Constitutional Law - Doctrine of Parens Patriae and the Constitution of India

Meaning and Definition

‘Parens patriae’ is a Latin term meaning ‘parent of his or her country’.

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.

It is stated that parens patriae is the inherent power and authority of a State to provide protection to the person and property of persons non Sui juris[1], such as minor, insane, and incompetent persons.  Today, this term is used to designate the State referring to its sovereign power of guardianship over persons under disability.

In Heller vs. DOE[2], Justice Kennedy 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.”

Also, in the case of State of Kerala v. N.M. Thomas[3], it has been categorically held that the Court is also ‘State’ within the meaning of Article 12 of the Constitution of India. Thus, Court can also act as Parens Patriae so as to meet the ends of justice.

Relying on the above-mentioned reasoning, the Supreme Court has stated that “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”[4].

The doctrine of ‘Parens Patriae’ has been evolved in common law and is applied in situations where the State must make decisions in order to protect the interests of those persons who are unable to take care of themselves[5].

The Two Tests

There are two tests in relation to this doctrine. These tests help the court to ascertain the course of action that it can adopt depending upon the situation. It is important to remember that these tests are merely guiding principles so as to help the court to reach a logical conclusion.

1. ‘Best Interests’ Test – The ‘Best interests’ test requires the Court to ascertain the course of action which would serve the best interests of the person in question. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general.

2. ‘Substituted Judgment’ Test – The application of the ‘Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if he/she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to be mentally incompetent.

Doctrine of Parens Patriae and the Constitution of India

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[6].

The Directive Principles as well as the Fundamental Rights enshrined in our Constitution make 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 these rights, the State comes into picture and protects the rights of such Citizens.

The Preamble to our Constitution read with Article 38[7], Article 39[8] and Article 39A[9] makes it amply clear that the State must take up these responsibilities. The State must strive to promote social, economic and political welfare of the people. A harmony needs to be maintained between the Fundamental Rights and the Directive Principles of State Policy by the State so as to effectively discharge its commitments towards the people. While discharging these commitments, the state may even deprive some rights and privileges of the individual victims or their heirs to protect their other important rights in a better manner and secure the ends of social welfare.

Some Scholars believe that Constitution is a Social Contract 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 maintain and carry out respectively. Doctrine of Parens Patriae is simply one of the links in this long chain. This doctrine makes sure that the voiceless, abandoned and disabled people are ultimately the responsibility of the State and the State must take all the steps to ensure their well-being as they are not in a position to do so.

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[1] A term applied to an individual who lacks the legal capacity to act on his or her own behalf.

[2] (509) US 312.

[3] 1976 (1) SCR 906.

[4] Aruna Ramchandra Shanbaug v. Union of India & Ors., 2011 (3) SCALE 298.

[5] Suchita Srivastava & Anr. v. Chandigarh Administration, CIVIL APPEAL NO. 5845 OF 2009.

[6] Charan Lal Sahu Etc. v. Union Of India And Ors., AIR 1990 SC 1480.

[7] Article 38 (1) – The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

[8] Article 39 – The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

[9] Article 39A – 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.