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PARENS PATRIAE: NATION’S SHIELD AGAINST NEGLIGENT PARENTS

Author: Zeel Jain, V year of B.B.A.,LL.B. from New Law College, Pune


The doctrine of Parens Patriae is a Latin phrase that means "parent of the nation".This doctrine is most commonly used in Juvenile Courts to protect children or individuals mentally or physically challenged from their abusive or negligent parents, legal guardians, and caretakers. Therefore, the government plays a role of a guardian to take care of such children and individuals who cannot take care of themselves.


This doctrine originated in English Common Law in the Chancery courts in the middle-ages. Chancery courts handled the welfare of children where the King is the father of the nation and had the authority to act as a father to such children. Later, when it was transported to the US, the doctrine evolved and transformed into the doctrine of Public Trusts.


They are two tests that act as guiding principles to help the Court to make any judicial and logical decisions in any case.


  1. Best Interest Test

The 'best interests' standard requires the Court to take any action in the best interests of the individual in distress. It is critical to remember that the Court's decision should be based solely on the welfare of the sufferer, not their guardians, other beneficiaries, or stakeholders.


2. Substituted Judgement Test

The 'Substituted Judgment' test asks the Court to step into the shoes of any mentally ill or incompetent individual in a scenario and judge what that person would have concluded if he or she had been competent or mentally stable. It is a more challenging position to manage, but this test can only be used to make decisions in the place of those who have been firmly demonstrated to be mentally incompetent.

Indian Constitution also indirectly talks about the doctrine of Parens Patriae. The Fundamental Rights and Directive Principles of State's Policy obligate the State to take care of the rights and privileges of its public mentioned in the Constitution. Although certain citizens cannot fight for their rights when they are violated and, in that scenario, the State comes into the picture and protects them.

The Preamble, Article 38(7), 39(8), and 39A of the Constitution, read together, clarifies that the State needs to take its duties and responsibilities towards its citizens seriously. The State must preserve harmony between the Fundamental Rights and the Directive Principles of State Policy to discharge its obligations to the people properly.

In Junned Ahmed Mujib Khan v. the State of Maharashtra,[1] the Aurangabad Bench observed that the doctrine of parenspatriae must be applied only in rare circumstances, such as when a person is unable to express free choice, such as a minor or a person of unsound mind. The Court also observed that intimacies of marriage, with individual choices about whether or not to marry, are beyond the jurisdiction of the State and must be protected by Constitutional Courts.

The doctrine of ParensPatriae is not just limited to protecting children or disabled children but also the environment. The Indian Constitution expressly states that the environment must be protected and improved. Article 48A, which is part of the Directive Principles of State Policy in Chapter IV of the Indian Constitution, compels the State to maintain and improve the environment and safeguard the country's forests and animals. Article 51A(g) imposes a duty on all citizens to protect and develop the environment.


Although these Principles are not enforceable in a court of law, an activist judiciary has given expression to the goal behind them by interpreting them in conjunction with the fundamental rights, which are enforceable in a court of law.


In the case of Mohd Salim v. State of Uttarakhand[2], a writ petition was filed in the public interest by Mohammed Salim before the honourableUttarakhand High Court. According to the petitioner, the case was submitted primarily to protest the mining and stone-crushing activity on the Ganga's coast, which, according to the petitioner, were eventually becoming hazardous to nature, particularly the Ganga. Since the mining work began, an increase in pollution has been seen.


The Court observed while exercising parenspatriae jurisdiction over the Ganga and Yamuna rivers, all their tributaries, streams, and all-natural water flowing with them these rivers' flows, whether continuous or intermittent, are proclaimed to be legal persons/living entities with the status of a legal person with all the rights, duties, and obligations that entails liabilities of a living person in order to maintain and protect his or her estate save the Ganga and Yamuna rivers.


ParensPatriae acts as a shield against negligent parents, guardians and citizens who are harming the environment for their greed. The Indian Constitution thus serves as a declaration about the responsibilities of the State's representatives towards its citizens and how they need to fulfil them. Thisdoctrine, therefore, takes care of all the unvoiced and disabled citizens, including our environment, which is now considered as a legal person.



REFERENCES

· Mohan, R. (2018, October 18). ASSESSING THE APPLICABILITY OF THE DOCTRINE OF PARENS PATRIAE IN LIGHT OF THE MOHD. SALIM v. STATE OF UTTARAKHAND. Indian Journal of Law and Public Policy. https://ijlpp.com/blog-entry-3/.

· Munshi, A. (n.d.). Doctrine of parenspatriae. Advocatespedia. https://advocatespedia.com/Doctrine_of_parens_patriae.



[1]https://indiankanoon.org/doc/44811198/ [2]https://lawsisto.com/legalnewsread/ODczOQ==/MOHD-SALIM-V-STATE-OF-UTTARAKHAND-AND-OTHERS