IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.4998 of 2010 S.Satheeshkumar .. Petitioner Vs. 1.The Government of India, rep. By its Secretary, Ministry of External Affairs, New Delhi-110 001. 2.High Commission of India, Kolalambur, Malaysia 3.The Secretary, Tamil Nadu State Legal Aid Services Authority, High Court Buildings, Chennai-600 104. 4.The Managing Director, LCL Furniture SDN BHD LOT 2132 Jalan BA/3 Kawasan Perusahaan Bukkitt Angat, Selangsor Malaysia .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct respondents 1 to 3 to provide legal assistance by way of appointing a Malaysian Advocate at Malaysia to initiate legal proceedings before the Malaysian court or from on behalf of the petitioner for getting full workmen compensation from the fourth respondent in accordance with the Labour Laws at Malaysia. For Petitioner : Mr.M.Pari For Respondents : Mr.V.Parivallal, SCGSC for R1 ORDER This writ petition raises an important Constitutional question as to whether an Indian citizen has a right to seek legal assistance from the Government of India for appointment of an Advocate at Malaysia for initiating legal proceedings before the Malaysian Court or any judicial forum for the purpose of https://hcservices.ecourts.gov.in/hcservices/ getting full workmen compensation from a Malaysian company. 2.The facts leading to the case are as follows: The petitioner was a resident of Thevoor village, Nagapattinam. He went to Malaysia and worked in a company called LCL Furniture SDN BHD, fourth respondent. He worked as a Welder from 24.5.2006 to 24.5.2007. On 31.3.2007, he met with an accident during the course and arising out of his employment, which resulted in the fracture of his left leg. He was hospitalized at Malaysia from 31.3.2007 to 09.11.2007. After a major surgery was performed, he returned to India. Once again, he underwent another surgery at India followed by medical treatment. It had resulted in an huge expenditure for him. The petitioner also claimed that he belonged to Dalit community and was coming from a poor family. He has got no money for paying towards his medical treatment. Though he sought for compensation from the company, i.e. fourth respondent, there was no reply from them. 3.He sent a legal notice on 29.4.2008 to the fourth respondent company. On receipt of the notice, the company's insurer accepted their liability. He also issued an another notice on 4.11.2008 top the Labour Officer at Malaysia and there was no reply from them. The petitioner also claimed that he sent a representation dated 23.5.2009 to the Government of India, Ministry of External Affairs, i.e. first respondent, seeking for their assistance to engage a senior lawyer at Malaysia to initiate legal proceedings on his behalf and to get proper compensation. 4.In the meanwhile, the fourth respondent issued a demand draft dated 8.6.2009 and forwarded through the second respondent High Commissioner at Kolalambur, which was in turn sent to the Deputy Secretary to the State Government and in turn to the District Collector, Nagapattinam. The petitioner had received the compensation of 139 US Dollars. The said amount if converted to Indian rupee worked out not more than Rs.5000/- to Rs.6000/-. Therefore, the petitioner sent a representation to the third respondent, i.e. Tamil Nadu State Legal Aid Services Authority. When there was no reply, he has come forward to file the present writ petition. 5.Mr.M.Pari, the learned counsel appearing for the petitioner placed reliance upon the judgment of the Supreme Court in State of Maharastra Vs. Manubhai Pragaji Vashi and others reported in 1995 (5) SCC 730 in support of his submission. In paragraphs 17 and 18, the Supreme Court observed as follows: "17. In the light of the above, we have to consider the combined effect of Article 21 and Article 39-A of the Constitution of India. The right to free legal aid and speedy trial are https://hcservices.ecourts.gov.in/hcservices/ guaranteed fundamental rights under Article 21 of the Constitution. The preamble to the Constitution of India assures “justice, social, economic and political”. Article 39-A of the Constitution provides “equal justice” and “free legal aid”. The State shall secure that the operation of the legal system promotes justice. It means justice according to law. In a democratic polity, governed by rule of law, it should be the main concern of the State, to have a proper legal system. Article 39-A mandates that the State shall provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The principles contained in Article 39-A are fundamental and cast a duty on the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way — by legislation or otherwise, so that justice is not denied to any citizen by reason of economic or other disabilities. The crucial words are (the obligation of the State) to provide free legal aid “by suitable legislation or by schemes” or “in any other way”, so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (emphasis supplied). The above words occurring in Article 39-A are of very wide import. In order to enable the State to afford free legal aid and guarantee speedy trial, a vast number of persons trained in law are essential. Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all-round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available....... It is in that direction the grants-in-aid by the State will facilitate and ensure the recognised private law colleges to function effectively https://hcservices.ecourts.gov.in/hcservices/ and in a meaningful manner and turn out sufficient number of well-trained or properly equipped law graduates in all branches year after year. That will in turn enable the State and other authorities to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability. These aspects necessarily flowing from Articles 21 and 39-A of the Constitution were totally lost sight of by the Government when it denied the grants-in- aid to the recognised private law colleges as was afforded to other faculties. We would add that the State has abdicated the duty enjoined on it by the relevant provisions of the Constitution aforesaid. In this perspective, we hold that Article 21 read with Article 39-A of the Constitution mandates or casts a duty on the State to afford grants-in-aid to recognised private law colleges, similar to other faculties, which qualify for the receipt of the grant. The aforesaid duty cast on the State cannot be whittled down in any manner, either by pleading paucity of funds or otherwise. We make this position clear. 18. Before closing, we may observe that the content of Article 21 read with Article 39- A did not (in terms) arise for consideration in this Court on any previous occasion. Even in the recent Constitution Bench decision reported in Unni Krishnan case9 Article 21 read with Articles 41, 45 and 46 alone came up for consideration. The scope of Article 21 in the light of Article 39-A never arose for consideration nor was it considered in the said decision." 6.Since heavy reliance was placed upon the obligation on the State under Article 39-A of the Constitution, it is necessary to reproduce that provision:- 39-A. Equal Justice and free legal aid.—The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” 7.It is pursuant to the Constitutional mandate created by https://hcservices.ecourts.gov.in/hcservices/ the 42nd amendment of the Indian Constitution introducing Article 39-A, the Legal Services Authorities Act, 1987 was enacted. The objects and reasons appended to the Bill in the Parliament reads as follows: "Statement of objects and Reasons.-Article 39-A of the Constitution provides that the State shall secure that the operation of the legal system promotes justice on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 2.With the object of providing free legal aid, Government had, by Resolution dated the 26th September, 1980 appointed the "Committee for Implementing Legal Aid Schemes" (CILAS) under the Chairmanship of Mr.Justice P.N.Bhagwati (as he then was) to monitor and implement legal aid programmes on a uniform basis in all the States and Union territories. CILAS evolved a model scheme for legal aid programme applicable throughout the country by which several legal aid and advice boards have been set up in the States and Union territories. CILAS is funded wholly by grants from the Central Government. The Government is accordingly concerned with the programme of legal aid as it is the implementation of a constitutional mandate. But on a review of the working of the CILAS, certain deficiencies have come to the fore. It is, therefore, felt that it will be desirable to constitute statutory legal service authorities at the National, State and District levels so as to provide for the effective monitoring of legal aid programmes. The Bill provides for the composition of such authorities and for the funding of these authorities by means of grants from the Central Government and the State Governments. Power has been also given to the National Committee and the State Committees to supervise the effective implementation of legal aid schemes. Para 3 omitted" 8.Though under Article 37 of the Constitution, the provisions contained in Part IV of the Constitution, i.e. Directive Principles of the State policy cannot be enforceable by any court, but the principles laid down therein are nevertheless fundamental in the governance of the Country. It shall be the https://hcservices.ecourts.gov.in/hcservices/ duty of the State to apply these principles and makes laws. Therefore, it is pursuant to the mandate under Article 39-A, the Legal Aid Services Authority Act, 1987 (Central Act, 39/87) came to be enacted. Therefore, it at all, the petitioner has any enforceable right, it can be done by the mechanism provided under the Act. This court has no power to grant any direction de hors the provisions of the Act. Hence it is necessary to refer to some provisions of the Act. Section 2(c), the term “legal service” reads as follows: "2(c)"legal service" includes the rendering of any service in the conduct of any case or other legal proceeding before any Court or other authority or Tribunal and the giving of advice on any legal matter;" The term “Court” found in Section 2(aaa) reads as follows: "2(aaa)"Court" means a civil, criminal or revenue Court and includes any Tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi- judicial functions;" (Emphasis added) Obviously the Courts indicated in the provisions is the Courts in India and not the Courts in foreign Countries. 9.The third respondent in the writ petition, i.e. the Tamil Nadu State Legal Aid Services Authority is constituted in terms of Section 2(h) r/w Section 6 of the Act. The functions of the State authority is defined under Section 7. Section 7(2) reads as follows: "7(2)Without prejudice to the generality of the functions referred to in sub-section (1), the State Authority shall perform all or any of the following functions, namely:- (a)give legal service to persons who satisfy the criteria laid down under this Act; (b)conduct [Lok Adalats including Lok Adalats for High Court cases]; (c)undertake preventive and strategic legal aid programmes; and (d)perform such other functions as the State Authority may, in consultation with the [Central Authority], fix by regulations." 