Exceptional Conditions, Unequal Rights: Examining Bail Regime for Foreign Nationals in India – Part I

Introduction

Bail in its essence is a fine balance between the right to liberty of the person accused of an offence and the interests of society at large.

Bail is a fundamental component of criminal justice system. Its origin can be traced back to Clause 39 of Magna Carta which barred imprisonment of a free man except by the law of the land. This early recognition of the principle of personal liberty laid the foundation for the modern bail system across the world. The idea of personal liberty and presumption of innocence lies at the core of bail jurisprudence. Overtime, this principle has evolved through English Common Law and later, through entrenchment into constitutional democracies. In India, the idea of bail has developed through statutory law and judicial interpretation. Though, the term “bail” was not defined in any statute until 2023, the courts have consistently held that it must be guided by the principle of Article 21 of the constitution. The Article 21 deliberately uses the word ‘person’ to ensure that the right to life and personal liberty extends to all individuals within Indian Territory, regardless of nationality.

However, in practice, the right to personal liberty is not guaranteed universally. The state of foreign nationals entangled with Indian criminal justice system tells a different reality. Foreign nationals often face an added layer of suspicion, coupled with procedural hurdles and harsher bail conditions, which sets them apart from Indian citizens.

This blog (in form of a two part series) aims to critically examine this particular aspect i.e. how bail operates for foreign nationals in India and how the system often fails to uphold the constitutional and legal protections it promises. This Part I trace the constitutional and statutory foundations of bail in India and examines how these principles operate in the case of foreign nationals. It first situates bail within the broader framework of personal liberty, equality and the presumption of innocence. It then examines the additional procedural and institutional hurdles faced by foreign nationals, including the involvement of multiple authorities, immigration-related complications and heightened bail conditions. Finally, it considers whether these practices are consistent with Articles 14 and 21 of the Constitution and the principle of presumption of innocence. Thus, the aim of the first part of this blog series is to highlight the present state of India’s bail jurisprudence, especially in context of foreign nationals.

Bail As A Legal Standard and Its Constitutional Foundations

Bail, at its core, is a legal mechanism that allows a person accused of a criminal offence to be released from custody, usually on the condition that their presence is ensured when required.  Etymologically, the term ‘Bail’ originates from the French word ‘Bailliere’ which means ‘to control and to deliver’. The term also has roots in Latin word ‘Baiulus’ which means ‘the one who bears the burden’. The concept of bail is well recognised in International sphere, from the time of Magna Carta to the present covenants such as International Covenant on Civil and Political Rights [ICCPR]. For instance, Article 9[3] of the ICCPR provides that a person awaiting trial shall not be detained but there may be certain conditions that can be imposed to ensure their presence at the trial. Moreover, Article 9, 10 and 11 of Universal Declaration of Human Rights [UDHR] resonate the similar expectations with respect to treatment of accused person. Apart from these covenants, the higher principle of natural justice i.e. the principle of presumption of innocence lies at the core of bail jurisprudence across the globe. The presumption of innocence is a fundamental rule of law which would lose its meaning unless the right to bail before the trial is preserved.

According to Indian constitutional scheme, Article 20, 21, and 22 of the constitution elevates the right to bail as a constitutional right. Specifically, the right to bail is seen as a facet of right to life and personal liberty under Article 21. Yet, it is crucial to note that the term ‘bail’ was not defined in any legislation including the Code of Criminal Procedure [CrPC] until 2023. Bharatiya Nagarik Suraksha Sanhita (BNSS) recently provided a definition of bail under section 2[b] of the Sanhita. According to this definition, bail is the release of accused person from the custody of law by way of imposing certain conditions through a bond or bail bond. Furthermore, the procedural framework for bail is primarily contained in Chapter XXXV of the Bharatiya Nagarik Suraksha Sanhita. These provisions are organised around the distinction between bailable and non-bailable offences. According to these provisions, a bailable offence is one in which bail is a matter of right, while in non-bailable offences, the grant of bail lies within the discretion of the court.

