The doctrine of parens patriae is the inherent power of the State and of the constitutional courts to act for a person who cannot act for herself. No Indian statute creates it, and capacity is the line at which it stops.
No Indian statute confers parens patriae. Clause 17 of the Letters Patent, 1865 gives the chartered High Courts authority over “infants, idiots and lunatics” within their jurisdiction, and the other constitutional courts reach the same power through Articles 226 and 32. The contest in almost every reported case is therefore about the limits of the jurisdiction rather than about whether it exists.
The Supreme Court used it again in a 2026 ruling, in A v. B, where a Bench hearing a contempt application in a custody dispute interacted with the child, whose mother had died, and held that the exercise of parens patriae jurisdiction was expedient. Custody went to the maternal grandparents, and the father was given supervised visitation once every three months, to begin only after he had built the child’s confidence. For a doctrine with no statutory source, that is a working jurisdiction rather than a historical one.
Those limits are what the rest of this article is about. It starts with where the power comes from, and it ends at the point where a competent adult’s own choice shuts the power down.
Most of the doctrine’s difficulty arrives before a court reaches the merits, in the question of who is entitled to decide at all. An adult suffers a stroke and can no longer manage her own affairs. Her husband is willing and able to act for her, and her brother petitions the High Court to be appointed her guardian on the footing that she cannot protect her own interests.
The brother is right about the incapacity and still loses. The doctrine reaches a person who has no rightful protector, and a competent spouse is a rightful protector, which is why the Bombay High Court has held that a wife is best suited to be the guardian of a comatose husband. Incapacity opens the enquiry without deciding it. Where the power comes from, and what conditions attach to it, is where the answer sits.
Meaning and origin of the doctrine of parens patriae
The doctrine of parens patriae is an inherent common-law jurisdiction under which the State, or a constitutional court, acts for a person who cannot act for herself. The Latin phrase means parent of the country, and it describes a power that was inherited rather than enacted. Nothing in the Constitution of India names it and no central statute creates it, which is why it is called inherent rather than conferred.
In India the doctrine wears two faces that are worth keeping apart, because they answer different questions and are exercised by different institutions. The State wears one when it legislates to take over the claims of people who cannot pursue them for themselves. A constitutional court wears the other when it decides a single matter for a single person who cannot decide it. They are separate powers, and treating them as one produces the wrong answer on standing.
The power began as a prerogative of the Crown, which was understood to owe protection to subjects who could not protect themselves. The King did not exercise it personally. The prerogative was delegated to the Lord Chancellor, who sat in the Court of Chancery, and Chancery is where the doctrine acquired its working shape as a jurisdiction of protection rather than one of adjudication between rival claims.
That distinction still matters when you are asked what kind of jurisdiction this is. A court exercising parens patriae is not choosing between two litigants who each assert a right, it is standing in for a person who cannot assert anything. The outcome therefore turns on material the court gathers for itself as often as on what the parties file, whether that is a medical board’s opinion, an expert body’s findings, or the court’s own interaction with the child.
The prerogative ran over two classes of person, infants and adults who lacked capacity, and Indian law still works with that division. A minor is presumed to need a decision-maker until majority arrives. An adult is presumed to be her own decision-maker until incapacity is shown, and the whole modern law of the doctrine sits inside that second presumption.
What India received through the common law was a protective jurisdiction with no Crown attached to it. That created a problem the English cases never had to solve, because the power had to be relocated inside a written constitution and a court system that draws its authority from that document. The relocation happened in two places, and the first of them is a colonial instrument that is still in force.
Clause 17 of the Letters Patent, 1865 gives the chartered High Courts authority over “infants, idiots and lunatics” within their jurisdiction. The wording is archaic and the clause is rarely cited in general writing on the doctrine, but it is the operative source in the Bombay, Calcutta and Madras High Courts, and a guardianship petition for an adult in those courts is heard on its strength. Clause 17 is not a parallel guardianship code, and it does not override special legislation passed after it. A 2026 analysis of the Bombay decisions puts the limit precisely: the clause fills a vacuum where an adult lacks capacity and no statute fits, and it cannot be used to escape a statutory bar or a statutory forum.
