Article 21 protects foreigners too: Rajasthan High Court grants bail to 2 Bangladeshis in kidney racket case

“The protection under Article 21 of the Constitution of India, which guarantees the right of life and personal liberty, extends to all persons, and this right is not confined to the Indian Citizens alone, and it is available to the Foreign Nationals as well. The Right to Life with Dignity guaranteed under Article 21 is available to all human beings, including foreigners,” the court said on May 21, emphasising that constitutional protections are available equally to foreign nationals facing criminal proceedings in India.

Justice Anoop Kumar Dhand of the Rajasthan High Court said the petitioners’ detention for an indefinite period would violate their right to a speedy trial under Article 21 of the Constitution. (Image enhanced using AI)

Article 21 does not differentiate

• As per Article 21 of the Constitution of India, no person shall be deprived of his life or personal liberty except according to the procedure established by law.
• The right to a fair and speedy trial is an integral part of Article 21.
• Moreover, a fair procedure in criminal trials is an essential component of Article 21 and it does not differentiate between Indian citizens and foreign nationals.
• Foreign nationals, including the petitioners, who are facing trial in India, are also entitled to the Right to Life with Dignity under Article 21.
• This right has been established as a powerful shield of protection, ensuring that the right to life with dignity extends beyond borders, safeguarding all human beings.
• The trial has been pending against the petitioners and co-accused persons for more than two years.
• The chances of conclusion of the trial in the near future are very bleak. They have the fundamental right to a speedy trial under Article 21.
• Prolonged detention without trial amounts to a violation of the right to life and personal liberty.
• Detention of the petitioners for an indefinite period would violate their right to a speedy trial under Article 21.

‘Approvers can’t be treated worse than main accused’

The petitioners told the court that they had become approvers during the investigation and their statements led to the arrest and chargesheeting of several co-accused allegedly involved in the kidney transplant racket.

They argued that despite cooperating with the prosecution and having their statements recorded before the trial court, they continued to remain behind bars while the principal accused had already secured bail.

The Rajasthan High Court noted that both petitioners had been in custody since April 23, 2024, and their statements had already been recorded before the trial court as prosecution witnesses.

Rejecting the state’s objection that Section 306(4) CrPC required approvers to remain in custody till conclusion of trial, the court held that such a provision could not result in indefinite incarceration, especially when the principal accused were already out on bail.

“This Court deems it fit to observe that the petitioners cannot be allowed to remain in custody until termination of trial by putting them in the circumstance worse than the principal accused persons, who have been granted the benefit of regular bail,” the Rajasthan High Court said.

Reliance on Rajasthan HC larger bench decision

The court extensively relied on the Rajasthan High Court’s larger bench ruling in Noor Taki alias Mammu vs State of Rajasthan, which had examined whether an approver could be detained indefinitely even after the principal accused were enlarged on bail.

Quoting the larger bench judgment, the high court reiterated that while an approver ordinarily remains in custody under Section 306(4)(b) CrPC, the high court can exercise inherent powers under Section 482 CrPC in exceptional circumstances to grant bail where prolonged detention violates Article 21 protections.

The Rajasthan High Court order also referred to landmark Supreme Court rulings including Hussainara Khatoon, Sunil Batra and K S Puttaswamy, emphasising that the right to speedy trial and dignified life extends to all persons, including foreigners.

Foreign nationals also protected: Court

A substantial part of the order of the Rajasthan High Court dealt with the rights of foreign nationals facing criminal prosecution in India.

The state had opposed bail on the ground that the petitioners were Bangladeshi citizens who had entered India on medical visas that had since expired, arguing that if they left India, the chances of securing their return would be “quite bleak.”

Senior Advocate V R S Bajwa, Additional Solicitor General Bharat Vyas, along with others assisted the court on the issue concerning foreign nationals and immigration law.

The Rajasthan High Court referred to the Supreme Court’s 2025 ruling in Frank Vitus vsNarcotics Control Bureau, which clarified that a foreign national released on bail cannot leave India without permission from the competent immigration authority.

The Rajasthan High Court said that the protections under Article 21 are not confined to Indian citizens alone. “The Right to Life with Dignity guaranteed under Article 21 is available to all human beings, including foreigners,” it said.

It further held that prolonged incarceration without conclusion of trial would amount to a violation of the petitioners’ constitutional rights, particularly when dozens of witnesses were yet to be examined and the trial showed no signs of concluding in the near future.

Bail granted with conditions

Allowing the petition, the Rajasthan High Court directed the release of both petitioners on furnishing personal bonds of Rs 5 lakh each along with two sureties of Rs 2.5 lakh each to the satisfaction of the trial court.

The court also directed Rajasthan government authorities and police officials to immediately communicate the bail order to the immigration officer and reporting officer under the Immigration and Foreigners Act, 2025, so that necessary legal steps could be taken regarding the petitioners’ movement and stay in India.

At the same time, the court expressed concern over the slow pace of the trial and directed the trial court to expedite proceedings.

The Rajasthan High Court ordered the trial court not to entertain “unnecessary and unwarranted delaying tactics” by accused persons and to ensure prompt service of summons and warrants upon prosecution witnesses.