Parens Patriae in Latin means “parent of the nation”. In law, it refers to the power of the State to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. “The parens patriae jurisdiction is sometimes spoken of as ‘supervisory’”.
The doctrine of Parens Patriae has its origin in the United Kingdom in the 13th century. It implies that the King as the guardian of the nation is under obligation to look after the interest of those who are unable to look after themselves.
Lindley L.J. in Thomasset v. Thomasset[1] pointed out that in the exercise of the Parens Patriae jurisdiction, “the rights of fathers and legal guardians were always respected, but controlled to an extent unknown at common law by considering the real welfare.” The duty of the King in feudal times to act as Parens Patriae has been taken over in modern times by the State.
Black’s Law Dictionary defines ‘Parens Patriae’ as: ¬
“1. The State regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves.
2. A doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen, especially on behalf of someone who is under a legal disability to prosecute the suit. The State ordinarily has no standing to sue on behalf of its citizens, unless a separate, sovereign interest will be served by the suit.”
In Charan Lal Sahu v. Union of India[2], the Constitution Bench, while delving upon the concept of parens patriae, stated: ¬
“35. … In the “Words and Phrases” Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby ‘the father of the country’, were applied originally to the King and are used to designate the State referring to its sovereign power of guardinaship over persons under disability. (emphasis supplied)
Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. 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. The Government is within its duty to protect and to control persons under disability. Conceptually, the parens patriae theory is the obligation of the State to protect and takes into custody the rights and the privileges of its citizens for dischargings its obligations.
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. …”
In Anuj Garg and Others v. Hotel Association of India and others[3], a two-Judge Bench, while dealing with the constitutional validity of Section 30 of the Punjab Excise Act, 1914 prohibiting employment of “any man under the age of 25 years” or “any woman” in any part of such premises in which liquor or intoxicating drug is consumed by the public, opined thus in the context of the parens patriae power of the State:¬
“29. One important justification to Section 30 of the Act is parens patriae power of State. It is a considered fact that use of parens patriae power is not entirely beyond the pale of judicial scrutiny.
30. Parens patriae power has only been able to gain definitive legalist orientation as it shifted its underpinning from being merely moralist to a more objective grounding i.e. utility.
The subject matter of the parens patriae power can be adjudged on two counts:
(i) in terms of its necessity, and
(ii) assessment of any trade-off or adverse impact, if any.
This inquiry gives the doctrine an objective orientation and therefore prevents it from falling foul of due process challenge. (See City of Cleburne v. Cleburne Living Center[4])”
Analysing further, the Court ruled that the parens patriae power is subject to constitutional challenge on the ground of right to privacy also. It took note of the fact that young men and women know what would be the best offer for them in the service sector and in the age of internet, they would know all pros and cons of a profession. The Court proceeded to state:¬
“31. … It is their life; subject to constitutional, statutory and social interdicts—a citizen of India should be allowed to live her life on her own terms.”
Emphasizing on the right of self-determination, the Court held:¬
“34. The fundamental tension between autonomy and security is difficult to resolve. It is also a tricky jurisprudential issue. Right to self-determination is an important offshoot of gender justice discourse. At the same time, security and protection to carry out such choice or option specifically, and state of violence free being generally is another tenet of the same movement. In fact, the latter is apparently a more basic value in comparison to right to options in the feminist matrix.”
In Aruna Ramachandra Shanbaug v. Union of India[5], the Court, after dealing with the decision in State of Kerala v. N.M. Thomas[6] wherein it has been stated by Mathew, J. that “the Court also is ‘State’ within the meaning of Article 12 (of the Constitution) …” opined: ¬
“130. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.”
Constitutional Courts in this country exercise parens patriae jurisdiction in matters of child custody treating the welfare of the child as the paramount concern. There are situations when the Court can invoke the parens patriae principle and the same is required to be invoked only in exceptional situations.
For example, where a person is mentally ill and is produced before the court in a writ of habeas corpus, the court may invoke the aforesaid doctrine.
On certain other occasions, when a girl who is not a major has eloped with a person and she is produced at the behest of habeas corpus filed by her parents and she expresses fear of life in the custody of her parents, the court may exercise the jurisdiction to send her to an appropriate home meant to give shelter to women where her interest can be best taken care of till she becomes a major.
In Heller v. Doe[7], Justice Kennedy, speaking for the U.S. Supreme Court, observed:¬
“The State has a legitimate interest under its Parens Patriae powers in providing care to its citizens who are unable to care for themselves.”
The Supreme Court of Canada in E. (Mrs.) v. Eve[8] observed thus with regard to the doctrine of Parens Patriae:¬
“The Parens Patriae jurisdiction for the care of the mentally incompetent is vested in the provincial superior courts. Its exercise is founded on necessity. The need to act for the protection of those who cannot care for themselves. The jurisdiction is broad. Its scope cannot be defined. It applies to many and varied situations, and a court can act not only if injury has occurred but also if it is apprehended.
The jurisdiction is carefully guarded and the courts will not assume that it has been removed by legislation. While the scope of the parens partiae jurisdiction is unlimited, the jurisdiction must nonetheless be exercised in accordance with its underlying principle. The discretion given under this jurisdiction is to be exercised for the benefit of the person in need of protection and not for the benefit of others.
It must at all times be exercised with great caution, a caution that must increase with the seriousness of the matter. This is particularly so in cases where a court might be tempted to act because failure to act would risk imposing an obviously heavy burden on another person.”
The High Court of Australia in Secretary, Department of Health and Community Service v. J.W.B. and S.M.B.[9] , speaking through Mason C.J., Dawson, Toohey and Gaudron JJ., has made the following observations with regard to the doctrine:¬
“71. No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control.
As already explained, the Parens Patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind.”
Deane J. in the same case stated the following:¬
“4… Indeed, in a modern context, it is preferable to refer to the traditional Parens Patriae jurisdiction as “the welfare jurisdiction” and to the “first and paramount consideration” which underlies its exercise as “the welfare principle”.”
Recently, the Supreme Court of New South Wales, in the case of AC v. OC (a minor)[10], has observed:¬
“36. That jurisdiction, protective of those who are not able to take care of themselves, embraces (via different historical routes) minors, the mentally ill and those who, though not mentally ill, are unable to manage their own affairs: Re Eve [1986] 2 SCR 388 at 407-417; Court of Australia in Secretary, Department of Health and Community Services v. JWB and SMB (Marion’s Case (1992) 175 CLR 218 at 258; PB v. BB [2013] NSWSC 1223 at [7]¬[8], [40]¬ [42], [57]¬[58] and [64]¬[65].
37. A key concept in the exercise of that jurisdiction is that it must be exercised, both in what is done and what is left undone, for the benefit, and in the best interest, of the person (such as a minor) in need of protection.”
Thus, the Constitutional Courts may also act as Parens Patriae so as to meet the ends of justice. But the said exercise of power is not without limitation. The courts cannot in every and any case invoke the Parens Patriae doctrine. The said doctrine has to be invoked only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent/legal guardian or have an abusive or negligent parent/legal guardian.
Reference
Shafin Jahan v. KM Ashokan (2018)
[1] [1894] P 295
[2] (1990) 1 SCC 613
[3] (2008) 3 SCC 1
[4] 473 US 432, 439-41: 105 S Ct 3249 : 87 L Ed 2d 313 (1985)
[5] (2011) 4 SCC 454
[6] (1976) 2 SCC 310
[7] 509 US 312 (1993)
[8] [1986] 2 SCR 388
[9] [1992] HCA 15 (MARION’S Case) : (1992) 175 CLR 218
[10] [2014] NSWSC 53