The second location is the writ jurisdiction. High Courts that were never chartered reach the same power through Article 226, and the Supreme Court reaches it through Article 32, which is how the doctrine has been applied in matters well outside guardianship. Aruna Shanbaug turned on a High Court exercising it under Article 226 in a medical case, and custody disputes reach it routinely through habeas corpus.
The State’s own face of the doctrine was settled in Charan Lal Sahu v. Union of India, where the Supreme Court upheld the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 against Articles 14, 19 and 21. The Act vested the victims’ claims in the Union, which then pursued them against Union Carbide, on the footing that the victims could not adequately pursue that litigation in their physical, mental and financial condition. The same judgment supplies the limit that governs everything below, which is that parens patriae is not a power to intervene in functioning families.
Parens patriae jurisdiction of Indian courts
The parens patriae jurisdiction of Indian courts opens only when two conditions are satisfied together. The person must lack the capacity to decide the matter actually in issue, and she must have no rightful protector already entitled to decide it for her. Either condition on its own does nothing, and that is what most summaries of the doctrine leave out.
The negative form of the test is easier to apply, and it has been stated as a list. The doctrine does not apply where the person is a major, where she has not been declared to be of unsound mind, where she is merely old, sick or bedridden, or where she has a spouse or a natural caregiver. Age and illness are not incapacity. A court that treats them as incapacity has skipped the first condition altogether, which is the difference between a protective petition and an ordinary guardianship dispute.
On the second condition, a Bombay High Court judgment of April 2025 in Paritosh v. Union of India requires proof of a specific fact before the jurisdiction opens at all. The petitioner has to show that the person has no parent or legal guardian, or that the guardian she has is abusive or negligent. An assertion that the petitioner would do the job better does not meet that standard.
Where a spouse exists, the spouse has the stronger claim. In Rajni Hariom Sharma v. Union of India the Bombay High Court held that the wife was best suited to be the guardian of her comatose husband, and in Meena Bharat Mehta v. Union of India in September 2025 the same court appointed a wife as guardian of a husband with Alzheimer’s disease. Aruna Shanbaug had already recognised the spouse or the nearest kin as the primary decision-maker for a person who cannot decide.
The route those petitions take matters as much as the outcome. In Vahbiz Pervez Dumasia the Bombay High Court held in May 2025 that the Guardians and Wards Act, 1890 applies only to minors, and that Clause 17 fills the vacuum in cases of adult incapacity. The Act cannot be stretched to cover an adult, so the petition proceeds on the inherent jurisdiction instead of on the statute.
The Supreme Court reached the same jurisdiction from an unusual direction in A v. B in August 2026. The proceeding before it was a contempt application arising from an earlier custody order rather than a fresh custody petition, and the Court said that after interacting with the child it considered the exercise of parens patriae jurisdiction expedient. Custody went to the maternal grandparents, and the father received supervised visitation once every three months, conditional on his first building the child’s confidence. The child’s own account, taken directly by the Bench, carried the decision.
Best interests test and substituted judgment test in parens patriae cases
The test a court applies once incapacity is in issue was settled in Suchita Srivastava v. Chandigarh Administration. The woman was an inmate of a government welfare institution in Chandigarh, had mild mental retardation, and had become pregnant after an alleged rape. She had not consented to a termination, and the question was who could decide for her and on what basis.
The Punjab and Haryana High Court invoked parens patriae in its writ jurisdiction and ordered the pregnancy terminated. It reached that order by applying the substituted judgment test, which asks what the person herself would have chosen had she been competent to choose. On that reasoning the court was not overriding her will, it was reconstructing it.
The Supreme Court set the order aside and separated the two tests. The substituted judgment test applies only where a person is conclusively proved to be completely mentally incompetent, because reconstructing a will presupposes that there is no present will to consult. Where the person is not entirely incapable of making decisions, the best interests test governs instead. Delay in mental development is not the same thing as mental incapacity, and on the expert findings before it the correct test was best interests.
