LAXMIKANT PANDEYversusUNION OF INDIA & ORS.

                              LAXMIKANT PANDEY
 A
                                           v.
                          · UNION OF INDIA & ORS.

                                 AUGUST 14, 1991

 B                [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!.
 c          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
 D    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
 E    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   A
      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)                                                .
                                                                                   B
            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)

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

           8.2. As a11d when such a request is received from recognised
A
    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
B    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.
c
          (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."
            ?~
            .:ies 1
            ~   rr   ~




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

          (iii) Juvenile Welfare Boards/Courts should al;fow  ·'1e
A         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
B         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-
c         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-
D         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
E         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         ..
F         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;
G
          ( 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;

H         (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-
                                                                                A
                 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;

                 (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     c
                 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.                                                     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.
                                                                                E
            We have heard counsel for the appearing parties at length.
      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
                                                                                  I
    574                    SUPREME COURT REPORTS             [1991] 3 S.C.R. /

    Under Chapter II of the Act of 1986 provision has been made for 1,
A
    setting up of Juvenile Homes (s. 9), Special Homes (s. 10) and Obser-
    vation Homes (s. 11). Both the Acts provide for After Care
                                                                          '•
    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.
c         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.
D
          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
    576                    SUPREME'COURT REPORTS             [19911 3 S.C.R.

    requirements of natural justice and would uphold a healthy scheme of
A
    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
B   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-
c   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.
D
          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.