Doctrine of Parens Patriae - Indian Laws - General

Doctrine of parens patriae 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 P.W. Yong, C Croft and ML Smit, On Equity. 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 (1990) 1 SCC 613, 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 guardianship over persons under disability. 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. ... The Supreme Court of Canada in E. (Mrs.) v. Eve [1986] 2 SCR 388 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 patriae 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. SHAFIN JAHAN VERSUS ASOKAN K.M. AND ORS.- 2018 (4) TMI 1887 - SUPREME COURT