1. This is an appeal under Section 47 of the Guardians and Wards Act, 1890 in the matter of appointment of guardian of the person of female minor Babita an inmate of Shanti Devi Sheeshu Grah (founding home) conducted by Rajasthan Social Welfare Department of Government of Rajasthan, Jaipur. The application filed by the appellant for appointment as guardian of the above mentioned minor child was dismissed by the Family Court vide its judgment dated August 12, 1986.

2. It will suffice for the purposes of this appeal to state that the Inter-country Adoption Agency "Juthika" (hereinafter called as "Juthika") of Netherland, which is one of the recognised agency of Government of India, approached the Director of Social Welfare Department and Superintendent, Shanti Devi Sheeshu Grah, Gandhi Nagar, Jaipur through its power of attorney holder to give minor Babita, a destitute child in Guardianship of the petitioner. The Director, Social Welfare Department gave permission for adoption of the child to a foreign parent since no Indian citizen came forward for taking the child in adoption. Petitioner through its general power of attorney holders Mrs. Hem-lata Mirazkar, 208, Olympus, Altamount Road, Bombay-4000 26 and Shri Sandeep Saxena, D-2, 'Moti-Kunj', Malviya Marg, Ashoknagar, Jaipur moved an application before the Family Court for granting Guardianship to the petitioner. This application was dismissed by the impugned order. Hence this appeal.

3. We have heard both the parties and gone through the documents.on record.

4. It is contended by Shri R.C. Saxena, learned counsel for the appellant that the trial Court has erred in not considering the certificate of Professor of Dutch Law in Nether-

land that a Dutch man living in Netherland can take in guardianship of any child and can also adopt as many children as he likes. It is also submitted that the direction was given by the learned Judge that the State Government and Shanti Devi Shishu Grah should publish in newspapers and also publicize on television to seek persons willing to adopt the child, it is contended that this is against the direction of Hon'ble Supreme Court given in the case of Lakshmi Kant Pandey v. Union of India reported in AIR 1984 SC 469. It is also contended that the learned trial Court has not cared to look at the Annexure 5 which satisfied all the requirements regarding appointment of guardianship of the petitioner. It is also contended that the trial Court has overlooked that it was for the paramount benefit of the child to appoint petitioner as guardian who will eventually adopt he,r in accordance with the law of Netherland. It is also pointed out that Director of Social Welfare and the Superintendent of Shanti Devi Sheeshu Grah have stated that it is in the interest of the child that she should be given in guardianship of the petitioner.

Ten-year wait for Nikhil and Sara (name changed) came to a happy end today as they walked out of the District Child Protection Office (DCPO), Mini Secretariat, holding their daughter Anika (name changed) after they fulfilled all legal and medical formalities required for child adoption.

A glint of happiness was clearly visible in the couple’s eyes when DCPO committee members, after thoroughly scrutinising the documents and prolonged interactive session, nodded in a yes for the adoption.

Hailing from a south Indian state, Anika’a mother is a chartered accountant and father is in a senior position in a reputed automobile company and had applied for adoption in July 2016.

Anika is the first girl child among three children adopted in the district in the past 14 months, since the official child adoption agency was established at Shri Anath Ashram, Nathana, in October, 2016.

Earlier, prospective adopters for children had to visit the official child adoption agency at the government orphanage in Faridkot.

1. Short title.—This Act may be called the Powers-of-Attorney Act, 1882. Local extent.—It applies to the whole of India 1 [except the State of Jammu and Kashmir];

(Commencement) —And it shall come into force on the first day of May, 1882.

2 [1A. Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.]3[1A. Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.]"

2. Execution under power-of-attorney.—The donee of a power-of-attorney may, if he thinks fit, execute or do any 3 [***] instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every 3 [***] instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.

3. Payment by attorney under power, without notice of death, etc., good.—Any person making or doing any payment or act in good faith, in pursuance of a power-of-attorney, shall not be liable in respect of the payment or act by reason that, before the payment or act, the donor of the power had died or become 4 [***] of unsound mind, 4 [***] or insolvent, or had revoked the power, if the fact of death 4 [***] unsoundness of mind, 4 [***] insolvency or revocation was not, at the time of the payment or act, known to the person making or doing the same. But this section shall not affect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer, if the payment had not been made by him. This section applies only to payments and acts made or done after this Act comes into force.

NEW DELHI: More than a decade after Parliament enacted the Juvenile Justice (Care and Protection of Children) Act, the Supreme Court on Thursday cracked the whip for its implementation, making it mandatory for states to provide a plain-clothed special juvenile police officer (SJPO) in every police station.

In addition, the states have to create a Special Juvenile Police Unit (SJPU), comprising personnel specially trained and oriented for child causes (read offences) in every district and each missing child report must be converted into FIRs, the court ordered.

