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2015 DIGILAW 95 (HP)

Hari Saran v. State of Himachal Pradesh

2015-02-16

RAJIV SHARMA

body2015
JUDGMENT Rajiv Sharma, J. On the oral application of the petitioner, Secretary, Social Justice and Women Empowerment, Government of Himachal Pradesh is added as respondent No.4 and Sub Divisional Magistrate, Sundernagar as respondent No.5. Registry is directed to carry out necessary correction in the memo of parties. 2. In sequel to notice dated 12.2.2015, Sub Inspector has produced the minors, namely, Neelima and Norma before this Court. Respondent No.3 is also present in the Court. 3. According to the averments made in the petition, Neelima and Norma lost their father in the year 2010. Their mother has solemnized second marriage. The children were earlier in the custody of petitioner. However, they have been removed by respondent No.3. It is further averred that respondent No.3 is likely to send the children to children home. Respondent No.3 is an old person. He has submitted that he is not in a position to look after the minor children due to his old age. One of the daughters-in-law of respondent No.3 is also present in the Court. She has submitted that children were not kept properly when they were in the custody of petitioner. 4. One of the minors is nine years old and other is 4 years old. The minors being in the custody of their grandfather cannot be said to be in illegal custody. In these proceedings, paramount consideration is the welfare of the minor children. The State is a welfare state. It is the responsibility of the State to look after the interest of minor children, who are not able to support themselves due the adverse circumstances, as stated hereinabove. 5. Accordingly, the Court in its parens patriae jurisdiction directs the newly added respondent No.4 to sanction and release Rs. One lakh, i.e. Rs. Fifty thousand each, to be deposited in the joint bank account of minors, namely, Neelima and Norma with their grand-father, i.e. respondent No.3. The amount shall be deposited in any Nationalized bank in Tehsil Sundernagar. The Bank Manager of the Nationalized Bank shall facilitate opening of the account of the minors with respondent No.3. The interest accruing on Rs. 50,000/- each shall be released monthly in favour of respondent No.3 for defraying the expenses of upkeep and imparting education to minor children Neelima and Norma. The amount be sanctioned and released within three weeks from today. The children shall remain in the custody of respondent No.3. The interest accruing on Rs. 50,000/- each shall be released monthly in favour of respondent No.3 for defraying the expenses of upkeep and imparting education to minor children Neelima and Norma. The amount be sanctioned and released within three weeks from today. The children shall remain in the custody of respondent No.3. Respondent No.5 is directed to visit the children after every three months to inquire about their welfare. Respondent No.5 is directed to file his personal affidavit after every six months in the Registry of this Court. 6. Their Lordships of the Hon’ble Supreme Court in Gaurav Kumar Bansal vs. Union of India and others, (2015) 2 SCC 130 have held that there is no manner of doubt that a welfare State is the protector of life and liberty of its citizens not only within the country but also outside the country in certain situations. Their Lordships have further held that the Preamble to the Constitution read with directive principles under Articles 38, 39 and 39-A enjoins the State to take all protective measures to which a social welfare State is committed. Their Lordships have further held that the Supreme Court is assigned the role of sentinel on the qui vive for protection of rights of citizens and steps in, in exercise of power of judicial review for protection of fundamental rights of the citizens, if the State fails to perform its duty. Their Lordships have held as under: “8. There is no manner of doubt that a welfare State is protector of life and liberty of its citizens not only within the country but also outside the country in certain situations. Concept of parens patriae recognises the State as protector of its citizens as parent particularly when citizens are not in a position to protect themselves. The Preamble to the Constitution, read with Directive Principles, under Articles 38, 39 and 39A enjoins the State to take all protective measures to which a Social Welfare State is committed. Interestingly, this doctrine has been recognised in India even before the Constitution came into force. Referring to this aspect, this Court, in Charanlal Sahu vs. Union of India observed as under:- “35.......Thus the position is that according to Indian concept parens patriae doctrine recognized King as the protector of all citizens and as parent. In Budhakaran Chankhani v. Thakur Prasad Shah AIR 1942 Cal. Referring to this aspect, this Court, in Charanlal Sahu vs. Union of India observed as under:- “35.......Thus the position is that according to Indian concept parens patriae doctrine recognized King as the protector of all citizens and as parent. In Budhakaran Chankhani v. Thakur Prasad Shah AIR 1942 Cal. 311 the position was explained by the Calcutta High Court at page 318 of the report. The same position was reiterated by the said High Court in Banku Behary Mondal v. Banku Behary hazra at page 205 of the report. The position was further elaborated and explained by the Madras High Court in Medai Dalavoi T. Kumaraswami Mudaliar v. Meddi Dalavoi Rajammal at page 567 of the report. This Court also recognized the concept of parens patriae relying on the observations of Dr. Mukherjea aforesaid in Ram Saroop v. S.P. Sahi at pages 598 and 599. In the "Words and Phrases" Permanent edition, Vol. 35 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. (Emphasis supplied). 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 he 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 discharging 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. 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 Preamble to the Constitution, read with the Directive Principles, Articles 38, 39 and 39A enjoin the State to take up these responsibilities. It is the protective measure to which the social welfare state is committed. It is necessary for the State to ensure the fundamental rights in conjunction with the Directive Principles of State Policy to effectively discharge its obligation and for this purpose, if necessary, to deprive some rights and privileges of the individual victims or their heirs to protect their rights better and secure these further......” 9. This Court is assigned the role of sentinel on the qui vive for protection of rights of citizens and steps in, in exercise of power of judicial review or protection of Fundamental Rights of the citizens, if the State fails to perform its duty. At the same time, this Court cannot assume the role of the executive to oversee the sensitive issue of coordination with international agencies and bodies for securing release of Indian citizens who are held hostages abroad, when it is shown that the departments of the Government have not only taken cognizance of the problem but also taken, in right earnest, whatever steps could be possible. The issue of coordination at international level with foreign countries and international bodies has to be left to the wisdom of experts in the Government. It is not a case where the State has not shown any concern for its citizens, but where unfortunate situation has come about in spite of serious efforts. Handling of the situation requires expertise and continuous efforts. It has not been pointed out as to what particular direction can be issued in the circumstances. While safety and protection of the lives and liberty of Indian citizens is also the concern of this Court, the issue has to be dealt with at the level of the executive. From the affidavit filed on behalf of the Union of India, it is evident that steps have been taken at various levels, though without complete success.” 7. While safety and protection of the lives and liberty of Indian citizens is also the concern of this Court, the issue has to be dealt with at the level of the executive. From the affidavit filed on behalf of the Union of India, it is evident that steps have been taken at various levels, though without complete success.” 7. In the present case also, it is the duty of the State to protect the interest of the minors. Accordingly, the present petition is disposed of in terms of above order and it shall not be taken as precedent, as the order has been passed in view of the peculiar fact and circumstances of the case. Pending application(s), if any, also stands disposed of. No costs.