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PETITIONER: LAXMIKANT PANDEY

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT14/08/1991

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) KANIA, M.H. KULDIP SINGH (J)

CITATION:  1992 AIR  118            1991 SCR  (3) 568  1991 SCC  (4)  33        JT 1991 (3)   582  1991 SCALE  (2)321

ACT:     Constitution  of India, 1950--Article 32--Writ by  child welfare agencies--Indian children--Adoption--Procedures laid down in (1984) 2 SCR 795--Modification.

HEADNOTE:      The  writ  petitioners---some of  the  licensed  welfare agencies  contemplated under the judgment of this  Court  in (1984)  2 SCR 795, and petitioner No. 2, the Central  Volun- tary  Adoption Resource Agency prayed that-the Indian  chil- dren adopted to he allowed to retain their citizenship  till they attain the age of majority; that birth certificates  to be issued based upon attested copies of Court’s  certificate (decree),  adoption deed or affidavits of the  officials  of the  licensed  agencies; that quota fixed for  placement  of children  with Indian families he quashed; that  show  cause notice  he issued before cancellation of  registration/  li- cence  to the registered agency; that setting up of  Central Adoption  Resource  Agency  be stayed; that  to  enable  the agencies  to maintain high standards of care for  the  chil- dren, expenses by about 25% be revised and annual escalation of 10% be made; and that transfer of children from Statutory homes to recognised agencies for placement he allowed. Partly allowing the writ petition, this Court,     HELD: 1. If the Indian citizenship is allowed to contin- ue  until the adopted child attains the age of majority,  it would run counter to the need of quick assimilation and  may often  stand as a barrier to the requirements of  the  early cementing  of  the adopted child into the  adoptive  family. [574G-H]     2.  The  birth certificate of the adopted child  be  ob- tained on the basis of application of the society sponsoring adoption.  On  the basis of the application and  such  other material  which may he relevant to he found in an  affidavit to  accompany the application made by a  responsible  person belonging  to the agency, the local magistrate  should  have the authority to make an order approving the particulars  to he entered in the birth certificate and on the basis of  the magisterial order the requi- 569

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site  certificate should be granted. This process should  be done only after adoption is finalised and the particulars of the  adopting foreign parents are available to be  included. The Chief District Medical Officer (CDMO) may be involved in the  matter of ascertainment of the age and  the  magistrate may  ordinarily act on the certificate granted by the  CDMO. [574H-575D]     3. Registered societies to entitle themselves for renew- al of registration of licence should exhibit their  involve- ment  in  the process of adoption and the  authority  should have evidence to satisfy that the agency is really  involved in the activity. [575G]     4. The licensing authority should ordinarily ensure that the  registered agency has proper child care  facilities  so that an agency which does not have such facilities may  over a period of years go out of the field. [575E]     5.In the event of registration/licence being proposed to be  cancelled,  an  opportunity should be  granted  to  such agency.  That would answer the requirements of natural  jus- tice  and would uphold a healthy scheme  of  administration. [575H-576A]     6. The setting up of CARA is justified. Such an institu- tion would be an organisation of primacy and would work as a useful agency in the field. Although there should be no keen competition  for offering adoptions,  regulated  competition may  perhaps  keep  up the system in  a  healthy  condition. Existence  of  CARA in that field  is,  therefore,  welcome. [576A-B]     7. Keeping in view the general rise in cost of living an escalation  by  30% is allowed. The matter may  be  reviewed once  in  three years so far as escalation  of  expenses  is concerned. [576C-D]     8.1.  The children, who can be transferred for the  pur- poses  for placement,-would be those, whose parents are  not known,  orphans and perhaps those who are declared as  aban- doned  children. The homes are not set up in several  States and  areas.  Even  Juvenile Boards have  not  been  properly functioning  and  the recognised agencies do  not  have  the facility  of  child care. In these  circumstances  to  order transfer  of  children from statutory  homes  to  recognised agencies can indeed nOt be accepted as a rule. [576D-F] 570     8.2. As and when such a request is received from  recog- nised agencies, the Juvenile Court or the Board set up under the  Act may consider the feasibility of such  transfer  and keeping  the interest of the child in view, the  possibility of  an  adoption within a short period  and  the  facilities available  in the recognised agency as also  other  relevant features,  make appropriate orders. A strait-jacket  formula may  very often be injurious to the interest of  the  child. [576F-G]