Though the court had ordered implementation of the law enacted in 2000 by Parliament, very few states have responded to a PIL by Bachpan Bachao Andolan, which alleged that very little was done to trace nearly 55,000 children who go missing every year. Senior advocate H S Phoolka complained that there was lack of scientific investigation to trace the children and that the law for juveniles had not been implemented.

The Supreme Court on Thursday made it mandatory for police stations across the country to compulsorily register missing complaints of any minor and appoint a special police officer to handle complaints of juveniles. Such police personnel should be stationed at every police station in plain clothes.

At a time when there has been a spurt in reports of trafficking of minor children and their abuse, a bench of Chief Justice Altamas Kabir and Justices J Chelameswar and Vikramjit Sen was livid with the casual approach of six states, which did not even bother to depute a lawyer to represent them during the hearing.

Over the years Indian law enforcement agencies have been permitted, through evolving legislation, to collect material containing DNA as a way of providing additional evidence for the conviction of criminals in India. Starting in the 1920s, the collection and use of biometrics for identification of criminals legally began for India with the approval of the Identification of Prisoners Bill.[1] The object of the Bill is to “provide legal authority for the taking of measurements of finger impression, foot-prints, and photographs of persons convicted or arrested.”[2] The Bill is still enforced in India, and in October 2010 was amended by the State Government of Tamil Nadu to include “blood samples” as a type of forensic evidence. Other Indian legislation pertaining to forensic evidence is the Code of Criminal Procedure (CrPc) and the Indian Evidence Act. In 2005, the CrPc was amended to authorize investigating officers to collect DNA samples with the help of a registered medical practitioner.[3] Both the CrPc and the Indian Evidence Act fail to address the collection and testing of DNA effectively as they do not set procedures for how the DNA samples should be collected, stored, shared, accessed, secured, and destroyed.

Though India allows the collection of DNA samples by law enforcement agencies for identification purposes, it does not have a national law in force that regulates how governments collect, store, create, and use DNA profiles of accused persons. A DNA profile is created when DNA samples are taken from individuals and are analyzed in laboratories to produce a digitized representation of the sequence. Once created, a DNA profile is stored on a database with other identifying information from the individual and information from the crime scene. Creating DNA profiles and using them to solve crimes has been a growing global practice over the past two decades. Despite the lack of explicit safeguards and regulations, both governmental and non-governmental laboratories have been collecting, testing, and storing DNA samples/profiles for many years. These laboratories function off of internal policies and run DNA tests for both forensic purposes (identifying criminals, victims, etc., conducted by both private and public labs) and personal purposes (paternity and medical, conducted by private labs).

Proposed Legislation

In the past few years, two pieces of legislation that serve to regulate the use of DNA for forensic purposes have been drafted or proposed in India. The most recent legislation, titled the Privacy Bill 2011, was leaked to the public in the spring of this year. If passed, the Bill will allow for the collection of DNA samples only with the consent of an individual, and will prohibit the public disclosure of such information to the extent that it will adversely affect an individual’s right to privacy in a way that would amount to a civil wrong. Though the Bill creates an important standard by mandating consent, it fails to comprehensively protect and regulate the use of DNA data.[4] In 2007, a Bill known as the Draft DNA Profiling Bill was piloted by the Centre for DNA Fingerprinting and Diagnostics, an autonomous organization funded by the Department of Biotechnology in India’s Ministry of Science and Technology. The Bill is pending in Parliament, and aims to legalize the collection and analysis of DNA samples for forensic purposes in order to “enhance the protection of people and administration of justice through analysis of DNA found at the crime scene, and establish identity of victim and offenders.” In its current state, the Bill would permit DNA to be collected and stored in a way that raises many concerns related to privacy and civil liberties.

Most concerning, through a list that outlines the circumstances in which DNA can be collected, the Bill allows for the DNA of innocents who are not related to a crime scene, are not victims, and are not criminals to be added to DNA databases.[5] This list can be expanded by the DNA Board as they deem appropriate.[6] Furthermore, the Bill does not specify at what point exactly DNA can be collected e.g., whether the DNA can be collected on arrest or on charge, whether the DNA has to be directly relevant to the offence, whether the police decide this for themselves, and what are the oversight mechanisms for these decisions. Permitting the collection and storage of innocent people’s DNA is dangerous for many reasons and extends the core rationale of collecting DNA far beyond “for forensic purposes.” As noted by the American Constitution Society for Law and Policy, by adding the DNA data of individuals with no discretion to these databanks, the governmental intent is presumptively changed from one of criminal investigation to population surveillance.[7] The debate over holding an innocent person’s DNA is key to understanding the core of what can and should be protected when formulating safeguards and regulations. Does the state ever have an interest in DNA aside from criminal identification? If so, should the government collect the DNA explicitly for that purpose?

