Laxmikant
Pandey Vs. Union of India & Ors [1991] INSC 196
(14 August 1991)
Misra,
Rangnath (Cj) Misra, Rangnath (Cj) Kania, M.H. Kuldip Singh (J)
CITATION:
1992 AIR 118 1991 SCR (3) 568 1991 SCC (4) 33 JT 1991 (3) 582 1991 SCALE (2)321
ACT:
Constitution
of India, 1950--Article 32--Writ by child
welfare agencies--Indian children--Adoption--Procedures laid down in (1984) 2
SCR 795--Modification.
HEAD NOTE:
The
writ petitioners---some of the licensed welfare agencies contemplated under the
judgment of this Court in (1984) 2 SCR 795, and petitioner No. 2, the Central Volun-
tary Adoption Resource Agency prayed that-the Indian chil- dren adopted to he
allowed to retain their citizenship till they attain the age of majority; that
birth certificates to be issued based upon attested copies of Court's
certificate (decree), adoption deed or affidavits of the officials of the
licensed agencies; that quota fixed for placement of children with Indian
families he quashed; that show cause notice he issued before cancellation of
registration/ li- cence to the registered agency; that setting up of Central
Adoption Resource Agency be stayed; that to enable the agencies to maintain
high standards of care for the chil- dren, expenses by about 25% be revised and
annual escalation of 10% be made; and that transfer of children from Statutory
homes to recognised agencies for placement he allowed.
Partly
allowing the writ petition, this Court,
HELD:
1. If the Indian citizenship is allowed to contin- ue until the adopted child attains
the age of majority, it would run counter to the need of quick assimilation and
may often stand as a barrier to the requirements of the early cementing of the
adopted child into the adoptive family. [574G-H]
2. The
birth certificate of the adopted child be ob- tained on the basis of
application of the society sponsoring adoption. On the basis of the application
and such other material which may he relevant to he found in an affidavit to
accompany the application made by a responsible person belonging to the agency,
the local magistrate should have the authority to make an order approving the
particulars to he entered in the birth certificate and on the basis of the
magisterial order the requi- 569 site certificate should be granted. This
process should be done only after adoption is finalised and the particulars of
the adopting foreign parents are available to be included.
The
Chief District Medical Officer (CDMO) may be involved in the matter of
ascertainment of the age and the magistrate may ordinarily act on the
certificate granted by the CDMO. [574H-575D]
3.
Registered societies to entitle themselves for renew- al of registration of licence
should exhibit their involve- ment in the process of adoption and the authority
should have evidence to satisfy that the agency is really involved in the
activity. [575G]
4. The
licensing authority should ordinarily ensure that the registered agency has
proper child care facilities so that an agency which does not have such
facilities may over a period of years go out of the field. [575E] 5.In the
event of registration/licence being proposed to be cancelled, an opportunity
should be granted to such agency. That would answer the requirements of natural
jus- tice and would uphold a healthy scheme of administration. [575H-576A]
6. The
setting up of CARA is justified. Such an institu- tion would be an organisation
of primacy and would work as a useful agency in the field. Although there
should be no keen competition for offering adoptions, regulated competition may
perhaps keep up the system in a healthy condition.
Existence
of CARA in that field is, therefore, welcome. [576A-B]
7.
Keeping in view the general rise in cost of living an escalation by 30% is
allowed. The matter may be reviewed once in three years so far as escalation of
expenses is concerned. [576C-D]
8.1.
The children, who can be transferred for the pur- poses for placement,-would be
those, whose parents are not known, orphans and perhaps those who are declared
as aban- doned children. The homes are not set up in several States and areas.
Even Juvenile Boards have not been properly functioning and the recognised
agencies do not have the facility of child care. In these circumstances to
order transfer of children from statutory homes to recognised agencies can
indeed nOt be accepted as a rule. [576D-F] 570
8.2.
As and when such a request is received from recog- nised agencies, the Juvenile
Court or the Board set up under the Act may consider the feasibility of such
transfer and keeping the interest of the child in view, the possibility of an
adoption within a short period and the facilities available in the recognised
agency as also other relevant features, make appropriate orders. A
strait-jacket formula may very often be injurious to the interest of the child.
[576F-G]
ORIGINAL
JURISDICTION: Criminal Misc. Petition Nos. 5704 and 8842 of 1990.
