By Bodhisattwa Majumder and Ritika Acharya
A pandemic does not discriminate on the basis of class, community or character and strikes every section of the society equally. However, the precautions one can take against the virus are highly prejudiced and biased based on an individual’s financial, social and geographical position in the society. While society seeks refuge in the comforts of their home, many deprived sections of society suffer the wrath of the virus. Among the many unfortunate groups, the prisoners with pending sentences find themselves vulnerable to contracting the disease.
States have followed the directions of the Apex Court and released various classes of undertrial prisoners (UTs), convicts with a lower period of sentencing or pre-existing medical conditions. While it is a reasonable step towards ensuring social distancing, care also needs to be taken that the implementation does not result in negligence. This post strives to shed light the importance of a GPS Tracking system for implementation of parole measures and why the society ought to normalise this practice even after the pandemic. The views are presented in the context of the obiter dicta by Justice Asha Menon in the matter of The State (NCT of Delhi) v. Sanjeev Kumar Chawla before the High Court of Delhi on 6th May 2020. This post also takes consideration of the issues of data privacy which may arise by locational tracking of a prisoner released in parole or granted interim bail.
Laying the background: Opinion of courts on the release of prisoners on parole
The Indian prison system is infamous for overcrowding prisons with minimal hygiene standards that stems from the roots of mal-administration and corruption. Taking into consideration the possibility of internal and external transmission of the virus in the prisons, various courts have issued various directives to set up a machinery for tentatively releasing the prisoners. The Apex court had issued its directives in the last week of March, following the massive outbreaks and declaration of COVID-19 as a global emergency. The Court had suggested the formation of high-powered committees across various states and union territories to consider the release on parole or interim bail of convicts who have their sentences lower than a period of seven years. The Court also suggested for holding weekly meetings for reviewing the status of the prisoners released through parole or bail and using the medium of videoconferencing for the same. Following the directive of the Apex court, prisons in the states of Delhi, Madhya Pradesh, Rajasthan, Uttar Pradesh, Maharashtra, West Bengal, Himachal Pradesh and Gujarat initiated the release of prisoners. However, the safeguards associated with the release are not concrete. The Delhi High court by its order has also restricted personal visits, production of prisoners, group activities and suggested social distancing by means of isolation wards, medical assistance.
Safeguards for interim bail or parole – Practical impediments of a GPS Tracking System
The Delhi High Court, in Sanjeev Kumar Shukla, suggested for the use of tracking systems while releasing prisoners. While granting interim bail to the accused, Justice Asha Menon noted in her obiter that there is a need to adopt a digital tracking system as used in the United States of America. Trackers come mainly in two forms – anklets and bracelets. When a convict is released from jail on probation or bail, the tracker is strapped to his body to constantly monitor his location. The tracker notifies authorities through an alarm, if the released prisoner tries to remove it or tries to violate his geo-restrictions. The idea here is to sustain a constant vigilance on the prisoner without actually incarcerating him. While using GPS during the release of prisoners to lessen congestion might seem like a no-brainer, it does come with a set of drawbacks that make the implementation of a GPS tracking system challenging in the Indian context.
- Regional disparities in implementation: There is a chasm of economic disparities all over India. It will be a herculean task to implement a uniform framework by expecting a similar state of machinery from a backward state and a metropolitan state. Before implementation, it would also be necessary to conduct training sessions for police personnel to make them aware on the usage of a GPS tracker, the course of action to take should the tracker sound an alarm, etc. which may differ from place to place on account of varying logistical issues. Not to mention, the cost of introducing GPS would also be different for different states.
- Technical Loopholes: A tracker has to be charged regularly for its battery to continue functioning. A released prisoner who doesn’t want his movements to be supervised can easily let the battery run down without charging it. He may escape the physical limits he was supposed to be confined to and committed another offence by the time law enforcement agencies reach him. The same situation would arise if the motion sensor of a tracker suddenly stopped working due to a malfunction. Like any other device, GPS trackers are vulnerable to technical glitches. They must be designed in such a manner that even a low battery level or the slightest malfunction, sends out a notification to the authorities.
