Foreign, not Alien

Sakshi Dubey**

Introduction 

Recently, the High Court of Allahabad asked the Government to file an affidavit delineating its stance on the possibility of framing a policy concerning prosecution of foreign nationals. Section 2 of the Indian Penal Code (now, S. 1(3) of Bharatiya Nyaya Sanhita or “BNS”) extends its applicability to “every person” within India for any act or omission contrary to the Code. The Code seeks to prosecute a foreign national in the same manner as a person residing in India; however, the provisions do not seem to be in alignment with the aim. This piece will thus address how the right to life and liberty of a foreign national accused is jeopardised due to the absence of the right to legal aid and mandatory representation. I will also draw parallels with the findings of Magistrates & Constitutional Protections — An ethnographic study of first production and remand in Delhi courts, qua the intersection of legal representation and pre-trial procedural safeguards. 

Pre-arrest Exigencies – S. 41A CrPC/ S. 35(3) BNSS

Section 2(a) of the Foreigners Act, 1946, defines a “foreigner” as a person who is not a citizen of India. As per Prison Statistics India 2022, the number of undertrial foreign inmates stands at 4,706 as of 31st December 2022. Unfortunately, the statistics limit themselves to figures from prisons and overlook the detainees in detention centres. A study of the Commonwealth Human Rights Initiative (CHRI), a non-profit organisation facilitating the repatriation of foreign nationals, even indicates figures of unknown nationalities. While ‘foreign national prisoners’ can be divided into various sub-categories, this piece divides them into two groups: first, those alleged to have committed a crime within the territory of India; and second, those who have overstayed the period for which they had a permit and therefore, have violated statutes regulating the stay of foreign nationals and illegal immigrants. Prisoners under the former category are arrested under the Indian Penal Code (now, BNS), whereas the Foreigners Act, 1946, governs the latter. 

Much has been said about the fact that the deprivation of one’s life or liberty is permissible only in accordance with the procedure established by law. The Arnesh Kumar guidelines were laid down to fortify the procedural compliances of the Code of Criminal Procedure (now, Bharatiya Nagarik Suraksha Sanhita or “BNSS”). However, when the BNSS continues to use “reasonable complaint”, “credible information” and “reasonable suspicion” (S. 35) with no standard yardstick for arrest, it gives rise to subjective satisfaction of the arresting officer. There are no clear standards to ascertain when a complaint or suspicion becomes “reasonable”, or when information is deemed “credible” enough to warrant an arrest. To limit the subjective satisfaction of an officer, S. 41A of the CrPC was inserted. Under this provision, a notice must be mandatorily issued to an accused where the offence he is accused of is punishable with imprisonment of less than or up to 7 years. 

In one of the instances at Tis Hazari, researchers, in Magistrates & Constitutional Protections, found that not only did the police fail to give the accused sufficient time to respond to the notice under Section 41A and arrested him the same day, but also the Magistrate acquiesced with the police, directing them to mention special reasons in the notice before him (in court). It seems that invoking “Article 21” repeatedly without substantial action has led to a situation where familiarity breeds contempt, undermining the gravity of safeguarding the right to life and personal liberty. The comparison with accused citizens is intended to emphasize that foreign nationals accused will be treated either equivalently or, if at all, less favourably, but certainly not better, than their domestic counterparts. 

Post-arrest Proceedings – S. 304 CrPC/S. 341 BNSS 

The peculiar circumstance mentioned above might ring a bell about the necessity of having a legal representative/counsel present at the remand stage, who could potentially raise an alarm and halt such proceedings. The Ministry of Home Affairs has issued an advisory to all the States/UT laying down guidelines addressing communication to consulate and consular access. The latest Advisory states that information about the arrest/custody of a foreign national is to be provided to the consular post only if requested by the detained/arrested person. The direction is in line with Article 36(b) of the Vienna Convention on Consular Relations which expresses that the receiving State shall inform the consular post of the sending State. However, the Advisory falls short of addressing the arrest of foreign nationals alleged of an offence, who had crossed borders due to armed conflicts or persecution. Furthermore, although the Vienna Convention is silent on what should transpire in the absence of a request by the arrested person, the Government Advisory declares that “in the absence of such a request, there is no obligation to notify the consular”. 