The section 478 of the BNSS deals with the grant of bail in bailable offences. According to this section, any person accused of a bailable offence has a right to be released on bail if they are willing to furnish the bond or bail bond as required. The provision leaves no scope for judicial discretion, The accused is entitled to bail as a matter of right except under circumstances provided in section 39 of BNSS, where there is failure to disclose the correct information regarding one’s name and address. Moreover, the legislature by 2005 Amendment Act inserted section 436A in CrPC which is incorporated in BNSS as section 479. This provision states that an under trial serving for more than half of their maximum sentence have right to bail unless the offence is punishable with death or life imprisonment. In the case of Bhim Singh v Union of India, the Supreme Court also framed guidelines for release of prisoners in accordance with section 436A [§ 479 of BNSS]. Default Bail is another avenue where right to be released on bail is granted if the investigation is not completed within the prescribed period. For instance, according to section 58 of BNSS, a person cannot be detained for more than twenty-four hours of they are arrested without a warrant. If the investigation is not completed within twenty-four hours and there are grounds to believe that accusation is well founded, then such person is transmitted to the nearest judicial magistrate for 15 days. This can be further extended for 60 days or 90 days based on the punishment for the offence; however, after expiry of this term, the accused is entitled to default bail. In case of foreign nationals, the practical significance of default bail remains legally complex. Even where a foreign national becomes entitled to release under Section 479 of the BNSS, the effective enjoyment of that liberty is also shaped by immigration-related procedures and the involvement of multiple authorities. These issues are examined in the following section.

Furthermore, the Section 480 addresses the grant of bail in non-bailable offences. Here, the courts [other than High Court or Court of Session] have discretionary power to grant or reject a bail application for offences not punishable with death or life imprisonment. Further, Section 483 provides special power of the High Courts and Courts of Session to grant deny or cancel the bail granted by Magistrate including the offences punishable with death or life imprisonment. In both cases, the courts take several factors into account including the nature and gravity of the offence, the prime facie grounds for believing whether accused is guilty of the offence and the likelihood of the accused absconding or tampering with evidence. The courts have to juggle between two competing values here i.e. the personal liberty of the accused vis-à-vis public order consideration. A closer look at the provisions also reflects the wide discretionary power used by courts in granting bail, especially in non-bailable offences. Although the statutory framework is facially neutral and does not distinguish between citizens and foreign nationals, this discretion assumes particular significance in cases involving foreign nationals, where concerns relating to flight risk and immigration status often influence the grant and conditions of bail.

While these statutory provisions form the procedural backbone of bail jurisprudence in India, the interpretation of bail provisions has been significantly shaped by constitutional rights, particularly by Article 21. Post Maneka Gandhi judgement, the right to life and personal liberty is interpreted expansively i.e. any law interfering with personal liberty must be just, fair, and reasonable. This inclusion of ‘due process’ principle into Article 21 has served as the normative foundation for later bail cases. For instance, in Nikesh Tarachand case, Justice R.F. Nariman emphasized that bail conditions and the cancellation of bail must be constitutionally justified and arbitrary or excessively harsh standards shall not be imposed. Furthermore, in the case of Gudikanti Narasimhulu v. Public Prosecutor, Justice Krishna Iyer famously asserted that the issue of bail is one of liberty, justice, public safety, and the burden on the public treasury. He notably laid down the principle that “bail, not jail should be the norm, and that pre-trial detention must be an exception justified only by compelling reasons.” His observations reinforced the idea that the bail cases must operate with the constitutional limits.

In theory, Articles 21 read with Article 14 of the Indian Constitution create a strong normative foundation for equal treatment in matters concerning personal liberty. Article 21 guarantees that no person [irrespective of citizenship] shall be deprived of their life or liberty except through a fair, just, and reasonable procedure. Moreover, article 14 guarantees the right to equality and protection against arbitrary classifications by the state. If we apply this normative framework to the context of bail, it will imply that all individuals, including foreign nationals, be assessed on the same legal standards and not subjected to heightened scrutiny solely on account of their nationality. However, in practice, we see the significant violations of these ideals. With this bail jurisprudence and constitutional context in view, the next section delves into the treatment of foreign nationals in the Indian criminal justice system with respect to bail. It will examine the court’s approach towards bail applications filed by foreign nationals, the kinds of conditions typically imposed, and whether these practices are in line with India’s constitutional guarantees.

Flight Risk: Bail, Nationality And Disadvantages

Foreign nationals form a small yet deeply vulnerable category within the Indian criminal justice system.  According to National Crimes Record Bureau’s report ‘Crimes in India 2022: Statistics [Volume III],’ 2100 criminal offences were committed by foreigners in India, down from 2585 in 2021 and slightly higher than 1937 in 2020. However, even as reported offences declined, the number of pending investigations and trials are significantly rising. At the end of 2022, 1581 cases were still under investigation and 12708 cases involving foreign nationals were pending trial [Crimes in India 2022, Table 13B.4]. Out of these pending trials, merely 406 cases were disposed, which made the pendency percentage to reach 96.5%. These numbers are not merely statistical anomalies. The high pendency percentage of trials and investigation is not a new story for Indian criminal system. The victims and undertrials, irrespective of nationality, awaits disposal of trial for years to come. They reflect prolonged deprivations of liberty, often without trial. But what implication does this have specifically for foreign nationals and their bail applications?

