Arrest of a U.S. Citizen
India is an independent, sovereign country. One of the chief attributes of sovereignty is the right of a country to make and enforce laws within its own borders. Just as in the United States, the government has the internationally recognized right to try foreigners as well as its own nationals within its territory.
Anyone who breaks the law in India is subject to prosecution under the Indian legal system. If a person is convicted and sentenced to imprisonment by an Indian court, this sentence will be served in an Indian prison.
While in India one is subject to the same laws as is an Indian citizen. A U.S. passport does not entitle its bearer to any special privileges. One should not expect to receive preferential treatment or to expect that the same array of legal rights accorded one under the U.S. judicial system are necessarily applicable in India.
Under the Vienna Convention on Consular Relations India is not obligated to notify the Embassy when you are arrested, but is required to do so only if you specifically request it.
The First 24 Hours
When you are arrested, the police file a First Incident Report (FIR) with the appropriate court describing the charges against you. The police officer must also inform you of the charges. Once in police custody, the police must present you before a court within 24 hours, otherwise the detention would be considered illegal by the Indian constitution. You have the right to have an attorney present during any questioning and the right to remain silent when asked self-incriminating questions.
When presented before the court within 24 hours of arrest, the judge will decide whether you will be sent to jail (judicial custody), remain in police custody (police custody), or be granted bail. While you are in police custody, you are allowed to make phone calls in the presence of the police. However, once you are remanded to jail and your case is under investigation, you will likely not be permitted make or receive phone calls. You are, however, allowed to receive visitors during jail visitation hours and have private consultations with your lawyer in jail.
Please note that once you are remanded to Judicial Custody, U.S. consular officers must first seek permission from the Indian government to visit you in prison. This permission can take up to a week to obtain.
There are two categories under which your crime can be charged: cognizable or non-cognizable. For cognizable charges, the police do not require an arrest warrant. For non-cognizable charges, the police must present a warrant at the time of arrest. If your offense is bailable, the police must inform you that you can be released on bail and the police can grant you bail at the time of arrest. In a non-bailable offense, you must appear before a judge who will decide whether or not to grant you bail.
If granted bail, as a foreigner, you will probably need to find someone to stand as surety to sign the bail bond. This means that a family member or friend must guarantee to the court that you will not flee the country after bail and will appear in court when summoned until your case is resolved. The person standing as surety may need to have some immovable property in India (i.e. land, house, etc.). The amount of the bail depends on the judge in accordance with the nature of the crime.
The court will also retain your U.S. passport to ensure that you do not flee if granted bail. In rare cases the judge may return your passport to you and allow you to leave the country against payment of an expensive bond.
Depending on the nature of the charges against you, investigating police will have 90 days to put together a charge sheet
If you have any medical problems or need medications, you need to inform a U.S. Foreign Service Officer. He or she can get in touch with your family and friends to arrange to have the medications delivered to you. Your family can also create a temporary trust account with the Embassy to transfer money from the U.S. to India in order to cover any expenses you might incur. Money will be deducted from your account only with your authorization, and any balance of funds will be refunded to you upon your release.
The Embassy's Role
The United States Government cannot get you out of jail. The Embassy or Consulates cannot accept custody of you or guarantee your appearance in court. Nor can they post bail for you, act as your legal advisor or pay legal fees for you.
After being arrested, the police will ask you if you would like the Embassy to be notified of your arrest. You can ask that the Embassy will not be notified, and at a later date you may change your mind and request that the police do notify us.
Arrested persons are not allowed to make telephone calls. If you ask that the Embassy or Consulate be notified, the police will call us on your behalf. You can speak to us by phone if you make a request through the superintendant of the facility in which you are being held. You may charged for the call.
What the Embassy/Consulates Can Do
- Visit you in jail after being notified of your arrest to check on your health and the treatment accorded you by the police;
- Give you a list of local English-speaking attorneys (you are responsible for paying any lawyers' fees). Indian law does not provide for a free, court-appointed attorney at the early stages of an arrest. The court-appointed lawyer will only be assigned in certain crime cases before indictment, when the case will go to court. If you are not eligible for a court-appointed attorney before indictment, you are still eligible for a court-appointed attorney after indictment when the case will go to court.
- Make sure the police are aware of any medical conditions you have (for example, diabetes, seafood allergies, etc.), and request that you been seen by a doctor;
- Work with local authorities to ensure that your rights under Indian law are fully observed, to include protesting any mistreatment or abuse;
- Supply you with English-language reading material subject to prison regulations;
- Notify your family and friends of your arrest, relay requests for financial assistance, provided you authorize the consul to do so.
We are required to gather certain information when we visit an American in jail. Here is a list what information we collect.
The U.S. Privacy Act
The Privacy Act of 1974 (Public Law 93-579) was enacted to protect U.S. citizens against unauthorized release of information about them by the government. If you want us to notify your family or friends about your arrest you must first give us written permission to do so.
The Embassy will not inform any person of your arrest without your permission. Even if your family or friends find out by other means, we will be unable to discuss your case with them without your permission. Although we routinely report to the Department of State in Washington on the condition of American prisoners in our consular district, the Department of State does not release this information to individuals without your permission.
You give us permission to contact people via a Privacy Act Waiver, or PAW. Here is a sample copy.
These files are maintained primarily for the purpose of providing protection and assistance to U.S. citizens abroad and not for law enforcement purposes. While there is no automatic or mandatory dissemination of information in consular files to other agencies, we can release specific information to other agencies that have a legitimate interest in such data. Therefore, for legitimate law enforcement purposes in the U.S., the appropriate law enforcement agency in the U.S. may be notified.
Nonetheless, U.S. citizens arrested overseas are not liable for prosecution for the same crime upon their return to the U.S. unless they are also wanted for an offense committed in the U.S. Arrest records maintained by the Indian government, however, are not bound by the restrictions of the Privacy Act.
We have no control over what information the Indian police pass to their U.S. counterparts or to INTERPOL. It is possible that U.S. police agencies may have acquired more information about a prisoner from these sources than the Embassy or the Department of State in Washington has at its disposal.