Saturday, December 9, 2023

Nobody’s Child

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A PIL in the Supreme Court has sought the removal of anomalies in the grounds for adoption so as to make them uniform for citizens of all religions.

By Sujit Bhar

AN important PIL, which could have far-reaching implications on adoption rules, was placed before the Supreme Court in late August. It sought the removal of anomalies in the grounds for adoption and guardianship, to make them uniform for all citizens and also to make them gender and religion neutral.

While there is a codified adoption law for the Hindus, there aren’t any for other religions. However, there are several lacunae within the Hindu adoption law itself and guidelines need to be made tighter, especially in cases of inter-country adoption. And, by extension of the current PIL, these changes could be discussed before the Court as well.

Advocate Ashwini Upadhyay, who has been Delhi’s BJP spokesperson, filed the PIL. It also seeks directions to the Law Commission to consider the best practices of laws and international conventions and prepare a report on “Uniform Grounds of Adoption & Guardianship” within three months.

Upadhyay pointed out that the existing grounds are discriminatory and violative of Articles 14, 15, 21 of the Constitution. He said that while the Hindus in India have a codified law regarding the same, the Muslims, Christians, and Parsis (Zoroastrians) do not. Muslims, Christians and Parsis approach the court under the Guardians and Wards Act, 1890, as there is no common law. Muslims, Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster care becomes a major, he/she can break off all relations. Moreover, such a child doesn’t have the legal rights of inheritance, which creates a lot of hardship and confusion among citizens.

The importance of the above cannot be undermined, especially since the government has been proactive in slowly bringing under a single legal umbrella various pieces of legislation that often clash with each other. But one has to also look at the law for the Hindus, which the PIL holds as a shining example.

Many such lacunae in the guidelines came to light when two women associated with the Missionaries of Charity’s Ranchi chapter were arrested on July 5, 2018, for selling babies. Sister Concilia Balsam and Anima Indwar had sold three babies for Rs 50,000 each. Another baby was given away “free”.

Such things happen principally because of two reasons. First, there is a huge “demand” for babies for adoption, far outstripping “supply”. Secondly, the complex regulatory framework that guides adoption in India often forces adoptive parents to take the illegal route.

Adoption lawyer Shireen Merchant told India Legal that there is no window of choice for prospective parents, especially in international adoption. First, prospective parents are presented with a choice of two, or at the most three, children to choose from. If they refuse, the parents go down the adoption ladder and have to wait several months for the next turn. Secondly, if a child is rejected three times domestically, he/she can be put up for international adoption. Even there, prospective parents get just two children to choose from.

Then, especially in the case of inter-country adoption, there are no follow-up checks, post-adoption. This was evident from the tragic death of three-year-old Indian girl Sherin Mathews (Saraswati in India) in Richardson town, Texas, US. Sherin was adopted from Bihar in 2016 and taken to the US by her “parents”. A little over a year later, she was dead, killed by the Indian-American couple who had adopted her.

In India, the Central Adoption Resource Authority (CARA) has its own guidelines on adoption, but these are loosely framed. In the case of Sherin, CARA depended entirely on the report of the inspector in the US and those reports were, obviously, not diligently done.

India is a signatory to the UN Convention on Child Rights. It has amended the Juvenile Justice Act, and CARA and its ministry have been proactive in pushing reforms, but this PIL shows how far India has to go to offer a uniformly peaceful and safe country for its children.

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