By Eshan Jaipuriar, Symbiosis Law School Pune
This piece throws light upon the various endeavours made by the Government towards the creation of a uniform Civil Code.Having imported such a method to facilitate better governance, India continues to operate with a multitude of personal laws.However, such a system also has its own demerits and ultimately creates a cycle of discrimination and injustice. The law pertaining to adoption is one aspect where the adverse impact of personal laws can be observed. In this regard, the Shabnam Hashmi case brought to the fore the judicial discrepancies surrounding the adoption of non-Muslims by Muslim parents and the lack of legal rights thereof. At this juncture, it is imperative for the best interests of the child to be identified and conscious efforts to be made by the law-makers to reconcile the existing differences.
Both the legislature and judiciary have remained very reluctant in taking tough stands on matters pertaining to personal laws and secularism. They are usually dominated by the orthodox views of the minority sects and denominations citing, in most cases, the reasons of the sensitive nature of the matter and law and order. But it should not be forgotten that the Preamble to the Indian Constitution[i] explicitly describes India as a secular country that secures to all its citizens equality, amongst other things. The greater picture stands undermined by the current approach of the organs of Government. Even in the past, when attempts were made in furtherance of promoting secularism, they got stalled by the religious outcry. A Bill on the Uniform Civil Code was introduced in the Indian parliament, but owing to the hue and cry from the Muslim Community the Bill never became an Act. Moreover, the Central Government introduced the Adoption of Children Bill, 1972 in the Rajya Sabha, but it was subsequently dropped, presumably because of Muslim opposition to a uniform law of adoption applicable to all communities including Muslims. It is claimed that Islam does not recognize adoption and a child adopted by a Muslim will not be treated at par with a child adopted by a Hindu. However most of the non-Hindu communities do not recognize adoption viz. Muslims, Parsis, Christians and Jews etc. Adoption for the non-Hindus is facilitated by The Guardians and Wards Act, 1890. This however does not provide to the child the same status as a child born biologically to the family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956 the child cannot become their own, take their name or inherit their properly by right. This Act confers only a guardian-ward relationship. Such a relationship exists until the child completes 21 years of age. Soon after attaining majority the legal guardian-ward relationship extinguishes and the adopted Muslim child becomes a na-mehram (not in blood relation) to the adoptee[ii]. This results in discrimination between a child who is adopted by a Hindu under Hindu Adoption and Maintenance Act, 1956 and a child adopted by a non-Hindu under The Guardians and Wards Act, 1890. The Islamic orthodoxy claims to seek relevance from the Quran, but nowhere in the Holy Scripture is it mentioned that adoption is not allowed. The custom of adoption was prevalent in pre-Islamic Arabia, so much so that even Mohammad the Prophet himself took Zaid, the son of Haris in adoption[iii]. Many non-Hindus have always desired to adopt children so that the adopted child can inherit the property, but are unable to do so due to the lack of legislation. It is unfair for those childless parents who want to adopt a child and for the child who after the age of 21 does not have any legal bonds with the parents who brought him up over the years.
COURT’S TAKE ON THE UNIFORM CIVIL CODE
Article 44[iv], which is a DIRECTIVE PRINCIPLE OF STATE POLICY, provides that
“The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
This Article mandates the state to strive to bring in place a Uniform Civil Code. Though it is not binding but it imposes an obligation on the State. While this has been an agenda in the manifesto of various political parties but may be because of the ‘vote-bank’ politics or communalization they have not been able to succeed in their endeavor. Besides, the courts have also seemed to be rather reluctant in giving a clear stance over the matter and till date no specific guidelines have been laid down. The Supreme Court could have interpreted adoption as a fundamental right under Article 21 for both the parents and the child but they abstained from doing so and procrastinated the duty by stating, ‘We hardly need to reiterate the well settled principles of judicial restraint, the fundamental of which requires the Court not to deal with issues of Constitutional interpretation unless such an exercise is but unavoidable’[v].
