Shabnam Hashmi vs.

Union of
India & Ors.
March 15, 2019

In the Supreme Court of India

Civil Original Jurisidiction
Case No.
Writ Petition No. 470 of 2005
Petitioner
Shabnam Hashmi
Respondent
Union of India & Ors.
Date of Judgment
Decided on 19th Fabruray, 2014
Bench
Palanisamy Sathasivam, Justice Ranjan Gogoi, Jusice Shiva Kirti

Background

Political Background

It is an Indian Social Activist and human rights campaigner. She

started her social activism campaigning about adult literacy in 1981.
Since 1989, she has spent most of her time in combating communal
and fundamentalist forces in India. In 2003 she was one of the
founders of ANHAD which administers. It’s FCRA license was
cancelled based on inputs from intelligence agency for using foreign
funding to work against the public interest. She has campaigned
against communalism and violation of human rights in the name of
fighting terrorism. She was involved in exposing what she alleges are
terror links of Hindutva forces but also forces but also fought for the
rights of Battla house encounter suspects who later allegedly joined
ISIS. Shabnam Hashmi was amongst nintey-one women from India
who figured in the list of 1,000 women who have been nominated
globally for the Nobel Peace Prize – 2005. Hashmi has focused on
issues of women’s political participation, adoption, gender justice,
democracy and secularism.

The decision of Lakshmi Kant Pandey v. Union of India is a very high

watermark in the development of the law relating to adoption.

International background-

In Unites States, through ICA, the legal transfer of parental rights

from birth parents takes place. ICA opens another pathway to
children to receive he care, security and love that only a permanent
family can provide.

Adoption was unknown to common law, and is a creature of statute,

the first of which was the Adoption of Children Act, 1926, now
replaced by the Adoption Act, 1976. The English Court only has the
jurisdiction, if the applicant, is in any part of the United Kingdom
and the child is in England.

Judicial Background

Adoption is always been a very crucial subject of discussion. In the

regard Bomabay High Court and the Kerala High Court in various
cases have explained the importance of adoption and right to adopt a
child. The Hon’ble Supreme Court in this case have referred Article
21 and Article 44 of the Constitution. The Hon’ble Court has
explained the importance of fundamental rights and right to have
adopted child.

Facts
1. Specific guidelines were needed for adoption.

2. Shabnam Hashmi, is an Indian Social Activist and human rights

campaigner. She started her social activism campaigning about adult
literacy in 1981.

3. She has filed a writ petition under Article 32 of the Constitution..

4. She has requested the court to lay down optional guidelines

enabling adoption of children by persons irrespective of religion,
caste, creed etc.

Issues Raised

1. Whether adoption of a child is a fundamental right.

2. In case of contradiction between personal law and secular law,

what is going to be prevailed.

3. Whether caste, creed and religions affects the adoption procedure.

Arguments

Peitioner’s argument

1. Petitioner requested 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 considerable like religion etc. taking a hint seat.

2. It was also highlighted that as per guidelines of 2011 and JJ Rules,

2017 there is undue delay in processing of adoption cases at the level
of Child Welfare Committees, the Adoption Recommendation
Committees as well as the concerned courts.
3. It was also argued by the Petitioner that the JJ Act, 2000 is a secular
law enabling any person, irrespective of the religion he professes, to
take a child in adoption.

4. It was also argued that the court should direct the states and UT
under JJ Act, 2000 to implement Section 41 of the Act and to follow
CARA guidelines.

5. It was also argued that Right to adopt a child is a fundamental

right.

Respondent’s argument

1. It is contented that Islamic Law doesn’t recognize an adopted child

to be at par with a biological child. As per Islamic law, it processes
what is known as the “Kafala” system under which the child is
placed under a ‘Kafil’ who provides for the well being of the child
remains the true descendant of his biological parents and not that of
the”adoptive” parents.

2. It was also contended that this system is recognized in UN

Convention on Rights of the Child and therefore, directions should be
issued to all the Child Welfare Committees to keep in mind and
follow the principles of Islamic Law before declaring a muslim child
available for adoption under Section 41(5) of the JJ Act, 2000.