JUDGMENT:     ORIGINAL JURISDICTION: Criminal Misc. Petition Nos. 5704 and 8842 of 1990.                           IN Writ Petition (Crl.) No. 1171 of 1986. (Under Article 32 of the Constitution of India).     Altaf Ahmed, Additional Solicitor General, A.S. Nambiar, Laxmi Kant Pandey in-person, Ms. A. Subhashini, Ms. Niranja- na  Singh, Ms. Shanta Vasudeva, P.K. Manohar, K.R.  Nambiar, Jagdeep  Kishore, T.V.S.N.-Chari, Ms. Suruchi Aggarwal,  Ms. Manjula Gupta, Bharati Reddy, Ms. Kusum Choudharv, Ms,  Bina

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Gupta,  Ms. Monika Mohil, Ms. Vandana Saggar,  Gopal  Singh, A.S.  Pundir, Manoj Swarup, V. Krishnamurthy, Ms.  H.  Wahi, B.B.  Singh, D.N. Mukherjee, P.H. Parekh, Ms. Chandan  Rama- murthi,  Ms. Kamini Jaiswal, R.K. Mehta, Ms. Urmila  Kapoor, M. Veerappa, Uma Nath Singh, A.S. Bhasme, Kailash Vasdev, G. Prabhakar,  S.K.  Bhattacharya, R.S. Suri, Ms.  S.  Dikshit, Prabir Choudhary, K. Swamy, Aruneshwar Gupta, Ms. M.  Karan- jawala,  H.K.  Puri and Ms. Rani Chhabra for  the  appearing parties. The following Order of the Court was delivered:     In Laxmikant Pandey v. Union of India, [1984] 2 SCR  795 this  Court laid down the procedure to be followed in  adop- tion of children by foreigners. The Court observed the  fact that  children are a supremely important national asset  and the  future well-being of the nation ’depends upon’ how  the children  grow  and  develop. It quoted  with  approval  the report  of  the Study Team on Social Welfare  where  it  was said:               "The physical and mental health of the  nation               is  determined largely by the manner in  which               it is shapped in the early stages."               571               This Court also quoted with approval from  the               National  Policy for the Welfare  of  Children               where it was Said:               "The nation’s children are a  supremely-impor-               tant assets. Their nurture and solicitude  are               our   responsibility.   Children’s   programme               should  find a prominent part in our  national               plans for the development of human  resources,               so that our children grow up to become  robust               citizens,  physically fit, mentally alert  and               morally  healthy, endowed with the skills  and               motivations needed by society. Equal  opportu-               nities for development to all children  during               the  period’ of growth should be our aim,  for               this would serve our larger purpose of  reduc-               ing inequality and ensuring social justice."     Thus  saying, this Court laid down the procedure  to  be followed  and while doing so, the CoUrt referred  to  recog- nised child welfare agencies and provided for their  licens- ing  or registration by the Central Government.  Petitioners in this application’ are some of the licensed welfare  agen- cies  contemplated  under  the judgment of  this  court  and petition  no. 2 is the Central Voluntary Adoption  Resources Agency which is a coordinating unit based at Delhi. In these applications petitioners have made the following prayers:               (a)(i) All GOvernment/juvenile homes,  nursing               homes  and hospitals--Government  or  private,               will  apply  for  declaration of  a  child  as               abandoned  and free for placement and  if  the               parents  of  the  child are  not  known,  such               children  should be transferred to  the-recog-               nised institution/placement agency as request-               ed for by them within a fixed time frame;               (ii)  all recognised placement  agencies  ’de-               pending upon their capacity to accommodate and               care  for those children after accounting  for               their age and qualification should be  allowed               to  seek  transfer  of  those  children  ,from               Government/juvenile    courts   and    nursing               ’homes/hospitals and such institutions  should               be obliged to transfer the children               such placement agencies;

