SC issues slew of directions to state governments on streamlining process of adoption

A Supreme Court Bench led by the Chief Justice of India Dr D.Y. Chandrachud and also comprising Justices J.B. Pardiwala, and Manoj Misra was hearing two petitions seeking simplification of the adoption process and the considerable delay in the process.

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ON Monday, the Supreme Court issued directions to all states and Union territories to compile data in furtherance of streamlining and expediting the adoption process in the country.

A Supreme Court Bench led by the Chief Justice of India Dr D.Y. Chandrachud and also comprising Justices J.B. Pardiwala, and Manoj Misra was hearing two petitions seeking simplification of the adoption process and the considerable delay in the process.

Juvenile Justice (Care and Protection of Children) (JJ) Act, 2015 and Central Adoption Resource Authority (CARA)'s Adoption Regulations, 2022 provide a procedure for the adoption of children who are 'orphans, abandoned or surrendered'.

In September 2022, the Union Ministry of Women and Child Development issued adoption regulations on procedures relating to children for adoption.

The procedure involves the association of several expert agencies including state adoption regulatory authorities (SARAs), specialised adoption agencies and district child protection units.

Today, Aishwarya Bhati, additional Solicitor General of India, told the court that these agencies are the "limbs" through which the entire adoption process in the country functions.

Each of the agencies is prescribed specific timelines for processing cases of adoptions, she said.

Disagreeing with her, senior advocate Rohan Shah, appearing on behalf of one of the petitioners, asserted that there is a complete lack of accountability on the timeline prescribed from the time a child is introduced in the system for adoption till the time such child is adopted.

Shah remarked, "Timelines have been directive instead of mandatory." Shah also flagged the lack of dedicated officers to monitor the adoption process.

"Multifarious agencies playing multifarious roles are causing delays in the adoption process", Shah opined. Shah submitted that despite having a large pool of prospective parents willing to adopt, India is seeing only 3,000–4,000 adoptions in a year.

Stressing the need for the involvement of non-governmental organisations and civil society participation, Shah opined that encouraging such participation could lend support to the agencies in the adoption process.

In its Order dictated today, the Bench noted that statistics provided by CARA provide a "stark" picture of the adoption process.

The Bench noted that from 2013 to 2023, the lowest country and intercountry adoptions took place in 2022–23 (3,158) and the highest took place 2014–15 (4,362).

As per the state-wise breakup provided by CARA, as of October 2023, 2,146 children were available for adoption.

As opposed to this, the Bench notes that 30,669 prospective adoptive parents are registered for in-country registration. Prospective adoptive parents have to wait for three to four years due to the mismatch between them and the number of children available for adoption, the Bench noted.

The Bench classified the suggestions made to the court into five categories, including suggestions extended by Bhati; Dr Jagannath Pati, director of CARA; and the petitioners.

The suggestions are the need to ensure expeditious identification of children falling under the category of children who are orphans, abandoned or surrendered; and the need to revamp administrative infrastructure, specifically in specialised adoption agencies and district child protection units.

The Bench also noted the suggestions to ensure accountability concerning the timelines laid down in the adoption process; the need to compile adequate data to channelise children who are in need of care and protection into the adoption process; and the need to clarify that the process of adoption under the Hindu Adoption and Maintenance Act (HAMA), 1956 is independent of process under the JJ Act.

CARA gets involved in adoptions under the HAMA only in cases of inter-country adoptions to issue certificates as mandated by the Hague Convention. 

On the aspect of identification of children, the secretaries in charge of the nodal departments appointed for the administration of the JJ Act in every state and Union territory are directed to undertake an identification drive every two months to identify children in the 'orphans, abandoned or surrendered' category in childcare institutions.

The court directed the first such drive to be carried out by December 7 this year.

Bhati said that such identification is important to bring the children who are "languishing" in childcare institutions to CARA's web portal so that they can be made available for foster care and adoption.

In addition, the nodal department in every state and Union territory, appointed to monitor the JJ Act, has been directed to collect and compile data and submit the same to the Union Ministry of Women and Child Development and the director of CARA by January 31, 2024.

Further, taking cognisance of the statistics provided by CARA, the Bench noted that of the 760 districts in the country, only 390 districts have earmarked specialised adoption agencies, as mandated by the JJ Act. Thus, in 370 districts, no specialised adoption agency is functional, the Bench stated.

The Bench highlighted the importance of specialised adoption agencies and said that in the absence of specialised adoption agencies, the adoption process cannot be efficiently implemented as per the 2022 Regulations.

All states and Union territories have been directed to ensure that within every district, specialised adoption agencies are set up by January 31.

The Bench directed the process of identifying children in childcare institutions and potential children for adoption from communities to be expedited.

As regards the provisions of the personal law of the HAMA, which applies to Hindus, the adoption procedure is independent of the Adoption Regulations of 2022 framed under the JJ Act.

It was noted by Bhati and Dr Pati that the adoption process under the HAMA is "robust" as compared to the "lengthy" process under the JJ Act.

The Bench directed all states and Union territories to compile and submit data on the HAMA adoptions to Dr Pati by January 31, 2024.

The states and Union territories have also been directed to compile data and submit a status report by February 10, 2024.

Finally, the Bench directed CARA to issue directions to all authorities governed by the Adoption Regulations, 2022 to observe the timelines indicated therein.