The origin of this doctrine is in common law and was made use by the English chancery to give power to the Crown to administer estates of orphans. The same doctrine was applied by the United States Supreme Court in the case of Louisiana v. Texas[1]. Later this doctrine has found its way into the Indian legal system. The term ‘parens patriae’ means ‘parent of the nation’. It places the state in the role of ‘parent of nation’.
If we look at the doctrine narrowly, it is primarily used in juvenile justice cases where the state is given the power to intervene and act for the welfare of the child thus replacing the negligent parent or guardian. The state can not only interfere for minors but can also act as the parent for disabled and incompetent persons who are unable to represent themselves. As per the modern guardianship status, both the state and the court need to act accountably and respect the fiduciary relationship with the thought that they were to be directly accountable to the incompetent person if he were to turn competent again.[2] This term can also be interpreted broadly to encompass within its ambit a much wider scope which is that of a ‘welfare state’. In fact, most Indian cases seem to prefer sticking to this broad definition. The state as the guardian of the nation at large has the integral responsibility of looking after the rights and needs of its citizens.
The Indian Constitution enforces this doctrine through the Preamble, the fundamental rights and the Directive Principles of State Policy. The Preamble mentions about social and economic justice and also strives to protect the dignity of the individual. This implies the use of this doctrine whereby the state comes to the protection of any individual who is unable to safeguard his/her own dignity and thereby also promoting social justice in the society.
This doctrine also finds use during natural calamities, widespread environmental pollution and health emergencies. It is indeed during these trying times that the state needs to take up the role of ‘parent of the nation’ and work towards the wellbeing of its people. The biggest example of this is the Bhopal Gas tragedy[3] that took place and left thousands dead and still thousand others struggling. It was after this tragedy that the state placed itself as the guardian of all the victims and brought a suit against the Union Carbide Corporation on behalf of all the victims. Later on, this company was held absolutely liable and asked to pay huge compensation.
This doctrine could be related to the Doctrine of Public Trust and also the Doctrine of Escheat. If we would take a look at the Public Trust Doctrine, we would find that there too, the state acts as a trustee of all the environmental resources which belong to the public at large and not to a private person. It is the state’s duty to protect this public property from going into the hands of a single person or group of persons. Here the concept of ‘trusteeship’ can be linked in a way to ‘guardianship’ under the Doctrine of Parens Patriae. If the state was not considered to be the parent of the nation, the state would never have been made the trustee. Next, if we look at the Doctrine of Escheat, it points out that the ultimate receiver of any private property is ultimately the state. This implies that in case an individual has no heirs of his/her own, the final heir would always be the state and the state would decide how that property would be controlled. This also implies the fact that the state is the ‘guardian’ of all people.
Following the Bhopal Gas tragedy case, there was the case of Charan Lal Sahu v. UOI[4], where the Supreme Court of India beautifully pointed out the doctrine of parens patriae. The court held, “The connotation of the term ‘parens patria’ differs from country to country, for instance, in England it is the King, in America it is the people, etc. According to Indian concept parens patria doctrine recognised King as the protector of all citizens as parent. Conceptually, the parens patriae theory is the obligation of the State to protect and take into custody the rights and privileges of its citizens for discharging its obligations.”[5]
The concept of parens patriae has been expanded further in the case of Anand Kishore Prasad Sinha v. The State of Bihar[6], where it was stated that it is a protective measure used by the social welfare state and the state in pursuance of its greater goal of securing better rights for the individuals in the future may also cause the deprivation of certain rights at present. Though this power of the state is one of public policy and is inherent, it is still liable to come under judicial scrutiny to check the proper use of this power. In case of Anuj Garg and Others v. Hotel Association of India[7], where Section 30 of the Punjab Excise Act of 1914 was challenged which prohibited both male and female workers to work in any premises where liquor is publicly consumed, the court held the same to be justified on the ground that the state was using its parens patriae power in this regard.
Sometimes, even courts exceed their parens patriae jurisdiction by using it in unnecessary circumstances. In the case of Shafin Jahan v. Asokan K.M.[8] (better known as the Hadiya case), the parents of a missing girl filed a writ petition in the High Court asking to annul her marriage but the girl gave a statement of having free will while entering into the marriage. Even after her statement, the court annulled the marriage by applying the doctrine of parens patriae. In analysing the above, the Supreme Court later pointed out that the parens patriae jurisdiction cannot be used in every circumstance arbitrarily but can only be used in exceptional circumstances where the incompetency of the person or group of persons or endangering circumstances is perfectly visible.
In recent times too, during the pandemic that has caused widespread health emergency, the imposition of nationwide lockdowns can also be a sign of usage of parens patriae. In fact, the same application of parens patriae seems to be missing during the second wave of the pandemic as is seen from compromised state intervention to manage the disaster and leaving the same on private parties.
[1] Louisiana v. Texas, 176 U.S. 1 (1900).
[2] S. Payton, The concept of the person in the parens patriae jurisdiction over previously competent persons, PUBMED (May 3, 2021, 9:18 PM), https://pubmed.ncbi.nlm.nih.gov/1479309/.
[3] Union Carbide Corporation v. UOI, AIR 1990 SC 273.
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[4] Charan Lal Sahu v. UOI, AIR 1990 SC 1480.
[5] https://indiankanoon.org/doc/299215/.
[6] Anand Kishore Prasad Sinha v. The State of Bihar, In the High Court of Judicature at Patna, Criminal Writ Jurisdiction Case No. 366 of 2020.
[7] Anuj Garg and Others v. Hotel Association of India, Appeal (civil) 5657 of 2007.
[8] Shafin Jahan v. Asokan K.M., 2018 SCC OnLine SC 343.
Author: Sriradha Rai Choudhuri from Hidayatullah National Law University (HNLU), Raipur.
Juris Centre 