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3.

) DOCTRINE OF PARENS PATRIAE and PRINCIPLES OF SOCIAL JUSTICE

Truly, the theory of Utilitarianism is in line to the state’s vocation of the promotion of the common good
for the people. However, by expropriating the lands belonged to the indigenous people pursuant to the
Utilization theory, it runs counter to the DOCTRINE OF PARENS PATRIAE and to the bellows of the
SOCIAL JUSTICE THEORY.

The doctrine of ‘Parens Patriae’ has been evolved in common law and is applied in situations where the
State must make decisions in order to protect the interests of those persons who are unable to take care
of themselves. Suchita Srivastava & Anr. v. Chandigarh Administration, CIVIL APPEAL NO. 5845 OF
2009.

In Heller vs. DOE[2], Justice Kennedy observed:

“The State has a legitimate interest under its parens patriae powers in providing care to its citizens who
are unable to care for themselves.”

It is pellucid to note that indigenous peoples around the world have sought recognition of their
identities, their ways of life and their right to traditional lands, territories and natural resources, yet
throughout history, their plight still remains unnoticed. Indigenous peoples are arguably among the
most disadvantaged and vulnerable groups of people in the world today. The international community
now recognizes that special measures are required to protect the rights of the world's indigenous
peoples.

As we can even see from the instances provided by complainants in their position paper, that up until
today, indigenous people around the world share common problems related to the protection of their
rights as DISTINCT PEOPLES. Indigenous people are inheritors and practitioners of unique cultures and
ways of relating to other people and to the environment. Indigenous peoples have retained social,
cultural, economic and political characteristics that are distinct from those of the dominant societies in
which they live. http://www.unric.org/en/indigenous-people/27309-individual-vs-collective-rights. In
view of the aforesaid principle, therefore, the state is duty bound to protect and to see to it that
fundamental rights of indigenous people are free from any abridgement. If utilization theory is to be
considered in justifying the “lawful” taking of the ancestral lands, it is quite skewed since these ancestral
lands are, undoubtedly, central to the lives and is essential for the subsistence of the indigenous people.

Also, social justice principles refer to values “that favours measures that aim at decreasing or eliminating
inequity and promoting inclusiveness of DIVERSITY” https://www.pdhpe.net/health-priorities-in-
australia/how-are-priority-issues-for-australias-health-identified/identifying-priority-health-
issues/social-justice-principles/#_ftn2

Equity means that resources are allocated in accordance with the needs of individuals and populations
with the desired goal of equality of outcomes. This results in particular groups within Australia receiving
more funding and being identified as priority groups in Australia because they have poorer health
outcomes than other Australians. The “Australian Institute of Aboriginal and Torres Strait Islander
Studies” are an example of a people group who require additional funding and resources in order to
improve health outcomes. https://www.pdhpe.net/health-priorities-in-australia/how-are-priority-
issues-for-australias-health-identified/identifying-priority-health-issues/social-justice-principles/#_ftn2.
Hence, this principle must also be applied in the case of indigenous people. Though the state ensured
lawful means in expropriating their lands, it tends to run afoul to the principle of equity under the social
justice theory if we are to disregard the fundamental rights of indigenous people.

After all, the values enshrined in our Constitution are a testimony of the standard of governance and
welfare that the people expect from their representatives to maintain and carry out respectively. The
Doctrine of Parens Patriae and the Social Justice Theory are simply the links in this long chain. Both of
these doctrines makes sure that the voiceless, abandoned and disabled people are ultimately the
responsibility of the State and the State must take all the steps to ensure their well-being as they are not
in a position to do so.