In a brief order passed today, a two-judge bench of the Supreme Court held bail conditions under the NDPS Act could not require an accused to drop his location PIN on Google Maps for the Investigating Officer to track, and – in the case of a foreign national – could not compel the accused to obtain a “letter of assurance” from his Embassy that he would not leave the country while on bail.

Writing for himself and Bhuyan J, Oka J made the important observation that any bail condition (regardless of the law under which it was imposed) would have to meet two tests: first, that it was in pursuance of the objective of granting bail in the first place (that is, towards ensuring that the accused would not tamper with the evidence, intimidate witnesses, or flee the jurisdiction); and secondly, that it only impaired the freedom of the accused to the minimum extent possible, consistent with the objectives of bail (once can see a hint of the proportionality standard here).

With respect to the dropping a location PIN on Google Maps, the Court noted that the condition was irrational to start with, as dropping a PIN by itself did not enable the other party to track someone’s location in real time. Even otherwise, however, the Court held that:

If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy. The reason is that the effect of keeping such constant vigil on the accused by imposing drastic bail conditions will amount to keeping the accused in some kind of confinement even after he is released on bail. (para 7.1)

The important of this paragraph lies in the Court’s acknowledgment that while constant surveillance may not be the same as physical incarceration, it is nonetheless a form of confinement that not only defeats the purpose of granting bail in the first place, but is a violation of the fundamental rights to privacy and liberty. The Court’s recognition that confinement may not be physical, but that surveillance can have a similar effect on personal liberty, brings to mind Kharak Singh’s famous finding about how domiciliary visits to the house of an accused have a chilling effect upon the exercise of their constitutional rights, even though they are not being physically confined.

The other important aspect of both this paragraph and the order as a whole is the implicit acknowledgment that bail conditions have to meet the test of proportionality. This opens the door to potential future challenges to other onerous bail conditions that far too often accompany bail orders, and turn them into pyrrhic victories at best.

Indeed, one cannot forbear to note that in this, as in many other things, the chief offender is none other than the Supreme Court itself. Consider, for example, bail condition (f) in Vernon vs State of Maharashtra, a bail order passed by a coordinate bench of the Supreme Court (Bose and Dhulia JJ):

… (f) During this period, that is the period during which they remain on bail, both the appellants shall keep the location status of their mobile phones active, 24 hours a day and their phones shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the appellants’ exact location.

So, here you have two Supreme Court orders, one of which finds fault with the NDPS Judge for enabling the Investigating Officer to track the movements of the accused at all times, and the other order that does precisely what the former finds fault with.

And perhaps that is where the real importance of today’s order lies. One would imagine that Justices Oka and Bhuyan have done little more than reiterate certain very basic principles, nothing more. But then one remembers that this is a Supreme Court where most judges exhibit routine callousness towards personal liberty – from “staying” a bail order and never hearing it afterwards, leaving a man in jail for months even after he has been granted bail, to subjecting a man to the humiliation of “pairing” his phone with the Investigation Officer.

When this is the norm, then even to reiterate the basics makes for a revolutionary judicial decision.