Bail under Sections 437 and 439 of the Code of Criminal Procedure, 1973, and the corresponding provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023, exists for one statutory purpose, to secure the presence of an accused person at trial. It was never meant to function as an administrative tool through which the state keeps continuous watch over a citizen who stands unconvicted. Yet bail orders across trial courts increasingly require accused persons to share their real time location, submit to biometric verification through mobile applications, or drop location pins so that investigating agencies can track their movements. What began as an informal shortcut for overstretched police stations has hardened into something more troubling, a system where physical liberty is nominally restored while a quieter form of custody takes its place.

The Mirage of Liberty and the Rise of Electronic Incarceration

Bail rests on the presumption of innocence. An undertrial has been accused, not convicted, and any condition attached to release must be calibrated to a narrow objective, ensuring appearance before the court and preventing interference with the investigation. When a court demands that an accused person carry a phone transmitting coordinates around the clock, or register fingerprints on an application monitored by the police, the condition stops serving that objective. It becomes continuous state observation that follows the individual into the home, the workplace, and every private interval in between.

The phrase virtual confinement is not rhetorical excess. An accused person subjected to constant digital tracking experiences much of the practical burden of custody, the loss of anonymity, the awareness of being watched, the loss of spontaneous movement, without having been found guilty of anything. The presumption of innocence is a structural safeguard, not a courtesy, and converting it into a state of perpetual surveillance outside prison walls quietly defeats its purpose.

The Constitutional Conflict With Article 21 and the Frank Vitus Doctrine

The Supreme Court confronted this question directly in Frank Vitus v. Narcotics Control Bureau, decided on 8 July 2024. The appellant, a Nigerian national who had spent over eight years as an undertrial, was granted bail on the condition, among others, that he drop a location pin on Google Maps so the agency could monitor his whereabouts. The bench of Justice Abhay S Oka and Justice Ujjal Bhuyan held that imposing any bail condition enabling an investigating agency to track every movement of an accused person, whether through technology or otherwise, would violate the right to privacy guaranteed under Article 21. The ruling did not merely strike down one onerous condition, it laid down a standard, bail conditions cannot be fanciful, arbitrary, or freakish, and cannot exceed what is strictly necessary to secure attendance and cooperation with the investigation.

This standard draws on the framework in Justice K S Puttaswamy v. Union of India, where a nine judge bench recognised privacy as intrinsic to the right to life and personal liberty under Article 21 and subjected any state intrusion into that right to a threefold test of legality, necessity, and proportionality. Applied to bail conditions requiring digital tracking, the test collapses at every stage. Legality fails because neither the CrPC nor the BNSS authorises courts to convert bail orders into instruments of continuous surveillance. Necessity fails because periodic reporting and travel restrictions already secure the state's legitimate interest without round the clock monitoring. Proportionality fails because the intrusion into personal liberty and dignity is disproportionate to the marginal investigative benefit obtained.

Equally significant was Google LLC's affidavit before the Court, which clarified that dropping a pin on Google Maps does not enable real time tracking of a user or their device at all. The pin is static, the user retains full control over whether and when it is shared, and it gives investigating agencies no continuous visibility into an accused person's movements. The condition was therefore not just constitutionally suspect, it was technically redundant, a form of digital compliance mandated without any understanding of what the underlying software could do, producing an arbitrary burden on the accused for no verifiable law enforcement gain.

Systemic Resistance and the Continued Overreach by Trial Courts

Despite this clear pronouncement, trial courts continue to insert location sharing and device tracking clauses into bail orders as routine boilerplate. In November 2025, the Delhi High Court had to delete a condition requiring an accused, Harinder Bashishtha, to share his location twenty four hours a day through Google with the investigating officer, a condition the trial court had imposed while granting him bail. Justice Vikas Mahajan relied squarely on Frank Vitus to hold that the trial court could not impose a condition requiring the accused to keep the police constantly informed of his movements. That a trial court felt free to impose exactly the condition the Supreme Court had already declared unconstitutional, more than a year after the ruling, is not an isolated lapse, it is evidence of a doctrine that has not been absorbed into everyday bail practice.

Part of this stems from institutional anxiety. Investigating agencies, aware of their own limited manpower for physical surveillance, have come to treat mobile tracking as a low cost substitute for investigative diligence. Rather than deploying personnel or relying on established reporting mechanisms, they ask courts to place monitoring on the accused's own device, and courts, keen to appear cautious in sensitive cases, often oblige without asking whether the condition is statutorily permissible.

The deeper problem is one of authorisation. Neither the CrPC nor the BNSS contains any provision empowering a court to turn an investigating agency into a permanent digital lookout over a released accused. Sections 437 and 439, and their BNSS counterparts, speak of bonds, sureties, and reasonable restrictions on movement or travel, they say nothing about biometric check ins or continuous geolocation. When trial courts import such conditions anyway, they are legislating from the bench in a manner that contradicts binding Supreme Court precedent, and each such order forces the accused to approach a higher court simply to be restored to the position the law already guarantees.

Proposing a Human Centric Framework for Bail Administration

The remedy lies in abandoning digital surveillance rather than refining it. Periodic physical appearance before the local police station or a designated judicial officer, on a weekly or fortnightly basis depending on the gravity of the offence, achieves the same investigative assurance without subjecting the accused to constant electronic observation. This is not a novel proposal, it mirrors reporting conditions the Supreme Court has itself endorsed in earlier undertrial release frameworks, and it restores bail to its original character as a mechanism of trust bounded by accountability rather than a permanent leash.

For this shift to hold uniformly, State High Courts must issue binding administrative circulars directing that standard bail order templates be purged of digital monitoring clauses. Leaving compliance with Frank Vitus to the discretion of individual magistrates has already proven insufficient, the persistence of tracking conditions in trial courts more than a year after the judgment demonstrates as much. A circular mandated framework, applied uniformly across every sessions and magistrate court, would close the gap between what the Supreme Court has declared unconstitutional and what continues to appear in bail orders on the ground. Only institutional correction of this kind, rather than case by case judicial correction after the fact, can ensure that the promise of liberty in Article 21 is not quietly hollowed out by the very orders meant to restore it.

References

1. Frank Vitus v. Narcotics Control Bureau and Ors., 2024 LiveLaw (SC) 441, Supreme Court judgment dated 8 July 2024. livelaw.in

2. Supreme Court order directing Google LLC to file an affidavit on the working of the Google Maps PIN, Frank Vitus v. Narcotics Control Bureau. livelaw.in

3. Justice K S Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, Supreme Court judgment dated 24 August 2017. livelaw.in

4. Harinder Bashishtha v. State, Delhi High Court order dated 28 November 2025, Justice Vikas Mahajan. livelaw.in

5. The Code of Criminal Procedure, 1973, Sections 437 and 439.

6. The Bharatiya Nagarik Suraksha Sanhita, 2023.

Author is a Project Associate (Research) at Bay Of Bengal Programme Inter-Governmental Organisation (BOBP-IGO), Chennai, Tamil Nadu. Views are personal.