10.For the purpose of carrying out the activities of the authorities, Section 14 applies. The Central Government after due appropriation made by the Parliament to pay the authorities fund. In so far as the State Legal Aid Fund is concerned, it is provided under Section 16. Section 16(2) directs as to how the State Legal Aid Fund can be applied and Section 16(2) reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "16(2)A State Legal Aid Fund shall be applied for meeting- (a)the cost of functions referred to in section 7; [(b)the cost of legal services provided by the High Court Legal Services Committee; (c)any other expenses which are required to be met by the State Authority.]" 11.A combined reading of these provisions will make it clear that the State Authority (like third respondent) has no power to spend money for the purpose of utilising the services of a foreign lawyer that too in a foreign Court. The judgment cited by the petitioner i.e. the private Law Colleges case, cannot be stretched to the extent so as to hold that the Legal Aid Services Authority can be directed to provide the petitioner to engage services of a foreign lawyer that too in courts outside India. The counsel for the petitioner however insisted this court must make liberally interpret Article 39 as well as the Legal Services Authorities Act, 1987. 12.In this context, the learned counsel also placed reliance upon the judgment of the Supreme Court in Angrej Kaur (Smt.) Vs. Union of India and others reported in 2005 SCC (Crl.) 1054. However, the following passage found in paragraphs 3 and 4, which is extracted below, do not help the case of the petitioner. "3....If a soldier, while fighting for the country’s security, is captured and taken to other country’s prison contrary to the official belief that he was dead, it would be in the interest of not only the petitioner and her family members but also for the armed forces of this country to see that he is brought back to our country. It is not to be understood that we are issuing a writ of habeas corpus to any authority outside India. Our directions essentially relate to Indian officials. But it cannot be lost sight of that law cannot ever be a combination of meaningless and purposeless combination of words. The judicial system reaches its pinnacle when it serves the ultimate object of all laws i.e. delivering justice to the recipient who deserves it, not shackled by pitfalls and landmines of technicalities. Within the four corners of legal framework, the reliefs can be moulded to achieve the ultimate objective, that is to deliver justice. 4. We, therefore, dispose of this writ petition with the direction that the authorities shall continue the efforts to find out the https://hcservices.ecourts.gov.in/hcservices/ actual position and expeditiously intimate the petitioner, the results of the efforts/inquiries made by them. Though we are disposing of the writ petition, let status report indicating the latest development in the matter be filed within three months, which shall be placed before us." (Emphasis added) It may be seen from the above passage that the Supreme Court was conscious of the fact that it cannot issue a writ of Habeas Corpus to any other authority outside India and therefore it gave a direction to the Indian officials to pursue the complaint made by the petitioner in that case. 13.It is also worthwhile to refer to the judgment of the Supreme Court in Bajiban Salambhai Chauhan and others Vs. U.P. State Road Transport Corporation reported in 1990 (Supp) SCC 769. The following passage found in the said order can be usefully extracted below: "It appears that the petitioners are very poor staying in the State of Gujarat and are not able to prosecute their claim case, arising out of a motor accident on account of their extreme poverty. They have made an application for restoration of the cases in the past by post and it is stated on behalf of the respondent that the restoration application has also been dismissed on default. We are of the view that the petitioners should not be left without any remedy in this matter and should be provided with legal aid. Let a request be made to the District Judge, Saharanpur or if the case has been sent to Hardwar on bifurcation of the district, to the District Judge, Hardwar to take appropriate step, so that legal aid may be available to the petitioners. Application for restoration of the claim cases should be renewed...." (Emphasis added) 14.All these decisions will help the case of poor persons struggling to fight their cases in Indian soil. But they certainly do not help the case put forth by the petitioner in this writ petition. 15.Only extent to which the compensation law in India has been extended is the amendment made to the Workmen's Compensation Act, 1923. Under the Workmen's Compensations Act, 1923, the amendment made by Central Act, 30/1995 with effect from 15.9.1995 introducing Section 15-B makes a radical departure in respect of compensation for the injuries suffered by the workmen https://hcservices.ecourts.gov.in/hcservices/ working abroad. It is necessary to refer to Section 15-B, which reads as follows: "15-B. Special provisions relating to workmen abroad of companies and motor vehicles.