Madras High Court directs Centre to frame policy to assist Indians abroad; invokes Kautilya, Manu on Rajadharma

The Madras High Court recently directed the Government of India to formulate a comprehensive policy framework for providing legal assistance to Indian citizens abroad [Malarvizhi Vs Secretary, Government of India].

Justice GR Swaminathan held that the Centre has a constitutional obligation to step in where citizens are unable to secure their rights outside the country, including claims for compensation from foreign employers.

The Court held that the absence of a specific legislative framework cannot absolve the State of its responsibilities as a welfare State.

"I infer that the Government of India has a constitutional duty in the 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 the 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 the territory of India but also outside," the Court said.

Justice Swaminathan noted that ancient Indian jurisprudence also recognised the State’s duty to protect its citizens.

Citing Justice Rama Jois’ work on Rajadharma, the Court observed that Kautilya declared that the happiness of the ruler lies in the happiness of his subjects and that Manu (author of Manusmriti) held that the highest duty of a king is to protect his subjects.

In the present constitutional framework, the word “Government” must be substituted for “king”, the single-judge said

The direction was issued in a petition filed by one Malarvizhi, a resident of Virudhunagar district in Tamil Nadu, whose husband Ayyappan Marimuthu died on October 13, 2021 while working in Cameroon.

He had been employed by Africa First Matches Industry S.A., Yaounde, which issued a letter dated October 19, 2021 undertaking to pay compensation towards family support. The employer, however, failed to honour this undertaking.

Aggrieved by the non-payment, the petitioner approached the High Court seeking a direction to the Ministry of External Affairs (MEA) to secure the compensation amount.

The Union government opposed the plea. It submitted that consular assistance had already been provided to the extent possible. It argued that the employer was no longer effectively functioning, that the person in charge had passed away, and that pursuing litigation abroad would be expensive.

The Centre further contended that the Legal Services Authorities Act, 1987 could be invoked only for legal aid within India and not for proceedings outside the country.

Rejecting these submissions, the Court framed the central question as whether the Government of India has any obligation to intervene when an Indian citizen is unable to assert her rights abroad.

The Court answered this in the affirmative.

“There can be only one answer to this question and that has to be in the affirmative. It is premised on the nature of the Indian State itself. We are a welfare State. Article 38(1) of the Constitution of India declares that the State shall strive to promote the welfare of the people,” the Court said.

It referred to Article 38(1) of the Constitution to hold that the State is mandated to promote the welfare of its citizens.

“A welfare State is the protector of life and liberty of its citizens not only within the country but also outside the country in certain situations,” the judge said.

It Emphasising the doctrine of parens patriae, Justice Swaminathan held that “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 and where the citizens are not in a position to assert and secure their rights, the State must come into picture and protect and fight for the rights of the citizens.”

The Court also flagged the economic reality of overseas employment, noting that migrant workers contribute substantially to the national exchequer through foreign remittances.

“When the Government is receiving such benefit from the migrant workers, it has a correlative and corresponding duty to rush to their rescue when issues arise out of such overseas employment,” the judgment stated.

On the absence of a statutory framework, the Court relied on the Supreme Court’s ruling in Vishaka v. State of Rajasthan to hold that international conventions and norms may be read into constitutional guarantees where there is a legislative vacuum.

Hence, it allowed the petition and directed the Government of India to take a proactive role in pursuing the petitioner’s claim including diplomatic engagement with authorities in Cameroon, issuance of legal notices, mediation efforts, or initiation of legal proceedings if necessary.

Pertinently, it asked the government to frame a policy to deal with such situations.

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

The petitioner was represented by advocate John Vincent.

Union of India was represented by Additional Solicitor General ARL Sundaresan assisted by Deputy Solicitor General K Govindarajan

State of Tamil Nadu was represented by Additional Government Pleader KS Selvaganesan.

[Read Judgment]