The Top Court has erred

The apex court’s dismissal on July 01, 2019 of the plea to extend the protection available to both parents and children for adoptions under the JJ Act to those adoptions effected under HAMA is not just shocking and disappointing, but regressive as well.

Adoptions in India are legalized under two legislations. Any Hindu prospective adoptive parent can adopt a Hindu child from another Hindu parent under the Hindu Adoptions and Maintenance Act, 1956 – popularly known as HAMA. At the same time, any citizen of India (Hindu or otherwise) can legally adopt a child from any other citizen of India under the Juvenile Justice (Care and Protection of Children) Act 2015 by applying to the State, that refers a child to the prospective parent from a pool of children registered by the Specialized Adoption Agencies (SAA). These SAAs are regulated by the Central Adoption Resource Authority (CARA) under the aegis of the Ministry of Women and Child Development.

Adoptions under the JJ Act are highly regulated with strict provisions for who can adopt, who can be adopted, age difference between the parent and child, number of referrals and adoption friendly support mechanism like background check, home study, counseling, pre-/post adoption follow up and remedy for exceptional situations like dissolution of adoption. These provisions have evolved over time with painful deliberation by WCD Ministry, CARA and stakeholders in adoption. The checks and balances for adoptions under the JJ Act have been acknowledged to the extent that all international adoptions now happen only through the JJ Act.

In contrast, adoptions under HAMA have failed to emerge from the shadows of the yester-century. There are no checks and balances, no limit on number of referrals, no health records for the child being adopted, no financial stability diligence of the parents – sometimes even hard to prove that parents are even Hindus! This has had a catastrophic effect on the adoption eco system.

With virtually no regulation of adoptions under HAMA, the wait time for adopting a child under the JJ Act is upward of two years, while those wiling to “trade” a child under HAMA can get a child “of their choice” within days – thanks to touts, brokers, middlemen operating through the nexus of hospitals, nursing homes and midwives – as there is ZERO regulation of adoptions under HAMA. While adoptions under HAMA appear to be a quick fix, especially for the parents, but they risk the families being reduced to a nervous wreck for lack of diligence, preparation and understanding of adoption – in the long run.

World over, parents have a choice of private adoption, aka HAMA style, of adoption from the state sponsored Foster care institutions. But both require strict diligence and regulation to protect interests of BOTH parents and the Child. But in India, a legal loophole defined in the JJ Act in Sec 56(3) clearly absolves HAMA of any oversight stating that “nothing in this (JJ) Act shall apply to adoptions under HAMA. Families of Joy moved the apex court with a plea to amend Sec 56(3) of the JJ Act, so as to extend the protection available to parents and children, in the JJ Act, to adoptions effected under HAMA as well. In dismissing the plea, the court has erred on following accounts (as reported in the media)

1. The top court observed that in some religious beliefs when a man cannot have a child he goes for adoption so as to ensure proper last rites – The Court seems to be completely out of synch with the New India that is adopting children not just to ensure their last rites, but because they care for children in need. Even if former were true, there is no justification for allowing adoptions under HAMA without checks and balances that are in best interest of the family.

2. The bench observed that it cannot entertain the plea for framing of guidelines as it would amount to legislating – The Court didn’t have to legislate. It just had to provide a level playing field for adoptions under HAMA and JJ Act, asking the (CARA) Authority to frame necessary guidelines in extending the required protection.

3. The bench said that it could not interfere in existing adoption mechanism…if such mechanism encouraged trafficking then there were courts or appropriate forums which could deal with the issue – This argument is akin to suggesting that let theft happen, because there is police or jail, and hence there is no need to safeguard your premises OR let vehicles be driven recklessly, because there is insurance! It is tragic that the court pronounced that “we do not see anything wrong in it” – are they waiting for a disaster before they are able to see anything?

In dismissing the plea, the court has only emboldened the child traffickers in an already skewed adoption ecosystem in India. It has turned a blind eye to the need of the hour to offer minimum safety standards of adoption, regardless of the law, and passed the baton to the legislators to correct the anomaly.

Corrected it shall be, in due course of time, but the court could have accelerated the remedial process by nudging the Authority and the WCD Ministry in bridging the gap, rather than washing its hands off it.

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