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             572               (iii)  Juvenile Welfare  Boards/Courts  should               allow the aforesaid transfers in favour of the               recognised agencies for rehabilitation through               guardianshiP/adoPtion  from  VCAs/  CVARAS  or               otherwise;               (iv) Juvenile Welfare Boards/Courts should not               disturb  the  custody  of  children  abandoned               directly  with the recognised placement  agen-               cies  when  approached for declaring  them  as               abandoned  and  free for  placement  and  such               orders  may be passed ex- parte  and  confirmed               after notice to the concerned parties;               (b)(i)  Quota fixed by the Central  Government               for placement of children with Indian families               may be quashed as being contrary to the  deci-               sion in Laxmikant Pandey’s case;               (ii) in the alternative, if this Court upholds               the validity of the circular fixing the quota,               the percentsge may be suitably reduced;               (iii) this court may direct that if the  quota               is  to  be  fixed,  children  with  handicaps,               medical problems and other drawbacks should be               excluded  from the total count as  also  girls               above one year and boys above two years of age               should be exclude from counting;               (c)  The  State Governments  and  the  various               Union  Teritories should be directed to  issue               birth certificates based upon attested copies.               of court’s certificate (decree), adoption deed               or on the basis of affidavits of officials  of               the licensed agencies;               (d) This Court may approve by way Of  revision               of expenses by about 25% with effect from  the               date  of the application and another  10%  in-               crease  annually  to enable  the  agencies  to               maintain high Standards of care for the  chil-               dren;               (e)  The Indian children adopted abroad or  to               be allowed to retain their citizenship/nation-               ality  till they attain the age  of  majority.               wherever they should exercise their option one               way or the other;               (f)(i)  The Central Government should  be  di-               rected to act               573               by itself or through the State/Union Territory               Governments to issue show cause notice  before               refusing  to  extend  recognition  arid  grant               personal hearing before taking official action               and reasoned orders should be made in  support               of such action;               (ii) In the "event of cancellation of recogni-               tion,  a time frame should be fixed  to  clear               all  the  cases already in  the  pipeline  for               being processed;               (ii)  An  appellate authority should  be  pre-               scribed  for challenge of governmental  action               as stated above;               (g)(i) The Court may direct stay of governmen-               tal  action  in the matter of  setting  up  of               Central  Adoption Resource Agency  (CARA)  and               ultimately  hold that there was no longer  any               need  for such as agency in view of  the  fact

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             that many private agencies were not  available               to monitor the programme. Notice was ordered on these petitions on September 21, 1990, and these several months that have followed have been  taken by  different  State Governments and Union  Territories  and others  to place their affidavits for consideration of  this Court.     We  have  heard  counsel for the  appearing  parties  at length.  Before we deal with’ several prayers placed  before the  Court  for consideration it is  perhaps  necessary  ’to refer  to the provisions of the Children’s Act of  1960  and the  Juvenile JUstice Act of 1986. The’ scheme of these  two Acts  is not very different. The-definitions of.  ’neglected child’ and ’neglected juvenile’ is absolutely’the same.  The mechanism  for:administering  the statutes is also  more  or less  the same. Under section 4(1) of the Children’s Act,  a Child Welfare Board is intended to take charge of  neglected children.  Under  s.  4(1) of the Juvenile  Justice  Act,  a Welfare  Board  for  the neglected  juveniles  is  similarly contemplated. Sub-sections (3) and (4) of either Act  autho- rise  ’the Board to’ function as a Bench of Magistrates  and confers  on such Board certain powers under Criminal  Proce- dure  Code  conferable  on a Metropolitan  Magistrate  or  a Judicial  Magistrate  of the First Class. Section 9  of  the Children’s.  Act  contemplates of Children’s Homes  and  de- tailed provisions have been made in the matter of setting up of  such  homes and management thereof. Section  11  contem- plates of Observation Homes. Chapter III deals with neglect- ed children. 574 Under Chapter II of the ACt of 1986 provision has been  made for. setting up of Juvenile Homes (s. 9), Special Homes  (s. 10)  and Observation Homes (s. 11). Both the  Acts  provide. for After Care organisation.     Though these, two statutes in recognition of the  impor- tance  of  children to society have  made  these  beneficial provisions, nothing concrete and substantial appears to have been  done yet for implementing either statute in a  serious way. The Children’s Act has been operative for more than  30 years  while  the  Act of 1986 is in force  for  about  five years.  Yet most of the-provisions in the two  statutes  are still to be worked out in a real way.     The Union of India has set up a Department of Women  and Child Development and most of the States and Union  Territo- ries have corresponding departments, ,yet full  coordination has  not been achieved. The responsibility of  administering the two statutes is not properly shared. Monitoring seems to be very much wanting.     In  course of hearing of this petition we asked  learned Additional Solicitor General appearing for the Union Govern- ment  to  tell us as to what happens to  the  children--both boys and girls--who are lodged in the Homes when they  cease to be children under the statute. It may be pointed out that under  the  Children’s Act boys Upto 16 and a girl  upto  18 years  come within the definition of "child". If  ’children’ within the meaning of the. term are lodged in various, types of homes indicated in the two statutes what exactly  happens to  them when they cease to be children by passing  of  time has  remained  an,enigma in the absence of a  clear  answer. Obviously  no provision has been made in these two  Acts  to meet  such a situation. Is it the intention of  the  stautes then that once a boy. Or girl ceases to be a child. and does not  come  within the purview of the  stautes  he/she  would have, to be thrown out from the home on to the street-as  no more  cared  for? What then would be the effect  of  such  a