ADOPTION BY FOREIGN NATIONALS
The absence of a secular law not only affects Indians, but it also affects the foreign nationals who come to India with the desire of adopting a child. However since there is no law in place for such people, they are required to follow a cumbersome process by first taking the guardianship of the child from the courts under the Guardians and Wards Act, 1890 and then giving due assurance to the Court that they would legally adopt the child as per the laws of their country within two years of their arrival there. All this can be avoided by bringing a law in place which will deal with all such cases and consequentially the misuse of adoptees will also come down. Newspapers have reported a number of cases where the child has gone to an alien land only to be mistreated. Such children have been used as domestic servants, beggars and even for prostitution. The Andhra Pradesh scandals illustrate the wide gap between the laws of inter-country adoption and the actual practices. In relation to inter-country adoption certain guidelines have been laid down by the Supreme Court as to how the adoption shall take place in Lakshmi Kant Pandey v. Union of India[vi]. A regulatory body, i.e., Central Adoption Resource Agency (for short ‘CARA’) was recommended for creation and accordingly set up by the Government of India in the year 1989, Since then, the said body has been playing a pivotal role, laying down norms both substantive and procedural, in the matter of inter as well as in country adoptions.
PROBLEMS FACED BY NON-HINDUS
But the problems in intra-country adoptions still persist, due to the lack of a secular law. The misery of such people was very well reflected in the recent case of Shabnam Hashmi v. Union of India[vii], when Shabnam Hashmi visited her first adoption centre in New Delhi’s suburbs, she was told that they didn’t have any Muslim children. Shabman Hashmi who had a son wanted to adopt a daughter to make a complete family. However she learnt that Muslims cannot adopt or be adopted and if they want to do so it can only be done by virtue of The Guardians and Wards Act, 1890, which doesn’t give a legal status of biological parents nor does adoptee have any rights of inheritance. She filed a Writ Petition in the Supreme Court in 2005 to give the Muslim parents the same status as that of a biological parent and to recognize adoption as a fundamental right under Article 21. An alternative prayer was made requesting the Court to lay down optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc. and further for a direction to the respondent Union of India to enact an optional law for facilitation of adoption irrespective of religious considerations. The Court disposed the matter on 19th February ’14, without issuing any such direction, but it emphasized that the provisions relating to adoption under the Juvenile Justice (Care and Protection of Children) Act, 2000 can be availed by any person notwithstanding the position of adoption under the personal law. The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection. Such rehabilitation and social reintegration was to be carried out alternatively by adoption or foster care or sponsorship or by sending the child to an after-care organization. Section 41 contemplates adoption though it makes it clear that the primary responsibility for providing care and protection to a child is of his immediate family. Sections 42, 43 and 44 of the JJ Act, 2000 deal with the alternative methods of rehabilitation namely, foster care, sponsorship and being looked after by an after-care organization. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006 that the meaning thereof came to be expressed in the following terms:
“2(aa)-“adoption” means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”
Nevertheless, the Supreme Court did not recognize adoption as a fundamental right under Article 21 and claimed self-restraint. The Court’s refusal to the right to adopt is an integral part of Article 21, which guarantees the right to life and liberty, is not convincing. In this era of judicial activism it is absurd to say that the Supreme Court has no Constitutional responsibility to discharge the obligation under Article 44 to strive towards the enactment to a Uniform Civil Code is not satisfactory.
WHO HAS TO TAKE THE CALL
The Court could have taken a better stand even if there was opposition from All India Muslim Personal Law Board (AIMPLB). Is it for the AIMPLB to take a call on how a secular law should be and to try and dominate the Apex Court of the country? If so, I digress. The Board has been persistently trying to overpower the Supreme Court’s judgment. According to the Board, Islamic Law professes what is known as the “Kafala” system under which the child is placed under a ‘Kafil’ who provides for the well-being of the child including financial support and thus is legally allowed to take care of the child though the child remains the true descendant of his biological parents and not that of the “adoptive” parents. The Board contended that the “Kafala” system which is recognized by the United Nation’s Convention of the Rights of the Child under Article 20(3) is one of the alternate system of child care contemplated by the JJ Act, 2000 and therefore a direction should be issued to all the Child Welfare Committees to keep in mind and follow the principles of Islamic Law before declaring a Muslim child available for adoption under Section 41(5) of the JJ Act, 2000. This is a blatant display of hegemony over the Apex Court.
