This article is written by Lavanya Gupta. It analyses the case of Lakshmi Kant Pandey vs. Union of India (1987) that laid down guidelines for adoption and connected matters, placing the welfare of abandoned and destitute children at its core.
Table of Contents
Introduction
The case of Lakshmi Kant Pandey vs. Union of India (1986) clarified and modified the directions relating to adoption that were laid in the earlier decisions of the court. The aim of the judgement was to ensure a speedy and child-friendly process of adoption, one that promotes the paramount welfare of the child. It streamlined the process of adoption by foreign parents and laid down the roles of various stakeholders in the adoption regime – from scrutinising agencies to welfare organisations to juvenile courts as well as placement agencies.The right of children to an affectionate and secure household was recognised and given practical implementation through the guidelines of the Supreme Court.
Details of the case
Name of the case– Lakshmi Kant Pandey vs. Union of India
Name of the court– Supreme Court
Name of the petitioner– Lakshmi Kant Pandey
Name of the respondent– Union of India
Date of judgement– 3 December,1986
Equivalent citations-1987 AIR 232, 1987 SCR (1) 383, AIR 1987 SUPREME COURT 232, 1987 (1) SCC 66
Bench– J. PN Bhagwati and J. Ranganath Misra
Author of the judgement– J. PN Bhagwati
Facts of the case
The Apex Court in Laxmi Kant Pandey vs Union of India (1984) decided on 6th February 1984 had laid down the normative and procedural safeguards to be followed in case of adoption of an Indian child by foreign parents.The safeguards for inter-country adoption were laid down and the entire process of adoption was delineated by the Supreme Court. This was followed by a supplementary judgement of the Supreme Court in 1985.
However, various stakeholders in the adoption process faced practical issues in implementing the directions ranging from fees to the status of abandoned children as well as other problems surrounding child trafficking. In order to resolve the difficulties faced in the implementation of the guidelines laid down by the Supreme Court, the petitioners filed these criminal miscellaneous petitions seeking further directions from this Court to strengthen the adoption regime in India.
The first application considered by the court was the application filed by The Indian Council for Child Welfare asking the court to direct the payment of a particular amount for the scrutinising services rendered by it on being asked to act as a scrutinising agency by the Apex Court. The Delhi Council for Child Welfare along with the Church of North India and other organisations also filed an application seeking modifications or clarifications with respect to directions given by the Supreme Court in the 1984 judgement. This application forms the crux of the case.
Issues raised in the case
- Whether the representative of the recognised placement agency must become joint guardians with the foreign parents until the adoption process is completed?
- Whether the process of adoption laid down by the court requires modification so as to prevent delays?
- Whether inter-state transfer of children for adoption is permitted, and if so, what are requirements thereto?
- Whether prospective foreign parents living in India for one year or more, also need to secure sponsorship from a child or social welfare agency in their home country?
- Whether security for due performance of obligations must be imposed on the foreign parents?
Arguments of the parties
The Indian Council for Child Welfare in its application contended that a certain amount of fees should be paid to it for any scrutinising services rendered by it on the direction of the court, taking into account the expenditure for the employment of staff or such other necessary expenses.
The Karnataka Council for Child Welfare in its application argued that the purpose behind the 1984 judgement is being violated, due to a prevalent practice in the State of Karnataka. Some unrecognised agencies were using recognised placement agencies as mere post offices or “conduit pipes” for processing the cases of children which were in the former’s custody and with whom the recognised agencies had virtually no contact. This practice was challenged in the Supreme Court.
The Delhi Council for Child Welfare in its application highlighted the direction of the Supreme Court laid down in the 1984 judgement as per which abandoned children should not be assumed as free for adoption but must be produced before the juvenile court so that further inquiries can be made, and their parents or guardians can be traced. Further, when children are held as free for adoption, the court directed that the release order must be passed expeditiously, and due vigilance must be exercised by the concerned High Court. However, the Delhi Council for Child Welfare in its application (for clarification of the directions given by the Supreme Court), contended that the juvenile courts were mechanically interpreting this direction and were taking the view that release orders for such children must be passed expeditiously only where it is clear that children are selected for adoption. However, no child can be offered for adoption unless declared legally free for adoption by the juvenile courts. This means that the earlier direction laid down by the Apex Court is meaningless and must be suitably modified.
In another application, the Delhi Council along with other applicants, raised several points. First, they highlighted a prevalent practice in Delhi wherein the representative of the concerned recognised placement agency and the prospective foreign parents were both duly appointed as joint guardians of the child until the child is adopted by the parents in the foreign country. This in turn, creates an unnecessary obligation on the said representative. Further, the applicants also contended that the present procedure for adoption as laid down by the court is quite delayed and drawn-out which would take at least 8-9 months. It involves the three-month time period given to the biological parents who surrender the child to reconsider their decision as well as other steps in this long process. It was argued that this prolonged period must be curtailed and suitable modifications in the procedure must be made.
