Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Shabnam Hashmi vs. Union of India & Ors
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
FACTS:-
The petitioner has moved before the court under Article 32 of the Constitution to recognize the right to adopt and to be adopted as a fundamental right under Part-III of the Constitution with the alternative prayer to lay down optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc. and further for a direction to the union government to enact an optional law the prime focus of which is the child with considerations like religion etc. taking a hind seat.
ISSUES:-
Following points are before the court which require consideration–
- Whether the right to adopt and to be adopted is a fundamental right under Part-III of the Constitution.
- Whether there is need of optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc.?
JUDGMENT:-
The supreme court at the outset dealt with the issue of optional guidelines and remarked that 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 v. Union of India (1984) 2 SCC 244 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’). That apart, 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.
Court further observes that JJ Act, 2000 in force as on date, replaced the Juvenile Justice Act, 1986 (hereinafter for short ‘the JJ Act, 1986’) which dealt with only “neglected” and “delinquent juveniles”, and introduced a separate chapter i.e. Chapter IV under the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection. 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 organization.
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, instead, follow what he comprehends to be the dictates of the personal law applicable to him. 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 Court says 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.
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, Court does 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 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 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 Court 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 the Court observes that there is hardly any 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.
HELD:-
Right of child to be adopted and that of prospective parents to adopt is not fundamental right under Article 21 of the Constitution. Elevation of this right to the status of fundamental right will have to await dissipation of conflicting thought processes in this sphere of practices and belief prevailing in country.
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