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IN
THE SUPREME COURT OF INDIA
CIVIL
ORIGINAL JURISDICTION
WRIT
PETITION (CIVIL) NO. 470 OF 2005
SHABNAM
HASHMI ... PETITIONER(S)
VERSUS
UNION
OF INDIA & ORS. ... RESPONDENT (S)
J
U D G M E N T
RANJAN
GOGOI, J.
1.
Recognition
of the right to adopt and to be adopted as a
fundamental
right under Part-III of the Constitution is the
vision
scripted by the public spirited individual who has
moved
this Court under Article 32 of the Constitution. There
is
an alternative prayer requesting the Court to lay down
optional
guidelines enabling adoption of children by persons
irrespective
of religion, caste, creed etc. and further for a
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direction
to the respondent Union of India to enact an
optional
law the prime focus of which is the child with
considerations
like religion etc. taking a hind seat.
2.
The aforesaid alternative prayer made in the writ
petition
appears to have been substantially fructified by the
march
that has taken place in this sphere of law, gently
nudged
by the judicial verdict in Lakshmi Kant Pandey Vs.
Union of India1
and
the supplemental, if not consequential,
legislative
innovations in the shape of the Juvenile Justice
(Care
And Protection of Children) Act, 2000 as amended in
2006
(hereinafter for short ‘the JJ Act, 2000) as also The
Juvenile
Justice (Care and Protection of Children) Rules
promulgated
in the year 2007 (hereinafter for short ‘the JJ
Rules,
2007’).
3.
The alternative prayer made in the writ petition may be
conveniently
dealt with at the outset.
The
decision of this Court in Lakshmi Kant Pandey
(supra)
is a high watermark in the development of the law
relating
to adoption. Dealing with inter-country adoptions,
1 (1984)
2 SCC 244
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elaborate
guidelines had been laid by this Court to protect
and
further the interest of the child. A regulatory body, i.e.,
Central
Adoption Resource Agency (for short ‘CARA’) was
recommended
for creation and accordingly set up by the
Government
of India in the year 1989. Since then, the said
body
has been playing a pivotal role, laying down norms both
substantive
and procedural, in the matter of inter as well as
in
country adoptions. The said norms have received
statutory
recognition on being notified by the Central Govt.
under
Rule 33 (2) of the Juvenile Justice (Care and Protection
of
Children) Rules, 2007 and are today in force throughout
the
country, having also been adopted and notified by
several
states under the Rules framed by the states in
exercise
of the Rule making power under Section 68 of the JJ
Act,
2000.
4.
A
brief outline of the statutory developments in the
concerned
sphere may now be sketched.
In
stark contrast to the provisions of the JJ Act, 2000 in
force
as on date, the Juvenile Justice Act, 1986 (hereinafter
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for
short ‘the JJ Act, 1986’) dealt with only “neglected” and
“delinquent
juveniles”. While the provisions of the 1986 Act
dealing
with delinquent juveniles are not relevant for the
present,
all that was contemplated for a ‘neglected juvenile’
is
custody in a juvenile home or an order placing such a
juvenile
under the care of a parent, guardian or other person
who
was willing to ensure his good behaviour during the
period
of observation as fixed by the Juvenile Welfare Board.
The
JJ Act, 2000 introduced a separate chapter i.e. Chapter IV
under
the head ‘Rehabilitation
and Social
Reintegration’
for
a child in need of care and protection.
Such
rehabilitation and social reintegration was to be carried
out
alternatively by adoption or foster care or sponsorship or
by
sending the child to an after-care organization. Section
41
contemplates adoption though it makes it clear that the
primary
responsibility for providing care and protection to a
child
is his immediate family. Sections 42, 43 and 44 of the JJ
Act,
2000 deals with alternative methods of rehabilitation
namely,
foster care, sponsorship and being looked after by
an
after-care organisation.
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5.
The
JJ Act, 2000, however did not define ‘adoption’ and
it
is only by the amendment of 2006 that the meaning
thereof
came to be expressed in the following terms:
“2(aa)-“adoption”
means the process through
which
the adopted child is permanently separated
from
his biological parents and become the
legitimate
child of his adoptive parents with all the
rights,
privileges and responsibilities that are
attached
to the relationship”
6.
In
fact, Section 41 of the JJ Act, 2000 was substantially
amended
in 2006 and for the first time the responsibility of
giving
in adoption was cast upon the Court which was
defined
by the JJ Rules, 2007 to mean a civil court having
jurisdiction
in matters of adoption and guardianship including
the
court of the district judge, family courts and the city civil
court.
[Rule 33 (5)] Substantial changes were made in the
other
sub-sections of Section 41 of the JJ Act, 2000. The
CARA,
as an institution, received statutory recognition and so
did
the guidelines framed by it and notified by the Central
Govt.
