Author: Akrity Parashar, IMS Law College, Noida
Editor: Meghansh Reddy, Jindal Global Law School
AIR 2014 SC 1281; (2014) 4 SCC 1; 2014 (3) SCJ 486
Hon’ble Judges/Coram: P Sathasivam, Ranjan Gogoi, Shiva Kirti Singh
Date of Decision: 19.02.2014
Prior to this case, the adoption option was only for the Hindu community, after the enactment of the Hindu Adoption and Maintenance Act 1956, which facilitated the adoption of Hindu children by a woman. This Act was applicable to Individuals belonging to the Hindu community, and not applicable to communities such as Muslims, Christians and Parsis. These communities had to resort to the 1890 law Guardianship and Wards Act, according to which they could become guardians of children. However, the process only produced a patron-ward relationship. The first step of a secular adoption law came after the passage of the Juvenile Justice (Care and Protection) Act of 2000 and the same amendment was last amended in 2015.
As defined in section 2 (2) of the Juvenile Justice (Care and Protection) Act of 2015, `` Adoption '' refers to the process by which a child is adopted from their biological parents. Is separated from form. And she becomes the legitimate child of her adoptive parents with all the rights, privileges and responsibilities inherent to a biological child.
The petitioner addressed the court under article 32 of the Constitution to recognize the right to adopt and be adopted as a fundamental right under Part III of the Constitution with the alternative sentence to establish guidelines. optional that allows the adoption of children by people regardless of their religion, caste, creed, etc. and in addition, an instruction to the government of the union to promulgate an optional law whose main objective is the child with considerations such as religion, etc.
Shabnam Hashmi, is a social activist and human rights activist from India. She began her social activism campaign on adult literacy in 1981.
The following points are submitted to the court and should be considered:
1.Whether the right to adopt and be adopted a fundamental right under Part III of the Constitution?
2.In case of contradiction between personal law and secular law, what is going to prevail.
3..Is there a need for voluntary guidelines that allow for the adoption of children by people regardless of religion, caste, creed, etc.?
In 2014, the judgment of Shabnam Hashmi provided the adoption as the Fundamental Right. It was permitted that any person irrespective of religion can adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000. Shabnam had only guardianship rights over a girl adopted by her as granted by the court because as per the Muslim Law, adoption is not allowed. She claimed that adoption should be allowed on humanitarian grounds and as a Fundamental Right as well. After the finality of this case, the judgment has permitted all the future intended parents to go for adoption process (can adopt a child) under the Juvenile Justice (Care and Protection of Children) Act, 2000 irrespective of religion and it was also held that this act is of secular nature for the purpose of adoption of children under the prescribed procedure.
The 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 v. 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 (the JJ Act, 2000) as also the Juvenile Justice (Care and Protection of Children) Rules promulgated in the year 2007 (the JJ Rules, 2007). 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 Central Adoption Resource Agency (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, 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. 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.
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, the elevation of the right to adopt or to be adopted to the status of a Fundamental Right will have to await a dissipation of the conflicting thought processes in this sphere of practices and beliefs 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. 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.
The Supreme court ruled that any person can adopt a child under the Juvenile Justice (care and protection of children) Act 2000 irrespective of the religion he or she follows and even if the personal law bars him from doing so. The Juvenile Justice act 2000 is a secular law that enables any person irrespective of the religion he professes to take the child in adoption. The court ruling will have a way for the foundation of a uniform civil law as mentioned in Article 44 of the Constitution of India. It will allow lakhs of orphaned children to find a stable home, irrespective of their parent's religion.
Hashmi had moved to Apex court in 2005 after she was given only guardianship rights over a one-year-old girl she had brought from an adoption home. From now she can treat the girl as her own daughter.
The Apex court, however, turned down the plea for declaring the right of the child to be adopted and right of the parent to adopt as a fundamental right under Constitution. Saying it is not possible to pass such order due to the contradictory beliefs existing in our society.
The judiciary by its rulings provided the social protection mechanism for uniformity of adoption like Shabnam Hashmi. The state should encourage the practice of adoption rather than promote surrogacy so that a uniform adoption law can help the child in need to find a home. From now on, the judiciary has ensured the uniformity of the adoption by its judgment and now it is the duty of the legislator to provide a uniform law for the adoption, which is the need of the moment.
1) [(1984) 2 SCC 244]