|1.||FACTS AND PROCEDURAL HISTORY|
1984 AIR 469
FACTS AND PROCEDURAL HISTORY
Background of the case
Laxmi Kant Pandey, an advocate practising in the Supreme Court of India, wrote a letter in the form of a complaint regarding various welfare agencies and social organisations indulging in various malpractices through the adoption of Indian children by foreign parents. It was found out that the letter was based on a detailed investigation report carried out by a reputed foreign magazine called “The Mail.” It was alleged that when foreign parents adopt Indian children, they are prone to long, tedious journeys and are ill-treated by placing them in shelter homes. Moreover, they are prone to be treated as beggars and prostitutes and other sexual harassment and exploitations. This letter came to be recognized as a writ petition on 1st September 1982. A notice was issued by the Supreme Court to the Indian Council of Social Welfare, Indian Council of Child Welfare, and the Government of India to assist the court in answering the writ petition by stating the principles and rules to decide the matter of adoption by foreign parents as well as to lay down the guidelines to ensure the maximum safety and welfare of the child while being adopted to foreign countries by foreign parents.
Written Submissions and Later Developments
On 30th September 1982, the first set of reports and written arguments based on the court’s notice was submitted by the Indian Council of Social Welfare. Various essential suggestions and recommendations were laid down in the report, which the court must take care of while setting out the guidelines and rules for approving the adoption law. Many organizations like Barnes Framfoer Allt Adoption (Swedish organization), S.O.S Children’s villages of India, etc., and social welfare communities voluntarily expressed their desire to submit their reports and arguments to help the court and participate in the court’s hearing.
The writ petition was further adjourned to 9th November 1982 as the court issued an order allowing these organizations to submit their arguments. As Indian Council for Child Welfare and Indian Council for Social Welfare were already engaged in offering the adoption of Indian children abroad, the Supreme Court directed the Union of India to gather the submissions and required information from every other organization except these two.
Union of India, Indian Council for Child Welfare, and Indian Council for Social Welfare were also asked to provide the court with the names of foreign agencies that are engaged in aiding foreign parents to find Indian children.
By 9th November 1982, the Supreme Court recognised eight specified institutions and permitted them to submit of the affidavit before 27th November 1982. The State of West Bengal was asked to submit its affidavit by the Supreme Court before 9th November 1982. Also, a quarterly report regarding the orders made in the last five years in the Guardians and Wards act, 1890, entrusting the custody of Indian children to foreign parents, was asked to be submitted by the court to the Superintendent of Tees Hazari courts. The final hearing of the writ petition was adjourned to 1st December 1982. The first judgment was passed in the year 1984 followed by a supplement judgment dated 27th September 1985 stating the norms and guidelines for inter-country adoptions.
- Whether the Honourable Supreme Court should accept the writ petition or reject it in the name of no substantial law being involved considering the severity of the issue raised.
- Whether the Honourable Supreme Court should provide more laws for better clarity after affirming the fact that the laws existing with respect to inter-country adoption are not sufficient.
Guardians And Wards Act
Certain rights and duties of the guardian are covered under the Guardians and Wards Act of 1890.
Section 7 gives the court the authority to issue a guardianship order. According to this clause, the court may appoint guardians for the benefit of minors. A guardian will be able to look after the minor and their belongings. The court may terminate any guardian. The court can also remove the guardian who is chosen by the court
Section 8 of this act discusses the child’s welfare and states that the child’s welfare should be the primary motive for adoption. The procedures and norms to be followed in the matter of adoption to safeguard the children’s rights were stated in this act.
Section 9 of the Guardians and Guardians Act 1890 gives the court jurisdiction to consider the application. If the application concerns the guardianship of a minor, the court in which the minor’s guardian resides enjoys jurisdiction.
If the application involves the property of a minor, the district court may have jurisdiction either where the minor lives or where the property is located.
Section 11 outlines the application qualification process. This provision states that the court will set a preliminary hearing once it is convinced of the basis for the proceedings. The notification was sent as the C.P.C. (Civil Procedure Code 1908) authorized.
Section 17 lists factors to take into account when choosing a guardian. The court will decide based on the minor’s interests, development, and overall case conditions. In accordance with section 17 (5) of the statute mentions that the court cannot appoint a guardian contrarily or oppose the minor’s wishes.
Section 26 concerns excluding the minor from its ambit. If the child disappears from or is separated from the possession of guardians whom the court appoints, then the court will issue an order for the return of the ward to the guardians.
Article 14 of the Indian constitution discussed equality before the law and equal protection of the law. Clause (3) of Article 15 is an exception and states that special provisions can be made for children and women. Article 15 was brought to light in this case.
Article 24 abolishes child labour and states that children under 14 should not be made to work in hazardous industries, mines, or factories. This article discussed the importance of child welfare and safeguarding them from being exploited in this case.
