Overcrowding in prison is one of the most challenging problems faced by Criminal Justice Systems worldwide. Prison overcrowding is more often a consequence of the way in which criminal justice is administered than a result of rising crime rates. The over-use of pre-trial detention, along with strict sentencing practices, are two main contributory factors. Overcrowding undermines the ability of prison systems to meet the basic needs of prisoners, such as healthcare, food, and accommodation. This also endangers the basic rights of prisoners, including the right to have adequate standards of living and the right to a good physical and mental health. In an overcrowded prison segregation of hardened criminals from mild offenders becomes impossible. Prison overcrowding compels prisoners to be kept under conditions unacceptable to the United Nations Standard Minimum Rules for treatment of offenders to which India is a signatory.
The problem of overcrowding in prisons in India has been in existence since long. The district prisons are more overcrowded than the other prisons. India’s overcrowded prisons confined more than half a millon inmates at the end of 2021, with majority of them being those undertrial for crimes they had allegedly committed. As per the data published by the National Crime Record Bureau, undertrial prisoners constitute three-fourth of the total prison population.
In recent times, bail in India is a highly debatable issue. There are number of reports that shed light on the condition of criminal justice system in India. The Supreme Court has given various instructions and recommendations. Bail is the rule and jail is an exception — this principle was established by the Supreme Court in the landmark decision of State of Rajasthan v. Balchand alias Baliya in 1978. Section 498A of the Code of Criminal Procedure stipulates that a prisoner shall be released on bail on personal bond if he or she has undergone detention of half the utmost imprisonment specified for that offence. The Law Commission in its 268th Report, recommended that those detained for offences that might attract up to seven years’ imprisonment should be released on completing one third that period, and for those charged with offences that attract a longer jail term, after they complete half of that period.
A Parliamentary Standing Committee on Home Affairs, chaired by BJP MP Brij Lal, has recommended that Global Positioning System-enabled tracking devices be used to monitor the whereabouts of prisoners who have obtained bail. The recommendation which was published on 21 September, 2023, says that there should be a bracelet or anklet, which has GPS tracking sytem, on the wrist or ankle of the accused who is out on bail so that he can be tracked. This is expected to enable them to stay at home instead of being lodged behind bars.
The report of the committee further noted that for three apprehensions the Government opposes bail in the court. First, the accused could flee. Second, he could get involved in other crimes. Third, he could intimidate the witnesses or evidences could be tampered with. If he is under GPS tracking system, he shall not be able to do any of those. Also, the Government shall not oppose bail. The number of prisoners will go down, it will reduce the government expenses on jail inmates thereby. The tracking system will be attached at the consent of the prisoner, so that no allegation of violation of human rights arises. No objection came from the Congress party or Trinamool Congress on this proposition.
The move aims to relieve prison congestion, allowing house arrest for undertrials. It has been stated in the report that the prisoner has to bear the cost of GPS tracking device, which is estimated to cost between Rs 10,000 and Rs 15,000. The device will have a designated perimeter or area programmed into it, and if the undertrial steps beyond the set boundaries the police will be alerted, and the individual’s bail will be cancelled. After a specified time he will have to go to the police station to change the battery of that device, failure to do so will lead to the cancellation of bail.
Jammu and Kashmir Police has become the first police force to use such tracking device to monitor a terror accused. Ghulam Mohammed Bhat, a terror operative linked to Hizbul Mujahideen and other terror outfits and accused in a 2007 terror financing case, became the first such terror accused to wear the anklet tracker, as per an order passed by the Special NIA court in Jammu while approving his interim bail. This is a first in the country, as per J&K police sources.
The recent judgment of the Supreme Court in Gurwinder Singh v. State of Punjab holds the view that “jail is the rule and bail is the exception”, in Unlawful Activities (Prevention) Act, 1967 (UAPA) cases. Therefore, it can be inferred that if a terror accused is granted bail in exceptional cases, he has to be tracked always.
The court has already discussed with regard to this method of tracking. The Delhi High Court has praised this system. In The State (NCT of Delhi) v. Sanjeev Kumar Chawla when dismissing the Delhi Government’s plea challenging the decision granting bail to Sanjeev Kumar Chawla, a bookie involved in the match-fixing incident of 2000, a single bench of Justice Asha Menon observed, “Digital and electronic equipment, as presently used in America, ought to be introduced in India, so that a tracking system similar to the GPS Tracking System, can be used to monitor the movement of the accused released on bail, allowing the authorities to gather information all the time while permitting the accused to undertake the usual and ordinary activities of normal life.” Previously the Additional Sessions Judge, Patiala House Court, instructed Chawla to have his cell phone in working order at all times and to call the Investigating Officer or the Station House Officer once a day while giving him bail in the current case.
On January 23, 2012, the U.S. Supreme Court announced its unanimous decision in a case addressing the constitutional privacy rights of American citizens in the face of modern tracking systems based on GPS and other technologies. The Court ruled that law enforcement must obtain a warrant prior to attaching a GPS device to a suspect’s vehicle in order to monitor its movements.
In 2012, in United States v. Antoine Jones the U.S. Supreme Court unanimously held that, “The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.” In this case, the FBI and District of Columbia police affixed a hidden GPS device to the vehicle of suspected drug dealer Antoine Jones in a public parking lot. The device recorded and transmitted the vehicle’s movements for 28 days.
Did not the members of the Parliamentary panel know, if an undertrial prisoner is tracked all the time, then it would violate Article 21 of the Constitution? They did, for sure. That is why they proposed for procuring the consent of the prisoner before attaching such device. But now the question is: should the state machinery curtail anybody’s individual liberty?
Prolonged investigation by the police, insufficiency of judges, poor infrastructure in jail — without solving these problems, the burden is going to be placed on the prisoners. It is an insult to humanity.