doctrine of parens patriae
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN of THE MADURAI BENCH OF MADRAS HIGH COURT
on 16.12.2022
in
WP (MD)Nos.11033 & 11034 of 2019
S.Senthilkumar ... Petitioner
in W.P.(MD)No.11033 of 2019
M.Thetchinamoorthy ... Petitioner
in W.P.(MD)No.11034 of 2019
Vs.
1. The Director of Fisheries Department,
Thanjavur & District.
2. The Joint Director of Fisheries Department,
Nagapattinam & District.
3. The District Collector,
Thanjavur & District.
4. The Inspector of Fisheries Department,
Mallipattinam,
Thanjavur District.
held as below
3.I carefully considered the rival contentions and went through the materials on record. It is not in dispute that the petitioners are victims of natural disaster. They have been eking out their lives as fishermen. They were critically dependant on their fibre boats. They claimed that the boats suffered total damage. The question that arises for consideration is whether the authorities properly assessed the damage said to have been suffered by the petitioners.
4.The issue is critically important. We are living in the era of climate change. The world is prone to extreme weather conditions. Natural disasters such as cyclones may strike at any time. During such calamitous situations, the State has to assume the role of parens patriae. The State cannot abdicate its responsibility. This proposition was authoritatively laid down in Bipinchandra J. Diwan v. State of Gujarat (2001 SCC OnLine Guj 10) in the following terms :
“10.The duties of the Government or the Court on occurrence of a disaster or natural calamity of this magnitude are not statutorily regulated. In fact there is complete lack of any legislation in this field. Article 21 of the Constitution of India which guarantees to every citizen protection of his life and personal liberty, is repository of all important human rights which are essential for a person or a citizen. When there is a natural calamity like earthquakes, floods, fire, cyclones and similar natural hazards the State as guardian of the people is obliged to provide help, assistance and support to the victims of such natural calamities to help them to save their lives.
11.From Article 21 of the Constitution the Supreme Court has deduced an affirmative obligation to preserve human life. There is no parallel to the present colossal natural calamity as in India. In order to protect human rights as part of right flowing from Article 21 the Supreme Court has enforced obligations of the Government, such as providing medical staff to the Hospital (Bhim singh, MLA v. State of Jammu and Kashmir AIR 1986 SC 494) and awarding compensation for illegal detention of the prisoner for long period after his acquittal. (Rudul Sah v. State of Bihar, AIR 1983 SC 1086).
12. The obligation of the State to protect life is reorganised by directing providing of proper medical attention to every citizen See Pt. Parmanand Katara v. Union of India, AIR 1989 SC 2039 (Paragraphs 8, 9 to 17). In Joint Women's Programme v. State of Rajasthan, AIR 1987 SC 2060, the Court directed setting up of “Special dowry cell” to investigate into dowry deaths. In President, Association of Allottees of Requisition Premises, Bombay v. State of Maharashtra, 1986 Supp SCC 567, the Supreme Court required the Government to prepare a scheme for construction of houses for Government servants who were sought to be displaced as a result of the Government policy of derequisition of requisitioned premises. For the same purpose of protection of human rights in Rakesh Chand Narain v. State of Bihar, 1986 Supp SCC 576, the State Government was directed to raise the daily diet allocation to supply adequate drinking water, mattresses and blankets and medical services etc. to patients in the Government Mental Hospital. In fact. Supreme Court has been, case after case, enforcing economic, social and cultural rights as recognised in international covenant of 1996. In this, the Supreme Court is prompted by the philosophy of social justice or social rights. In doing so, the Supreme Court has been even enforcing directive principles of State policy. This was so done because with the amendment of the preamble of the Constitution “social justice” is an objective for the Government to achieve. Whatever may be the precise content of “social justice”, it is held to include recognition of the needs of weaker section of the community as “human beings.” This need is more urgent where a large section of people have been seriously affected by natural calamity like earthquake and their homes and life is totally shattered (See Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471 (paras 29-30, 68, 70 and 73). We have, therefore, support from host of case law of the Supreme Court for taking a view that to humans affected by calamity the State is obliged to provide help, assistance and support so that they may be able to save their lives. This right of assistance in calamity has to be treated as an enforceable right. Such affected persons, as a result of the calamity, are rendered helpless and handicapped. Help and corrective action sought for them through service spirited organisation or section of people cannot be thwarted, but the same deserves to be encouraged.
13. The doctrine of parens patriae was applied by the Supreme Court in the case of Charanlal Sahu v. Union of India, AIR 1990 SC 1480 (the Bhopal Gas leak tragedy case) by upholding the legislation whereby the Central Government claimed a right to represent victims of Bhopal Gas Leakage Disaster in the pending cases for compensation. As in the case of Charanlal Sahu (supra), the doctrine of parens patriae can more appropriately be applied to the case of victims of earthquake disaster like the present one which occurred in Gujarat and is the subject of public interest litigation before us. The doctrine has been explained by Supreme Court relying on several Indian and English decisions. The concept in jurisprudence of doctrine of parens patriae is that the State has the inherent power and authority to provide protection to the person and property of persons non-sui-juris such as minor, insane and incompetent persons like those rendered helpless due to earthquake disaster. ‘Parens Patriae’ has been literally explained to mean ‘the father of the country’ and is used to designate the State referring to its sovereign power of guardianship for persons under disability. Parens Patriae jurisdiction, it has been explained is the right of sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. Conceptually the parens patriae is theory of obligation of the State to protect and take into custody the rights and privileges of its citizens for discharging its obligations. The Constitution makes it imperative for the State to secure to its citizens rights guaranteed by Constitution and where the citizens are not in a position to assert and claim their rights, the State can be activated and approached to effectively come upon the scene and protect the human rights of victims of a disaster. The Supreme Court has held that the Preamble of the Constitution read with Directive Principles in Articles 38, 39 and 39-A enjoins the State to take up this responsibility. It is the protective measure to which the social welfare State is committed.
14.The functions of a State governed by Constitution and Rule of Law are to take necessary remedial measures as parent and guardian of the citizens of the country to help and support helpless victims of a massive disaster.”