FLAWED AMENDMENTS OF ADOPTION LAWS

Lok and Rajya Sabha have approved 2021 amendments of Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) for district Magistrates to issue adoption orders instead of Civil Courts to  enable speedy adoption of children.. Beneficial, benevolent and progressive as proposals may be, they are short sighted, myopic and are not in tandem or harmony with parallel existing family law legislations. Logic of delay in Civil Courts and adoption processes being non contested litigations, are a death knell to best interest and welfare of child principle. Purposes defeat ends. Further, it creates statutory conflicts with contradictory and inconsistent interpretations in issues relating to marriage, adoption and guardianship. Wholesome solutions may be to remain as  they are or incorporate similar amendments in other existing laws for harmonious views. The apple cart cannot be upset singularly.

Adoption of children under JJ Act made, dehors provisions of Hindu Adoptions and Maintenance Act 1956 (HAMA), is guided by JJ Act. Irrespective of religion, orphan, abandoned and surrendered children can be made as per procedure laid down under Adoption Regulations, 2017. Process entails a robust and protective mechanism routed through Central Adoption Resource Authority (CARA). Ultimately, under JJ Act, CARA approved adoptions require an adoption order from a Court, which under JJ Act "means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts". JJ Act mandates that before issuing an adoption order approved by CARA, Courts shall satisfy that adoption is for welfare of child, as per wishes of child and without consideration, payment or reward for adoptions.

Definition of "Court" in JJ Act is shared by a similar interpretation of "District Court" under Guardians and Wards Act (GWA) and Hindu Minority and Guardianship Act, 1956 (HMGA), wherein "Court" means City Civil Court or a District Court or a Judicial Court notified by High Court under GWA. Clearly, functions, authority and powers to oversee lend finality in matters of adoption and guardianship, which have in law, rested with Judicial Courts and not Executive Courts. Judicial and not executive minds, are lettered or trained to exercise legal powers, requiring adjudicatory acumen to adjudge welfare of children, a prime duty vested by law. Subrogation of judicial functions to executive authorities in routine, for stamping judicial finality will offend fundamental division of powers of judicial and executive Courts, besides encroaching on powers of judicial Courts under GWA and HMGA. Pivotal role of judicial Courts under JJ Act to X-ray an adoption, before passing an adoption order cannot be delegated to executive Courts, militating the fundamental concept of determining best interest and welfare of vulnerable children by making it an administrative exercise with no introspection. Ends will defeat means. Children, an asset of nations, deserve  cautious adoption processes.

2021 amendments of JJ Act empowers  district Magistrates to validate adoption orders for inter&intra country adoptions which are now in realm of Executive Magistrates in place of judicial courts. Lawmakers failed to appreciate that an adoption order is not a license, permit or sanction which is dealt administratively in routine. Legislators failed to appreciate that entire adoption processes were streamlined on intervention of Supreme Court to prevent malpractices of inter-country adoptions. Three decades overhaul led  to a rigorous, full proof mechanism under microscopic examination of judicial courts to certify adoptions. With one stroke, this has been undone without realizing consequences.      

Children are not commodities or merchandise  and adoption is not a business.  Giving and taking of children in adoption needs a parens patriae intervention of a judicial court to ensure welfare of child. This cannot be an endorsement left to bureaucracy being handled by administrative staff who have no judicial training or expertise to adjudicate wellbeing of children. An anomalous predicament looms large as neither GWA nor HMGA have been amended to vest  district Magistrates with such powers of approving adoptions. Split laws for adoptions cannot prevail. Children cannot be left to administrative exercises as trade or business. Unjust amendments fail children.