IN
Writ Petition (Crl.) No. 1171 of 1986.
(Under
Article 32 of the Constitution of India).
Altaf
Ahmed, Additional Solicitor General, A.S. Nambiar, Laxmi Kant Pandey in-person,
Ms. A. Subhashini, Ms. Niranja- na Singh, Ms. Shanta Vasudeva, P.K. Manohar,
K.R. Nambiar, Jagdeep Kishore, T.V.S.N.-Chari, Ms. Suruchi Aggarwal, Ms. Manjula
Gupta, Bharati Reddy, Ms. Kusum Choudharv, Ms, Bina Gupta, Ms. Monika Mohil, Ms.
Vandana Saggar, Gopal Singh, A.S. Pundir, Manoj Swarup, V. Krishnamurthy, Ms.
H. Wahi, B.B. Singh, D.N. Mukherjee, P.H. Parekh, Ms. Chandan Rama- murthi, Ms.
Kamini Jaiswal, R.K. Mehta, Ms. Urmila Kapoor, M. Veerappa, Uma Nath Singh,
A.S. Bhasme, Kailash Vasdev, G. Prabhakar, S.K. Bhattacharya, R.S. Suri, Ms. S.
Dikshit, Prabir Choudhary, K. Swamy, Aruneshwar Gupta, Ms. M. Karan- jawala,
H.K. Puri and Ms. Rani Chhabra for the appearing parties.
The
following Order of the Court was delivered:
In Laxmikant
Pandey v. Union of India, [1984] 2 SCR 795 this Court laid down the procedure
to be followed in adop- tion of children by foreigners. The Court observed the
fact that children are a supremely important national asset and the future
well-being of the nation 'depends upon' how the children grow and develop. It
quoted with approval the report of the Study Team on Social Welfare where it
was said:
"The
physical and mental health of the nation is determined largely by the manner in
which it is shapped in the early stages." 571 This Court also quoted with
approval from the National Policy for the Welfare of Children where it was Said:
"The
nation's children are a supremely-impor- tant assets. Their nurture and
solicitude are our responsibility. Children's programme should find a prominent
part in our national plans for the development of human resources, so that our
children grow up to become robust citizens, physically fit, mentally alert and
morally healthy, endowed with the skills and motivations needed by society.
Equal opportu- nities for development to all children during the period' of
growth should be our aim, for this would serve our larger purpose of reduc- ing
inequality and ensuring social justice." Thus saying, this Court laid down
the procedure to be followed and while doing so, the CoUrt referred to recog- nised
child welfare agencies and provided for their licens- ing or registration by
the Central Government. Petitioners in this application' are some of the
licensed welfare agen- cies contemplated under the judgment of this court and
petition no. 2 is the Central Voluntary Adoption Resources Agency which is a
coordinating unit based at Delhi.
In
these applications petitioners have made the following prayers:
(a)(i)
All GOvernment/juvenile homes, nursing homes and hospitals--Government or
private, will apply for declaration of a child as abandoned and free for
placement and if the parents of the child are not known, such children should
be transferred to the-recog- nised institution/placement agency as request- ed
for by them within a fixed time frame;
(ii)
all recognised placement agencies 'de- pending upon their capacity to
accommodate and care for those children after accounting for their age and
qualification should be allowed to seek transfer of those children ,from
Government/juvenile courts and nursing 'homes/hospitals and such institutions
should be obliged to transfer the children such placement agencies;
572
(iii) Juvenile Welfare Boards/Courts should allow the aforesaid transfers in favour
of the recognised agencies for rehabilitation through guardianshiP/adoPtion
from VCAs/ CVARAS or otherwise;
(iv)
Juvenile Welfare Boards/Courts should not disturb the custody of children
abandoned directly with the recognised placement agen- cies when approached for
declaring them as abandoned and free for placement and such orders may be
passed ex- parte and confirmed after notice to the concerned parties;
(b)(i)
Quota fixed by the Central Government for placement of children with Indian
families may be quashed as being contrary to the deci- sion in Laxmikant Pandey's
case;
(ii) in
the alternative, if this Court upholds the validity of the circular fixing the
quota, the percentsge may be suitably reduced;
(iii)
this court may direct that if the quota is to be fixed, children with
handicaps, medical problems and other drawbacks should be excluded from the
total count as also girls above one year and boys above two years of age should
be exclude from counting;
(c)
The State Governments and the various Union Teritories should be directed to
issue birth certificates based upon attested copies.
