Introduction
In Part I of this blog, we examined how foreign nationals encounter a bail regime shaped by overlapping legal frameworks, multiple authorities and heightened concerns about flight risk. I argued that where nationality becomes a proxy for risk, excessive or practically impossible bail conditions can undermine the guarantees of Articles 14 and 21 and the presumption of innocence.
The question that follows the Part I discussion is: “what a constitutionally compliant bail regime should look like?” Thus, in Part II, our discussion turns from diagnosis to reform. The blog will now examine whether existing and proposed alternatives can address genuine flight-risk concerns without making liberty contingent on nationality.
Proposed Bail Reforms: Legal Alternatives to Excessive Conditions
Bail conditions should address a demonstrable risk, not the mere fact of foreign nationality. The object of the bail is direct: to ensure the accused’s presence during trial and investigation while ensuring personal liberty. However, the Indian bail system, especially in the context of foreign nationals, frequently substitutes pre‑trial liberty with onerous conditions or prolonged detention. To address this concern of onerous conditions and prolonged detention, scholars and policymakers have proposed several reforms to this end. I will analyse three key practices and proposals: [i] passport seizure as a bail condition, [ii] electronic monitoring (EM) bail, and [iii] complementary procedural reforms (cash bonds, limiting authority intervention, and fast‑track procedures).
A. Passport seizure as a bail condition:
The condition of passport seizure of the accused to prevent him from fleeing the country, specifically in economic offences, is in practice for a long time. This bail condition implies that the accused shall surrender their travel documents [including passport] to the court or police for the time being when bail is granted. It directly targets the risk of international abscondence by rendering foreign travel impossible without judicial permission. The courts have also upheld this condition as proportionate and valid to ensure accused’s presence. In my opinion, surrender of the passport should ordinarily constitute a proportionate and effective condition for addressing the risk of international abscondence. Admittedly, certain categories of offences, such as organised economic offences or offences involving transnational criminal networks, may give rise to concerns that passport seizure alone is insufficient to prevent flight through alternative means. However, such concerns cannot justify the routine imposition of additional restrictive conditions upon all foreign nationals. Rather, any further condition must rest upon clear, case-specific findings demonstrating why passport seizure alone would be inadequate in the particular circumstances of the case. This will evidently create a higher standard for imposing additional conditions beyond passport seizure and thus, preserving the idea of ‘bail as a right.’
B. Electronic monitoring (EM) bail:
Electronic Monitoring or Electronic Tagging is a type of surveillance scheme for an accused on bail. The Law Commission of India in their 268th Report (Para 11.26) defined the EM Bail as a restrictive form of bail where the person must remain at a specific residence at all times unless special permission to leave is granted for a specific purpose. This implies a limited use of EM Bail in form of home curfew. The idea of EM Bail as an alternative to incarceration is originally conceived by Justice Jack Love in state of New Mexico (USA) (Khurshid & Ors 2020, Page 240). The original use of EM was to make the convicted offenders to serve some part of their sentence out of prison in form of home curfew. However, it was later extended to pre-trial detentions in form of a bail condition, specifically in England (Khurshid & Ors 2020, Page 241).
EM bail uses technology, such as ankle bracelets, GPS tracking, or mobile‑phone apps, to monitor the accused’s location in real time or at regular intervals. The scope of utility of EM bail has increased with the use of GPS technology. In my opinion, the GPS technology can be beneficial in tracking accused’s movement outside the residence and prohibiting them from entering a particular zone. Moreover, hypothetically, if the EM bails in form of GPS tracking is provided as a bail condition; then any other bail condition is essentially negated. The monetary requirements can be done away with because the EM bail in itself is sufficient to ensure the accused from fleeing or tampering with the evidence. The low cost of implementing and management of GPS is another crucial aspect.