The applicants also highlighted the case of foreign parents living in India for a year or more, who consequently face difficulty in obtaining foreign sponsoring and thus asked for suitable clarifications in this regard as well. Other issues raised in the application include inter-state transfer of children for adoption. Finally, the application sought clarification with respect to security for due performance that was discussed in the 1985 supplementary judgement. It was argued whether security or cash deposit or bank guarantee by the foreign parent is necessary or whether execution of a bond by the concerned recognised placement agency is sufficient.
Laws/ concepts involved in Lakshmi Kant Pandey vs. Union of India (1986)
Guardians and Wards Act, 1890
The Act was passed to amend and consolidate the law relating to guardianship and is a secular Act on this subject matter. It covers the procedure for the appointment and declaration of guardians and also lays down the duties, rights and liabilities of the guardian both in case of person and property. Section 7 of the Act delineates the power of the court to pass an order as to guardianship. Section 8 declares the persons who shall be entitled to file an application for such an order. Section 9 lays down which court shall have the jurisdiction to entertain such an application. Section 11 further specifies the procedure to be followed on admission of application.
Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956
Section 9 of the Hindu Adoptions and Maintenance Act,1956 specifies who shall be entitled to give the child in adoption. Sub-section (4) further declares that where both the father and mother of the child are dead or have renounced the world or have abandoned the child or are of unsound mind (as declared by a court of competent jurisdiction) or where the parentage of the child is unknown, the guardian of a child may give the child in adoption to any person including the guardian himself with the previous permission of the court.
Judgement of the case
On prevalent practice in Delhi as to joint guardianship
The Court held that this procedure (for appointment of the foreigner as well as the representative of the agency as joint guardians of the child) is unique to Delhi and further places an unnecessary obligation on part of the recognised placement agency. In order to ensure the care of the child in the meantime and its eventual adoption, the court held that it would be quite sufficient to take a bond from the recognised placement agency so as to ensure fulfilment of the conditions laid down by the court and no such continued obligation is required. It directed that the court hearing such an application should not mandate the representative of the agency to act as co-petitioner on the application or as joint guardian of the child. Where such a representative has already been declared as a joint guardian prior to this order, they shall stand discharged after the adoption of the child by the foreign parents.
On drawn-out process for adoption
The Court noted the point raised by the applicant that when a child is surrendered by the biological parents, a period of three months is given for them to reconsider. Similarly, for an abandoned or destitute child, a period of three months is provided to the Juvenile court/ Social Welfare Department/ District Collector to declare the child free for adoption. After the child is so declared, a maximum period of two months is provided to find a suitable Indian family (which has been reduced to 3-4 weeks) . It takes another four weeks in mail to send the child study and medical reports to the sponsoring agency abroad to be handed to the foreigner for their approval and after the approval is received, a further period of two months is allowed to the court to process the application. Another month may be taken for other formalities like passports, making the entire process lengthy, drawn-out and delayed. The court agreed with this contention and laid down suitable modifications.
The court passed the following directions-
- In cases where the child is surrendered by the biological parents or unwed mother under a Deed of Relinquishment, it shall not be necessary to approach the Juvenile court/Social Welfare department/District Collector as the case may be, to obtain a release order. The Deed of Relinquishment shall be enough to be produced before the court hearing the application for guardianship.
- It is only in cases of abandoned or destitute children, that the entire process through the Juvenile court or other authorities shall be completed.
- As soon as such a child is found with a social or child welfare agency, a report shall be lodged with the local police station along with the child’s photograph.
- The Commissioner of Police, or the Inspector General of Police, should instruct all police stations to promptly undertake an inquiry for tracing the parents of the child and the inquiry shall be completed within a month of lodging of the report.
- Meanwhile the social welfare agency that has found the child may make an application to the Juvenile court or other authorities as the case may be, for a release order declaring the child legally free for adoption. Since the police inquiry is to be completed in one month, it shall be possible for the Juvenile court or other concerned authority to issue the release order within five months of the application.
- If the biological parents are indeed traced due to the inquiry, notice shall be issued to them to reconsider their decision after explaining the implications of the release order. Only one week shall be provided to them to make the decision.
This procedure will reduce the time taken to give the child in adoption.
- During the pendency of the application for the release order, the recognised placement agency to whom the child has been transferred by the social or child welfare agency may explore the possibility of adoption and the child may be offered for adoption to both Indian and foreign parents subject to the clearance of the child for adoption by the Juvenile court/ Social Welfare Department/District Collector.
- The recognised placement agency need not wait for the release order before offering the child for adoption otherwise a delay of six weeks may still occur before the child is offered for adoption. By allowing this, even the two month period that is undertaken to find Indian parents before offering the child for adoption to foreign parents is also removed, leading to an expeditious process of adoption.