of
court's certificate (decree), adoption deed or on the basis of affidavits of
officials of the licensed agencies;
(d)
This Court may approve by way Of revision of expenses by about 25% with effect
from the date of the application and another 10% in- crease annually to enable
the agencies to maintain high Standards of care for the chil- dren;
(e)
The Indian children adopted abroad or to be allowed to retain their
citizenship/nation- ality till they attain the age of majority.
wherever
they should exercise their option one way or the other;
(f)(i)
The Central Government should be di- rected to act 573 by itself or through the
State/Union Territory Governments to issue show cause notice before refusing to
extend recognition arid grant personal hearing before taking official action
and reasoned orders should be made in support of such action;
(ii)
In the "event of cancellation of recogni- tion, a time frame should be
fixed to clear all the cases already in the pipeline for being processed;
(ii)
An appellate authority should be pre- scribed for challenge of governmental
action as stated above;
(g)(i)
The Court may direct stay of governmen- tal action in the matter of setting up
of Central Adoption Resource Agency (CARA) and ultimately hold that there was
no longer any need for such as agency in view of the fact that many private
agencies were not available to monitor the programme.
Notice
was ordered on these petitions on September 21, 1990, and these several months
that have followed have been taken by different State Governments and Union
Territories and others to place their affidavits for consideration of this
Court.
We
have heard counsel for the appearing parties at length. Before we deal with'
several prayers placed before the Court for consideration it is perhaps
necessary 'to refer to the provisions of the Children's Act of 1960 and the
Juvenile JUstice Act of 1986. The' scheme of these two Acts is not very
different. The-definitions of. 'neglected child' and 'neglected juvenile' is absolutely'the
same. The mechanism for:administering the statutes is also more or less the
same. Under section 4(1) of the Children's Act, a Child Welfare Board is
intended to take charge of neglected children. Under s. 4(1) of the Juvenile
Justice Act, a Welfare Board for the neglected juveniles is similarly
contemplated. Sub-sections (3) and (4) of either Act autho- rise 'the Board to'
function as a Bench of Magistrates and confers on such Board certain powers
under Criminal Proce- dure Code conferable on a Metropolitan Magistrate or a
Judicial Magistrate of the First Class. Section 9 of the Children's. Act
contemplates of Children's Homes and de- tailed provisions have been made in
the matter of setting up of such homes and management thereof. Section 11 contem-
plates of Observation Homes. Chapter III deals with neglect- ed children.
574
Under Chapter II of the ACt of 1986 provision has been made for. setting up of
Juvenile Homes (s. 9), Special Homes (s.
10) and
Observation Homes (s. 11). Both the Acts provide.
for
After Care organisation.
Though
these, two statutes in recognition of the impor- tance of children to society
have made these beneficial provisions, nothing concrete and substantial appears
to have been done yet for implementing either statute in a serious way. The
Children's Act has been operative for more than 30 years while the Act of 1986
is in force for about five years. Yet most of the-provisions in the two statutes
are still to be worked out in a real way.
The
Union of India has set up a Department of Women and Child Development and most
of the States and Union Territo- ries have corresponding departments, ,yet full
coordination has not been achieved. The responsibility of administering the two
statutes is not properly shared. Monitoring seems to be very much wanting.
In
course of hearing of this petition we asked learned Additional Solicitor
General appearing for the Union Govern- ment to tell us as to what happens to
the children--both boys and girls--who are lodged in the Homes when they cease
to be children under the statute. It may be pointed out that under the
Children's Act boys Upto 16 and a girl upto 18 years come within the definition
of "child". If 'children' within the meaning of the. term are lodged
in various, types of homes indicated in the two statutes what exactly happens
to them when they cease to be children by passing of time has remained an,enigma
in the absence of a clear answer.
Obviously
no provision has been made in these two Acts to meet such a situation. Is it
the intention of the stautes then that once a boy. Or girl ceases to be a
child. and does not come within the purview of the stautes he/she would have,
to be thrown out from the home on to the street-as no more cared for? What then
would be the effect of such a situation? Since that is not very relevant for
disposing of this petition, we do not intend to proceed with that aspect any
longer.
