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LAXMIKANT PANDEY

v.

· UNION OF INDIA & ORS.

AUGUST 14, 1991

[RANGANATH MISRA, CJ, M.H. KANIA

AND KIJLDIP SINGH, .IJ.J

Constitution of India, 1950-Article 32-Writ by child welfare

agencies-Indian children-Adoption-Procedures laid down in ( 1984)

2 SCR 795-Modificatiol!.

The writ petitioners-some of the licensed welfare agencies con·

templated under the judgment of this Court in (1984) 2 SCR 795, and

petitioner No. 2, the Central Voluntary Adoption Resource Agency

prayed

that the Indian children adopted to be 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 be is:sued before cancellation of registration/

licence 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 children, 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

be allowed.

Partly allowing the writ petition, this Court,

F

HELD: I. If the Indian citizenship is allowed to continue 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 adop·

live family. [574G-H]

· G 2. The birth certificate of the adopted child be obtained on the

basis

of application of the society sponsoring adoption.

On the basis of

the application and suc.h other material which may be relevant to be

found in an affidavit to accompany the application made by a responsi­

ble person belonging to the agency, the local magistrate should have the

authority

to make an order approving the particulars to be entered in

H the birth certificate and on the basis of

the magisterial order the requi-

568

>-.

. PANDEY v. U.0.1. 569

site ~ertificate should be granted. This process should be done only after

adoption is finalised and the particnlars of the adopting foreign parents

are available to

be inclnded. The Chief District Medical Officer (COMO) may be involved in the matter of ascertainment of the age and

the magistrate may ordinarily act on the certificate granted by the

COMO. [574H-57SD) .

3. Registered societies to entitle themselves for renewal of regist­

ration of licence shonld exhibit their involvement in the process of adop·

tion and the anthority should have evidence to satisfy that the agency is

really involved in the activity. [57SG)

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4. The licensing anthority should ordinarily ensure that the C

registered agency has proper child care facilities

so that an agency

which does not have snch facilities may over a period of

years go out of

the field.

[57SEJ

S. In the event of registration/licence being proposed to be cancel-D

led, an opportudity should

be granted to such agency. That would

answer the requirements of natural justice and would uphold a healthy

scheme of administration.

[57SH-576AI

6. The setting up of CARA is justified.

Such an institution would

be

an organisation of primacy and would work as a useful agency

In the

field. Although there should

he no keen competition for offering adop-E

lions, regulated competition may perhaps keep

up the system in a

healthy condition. Existence of CARA

in that field is, therefore,

welcome.

[576A·Bl

7. Keeping in view the general rise in cost of living an escalation F

by 30% is allowed. The matter may be reviewed once in three years

so

far as escalation of expenses is concerned. [576C-D

I

8.1. The children, who can be transferred for the purposes for

placement, would

be those, whose parents are not known, orphans and G

perhaps those

who are declared as abandoned 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. [5760-Fj

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570 SUPREME COURT REPORTS [1991) 3 S.C.R.

8.2. As a11d 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 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. [S76F-G

I

ORIGINAL JURISDICTION: Criminal Misc. Petition Nos.

5704 and 8842 of 1990.

IN

Writ Petition (Cr!.) No. 1171of1986.

(Under Article 32 of the Constitution of India).

Altai Ahmed, Additional Solicitor General, A.S. Nambiar,

Laxmi

Kant

Pandey in-person, M~. A. Subhashini, Ms. Niranjana

D Singh, Ms. Shanta Vasudeva, P.K. Manohar, K.R. 1-iambiar, Jagdeep

Kishore,

T.V.S.N. Chari, Ms.

Suruchi Aggarwal, Ms. Manjula Gupta,

Bharati Reddy, Ms. Kusum Choudhary, Ms. Bina Gupta, Ms. Monika

Mohil, Ms. Vandana Saggar, Gopal Singh, A.S. Pundir, Manoj

Swamp, V. Krishnamurthy, Ms. H. Wahi, B.B. Singh, D.N. Mukher­

jee, P.H. Parekh, Ms. Chandan Ramamurthi, Ms. Kamini Jaiswal,

E 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. Karanjawala, H.K. Puri and Ms. Rani Chhabra for the

appearing parties.

F 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 adoption of children

by foreigners. The Court observed the fact tha1 children are a

supremely important national asset and the future well-being

of

the·

G 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 deter­

mined largely by the manner in which it is shapped in the

H early stages."

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PANDEY v. U.0.l. 571

~Court also quoted with approval from the National Policy for the A

~·e of Children where it was said:

,

,

"The nation's chilaren are a supremely important assets.

Their nurture and solicitude are our responsibility. Chil­

dren's programme should find a prominent part

in our

national plans for the development of human resources, so

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that our

childccn grow up to become robust citizens, physi­

cally fit, mentally alert and morally healthy, endowed with

the skills and motivations needed

by society. Equal

opportunities for development to all children during the

period

of growth should be our aim, for this would serve

our larger purpose of reducing inequality and

ensuring C

social justice."

