New Delhi: In a landmark judgment with far-reaching implications for migrant rights and state obligations, the Madras High Court has directed the Government of India to formulate a comprehensive policy to assist Indian citizens facing legal hardships abroad.
The court’s ruling by Justice G.R. Swaminathan — underscored the constitutional duty of the state to protect its nationals overseas, even in the absence of specific legislation, invoking ancient Indian political philosophy such as Kautilya’s Arthashastra and Manu’s Dharmashastra on Rajadharma to reinforce the moral and legal foundation of its decision.
This directive came in response to a writ petition by Malarvizhi from Tamil Nadu seeking intervention after her husband died while working in Cameroon and was denied promised compensation by his foreign employer.
Background of Overseas Indians Protection Policy
The petitioner, Malarvizhi from Virudhunagar district, approached the High Court following the death of her husband, Ayyappan Marimuthu, on October 13, 2021, while employed with Africa First Matches Industry S.A. in Yaoundé, Cameroon.
Although the employer had issued a letter promising family support compensation, it failed to honor the commitment.
Aggrieved by the inability to secure justice through diplomatic or employer channels, the petitioner requested a court directive to the Ministry of External Affairs (MEA) and other central agencies to secure the compensation owed to her.
The Centre countered that it had already provided consular assistance and that Indian statutory law such as the Legal Services Authorities Act, 1987 applied only within Indian territory, not abroad. The government also argued that pursuing litigation overseas could be a costly exercise.
Constitutional Framework: State Duty and Welfare Obligations
Court’s Legal Reasoning
Justice Swaminathan rejected the government’s submissions, holding that the absence of a legislative framework does not absolve the state of its duties as a welfare state under the Indian Constitution.
The court emphasized Article 38(1), which mandates that the state shall strive to promote the welfare of the people.
The judgment expands this constitutional obligation beyond India’s borders, asserting that when citizens are unable to protect their own rights abroad, the state must intervene — a principle grounded in the doctrine of parens patriae.
Welfare State Beyond Borders
The court noted that a welfare state’s protective role cannot be confined to geographical boundaries when citizens are vulnerable overseas, especially in legal and economic disputes.
It highlighted that India benefits substantially from foreign remittances sent by migrant workers and, therefore, must have a correlative duty to safeguard their interests.
Ancient Wisdom Meets Modern Law: Rajadharma and State Obligations
Kautilya and Manu on Governance
In a rare judicial reference to classical Indian texts, the Madras High Court invoked ancient political thought to illustrate the moral foundations of state responsibility:
Kautilya’s Arthashastra was cited for its teaching that the happiness of the ruler lies in the happiness of his subjects.
Manu’s Dharmashastra was referenced for asserting that the highest duty of a king is to protect his subjects.
The court stressed that in today’s constitutional framework, “government” must replace “king” as the protector of citizens’ rights, making the ancient doctrine part of modern judicial reasoning on state duties.
International Conventions and Legal Gaps
The Madras High Court acknowledged that India is not a party to the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990). Still, it drew analogies from this and other international norms to fill gaps where domestic legislative frameworks are lacking — aligning with precedents such as the landmark Vishaka v. State of Rajasthan ruling, where international conventions were read into constitutional rights due to legislative silence.
Judicial Directive: Policy Formulation and Government Action
The court allowed the petition and ordered the Union government to frame a comprehensive policy to guide the provision of legal assistance and protection for Indians abroad. This includes:
- Diplomatic engagement with foreign governments where Indian citizens face injustice.
- Issuance of legal notices to foreign entities that fail to honor commitments.
- Mediation efforts and, if needed, support for overseas legal proceedings.
Justice Swaminathan emphasized that the government should explore all possible avenues to assist Indians in securing their rights and getting justice.
