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This paper examines the effect of the introduction of the ‘best interests’ concept into the law of the countries of the Indian sub-continent. It shows how the received colonial laws partly coincided with, and partly differed from, the indigenous laws of the region. Initially, the received laws, like the indigenous laws, gave prominence to paternal rights, but they also introduced the ‘best interests’ concept, which was used by the courts and certain legislation to introduce a degree of uniformity which undermined the pluralism of the region. To-day, religious and ethnic awareness is threatening that uniformity. However, the paper concludes by indicating that constitutional norms are showing signs of playing a similar role to the earlier colonial principles of equity and may maintain some uniformity based on constitutional standards in the region.
Article 3 (1) of the Convention on the Rights of the Child sets a general standard that must be observed by the major agencies of government, the legislature, the executive, Courts of law and private social welfare institutions within a country that is a party to the Convention. When taking any action concerning children, these agencies are all required to make the best interests of the child a ‘primary consideration’. All the countries which belong to the South Asian region, namely Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka, have ratified the Convention. They have therefore taken on a commitment to realizing this standard in their domestic jurisdictions.