This Article is authored by Advocate Anil Malhotra.
After Lok and Rajya Sabha 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, JJ Act stood amended by notification of August 9. The change in the realm of enabling speedier adoption of children is by amending provisions of JJ Act to recognise Executive Magistrates as the competent authority authorised to issue adoption orders under the JJ Act. Beneficial, benevolent and progressive as the proposals may be, they are short sighted, myopic and do not seem to be 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 the best interest and welfare of child principle. The purpose defeats the ends. Further, it may tend to create statutory conflicts with contradictory and inconsistent interpretations in issues relating to marriage, adoption and guardianship. The wholesome solution then may be to remain as it is or incorporate similar amendments in other existing laws for harmonious views. The apple cart cannot be upset singularly.
Adoption of children under the JJ Act made, dehors the provisions of the Hindu Adoption and Maintenance Act, 1956 (HAMA), is guided by Sections 56 and 57 of the JJ Act, wherein irrespective of religion, orphan, abandoned and surrendered children can be made even to single or divorced persons as per procedure laid down under the Adoption Regulations, 2017. The process entails a robust and protective mechanism routed through the Central Adoption Resource Authority (CARA). Ultimately, under the JJ Act, all CARA approved adoptions require an adoption order from a Court, which under the 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". Section 61 of the JJ Act mandates that before issuing an adoption order approved by CARA, the Court shall satisfy that the adoption is for the welfare of the child, as per the wishes of the child and without consideration, payment or reward for the adoption.
The definition of "Court" in the JJ Act is shared by a similar interpretation of "District Court" under the Guardians and Wards Act (GWA) and the Hindu Minority and Guardianship Act, 1956 (HMGA), wherein "Court" means the City Civil Court or a District Court or a Judicial Court notified by the High Court under Section 4 of the GWA. Clearly, the functions, authority and powers to oversee and lend finality in matters of adoption and guardianship have jurisprudentially i.e. in the study of law, rested with Judicial Courts and not Executive Courts. This is because judicial and not executive minds, are lettered or trained to exercise legal powers, which require 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 the fundamental division of powers of judicial and executive Courts, besides encroaching on powers of judicial Courts under the GWA and the HMGA. The pivotal role of a judicial Court under Section 61 of the JJ Act to X-ray an adoption, before passing an adoption order cannot be delegated to executive Courts, militating the fundamental concept of determining the best interest and the welfare of the vulnerable child by making it an administrative exercise with no introspection. The end will defeat the means. Children, an asset of the nation, deserve a cautious adoption process.
The 2021 amendment of the JJ Act empowers the district Magistrates to issue valid adoption orders for inter and intra country adoptions. Adoptions under the JJ Act are now in the 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 the entire adoption process was streamlined on intervention of Supreme Court to prevent malpractices of inter-country adoptions. Three decades overhaul led to a rigorous, robust and full proof mechanism under the microscopic eye 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 the child. This cannot be an endorsement left to bureaucracy being handled by administrative staff who have no judicial training or expertise to adjudge the wellbeing of children. An anomalous predicament looms large as neither the 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. The unjust amendments fail the child.