A new Act and some concerns

Date: 2001-05-26
Source: Frontline

PARVATHI MENON

A SEGMENT of public opinion in India has long been critical of many aspects of adoption, inter-country adoption in particular, believing it to be an area of child welfare that is unregulated and open to abuse. Such notions are often fed by periodic scare-stories, for example of Indian babies being "exported" in large numbers, adopted children ending up in the sex markets of foreign countries and so on. These acquire a further degree of popular credibility when an actual adoption scam, such as has been unravelled in Andhra Pradesh, is uncovered. This is of course a setback for the cause of adoption, which is not only one of the most enlightened and successful components of India's child welfare programme, but one of the most regulated, legally and procedurally.

India till recently had no uniform law governing adoption. Legally it was only a Hindu citizen who, under the Hindu Adoption and Maintenance Act (HAMA), 1956, could adopt a child. The closest that non-Hindus, that is, Muslims, Christians, Parsis and Jews, could come to adoption was through procedures under the Guardians and Wards Act, one that is hardly a substitute for a full-fledged adoption law. There was a compelling need for a civil law governing adoption, or failing that, an enabling adoption code which adoptive parents who are non-Hindus, or do not wish to adopt under HAMA, could take recourse to.

IT is partly in response to this need that the Juvenile Justice (Care and Protection of Children) Act, 2000, included adoption within its ambit. This is not a stand-alone law on adoption, of course, but brings in adoption as one of the mechanisms by which abandoned or abused children could be rehabilitated. The Juvenile Justice Act was gazetted on December 30, 2000, and became law on April 1. The draft rules are under preparation and have to be passed by State legislatures. The Act, drawn up on the initiative of Maneka Gandhi, Union Minister of State for Social Justice and Empowerment, replaces the Juvenile Justice Act, 1986.

The Juvenile Justice Act 2000 recognises adoption as an important process in the rehabilitation and social reintegration of children who are abandoned, orphaned, neglected or abused in their families or in institutions. The Act excludes from its purview those children who have been voluntarily relinquished by their biological parents. It also does not legislate on the process of inter-country adoptions. The Act has sought to open the gates for in-country adoptions a little wider by setting up Juvenile Justice Boards (district-level committees under a District Magistrate with special experience in child welfare) to give children in adoption according to guidelines laid down by a State government. It allows parents to adopt more than one child of each sex, and recognises the single parent, features that are an improvement on the existing law. A 'child' as defined in the Act is a person who has not completed 18 years of age, again an improvement on HAMA, in which a 'child' is a person who has completed 15 years.

Two leading child welfare experts this correspondent spoke with reacted with caution to the legislation. Andal Damodaran, chairperson, Central Adoption Resource Agency (CARA), felt that if well interpreted by the courts, the legislation will help promote adoption. Nomita Chandy, secretary, Ashraya, a recognised Bangalore-based adoption agency working with domestic and international adoption, felt that though laudable in intent the Juvenile Justice Act 2000 may do more harm than good to the cause of adoption, as it conflicts with existing legislation and is riddled with inconsistencies.

Given its special status within a child welfare programme, adoption demands separate legislation that must either supercede or made compatible with existing legislation and the tangle of procedures which directly or indirectly involve the Central and State governments as monitoring bodies, CARA, courts, social workers, adoption agencies, biological parents, adoptive parents, and of course the child.

Andal Damodaran said: "A comprehensive law on adoption which is the ideal solution seems so far away, so this is better than nothing. Because of the lack of an Act so many parents who already have one adopted child and who are excellent candidates to adopt another child of the same sex, cannot do so." (HAMA does not allow Hindu parents to adopt more than one child of the same sex.) Most of these children then go in for inter-country adoptions, often into families where there are several children. "It seems unfair that Indian parents are denied this joy," she said. Andal Damodaran feels that on the whole, if interpreted well by the courts, this legislation could take the cause of adoption forward within the country, as it will open space for more Indian adoptions.

But there are those who hold a different view. In a note on adoption and the Juvenile Justice Act 2000, Sarasu Esther Thomas of the National Law School of India University, Bangalore, argues that since the Juvenile Justice Act 2000 is a general law that deals with several aspects of juvenile justice, and HAMA is a special law that deals mainly with adoption, the latter would in law have precedence over the former. She cites some of the major problems that could arise while interpreting the Juvenile Justice Act 2000, namely, the existence of a prior law relating to adoptions for Hindus, the non-existence of adoption laws for non-Hindu communities, the prohibition of adoption in the religious laws of some communities, and the silence of the Act on inter-country adoption.

"My main objection to the Juvenile Justice Act 2000 is that it hides an adoption law in it with no reflection on how it is to be implemented or its repercussions," said Nomita Chandy, who has worked in the field of child welfare and adoption in particular for some 25 years. Her organisation, Ashraya, among its other activities, has been running a school in the Government Observation Home for Boys in Bangalore. "We know there are obstacles to passing a comprehensive adoption law. But we cannot bypass this process. We require a law that is precise and clear in its terms and is not in conflict with other pieces of legislation. If this is not done, then we are pushing adoption underground again. The intentions of the Act are fairly good, but they do not even mention adoption in the statement of object!"

According to Nomita Chandy, there are several issues of concern here. The first is the conflict between the Act and existing legislation. The multiplicity of laws, each with their own set of operational rules, can cause chaos in the field, she feels. Secondly, she believes that the section on adoption in the new Act has been written imprecisely and with little attention to detail. The creation of a parallel new structure for adoption headed by Juvenile Justice Boards in the various districts under Magistrates with "special knowledge and training in child psychology", will replace the present system of family courts, which have worked reasonably well. "The new Act will require a substantial amount of funds and it may not be always possible to find Magistrates with the desired background in child welfare, resulting in posts remaining vacant. This will delay an already delay-prone system," said Nomita Chandy.

Right now, inter-country adoption is governed by a Supreme Court ruling (CRL 171/1982) of February 6, 1984. The Juvenile Justice Act 2000 makes no mention of inter-country adoption. "The present Act empowers State governments to issue 'guidelines' to the Board," said Nomita Chandy. "What about the CARA guidelines drawn up with such care and which have worked well all this time?"

Nowhere does the Juvenile Justice Act 2000 say that it supersedes existing legislation on adoptions. "I would like to be positive and think of the new Act as an enabling legislation," said Andal Damodaran. Even with this Act in place, prospective parents are free to adopt under either of the two laws that deal with adoption, she argued. They could adopt under HAMA, if the child had been relinquished by its parents, in which case one set of procedures would be followed; or the Juvenile Justice Act 2000 if the child was abandoned - in which case another set of procedures would be followed.

The Juvenile Justice Act 2000 was passed with little discussion in Parliament. Child welfare circles got to see the draft bill too late. CARA, according to Nomita Chandy, did not get to see the draft.

The real test of the Act will lie in its implementation and in whether it can expand adoption while ensuring that sordid practices of the type that have now come to light in Andhra Pradesh do not recur.

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