Supreme Court Upholds Juvenile Justice Act as Secular Law for Adoption Irrespective of Religion

Court Declines to Recognize Right to Adopt as Fundamental Right, Emphasizes Optional Nature of Adoption Law over Personal Laws

In a landmark judgment delivered on February 19, 2014, the Supreme Court of India in Shabnam Hashmi v. Union of India reaffirmed the secular and optional nature of the Juvenile Justice (Care and Protection of Children) Act, 2000 ("JJ Act, 2000") as the governing law for adoption across all religions in India. The Court clarified that the JJ Act, 2000 provides a statutory framework for the adoption of children irrespective of religion, caste, or creed, and that personal laws, including Muslim Personal Law, cannot negate the provisions of the Act.

The petitioners had sought a declaration of the right to adopt and be adopted as a fundamental right under Article 21 of the Constitution and requested the Court to lay down guidelines facilitating adoption by persons of all religions, overriding their personal laws. The Supreme Court acknowledged the importance of the issue but declined to elevate the right to adopt to the status of a fundamental right, citing the existing divergent views among different communities and the need for legislative consensus before such recognition.

The judgment traces the evolution of adoption laws in India, noting the transition from the Juvenile Justice Act, 1986, which did not contemplate adoption, to the comprehensive JJ Act, 2000, as amended in 2006, which explicitly defines adoption and provides procedures for the same. The Court recognized the role of the Central Adoption Resource Authority (CARA), established in 1989 and given statutory recognition under the JJ Act and its Rules, as the key regulatory body for adoption in India.

Importantly, the Court emphasized that the JJ Act is an optional legislation. Individuals may choose to adopt under the Act's provisions or continue to follow their personal laws, highlighting that the Act’s operation cannot be stultified by personal laws. The Court noted that Muslim Personal Law does not recognize adoption in the same way but permits childless couples to care for a child under the "Kafala" system, which aligns with the alternative modes of child care recognized under the JJ Act such as foster care, sponsorship, and aftercare.

The Court also detailed the extensive infrastructure for child welfare in the country, including the functioning of Child Welfare Committees (CWCs), State Adoption Resource Agencies (SARAs), and Adoption Recommendation Committees (ARCs). It acknowledged delays in adoption processes but underscored the statutory framework’s effectiveness in providing a secular, child-centric adoption mechanism.

Rejecting the claim that adoption is a fundamental right, the Court stated that fundamental rights are those basic human rights intrinsic to the dignity and well-being of citizens, and current societal conflicts and differing religious doctrines make it premature to declare adoption as such a right. The Court underscored the importance of judicial restraint in constitutional interpretation and left the matter to legislative evolution.

In conclusion, the Supreme Court disposed of the petition, directing all States, Union Territories, and authorities under the JJ Act, 2000 to implement Section 41 of the Act and adhere to the CARA guidelines to facilitate adoption irrespective of religion or personal law, thereby strengthening a secular, child-focused adoption regime in India.

Statutory provisions

Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 41(5), Juvenile Justice (Care and Protection of Children) Rules, 2007 - Rule 33(2), Constitution of India - Articles 21, 32, 44

Shabnam Hashmi v. Union of India (SC) : Law Finder Doc Id # 525787