Bail without Liberty: Digital Surveillance and Criminal Justice Reform

Authors: Ekta Gupta, Hamda Akhtarul Arfeen, Simarjeet Singh Satia | EPW Vol. 61, No. 12, March 21, 2026

Indian courts are increasingly granting bail subject to electronic monitoring (EM) conditions — GPS ankle bracelets, mandatory mobile check-ins, and real-time location tracking. The authors argue that while EM appears to be a progressive reform reducing undertrial incarceration, it risks replacing physical detention with digital incarceration: a form of surveillance that chills constitutional freedoms without formal imprisonment.

India’s Undertrial Crisis: The Scale

The Supreme Court has repeatedly noted that India’s undertrial crisis is a structural failure of criminal justice, not merely a case backlog problem. At its core: bail is routinely denied or made financially unaffordable for poor accused persons.

Electronic Monitoring as Bail Condition

What It Involves

• GPS ankle bracelet: Tracks real-time location; alerts authorities if wearer leaves designated zone
• Mobile check-ins: Accused must call or video-check with police at fixed intervals (e.g., twice daily)
• Home curfew: Bail granted subject to staying within a defined radius, typically home district
• Movement log: All movement recorded on centralised server accessible to police and courts

The Reform Argument

Proponents argue EM enables courts to grant bail where they would otherwise refuse:

• Reduces overcrowding in jails
• Protects undertrial from institutionalisation effects
• Maintains employment and family ties
• Cheaper than incarceration (for the state)

The Civil Liberties Counter-argument

The authors identify four dimensions of harm:

1. Digital incarceration: Physical freedom with constant surveillance is not genuine liberty — it is the panopticon applied to daily life
2. Chilling effect: Constant location tracking deters political activity, association with journalists/activists, attendance at protests — chills Article 19 (freedom of speech, assembly, movement)
3. Class dimension: EM devices and check-in logistics burden poor and working-class accused who cannot afford to stay home or have unstable addresses
4. Data governance vacuum: No statute governs how location data is stored, accessed, shared, or deleted — police retain data indefinitely with no oversight

Key Legal Milestones

Satender Kumar Antil v. CBI (2022) — Supreme Court

• Bail is the rule, jail is the exception — reaffirmed this foundational principle
• Courts must consider personal liberty at the bail stage
• Directed States to reduce undertrial populations; set timelines for bail hearings
• Recognised that prolonged undertrial detention = punishment before conviction (violates Article 21)

Puttaswamy v. Union of India (2017) — Supreme Court (9-Judge Bench)

• Right to Privacy is a Fundamental Right under Article 21
• Privacy includes: informational privacy, decisional autonomy, and the right not to be surveilled without legal authority
• Any state surveillance must satisfy: legality, legitimate aim, necessity, proportionality
• EM location tracking without a clear statutory framework fails the legality and proportionality tests

BNSS 2023: New Framework, Old Problems?

The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 — which replaced the CrPC 1973 — contains provisions relevant to bail and EM:

The gap: BNSS recognises EM but does not specify: who manages the data, what the data retention period is, what happens if the device malfunctions, or what safeguards exist against data misuse. This leaves EM operating in a legal grey zone.

Comparative Context

UPSC Angle

• GS2 — Polity/Governance: Bail law reform; BNSS 2023 vs CrPC 1973; undertrial prisoners; criminal justice system reform
• GS2 — Fundamental Rights: Article 21 (right to life and personal liberty); Article 19 (movement, speech, assembly); Puttaswamy judgment on privacy
• GS4 — Ethics: Digital surveillance ethics; state power vs individual liberty; proportionality principle; mass surveillance and democracy

Likely Mains question: “Electronic monitoring as a bail condition may reduce prison overcrowding but risks converting physical incarceration into digital incarceration. Critically examine in light of constitutional guarantees.” (GS2, 15 marks)

Facts Corner

• NCRB 2023: National Crime Records Bureau — 75.8% of India’s 5.5 lakh prisoners are undertrials
• Satender Kumar Antil v. CBI (2022): Supreme Court held bail is the rule, jail the exception; directed systemic steps to reduce undertrial population
• Puttaswamy v. Union of India (2017): 9-judge bench declared right to privacy a fundamental right under Article 21; proportionality test for state surveillance
• BNSS 2023: Replaced CrPC (Code of Criminal Procedure) 1973; came into force July 1, 2024; Section 479 allows undertrial release after serving half the maximum sentence
• CrPC 1973: Governed Indian criminal procedure for 51 years; replaced by BNSS, Bharatiya Sakshya Adhiniyam (BSA), and Bharatiya Nyaya Sanhita (BNS)
• Article 21: No person shall be deprived of life or personal liberty except according to procedure established by law — interpreted expansively to include privacy, livelihood, dignity
• Panopticon: Concept by philosopher Jeremy Bentham (prison design); theorised by Michel Foucault as a model of surveillance-based social control — all prisoners feel watched at all times
• Undertrial deaths: Account for ~67% of all deaths in Indian prisons (NCRB) — reflects inadequate healthcare and conditions in overcrowded pre-trial detention