Supreme Court of India: Nationality Alone Cannot Determine Bail

Legal News by - DIYA JAIN (This News was written by her during her Internship)

Recently, the Supreme Court of India has challenged the practice of denying bail to an accused solely because he is a foreigner. This criticism was raised by the Supreme Court because there were cases where lower courts refused to extradite basically because they were foreigners out of fear that justice might be miscarried. While these apprehensions may have some basis in fact on occasion, it is reasonable to remark that the Supreme Court had stated very categorically that being a foreign national itself cannot be decisive of bail orders. This view is in consonance with Article 21 of the Indian Constitution, wherein it is provided that the right to life and liberty is available not only to citizens of India but to all persons. The approach of the court thus deepens the convention that the judiciary must treat every accused fairly, without any distinction based on nationality.

This stance and judgment of the Supreme Court was determined on some of the following considerations:

Presumption of innocence: Any accused, irrespective of their nationality, is considered innocent until their proven guilty. Denial of bail on the ground of foreign status violates this crucial principle of criminal law.

Another important consideration is assessment of an individual. The question whether bail should be granted or refused has to be considered with these factors in mind, for every offence there will have to carry out an analysis of the version and proof accessible when it comes your time arranging.

Necessity: Where a restriction to liberty is necessary and without which those legitimate aims cannot be achieved; Mass exclusion from bail of foreigners will in many cases be a step too far. Decisions relating to grant or refusal of bail must be made having regard to the facts of each case, including the nature of the offence alleged to have been committed, evidence available and likelihood of flight.

Another principle of important consideration emphasized by the court is Non-discrimination, with criticism of this practice, that no unfavourable treatment or disadvantage of foreign nationals by the legal system must happen. Due and proper treatment of foreign nationals in the legal process bolsters the reputation of India as a country respectful toward the rule of law and human rights at the international level.

The stand of the court does not suggest that being a foreigner is an irrelevant fact when bail matters come up. It agrees that nationality can be a circumstance amongst others to examine whether a person is a flight risk. However, this circumstance cannot be the only factor in reaching a decision and the court has to consider whatever other factors are relevant in that case.

This stand can have far-reaching implications for the criminal justice system in India:

This judgment is likely to bind the lower courts into considering and passing orders on bail applications of foreign nationals more meticulously and on a case-to-case basis.

It may attract greater scrutiny of detention practices, especially insofar as it relates to detention of foreign nationals charged with less grave offenses.

This stand can lead to starting a debate regarding the status of rights available to foreign nationals within the Indian legal framework. It could then lead to reforms in policy.

This may lead to greater consistency in bail orders across different courts and jurisdictions in India. The evolution of this principle could even influence how police investigation agencies conduct cases involving foreigners, making investigation and prosecution more balanced.

The opponents of this stance would hasten to point out that this may remove the incentive that is often needed to ensure that a foreign accused actually faces trial. However, proponents would hasten to add that there are other mechanisms to reduce flight risk, which include surrender of passports, regular checking-in with authorities, or electronic monitoring.

Finally, the Supreme Court's condemnation of the denial of bail on grounds of foreign status comes as strong vindication of the principles of fairness, equity, and justice that should characterize the rule of law in India. It sends a very strong message to the trial courts and investigating agencies to deal with bail-related issues more sensitively, on a case-by-case basis, which may eventually result in a more just and equal application of the law to all accused persons regardless of their nationality

Legal Soch Foundation offer mentorship sessions, CV and Cover Letter making, and email management services specifically designed for law students. To more more, contact 8797914487.