Foreign-Facing Trials in India: The Constitutional Mandate for Fair Justice

India's legal framework for criminal justice is rooted in the principle of 'due process of law' and extends its protection to all persons, not just citizens. Trials involving foreign nationals in India—whether as accused, victims, or witnesses—are primarily governed by the ordinary criminal law statutes (such as the Bharatiya Nyaya Sanhita, 2023, and Bharatiya Nagarik Suraksha Sanhita, 2023) but are critically supplemented by specific constitutional safeguards and international obligations.

Constitutional Bedrock: Article 21 and 22

The foundation for fair treatment of foreign nationals facing trial in India rests squarely on Article 21 of the Constitution, which guarantees the fundamental right to Life and Personal Liberty.

• • Right to Life and Personal Liberty (Article 21): The Supreme Court of India has emphatically held that the protection under Article 21 is available to every person, citizen or non-citizen, on Indian soil. This right includes the fundamental principles of a fair trial, which encompasses:
• o Right to Speedy Trial: Prolonged incarceration without a timely trial is a direct violation of Article 21. The Rajasthan High Court, in a recent case concerning two Bangladeshi nationals held in custody for over 1.5 years without charges being framed, specifically underscored that foreigners facing trial in India are entitled to the protection under Article 21 and the right to a speedy trial.
• o Right against Inhumane Treatment: Foreign prisoners are entitled to the same standards of humane living conditions, medical care, and dignity as Indian citizens.
• • Rights of the Arrested Person (Article 22): This Article, too, applies to all persons. It guarantees crucial procedural rights upon arrest, including:
• o The right to be informed of the grounds of arrest.
• o The right to consult and be defended by a legal practitioner of one's choice.
• o The right to be produced before the nearest Magistrate within 24 hours of arrest.

Statutory and Procedural Framework

In addition to the Constitution, certain laws specifically address the presence and movement of foreigners:

• • The Foreigners Act, 1946: This Act, and the rules and orders made under it (like the Foreigners Order, 1948), govern the entry, stay, and departure of non-citizens. Crucially, Clause 5 of the Foreigners Order, 1948, states that permission for a foreigner to leave India must be refused if their presence is required to answer a criminal charge.
• • The Repatriation of Prisoners Act, 2003: This Act allows for the transfer of convicted foreign nationals to their home country (and vice versa, provided there is a bilateral agreement) to serve the remainder of their sentence, fulfilling India's international commitment to humanitarian considerations.

Essential Judicial and Executive Interventions

The Indian Judiciary and Executive have taken specific steps to address the unique challenges faced by foreign nationals in the criminal justice system:

• • Consular Access: The Ministry of Home Affairs provides advisories mandating that foreign diplomatic/consular missions be informed of the arrest and custody of their nationals in major crimes, allowing them to provide necessary assistance. This is a requirement under the Vienna Convention on Consular Relations (VCCR), 1963, which India has signed.
• • Bail and Flight Risk: Indian courts must balance the right to liberty with the risk of the accused fleeing the country. When granting bail to a foreign national, courts often impose strict conditions, such as:
• o Surrender of the passport.
• o Regular reporting to the police or Foreign Regional Registration Officer (FRRO).
• o The Supreme Court, in cases involving foreign nationals seeking bail, has directed that the trial court must immediately inform the registration officer concerned about the bail order to prevent unauthorized departure.

Case Illustration: Bail and Procedural Delay

A key issue is the delay in trial. In the case of Nurul Islam & Anr. v. Rajasthan Govt. (2025 LiveLaw (Raj) 396), the High Court directed the trial court to prioritize charge framing for foreign nationals who had been languishing in custody for over a year and a half, specifically relying on their fundamental right to a speedy trial under Article 21.

Another landmark case emphasizing procedural rights for arrested persons, including foreign nationals, is D.K. Basu v. State of West Bengal (1997), which laid down comprehensive guidelines regarding arrest, detention, and interrogation, all of which are applicable to foreign nationals to prevent police abuse.

Conclusion

The trial of a foreign national in India is governed by an amalgamation of constitutional guarantees and specific statutory checks. While the system seeks to prosecute all offenders equally, the constitutional mandate of Article 21 ensures that nationality does not become an excuse to deny the basic rights to a fair and speedy trial, dignity, and humane treatment, upholding the principle of 'equality before the law' for all.