Come Out With Comprehensive & Feasible Policy Framework For Legal Aid Outside India: Madras High Court Directs Centre

The Madras High Court has directed the Central Government to come out with a comprehensive and feasible policy framework regarding legal aid outside the territory of India.

The Madurai Bench was hearing a Writ Petition filed by a woman seeking a Writ of Mandamus, directing the government authorities to consider her representation and release compensation amount due to her.

A Single Bench of Justice G.R. Swaminathan observed, “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. I consciously refrain from delineating the details and the nuances. The Government of India is directed to come out with a comprehensive and feasible policy framework in this regard.”

The Bench said that the Petitioner is a poor widow and her survival is at stake as she has to bring up her young child.

Advocate A. John Vincent represented the Petitioner, while Additional Solicitor General of India (ASGI) ARL. Sundaresan represented the Respondents.

Factual Background

The Petitioner’s husband was employed in the Republic of Cameroon located in Central Africa and he passed away in October 2021. His employer was AFRICA First Matches Industry, South Africa, Yaounde, Cameroon. Vide letter, the company undertook to pay a certain sum as compensation for family support. However, the employer did not abide by the undertaking and hence, the Writ Petition was filed.

The Petitioner was an Indian citizen and residing in Virudhunagar District. Her husband was also an Indian citizen. The question for consideration before the High Court was whether the Government of India has any constitutional duty to enforce this obligation when the Petitioner is not in a position to initiate any step in this regard.

Reasoning

The High Court after hearing the arguments from both sides, noted, “Unlike in the cases mentioned above, the Governments, Central and State, have not taken any proactive stance before me. I am therefore constrained to look for a jurisprudential basis for casting liability on the Central Government. It is true that as of now there is no legislative framework governing the field. The question is whether on account of such absence, I must send away the petitioner empty handed.”

The Court remarked that when principles and doctrines can be borrowed from other jurisdictions and international conventions and covenants, there cannot be any objection for invoking principles from our ancient jurisprudence.

“Of course, with one caveat. Nothing that runs counter to constitutional morality or statutory prescription can be relied upon. Now, let us see if any guidance can be found in our scriptures”, it said.

The Court referred to Kautilya who declared that in the happiness of his subjects lies the king's happiness; in their welfare his welfare... whatever pleases his subjects, the king shall consider as good. It further referred to Manu who declared that the highest duty of a King is to protect his subjects.

“The King who receives the prescribed taxes (from his subjects) and protects them, alone acts according to Dharma. We need to substitute the expression “Government” for the word “king”. An identical duty of the monarch to ensure the welfare of its people is also enshrined in Buddhist literature”, it added.

The Court said that there has been a migration of labour across the continents; overseas employment is a reality and as a result, the Government is earning huge foreign exchange by way of inward remittances.

“The nation's exchequer is a direct beneficiary. 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. In Shanthi Parva of Mahabharatha, it is stated that the King who receives one-sixth of the income and still fails to protect the people becomes a sinner”, it observed.

The Court also remarked that maxims in law are universal propositions, so perfect that they may not be impugned or disputed and they are foundations of the law, and conclusions of reason; therefore, ought not to be impugned, but always to be admitted.

“I wondered if it would be in order to cite such verses from Mahabharatha and Arthasastra. If latin maxims can be quoted and judgments can rest on them, one need not shy away from citing our own heritage and sources which can be in Sanskrit or Tamil or any Indian language. I wish someone undertakes the task of collecting such Swadeshi maxims. Maxims embody the distilled wisdom and experience of the society. They are expressed in precise, pithy language. They express a rule of conduct or truth of science or experience”, it said.

Conclusion

Furthermore, the Court noted that we attained independence in 1947 and it would be in the fitness of things if legal maxims more apposite to our clime and context could be compiled.

“The Hon'ble Supreme Court in Charan Lal Sahu observed that the connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. It was further observed that the Indian concept of parens patriae doctrine recognised King as the protector of all citizens and as parent. In the constitutional scheme of things obtaining at present, it refers to the Government at all levels”, it added.

The Court emphasised that it is the duty of the Government of India to play a proactive role and it may have to take up the matter at the highest echelons of the Government of Cameroon.

“Pressure may have to be brought to bear on the persons who have stepped into the shoes of the erstwhile employer. Legal notices may have to be issued. Mediation efforts may be stepped up. If necessary, a formal legal battle may have to be waged. It is for the Government of India to explore every possible avenue to secure redress for the petitioner. This process must be expeditiously carried out”, it concluded.

Accordingly, the High Court disposed of the Writ Petition.

Cause Title- Malarvizhi @ Kottaithai v. The Secretary to Government of India & Ors. (Case Number: WP(MD)No.17073 of 2022)

Appearance:

Petitioner: Advocate A. John Vincent

Respondents: ASGI ARL. Sundaresan, Deputy Solicitor General of India (DSGI) K. Govindarajan, and Additional Government Pleader (AGP) K.S. Selvaganesan.

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