Judgment

It will now be relevant to take note of the stand of the Union of India.
Way back on 15th My, 2006 the Union in its counter affidavit had
informed the court that prospective parents, irrespective of their
religious background, are free to access the provisions of the Act for
adoption of Children after following the procedure prescribed. The
progress on the ground as laid before the court by the Union of India
through the Ministry of Women and Child Development may also be
noticed at this stage.

The JJ Act, 2000, as amended is an enabling legislation that gives a

prospective parent the option of adoption an eligible child by
following the procedure prescribed by the Act, Rules and the CARA
guidelines, as notified under the Act. The Act does not mandate any
compulsive action by any prospective parents 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 of Article 44 of the Constitution. Personal beliefs
and faiths, though must be honoured, can not dictates the operation
of the provisions of an enabling statute.

The decision of this Court in Lakshmi Kant Pandey is a high

watermark in he development of the law relating to adoption.
Dealing with inter-country adoptions, elaborate guidelines had been
laid by this court to protect and further the interest of the child. A
regulatory body i.e. Central Adoption Resources Agency was
recommended for creation and accordingly set up by the
Government of India in the year 1989. Since then, the said body has
been playing a pivotal role, laying down norms both substantive and
procedural, in the matter of inter as well as in the country adoptions.
The said norms have received statutory recognition on being notified
by the Central Govt. under Rule 33 (2) of the Juvenile Justice (Care
and Protection of Children) Rules, 2007 and are today in force
throughout the country, having also been adopted and notified by
several states under the Rules framed by the states in exercise of the
Rule making power under Section 68 of the JJ Act, 2000.

Reliance has placed in this regard on the views of the Bombay and
Kerala High Court in re: Manueal Theodore and Philip Alfred Malvin
v. Y. J. Gonsalvis & Ors. Respectively.

Even though no serious or substantial debate has been made on

behalf of the Petitioner on the issues, abundant literature including
the holy scripts have been placed before the

Hon’ble court by the Board in support of its contentions, noted

above. Though enriched by the lengthy discourse laid down before
us, we do not think it necessary to go into any of the issues raised.
The Fundamental Rights embodied in Part 3 of the Constitution
constitute the basic human rights which inhere in every person and
such other rights which are fundamental to the dignity and well
being of citizens. While it is correct that the dimensions and
perspectives of the meaning and contend of FR’s, in our considered
view, will have to await a dissipation of the conflicting thought
processes in this sphere of practices and beliefs prevailing in the
country. The legislature which is better equipped to comprehend the
mental preparedness of the entire citizenry to think unitedly on the
issue has expressed its view, for the present, by the enactment of the
JJ Act, 2000 and the same must receive due respect.

Held- The court is of the view that the present is not appropriate
time and stage where the right to adopt and the right to be
encompassed by Article 21 of the Constitution. We hardly need to
reiterate the well settled principles of Judicial Restraint, which
requires the Court not ot deal with issues of Constitutional
interpretation unless such an exercise is but unavoidable.

Consequently the writ was disposed of in terms of our directions and

observations made above.

Case comments
No dobut that Adoption is a secular concept. It gives birth to a huge
responsibility on adoptive parents and also it is a big change for
adoptive child. In our society religion plays a very big role in each
and every aspect. In adoption, Adoptive Child will follow all the
religion, customs, traditions, values of the adoptive family as a
secular concept which is different from the muslim personal law. First
of all in case a Hindu Boy being adopted by a muslim family, he
won’t be able to enjoy the secular benefits. It is unfair with that
Adoptive Child who is not able to understand the further
consequences of Adoption. It adversely affects the right of that
Adoptive Child. Second a new born baby can be shaped to any form
but if a child above the age of 5 years with Hindu Practices being
adopted by a Muslim family then he will himself feel very
uncomfortable. It might be a possibility that the Adoptive family
won’t be able to accept that child completely because of his or her
religion which makes it unfair for the child. Therefore, it is important
even to consider the religion in adoption procedure. We should
neither neglect the religion of Adoptive Child nor of a Adoptive
Parents.

Edited by Shuvneek Hayer

Quality check – Ankita Jha
Approved & Published – Sakshi Raje