What's in a Name? Judicial Overreach of the Parens Patriae Jurisdiction

A name for a child is the product of tradition which may be derived from the cultural deposit, historic memories, value systems, inspiring personalities, religious beliefs of a society and generally things that bring joy. The choice of a name is one of the foremost indicators of identity. Unlike natural identity which is bestowed by nature, choosing a name or having a name chosen for a child are hallmarks of acquired identity.  

Recently, a High Court in India proceeded to name a child as per the mother’s choice and added the father’s family name by exercising its parens patriae jurisdiction. The Court assumed the responsibility as the minor child’s guardian with the underlying doctrine of being the ‘parent of the nation’ (roughly translation). While prima facie this might seem to be a step towards ensuring the welfare of the child, the blog contends that this judgment signifies a dangerous transgression of this judicially-constructed and self-assumed jurisdiction. Further, it is imperative to highlight that the addition of the family name was not contested, however, the Court’s imprimatur on such a patriarchal expression of identity is sought to be challenged. 

I attempt to broadly highlight the importance of a name and the freedom of choice to exercise it. Further, I attempt to showcase the misgivings of exercising such a power and highlight its societal implications. 

Right to a Name and the Right to Privacy: Two Sides of the Same Coin 

A name is representative of an intrinsic identity and an inviolable part of an individual’s life. It is not merely the name that is significant, but also the process of providing it. The right to keep a name of choice or change the name according to personal preference has also been accorded significance. The right to a name and the choice that comes with it is protected through the right to freedom of expression. Since most persons expresses their identity through their name, it was relevant to provide constitutional protection.  

It has been further recognised that there exists a difference between a person being identified through their name in the social sphere as compared to the private sphere. Basis this, a duty is imposed on the State to not only protect this acquired identity but also preserve the flexibility that comes with it i.e., the State has the duty to record every change of name as well. These observations highlight the imperative significance a name has with the identity of an individual in the larger societal structure. Moreover, the rights are guaranteed on a dual-level: the right of a parent to name the child is protected along with the right of the child to change their name. 

Additionally, there exists immense significance of a family name which not only indicates lineage and heritage but also provides a homogenous sense of social reality to a child. Homogeneity is imperative and rooted in the need to establish a cohesive family, the basic building block of society. Further, a family name is the nexus that connects a child with other members of your family and provides the child with the comfort of a secure childhood. A sociological understanding of the importance a family name in the Indian context would showcase its significance as an indicator of one’s caste, religion, and creed as well. 

In this backdrop, the judicial imposition of a name and a surname opens the Pandora’s box to several ensuing problems. First, the inclusion of solely a father’s surname onto a child with estranged parents signifies a patriarchal approach since it blatantly disregards the mother’s identity and the right of the child to be known through the mother as well. Second, the Court has operated with complete nonchalance regarding the cultural value, traditional knowledge, and lineage of the child by imposing a name which was not mutually consented to by the parents.  

Lastly, the usage of the parens patriae jurisdiction is unwarranted considering the wide range of alternatives available. It has been held that this jurisdiction can be exercised solely when it is necessary and only in exceptional circumstances. This dictum has been translated over the years to mean situations where no alternative measures exist. In this case, the Court could either order mediative strategies between the estranged parents to come up with a name or could provide for a proxy name considering the urgency, to be corrected in the future. Hence, the invocation of the power in this case infringes on the freedom of expression and several other potential rights that have provided to the child. An exploration of these bundle of rights requires further investigation.  

Conclusion

The decision of the Court to provide a name for their child violates constitutionally-protected rights. Additionally, the Court recognises the identity of the child to be closely linked to the father indicating a patriarchal undertone. Hence, it becomes imperative to ponder whether the Court in the given circumstances was competent to act as a guardian and determine a minor’s name?