Article 39(e) and (f) mention that the state is required to guide its policies towards ensuring that young children are not molested and that they are not coerced into careers that are out of character for the children’s age, ability, and capacity to grow in a positive way out of financial necessity.
CARA- Central Adoption Resource Authority
It is a legislative body with the authority to oversee and control both domestic and international adoptions of Indian children. It serves as the coordinating body for such adoptions. With its affiliated, reputable adoption agencies, CARA deals with the adoption of orphan, abandoned, and surrendered children. The parents who want to adopt a kid must be authorised by a social organisation or child welfare organisation approved by the nation’s government where the international pair lives. It is a legislative body with the authority to oversee and control domestic and international adoptions of Indian children. It serves as the coordinating body for such adoptions. With its affiliated, reputable adoption agencies, CARA deals with adopting orphan, abandoned, and surrendered children. The parents who want to adopt a kid must be authorized by a social organization or child welfare organization approved by the nation’s government where the international pair lives.
The adoption of children is a concept that has existed in Indian culture since time immemorial. The importance placed on having a “firstborn son” in Hinduism resulted in the notion of adopted sons to conduct family rituals and rites. The established prevalence of adoption in India has ensued in drafting laws, such as the Hindu Adoption and Maintenance Act 1956, to ensure that the adoption process is overseen by agencies entrusted with regulating it. However, the pre-existing adoption laws failed to foresee inter-country adoption’s emergence.
Inter-country adoption is a way of adoption that developed due to the improved connectivity of countries with the advent of technology and better transportation methods. It allowed foreign parents to adopt underprivileged children from other countries, usually from countries with lower economic statuses, to provide them with a better life and opportunities. The United Nations validated it in the Draft Guidelines of Procedures Concerning Inter-Country Adoption in 1981. It was seen as a method to ensure that the underprivileged children would receive a congenial environment to grow up in, as they would with their biological parents. Though the thought behind the idea was noble, the lack of regulations made it susceptible to human trafficking, wherein the system in place would be misused. Thus, many children who underwent the process of inter-country adoption would end up getting trafficked and subjected to inhumane living conditions, a stark contrast to the life they were promised.
The case of Laxmi Kant Pandey vs Union of India, which shed light on the severe lack of regulations surrounding inter-country adoption and the need for a legal framework to protect the rights of the adopted children, saw the judiciary take part in judicial activism to ensure that the process of inter-country adoption from India would be as shielded from malicious activities as possible. This was done by ensuring that every step of adoption from India would be precise and regulated.
In the judgment for Laxmi Kant Pandey vs Union of India, the Supreme Court laid out guidelines for inter-country adoption. It thus ushered in a new era concerning adoption in India, wherein the government had till then not taken much cognisance of the lack of guidelines regarding inter-country adoption. The judgment, which was delivered by a three-judge bench headed by Justice P.N Bhagwati, recognised the lack of safeguards with respect to inter-country adoption and chose to formulate a detailed set of guidelines to ensure that the adoption of children from India by foreign guardians would only occur under exceptional circumstances, and only if it was deemed that the children were adopted in a hospitable environment, similar to what they would ideally receive from their biological parents.
The bench made one explicitly clear: adopting the child would put the child’s welfare first and foremost. This was in conjunction with the United Nations Declaration of the Rights of the Child, where a child’s right to be loved and grow up in an environment where they can receive the affection they deserve was recognised. The judgment stated that the primary focus of the adoption agencies should be to ensure that the child could be reunited with its biological parents, as the care provided by the child’s biological parents would be the ideal environment for the child to grow up in. To ensure this, the adoption agencies should take the necessary steps to track the biological parents and attempt to reunite the child with them. If needed, social service agencies can facilitate these families in reuniting as, in many instances, the children may be given up by their parents due to financial difficulties or mental incapacity to take care of the child. Only if all attempts by the social service agencies fail after 3 months can the adoption agencies move to the next step: aiding the adoption process of the child domestically
The court noted that, as the welfare of the children is what is essential, the next best step other than reuniting the children with their biological parents would be to find adoptive parents for the child in India, as they would thus grow up in the same environment that they are familiar with and would not have to deal with the stress of adapting to a new country’s culture and norms at their tender age. Securing adoptive parents from the native country would be done for two months. At that point, if the child has not been adopted domestically, the adoption agencies will allow applications for inter-country adoption.
As there is no statutory enactment in India providing for the adoption of a child by foreign parents or laying down the procedures to be followed in such cases, the court has instructed that the provisions of the Guardian and Wards Act 1890 should be used to facilitate such adoption. This act provides for the appointment of a guardian by a court for the care of a minor or a person of unsound mind.
In the guidelines issued for foreign adoption in the country, the apex court stated that all applications from foreigners seeking to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner resides. It is important to note that social welfare agencies in India working in inter-country adoption or institutions where the juvenile court commits children should not entertain applications directly from foreigners. The bench also emphasised the child’s age’s importance in inter-country adoption cases. The court has stated that a child should be adopted before the age of three in such cases, allowing the child to assimilate more easily into the new environment and culture.
