By Khushboo Sharma and Pranjul Dalela
Another far more tragic scenario faced by these children is with regard to their adoption prospects and rights. There are NGOs that are collecting money in the name of these affected children, facilitating illegal adoption, and indulging in child trafficking. To combat these, the Supreme Court took suomoto cognizance, directing the state and union government to take stringent action against them. The court directed them to follow the due process of law as per the provisions of the Centralized Adoption Resource Agency (CARA) and Juvenile Justice Act, 2015. However, the due process of law suffers from various legal lacunae.
Every district is required by law to establish a child welfare committee to track orphaned children.[i] The committee then directs the child to a certified childcare centre or an adoption centre, instructing them to locate the child’s biological family.[ii] If a child under the age of two is not traced within two months, and a child over the age of four is not traced within four months, the child is deemed legally eligible for adoption.[iii] Those willing to adopt such children must first register on the CARA website, following which a home study is conducted to determine the eligibility of prospective parents.[iv] If the report is permitted, the agency must submit a court petition to acquire the requisite order under the statute.[v] However, this process is laborious and time-consuming, which will exacerbate the child’s emotional anguish. Furthermore, as per Regulation 51 of Adoption Regulation, 2017[vi], the relatives of the child also have to follow the same adoption process, restricting their ability to offer immediate care. There are at least thirty thousand children who have lost one or both the parents and even more which are not officially recorded. Placing the responsibility of all these children solely on the childcare centres would overburden them, provided they have limited resources. Furthermore, the court’s delay in issuing an order would allow anyone to benefit from the legal loopholes. Even though it is recommended to follow the due process of law, it should be done on a priority basis, especially in times of pandemics. Further, the adoption process should be eased out by bringing the adoption process into the preview of fast-track court while keeping in mind that the children are placed in safer hands.
Additionally, as per Regulation 6(2) of Schedule 14 of Adoption Regulation provides that the adoption agencies are required to produce the abandoned or orphaned child before the child welfare committee within 24 hours.[vii] This is problematic at the times of COVID-19 as not all such children are produced before the committee, leaving them unrecognized. The knowledge of such adoption procedures is poor in rural areas. Moreover, the fee for such adoption needs to be borne by the prospective parents [viii],thereby deterring the individuals with restricted income from subscribing to such legal procedure as it is financially exhausting for them. To curb this issue, online representation of the abandoned child could be executed before the child welfare committee to make it speedy. Further, the fee charged for adoption could be reduced based on the annual income of the prospective parents to make it affordable for them.
Another problematic issue with the adoption mechanism is the inadequate infrastructure. This is because despite being legally mandated, there are several districts in India which lack an authorized adoption agency. There are many childcare centres that are not registered with the Child Welfare Committee, leaving the children at these centres unaccounted for by the government. With regard to this, the delegated authorities should try to bring these unrecognized Child Welfare Committees into registration and specifically do it on a priority basis to ensure the recognition of the children at these centres.
Conclusion
The above analysis demonstrates that the mechanism followed leaves a substantial number of children out of the radar of the government’s sympathy. Even UNICEF has expressed its concern on this issue. This mechanism explicitly infringes the basic human rights of these children. The philosophy to support vulnerable children is iterated in Article 21,stipulating that the right to live with human dignity must include protection of the tender age of children against abuse. Additionally, the Directive Principles of State Policy under Article 39 reiterate the same principle. In furtherance of the same, it is in the greater public interest that the state provides accurate death certificates of the parents to ensure that the children avail the benefit promised by the state. Moreover, the process of granting such certificates should be simplified.
On another note, it is recommended that a national scheme should be implemented to provide compensation to them rather than a scheme based on state level to ensure uniformity and equality. The preamble of the Constitution of India proclaims India as a “socialist” state implying the responsibility of the government for social welfare. Therefore, the government holds sovereign guardianship over the people with disabilities and is obliged to protect them. However, while doing so, it must be made sure that the children do not face the consequences of the loopholes of the law.
[i]S.27 (1), The Juvenile Justice (Care and Protection of Children) Act, 2015.
[ii]S.38 (1), The Juvenile Justice (Care and Protection of Children) Act, 2015.
[iii]Id.
[iv] S.9, Adoption Regulation 2017.
[v]S.59 (7), The Juvenile Justice (Care and Protection of Children) Act, 2015.
[vi] Schedule XXIV, Sub Regulation 4 of Regulation 51, Adoption Regulation, 2017.
[vii] Regulation 6(2), Schedule XIV, Adoption Regulation 2017. ; S.31 (1), The Juvenile Justice (Care and Protection of Child) Act, 2015.
[viii] S. 46(1), Adoption Regulation 2017; S.61 (1), The Juvenile Justice (Care and Protection of Child) Act, 2015.
(Khushboo Sharma and Pranjal Dalela are third year students at NLIU, Bhopal and NUSRL, Ranchi respectively.)
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