If this procedure is followed, it shall now be possible to find suitable Indian parents or failing that, foreign parents within a period of six to eight weeks from the time the child is found by the welfare agency.
On inter-state transfer of child for adoption
When an abandoned or destitute child is brought before a recognized placement agency or is found by it, it shall be open to the agency to transfer the child to a branch in another State after the inquiry by the Juvenile court/Social Welfare Department/District Collector is completed. If it has as associate social or child welfare agency in another State, it may transfer the child there provided that the inquiry is completed, and release order is issued and that such an associate agency has been notified by the placement agency as its associate to the governments of the respective States where the placement agency and the associate agency are operating. If such a transfer to an associate agency or branch in another State is necessary before the completion of inquiry, the recognised placement agency may do the same after obtaining requisite permission from the Juvenile court/Social Welfare department/ District Collector.
The court also directed the GoI to publish at least yearly, the list of recognised placement agencies and their associate social or child welfare agencies operating in each State in two leading newspapers having wide circulation in the State, one in English and the other in the regional language of the State so that people may be aware regarding the same. It further directed the GoI to send the District courts through the concerned High courts a list of recognised placement agencies operating in the State along with the particulars of their associate agencies. Such a list must be furnished at least once a year to the District courts and any modifications must be informed through the concerned High Court.
On difficulty in obtaining sponsoring
The court agreed that difficult conditions of sponsorship, and of obtaining a home study report from a foreign agency in their home country, on foreigners living in India shall be quite impractical. The court ordered that in case of a foreigner living in India for a year or more, the home study report may be prepared by the recognised placement agency processing the application and the concerned court shall not stress on such sponsoring or report by a social or child welfare agency of the home country of the foreigners. The home study report prepared by the recognised placement agency shall suffice.
On security for due performance
The court clarified the position with regard to security to be deposited by the foreigner as was previously outlined is supplementary judgement-
“Ordinarily the court entertaining an application on behalf of a foreigner shall not insist on a security deposit by the foreigner for due performance of the obligations undertaken by him, but in an exceptional case, the court may pass an order requiring him to make such deposit. The execution of a bond would ordinarily be sufficient.”
The Supreme Court held that the concerned court need not insist on security or cash deposit or bank guarantee by the foreigner for due performance of obligations. A bond from the recognised placement agency shall suffice who may further take such bond from the sponsoring child or social welfare agency in the home country of the foreigner. Ordinarily, the latter would honour such a bond but if it is broken, the recognised placement agency shall not be liable to deal with it and the sponsoring agency’s name shall be liable to be removed from the list of such child or social welfare sponsoring agencies that are recognised for the purpose of adoption.
Other observations made by the court
On payment to scrutinising agencies
The Bench held that when the court makes an order appointing a foreign parent as a guardian of a child with a view to its eventual adoption in the foreign country, the court shall direct such an amount to paid to the agency for its scrutinising services as it deems reasonable, taking into consideration the nature of the case and the kind and extent of scrutinising services rendered. The court may fix a reasonable amount between Rs. 450-500 but may even exceed the same if it thinks fit. This amount shall be paid by the recognized placement agency which has processed the application of the foreign parent, and the placement agency shall have the right to recover the same from the concerned foreign parent. The directions shall be applied mutatis mutandis (with necessary changes being made) in cases where an Indian parent makes an application for appointing himself or herself as the guardian of a child or a Hindu parent applies for adoption of a child under Section 9(4) of the Hindu Adoptions and Maintenance Act,1956 and the case is referred to a scrutinising agency for its consideration. However, the amount in such a case shall not exceed Rs. 150.
On unrecognised placement agencies
The Karnataka State Council for Child Welfare in its application had argued that the purpose behind the judgments of 1984 and 1985 is being violated due to the prevalent practice in Karnataka where unrecognised agencies are using recognised agencies as post offices for processing cases with respect to children in their custody which the recognised agencies in fact have nothing to do with. The court noted that due to this practice, recognized placement agencies become mere ‘conduit pipes’ for making or processing applications for appointment of foreign guardians with no communication either with these prospective foreign parents or with the foreign sponsoring agency. This practice was criticised because if the child is not in the custody of the recognized placement agency, proper observation and collection of information of the child would not be possible. This would vitiate the entire process as it is the recognised agency which has to furnish the child study report, the medical report and the application for the appointment of foreign guardian to the court after proper examination. Thus, the recognised placement agency must have the concerned child in its custody for at least a month in order to prepare a comprehensive and satisfactory report.