Rule 565 of the Model Police Manual, 2016, states that as soon as a foreign national is arrested for a “major” crime, the State Government has to bring the “fact, with a brief description of the offence”, to the notice of the Ministry of External Affairs. Subsequently, the Central Government will notify the concerned consulate to enable them to provide a legal representative. However, the rule does not clarify what qualifies as a “major” crime, nor does it specify whether the “fact, with a brief description” entails the First Information Report or the Chargesheet, both, or neither. This Rule has been reproduced in Andhra Pradesh (Rule 349-1) and Sikkim (Rule 45.13) police manuals. 

At the very outset, it is crucial to mention that S. 304 of the Code of Criminal Procedure (now, S. 341 of BNSS) comes into play at the stage of trial— i.e., after framing of charges and before the Court of Sessions. Hence, it keeping representation before Magistrate for the first production, subsequent remand, and bail hearings off-limits. The statute leaves it to be a prerogative of the State Government to extend the provision to other trials before other courts. Even when the case progresses to the stage of trial, it remains uncertain whether S. 304 will rescue the arrested, as Article 39A of the Constitution stipulates that the State shall endeavour to provide equal justice and free legal aid for citizens. However, S. 304 extends to ‘all accused persons’. This anomaly has resulted in neglect of foreign national prisoners, as the Legal Services Authorities Act, 1987 does not encompass them.  

The legislators failed to gauge the consequential effect of the anomaly — the trial being vitiated. It is incumbent on the State to address this gap as it transgresses the right to equality and protection against the deprivation of life and personal liberty. Ideally, the embassies should assist in re-establishing connections by notifying the family and friends about the arrest/detention. They are responsible for monitoring the well-being of the detainee. However, the Report of Field Work at Byculla District Prison shows a disparity in treatment by embassies of different countries. Often, embassies deny prisoners citizenship status without performing adequate verification. Furthermore, CHRI buttresses that embassies do not cover expenses for bail, fines, or legal representation and do not participate in legal proceedings. Data collected by CHRI in 2018 reflected that only 5.7% of the prisoners received consular access (Table 7). 

Given the foreigner’s unfamiliarity with the law, the absence of legal representation during the first production and remand stages can allow arresting authorities to exploit this ignorance and the accused’s vulnerability, particularly in cases where the offence is bailable. The Magistrates & Constitutional Protections highlights that, in practice, accused individuals are often not represented by any pleader in production proceedings, leading to these matters being considered in the chambers — reducing transparency. Moreover, in cases where the accused is unrepresented, the proceedings are often concluded within minutes. 

Legal Representation: A Constitutional Mandate 

Article 22 of the Constitution stipulates that an arrested person must be informed of the reasons for his arrest and has the right to consult and be defended by a legal practitioner of his choice. There are no statutory mandates requiring the police to ensure that a person (accused or suspect) has legal representation during interrogation or prior to the first production before the Magistrate. To add insult to injury, the statute books are silent on the consequences of non-compliance. However, the Magistrate is entrusted with the duty to inform the accused of his right to legal representation. 

For effective legal representation, it is essential to provide a copy of the FIR and the Final Report to the accused in the language they understand and communicate in. Additionally, the State is obligated to provide the reasons for arrest (see Prabir Purkayastha). In Magistrates & Constitutional Protections, researchers at Saket Court observed that the “technicality of the legal language and the incomprehensibility of the proceedings tend to be alienating for the accused produced in court for different hearings”. This issue is particularly exacerbated for foreign national prisoners. 

