Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Laxmi Kant Pandey Vs. Union of India (UoI) and Anr.
AIR1986SC272, 1985(Supp)SCC701
Hon’ble Judges/Coram: P.N. Bhagwati, C.J., A.N. Sen and R.S. Pathak, JJ.
Decided On: September 27th, 1985
FACTS:-
This writ petition was initiated on the basis of a letter addressed by the petitioner complaining of malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. This Court delivered a judgment on February 6th, 1984, discussing the various problems relating to inter-country adoption and formulating the normative and procedural safeguards to be followed in giving an Indian child in adoption to foreign parents. Some of the social or child welfare agencies engaged in placement of children in inter-country adoption felt that there were certain difficulties in implementing the principles and norms laid down by the Supreme Court and various applications were made by them. These applications were disposed in this common judgment.
ISSUE:-
Whether there are any difficulty in implementing the principles and norms laid down by the Supreme Court which warrant the consideration of the court?
JUDGMENT:-
The scrutinizing agency involved in the case of child adoption must be an expert body having experience in the area of child welfare and it should have nothing to do with placement of children in adoption for otherwise objective and impartial evaluation may not be possible. Therefore, a placement agency should not be appointed as a scrutinizing agency. The social or child welfare agency sponsoring the application should in in the event of disruption of the family of the foreigner before adoption can be effected give intimation of this fact to the Indian Embassy or High Commission and the Indian Embassy or High Commission should also be kept informed about the whereabouts of the child.
The scrutinising agency should not be asked to make any inquiries before a child is offered in adoption to a foreigner or a petition for appointment of a foreigner as guardian is filed in the Court. The primary responsibility for ensuring that the child is legally free for adoption must be of the social or child welfare agency processing the application of the foreigner. The scrutinising agency has a vital role to play to assist the Court in coming to the conclusion whether it would be in the interest of the child to be given in adoption to the foreigner. Recognition to a social or child welfare agency must be given by the Government only after considering whether such agency enjoys good reputation and is known for its work in the field of child care and welfare and whether it has proper staff with professional social work experience. The social or child welfare agency should place before the court material stating what efforts have been made to trace the biological parents and what the circumstances were under which the child came into its possession. The Court may employ the scrutinising agency to check the veracity of the claims so made. Scrutinising agency should adopt a sympathetic and sensitive approach with in-depth understanding of the dynamics of human behaviour.
Children who are found abandoned should be brought before Juvenile Court. In States where there is no Children Act, such children should be referred to the Social Welfare Department. This procedure should be completed at the latest within three months. When children are selected for adoption, release orders should be passed expeditiously. No court in a State will entertain an application for appointment of a foreigner as a guardian of a child brought from another State, if there is a Government of India recognized social or child welfare agency in that other State.
The foreigner shall submit progress reports of the child quarterly during the first two years and half yearly for the next three years. However, the Court may not emphasize on strict observance of this requirement after adoption. If the social or child welfare agency fails to submit progress reports, the Court can in future decline to entertain any application for guardianship where the foreigner seeking appointment as guardian is sponsored by such social or child welfare agency.
For a representative of a social or child welfare agency, certain parameters have to be laid down. Firstly, the representative should be Indian with a degree or diploma in social work coupled with experience in child welfare. Secondly, the representative should be acting for only one foreign social or child welfare agency. It would also be desirable to limit the sphere of operation of the representative to a particular geographical area. The representative should have power of attorney to act in India on behalf of the foreign social or child welfare agency and he should also have authority to operate banking accounts in the name of the foreign social or child welfare agency with the permission of the Reserve Bank of India. The representative should not be permitted to go scouting for children or to receive children directly from parents. He should be recognized by the Central Government and should comply with all the above mentioned conditions. A foreigner may also approach a recognises social or child welfare agency in India through a Government owned/operated social or child welfare agency in his country.
Certificates, declarations and documents submitted by the foreigner should be notarized by the Notary Public and the signature should be duly attested either by an Officer of Ministry of External Affairs or Justice or Social Welfare of the country of the foreigner or by an officer of the Indian Embassy or High Commission or Consulate in that country. While making an order for appointment of a foreigner as guardian, asking for a deposit or a bond should be left to the Court’s judicial discretion. His execution of a bond would ordinarily be sufficient. Ordinarily, it would be sufficient to take the bond from the representative of the foreign social or child welfare agency in India or to insist on the bond being executed by the foreigner in favour of the Indian Diplomatic Mission abroad.
Where it is not possible for the foreigner to complete the adoption process within two years, an application should be made to the Court for extension of time. Notice of the application for guardianship of child should in no case be published in the newspapers. When the Court makes an order appointing a foreigner as a Guardian, the Court should look into the question and sanction the amount to be paid by the foreigner to the social or child welfare agency by way of reimbursement of maintenance expenses. Surgical or medical expenses are also recoverable. The social or child welfare agency is also entitled to recover costs incurred in preparing and filling the application and prosecuting it in Court. Proceedings for appointment of guardian of the child must be disposed within two months from filing of the application.
The Court need not insist on the foreign parents or even one of them coming down to India for the purpose of approving the child. Before any application of a foreigner for taking an Indian child in adoption is considered, every effort must be made to find out placement for the Indian child by adoption in an Indian family. Whenever an Indian family approaches a recognized social and child welfare agency for taking a child in adoption, facilities must be provided to the Indian family to have a look at children available for adoption and if the family wants to see the child study report, such report should be made available to the family. One way in which adoption by an Indian family can be facilitated is by setting up a Centralized agency in a State or in a large city. Where there is a voluntary Co-ordinating agency or any other Centralized agency which maintains a register of children available for adoption as also a register of Indian adoptive parents, it would be enough to wait for a period of three to four weeks. When it is not possible to find an Indian family to adopt, the first priority should be given to Indians residing abroad and then to adoptive couples where at least one parent is of Indian origin.
HELD:-
In order to remove any confusion with respect to implementation of the Guidelines laid down by this court in its earlier judgment dated February 6th, 1984 must be given effect as per the Judgment of this case.
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