What Supreme Court’s policy wing didn’t explore about electronic monitoring

Pupul Dutta Prasad

Among such factors, the report notes that the Model Prisons and Correctional Services Act, prepared in 2023 by the Ministry of Home Affairs for the guidance of states, contains a provision enabling the use of electronic tracking devices on prisoners as a condition for prison leave. Then, with a view to emulate “successful’ examples abroad, it outlines legal measures on the varied use of EM in correctional settings in some leading countries. Finally, the report proposes running a pilot exercise in India in which “low and moderate risk” under-trial prisoners who have shown good conduct while incarcerated may be electronically tagged and released on temporary leave like parole or furlough. This is supposedly meant to test “community readiness” for EM.

For all its gestures towards a putatively evidence-based approach, the report pays no attention to finding out whether the need for EM in order to attain the interrelated goals of providing a cheaper alternative to detention and easing prison overcrowding is established in the first place. The fact of the matter is that after nearly three decades of large-scale use of EM in over 30 countries worldwide, studies offer no compelling evidence of its alleged benefits. At the same time, its dangers and harms have been widely written about.

A frequently utilised selling point for EM has been that it may be economical compared to imprisonment. Somewhat ironically, a systematic review by Jyoti Belur and others (2020) indicates that the effectiveness of EM requires a huge investment in human and financial resources to operate it. Adequate staffing, appropriate staff training, reliable equipment, and continuous monitoring with sophisticated global positioning system (GPS) technology (as opposed to static monitoring with Radio Frequency (RF) technology) are identified as crucial for the success of EM. Even though all these entail a huge expenditure, the review does report that EM is considerably cheaper than prison. But this is not the whole story.

The economic argument for EM is seriously undercut by three objections. First, studies reveal that EM is more expensive than the conventional alternatives of ordinary probation or parole. The second problem is that EM might open up a new path to incarceration by putting individuals at risk of making technical violations of EM conditions — whether due to inadvertent mistakes by individuals or electronic monitors sending erroneous alerts. UK criminologist Fergus McNeill points out a paradox here. He observes that EM’s credibility depends on high rates of compliance and enforcement of non-compliance even as the heightened surveillance under it increases the risks of the discovery of infractions that might otherwise have gone unnoticed. In other words, its “success” may ultimately amount to a failure in a sense.

The third critique comes from researchers who caution against the simplistic conceptualisation of EM as an alternative to imprisonment overlooking concerns about its two potential outcomes: “widening the net” and “thinning the mesh”. These twin metaphors have been borrowed from Stanley Cohen’s (1985) seminal work Visions of Social Control. In his analysis of community alternatives to incarceration, Cohen argues that ‘“alternatives” become not alternatives at all but new programmes which supplement the existing system or else expand it by attracting new populations. When any new “reform” results in an increase in the total number of people under penal control, it has widened the net. If it leads to more intense penal interventions, the effect is that of thinning the mesh.

Both these overlapping possibilities have justifiably been central to discussions about EM. Several European scholars have referred to the use of EM against individuals who otherwise may not have been sanctioned at all (net-widening). Local evaluations in Canada found that EM had often been invoked against low-risk offenders who could well have been managed with a less punitive intervention such as fine, community service and probation supervision (mesh-thinning). Commentators also cite the case of the United States where EM usage has expanded to unprecedented levels, but prison populations have remained consistently high reflecting a deep and unwavering commitment to mass incarceration. As a result, it is contended that there is little proof to support EM as a viable alternative to imprisonment.

No doubt a litany of cross-jurisdictional accounts suggest that EM has not become a pragmatic cost-saving solution to burgeoning prison populations which it is often touted to be. But again, this is not all; critical literature on EM includes a perspective that departs from rather depoliticised investigations revolving around its effectiveness/efficiency and seeks to understand it as a “political technology”. In this view, EM is a form of incarceration (“E-Carceration”) that is geared towards governing those sections of the population that are deemed to be dangerous and different from others. The emphasis here is on questioning the legitimacy of the practice owing to social harms caused to monitored people and their families belonging to already marginalised and excluded groups. More recently, personal narratives of the harms and systemic injustices inflicted by EM have added to the charges against it.

Yet, the existing literature on how EM operates in practice and how it is largely experienced by those subject to it is neither conclusive of how it is intended to operate nor of how it can be used. Reductive interpretations can unwisely rule out the potential EM may have to mitigate penal severity in some cases over the short term. For instance, a limited corpus of qualitative research in Western settings has reported that despite experiencing EM as oppressive, there are offenders and their families who prefer it to prolonged periods in detention. While it is inadvisable to derive broad conclusions from such research, it seems worthwhile to explore whether even as an element of a punitive package EM can be of minor rehabilitative value. This calls for more in-depth qualitative research in different criminal justice contexts, rather than a belief that EM can somehow be a resource-saving ‘quick fix’ answer to overburdened prison systems.

Unfortunately, in my view, it is the latter that seems to characterise the CRP’s report. There is barely hidden enthusiasm in it for embracing a “successful” techno-penal innovation that it takes EM to be, whereas what is needed is critical and cautious consideration. Any evidence-based approach to EM that seeks to learn from abroad ought, at the very least, to look at the evidence before it goes on to advocate implementing EM. An extensive empirical literature not only illustrates the limits of EM as a penal measure but also reveals the myths and harms associated with it. Critical scholars have raised fundamental questions about its nature and purpose. Therefore, it is naïve, if not disingenuous, to promote EM without so much as acknowledging the complexity surrounding its use.

The writer is an IPS officer and holds a PhD in Social Policy from the London School of Economics and Political Science. He is currently working as Professor of Practice, Lloyd Law College, Greater Noida on deputation. Views are personal