• Overlapping Laws & Authorities

The lengthy delays in disposal of criminal cases are a usual practice in Indian legal system. There are also possibility that one will be detained for the entire period of such investigation and trial if charged with non-bailable offence such as possession of narcotics (Khurshid & Ors 2020, Page 200). Particularly, in case of involvement of a foreign national, the procedure becomes a legal labyrinth of various authorities and legal frameworks. In addition to standard criminal law such BNSS or NDPS Act; foreign nationals are frequently prosecuted under a mix of the Foreigners Act, the Passport Act, the Citizenship Act, and visa-related orders and notifications. This leads to involvement of various authorities concerned with these particular statutes. For instance, bail proceedings often involve regular prosecuting agencies along with civil authorities, the Ministry of Home Affairs, immigration departments, and local Registration Officers.

In Frank Vitus v. Narcotics Control Bureau, the Supreme Court rejected the locus standi of the civil authorities and registration officer under Foreigners Act [1948] to oppose the bail application. However, it was affirmed that any bail granted to a foreign national must be communicated to the Registration Officer appointed in accordance with Rule 3 of the Foreigner Order (1948), who must then alert all concerned authorities to take relevant steps. Unnecessary obstacles inherent in the process include the lack of coordination and slow communication amongst multiple stakeholders at various level of the government. For instance, when a foreign national overstays the visa [beyond the period of expiry of visa] and later violates the provisions of penal statutes, Foreigners Act (1946) or Registration of Foreigners Act (1939). The involvement of various authorities delays the bail application and overall investigation and trial in case of foreign nationals. Moreover, as noted by Charu Mathur, this situation lead to a case of ‘relay detention’ i.e. the accused is released by court on bail and is subsequently arrested by Immigration authorities such as Bureau of Immigration, Foreigners Regional Registration Officers (FRROs) and Foreigners Registration Officers (FROs) (Khurshid & Ors 2020, Page 62).

• A special problem for refugees and illegal immigrants

It is interesting to note that Foreigners Act and Registration of Foreigners Act define a ‘foreigner’ as ‘a person who is not a citizen of India’. The Citizenship Act defines ‘illegal immigrant’ as ‘a foreigner who has entered India with or without valid passport or travel documents’. These definitions, read together, demonstrate that refugees and illegal immigrants constitute legally distinct categories within the broader class of foreign nationals. Unlike foreign nationals residing in India pursuant to a valid visa or other lawful status, refugees and illegal immigrants often face additional legal and administrative complexities arising from the absence of a comprehensive domestic refugee law and questions surrounding their immigration status. Thus, bail proceedings involving such persons frequently engage broader concerns relating to national security, immigration control, and humanitarian protection.

One illustration of these unique challenges is the decision of the Kerala High Court in Premanand v State of Kerala. In this case, two Sri Lankan refugees were granted bail subject to conditions including an assurance from the competent authority dealing with Sri Lankan refugees, production before the Commissioner of Rehabilitation of Refugees in Chennai, and execution of a bail bond of ₹10,000 each. While Premanand represents a single High Court decision rather than a general statement of national practice, it illustrates how the absence of a settled legal status may result in additional bail conditions that are not ordinarily encountered in cases involving other foreign nationals. Although courts have recognised that bail conditions should account for the economic and social circumstances of the accused, the Premanand decision raises questions regarding the practical accessibility of bail for particularly vulnerable categories of foreign nationals, such as refugees.

• Constitutional Constraints: Violations of Article 14, Article 21, the Presumption of Innocence, and the Right to Speedy Trial

From the above discussion, two crucial concerns become evident. Firstly, the Indian legal system complicates access to bail for foreign nationals where multiple government departments and statutory authorities are involved. Secondly, the conditions imposed on them are often harsh and difficult to comply with, especially for vulnerable groups like refugees. These legal delays and harsh bail conditions do not just create procedural hurdles. They also violate constitutional values underlying Article 14 and 21 of the Constitution along with the principle of presumption of innocence. Thus, the section will now deal with how these concerns are not merely procedural in nature but also directly undermine core constitutional protections.