[Section 41(3)].
7.
In
exercise of the rule making power vested by Section
68
of the JJ Act, 2000, the JJ Rules, 2007 have been enacted.
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Chapter
V of the said Rules deal with rehabilitation and
social
reintegration.
Under Rule 33(2) guidelines issued
by
the CARA, as notified by the Central Government under
Section
41 (3) of the JJ Act, 2000, were made applicable to all
matters
relating to adoption. It appears that pursuant to the
JJ
Rules, 2007 and in exercise of the rule making power
vested
by the JJ Act, 2000 most of the States have followed
suit
and adopted the guidelines issued by CARA making the
same
applicable in the matter of adoption within the
territorial
boundaries of the concerned State.
Rules
33(3) and 33(4) of the JJ Rules, 2007 contain
elaborate
provisions regulating pre-adoption procedure i.e.
for
declaring a child legally free for adoption. The Rules also
provide
for foster care (including pre-adoption foster care) of
such
children who cannot be placed in adoption & lays down
criteria
for selection of families for foster care, for
sponsorship
and for being looked after by an aftercare
organisation.
Whatever the Rules do not provide for are
supplemented
by the CARA guidelines of 2011 which
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additionally
provide measures for post adoption follow up
and
maintenance of data of adoptions.
8.
It
will now be relevant to take note of the stand of the
Union
of India. Way back on 15th
May,
2006 the Union in its
counter
affidavit had informed the Court that prospective
parents,
irrespective of their religious background, are free
to
access the provisions of the Act for adoption of children
after
following the procedure prescribed. The progress on
the
ground as laid before the Court by the Union of India
through
the Ministry of Women and Child Development
(respondent
No. 3 herein) may also be noticed at this stage.
The
Union in its written submission before the Court has
highlighted
that at the end of the calendar year 2013 Child
Welfare
Committees (CWC) are presently functioning in a
total
of 619 districts of the country whereas State Adoption
Resource
Agencies (SARA) has been set up in 26
States/Union
Territories; Adoption Recommendation
Committees
(ARCs) have been constituted in 18 States/Union
Territories
whereas the number of recognized adoption
organisations
in the country are 395. According to the Union
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the
number of reported adoptions in the country from
January,
2013 to September, 2013 was 19884 out of which
1712
cases are of inter-country adoption. The third
respondent
has also drawn the attention of the Court that
notwithstanding
the time schedule specified in the guidelines
of
2011 as well as in the JJ Rules, 2007 there is undue delay
in
processing of adoption cases at the level of Child Welfare
Committees
(CWS), the Adoption Recommendation
Committees
(ARCs) as well as the concerned courts.
9.
In
the light of the aforesaid developments, the
petitioner
in his written submission before the Court, admits
that
the JJ Act, 2000 is a secular law enabling any person,
irrespective
of the religion he professes, to take a child in
adoption.
It is akin to the Special Marriage Act 1954, which
enables
any person living in India to get married under that
Act,
irrespective of the religion he follows. JJA 2000 with
regard
to adoption is an enabling optional gender-just law, it
is
submitted. In the written arguments filed on behalf of the
petitioner
it has also been stated that in view of the
enactment
of the JJ Act, 2000 and the Amending Act of 2006
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the
prayers made in the writ petition with regard to
guidelines
to enable and facilitate adoption of children by
persons
irrespective of religion, caste, creed etc. stands
satisfactorily
answered and that a direction be made by this
Court
to all States, Union Territories and authorities under
the
JJ Act, 2000 to implement the provisions of Section 41 of
the
Act and to follow the CARA guidelines as notified.
10.
The
All India Muslim Personal Law Board (hereinafter
referred
to as ‘the Board’) which has been allowed to
intervene
in the present proceeding has filed a detailed
written
submission wherein it has been contended that under
the
JJ Act, 2000 adoption is only one of the methods
contemplated
for taking care of a child in need of care and
protection
and that Section 41 explicitly recognizes foster
care,
sponsorship and being look after by after-care
organizations
as other/ alternative modes of taking care of
an
abandoned/surrendered child. It is contended that Islamic
Law
does not recognize an adopted child to be at par with a
biological
child. According to the Board, Islamic Law
professes
what is known as the “Kafala” system under which
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the
child is placed under a ‘Kafil’ who provides for the well
being
of the child including financial support and thus is
legally
allowed to take care of the child though the child
remains
the true descendant of his biological parents and not
that
of the “adoptive” parents. The Board contends that the
“Kafala”
system which is recognized by the United Nation’s
Convention
of the Rights of the Child under Article 20(3) is
one
of the alternate system of child care contemplated by
the
JJ Act, 2000 and therefore a direction should be issued to
all
the Child Welfare Committees to keep in mind and follow
the
principles of Islamic Law before declaring a muslim child
available
for adoption under Section 41(5) of the JJ Act, 2000.
