BY – K.L Praharshitha
THE LEGAL POSITION BEFORE THE CASE
In India, it is the Hindu Adoption and Maintenance Act of 1956 that regulates the adoptions amongst Hindus, Jains, Sikhs, or Buddhists. Since the personal laws of Muslims, Christians, Parsis and Jews do not provide for adoption, the non-Hindus could only take the recourse of the Guardianship and Wards Act of 1890 which however confers a mere guardian-ward relationship which persists till the child attains an age of 21 years. Further, the provisions of the Juvenile Justice Act, 2000 provide for the adoptions of delinquent and abandoned children. Coming to the ‘Inter-Country Adoptions’, no statute in India had formally acknowledged the concept for a really long time. It is the 2015 amendment of the JJ Act which has for the first time ever discussed the Inter-Country Adoptions from India. Earlier, all cross-border adoptions from India had been taking place in accordance with the provisions of the Guardianship and Wards Act of 1890, as in the case of domestic adoptions by Non-Hindus. The prospective foreign adopters would make an application for guardianship over the child with the district court with relevant jurisdiction and would additionally submit a declaration that they adopt the child legally as per the laws of the receiving country within two years of the arrival of such child in such receival country. Further, for the Inter-Country Adoptions to be valid, they should comply with the laws of both the countries involved. This position of law was however changed by the Supreme Court’s judgment in the infamous L.K.Pandey’s case.
THE FACTUAL BACKGROUND
In the year 1984, the Supreme Court of India had instituted a Public Interest Litigation based on a letter communicated by an advocate Mr. L.K.Pandey regarding the malpractices of private adoption agencies and child welfare organizations in facilitating the inter-country adoptions. The letter was based on empirical research conducted by a foreign magazine called ‘Mail.’ The petitioner raised concern over the long and hazardous journeys the children are subjected to during the course of cross-border adoption, upon which the children often end up with neglect, abuse, impoverishment or sexual exploitation. The court regarded the letter as a Writ Petition, and on September 1, 1982, it issued notices to the Government of India, the Indian Council of Child Welfare, and the Indian Council of Social Welfare, requesting that they assist the court in establishing the principles and norms that should be followed in the course of Inter-Country adoptions. The court also ordered the Superintendent of Tees Hazari Courts to provide quarterly reports pertaining to the foreign adoption orders granted under the Guardians and Wards Act, 1890, during the period of five years prior to the institution of the case.
The Government of India, its departments, and various national and international social welfare organisations presented affidavits and statements before the Court in this matter. In its judgment, the Supreme Court expressly acknowledged their assistance, noting that the important suggestions submitted for the Court’s consideration aided the bench in formulating appropriate principles and standards to be followed in inter-country adoptions.
THE OBSERVATIONS OF THE COURT
In its judgment, the Court has pointed out the glaring inadequacies in the law relating to Inter-Country adoptions in India. It has emphasised that in the absence of an efficient regulatory framework, gross abuse of the rights of Indian children is taking place across the borders. The Court emphasised that the lack of legal control over inter-country adoptions in India is making children highly vulnerable to cruel treatment like slavery, unlawful profiteering, trafficking, etc. It has stressed the importance of establishing a comprehensive framework of normative and procedural protections for regulating inter-country adoptions, so as to protect the children from indignities like abuse, mistreatment, and exploitation, and ensure that they are provided with a good and stable family life. The clearly defined safeguards include, among other things, the requirement of cooperation between the licensed adoptions agencies to facilitate cross-border adoption across the countries. The Court pointed out the need to ensure that no adoption application from a foreigner is entertained directly without being processed through the requisite formalities; and that the said adoption agencies must meet the stipulated criteria and undertake specific responsibilities in ensuring the safety of foreigners adopting from India.
THE GUIDELINES ISSUED BY THE COURT
Subsequent to its consultations with the State and major child welfare agencies in the country and by examining several instruments like Articles 15(3), 24, and 39 of the Indian Constitution, the U.N. Declaration on the Rights of the Child (1959), the Indian National Policy on Children (1974), the drafts of the 1972 and 1980 Adoption of Children Bills, the Court has laid down a set of regulatory principles and procedures for safeguarding the interests of the children against abuse, mistreatment or exploitation. The most noteworthy principles based on which formed the cardinal principles behind the subsequent Government policies are as follows;
- It has to be made sure that the adoption works in favour of the best interests of the child, which is of paramount importance. Amongst the total number of adoptions processed by the RIPA, the ratio of domestic adoptions to foreign adoptions must be around 80:20, excluding the case of specially-abled children.
- It is always preferable to place a child in an in-country adoption all the while making considerations about the child‘s ethnicity and cultural background.
- While placing the child in an Inter-Country Adoption, an order of priority has to be followed while preferring Non-Resident Indians (NRIs) to Overseas Citizen of India (OCI) to Persons of Indian Origin (PIO) to Foreign Nationals.
- The child can be adopted by the citizens and habitual residents of a country that has ratified the Hague Convention on Adoption, 1993.
- The child can be adopted by the Indian nationals with their habitual residence in other countries.
THE AFTERMATH OF THE CASE
Following the ruling, several social and child welfare organizations dealing with foreign adoptions and placement of children in such adoptions represented the problems coming up in putting the principles and standards laid down in the judgment into practice, and they petitioned the Court for clarification regarding the same. In a supplementary ruling dated September 27, 1985, the Court addressed these problems, reviewed the circumstances, and reaffirmed its opinion on the subject.
● The Institutional Reforms initiated by the Government of India
In the light of the directional safeguards set by the Courts in the judgment, the Indian Government has instituted the Central Adoption Resource Agency CARA, which framed guidelines for the adoption of Indian children (1995), issued the Guidelines for Adoption of Indian Children in the year 1995. The guidelines for the first time ever brought in a comprehensive framework to regulate the inter-country adoptions. The subsequently enacted Juvenile Justice (Care and Protection of Children) Act of 2000, and the Juvenile Justice (Care and Protection of Children) Rules of 2007 together contributed to a robust procedural law on Inter-Country Adoptions in India. However, India currently lacks a comprehensive national law solely for adoption. The NGOs have been pressing the government to establish a necessary national policy for years since illegal behavior in the sphere of inter-country adoptions still persists.
SIGNIFICANCE OF THE JUDGMENT
The purpose behind issuing the guidelines was to ensure the wellbeing of children by providing them with a pleasant environment in which they could enjoy familial love. Across the years, the Supreme Court’s ruling in this case, has proven to be two things; an important precedent for guiding the subsequent judicial decisions, and an effective tool to boost the Child rights campaign in the country.
The law on ‘order of preference’ laid down by the Supreme Court in the above case was subsequently referred to and elaborated by many judgments on the subject. In Karnataka State Council for Child Welfare v. Society of Sisters of Charity, St Gerosa Convent, the Karnataka High Court had further added on to the ‘order of priority by stating that the rationale behind the principle lies in the fact that a tender-hearted child is best placed within the country so that he could retain his culture and heritage and avoid the much dreaded alien encounters. However, if the child is accepted by the foreign prospective adopters, and if an Indian family subsequently applies, then the order of priority doesn’t apply. The foreign parties would be entitled to proceed with the adoption.
The fact that a letter has been treated as a PIL makes the case an outstanding illustration of how procedural innovations in the Realm of PILs in India have resulted in relaxed rules, making the judicial system more accessible to disadvantaged sections of the society. It also emphasised the power and significance of Judicial Activism. The case gives a sense of assurance that whenever there is a legislative void with respect to a major social issue, the Supreme Court steps in un-hesitantly, ensuring that the interests of the citizens of the country are safeguarded.