Permanent Imprint Leading Cases


Shabnam Hashmi v. Union of India, Writ Petition (Civil) No. 470 of 2005

The petitioner in this case approached the Supreme Court under article 32 of the Constitution praying for recognition of the right to adopt and to be adopted as a fundamental right under Part III of the Constitution. There was an alternative prayer requesting the Court to lay down optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed, etc. and further for a direction to the respondent Union of India to enact an optional law the prime focus of which is the child with considerations like religion, etc. taking a hind seat.

Right to adopt and the right to be adopted.

Whether right to adopt and the right to be adopted can be recognized as a fundamental right under Part III of the Constitution of India?

The prayer made in the writ petition appears to have been substantially fructified by the march that has taken place in this sphere of law, gently nudged by the judicial verdict in Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244, and the supplemental, if not consequential, legislative innovations in the shape of the Juvenile Justice (Care And Protection of Children)

Act, 2000 as amended in 2006 (the JJ Act, 2000) as also the Juvenile Justice (Care and Protection of Children) Rules promulgated in the year 2007 (the JJ Rules, 2007). The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the Central Adoption Resource Agency (CARA) guidelines, as notified under the Act.

The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. An optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.

While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country. The legislature which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act, 2000 and the same must receive due respect. The present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by article 21 of the Constitution.

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