Petition in HC challenges transfer of adoption jurisdiction from courts to DMs
The petition filed by Nisha Pandya, a resident of Kandivli, through advocates Vishal Kanade and Sameer Sawant states that the 2021 amendment replaced the word “court” with “district magistrate”, implying that the adoption procedure will be overseen by an executive officer
Mumbai: A petition filed in the Bombay high court on October 6 has challenged the 2021 amendment to the Juvenile Justice (Care and Protection of Children) Act, 2015, and the subsequent notification of September 1, 2022, which authorises district magistrates to oversee and decide on adoption cases. This task was thus far the responsibility of the judiciary.
The petition has also sought a stay on the September 30 communication from the authorities to the courts to transfer all adoption cases to district magistrates. It will come up for hearing after the Diwali vacations.
The petition filed by Nisha Pandya, a resident of Kandivli, through advocates Vishal Kanade and Sameer Sawant states that the 2021 amendment replaced the word “court” with “district magistrate”, implying that the adoption procedure will be overseen by an executive officer, which was otherwise entrusted to the judiciary ever since the word ‘adoption’ was defined under the Act by an amendment in 2006.
The petition stated that another amendment in 2015 had taken away the power to oversee the process of adoption from the Juvenile Justice Board (JJB) and had conferred it on the courts with the aim of ensuring that a proper procedure was followed under the supervision and sanction of the court. The petition further stated that the Supreme Court had also laid down guidelines for adoption, after which the Central Adoption Resource Agency (CARA) was set up.
“In the considered wisdom of various legislatures, over decades and over various enactments, it is only the courts that have been empowered to issue adoption orders. The Amendment of 2021 does away with this practice and abrogates the role of the judiciary in the adoption process without any logical reasoning whatsoever,” states the petition.
Referring to one of the main reasons for the repealing of the 2006 Act and the subsequent re-enactment of the JJ Act in 2015, the petition stated that the parliamentary standing committee for human resource development had recommended taking away the power of overseeing the adoption process from the JJB and Child Welfare Committee (CWC). This was accepted by the legislature, as there were inadvertent delays on the part of the two bodies in deciding adoption cases, either due to absence of members or lack of funds.
In light of the above, the petition stated that though there was a delay on the part of the district administration in implementing and carrying out adoption procedures, the 2021 amendment hands the responsibility back to the district administration, which would again lead to delays and harassment of adoptive parents, thus resulting in the failure to achieve the purpose of the Act.
The petition also refers to the 118th parliamentary standing committee report of August 8, 2022, which criticised the 2021 Amendment. “The committee is of the considered opinion that judges have the competence, experience and skills to determine whether adoption is in the best interests of the child,” the report said. “While deciding on adoption, Courts review documents, ensure that necessary procedures have been complied with and conduct an inquiry of the child and adoptive parents and ensure that adoption is for the welfare of the child. The committee feels that it is not appropriate for an administrative authority to issue adoption orders instead of a judicial body.” The petition argues that the order to transfer adoption cases from the courts to DMs failed to consider the parliamentary committee recommendations and hence should be set aside.
The petition has also sought a stay on the effect and implementation of the September 30, 2022, communication by the Commissioner, Child and Women Development, to all courts asking them to transfer adoption cases to the district magistrate. “Adoption needs a parens patriae intervention of a judicial court to ensure the welfare of the child. This cannot be an endorsement left to non-judicial/bureaucracy being handled by administrative staff who have no judicial training or expertise to adjudge the well-being of children,” it said.
.