- Detrimental to Health: Since the tracker must be worn round-the-clock for surveillance, the wearer is not permitted to remove it for any reason. In the US where the use of GPS for prisoners is common, quite many of them have reported suffering from skin irritation problems in and around where the device is placed on their bodies. MRIs, CT scans and some other medical procedures cannot be carried out on the wearer. Most countries do not make medical emergencies an exception for removing the tracker. They require the prisoner to take permission in advance from his supervising officer. The prisoner still has to face the possibility of a re-arrest and being put behind bars again. In India, the right to life is inclusive of right to health. If GPS were to be implemented, a provision in the law for medical emergencies would have to be made.
- Eligibility for GPS: The criteria for determining which prisoners would be eligible to be released with GPS would have to be established. This raises a number of issues like – will prisoners of only certain petty offences be allowed GPS, what will be the cost of a GPS tracker, will the state bear this cost for the indigent prisoner, etc. which ultimately would prove to be hurdles in the implementation of a GPS system.
Locational tracking and Data privacy – treading on thin ice
The State lacks the moral standpoint to abuse a prisoner’s personal data merely because he had to compromise his right to privacy in exchange for the GPS. In Justice K.S. Puttaswamy v. Union of India, a nine-judges bench of the Supreme Court of India, set a landmark precedent by observing that the right to privacy falls within the scope of the right to life and personal liberty under Article 21 of the Constitution. This judgement had also set a four-fold test of “proportionality and legitimacy”, which sets the parameter of any state-sanctioned act of breaching the privacy of an individual. The elements of the test are: first, the act should be sanctioned by law; second, it should be legitimate aim behind that act; third, the act should be proportional to necessitate such interference and fourth, it must be subjected to the procedural requirements. Undoubtedly, the introduction of locational tracking must be within the four corners of these tests. There should be an established procedure, the use of such surveillance should be limited, authorized and used only when the requirement passes the test of the procedural guarantees.
GPS collects a vast amount of non-anonymized locational data of the prisoners. In countries where this technology is used, there is little to no transparency on where this data is stored, who has access to it, the duration for which it is stored and the manner in which it is used regardless of whether the entity that develops these trackers is private or public. The prisoner’s personal data is stored on servers of the manufacturer of the tracker. No matter how strong the security protocols are, the danger of servers being hacked cannot be eradicated. It can be reasonably assumed that these nuances shall prevail in India too. Thus, it is wise to frame a regulatory mechanism addressing these issues before implementing such a system.
Concluding Remarks
Desperate times indeed call for desperate measures, however, the adopted measures often stay beyond the times. So, every step taken during these times must be measured with strict scrutiny of reason, practicability and justifiability. It is indeed not a point of debate that the release of the prisoners is imminent. However, the machinery which is to be adopted to ensure compliance must be discussed thoroughly. A GPS tracking system would have enormous legal ramifications in India. The associated laws have to be amended such as the Code of Criminal Procedure and the Probation of Offenders Act, which currently lack provisions for the release of a prisoner on real-time monitoring. The absence of specific data protection laws also presents an impediment to ensuring the privacy of individual subject to such surveillance, given that the Personal Data Protection Bill, 2019 does not cover the use of anonymized data or non-personal data. Taking further the concerns raised in Puttaswamy, it must be always kept in mind that every act of surveillance which threats the privacy of the individual needs to be authorised and kept within the framework of the laws. In the absence of any proper regulatory framework, sudden implementations of such steps might lead to misuse and blatant breach of privacy. The effects of a home detention program would also have to be examined in light of the safety of the prisoner’s family members. Hence, a GPS system is indeed the need of the hour, especially in the present times. However, it’s efficacy will be hampered if the aforementioned problems are not safeguarded against.
[The co-authors are students at Maharashtra Law University Mumbai. Their interests lie in Human Rights law, Cyber laws, and Criminal jurisprudence. Any discussion related to the article can be made via mail at bodhisattwa@mnlumumbai.in or ritikaacharya@mnlumumbai.edu.in.]
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