Article 21: According to Article 21 of the constitution, no person shall be deprived of life or personal liberty except according to procedure established by law. Moreover, as discussed earlier, the right is interpreted expansively to include ‘due process’ principle and expand its application to bail related provision. The court has recognised the right to bail as a precious value of constitutional framework under Article 21. Furthermore, the court, in the case of Mohd Zubair v. State of NCT of Delhi, has held that the bail conditions must not be disproportionate to the purpose of imposing them. Thus, the reading of all these judgements in consonance imply that the right to bail is a part of constitutional framework and the condition imposed under such framework should not be excessive or exceptional to make the right to bail a distant value.

In case of foreign nationals, their foreignness is treated as a proxy for ‘flight risk’, leading courts to impose conditions that go far beyond the objective of bail. The purpose of the bail, as held in many judgements, is to secure the presence of the accused during trial or investigation. To adjudge the possibility of securing such presence, the court examines various aspects of the circumstances of the case such as seriousness of offence, likelihood of tampering with evidence etc. It becomes a purely fact based inquiry by the court with ultimate goal of ensuring accused’s cooperation.

However, the presumption of ‘flight risk’ overwhelmingly determines court’s judgement in case of foreign accused. While surrendering a passport is a common and generally reasonable condition in bail cases, foreign nationals are often subjected to additional burdens such as: producing a declaration or assurance from their embassy. As held in Frank Vitus case, the Court rejected the bail condition of embassy declarations as violative of spirit of article 21. Yet, it remains common practice, effectively placing bail out of reach for those with limited or no diplomatic access. Similarly, court often imposes the condition that foreign nationals shall produce local sureties. The reasoning is often that such measures are necessary due to the absence of roots in India. But for someone new to the country, who may not know anyone locally, this requirement can be nearly impossible to fulfil. The result is that bail is denied not because of the nature of the offence or any real risk, but because of the accused’s inability to comply with excessive conditions. In the case of Innocent Oluchukwu v State of Himachal Pradesh, the court has held that the inability to furnish local surety shall not debar the accused from getting bail. However, practice seems far distant from few theoretical realities. These disproportionate measures create bail as an exception and not as a practice; thereby, violating the very personal liberty value that Article 21 is meant to protect.

Article 14: Article 14 of the Indian Constitution prohibits the State from making arbitrary or unreasonable classification between classes of persons unless there is an intelligible differentia based on a rational purpose. In bail proceedings, however, foreign nationals are classified as a separate class merely on basis of their nationality in order to determine bail conditions. Courts impose conditions on them that are not required of similarly situated Indian accused. As shown before, the court imposes heightened condition based on accused nationality which makes grant of bail almost negligible. Though, the Supreme Court has made it clear that nationality cannot, by itself, be the basis for denying bail. In Anil Mahajan v. Commissioner of Customs, the Court emphasized that while different facts may justify different conditions, no law authorizes discrimination on the basis of nationality alone. These ideals are hardly followed. When courts presume that foreign nationals are inherently more likely to flee, they violate Article 14’s bar on arbitrary classification.

Presumption of Innocence: The presumption of innocence is the golden thread in criminal justice system of any country. According to this principle, an accused is presumed to be innocent until proven guilty. This term ‘innocent until proven guilty’ was coined by Sir William Garrow during a trial in 1791. In the context of bail, this principle implies that the accused is entitled to liberty unless compelling reasons for detention exist. However, when courts refuse bail to foreign nationals solely on ground of flight risks, they effectively presume guilt on their part. Moreover, this principle is vitiated when courts make bail in effect impossible to obtain by imposing excessive or surveillance-like conditions on them. For instance, the condition requiring the accused to drop a live PIN on Google Maps also undermines the presumption of innocence. When courts allow conditions that enable constant surveillance by the investigating agencies, they treat the accused as if they are already guilty or untrustworthy. According to the trends highlighted by Professor Mrinal Satish and Aparna Chandra, the narrative of public order and risk-aversion supersede the liberty perspective of the constitution. In the case of foreign nationals as well, bureaucratic risk-aversion and national security rhetoric overpowers their right to be released on bail and presumption of innocence.

Conclusion

In this Part I, the blog has examined how the procedural hurdles and harsh bail conditions faced by foreign nationals, which goes beyond administrative inconvenience and result in serious constitutional violations. By treating nationality as a proxy for flight risk, courts impose disproportionate and often unattainable bail conditions that undermine Article 21, Article 14, and the presumption of innocence. Bail becomes nearly inaccessible for many foreign nationals, especially those without local support or diplomatic access.

In Part II of the series, the blog will turn to some of the solutions currently under discussion in India’s broader bail reform discourse. These reforms aim to ensure that bail conditions focus securing the accused’s presence at trial without compromising their constitutional rights. We will analyse some of these solution and try to locate their relevance in Indian bail framework; both in general and in the specific context of foreign nationals.