Article 21 Extends To Foreign Citizen Facing Trial In India: Madras HC Stays Look Out Circular Against Seychelles Citizen, Permits His Travel

Justice N Seshasayee noted that when Article 21 of the Constitution extended to non-citizens, it would also include the dignified existence of a foreign national facing a criminal charge in India.

“If Article 21 by its very wording applies to non-citizens, then right to personal life of any foreign national facing a criminal charge in India must also has be recognised as falling within his right to his dignified existence. Anything personal is part of one's privacy and unless it is enabled by law, it cannot be invaded, even if the accused person is a foreign national,” the court observed.

The court also opined that the object of the criminal justice system was only to secure the presence of the accused at the trial and it should not be taken as a license to interfere with the personal life of the accused. The court remarked that the criminal justice system was best administered when the inconvenience to the personal life of the accused was the least.

“The objective to secure the presence of an accused for his participation in the trial and to under go any penal consequences in the eventuality of the Court upholding the charges, may not be construed as a licence to enable any interference with the private life of an accused. Criminal law is best administered when the inconvenience it leaves on the personal lives of the accused persons is least, lest the faith this country has on the Constitutional principles emanating from the judicial interpretation of Article 21 will be a rendered farcical. There can never be an insult to the Constitution and what it declares,” the court said.

The court added that there was a need to convert the right to life from a constitutional theory to plain action. The court noted that rather than asking why the petitioner should be allowed to leave the country, the question must be why the court should deny him permission to travel abroad. The court also remarked that the right to travel abroad was an integral facet of the fundamental right and it would be a constitutional anathema to absolutely bar an accused person from traveling abroad to attend to his private affairs merely because he is a foreign national facing trial of criminal charges in India.

The court was hearing the petition filed by Karthik Parthiban, a citizen of Seychelles, who was stuck in India following an LOC issued by the CBI. Parthiban had moved the court seeking to quash the LOC. The case against Parthiban was that his company was involved in large-scale financial scam and him, being the Director of the company had played a key role in diverting the funds.

Parthiban had submitted that his father was recently assaulted, abducted and robbed because of which his mental and physical health had deteriorated. He thus sought to travel to Malaysia to vist his family who were residing there. Relying on the Manke Gandhi case, he pointed out that the line of demarcation Separating Article 19 and 21 has been erased and even though he was a foreign citizen, he was entitled to right to dignified life and be permitted to travel abroad.

The CBI however opposed the plea and submitted that Article 21 could not be expanded to include cases like that of the petitioner where LOC was issued pursuant to a huge economic fraud. The CBI raised apprehension that if Parthiban was allowed to leave the country, he would not return to comply with the formalities of investigation resulting in a loss of 600 crore to the public.

The court stressed that the criminal justice system should only worry about ensuring that the accused submits himself/herself to the jurisdiction of the courts and participates in the trial and should not be bothered by how the accused lives his life and does business. The court observed that the criminal justice system held as supreme the right to a dignified life of even an accused.

The court was thus inclined to stay the LOC and permit Parthiban's travel with conditions to ensure his safe return to India for participating in the criminal proceedings. The court thus directed him to provide a schedule of his travel plan to both the trial court and the CBI and granted him leave to travel strictly as per schedule.

The court also asked Parthiban to reside only at the address provided by him and not leave Malaysia during his period of leave. The court directed Parthiban to surrender his passport to the Indian High Commission in Malaysia and collect it back only before his travel back to India. The court also asked that an acknowledgment of surrendering the passport to the High Commission be communicated to the CBI.

Counsel for the Petitioner: Mr.Vijayan Subramanian

Counsel for the Respondents: Mr.K.Srinivasan Special Public Prosecutor (CBI), Mr.V.T.Balaji Senior Panel Counsel

Citation: 2024 LiveLaw (Mad) 370

Case Title: Karthik Parthiban v The Superintendent of Police and Others

Case No: W.P.No.24906 of 2024