-This Act shall apply- (i)in the case of workmen who are persons recruited by companies registered in India and working as such abroad, and (ii)persons sent for work abroad along with motor vehicles registered under the Motor Vehicles Act, 1988 (59 of 1988) as drivers, helpers, mechanics, cleaners or other workmen, subject to the following modifications, namely:- (1)The notice of the accident and the claim for compensation may be served on the local agent of the company, or the local agent of the owner of the motor vehicle, in the country of accident, as the case may be. (2)In the case of death of the workman in respect of whom the provisions of this section shall apply, the claim for compensation shall be made within one year after the news of the death has been received by the claimant: Provided that the Commissioner may entertain any claim for compensation in any case notwithstanding that the claim has not been preferred in due time as provided in this sub- section, if he is satisfied that the failure so to prefer the claim was due to sufficient cause. (3)Where an injured workman is discharged or left behind in any part of India or in any other country any depositions taken by any Judge or Magistrate in that part or by any Consular Officer in the foreign country and transmitted by the person by whom they are taken to the Central Government of any State Government shall, in any proceedings for enforcing the claims, be admissible in evidence- (a)if the deposition is authenticated by the signature of the Judge, Magistrate or Consular Officer before whom it is made; (b)if the defendant or the person accused, as the case may be, had an opportunity by himself or his agent to cross-examine the witness; (c)if the deposition was made in the course of a criminal proceeding, on proof that the deposition was made in the presence of the person accused, and it shall not be necessary in any case to prove the signature or official character of the person appearing to have signed any such https://hcservices.ecourts.gov.in/hcservices/ deposition and a certificate by such person that the defendant or the person accused had an opportunity of cross-examining the witness and that the deposition if made in a criminal proceeding was made in the presence of the person accused shall, unless the contrary is proved, be sufficient evidence that he had that opportunity and that it was so made.]" 16.The petitioner is not able to state whether the fourth respondent company has any branch in India. In which case, there would not have been any difficulty in providing assistance to the petitioner. But, however, the case projected by the petitioner has to be dealt with on a policy level by the Central Government, the National Legal Services Authority (NALSA) and the Bar Council of India with the true spirit in which those authorities were created. The fact there are a large number of Indian labour working in many foreign Countries and the ever increasing Indian Diaspora faces hardships in such Countries, disputes arising out of employment, matrimonial causes and property issues during their sojourn in those countries. Many of them can never afford the high cost of litigation in those countries. 17.An Expert Committee on Legal Aid was appointed by the Central Government on legal aid. The said committed submitted its recommendations during May, 1973. The report is titled "Processual Justice to the People" (May 1973 published by Government of India, Ministry of Law). The report became a precursor for the insertion of Article 39-A into Part IV of the Constitution. Justice V.R.Krishna Iyer in paragraph 26 of the Report expressed his optimism in expanding the coverage by the proposed legal aid scheme. Paragraph 26 Chapter-II, Page 16 reads as follows: "Practical safeguards 26.Some practical safeguards reduce the danger considerably. First, the legal aid scheme will expand its geographic accessibility and its range of services over a period of years. Its experience in the early years will demonstrate in a controlled and limited setting whether the threatened overload of the courts in fact takes place, and the gradual pace of expansion will afford an opportunity to devise adequate responses." (Emphasis added) 18.On rendering of assistance to Indians abroad, the Committee in Chapter XII paragraph 22 of the Report (Page 154) recommended as follows: "22.The creation of a national network of legal service, although primarily as a programme to https://hcservices.ecourts.gov.in/hcservices/ cater to the poor, yields secondary blessings in the long run for others in need but who can afford to pay. Accessibility to the legal system may thus be provided through the Corporation on reasonable payment which will be less than the market price. The Corporation would be a responsible instrument reaching out to all parts of India and communicating with the client, wherever he be-adding a new dimension to juridicare and equal protection of the laws. Indians abroad have legal affairs to be attended to. Airlines staff, sailors, students abroad, embassy officials, are other categories who may utilise the facilities. Even foreigners who may have legal business in Indian courts may look for a dependable agency. Inside the country, small corporations, co- operatives, firms and other organs may sue or be sued or be prosecuted in far off venues or may need pre-litigative assistance in distant places. The Corporation comes in handy to service legal problems even if the parties are not poor. In short, a big public sector accountable to the Parliament and the people, staffed by responsible officials and national in jurisdiction will at once be an event and portent with phenominal impact on the rule of law." (Emphasis added) 19.Therefore, the Committee itself was of the opinion that it is not possible to provide such legal aid and a separate corporation must be set up by the Government to provide such assistance. It is not as if the existing laws do not provide for such contingencies. To obviate difficulties faced by persons like petitioner, the Advocates Act, 1961 provides for setting up State Bar Councils and Bar Council of India under Sections 3 and 4 respectively. The duties and functions of the State Bar Councils is defined under Section 6 of the Advocates Act, 1961. Section 6 (2)(a) and (b) reads as follows: "6(2)A State Bar Council may constitute