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situation? Since that is not very relevant for disposing  of this petition, we do not intend to proceed with that  aspect any longer.     We are inclined to keep the handicapped children out  Of the purview of the judgment of this Court. We do not, howev- er, agree that Indian citizenship should continue until ’the adopted  child  attains the age of majority and  is  legally competent to opt. Such a step ,would run counter to the need of  quick assimilation and may often stand as a  barrier  to the requirements of the early cementing of the adopted child into  the  adoptive family. In regard to the  issue  of  the birth certificate 575 of  the adopted child we are of the view that such  certifi- cate  should be obtained on the basis of application of  the society  sponsoring  adoption. In most of  these  cases  the registration  of  birth may not be  available  because  that would  not  have been done. We are of the view that  on  the basis  of the application and such other material which  may be,  relevant to be found in an affidavit to  accompany  the application  made by a responsible person belonging  to  the agency  the  local magistrate should have the  authority  to make an order approving the particulars to be entered in the birth certificate and on the basis of the Magisterial  order the  requisite certificate ’should be granted. This  process should.  be  done only after adoption is finalised  and  the particulars of the adopting foreign parents are available to be inclined. There is no point in having two birth  certifi- cates,  one  before  the child is placed  for  adoption  and another  when  adoption is completed. If the  procedure  for taking out a birth certificate is deferred until adoption is finalised  the certificate can be obtained once for all.  We are  of  the view that the ’Chief District  Medical  Officer (CDMO) may be involved in the matter of ascertainment of the age and the magistrate may ordinarily act on the certificate granted by the CDMO.     We  gather  that many of these agencies have  indeed  no child  care facilities. In the event of such facilities  not being  available maintaining children in hygienic  condition and  in an environment which would be healthy for the  chil- dren’s growth and mental development would indeed be  diffi- cult. The licensing authority should ordinarily ensure  that the  registered agency has proper child care  facilities  so that an agency which does not have such facilities may  over a period of years go out ,of the field.     The affidavit of the Union Government indicates that  it never intended to fix any quota for the purpose of  allowing renewal  of  registration or licence. In view of  the  clear statement  in the affidavit we must hold that it is not  the policy  of  the Government of India require  the  agency  to satisfy  the condition of any quota. In fact the  Government of  India’s circular letter is intended to emphasise on  the -feature that registered societies to entitle themselves for renewal  of  registration or licence  should  exhibit  their involvement  in  the process of adoption and  the  authority should  have evidence to satisfy that the agency  is  really involved in the activity,     We  would accept the stand taken by the petitioner  that in  the event of registration/licence being proposed  to  be cancelled, an opportunity should be granted to such  agency. That would answer the 576 requirements  of natural justice and would uphold a  healthy scheme of administration. We have not been able to see  any. positive  justification for opposition to the setting up  of

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CARA. Such an institution would be an organisation of prima- cy and would work as a useful agency in the field. While  we agree that there should be no keen, competition for offering adoptions,  regulated competition may perhaps keep  up  ’the system  in  a healthy condition. Existence’of CARA  in  that field is, therefore, welcome. We do not agree with the stand of  the  petitioner that the scheme envisaged  by  the  main judgment Should be altered in this regard.     The judgment laid down a scale of expenses to be  recov- ered  by the agency-offering placement for  maintaining  the child from the adoptive parents. There was some modification in 1986. Keeping in view the general rise in cost of  living we  are  prepared  to allow escalation of 30%.  We  do  not, however,  agree  to  an escalation of 10%  every  year.  The matter may be reviewed once in three years so far as escala- tion of expenses in concerned.     Only  one aspect is left for consideration and  that  is the petitioner’s prayer for transfer of children from statu- tory  homes to recognised agencies for placement. The  chil- dren who can be transferred for such purposes would be those whose  parents are not known, orphans and perhaps those  who are  declared  as abandoned children. We have.  pointed  out already that the homes are not set up in several States  and areas. Even Juvenile Boards have not been properly function- ing and the recognised agencies do not have the facility  of child  care.  In these circumstances to  order  transfer  of children  from  statutory homes to recognised  agencies  can indeed not be accepted as a rule. We are prepared to observe that as and when such a request is received from  recognised agencies,  the Juvenile Court or the Board set up under  the Act may consider the feasibility of such transfer and  keep- ing the interest of the child in view, the possibility of an adoption within a short period and the facilities  available in  the recognised agency as also, other relevant  features, make  appropriate orders. A strait-jacket formula  may  very often be injurious to the interest of the child. This order disposes of the petitions. V.P.R.                                Petition  Partly   al- lowed. 577