In 1980, while granting the custody of a child to his maternal grandmother even when his father was alive, the Supreme Court invoked the doctrine of parens patriae, which means the State is the parent of the nation.

“Under the feudal order, allegiance and protection went together hand-in-hand and the feudal lord assumed protection of his vassal in return for the latter's allegiance,” said the Supreme Court.

“This is one of the legal principles that the advent of capitalistic legal order did not choose to replace, particularly in the case of minors who cannot be expected to express their intelligent preferences; the modern State assumes the ultimate responsibility for their welfare,” said the Court.

Courts and governments worldwide have relied heavily on parens patriae, an ancient Roman doctrine from 2 BC, in regulating adoption, guardianship, and custody of children in need of care and protection, among others based on the justification that the State is their ‘super parent’ and is best placed to decide their best interest.

It has been unequivocally settled in constitutional, legislative and judicial terms (here, here and here) that the State not only has the power to take decisions on behalf of children in need of care and protection, but also has a responsibility to actively work towards their welfare.

However, the conditions of over 30 million orphans—one of the sub-categories of children in need of care and protection—in India suggest that while the State unabashedly exercises its powers, it does little to fulfil its responsibilities.

The gravity of State absenteeism and dereliction towards orphans, recently came to light when five orphaned children with mental disabilities died in the first week of July in Yugpurush Dham Ashram, an orphanage—also referred to as a child care institution in juvenile law—run by an NGO, housing more than 200 abandoned and orphaned children with disabilities in Indore, Madhya Pradesh.



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