The process for foreign adoption of Indian children involves applying to the court for appointment as guardian, with notice sent to a child welfare agency. The agency must be licensed and maintain a register of children proposed for adoption. The court must be satisfied that the child is legally available for adoption, and the application must be sponsored by a recognised agency in the foreigner’s country of residence.
The judgment in Laxmi Kant Pandey vs Union of India was instrumental in ensuring that inter-country adoption would not fall victim to malpractices like human trafficking and thus helped secure the rights of adopted children in India. Following the judgment, the Government of India instituted the Central Adoption Resource Agency (CARA). CARA serves as a centralised source of information for monitoring both domestic and international adoptions.
This judgment also influenced the creation of the Juvenile Justice (Care and Protection) Act 1986, revised in 2000. This new legislation considered the provisions of the United Nations Convention on the Rights of the Child and other pertinent international treaties. The law adopted a child-centric approach, ensuring that children requiring care and protection receive appropriate care, protection, treatment, and rehabilitation.
Though no formal legislation was enacted to solely overlook the process of inter-country adoption in India, the precise nature of this judgment has ensured that the scope for malpractices with the process of inter-country adoption has decreased gradually and has thus made the process more secure and favourable for the adopted children and the foreign guardians.
The case of Laxmi Kant Pandey v. Union of India was and will serve to be the landmark judgement not only for the statutes and amendments that the judgment brought in but also from a petition letter turning into a writ petition. The significance is that the modification of the judgement in 1987 clarified the guidelines. This case also became sensational, starting from one petitioner, i.e. a litigator of S.C., to six petitioners filing six applications. Also, how Indians and other executives came to know about the scam of illegal sale of babies under the cap of Inter-country adoption. This case is considered one of the substantial ones as it not only dealt with exploitation or trafficking that happens in adopting Indian Children by foreigners but also explained how the guidelines and provisions are to be followed. This was due to population restraint and various policies like the one-child policy by developed countries. So this increased the scope for various illegal and non-reputable adopting agencies that sell Indian children for reasonable sums, and the adopted child ended up as a beggar and prostitute. The case will serve and is serving a scrutinised adoption procedure to adopt Indian children, which will create fear in the minds of illegal or profit-making adoptive agencies.
The case of Laxmi Kant Pandey vs Union of India brought in the most productive and safe guidelines and procedures like the three to five-tier adoptive process. Starting from whether the adoptive parents can care for the child to create a fixed deposit for the adopted child. The court also ensured that the child being adopted would be able to adapt to the surroundings and culture of the adoptive country and the people around. The other significant outcome of the judgment is how the maintenance of registers by the Social Welfare Department of India and the Embassy of the country the child is being adopted to keep an eye on the address and other details of the adopted kid from time to time ensure the safety kid. Then the modified judgment also solved and provided remedies for a quick adoption process yet a safer one as there was a delay in inter-country adoption. The big question is whether the judgment is efficacious on inter-country adoption. This case also served as an inevitable precedent that led to the introduction of the Central Adoption Resource Agency (CARA) and later following a few more judgments leading to the Juvenile Justice (Care and Protection of Children). Also, the statistics show that during the past four years, close to 2,134 Indian children have been adopted by parents from five countries.
This case is an excellent illustration of how procedure development in public interest litigation has eased standing limitations in India, leaving the judicial framework more accessible to disadvantaged members of society. It also serves as an illustration of the Indian Supreme Court’s judicial activism. The Supreme Court did not think twice about setting specific instructions to control adoptions and safeguard kids from prostitution and enslaved labour when faced with a legislative gap on a significant social concern. In totality, talking about inter-country adoption is like a double-edged sword with advantages and disadvantages On the one hand, international adoption may be a lifeline for kids who have been abandoned, orphaned, or abused. It may give kids’ devoted families access to higher education and superior medical care. It can also allow escaping poverty, prejudice, and other harsh conditions.
Conversely, international adoption may be troublesome if not conducted ethically and openly. The global adoption system has seen child trafficking, corruption, and abuse. Additionally, some critics contend that international adoption may contribute to exploiting marginalised people and perpetuating system imbalances.
- The Hindu Adoptions And Maintenance Act, 1956, No. 78, Act of Parliament, 1956 (India).
- Laxmi Kant Pandey v. Union of India, 1987 AIR 232.
- UN General Assembly, Declaration of the Rights of the Child, 20 November 1959, A/RES/1386(XIV).
- The Guardians And Wards Act, 1890, Act No. 8 Of 1890.
- The Juvenile Justice (Care and Protection of Children) Act, 2000, No. 56, Act of Parliament, 2000 (India).
- UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
Series, vol. 1577, p. 3.
This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.