularly problematic as it can happen without any fault of the individual, simply because of a technical glitch. Thus, it violates the test of reasonable basis and proximity under Article 14.

Additionally, the use of location tracking systems for individuals out on bail raises concerns about the principle of “innocent until proven guilty.” Bail is granted on the premise that the individual is awaiting trial and has not yet been convicted of a crime. Subjecting them to constant surveillance undermines this principle, as it treats them more like convicted criminals rather than individuals presumed innocent. In Neelabati Behra v. State of Orissa, it was held that it is the responsibility of the police and the prison authority to ensure that the person in their custody is not deprived of his right to life and liberty. Such preemptive punishment contradicts the legal standards that aim to protect the rights and freedoms of individuals who have not been proven guilty as well as infringes their right to privacy

The use of location-tracking devices also leads to the stigmatization of accused individuals or convicts, regardless of their guilt or innocence. Wearing such devices in social settings can result in differential treatment and social ostracization. Additionally, this practice infringes on the right to freedom of movement guaranteed under Article 19(1)(d) of the Indian Constitution. Continuous 24-hour surveillance can make individuals self-conscious and restrict their freedom to move, impacting their ability to engage in normal daily activities without the burden of constant monitoring.

In summary, while location tracking systems may offer some benefits in monitoring individuals out on bail, they also raise significant concerns about privacy, the potential for disruptions due to faulty technology, and the erosion of the presumption of innocence. Balancing these factors is crucial to ensure that the use of such systems does not infringe on individual rights or hinder the reintegration of individuals into society.

Keeping all the concerns regarding the GPS tracking mechanism and its implications on the rights of the people. The Indian Supreme Court took a progressive stand by keeping the fundamental rights enshrined in the Constitution on a higher pedestal. Recently in 2024, the Supreme Court of India held in Frank Vitus v. Narcotics Control Bureau and Ors, that the condition imposed on a convict released on bail to share his location with the investigating officer is unconstitutional as it violates the right to privacy of the individual.

The Supreme Court observed that the power given to the High Courts to impose conditions while granting bail under section 437 (3) of CrPC cannot be arbitrary and beyond the ambit of the provision; it provides for “good administration of justice,” and any broad interpretation in the name of purposive interpretation must be avoided. It cannot be denied that the court has the power to impose conditions while granting bail to an accused, but while exercising its discretion the High Court or any other Session Court cannot subject the accused to irrelevant and unnecessary conditions. The conditions imposed must be such that it does not infringe on the right to life of the accused. Any prisoner, convict or person in jail continues to enjoy his fundamental right to life guaranteed under the Constitution.

The Supreme Court further observed that the guilt of the accused had yet to be established and the principle of innocent until proven guilty validly applied to him. A high court cannot impose such conditions which deprive the convict/accused of his right to life and even right to privacy and requires him to constantly inform the police about his location, and movement from one place to another. Such a condition which requires a continuous look into the private life of the accused would keep him in confinement even after being released on bail.

Hence, the Supreme Court concluded that the conditions to provide a certificate of assurance are completely unreasonable and the condition regarding dropping a Google PIN shall be deleted as it infringes right to life and liberty as well as the right to privacy under Article 21.

The Supreme Court’s decision to prioritize the fundamental rights in its judgment is a commendable reaffirmation of the core values enshrined in the Indian Constitution. By striking down the condition requiring a certificate of assurance from an embassy, which could unduly delay or obstruct the granting of bail, the court has emphasized on the importance of reasonable and just procedural requirements.

Furthermore, the deletion of the condition to inform the investigating officer of the appellant’s location via Google Maps is a significant step in upholding the right to privacy and the broader right to life and liberty under Article 21. The judgment also respects the three-fold requirement held in the landmark judgment of Puttaswamy, which states that any encroachment on the privacy of individual must pass the test of legality, legitimate state aim and proportionality.

The judgment in Frank Vitus underscores the judiciary’s role in ensuring that the rights of individuals are not compromised by arbitrary and invasive conditions, thereby reinforcing the fundamental principle of innocent until proven guilty and protecting the dignity of every person.

Privacy and the DPDP Act

Though the DPDP Act is not yet enforced in India, it is a validly enacted law and has obtained the assent of the president and thus soon it will be the law of the land. Now, the question that arises is whether the DPDP Act is in consonance with the stand taken by the Supreme Court in the Frank Vitus case. Does the DPDP Act protect the privacy rights of prisoners and under-trial convicts?

Personal data is defined under DPDP act as any data about an individual who is identifiable by or in relation to such data. Section 17 of the DPDP Act provides certain exemptions that allow the processing of personal data of data principals. Subsection 1 clause (c) of Section 17 states that personal data can be processed when it is required for the prevention, detection, investigation or prosecution of any offences committed under law being enforced in the country. Under this provision, the state or any governmental organization can ask for the personal data of the individual under the exemption, and such personal data could also include location information. This, in turn, means that authorities can surveil persons who are out on parole or bail.

The DPDP Act, however, does not carry any safeguards or restrictions on the provision allowing for the collection of data pursuant to the prevention, detection, investigation or prosecution of offences. This is a blanket exemption provision that does not limit the non-consensual processing of data to a particular type of offences such as crimes against women. This provision also provides for exemption to secure all the rights that a data principal has except for those incorporated under Section 8(1) and (5) of the act. Furthermore, no time limitation on such collection and processing of data has been provided in the act. This unrestricted time frame is problematic in situations wherein the data of a prisoner who has completed his sentence is being collected. Additionally, there are concerns regarding the safety of the data being collected since data fiduciaries in this case are only required to take “reasonable security steps,” the scope of which is again unknown to protect the data. The data fiduciary has been exempted from all the technical security measures that are otherwise required to be taken.

This exemption under the DPDP Act fails to incorporate the recommendations of the BN Srikrishna Committee’s report which had categorically emphasized proportionality, time limitation, and purpose specification.

Conclusion

Though Frank Vitus is a welcome judgment, to the extent that it clarifies that location tracking of offenders does not fall within the scope of conditions for bail prescribed by law, the concerns regarding the exemption under the DPDP Act persist and need to be addressed at the earliest through legislative intervention.

While the need for the prevention of crime is well-recognized, it has to be done in consonance with the constitutional framework protecting individual privacy. As discussed earlier in the article, the right to privacy protects all, and there should not be a violation of this right through arbitrary measures. The legislature may take steps to curtail the overboard exemption provided in the DPDP Act and define its scope to prevent misuse of the same.