https://www.sciencedirect.com/science/article/pii/S2090536X15000246

DNA technology has proved to be a worthy investigative tool for releasing the innocent citizens and bringing forth the person responsible for serious crimes. In a populated country like India there is a requirement for these types of databases. The Union government is working on a new version of a legislation that seeks to set up a national DNA database of ‘offenders’. As expected with the great success of the use of forensic DNA databases, new challenges are coming up. To rise to the challenges, different strategies have been proposed for increasing search capabilities, the implementation of which is on-going. The Federal Bureau of Investigation (FBI) in the US has proposed to add more autosomal short tandem repeat (STR) loci to its current core set of loci. The constant growth in the size of forensic DNA databases raises issues on the criteria of inclusion and retention and doubts on the efficiency, commensurability and infringement of privacy of such large personal data collections. People have difficulties that spill beyond the level of simple privacy and confidentiality issues.

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Keywords

ForensicDNADatabaseCrimeRiskIndia

1. Introduction

A countless number of children go missing every year. The category of missing children include a number of problems including abduction or kidnapping of children by family members and by non-family members, run-away children or those forced to run away by family and surrounding circumstances, children who are in a difficult or aggressive environment, trafficked children, and lost children. Missing Children Because of this wide array of problems it is hard to survey the number of missing children. Often cases are not reported to the police. In 2005 National Human Rights Commission (NHRC) informed that on an average 44000 children are reported missing every year. Of these, as many as 11,000 remain untraced.

Children who go missing may be exploited and abused for various purposes from camel jockeys in the Gulf countries to victims of organ trade and even grotesque cannibalism as reported at Nithari village in Noida. There are also a large number of children who run away from homes after dropping out of school or facing difficulties at home. They usually run away to the glamorous big cities where they fall prey to exploiters and are employed in tea stalls, brothels, beggary, etc. Most of the children come from poorer families who do not have access to police services or whose reports are not taken seriously.

When a child goes missing there no FIR filed as there is no cognizable offence committed. Hence only an entry is made into the General Station Diary at the concerned police office. Information of the missing child is forwards up to the Chief of police as well as locally police officers generate awareness through the media. The police headquarters of each state has a missing person bureau. A database of missing persons is maintained by the Missing Persons Wing at the National Crime Records Bureau (NCRB) in New Delhi.

Some recommendations/suggestions of the NHRC Committee made to state and union governments:

Missing children should become a priority issue with state and union governments and law enforcement agencies.

The Government of Maharashtra proposes to carry out DNA tests on children used for begging and persons in whose custody these children are found. It claims that the procedure would conclusively reveal if the latter are the biological parents of the child or not. If they are found to be unrelated, the government proposes to trace the real parents through an online DNA database and thus, reunite the children with their families.

This is not the first time that the government has announced its intention to bring about such a policy. The proposed policy option needs to be properly understood as it is being announced repeatedly and may be taken up for formal approval.

Barring a few people who have raised their eyebrows over the idea that someone’s DNA report will be collected and stored by the government in its data bank, apparently there is not much objection to the idea per se. Considering the seriousness and rising number of cases of ‘missing and found but untraced’ children mostly belonging to certain weaker and vulnerable section of the society, as well as the technological superiority and indispensability of DNA matching, a vague objection to create a DNA data bank might not get much attention. Nonetheless, it may be stressed at the outset that DNA data being sensitive, must be handled carefully and responsibly.

At face value, the idea looks noble and appealing. But on closer inspection, it will be clear that the idea is vague and full of defects and gaps. What must be appreciated is the announcement of the State’s desire to do something about the issue of children used for begging, although in its current form, it is naïve, poorly conceptualised and based on incorrect presumptions.

Presumptions in the State’s design:

(Google Translation)

Children adopted from Chile may have been taken without the mothers consent. See how it's been here. Photo: Chilevision / Wikimedia Commons

Sweden at the center of illegal adoptions with Chilean children

Many of the children adopted from Chile to Sweden during the 70's and 80's may have been taken from their mothers without their consent. It shows a review that Chilean journalists have done in cooperation with SVT. A former head of the Chilean child welfare authority SENAME claims that an unknown number of children were exposed to trafficking in human beings.

It was during the years 1971 to 1992, thus largely during the Pinochet dictatorship, as more than 2,000 children were adopted from Chile to Swedish couples. Over the years, these adoptions have been questioned and there have been previously information that many of them were not entitled to many mothers to take care of the children by means of various persuasive campaigns - and sometimes in kidnapping-like forms.