The Doctrine of Parens Patriae



The term ‘Parens Patriae’ is emerged from the Latin language which has the meaning – ‘parent of his/her own country’. This doctrine is used mostly in the Juvenile Justice legal system, when the government of the state has to play the role of a parent for children, elderly, mentally disabled, incompetent or physically disabled persons, and take the authority of taking the decisions for these people who are not able to take care of themselves and are solely dependent on the government, in their own hand.

The doctrine of ‘Parens Patriae’ has gotten its roots from English Common Law and is as ancient as the chancery courts of England during the period of middle ages. The basic role of chancery courts in England was to handle the cases relating to welfare of the kids in the cases consisting of the guardianship of the children, in which the King had the authority to act as the father to the children whose custody was secure with the King. This justified the court’s intervention in the lives of children and their families.

This doctrine was practiced in various parts of the world and later started emerging in various other dimensions of the society as well. The development and the increase in the wide application of the ‘Parens Patriae’ doctrine allowed the state to take decisions and actions on the behalf of the citizens of the state who were elderly, mentally or physically disabled or incompetent, for its sovereign or quasi-sovereign benefits.

There are two tests in which are related to this doctrine that helps a court of law in deciding on what measures to take in any respective situation. It is very essential to understand that these tests act as just some guiding principles to help the court of law to reach a judicial and logicial conclusion in a case.

  1. ‘Best Interests’ Test – The ‘Best interests’ test suggests the court to take any such measure that would provide as the best action for the person in distress. It is vital to understand that the Court’s verdict should be followed by the welfare of the sufferer only and not their guardians or other beneficiaries or stake holders.
  2. ‘Substituted Judgment’ Test – The use of the ‘Substituted Judgment’ test wants the court to take the place of any mentally ill or incompetent person in a situation in which that person is and decide as to what that person would have decided if he/she would have been competent or mentally stable. This is a more difficult situation to handle but this test can only be used to make verdicts on the place of persons who are convincingly shown to be mentally incompetent.

Conceptually, the Parens Patriae theory is the duty and responsibility of the State to guard and take into custody the rights and privileges of its citizens and is bound to discharge its obligations.

The Directive Principles as well as the Fundamental Rights enshrined in the Constitution of India make it crucial for the State to guard and secure all its citizens and the rights guaranteed to them by the Constitution and when and where the citizens are not in a position to claim these rights, the State comes into picture and into the shoe of the victims and protects the rights of such Citizens.

The Preamble of our Constitution when read with Article 38, Article 39 and Article 39A makes it very clear that the State must take up these responsibilities and duties very seriously. The State must strive and work to promote social, economic and political welfare of the people. A social harmony should to be maintained between the Fundamental Rights and the Directive Principles of State Policy by the State so as to effectively discharge its commitments and responsibilities towards its citizens. While discharging these duties, the state may even take away certain rights and privileges of the individual victims or their heirs to defend their other vital rights in a improved manner and protect the ends of social welfare.

Some Scholars have the belief that our Constitution is a Social Contract, which is entered into by the people amongst themselves so as to live cooperatively and harmoniously. The values enshrined in our Constitution are a testimony of the standard of governance and welfare that the people expect from their representatives to uphold and carry out respectively. Doctrine of Parens Patriae is simply one of the links in this lengthy chain. This doctrine makes sure that the voiceless, abandoned and disabled people are eventually the responsibility of the State and the State must take all the steps to make sure their well-being as they are not in a position to do so.

The best example of the doctrine of ‘Parens Patriae’s’ application in India is in the huge Disaster and Landmark Judgment of Bhopal Gas Tragedy. Union Carbide Company was an America based corporation which established its branch in Bhopal the capital city of Madhya Pradesh. A gas leak from the factory caused massive destruction to the lives and property of people. Thousands of suffers of the disaster filed various litigations against the UCC corporation, which caused difficulty and delay in justice to them. Taking this into consideration, the government of India acted as ‘Parens Patriae’ and clubbed all the cases together as one and filed one case against the UCC Corporation on behalf of them all. The government fought their case and helped them get justice against a huge American Corporation.

This doctrine was established as an instrument for the children, when at risk, to have government act as their parent and take decisions for their wellness but as time passed this doctrine expanded its scope and started taking into considerations all the interest of its citizens, when at risk.

Author: Archita Tiwari,

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