Laxmi Kant Pandey vs Union Of India
By SaiVikrant Deshpande
CASE CITATION:1987 AIR 232 1987 SCR (1) 383
1987 SCC (1) 66 JT 1986 950
1986 SCALE (2)913
· DATE OF THE JUDGEMENT : 3RDDECEMBER, 1986
· NAME OF THE JUDGES : P.N BHAGWATI [CHIEF JUSTICE OF INDIA],RANGNATH MISRA
· FACTUAL BACKGROUND :The petitioner, Lakshmi Kant Pandey, an attorney, wrote to the Supreme Court of India alleging neglect and malpractice on the part of private adoption agencies and social organizations facilitating the adoption of Indian children to parents of different countries . He noted the long and hazardous journeys these children made to foreign countries, along with instances of neglect they experienced from their adoptive parents resulting in impoverishment or sexual exploitation of the children. The Court treated his letter as a writ petition and this instituted the basis of the public interest litigation. In its judgment, the SC noted that the absence of legal regulation of inter-country adoptions in India could cause enormous harm to Indian children who may, for example, be exposed to the abuses of profiteering or trafficking. In order to protect the welfare of children, the Court, in consultation with several social or child welfare institutions, laid out a comprehensive framework of normative and procedural safeguards for regulating inter-country adoption as protection against abuse, maltreatment or exploitation of children and to secure them a healthy, decent family life. The Supreme Court in the judgment of Laxmi Kant Pandey v. Union of India dated 6th February, 1984 and the supplemental judgment dated 27th September, 1985 had formulated the normative and procedural safeguards to be followed in giving an Indian child in adoption to foreign parents. Since there were certain difficulties in implementing the aforesaid norms and principles, the petitioners moved the present criminal miscellaneous petitions for seeking clarification/further directions in the matter. Disposing of the petitions, 384
· ISSUES RAISED :Difficulties raised by the agencies in case of following principles and norms laid by Supreme Court of India in its supplemental judgement dated 27 September,1984 like it would be impossible for any foreign social or child welfare agency to sponsor the case of such foreigner who is living in India and it would equally be impossible for any such social or child welfare agency to prepare a home, study report in respect of such foreigner.
· ARGUMENTS OF PETITIONER[LAXMI KANT PANDEY] : Petitioner argued that there have been instances of illegal sales of babies based on investigation by a reputed foreign magazine called “THE MAIL” and stated that it is not possible to devise a fool-proof formula which will in all cases prevent illegal sales of babies but a procedure can and must be formulated which will definitely reduce the possibility of such illegal sales .Argued that too long a period and the directions given by Supreme Court of India should be modified with a view to curtailing this period because entire process laid down by the court is a long drawn out process running into a period of about 8 to 9 months and that would defeat the object of expedition in giving a child in adoption .
· ARGUMENTS BY RESPONDENT : one of the arguments is limit of Rs.4,000 fixed by the Court in the supplemental judgment dated 27th September 1985 for reimbursement of expenses including legal expenses, administrative expenses, preparation of child study report, preparation of medical ,I.Q. Reports, passport, visa expenses and conveyance expense was inadequate, particularly having regard to the high fees charged by lawyers and increase in the visa charges for the United States and some other countries and that this outer limit should, therefore, be raised from Rs.4,000 to Rs.6,000.Mentioned difficulties in following norms and rules laid in its former judgements.
· JUDGEMENT :Since we do not have a uniform adoption law,Supreme Court of India in the judgementdated 6th February in 1984 and supplemental judgement dated27th September in 1985 gave directives and guidelines in processing adoptions to foreign parents under the Guardian and Wards Act, 1890. Supreme Court formulated the normative and procedural safeguards to be followed in giving an Indian child in adoption to foreign parents. Since there were certain difficulties in implementing the aforesaid norms and principles, the petitioners moved the present criminal miscellaneous petitions for seeking clarification in the matter in 1986.Supreme Court held that any adoption in violation of or non-compliance with the directives set forth in this judgment may lead the adoption to be declared invalid and expose the person concerned to strict action including prosecution. Supreme court laid rules and norms such as follows:
· None of the recognized placement agencies should make and process an application for appointment of a foreigner as guardian/parent of a child,unless the child is in the custody of the recognised placement agency for a period of at least one month before making of the application and they should not be permitted to act merely as a post office or conduit pipe for the benefit of unrecognized agencies.
· The Court entertaining an application for appointment of a foreigner as guardian of a child should not require the representative ,of the recognized placement agency processing the application to join the application as a co-petitioner nor should the court insist on appointing such representative as joint guardian of the child along with the foreigner.
· Where a child is relinquished by its biological parents or by an unwed mother under a Deed of Relinquishment executed by the biological parents or the unwed mother it should not be necessary to go through the Juvenile Court or to the Social Welfare Department or to the Collector to obtain a release order from them declaring the child free for adoption but it would be enough to produce the “Deed of Relinquishment” before the court which considered the application for appointment of a foreigner as guardian of the child.
· The recognized placement agency processing the application of a foreigner for being appointed guardian of a child with a view to its eventual adoption, should be entitled to recover from the foreigner, cost incurred in preparing and filing the application and prosecuting it in court including legal expenses, administrative expenses preparation of child study report, preparation of medical and I.Q.Reports, passport and visa expenses and conveyance expenses and that such expenses may be fixed by the court at a figure not exceeding Rs.6000 .