Madras HC Asks Centre to Frame Policy for Legal Aid to Indians Abroad

The Madras High Court has directed the Government of India to formulate a comprehensive policy framework for providing legal assistance to Indian citizens abroad, highlighting the State’s constitutional duty as a welfare State (Malarvizhi Vs Secretary, Government of India).

 

Justice G.R. Swaminathan observed that the absence of a specific legislative framework cannot absolve the government of its responsibility to protect citizens. “The Government of India has a constitutional duty in this matter. The absence of a legislative framework need not come in the way of arriving at such an inference. The constitutional provisions and the Preamble, construed in light of the doctrine of Rajadharma, postulate that the Government of India has a duty to provide legal aid to its citizens not only within India but also abroad,” the court noted.

 

The judgment also drew on ancient Indian jurisprudence, citing Justice Rama Jois’ work on Rajadharma. The court referenced Kautilya’s assertion that the happiness of a ruler lies in the happiness of his subjects, and Manu’s principle that the highest duty of a king is to protect his people. In the current constitutional context, the court stated that the term “Government” must replace “king.”

 

The case arose from a petition filed by Malarvizhi, a resident of Virudhunagar district, Tamil Nadu, whose husband, Ayyappan Marimuthu, died on October 13, 2021, while working in Cameroon. He was employed by Africa First Matches Industry S.A., Yaounde, which had committed in writing to provide compensation to his family but failed to do so. The petitioner sought a directive to the Ministry of External Affairs (MEA) to secure the compensation.

 

The Union government opposed the plea, arguing that consular assistance had already been provided, that the employer was no longer operational, and that pursuing litigation abroad would be costly. The Centre also contended that the Legal Services Authorities Act, 1987, applied only to legal aid within India.

 

Rejecting these arguments, the court framed the central question: does the Government of India have an obligation to intervene when a citizen cannot secure their rights abroad? The court answered in the affirmative, emphasizing the welfare State principle enshrined in Article 38(1) of the Constitution, which mandates that the State promote the welfare of its citizens.

 

Justice Swaminathan also invoked the doctrine of parens patriae, stating, “When citizens are not in a position to protect themselves, our Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution. Where citizens cannot assert or secure their rights, the State must intervene and protect them.”

 

The judgment further highlighted the economic importance of migrant workers, noting their contribution to the national exchequer through remittances. “When the Government benefits from migrant workers, it has a corresponding duty to rush to their aid when issues arise from overseas employment,” the court said.

 

On the absence of a statutory framework, the court relied on the Supreme Court’s ruling in Vishaka v. State of Rajasthan, holding that international conventions and norms may be read into constitutional guarantees where legislation is silent.

 

Consequently, the court allowed the petition and directed the Government of India to take a proactive role in pursuing the petitioner’s claim, including diplomatic engagement with Cameroonian authorities, issuance of legal notices, mediation efforts, or initiation of legal proceedings if necessary. Importantly, the court also instructed the government to formulate a comprehensive policy to handle such situations.

 

“The Government of India is directed to come out with a comprehensive and feasible policy framework in this regard,” the judgment stated.

 

For any enquiries or information, contact ask@tlr.ae or call us on +971 52 644 3004. Follow The Law Reporters on WhatsApp Channels.