IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 470 OF 2005
REPORTABLE
SHABNAM HASHMI ... PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. ... RESPONDENT (S)
RANJAN GOGOI, J.
J U D G M E N T
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
1
Page 1
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 India
1
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
2
Page 2
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
3
Page 3
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.
4
Page 4
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.
5
Page 5
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
6
Page 6
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 15
th
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
7
Page 7
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
8
Page 8
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
9
Page 9
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,
1
Page 10
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’souza
2
(2000) 3 BomCR 244
2
and Philips Alfred
11
Page 11
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
12
Page 12
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
13
Page 13
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.
NEW DELHI,
FEBRUARY 19, 2014.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[SHIVA KIRTI SINGH]
14
Page 14
