CASE I

SHABNAM HASHMI VS. UNION OF INDIA1

FACTS:

Recognition of the right to adopt and to be adopted as a fundamental right under Part-III of
the Constitution is the vision scripted by the public spirited individual who has moved this
Court under Article 32 of the Constitution. There is an alternative prayer requesting the Court
to lay down optional guidelines enabling adoption of children by persons irrespective of
religion, caste, creed etc. and further for a direction to the Respondent Union of India to enact
an optional law the prime focus of which is the child with considerations like religion etc.
taking a hind seat.

ISSUES:

Whether the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended, is an
enabling legislation that gives a prospective parent the option of adopting an eligible child by
following the procedure that can be conferred with fundamental right?

REASONING:

The JJ Act, 2000, however did not define 'adoption' and it is only by the amendment of 2006
that the meaning thereof came to be expressed in the following terms:

2(aa)-"adoption" means the process through which the adopted child is permanently separated
from his biological parents and become the legitimate child of his adoptive parents with all
the rights, privileges and responsibilities that are attached to the relationship

The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the
option of adopting an eligible child by following the procedure prescribed by the Act, Rules
and the CARA (central adoption resource authority) guidelines, as notified under the Act.
The Act does not mandate any compulsive action by any prospective parent leaving such
person with the liberty of accessing the provisions of the Act, if he so desires. Such a person
is always free to adopt or choose not to do so and, instead, follow what he comprehends to be
the dictates of the personal law applicable to him. To us, the Act is a small step in reaching
the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must

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be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost
of repetition we would like to say that an optional legislation that does not contain an
unavoidable imperative cannot be stultified by principles of personal law which, however,
would always continue to govern any person who chooses to so submit himself until such
time that the vision of a uniform Civil Code is achieved. The same can only happen by the
collective decision of the generation to come to sink conflicting faiths and beliefs that are still
active as on date.

HELD:

Right of child to be adopted and that of prospective parents to adopt cannot to be declared as
fundamental right under Article 21 of the Constitution because the present is not appropriate
time and stage where right to adopt and right to be adopted can be raised to status of
fundamental right and/or to understand such right to be encompassed by Article 21 of the
Constitution and moreover the elevation of right to adopt or to be adopted to the status of
fundamental right will have to await dissipation of conflicting thought processes in this
sphere of practices and belief prevailing in country.

CASE II

EMP. STATE INSURANCE CORPORATION V H M T LTD & ANR2

FACTS:

In the present case the Respondent is an 'employer' within the meaning of the provisions of
S. 2(17) of the Act. Indisputably, prior to issuance of the notification dated 27.3.1992, the
wage ceiling of the employees was restricted to Rs.1,600/- per month. The same was
increased to Rs.3000/- per month with a view to bring them within the purview of the Act.
Validity of the said notification was challenged in a large number of writ petitions by the
employees. By an interim order passed by the High Court, the operation of the notification
was directed to be stayed. The said writ petitions were dismissed by an order dated
5.8.1992.

Writ appeals were filed by the 'employees' through their respective Trade Unions. While
admitting the said appeals, the interim order operating during the pendency of the writ
petition was allowed to continue. The said writ appeals were also dismissed by the Division
Bench of the High Court by reason of a judgment and order dated 11.7.1995, inter alia, on

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the premise that there was no impediment for the respondent herein to deposit the
contributions of the employees concerned.

ISSUES:
Whether suo moto revisional jurisdiction could be exercised by the revisional authority at any
time it desires?
REASONING:
The Section 85B of the Act empowers the Corporation to recover damages in the event an
employer fails to make the payment of the amount due in respect of contribution; subject,
however, to the condition that the amount thereof would not exceed the amount of arrears as
may be specified in the Regulations. Proviso appended thereto incorporates the principles of
'Natural Justice'. Obligation on the part of the employer to deposit the contributions of both
the 'employer' and the 'employee' is not in dispute. What is in dispute is as to whether the
amount of damages specified in Regulation 31C of the Regulation is imperative in character
or not. It is a well known principle of law that a subordinate legislation must conform to the
provisions of the Legislative Act. Section 85B of the Act provides for an ‘‘Enabling
Provision’’. It does not envisage mandatory levy of damages. It does not also contemplate
computation of quantum of damages in the manner prescribed under the regulations. A penal
provision should be construed strictly. Only because a provision has been made for levy of
penalty, the same by itself would not lead to the conclusion that penalty must be levied in all
situations. Such an intention on the part of the legislature is not decipherable from Section
85B of the Act. When a discretionary jurisdiction has been conferred on a statutory authority
to levy penal damages by reason of an ‘‘Enabling Provision’, the same cannot be construed
as imperative. Even otherwise, an endeavour should be made to construe such penal
provisions as discretionary, under the statute is held to be mandatory in character.
CONCLUSION:
The court Held, when there discretionary jurisdiction has been conferred on a statutory
authority to levy penal damages by reason of an ‘‘Enabling Provision’’ , the same cannot be
construed as imperative. The Division Bench of the High Court not wrong in opining that
Section 85-B provides for an ‘‘Enabling Provision’’. An endeavour should be made to
construe such penal provisions as discretionary, under the statute is held to be mandatory in
character .The Statute itself does not say that a penalty has to be levied only in the manner
prescribed .The Legislation does not provide that adjudication for the purpose of levy of
penalty proceeding would be a mere formality or imposition of penalty as also computation
of the quantum thereof became a foregone conclusion.