The Supreme Court stated that after an accused person has already served half of the maximum punishment for the crime they are charged with, any further deprivation of their personal liberty would be a violation of their fundamental right under Article 21 of the Indian Constitution. This right guarantees the protection of personal liberty and the right to a fair trial, which must be balanced with the rights promised under Article 14, such as justness, fairness, and reasonableness in procedural matters.
For foreign nationals, the Supreme Court also laid out specific conditions that must be met. In addition to impounding their passports, the Special Judges presiding over their cases must also obtain a certificate of assurance from the Embassy or High Commission of the country to which the foreigner belongs. This certificate should state that the accused individual will not leave the country and will appear before the Special Court as required.
The Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union Of India And Ors judgment has since become a standard for lawyers seeking bail for individuals who have been in prison for extended periods without a trial in sight. Many Delhi High Court benches have applied the principles established by the Supreme Court and granted bail to accused individuals who have been in custody for an extended period, despite the amount of drugs found in their possession.
However, recent months have seen the question of whether the certificate of assurance condition is mandatory or not arise before the high court. Foreign nationals, particularly those from Nigeria, have had difficulty fulfilling this condition due to their country’s inability to track their movements within India. Consequently, many Nigerians have remained in jail despite receiving bail orders from the court.
A case in point is Ejike Jonas Orji, a Nigerian national who was granted bail on June 13 last year in a drug case after spending more than eight years in custody. However, the bail was granted on the condition that the Special Court would obtain a certificate of assurance from the Nigerian High Commission that Orji would not leave the country until the trial was concluded and that he would appear before the Special Court when required. Orji’s counsel argued that this condition rendered the bail order futile, as it was nearly impossible to fulfill. However, the court dismissed his application and held that the condition imposed by the Supreme Court is mandatory.
While the condition on obtaining a certificate of assurance has been relaxed in certain cases, it remains a sticking point for many foreign nationals seeking bail. Justices Amit Sharma and Anup Jairam Bhambhani have relaxed this condition in specific cases, but the issue of whether or not this condition is mandatory remains contested.
Ultimately, the issue at hand concerns the balancing of an individual’s fundamental right to personal liberty and a fair trial with the state’s obligation to prevent the use and sale of narcotics. While the NDPS Act serves an important purpose in preventing drug trafficking, the issue of delayed trials and the mandatory conditions for bail have created difficulties for many individuals, particularly foreign nationals, seeking justice in India’s legal system.