Therefore, it is imperative that the State, in collaboration with the consulate, ensures the provision of a translator for all legal proceedings involving accused individuals who do not comprehend or speak the language used by the court. The arresting authority must ensure that the arrest memo indicates the language understood by the accused. Researchers’ observation suggest that the non-production of arrest memos is not seen merely as a procedural lapse but raises questions regarding the case against the accused. It is crucial that the arrest memo specifies the language understood by the accused, as well as the contact details of a family member or friend with whom the accused wants to share the information of his arrest, given the significant likelihood that the accused may not such a person available at the time of the arrest. 

In the absence of any legal mechanism ensuring legal representation to a foreign national accused, the family/friend becomes the only resource person through whom the accused will be able to engage a private pleader. Researchers’ observations reveal that, at times, they have informed the accused’s family of his whereabouts. A pleader also serves as a vital link between the accused and his family, who may otherwise be unaware of the progress of the investigation, the stage of the trial, the status of his application, and other legal developments. 

S. 36 of the Model Prisons and Correctional Services Act, 2023 stipulates that “foreign prisoners may communicate with their family members and consular representatives” in accordance with prescribed rules. However, the Act lacks effective implementation due to the absence of prescribed rules. In the meantime, Rule 8.24 of the Model Prison Manual, 2016, instructs that to visit a foreign national prisoner, the Superintendent of Prison must inform the Government of the consulate’s request. Only upon receiving a permit from the Government, can the consular official visit the prisoner. The Manual does not address communication or visits by the prisoner’s family members. Ergo, any communication to/from the prisoner’s family must be routed through the consulate. Clearly, the process is clearly arduous and time-consuming, increasing the risk of being ignored by the authorities and losing touch with family. Studies reveal cases of appalling disregard for empathy —Rahida, for instance, believed her 12-year-old son was dead when she did not hear from him for five years. For Antonio’s case, efforts from the Ministry of External Affairs, the State government, the Cameroonian government, and CHRI were collectively required for his return to his home. 

Given their inherent disadvantages, the prosecuting nation should strive to treat foreign prisoners in the same manner as domestic prisoners, to the greatest extent possible. Lucy Slade, in her study of best practice in prison and resettlement, notes that foreign national prisoners have minimal access to rehabilitation and receive virtually no assistance in planning for their reintegration into society. One of the recommendations for the Treatment of Foreign Prisoners is that they should be afforded the same eligibility for prison leave as their domestic counterparts. Furthermore, bilateral and multilateral agreements on providing assistance to prisoners awaiting trial could help address the challenges they encounter. 

Since ‘prisons’ (Seventh Schedule, List II, Entry 4) is a state subject, the State government plays an indispensable role in safeguarding the rights and humane treatment of the accused. There is no gainsaying the fact that obstructions in communication with family, the lack of a legal framework for providing legal aid, coupled with the high cost of private legal assistance and limited or no understanding of the criminal adjudicatory system, deprive foreign national prisoners of the guarantees under Articles 14 and 21 of the Constitution. While the law aims to punish both national and foreign accused in the same manner, it contradicts itself by not treating them alike.

Conclusion 

A thorough review of the procedural requirements reveals crucial flaws in the system. The current state of affairs necessitates a reassessment of the rules and regulations governing the representation of foreign national prisoners. As aptly summarised in Magistrates & Constitutional Protections, legal representation is crucial in mitigating both overt and subtle discrimination and marginalisation by the accused. In addition to facing difficulties similar to those of domestic prisoners, foreign national prisoner encounters language barriers and a limited understanding of adjudicatory mechanisms. The Women in Prisons Report is the sole document providing special provisions for foreign nationals. It states directives for communication, dietary requirements, and care of children among other issues. This indicates that while the State is not unaware of the issues, addressing them statutorily does not seem to be a priority; hence, it can be a seedbed.

** Sakshi is a final-year law student, her interest lies in policy making, and she has a passion for venturing into the unexplored realms of criminal law.