We are
inclined to keep the handicapped children out Of the purview of the judgment of
this Court. We do not, howev- er, agree that Indian citizenship should continue
until 'the adopted child attains the age of majority and is legally competent
to opt. Such a step ,would run counter to the need of quick assimilation and
may often stand as a barrier to the requirements of the early cementing of the
adopted child into the adoptive family. In regard to the issue of the birth
certificate 575 of the adopted child we are of the view that such certifi- cate
should be obtained on the basis of application of the society sponsoring
adoption. In most of these cases the registration of birth may not be available
because that would not have been done. We are of the view that on the basis of
the application and such other material which may be, relevant to be found in
an affidavit to accompany the application made by a responsible person
belonging to the agency the local magistrate should have the authority to make
an order approving the particulars to be entered in the birth certificate and
on the basis of the Magisterial order the requisite certificate 'should be
granted. This process should. be done only after adoption is finalised and the
particulars of the adopting foreign parents are available to be inclined. There
is no point in having two birth certifi- cates, one before the child is placed
for adoption and another when adoption is completed. If the procedure for
taking out a birth certificate is deferred until adoption is finalised the
certificate can be obtained once for all. We are of the view that the 'Chief
District Medical Officer (CDMO) may be involved in the matter of ascertainment
of the age and the magistrate may ordinarily act on the certificate granted by
the CDMO.
We
gather that many of these agencies have indeed no child care facilities. In the
event of such facilities not being available maintaining children in hygienic
condition and in an environment which would be healthy for the chil- dren's
growth and mental development would indeed be diffi- cult. The licensing
authority should ordinarily ensure that the registered agency has proper child
care facilities so that an agency which does not have such facilities may over
a period of years go out ,of the field.
The
affidavit of the Union Government indicates that it never intended to fix any
quota for the purpose of allowing renewal of registration or licence. In view
of the clear statement in the affidavit we must hold that it is not the policy
of the Government of India require the agency to satisfy the condition of any
quota. In fact the Government of India's circular letter is intended to emphasise
on the -feature that registered societies to entitle themselves for renewal of
registration or licence should exhibit their involvement in the process of
adoption and the authority should have evidence to satisfy that the agency is
really involved in the activity, We would accept the stand taken by the
petitioner that in the event of registration/licence being proposed to be
cancelled, an opportunity should be granted to such agency.
That
would answer the 576 requirements of natural justice and would uphold a healthy
scheme of administration. We have not been able to see any.
positive
justification for opposition to the setting up of CARA. Such an institution
would be an organisation of prima- cy and would work as a useful agency in the
field. While we agree that there should be no keen, competition for offering
adoptions, regulated competition may perhaps keep up 'the system in a healthy
condition. Existence'of CARA in that field is, therefore, welcome. We do not
agree with the stand of the petitioner that the scheme envisaged by the main
judgment Should be altered in this regard.
The
judgment laid down a scale of expenses to be recov- ered by the agency-offering
placement for maintaining the child from the adoptive parents. There was some
modification in 1986. Keeping in view the general rise in cost of living we are
prepared to allow escalation of 30%. We do not, however, agree to an escalation
of 10% every year. The matter may be reviewed once in three years so far as escala-
tion of expenses in concerned.
Only
one aspect is left for consideration and that is the petitioner's prayer for
transfer of children from statu- tory homes to recognised agencies for
placement. The chil- dren who can be transferred for such purposes would be
those whose parents are not known, orphans and perhaps those who are declared
as abandoned children. We have. pointed out already that the homes are not set
up in several States and areas. Even Juvenile Boards have not been properly
function- ing and the recognised agencies do not have the facility of child
care. In these circumstances to order transfer of children from statutory homes
to recognised agencies can indeed not be accepted as a rule. We are prepared to
observe that as and when such a request is received from recognised agencies,
the Juvenile Court or the Board set up under the Act may consider the
feasibility of such transfer and keep- ing the interest of the child in view,
the possibility of an adoption within a short period and the facilities
available in the recognised agency as also, other relevant features, make
appropriate orders. A strait-jacket formula may very often be injurious to the
interest of the child.
This
order disposes of the petitions.
V.P.R.
Petition Partly al- lowed.
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