The same distinction runs through the end-of-life cases. Aruna Ramchandra Shanbaug v. Union of India required the High Court, acting under Article 226 and under the parens patriae doctrine, to approve any withdrawal of life support, after taking the opinion of a medical board and consulting the relatives or a next friend. Common Cause v. Union of India then recognised the advance directive, which lets a competent adult decide in advance and removes the occasion for the doctrine altogether, and it is the route by which the right to die with dignity now operates. The Supreme Court modified those guidelines in January 2023, replacing the three-tier procedure and removing the requirement of approval by a Judicial Magistrate First Class.
Limits on the doctrine of parens patriae
The limits on the doctrine of parens patriae are set by capacity, and a court that carries on past that line is no longer protecting the person, it is substituting itself for her. The rule is easy to state and High Courts have broken it more than once. It was broken most visibly in a habeas corpus petition filed by a father about his adult daughter.
In Shafin Jahan v. Asokan K.M. the father petitioned the Kerala High Court alleging that his daughter, then aged 24, had been confined and coerced into converting her religion and marrying. She told the court that she had married of her own will. The High Court allowed the petition anyway.
The reasoning it gave is worth reading in its own words. “A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways,” the High Court said, and it held that in exercising parens patriae jurisdiction it was concerned with the welfare of a girl of her age. On that basis it annulled the marriage and directed that she be escorted from her hostel to her father’s house.
The Supreme Court set that judgment aside. Superior courts exercise parens patriae in the case of persons who are incapable of asserting a free will, such as minors or persons of unsound mind, and the daughter was neither. The exercise of the jurisdiction, the Court held, must not transgress into determining the suitability of partners to a marital tie, because that decision rests exclusively with the individuals themselves.
The vice in the High Court’s order was not that it valued her welfare. It was that it treated vulnerability as though it were incapacity, and then used the doctrine to reach a choice she was competent to make. Capacity is the trigger, and the court’s view of how wise the choice is has no part in it. The step that gets skipped is the one between a sympathetic fact and a protective order.
Read against Charan Lal Sahu, the two limits line up into one proposition. The doctrine is not a power to intervene in a functioning family, and it is not a power to improve on a competent adult’s decision. What is left to it is the case where nobody is entitled to decide, and that is the space in which Parliament has now legislated.
Parens patriae and adult guardianship under Indian statutes
Where an adult with a disability is concerned, Parliament has occupied part of the field, and it has done so in a direction that narrows the doctrine. Section 14 of the Rights of Persons with Disabilities Act, 2016 provides for limited guardianship, which the Act describes as a system of joint decision-making that operates on mutual understanding and trust between the guardian and the person with disability. It is limited to a specific period and to specific decisions and situations, and it operates in accordance with the will of the person with disability. Plenary guardianship, under which a guardian simply replaces the person, is what the provision moved away from.
The older statute does not fill the remaining space. The Guardians and Wards Act, 1890 is minor-specific and self-contained, so Section 7 cannot be invoked to appoint a guardian for an adult, and once a petition is brought under Section 7 the territorial jurisdiction fixed by Section 9 cannot be bypassed by invoking Clause 17. A petitioner who mixes the two is asking a court to use an inherent power to cure a statutory bar, and the Bombay High Court has declined to read Clause 17 that way.
That leaves a real gap, and it is the gap in which the doctrine is currently doing the most work. No Indian statute governs guardianship of an adult rendered incapable by a coma or a persistent vegetative state, a silence LiveLaw has documented in its analysis of these petitions. Until Parliament fills it, families in that position reach a High Court under Clause 17 or under the writ jurisdiction, and the answer they get depends on the doctrine rather than on any enacted rule.
Frequently asked questions
What does parens patriae mean in Indian law?