INTERNATIONAL CONVENTIONS ON ADOPTION
In 1959, United Nations gave official recognition to the rights of children by adopting the Human Rights of the Child 1959, to which India became a signatory on 11th December 1992, which would imply that they have to be incorporated into the legal system. Article 4 of the Convention provides that the state parties should review their legislation and ensure that the laws are consistent with the Convention. Principle 1 of the Convention reads “every child, without any exception whatsoever, shall be entitled to these rights without distinction or discrimination on account of race, language, religion.” A child shall be protected from practices which may foster racial, religious or any other form of discrimination. The Convention’s object clearly states that the Convention is to apply to all adoptions between contracting states that create a permanent parent-child relation. The Islamic principles of fosterage however blatantly deny property rights to non-Muslim children who are adopted and this is unfair. The Indian Constitution does not protect religious interests which violate basic human rights.
THE CONSTITUTIONAL CONFLICT
More often than not the endeavors by the courts and legislatures towards the creation of a uniform code are disrupted on the grounds of violation of Article 25 & 26, freedom of religion and conscience. However Article 25 protects only such practices which are essential and integral to any religion. Laws and regulations of social relationship in the matter of marriage, divorce, succession, adoption etc are undoubtedly secular in character and therefore “cannot be brought within the guarantee enshrined under Article 25 and 26 of the constitution”. The right to freedom of religion is not an absolute right. Courts have correctly weighed religious interests against the governmental interest of promoting the health, safety, and general welfare of society. In accordance with Article 25, the State can interfere in religious matters if it is for social welfare and reform. Besides, Section 2 of the Shariat Application Act, 1937 enumerates the subjects which are to be governed by the Muslim Personal law. The matters enumerated in the Section do not include adoption. For the interpretation of the Section the decision of two judge bench judgment of Madras High Court in Purahil Karnavan v. Thayat Avooma can be considered wherein the Court held that exclusion of other subjects such as adoption in respect of which a valid custom could govern and be binding on the parties does not mean that it is not permissible for the parties to rely on such a valid custom, if there is one. Any attempt to give up such a custom would be held invalid. Considering the above authorities it can be sufficiently concluded that Islamic law recognizes adoption and therefore, a uniform law governing adoption cannot be declared unconstitutional.
Uniform Civil Code is an idea much talked about but less acted upon. Political motives of various parties and their affiliation and commitment to different sects is, without any doubt, a main reason behind the non-implementation of Uniform Civil Code. Furthermore, Article 38(2), another Directive Principle of State Policy states, “The State shall endeavor to eliminate inequalities in status.” Hence a uniform law for adoption will eliminate the unequal status of a child adopted by a Hindu and a child adopted by a non-Hindu.
There is indeed a severe need for a uniform law on adoption in India to avoid discrimination between various religious communities. The day is not far when people of this country will shove off their religious vengeance and will start living harmoniously with each other, if the Government endeavors to secure the Uniform Civil Code and stops dividing people on the basis of caste, creed and religion. India will then truly become a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC.
Edited by Raghavi Viswanath
[i] The Preamble, “We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: justice; liberty; equality; fraternity; in our constituent assembly this twenty-sixth day of november,1949, do hereby adopt, enact and give to ourselves this constitution.
[ii] The adopted child becomes eligible to marry his/her adoptee and the adoptee’s biological children.
[iii] Holy Quran (s.8.a 72).
[iv] Article 44 of the Indian Constitution
[v] Shabnam Hashmi v. Union Of India & Ors.; Writ Petition (Civil) No. 470 Of 2005
[vi] Lakshmi Kant Pandey v. Union of India, (1984) 2 S.C.C
[vii] Writ Petition (Civil) No. 470 Of 2005