On procedure for abandoned children/prevention of illegal selling of babies
While a fool-proof formula to completely stop such illegal acts could not be formulated, the court highlighted the need to devise a procedure that would reduce the number of such instances. It held that all nursing homes and hospitals which come across abandoned or destitute children shall give information regarding such discovery of children to the Social Welfare Department of the concerned government where such nursing homes or hospitals are situated in the Capital of the State. In other cases, such information must be furnished to the District Collector. Copies of such intimation shall also be sent to the Foster Care Home (where such a home is run by the State Government) as well as the recognized placement agencies operating in the town or city where such nursing home or hospital is located. The Social Welfare Department and the District Collectors shall ensure that this direction shall be followed in their respective jurisdictions and in cases where necessary, if the intimation to the Foster Home or Placement agencies regarding the discovery or finding of such children is not sent by the nursing home or hospital, the Social Welfare Department or the District Collector shall forward the same.
The Government run Foster Care Home as well as the recognized placement agencies shall communicate with each other as to available Indian parents who wish to adopt children. The Foster Care Home and the placement agencies shall through this collaboration, have a consolidated list of such prospective Indian parents. Each such parent registered as a prospective parent with either shall be entitled to information about all the children in the group specified by him/her according to the list.
On expeditious release orders
It was held that when a recognised placement agency produced the child for a release order before the Juvenile court declaring the child is abandoned or destitute and thus legally free for adoption, the Juvenile court must complete the inquiry within a period of one month from the date of application and the High Court must exercise due vigilance in order to give effect to the directions of this Court.
The Supreme Court further asked the High Courts for monthly reports from juvenile courts as to the number of pending applications for such release orders, when they were filed and if the period of one month has passed, what is the reason for delay. The Court expressed its worry that abandoned children must be placed with prospective Indian parents and failing Indian parents, to foreign parents as soon as possible without procedural delays so that they receive a loving family environment.
Analysis of Lakshmi Kant Pandey vs. Union of India (1986)
The present case clarified and modified the directions given in the main judgement as well as the supplementary judgement in order to streamline the implementation of the adoption framework as envisaged in Lakshmi Kant Pandey vs. Union of India (1984). By discussing the various modalities and procedures in the adoption process, particularly pertaining to inter-country adoption relating to costs, processes as well as other child welfare concerns, the procedural and normative safeguards as specified in the earlier judgments were strengthened and certain difficulties in the process were ironed out. The court hoped that the 1986 judgement would further lead to timely adoption and prevent child abuse.
The process of adoption was further streamlined, and unnecessary delays were removed thereby bringing down the time taken for eventual adoption, ensuring that children are offered familial love and security, and their welfare is treated as paramount. Further, the role of scrutinising agencies, sponsoring agencies, the costs of various factors involved in this process as well as expediency in release orders or mitigation of unnecessary difficulties faced by foreign parents are also elaborately dealt with, ensuring a timely and efficient adoption process.
Relevant judgement related to the case
Re: Rasiklal Chhaganlal Metha (1981)
The case is a landmark decision pertaining to inter-country adoption. One of the first cases concerning inter-country adoption, it pertained to a German couple who had converted to the Hindu faith and sought adoption of a minor girl child under Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956. The Gujarat High Court affirmed the decision of the District Court which had permitted the adoption of the child under the 1965 Act and held that inter-country adoption under Section 9(4) of the HAMA was indeed valid. The adoptive parents, however, must comply with the adoption laws in their own country and the court must ensure that such adoption is legally permissible under the laws of both the countries. Further, the adoptive parents must have the requisite permission of the authorities in their country, so that the child may immigrate and adopt the nationality of his/her adoptive parents and does not face any difficulties in doing so.
Conclusion
By streamlining the entire process of adoption and making it more efficient and free of delays, the law especially for intercountry adoption has been strengthened. The new norms keep the interests of the child as paramount. Although complications in the new regime may exist, a basic framework for processing inter-country adoptions has been laid down which may further be reformed by government interventions in this area. The adoption regime must continue to recognise the need for a stable and affectionate family in each child’s life and ensure that the guidelines laid down for the process do not have any adverse effects on the child or the adoptive family.
Frequently Asked Questions (FAQs)
What is the current legal framework with respect to adoption in India?
Besides the Hindu Adoptions and Maintenance Act,1956 which applies to adoption amongst Hindus as defined under the Act, Chapter VIII of the Juvenile Justice(Care and Protection) Act, 2015 and the rules framed under the Act as well as the norms laid down by the Central Adoption Resource Authority are the guiding framework with respect to adoption in India.
What are some of the international laws governing transnational adoption?
Article 21 of the United Nations Convention on the Rights of the Child, 1989 as well as the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 are some of the prominent international laws concerning inter-country adoption and child welfare in this respect.
References
- https://blog.ipleaders.in/legal-framework-inter-country-adoption/
- https://cara.wcd.gov.in/PDF/adoption_regulations_2022_2709.pdf
- https://blog.ipleaders.in/adoption-in-india-family-law/
- https://nlrd.org/adoption-case-laxmi-kant-pandey-vs-union-of-india/
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