Parens patriae means parent of the country, and in Indian law it describes the inherent power of the State and of the constitutional courts to act for a person who cannot act for herself. No statute creates the power. The chartered High Courts trace it to Clause 17 of the Letters Patent, 1865, and the other constitutional courts reach it through Articles 226 and 32.
Is the doctrine of parens patriae mentioned anywhere in the Constitution of India?
The Constitution does not name the doctrine of parens patriae anywhere. Courts locate the power in the writ jurisdiction under Articles 32 and 226 rather than in any express provision, which is why it is described as inherent. In Charan Lal Sahu the Supreme Court upheld a statute passed on the strength of the State’s parens patriae role without any article conferring that role on it.
What is the difference between the best interests test and the substituted judgment test?
The substituted judgment test asks what the person would have chosen had she been competent, while the best interests test asks what is objectively best for her. Suchita Srivastava holds that substituted judgment applies only where the person is conclusively proved to be completely mentally incompetent. Where she retains some decision-making ability the best interests test governs, because delay in mental development is not the same as mental incapacity.
Can a High Court appoint a guardian for an adult under parens patriae jurisdiction?
A High Court can appoint a guardian for an adult, but only where no statute and no existing protector covers the case. The Guardians and Wards Act, 1890 applies to minors alone, so the chartered High Courts proceed under Clause 17 of the Letters Patent, 1865 instead. The petition fails where the adult has a competent spouse or caregiver, and it fails where the adult has capacity.
Which judgments should be cited on the doctrine of parens patriae in an examination answer?
Four judgments carry most of the doctrine. Charan Lal Sahu v. Union of India supplies the State’s own parens patriae role, Suchita Srivastava v. Chandigarh Administration supplies the choice between the two tests, Aruna Ramchandra Shanbaug v. Union of India supplies the High Court’s supervisory role under Article 226, and Shafin Jahan v. Asokan K.M. supplies the limit against a competent adult. A v. B, decided in 2026, shows the jurisdiction still in use.
References
- Charan Lal Sahu v. Union of India, (1990) 1 SCC 613, Supreme Court of India, judgment dated 22 December 1989 (Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 upheld; the Union as parens patriae of the victims; the doctrine is not a power to intervene in functioning families).
- Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, Supreme Court of India, judgment dated 28 August 2009 (best interests test against substituted judgment test; delay in mental development distinguished from mental incapacity).
- Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, Supreme Court of India, judgment dated 7 March 2011 (High Court approval under Article 226 acting as parens patriae; medical board and next friend).
- Common Cause v. Union of India, (2018) 5 SCC 1, Supreme Court of India, judgment dated 9 March 2018 (right to die with dignity; the advance directive and its procedure).
- Supreme Court modification of the Common Cause guidelines, January 2023 (three-tier procedure replaced; Judicial Magistrate First Class approval removed).
- Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, Supreme Court of India (parens patriae confined to persons incapable of asserting a free will; a court may not determine the suitability of partners to a marital tie).
- A v. B, 2026 INSC 818, Supreme Court of India, judgment dated 11 August 2026 (parens patriae jurisdiction exercised in a contempt proceeding; custody to the maternal grandparents with supervised visitation to the father).
- Limits of parens patriae jurisdiction under Clause 17 of the Letters Patent, SCC Online, 1 July 2026 (Paritosh v. Union of India, 2025 SCC OnLine Bom 1303; Rajni Hariom Sharma v. Union of India, 2020 SCC OnLine Bom 880; Vahbiz Pervez Dumasia, In re, 2025 SCC OnLine Bom 2045; Meena Bharat Mehta v. Union of India, 2025 SCC OnLine Bom 6533; Section 7 and Section 9 of the Guardians and Wards Act, 1890).
- The Rights of Persons with Disabilities Act, 2016, India Code (Section 14, limited guardianship).
- Guardianship in limbo: India’s legal silence on patients in comatose and vegetative states, LiveLaw (the statutory vacuum for adults incapacitated by coma or a persistent vegetative state).
This article is for informational and educational purposes only and does not constitute legal advice. Readers should consult a qualified advocate before acting on any point discussed here.