The Union Cabinet on Wednesday gave its nod for amendment in the Juvenile Justice (Care and Protection of Children) Act, 2015 to introduce measures for strengthening the child protection set-up to ensure the best interests of children. The Cabinet approved the proposal from the Ministry of Women and Child Development (WCD) for amendments seeking authorization to the District Magistrate, including the Additional District Magistrate, to issue adoption orders under Section 61 of the JJ Act, in order to ensure speedy disposal of cases and enhance accountability. What may appear as a relief for adoption orders pending for months in Court, is yet another left or right turn that prevents us from walking straight towards our goal. We need to understand the adoption process in a little more detail to uncover the aberration.
Adoptions in India are carried out under the Hindu Adoptions and Maintenance Act, 1956 popularly known as HAMA and the Juvenile Justice (Care and Protection of Children) Act, 2015, known as the JJ Act. Under HAMA, any Hindu parent can adopt a Hindu child from another Hindu parent, without any due diligence, checks or balances or even an adoption process defined. There isn’t any requirement to even create an adoption deed, and adoption order from any court or authority. There is absolutely no paper trail demanded or prescribed. No wonder, HAMA is being abused to traffick thousand of children in meeting demand of tens of thousands of parents wanting to adopt a child.
On the other hand, any citizen of India (including a Hindu) can apply to the Central Adoption Resource Authority (CARA) to adopt a child from 450 plus Specialized Adoption Agencies (SAA) that keep children in their care. There is a well defined process to accept a child, prepare its child study report, medical history, establish the eligibility of parents to adopt, define the age gap between the child and the parent, counsel the parent, offer legal and medical support to the parents etc.
Sec 58 of the JJ Act further lays down that
(3) On the receipt of the acceptance of the child from the prospective adoptive parents along with the child study report and medical report of the child signed by such parents, the Specialised Adoption Agency shall give the child in pre-adoption foster care and file an application in the court for obtaining the adoption order, in the manner as provided in the adoption regulations framed by the Authority.
(4) On the receipt of a certified copy of the court order, the Specialised Adoption Agency shall send immediately the same to the prospective adoptive parents
This provision is completely an overhead, because for adoptions under CARA all the due diligence has already been carried out, and the matter put before the Court is non-adversarial in nature. Meaning, there aren’t two sides to the litigation, and the case is decided purely on merits and records presented by one side, in this case the SAA. The court therefore does not add any value to the process, rather often impedes the process. As the merits of the case are largely decided upon by the documents put before the Court, and not really any argument or plea of competing lawyers, any sensible person can arrive at a logical decision with those documents. Even a high school student could do that.
CARA has often gone on record in alluding to the pain and effort invested in educating and sensitizing the judiciary, to expedite adoption orders. The delay in adoption order was not as much to the process or backlog, as to the sheer lack of understanding of the nuances and aspects related to adoption. Judges were seen ignorant of the role of DCPU, CWC, SAA, and this delayed the orders. There have been several cases where “honourable” judge (yes, judiciary loves that title and privilege for that title) would demand extraneous personal information from the parents, would not be convinced about humble background of the parents, revalue their eligibility based on popular perception, rather stereotype, or mandate parents to donate certain sums to the adoption agencies – against blatant provisions of JJ Act itself. The delays in issue of adoption order is not purely on account of workload or pending cases. Judges would delay adoption hearings, because they did not understand the nuances, because adoption cases aren’t “lucrative” for their career, or because they would require understanding a domain that they rarely came across. To replace or augment the Courts with DMs, isn’t going to address these challenges. Rather, it adds another sea of stakeholders to train, sensitize and deliver. But there is larger question to be addressed. Why seek an external agency to issue an order for adoptions under JJ Act?
Honestly speaking, providing for a Court (and now DMs) to issue an Adoption Order under JJ Act itself is a very dumb idea! What value is any of these institution adding to a files already prepared and scrutinized by CARA, SAA, CWC and Adoption Committee. Once the Adoption Committee decides that a PAP is ineligible to adopt, can courts overturn that decision, and allow the PAP to adopt? No. So already Adoption Committee has more power, as far as the merits of the case is concerned. Adoptions applications dismissed by the Adoption Committee do not even reach the Courts. So what more is the court adding to an adoption petition that recommends adoption by Adoption Committee.
It is hilarious, that in HAMA adoptions, where a court intervention may actually be needed, there isn’t even a provision of an adoption deed, let alone an adoption order by a Court. And in JJ Act, where all kinds of due diligence is already carried out by several agencies, some visionary thinker provided for courts to issue an order, based on work done by everyone else.
As citizens, we avail of several services, certifications and endorsements from the government. Do we run to the Courts to get our Driving License, Passport or Ration Card? No. Corruption, nepotism, ambiguity, dispute notwithstanding, we trust the process and decisions of the stakeholders vested with that authority. CARA is an autonomous statutory body. What prevents CARA to issue the Adoption Order, on recommendations of the Adoption Committee, basis inputs from DCPU, CWC, SAA along the process? Is Court/DM wiser than CWC, DCPU, SAA? Does Court/DM hold subject matter expertise in adoption? Was there a dispute that Court/DM is trying to settle? Then why this requirement at all?
There are over 30,000 parents waiting to adopt a child through CARA. There are fewer than 2400 children legally available for adoption in the system. Close to 60% of these are grouped under special need category. The least CARA and WCD Ministry can do is alleviate the pain for the PAPs by clipping redundant and impeding processes. Without an adoption order a child does not get admission into school, parents cannot avail adoption leave and other benefits at work, travel documents like passport or visa cannot be initiated. There is ZERO rationale for seeking an adoption order from any extraneous authority when the agencies regulated by CARA have done their work and assessed the merits of the case.
CARA spent years educating and sensitizing courts, now good luck with DMs and ADMs, who aren’t half as wise or accessible as Courts, when it comes to adoption!