11.
The
JJ Act, 2000, as amended, is an enabling legislation
that
gives a prospective parent the option of adopting an
eligible
child by following the procedure prescribed by the
Act,
Rules and the CARA guidelines, as notified under the
Act.
The Act does not mandate any compulsive action by
any
prospective parent leaving such person with the liberty
of
accessing the provisions of the Act, if he so desires. Such
a
person is always free to adopt or choose not to do so and,
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instead,
follow what he comprehends to be the dictates of
the
personal law applicable to him. To us, the Act is a small
step
in reaching the goal enshrined by Article 44 of the
Constitution.
Personal beliefs and faiths, though must be
honoured,
cannot dictate the operation of the provisions of
an
enabling statute. At the cost of repetition we would like to
say
that an optional legislation that does not contain an
unavoidable
imperative cannot be stultified by principles of
personal
law which, however, would always continue to
govern
any person who chooses to so submit himself until
such
time that the vision of a uniform Civil Code is achieved.
The
same can only happen by the collective decision of the
generation(s)
to come to sink conflicting faiths and beliefs
that
are still active as on date.
12.
The
writ petitioner has also prayed for a declaration that
the
right of a child to be adopted and that of the prospective
parents
to adopt be declared a fundamental right under
Article
21 of the Constitution. Reliance is placed in this
regard
on the views of the Bombay and Kerala High Courts in
In re: Manuel Theodore D’souza2 and Philips
Alfred
2 (2000)
3 BomCR 244
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Malvin Vs.
Y.J.Gonsalvis & Ors.3 respectively.
The
Board
objects
to such a declaration on the grounds already been
noticed,
namely, that Muslim Personal Law does not
recognize
adoption though it does not prohibit a childless
couple
from taking care and protecting a child with material
and
emotional support.
13.
Even
though no serious or substantial debate has been
made
on behalf of the petitioner on the issue, abundant
literature
including the holy scripts have been placed before
the
Court by the Board in support of its contention, noted
above.
Though enriched by the lengthy discourse laid before
us,
we do not think it necessary to go into any of the issues
raised.
The Fundamental Rights embodied in Part-III of the
Constitution
constitute the basic human rights which inhere
in
every person and such other rights which are fundamental
to
the dignity and well being of citizens. While it is correct
that
the dimensions and perspectives of the meaning and
content
of fundamental rights are in a process of constant
evolution
as is bound to happen in a vibrant democracy
where
the mind is always free, elevation of the right to adopt
3 AIR
1999 Kerala 187
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or
to be adopted to the status of a Fundamental Right, in our
considered
view, will have to await a dissipation of the
conflicting
thought processes in this sphere of practices and
belief
prevailing in the country. The legislature which is
better
equipped to comprehend the mental preparedness of
the
entire citizenry to think unitedly on the issue has
expressed
its view, for the present, by the enactment of the
JJ
Act 2000 and the same must receive due respect.
Conflicting
view points prevailing between different
communities,
as on date, on the subject makes the vision
contemplated
by Article 44 of the Constitution i.e. a Uniform
Civil
Code a goal yet to be fully reached and the Court is
reminded
of the anxiety expressed by it earlier with regard to
the
necessity to maintain restraint. All these impel us to take
the
view that the present is not an appropriate time and
stage
where the right to adopt and the right to be adopted
can
be raised to the status of a fundamental right and/or to
understand
such a right to be encompassed by Article 21 of
the
Constitution. In this regard we would like to observe that
the
decisions of the Bombay High Court in Manuel
Theodore D’souza (supra) and the
Kerala High Court in
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Philips Alfred Malvin (supra)
can be best understood to
have
been rendered in the facts of the respective cases.
While
the larger question i.e. qua Fundamental Rights was
not
directly in issue before the Kerala High Court, in Manuel
Theodore D’souza (supra) the right to
adopt was consistent
with
the canonical law applicable to the parties who were
Christians
by faith. We hardly need to reiterate the well
settled
principles of judicial restraint, the fundamental of
which
requires the Court not to deal with issues of
Constitutional
interpretation unless such an exercise is but
unavoidable.
14.
Consequently,
the writ petition is disposed of in terms of
our
directions and observations made above.
...…………………………CJI.
[P.
SATHASIVAM]
.........………………………J.
[RANJAN
GOGOI]
…..........……………………J.
[SHIVA
KIRTI SINGH]
NEW
DELHI,
FEBRUARY
19, 2014.
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