Foreign Nationals Also Entitled To Article 22 Safeguards; Grounds Of Arrest Must Be Communicated In Language Understood: Karnataka High Court

In an NDPS case concerning two Nigerian nationals, the Karnataka High Court has said that Article 22 of the Constitution applies to Indian nationals and Foreign nationals alike, since the expression 'no person' has been used in the Article.“….The constitutional guarantee does not evaporate at the border nor does it diminish by reason of nationality, except an enemy alien as defined under Article 22(3)(a) which expressly makes the provision inapplicable to an enemy alien, otherwise, a foreigner within the territory of India though, subject to the regulatory regime governing entry and stay is nevertheless, entitled to the procedural safeguards mandated by Article 22…”, the High Court observed.The Nigerian nationals were accused of possessing narcotics worth Rs 50 lakhs meant to be sold to students and software professionals in Bengaluru. During the investigation, they were found to have multiple passports and expired visas.“Article 22 is person-centric, not citizen-centric. The term 'person' is of the widest amplitude and encompasses citizens and non-citizens alike”, the single judge bench of Justice M Nagaprasanna noted.After perusing the remand application, the court observed that when it comes to the mandate of producing before the magistrate within 24 hours, there has been no violation in the current case since the 15 minutes delay has been sufficiently explained before the trial court. However, the court observed that the grounds of arrest were communicated to the Petitioners not in a language known to them. It said,“…It ought to have been furnished in English, as the petitioners were foreign nationals who would understand English and not the vernacular. Furnishing of grounds of arrest cannot be a mere formality, only for the sake of furnishing. The mandate of the law is to furnish it immediately and in the language known to the accused or the English language. The petitioners thus are entitled to be set at liberty on the ground of non-furnishing of the grounds of arrest in a manner known to law…”Accordingly, the court quashed the arrest of foreign nationals due to procedural safeguard violations enshrined in Article 22. The High Court however directed that the Petitioners be handed over to the FRRO (Foreigners Regional Registration Office) as they had been illegally staying in India.The court also termed the pattern of illegal stay and identity forging undertaken by foreign nationals as a 'disturbing narrative'.“The record reveals a disturbing narrative… The petitioner is found to be the holder of two passports under two distinct identities… He has remained within the territory of this nation without lawful authority”, Justice Nagaprasanna remarked.The court was also informed by the Additional Solicitor General about a Model SOP issued by the central government to examine cases involving foreign nationals with a view to withdraw prosecution and deport them from the country in appropriate cases. This was in light of the discussion that foreign nations tend to stay on Indian soil despite the expiry of their visas by tactfully protracting pending criminal proceedings against them.“The State Government shall now undertake the entire exercise of constituting a State Level Committee and the District Level Screening Committee, as is observed in the SOP supra, within four months from the date of receipt of the copy of this order, as the SOP and the constitution of the Committee is to ensure that valuable judicial resources are not squandered in prosecutions that ultimately serve only to facilitate overstays”, the court underscored.The envisioned District Level Screening Committee is required to evaluate the nature of the offence, immigration status, period of illegal stay, and other security considerations to see if criminal proceedings can be withdrawn in order to deport the overstaying foreign nationalOnce they are released, they should be handed over to the FRRO for processing their deportation in line with the Model SOP, the court clarified. After analysing the Model SOP, the court noted as follows about the future of accused Nigerian nationals currently in India:“The petitioners are admittedly overstaying on the soil of this nation for more than a decade, without any valid documents for such stay. Therefore, even if the petitioners are to be set at liberty, they should be handed over to the FRRO ( Foreigners Regional Registration Office) to take steps in accordance with law.”Case Title: Emeka James Iwoba @ Austin Noso Iwoba & Anr v State of KarnatakaCase No.: Criminal Petition No.11347 of 2025Click Here To Read/ Download Order

Foreign Nationals Also Entitled To Article 22 Safeguards; Grounds Of Arrest Must Be Communicated In Language Understood: Karnataka High Court

Sebin James

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