Aug 11, 2019
HC orders arrangement for ‘speediest communication’ based on amicus curiae report stating that 75% of them struggle to gain access to their embassies
For many foreign national prisoners (FNP) lodged in jails across India, a common grievance is that many a time their consulate officer don’t come and they have no one to connect them with their family back home.
This state of affair is set to change with the Delhi High Court last month ordering the Ministry of External Affairs and authorities of the Central government to have “speediest communication with the embassy of the respective countries of the foreign inmates who are in jail”.
The High Court gave the order based on a report by advocate Ajay Verma who was appointed to assist the court as an amicus curiae in a public interest litigation initiated last year after receiving a letter from the foreign women inmates narrating their plight.
Mr. Verma, who visited all the jails in the Capital and interacted with all the foreign national inmates, found that 75% of them face struggle in accessing their embassy or consulate concerned after their arrest. As per his report, there were 378 foreign prisoners, including a few convicts,lodged in Delhi prisons. Out of them about 54 were female prisoners.
Who are FNPs?
FNPs refer to prisoners who do not carry the passport of the country in which they are imprisoned. They are entitled to the basic minimum guarantees as enshrined and carefully set out in the Constitution of India.
As per Prison Statistics of India 2015, there are 6,185 FNPs in India. There are no official data for more recent years.
However, earlier this year, Commonwealth Human Rights Initiative (CHRI) published a report titled ‘Strangers to Justice’, in which they tallied the number of FNPs across 22 States and 4 Union Territories to 3,908 based on RTI responses.
Mr. Verma said FNPs by virtue of their peculiar status are to be treated with care and caution to avoid any possible discrimination that they may be subjected to during their time in prison.
The report said most foreign nationals who have been apprehended or detained in Delhi, whether upon having committed an offence or for any other just reason, have often and continue to find themselves at the receiving end of the criminal justice system. They often face a range of difficulties due to differences in language, culture, customs, religion or because of lack of family ties locally and contact with the outside world, it added.
Mr. Verma, in his report, stated that 90% of the foreign prisoners who he interacted with conveyed that they faced difficulty in securing bail merely because of their special status or due to “ever-inherent specific concern” that they may be difficult to locate if they jump bail.
The report also mentioned that 40%-50% of the FNP population in jails alleged that Indian prisoners are able to secure bail more easily even if they have committed the same offence.
Mr. Verma said that our legal system does not create distinction between Indian nationals and foreign nationals, especially when it comes to grant of bail. He urged the High Court to frame guidelines to guide the trial courts on this issue. He also requested that in case FNPs are not granted bail their cases may be expedited.
Intimation upon arrest
The CHRI report had stated that only 5.7% of FNPs in India — 222 out of 3,908 — have ever received consular access.
The Model Police Manual, 2016 prepared by the Bureau of Police Research and Development, Ministry of Home Affairs (MHA) provides that when foreign nationals are arrested on major criminal or civil charges, it is possible that the Foreign Diplomatic/Consular Missions in India may wish to assist the nationals of their countries in regard to their defence before a court of law.
Mr. Verma said as soon as a foreign national is arrested in a major crime, the fact, with a brief description of the offence should be brought to the notice of the MEA through the State government by the DGP/CP concerned.
Mr. Verma suggested that every police officer across NCT of Delhi must be made aware of the mandatory requirements and the form in which such process would be required to be carried out.
Based upon the request received from inmates, the MEA may request the consulates to visit their nationals to enable themto discharge their duties under Vienna Convention on Consular Relations.
Many FNPs complained that during trial they did not understand the proceedings due to difference in language. In such a situation, Mr. Verma said the FNP concerned is mandatorily provided with a designated certified translator either from their embassy concerned or from the state itself. This, he said, was necessary to provide the FNP with correct information about the grounds of arrest and knowledge of the entailing process.
Contact with family
Each FNP, just like any other prisoner in India, is entitled to right to communicate with family and friends. Although the jail manuals contain provisions for facilitating contact with family for other prisoners, the same provisions either do not extend to FNPs or are too cumbersome to follow.
After the High Court took cognisance of the issue, now all foreigners are being allowed to make calls once in a week for 10 minutes at their own expenses. Mr. Verma said Indian nationals are allowed to speak five minutes a day.
Following the report, the High Court has requested the authorities to consider as to whether they can permit two calls in a week for 10 minutes each to the foreign inmates launched in jails.