However, the inherent nature of such monitoring may entail interference with certain other fundamental rights such as right to privacy, the right against self-incrimination etc. In Frank Vitus judgement, the court clearly rejected the GPS tracking condition of the bail as violative of the right to privacy guaranteed under Article 21. This make the path of application of EM Bail filled with obstacle from the perspective of abuse of accused’s other constitutional rights. With respect to right to privacy, the condition of EM Bail will first have to satisfy the three prong test laid down in KS Puttaswamy judgement: [i] legality; [ii] need; [iii] proportionality. These conditions imply that EM bail cannot be made a mandatory condition for a bail. The 268th report (Para 11.27) of Law Commission also recommends the use of EM bail in limited cases such as those including heinous crimes and repeat offenders. Though, there was no particular reasoning provided for such recommendation. In my consideration, it is in order to justify the proportionality aspect i.e. the significant impact that EM bail can have on constitutional rights can be justified in case of heinous cases.
In the case of EM bail, the right to privacy and right against self-incrimination have to be balanced against the ideals of liberty and right to be released on bail without exceptional conditions. There is currently sufficient constitutional and statutory framework in India to provide a strong legal support for initial operation of EM bail while ensuring adequate safeguards against the probable harms. The reasonableness and proportionality can be achieved by use of technology and devices best suited to the conditions of the bail (Khurshid & Ors 2020, Page 259). However, the EM bail as a bail condition is open to further research and public policy developments. The silver lining is that it is an alternative worth considering.
Beyond the major innovations above, several complementary measures and practices can ease bail access for foreign nationals. For instance, a major challenge for a foreign national specifically is producing a local surety for the bail. The lack of connections or roots in local community makes the condition of bail effectively impossible to perform. Thus, the practice of ‘cash bonds’ instead of local surety shall be consistently used by courts based on facts and circumstance of the case at hand. This measure is not a new practice; however, the problem lies in its inconsistent practice. The court in Innocent Oluchukwu judgement has upheld that surety is not sine qua non of a bail bond. Thus, a consistent adoption of taking the circumstances of the foreign accused into account can help ease the burden imposed on them.
Another measure that shall be consistently adopted is limiting the intervention of authorities in day-to-day business of court in granting of bail unless the offence is directly involving the authority established under those acts. As we analysed before, the overlapping legal jurisdiction of authorities complicate and delays the bail application of foreign nationals. For instance, the court, in Frank Vitus, did establish that registration officer under Foreigners Act do not have the right to oppose the bail application of foreign national. Their right is limited to be informed of such bail grant and their duty is to notify the concerned authority. Apart from the court’s judgement, clear legislative public policy guidelines will have better impact on streamlining the speedy disposal of bail application by foreign nationals.
C. Other Complementary Procedural Reforms:
An all-encompassing ‘Bail Act’ would mark a significant step toward overhauling India’s fragmented bail jurisprudence. Rather than creating entirely new rights, such legislation could codify the constitutional principles already developed through judicial decisions and provide greater certainty in their application. For instance, it could expressly prohibit discriminatory bail conditions based solely on nationality, clarify the permissible role of immigration authorities in bail proceedings of foreign nationals, and lay down statutory guidance on proportional bail conditions. It could bring uniformity, clarity, and transparency to the process while ensuring that bail decisions account for the specific circumstances of the accused such as nationality, economic status, and vulnerability. However, the Law Commission shall first take the task of analyzing the need and feasibility of such overhaul. Most importantly, legislative reform must be accompanied by institutional measures aimed at reducing trial delays and ensuring consistent implementation of constitutional bail principles at the trial-court level.
Conclusion
The central lesson from the discussion in Part I and II is that the bail regime for foreign nationals does not require a separate standard of liberty. It requires a more disciplined application of the existing constitutional standard. Foreign nationality may be relevant to assessing the practical risk of abscondence, but it cannot itself become a presumption that the accused is more likely to flee.
Some legal and procedural solutions do exist such as passport seizure, cash bonds, electronic monitoring. However, their application remains often inconsistent and left to the discretion of courts without clear guiding principles. Even promising reforms like EM bail raise serious concerns about fundamental rights such as right to privacy and protection against self-incrimination. They require careful constitutional balancing, not blanket application. Future research may explore the practical feasibility and safeguards necessary for alternatives like EM Bail. A comparative study of how other jurisdictions treat foreign nationals in bail matters could also yield useful reform templates. Finally, examining the prospects and design of a comprehensive ‘Bail Act’ tailored to protect liberty across identities deserves scholarly and policy attention.