Thus saying, this Court laid down the procedure to be followed

and while doing so, the Court referred to recognised child welfare

agencies and provided for their licensing or registration

by the Central D

Government. Petitioners

in this application are some of the licensed

welfare agencies 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

petitic;rners have made the following E

prayers:

(a)(i) All Government/juvenile homes, nursing,homes and

hospitals-Government or private, will apply for declara­

tion

of a child as abandoned and free for placement and if

the parents of the child are not known, such children F

should be transferred to the recognised institution/place­

ment agency as requested for

by them within a fixed time

frame;

(ii) all recognised placement agencies depending upon G

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 Govern­

ment/juvenile courts and nursing homes/hospitals and such

institutions should be obliged to transfer the children

tu

such placement agencies; H

572

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SUPREME COURT REPORTS [ 1991] 3 S.C.R.

(iii) Juvenile Welfare Boards/Courts should al;fow ·'1e

aforesaid transfers in favour of the recognised age or

rehabilitation through guardianship/adoption fro.m •I

CV ARAS or otherwise;

(iv) Juvenile Welfare Boards/Courts should not disturb

the custody

of children abandoned directly with the recog­

nised placement agencies 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 place­

ment of children with Indian families may be quashed'as

being contrary to the decision in Laxmikant Pandey's case;

(ii) in the alternative, if this Court upholds the validity

of

the circular fixing the quota, the percentage may be suit­

ably reduced;

(iii) this court may direct that if the

quota is to be fixed,

children with

handii:aps, 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 Teri­

tories should be directed

to issue birth certificates based

upon att{Osted copies of court's certificate (decree), adop­

tion

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% increase annually to enable the agencies

to maintain high standards of care for the children;

(

e) The Indian children adopted abroad or to be allowed to

retain their cit.izenship/nationality 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 directed to act

..

PANDEY v. U.O.I. 573

by itself or through the State/Union Territory Govern­

ments to issue show cause notice before refusing to extend

recognition and grant personal hearing before taking offi­

cial action and reasoned orders should be made

in support

of such action;

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(ii) In the event of cancellation of recognition, a time B

frame should be fixed to clear all the

cases already in the

pipeline for being processed;

(ii) An appellate authority should be prescribed for chal­

lenge of governmental action

as stated above;

(g)(i) The Court may direct stay of governmental action

in

the matter of setting up of Central Adoption Resource

Agency (CARA) and ultimately hold that there was

no

lqnger any need for such as agency in view of the fact that

many private agencies were not available to monitor the

programme.

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D ~ Notice was ordered on these petitions on September 21, 1990,

>-.

and these several months that have followed have been taken by diffe­

rent 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.

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Before we deal with several prayers placed before the Court for con­

sideration 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 F

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 G

such Board certain powers under Criminal Procedure 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 detailed provisions have been made

in the matter of setting

up of such homes and management thereof. Section

11 contemplates

of Observation Homes. Chapter

Ill deals with neglected children. H

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[1991] 3 S.C.R. /

Under Chapter II of the Act of 1986 provision has been made for

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setting up of Juvenile Homes (s. 9), Special Homes (s. 10) and Obser­

vation Homes (s. 11). Both the Acts provide for After Care

574 SUPREME COURT REPORTS

'•

organisation.

Though these two statutes

in recognition of the importance of

B children to society have made these beneficial provisions, 'nothing con­

crete 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.

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The Union of India has set up a Department of Women and

Child Development and most of the States and Union Territories 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 Government 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

E

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

F 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 situation? Since that is not very relevant for disposing of this peti­

tion,

we do not intend to proceed with that aspect any longer.

G

We are inclined to keep the handicapped children out of the

purview of the judgment of this Court.

We do not, however, 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«equirements of the early cementing of the adopted child

H il)to the adoptive family.

In regard to the issue of the birth certificate

.....

PANDEY v. U.O.I. 575

of the adopted child we are of the view that such certificate should be

obtained on the basis

of application of the society sponsoring adop-A

tion. In most of these cases the registration

of birth may not be avail­

able 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 B

should have the auihority 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

tw.o birth certificates, one before the child is placed for

adoption and another when adoption

is completed. If the procedure C

for taking

out a birth certificate is deferred until adoption is finalised

the certificate can

lie obtained once for all. We are of the view that the

Chief District Medical Officer (COMO) may be involved in the matter

of ascertainment of the age and the magistrate may ordinarily act on

the certificate granted

by the

COMO. 'D

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

childreil's growth .and mental development would

indeed be difficult. The licensing authority should ordinarily ensure E

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 regist-F

ration

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 to

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 G

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 H

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576 SUPREME'COURT REPORTS [19911 3 S.C.R.

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

CARA. Such an institution would be

an organisation of primacy 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 recovered by

the agency offering placement for maintaining the child from the adop­

tive 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 escalation of

expenses

in concerned.

Only

one aspect is left for consideration and that is the petitio­

ner's prayer for fransfer of children from statutory homes to recognised

agencies for placement. The children 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

E

pointed out already that 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. We are

prepared to observe that as and when such a request is received from

F recognised 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 bi> injurious to the interest of the child.

G

This order disposes of the petitions.

V.P.R. Petition Partly allowed.