The Supreme Court in this public interest litigation considered the issue of alleged adoption agency malpractice and neglect when approving inter-country adoptions. The Court in its judgment set forth safeguards such that adoptions by foreigners would be handled in a manner promoting children’s welfare and their right to family life.
The petitioner, Lakshmi Kant Pandey, an attorney, wrote to the Supreme Court (Court) alleging neglect and malpractice on the part of social organizations and private adoption agencies facilitating the adoption of Indian children to foreign parents. He noted the long and hazardous journeys these children made to foreign countries, along with instances of neglect they experienced from their adoptive parents resulting in impoverishment or sexual exploitation of the children. The Court treated his letter as a writ petition (a filing made with a higher court to secure prompt review of an issue) and this instituted the basis of the public interest litigation.
In its judgment, the Court noted that the absence of legal regulation of inter-country adoptions in India could cause enormous harm to Indian children who may, for example, be exposed to the abuses of profiteering or trafficking. In order to protect the welfare of children, the Court, in consultation with several social or child welfare institutions, laid out a comprehensive framework of normative and procedural safeguards for regulating inter-country adoption as protection against abuse, maltreatment or exploitation of children and to secure them a healthy, decent family life. While formulating standards and procedures the Court referenced various relevant laws and policies including Articles 15(3), 24, and 39 of the Indian Constitution regarding child welfare, and the principles embodied in the U.N. Declaration on the Rights of the Child (1959). The delineated safeguards include, amongst several others, the requirement that foreigners wishing to adopt be sponsored by relevant licensed agencies in their own country, that no adoption application from a foreigner should be entertained directly by any adoption agency in India, that agencies working on inter-country adoptions and licensed by the Government of India must meet certain stipulated criteria and undertake specific responsibilities in ensuring the safety and well-being of adopted children, and that all inter-country adoption proceedings must be approved by the local courts.
The guidelines set forth by the Supreme Court regulated adoption over many years and became an effective tool for child rights activists. Following the judgment, some of the social or child welfare agencies engaged in placement of children in inter-country adoption felt that there were certain difficulties in implementing the principles and norms laid down in our judgment and petitioned the Court for clarification. The Court addressed these issues in a supplemental judgment dated 27th September, 1985. Furthermore in another case, where the petitioners alleged non-compliance with the adoption safeguards, the Supreme Court held that any adoption in violation of or non-compliance with the directives set forth in this judgment may lead the adoption to be declared invalid and expose the person concerned to strict action including prosecution.
The Government of India has complied with a number of the Court’s directives including setting up a Central Adoption Resource Agency CARA, which framed guidelines for the adoption of Indian children, codifying the safeguards set forth by the Supreme Court judgment and other related decisions by the Court. Moreover there were the supplemental, if not consequential legislative innovations of the Juvenile Justice (Care And Protection of Children) Act, 2000 (amended in 2006) and the Juvenile Justice (Care and Protection of Children) Rules, 2007. However India still does not have a comprehensive national law on adoption. For years, now, NGOs have been urging the government to pass relevant national legislation as unscrupulous practices continue in the area of inter-country adoptions.
Given that the Court treated a letter as a petition, this case is an excellent example of how the procedural innovation of public interest litigation in India has eased rules of standing (which determine who can bring a case) towards making the court system more accessible to disadvantaged sections of society. It also stands as an example of the judicial activism of the Indian Supreme Court. Confronted with legal vacuum on an issue with huge social implications, the Court did not hesitate to issue elaborate guidelines to regulate adoptions and protect children from prostitution and slave labor.
(Updated May 2015)
Apart from the Government of India, several government agencies and social welfare organizations (both national and international) filed affidavits and statements before the court in this case. The institutions included the Indian Council of Social Welfare, Enfants Du Monde, Missionaries of Charity, Enfants De L’s Espoir, Indian Association for promotion of Adoption Kuan-yin Charitable Trust, Terre Des Homes (India) Society, Maharashtra State Women’s Council, Legal Aid Services West Bengal, SOS Children’s Villages of India and the Bhavishya International Union for Child Welfare. The Supreme Court explicitly acknowledged their contribution in its judgment stating that the valuable recommendations provided for the consideration of the Court helped the judges formulate the principles and norms to be observed in the case of inter-country adoptions.
