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While the debate about the non-consensual and alleged intrusive (ab)use of Pegasus is keeping the judiciary, executive and activists engaged, we conveniently turn a blind eye to a similar kind of invasion by other applications available on both iOS and Android platforms. Apple, Google, Facebook-Meta, Microsoft, and numerous others are equally intrusive.
It wouldn’t be wrong to assume that privacy is fast becoming a myth, and that these companies perhaps know more about our behaviour patterns than we know ourselves. In such a scenario, how do we balance privacy, individual liberties and state authority?
Perhaps the only parameters that separate the bad from the ugly are the intent and the interface being used. While snooping and data mining are widely prevalent, the question is whether such an activity is done with ‘malicious’ intent or ‘without’ one’s consent, or whether it is consensual and there is a ‘greater good’ to it.
'Decongesting' the System
Another aspect that differentiates state action from that of others is supervision and criminality. While acts by ‘others’ – humans as well as corporates – can be criminalised and brought to book, those by the state would perhaps always arouse suspicion. The perceived disinclination of the state to submit itself to both the process and end-use audits leads to anxiety among activists.
These limitations notwithstanding, there is little doubt that certain powers of the state cannot be bracketed with those of individual entities. Thus, while striking a balance between privacy and state authority remains a matter of debate, there are measures that can be taken to ‘decongest’ our systems using information technology.
The COVID-19 pandemic helped the internet spread to the masses rapidly – work-from-home, online classes, video-conferencing, and apps like Aarogya Setu and the Co-WIN portal are important advancements.
Process Shouldn't Become the Punishment
Faced with the COVID-19 pandemic and the vulnerability of the criminal justice system and prisons, the Supreme Court and High Courts had intervened and issued directives for decongesting prisons to minimise the chances of outbreaks. Virtual hearings in courts also opened up new vistas.
During this period, issues such as the high-profile arrests of Rhea Chakraborty and Aryan Khan grabbed headlines. While they both got bail, numerous people remain incarcerated in prisons, awaiting either bail or trial. Arguably, most of them would not be as privileged as Rhea or Aryan.
This raises a question: do we need to overcome the mindset that the accused needs to be held as an undertrial prisoner while the laborious trial goes on, or should such accused-suspects be entitled to liberty till they are finally proven guilty? The process itself should not become the punishment. What happens if the accused is acquitted at the end of the trial but his liberty is curtailed for prolonged periods due to the ‘process’?
While the weight of evidence against the suspect-accused could be a factor leading to an acquittal, even a single day spent in custody without a reasonable cause is a day too many.
There could be instances where the accused is caught red-handed or is a repeat offender, or where the accused is likely to hamper or interfere in the investigation, or tamper with evidence. These could be some of the overriding factors in the denial of bail. But a balance needs to be struck between denial of liberty and the need for maintaining public order.
Jail as a Hindrance to Extraditions
Another issue is fugitives abroad who need to be extradited. The threat of prolonged incarceration in ‘correctional’ institutions while they await the completion of the trial also keeps them away from the judicial process. People such as Mehul Choksi and Nirav Modi will try all tricks up their sleeves to avoid incarceration during trials and the stigma attached to being in jail.
Bail Conditions and Digital Advancements
There is no denying the fact that the prosecution and courts are at liberty to seek the imposition of conditions on the ‘bailee’ at the time of grant of bail. These include personal bonds, sureties, monetary deposits, surrender of passports, regular/periodic reporting at police stations or courts, seeking permission before travelling to outside jurisdictions, or a combination of any of these and many more.
There is nothing that could prevent the police and courts from seeking other restrictions/conditions to be imposed upon individuals who are willing to trade off their liberties with restrictions at the pre-trial stage. Sharing Google locations is one such example.
In fact, in a pathbreaking judgment, the Delhi High Court, in Chander Prakash@Pappu v State, ordered a man to disclose his Google location every other day to the investigating officer.
Clearly, the court was willing to walk the talk for ensuring liberty, and the trade-off seems reasonable. The intervals and the periodicity at which the location must be shared (equivalent to attendance at the police station), areas that a person can be debarred from visiting, people who he/she must not contact, and other such restrictions can be listed down and compliance monitored digitally.
There is a strong case for using technology to decongest jails and enhance pre-conviction liberty. Dedicated applications can be created to ensure the non-absence of undertrials or ‘remand prisoners’ for investigation, and for preventing them from interfering in the investigation, tampering with evidence or intimidating witnesses. The apps can be used to monitor the location of those granted bail, and even for such people, liberty would be a bigger takeaway as compared to the tracking of their movements. Similarly, the applications can also be used for ‘geo-fencing’, which can help in preventing the bailee from interacting with ‘geofenced’ persons/witnesses or intruding into ‘geo-fenced’ areas.
However, though numerous other details can be incorporated into such digital apps, there is no substitute for faster judicial proceedings. The number of courts in India also need to be increased and judicial proceedings made time-bound so that liberty and privacy can be balanced with public order and the state’s responsibilities.
Restraint on Liberty Can't Be the Norm
One of the factors that concern police officers and courts is the fear that they will lose track of the suspect-accused. This apprehension then translates into a phobia, where the investigating officer and prosecution push for incarceration and restraint of liberty as opposed to greater liberty at the pre-conviction stage.
Technological advancements can be helpful in striking a balance here, too. Sub-dermal and embedded implants and bracelets are just a few examples for balancing the needs of the state with individual liberty and privacy. A whole new ecosystem is evolving in this domain.
The sooner we start experimenting to achieve an equilibrium, the better. Some restraint on liberty and privacy for public order may be essential, but it can’t be the norm.
(The author is an IPS Officer currently posted as DG Prisons, Homeguards and Civil Defence in Nagaland. He tweets @rupin1992. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)